10/15/2000 - Sunday - Page A 41
 

Sky Anxiety
LaGuardia's overburdened, but flight ban may spark battle


For months, Port Authority officials tried to sound the alarm about a federal law that paved the way for hundreds of new regional flights at LaGuardia Airport. They wrote to airlines, federal regulators and local members of Congress, warning of potential gridlock at the airport. But the pleas were largely ignored.

Then last month the agency took one of the boldest steps an airport manager can take: It told airlines they could not add more flights at LaGuardia during peak hours starting Oct. 1. Within days, regulators organized a flurry of meetings between the airlines and Port Authority officials to discuss how flights can be moved to off-peak times or even other airports.

Aviation experts say the moratorium could be struck down in a court challenge. Yet the ban has prompted airlines to acknowledge for the first time that LaGuardia cannot handle the 600 additional flights a day planned under the new law-a 50 percent increase. There already are 200 more flights a day since the law was signed in April, making LaGuardia the nation's worst airport for delays and renewing complaints in Queens about jet noise and air pollution.

"There is a real crisis at LaGuardia," American Airlines' chief executive Donald Carty told a U.S. House aviation subcommittee hearing last month.

"Something has to give or the situation is going to deteriorate." The AIR-21 law eased longtime restrictions on adding flights at LaGuardia and Kennedy Airports by allowing regional jets holding up to 70 passengers to fly to underserved markets such as Buffalo and Rochester. The added traffic prompted the Port Authority to ban new flights between 8 and 9:59 a.m., and 5:30 and 8:29 p.m.

So far, airlines appear to be complying. But the moratorium could still provoke a showdown: Federal law says that airport operators, along with state and local governments, cannot impose restrictions that affect airline prices, routes or service. Airlines use the so-called "pre-emption rule" to challenge the policies of local airport agencies. The same federal law also says that airport operators can exercise "proprietary powers and rights." Many aviation cases have hinged on a court's interpretation of these conflicting factors.

"Courts have found that airport operators might need to impose some limits to control the surface aspects of their operation," said Kent Krause, an aviation law professor at Southern Methodist University in Dallas.

The Port Authority has been involved in two important cases that upheld an airport operator's right to impose restrictions. In 1987, the 2nd U.S. Circuit Court of Appeals rejected Western Airlines' challenge to the Port Authority's "perimeter rule" at LaGuardia, which prohibited nonstop flights exceeding 1,500 miles. The authority argued that the rule would help reduce congestion at LaGuardia by diverting leisure travelers to Kennedy and Newark Airports.

The appeals court found the Port Authority's argument convincing because it manages all three major airports in the New York area and it is able to run them as a single system. That could help the agency withstand a challenge to the ban on new peak-hour flights, experts say.

"The Port Authority is in better standing than most other operators because it controls all three airports in the region, and there's a case on the books that upheld its right to manage an airport," Krause said.

In a previous case in 1969, a federal court upheld the Port Authority's right to impose a peak-hour surcharge on private jets and charter planes to discourage them from using the three major airports. The agency wanted to divert this kind of traffic to New Jersey's Teterboro Airport, which is also managed by the Port Authority.

Even so, aviation experts say, the moratorium on new flights could face a serious court challenge because no other U.S. airport operator has ever tried to impose such sweeping restrictions to manage congestion.

"In some ways, this is harking back to the days of government regulation of the airline industry, and I'm not sure how well that would sit with the courts," said Seth Young, an aviation management professor at Embry-Riddle Aeronautical University in Daytona Beach, Fla. "People in the industry will be watching closely to see if the Port Authority can pull this off." Darryl Jenkins, executive director of the Aviation Institute at George Washington University, said the Port Authority probably exceeded its power by imposing the flight ban, but it may be able to stave off an immediate challenge because of mounting consumer frustration with airport delays across the country.

"They definitely got everyone's attention with this ban," he said. "The key will be whether it can lead to long-term change." Port Authority officials acknowledge that the moratorium is unprecedented, and they insist that it's a temporary solution while they develop a new system to manage regional flights at LaGuardia. In addition to shifting flights to off-peak hours, the agency is encouraging airlines to move regional service to Kennedy, where only 13 new flights are planned.

