Opponents Hail Victory... But Agency Doesn't Have To Heed Ruling

The GAO has spoken... saying the Federal Aviation Administration has no legal authority to auction off takeoff and landing slots at the nation's largest airports. But how much weight that ruling actually carries remains murky at best.

The Associated Press reports the Government Accountability Office issued its ruling Tuesday, saying the FAA does not have a legal right to impose its slot auction plan at New York-area airports.

"We conclude that FAA may not auction slots under its property disposition authority, user fee authority, or any other authority, and thus also may not retain or use proceeds of any such auctions," GAO general counsel Gary Kepplinger said in a letter to opponents of the slot auction plan.

Kepplinger also questioned the FAA's decision to claim airspace as its property... the first time the agency has taken that position in 40 years, and a view the GAO's top lawyer says is in direct contradiction to FAA bylaws.

As ANN reported, the FAA delayed its plan to hold a trial slot auction at Newark International Airport last month. The FAA's plan was to allow carriers to bid on two landing slots previously allocated to EOS Airlines, which went bankrupt and folded its wings earlier this year.

That auction was intended to test the theory that similar slot auctions at the three largest New York-area airports would help combat ramp congestion and flight delays. However, in August the Port Authority of New York and New Jersey boldly confronted the Department of Transportation... saying the airports under its authority would refuse to accept any flights using slots acquired via such auctions.

The FAA asked for a legal opinion on PANYNJ's proposed action; in turn, slot auction opponents -- including the Air Transport Association, PANYNJ, Airports Council International-North America, and New York Senator Chuck Schumer -- asked the GAO to weigh in on the matter.

"This once again shows that the DOT needs to put a stop to this ideological battle that would cause chaos at New York airports. The administration has tried to jam through a half-baked plan that can't even be implemented," said Schumer, one of the most bombastic and outspoken critics of the agency.

Brian Turmail, spokesman for the DOT, responds the GAO's decision was rushed, and ill-informed. "Should Congress give the agency an opportunity to conduct a more thorough review, we are confident that GAO will better understand both the validity and the effectiveness of our approach," read a prepared written statement from Turmail.

Though the watchdog agency carries significant authority, in the strictest sense the GAO's legal opinion is just that -- an opinion, and one that is technically non-binding. As a case in point, shortly after the GAO released its findings, the FAA lifted its own stay on the Newark slot auction plan... meaning the agency may opt to proceed with the Newark auctions, unless opponents throw up another legal barrier.

And don't think for a minute they're not trying to do exactly that.

FMI: www.faa.gov, www.gao.gov, www.aci-na.org, www.airlines.org