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The Sound of
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Table Of Contents The Sound of Aviation Preemption Competition Issues Infrastructure Funding Y2K Report of the Aviation Committee Many in Congress have denominated 1999 as "the year for aviation." This reflects inattention in prior years as much as proposed attention this year, but there are many policy issues coming to the front. This Report looks at some of those issues, with a focus on one of the most contentious: aircraft noise or, in a less pejorative sense, the sound of aviation. The Sound of Aviation Few aviation issues evoke as much interest and emotion as noise. Ever since Farmer Causby’s "sick chickens" persuaded Justice Douglas that low-flying military aircraft constituted a compensable taking, United States v. Causby, 328 U.S. 256 (1946), the sound of aviation has occupied an inordinate amount of judicial and legislative time. With the advent of commercial jet transportation forty years ago, the issue was joined at the local level. Jet aircraft not only were louder than their reciprocating engine counterparts.1 They made possible quantum growth in air transportation. The debates about aviation noise have tended to obscure one of the great environmental success stories of the 20th Century. Aviation has grown dramatically at the same time that resulting sound levels have been lowered to levels significantly below where they were only a decade ago. For the most part this has been the product of a cooperative effort by all segments of the economy and government. What is "Noise" The dictionary defines "noise" as a sound that is "noticeably unpleasant" or that is "undesired or interferes with one’s hearing of something." In other words, it is a sound that a person does not want to hear, for whatever reason. An anecdote in the December 1998 issue of Flying magazine underscores the subjectivity factor:
In a society where almost anything can be referred to as "noise," there is a need for objectivity. In aviation, as in most other areas, that effort begins with the measurement know as the "decibel " (dB), i.e., the relative intensity of sound on a logarithmic scale from zero (the least perceptible sound) to 130 (the average human pain level).2 While a decibel measures the intensity of a sound, it does not account for other factors. Since humans cannot hear many higher and lower frequencies, an objective measurement should eliminate those frequencies. Similarly, the duration of a sound has to be taken into account. Finally, some adjustment must be made for the fact that humans respond to different frequencies in different ways. The sum of these adjustments is the "effective perceived noise level" (EPNL), also expressed in decibel terms but taking into account all of these factors. The EPNL measures a single event, e.g., an aircraft flying overhead. It is useful in making comparisons among types of aircraft, but it does not address the overall impact of the sound of aviation on the surrounding community. To address that issue, the FAA developed the "day-night overall sound level" (DNL). The DNL is an average of all of the single noise events in a 24-hour period, but with noise events between 10:00 p.m. and 7:00 a.m. taking a ten dB penalty. The Development of Federal Regulation Aviation noise is the quintessential local issue, both politically and legally. In Griggs v. County of Allegheny, 369 U.S. 85 (1962), an inverse condemnation suit, the Court held that aviation noise is the responsibility of the airport, not the aircraft operator or the federal government. Access to airports, however, is a national issue, particularly since most airports served by airlines receive federal subsidies. This tension between local and national interests has been the central characteristic of the debate over aviation noise. In 1968, the FAA was given explicit authority to address the "control and abatement of aircraft noise." 49 U.S.C. § 44715(a). Ten years of experience with commercial jet aircraft, together with the imminent arrival of supersonic transports, had underscored an increasing problem. Aviation noise was becoming an issue everywhere. Absent federal intervention, the issue likely was to be addressed through a hodgepodge of local restrictions. The FAA’s first step (in 1969) was to enact noise certification standards for commercial jet aircraft. 14 C.F.R. Part 36. These standards, as substantially amended in the interim, create three classes of aircraft: the noisiest are the older Stage 1 jets, e.g., Boeing 707’s and older 727’s; the next generation of aircraft, e.g., newer 727’s and 737’s, fall into the quieter Stage 2 classification; the current generation of aircraft fall into the quietest category, Stage 3.3 As initially enacted, Part 36 required all new aircraft to meet the Stage 2 standards. These standards are based on single event noise levels. Science aside, the differences between each stage are very perceptible. The increased authority and activity of the FAA, however, did not clearly preempt local noise controls. In City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), the court struck down an ordinance enacted by the City of Burbank that mandated a nighttime curfew on operations