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22 Air & Space Law. 1 (2008-2010)

handle is hein.journals/airspaclaw22 and id is 1 raw text is: & AMERICAN BAR ASSOCIATION Airline Passenger Rights Legislation - By Robert S. Span S hould individual states be allowed to require airlines to provide certain services to passengers durdig lengthy delays on the tarmac? Are such laws a per- mitted exercise of the state's police power to protect the health and safety of the public? Or does the federal Air- line Deregulation Act (ADA) prohibit such local intrusion into a field regulated solely by the federal government? These questions were answered recently by the U.S. Court of Appeals for the Second Circuit in a case that has important implications for the airline industry, impica- tions that go beyond the specific issue of airline passen- ger bills of rights. ADA preemption Courts have long recognized the pervasive nature of federal regulation of aviation. As Supreme Cour iJustice Robert Jackson noted in the early days of commeierial aviation: R VOLUME 22, NUMBER 1, 2008 Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally cer- tified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privi- leges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government. By 1958, Congress had created two agencies that, between them, exercised comprehensive authority over all aspects of the interstate airline industry. These were the Civil Aeronautics Board (CAB), which primarily continued on page 5 Forum on Air an.. d S p ace Law AlR THE L A 4-- - - I I - -

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