"It's true that no major airport operator has attempted to do this," said Arthur Berg, a Port Authority lawyer. "But no airport in the country has faced the crisis that we're facing at LaGuardia." The U.S. Transportation Department so far has not indicated that it would challenge the Port Authority's right to impose a ban on flights.

DOT spokesman Bill Mosley said regulators have held several meetings with Port Authority and airline officials. "The goal was not to focus on the legal issues but to concentrate on solutions," he said. "We're going to see some kind of resolution very soon." While many airlines challenged the ban shortly after it was announced, they have failed to present a unified front since then.

The Washington-based Air Transport Association, the airlines' major lobbying group, has not taken a position on the moratorium. "Our members have varying views on this issue," spokeswoman Diana Cronan said.

If the Port Authority does face a legal challenge, agency officials would likely make the same argument they made to the airlines when they imposed the ban: Air traffic has exceeded LaGuardia's capacity during peak hours and delays are becoming intolerable.

The boom in regional service has contributed to a threefold increase in delays at LaGuardia, according to the latest figures from the Federal Aviation Administration.

In September, there were 10,733 delays at LaGuardia, meaning that 30 percent of all flights were delayed at least 15 minutes. Last September, about 10 percent of all flights were delayed.

In July, delays at LaGuardia surpassed those at Newark Airport, which had long been the nation's leader in delays. The reason, FAA officials said, is that LaGuardia has too much traffic. On Sept. 11, a new record was set for most takeoffs and landings at LaGuardia in one day: 1,381.

"If I increased traffic on the Long Island Expressway by 10 percent, you would logically expect delays to go up," said Mark Hatfield, air traffic division manager for the FAA's eastern region. "That's what's happening at LaGuardia." Delays attributed to airport congestion rose from 317 in July to 3,236 last month, the first time that volume delays have reached four figures at a New York-area airport, Hatfield said.

As an example of how volume delays can happen, Hatfield said on one weekday this month, 10 flights are scheduled to leave and 12 are scheduled to arrive almost at the same time, from 7 to 7:04 p.m. The airport can safely handle only seven total arrivals and departures during that five-minute period, under good weather and other ideal conditions.

"You don't have to be the sharpest knife in the drawer to know that I'm going to have aircrafts left over that I can't accommodate," Hatfield said.

He said there's no way to speed up the process of moving planes because flights must be spaced in the air for safety reasons. "We've never shortened the spacing between aircrafts," Hatfield said. "That's why people can expect to have more delays." Airport operators across the country will be closely watching how events unfold at LaGuardia. The airport is a microcosm for what experts say is a chief cause of air travel problems: a dramatic increase in air traffic that has overwhelmed airport infrastructure.

"There's no question that the Port Authority's moratorium will have implications throughout the air travel system," said Richard Gritta, an airline industry expert at the University of Portland in Oregon.

Young, the aviation management expert at Embry-Riddle, said airlines often argue that it's an airport manager's responsibility to provide the infrastructure necessary to accommodate growing traffic.

"Some airports that are at capacity seek funding to expand, but the problem at LaGuardia is that there's no room to grow," he said. "There's not much the Port Authority can do." LaGuardia is hemmed in between Flushing Bay and the Grand Central Parkway.

There's no room to build another runway that could handle more air traffic.

Another way to limit flights, especially during peak hours, is to increase the fees that airlines must pay to use an airport. Port Authority officials say they're looking into a higher-pricing system during peak hours, but they must contend with a federal law that requires fees to be nondiscriminatory. In other words, the agency can't price out small carriers.

Some experts say peak-hour pricing has been only moderately effective in limiting flights because airlines tend to pass the cost on to passengers. Young noted that much of the regional service at LaGuardia is geared to business travelers, who would be willing to pay higher fares to fly during the most popular times.

"They've tried peak pricing at London's Heathrow and Gatwick Airports, but it's been limited by customer preferences to fly at certain times," Young said.

Others worry that peak-hour pricing would drive flights late into the night, causing more aggravation for the airport's neighbors.

"We don't want night flights," said Queens Borough President Claire Shulman, who has filed a federal lawsuit challenging the AIR-21 law. "The communities around the airport put up with a lot of noise during the day. It wouldn't be fair for them to have planes going over their homes at 3 o'clock in the morning." 'There is a real crisis at LaGuardia.' -Donald Carty, CEO of American Airlines

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