at the then-privately owned Burbank Airport. The Court held that the city’s exercise of its police power was preempted. However, in an infamous footnote, the Court left for another day the issue of whether a local authority that owned and operated an airport could impose restrictions in its capacity as the proprietor of the airport. Lockheed Air Terminal, supra., at 635, n.14. While the battle over local restrictions continued, the FAA’s took its next significant step (in 1976) by requiring the phase-out by 1985 of all Stage 1 aircraft weighing more than 75,000 pounds (an exclusion that applies only to smaller business jets). The following year, the FAA created the Stage 3 certification standard for new aircraft. Part 150 The Airport Safety and Noise Abatement Act of 1979, 49 U.S.C. § § 47501 et seq., took a step toward broader preemption by encouraging the development of noise compatibility planning at the local level. As implemented by the FAA at 14 C.F.R. Part 150, an airport authority may submit for FAA review a noise compatibility plan that involves any of the following noise abatement measures: land acquisition/relocation; easement acquisition; zoning or other land use controls; and soundproofing. The incentive for the preparation of such a plan is twofold: federal subsidization of the plan’s implementation, amounting to well over $2.3 billion since 1981 (with another $2.2 billion in locally-imposed but Federally-approved passenger facility charges applied to Part 150 programs); and a statutory bar to the recovery of damages by any person acquiring property within the boundaries of a Part 150 noise exposure map. 49 U.S.C. 47506. The Part 150 noise exposure map addresses the effects rather than the causes of noise. Using an aircraft-specific computer model developed by the FAA, an airport authority can map a set of DNL noise contours or "footprints" around the airport. Again, these are the twenty-four hour weighted average levels rather than the single event levels used in certificating aircraft. It is assumed that: (i) a DNL of less than 65 dB is compatible with residential land use; (ii) a DNL between 65 and 75 dB is compatible with residential land use only if the residents agree to soundproofing measures; and (iii) a DNL of more than 75 dB is incompatible with residential land use. Approximately 235 airports presently are participating in the Part 150 program. ANCA and Part 161 By 1990, all new aircraft met the Stage 3 certification requirements, but a substantial number of the older, louder Stage 2 aircraft remained in airline fleets. Stage 1 aircraft had been phased out by 1985, and there was substantial pressure to require the removal of Stage 2 aircraft. At the same time, local efforts at imposing restrictions had not abated. Congress responded with the first true national aviation noise policy, the Airport Noise and Capacity Act of 1990 (ANCA). 49 U.S.C. § § 47521 et seq. ANCA had two prongs. First, all Stage 2 aircraft weighing more than 75,000 pounds would be phased out over a period ending on December 31, 1999. The airline industry has met that schedule. While ANCA allows for waivers in certain circumstances, it is unlikely that any waivers will be granted. As a practical matter, there are few Stage 2 aircraft being operated by airlines today, and there will be none by the end of this year. Second, Congress mandated that any local action restricting airport access by a Stage 2 or Stage 3 aircraft would be subject to mandatory Federal review. The mandated review procedures are set forth at 14 C.F.R. part 161 and are administered by the FAA. Briefly stated, Part 161 requires that any proposed restriction must be supported by analyses of a number of issues and alternatives, including a detailed cost/benefit study. These analyses then must be subjected to notice and comment by all interested parties. If a restriction on Stage 2 aircraft is involved, there is review by the FAA but FAA approval is not required. However, if an airport authority were to proceed with a Stage 2 restriction against the advice of the FAA, it could face a District Court challenge on Commerce Clause and statutory discrimination grounds. If a Stage 3 aircraft restriction is involved, affirmative FAA approval is required. This was intended to and did have a chilling effect on local noise restrictions during the past decade, particularly when combined with the mitigating effects of the Part 150 program The greatest testament to its success in that regard is that to date there has not been a completed Part 161 proceeding. That soon may change. The smaller, quieter Stage 2 jets operated primarily by the business community now are a target for local restrictions. There also is the possibility that some communities may seek to impose restrictions, e.g., mandatory nighttime curfews, on Stage 3 operations. Industry Self-Help The aviation industry has been very proactive in terms of addressing noise issues. The industry developed and promoted the technological advances memorialized in the Part 36 certification requirements. The industry also has developed a number of other noise mitigation measures, primarily in the area of flight procedures. Working with the FAA, airlines, professional organizations, airport operators and manufacturers have developed flight procedures intended to minimize community noise impact. Broadly stated, on departure, the objective is to climb as quickly as possible, than reduce power settings until the residential area is cleared; and on arrival, to remain at the highest possible altitude as long as possible. Many airports have preferential runways intended to direct traffic away from residential areas. All of this adds up to noise levels well below where they were in the past despite the enormous growth in the industry. The "Proxy" Problem Noise restrictions sometimes are addressed through proxies. An example of this is the FAA’s rationing of landing and departure slots at Chicago’s O’Hare, Washington’s Reagan National, and New York’s LaGuardia and JFK airports. While these operating limitations are premised on the lack of capacity, they have a strong noise component. At Reagan National, the slots are frozen by statute and have evolved almost entirely into a local noise issue.4 The proxy problem also can work in the other direction. The European Commission has proposed a rule that would not allow an EU Member State to put a Stage 3 hush-kit aircraft on its register after April 1, 2002, with a grandfather provision for hush-kit aircraft previously on any EU register. While the proposed rule purports to be noise-related, the practical effect would be to eliminate airlines of EU member states as customers for hush-kit, fully Stage 3 compliant aircraft remarketed by U.S. airlines. The proposed rule is the subject of a complaint filed by Northwest Airlines with the DOT under the International Air Transportation Fair Competitive Practices Act, 49 U.S.C. § 41310. The Future Where there is a Stage 3, there likely will be a Stage 4. Aviation
technology, and particularly engine technology, does not stand still. There already is
talk within Europe of higher certification standards, a Category 4 in EU terminology, and
there is no question that at some point in the future, even quieter aircraft will be
available. However, as long as aviation makes any sound at all, there will be objections. The tug-of-war between the federal government and state/local governments with respect to aircraft noise is repeated in many other areas. 1. Plaintiff’s rights. a. Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc). Federal preemption of "rates, routes and services" under 49 U.S.C. § 41713(b), as interpreted by the Court in American Airlines v. Woolens, 513 U.S. 219 (1995), does not preempt an airline-related action based on state contract law. State tort law claims, however, have been an open issue. The Circuits have struggled with the issue, and none more so than the Ninth Circuit. In Gee v. Southwest Airlines, 110 F.3d 1400 (9th Cir. 1997) (noted in the Fall 1997 Report), the Ninth Circuit adopted an operations vs. services test that only added to the confusion. In Charas, a set of consolidated cases heard en banc, the Ninth Circuit reversed its holding in Gee and adopted a test that focus on whether or not the personal injury claim relates to "service" in a "public utility sense." In the cases before it, the court held that "’service’ does not refer to the pushing of baggage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need or like functions." b. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 1998 U.S. App. LEXIS 32579 (3d Cir. 1998). The Third Circuit followed the Ninth’s lead in Charas and held that a state law defamation claim against an airline was not preempted. The court noted that under the Charas test, few if any state law tort claims could be considered to be interfering with the public utility purposes of the preemption statute. c. El Al Israel Airlines, Ltd. v.Tseng, 67 U.S.L.W. 4036 (January 19, 1999). International airline flights are subject to the Warsaw Convention, a treaty that defines the ‘exclusive" remedies for airline customers. The Court tends to use Warsaw Convention cases as non-impact legal aerobics, great mental exercise but with little practical application. In this case, the Court held that a passenger making a tort claim that is not predicated on an "accident" or on "willful misconduct," either of which do create Warsaw causes of action, cannot get any relief under state law. As the dissent noted, the holding applies to the "narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct." That sliver is particularly narrow since a recent amendment to the Warsaw Convention produces the same result prospectively. 2. Love Field. Who controls access to Dallas’ Love Field? This issue has had a longer run than the Dallas television series. In 1968, acting under pressure from the Federal government, the cities of Dallas and Ft. Worth entered into an agreement that would require interstate airline service to be transferred from Love Field to Dallas-Ft. Worth International Airport (DFW) when the latter was completed. Neither anticipated an intervening event – the creation of Southwest Airlines, starting at Love Field in 1971. Southwest never left Love Field, and its position was codified in the 1980 Wright Amendment (P.L. 96-192, 94 Stat. 25, 48-49) that limited Love Field service to: interstate service with aircraft having no more than 56-seats; and turnaround service (no through ticketing or beyond flights) between Love Field and points in Texas, Arkansas, Oklahoma and New Mexico. In 1996, a new entrant. Legend Airlines, proposed to begin service at Love Field with large jet aircraft configured with 56-seats. The DOT’s General Counsel opined that this would violate the intent of the Wright Amendment. This led to the 1997 Shelby Amendment (P.L. 105-66, 111 Stat. 1425, 1447) clarifying that any aircraft with 56 or fewer seats could be used (subject to a 300,000 pound maximum weight limitation) and adding Kansas, Mississippi and Alabama to the "turnaround service" states. The City of Ft. Worth, the DFW Board and American took the matter to state court, arguing that the Shelby Amendment did not expand the terms of the 1968 agreement. The City of Dallas, Continental Express, Southwest and Legend opposed. The state court granted summary judgment for the plaintiffs, without opinion. The DOT then instituted the Love Field Service Interpretation Proceeding. In a lengthy opinion issued in December 1998, the DOT held that the Shelby Amendment preempted Dallas from restricting access to Love Field on any grounds other than those traditionally reserved for airport proprietors (whatever those might be). DOT Order 98-12-27. 3. Centennial Airport. As we reported last Fall,
Centennial Airport near Denver had banned scheduled airline service. The ban was upheld by
the Colorado Supreme Court. The FAA has instituted an investigation into the ban in Docket
16-98-05 and tentatively has found that the ban is preempted. Competition Issues 1. Midwestern Machinery, Inc. v. Northwest Airlines, Inc., 8th Cir. No. 98-1487 (February 2, 1999). In 1997, Plaintiffs brought a section 7 challenge against the merger of Northwest and Republic, alleging that the combined company lessened competition at Minneapolis/St. Paul International Airport. The remarkable fact about the merger is that it was completed eleven years earlier after it had been reviewed and approved (but not immunized) by the DOT applying standards that in pertinent part were derived from section 7. The district court found that collateral estoppel did not bar the suit, but that a completed merger could not be attacked under section 7. The Eighth Circuit upheld the collateral estoppel holding without explanation, but reversed on the grounds that, under United States v. Dupont, 353 U.S. 586 (1957), the mere holding of stock could create a section 7 violation. 2. Alliances. Status report on the proposed American/British Airways alliance– six semi-annual reports and still in a holding pattern. Apart from that continuing saga and the fact that the EU is now investigating all of the alliances, including the seminal agreement between Northwest and KLM in 1993, nothing much has changed in international markets. In the domestic U.S. market, there is something of a lull. The well-publicized alliances between American/US Airways, United/Delta and Northwest/Continental have maintained low profiles. American/US Airways and United/Delta have combined their frequent flyer programs, but not much else. Code-sharing remains for sometime in the future, particularly given labor concerns. Northwest has acquired an equity interest in Continental, but the companies are being held separate. They have initiated some domestic code-sharing, as well coordinating frequent flyer programs and passenger club facilities. A January 1999 study of domestic alliances by the GAO reached this question-begging conclusion: the benefits of the alliances could be offset if the partners competed less vigorously. Aviation Competition: Effects on Consumers from Domestic Airlines Alliances Vary, GAO/RCED-99-37. The test will come if and when any of the domestic alliances expand their scope.5 3. Competition Policy. The DOT’s proposed Competition Policy is on hiatus. The latest development is the announcement by Secretary Skinner that the Administration will seek legislation that, inter alia, would require larger airlines to interline with smaller airlines. This would, if enacted, be a significant departure from one of the tenets of deregulation. Additionally, the Administration’s proposed 1999 FAA
reauthorization bill would allow airports to increase the passenger facility charge from
$3 per passenger to $5 per passenger, but with this qualification: any increase over $4
for an airport that is "dominated" by a single carrier would require the
submission of a "competition enhancement plan." Infrastructure Funding In its proposed 1999 FAA reauthorization bill, the Administration has adopted some of the recommendations made by the National Civil Aviation Commission in December 1997. The most controversial proposal is to permit the FAA to partially fund itself through cost-based user fees rather than from general appropriations. On the other side of the issue, legislation has been reintroduced that would free up aviation trust funds for FAA use. This topic was the subject of a panel debate in the Winter 1998 edition of Infrastructure, and the debate likely will intensify this year. The U.S. airline industry passed its first Y2K test on February 4 and 5 when computer reservations systems began accepting reservations for flights in the year 2000. So far, so good. Footnotes:
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