IV
The Declaratory Order stated that DOT intended to rule on four "federal law issues." DOT's subsequent Procedural Order added a fifth legal issue to the agency's docket. We review each of DOT's rulings in turn.
We first turn to DOT's ruling that the preemption provision of the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713(b)(1), preempted Dallas's and Fort Worth's obligations under the Ordinance. In reaching this decision, DOT also determined that Dallas's rights as the proprietor of Love Field did not permit it to bar airlines from operating the services authorized under the Shelby Amendment. On appeal, the Fort Worth Petitioners argue that the power to restrict services at Love Field falls within Dallas's rights as proprietor of the airport. Thus, they argue, Dallas has an existing contractual obligation to restrict service at Love Field so as to block airlines from operating the services permitted under the Shelby Amendment.
The ADA includes an express preemption provision, § 41713(b)(1), which generally prohibits states from enacting or enforcing a law or regulation "related to a price, route, or serviceof an air carrier." 49 U.S.C. § 41713(b)(1). At the same time, the ADA reserves the state's authority to carry out its "proprietary powers and rights." 49 U.S.C. § 41713(b)(3) (hereinafter, the "proprietary powers exception").
The proper standard of review to apply to DOT's preemption determination is the subject of extensive debate and briefing among the parties. It is also an issue of first impression before us. The Fort Worth Petitioners contend that DOT's interpretation of the proprietary powers exception should be afforded no deference because DOT lacks both the authority and the expertise to interpret this section of the ADA. DOT, Dallas, and Continental Express argue that DOT's general authority to administer the ADA inherently includes the power to administer the statute's preemption provision. Consequently, they argue for deferential review of DOT's preemption determination under Chevron.
The Fort Worth Petitioners present several strong arguments in favor of de novo review. A preemption determination does indeed involve legal determinations, which are arguably more within the expertise of the courts. See Colorado Public Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991) (adopting a de novo standard of review because "[a] preemption determination involves matters of law-an area more within the expertise of courts than within the expertise of the Secretary of Transportation"). In reaching its decision, DOT interpreted existing case law, a role more typically -- and perhaps more appropriately -- left to the courts. Beyond this, the task of defining what constitutes a "proprietary power" has traditionally been left to the courts. See, e.g., National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2d Cir. 1998) (assessing the validity of restrictions on operation at a heliport). Additionally, Congress appears to have evinced an intent to codify the proprietary rights existing when the ADA was enacted rather than an intent to allow DOT to define proprietary rights. Cf. Western Air Lines v. Port Authority of New York and New Jersey, 658 F. Supp. 952, 956 (S.D.N.Y. 1986) ("The legislative history of Section 1305(b)(1)indicates that the airport proprietor would be permitted to take those actions 'presently accepted as valid exercises of proprietary powers.'") (internal citation omitted).
DOT, however, presents strong arguments supporting the contrary position. DOT is charged with administering the aviation laws as a whole. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 366-67 (5th Cir. 1994) ("The Secretary of Transportation is charged with administering the federal aviation laws . . . ."). More significantly, DOT is the "superintending agency" with respect to the administration of the ADA. See American Airlines v. Wolens, 513 U.S. 219, 229 n.6, 115AS. Ct. 817 n.6, 824, 130 L. Ed. 715, __ (1995). The First Circuit has come close to holding that this power encompasses the authority to interpret the preemption section of the ADA. See New England Legal Foundation v. Massachusetts Port Authority, 883 F.2d 157, 167 (1st Cir. 1989) (finding that DOT was one of "two judicial actors with apparent jurisdiction over the [preemption] subject matter which they decided" ). Absent any clear evidence to the contrary, we are nearly persuaded that DOT possesses the authority to interpret the preemption provision of the ADA and that, consequently, we should defer to its interpretation of that provision. See Texas Oil & Gas Ass'n, 161 F.3d at 937. We need not, however, make this final determination here. Because we conclude that DOT's ruling that § 41713 of the ADA preempted the Ordinance was correct under either standard of review, we decline to decide this issue at this time.
Congress passed the ADA in 1978 in an effort both to end federal economic regulation ofcommercial aviation and to promote competition within the airline industry. Fearful that in the face of federal deregulation, states would enact conflicting laws regulating the airline industry, Congress enacted § 41713(b)(1) of the ADA, which provides that:
49 U.S.C. § 41713(b)(1); see also New England Legal Foundation , 883 F.2d at 173 ("In reducing federal economic regulation of the field . . . Congress obviously did not intend to leave a vacuum to be filled by the Balkanizing forces of state and local regulation."). When enacting the ADA, however, Congress also recognized that airport proprietors -- the majority of which are municipalities, see City of Burbank, 411 U.S. at 635, 93 S. Ct. at 1860, 36 L. Ed.2d at __ -- were best equipped to handle local problems arising at and around their facilities. Accordingly, the ADA provides that the preemptive effect of § 41713(b)(1) does "not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an airport . . . from carrying out its proprietary powers and rights." 49 U.S.C.A. § 41713(b)(3).
The restrictions on service at Love Field under the Ordinance appear to operate as limitations "relating to . . . routes" within the meaning of § 41713(b)(1), see Western Air Lines, 658 F. Supp. at 952 (finding that a perimeter rule "relat[ed] to routes"), and the parties present no significant argument to the contrary. Consequently, the only issue before us is whether the power to enforce the restrictions falls within the proprietary powers exception. The Fort Worth petitioners contend that the restrictions on service at Love Field fall within Dallas's proprietary powers.
The precise scope of an airport owner's proprietary powers has not been clearly articulated by any court. See, e.g., id. at 956 ("The extent of 'proprietary powers and rights' has not yet been established."). However, several courts have examined when an airport owner's enactment of a "perimeter rule" [FN 13] or similar route restriction falls within the proprietary powers exception. These courts have recognized that local proprietors play an "extremely limited" role in the regulation of aviation. See, e.g., id. at 956 ("[A]irport proprietors have an 'extremely limited role' in the system of aviation regulation . . . .") (quoting British Airways Bd. v. Port Auth., 564 F.2d 1002, 1010 (2d Cir.1977)). In defining the permissible scope of a proprietor's power to regulate under § 41713(b)(3), federal courts have repeatedly held that an airport proprietor can issue only "reasonable, nonarbitrary, and nondiscriminatory rules that advance the local interest." Id. at 958; see also National Helicopter Corp. of America, 137 F.3d at 88-89 (limiting the permissible subject matter of local regulations to "aircraft noise and other environmental concerns at the local level"); British Airways, 558 F.2d at 84 (stating that a proprietor "is vested only with the power to promulgate reasonable, non-arbitrary and non-discriminatory regulations that establish acceptable noise levels for the airport and its immediate environs."); cf. City and County of San Francisco v. FAA, 942 F.2d 1391, 1394 (9th Cir. 1990) ("Congress made it clear, however, that the power delegated to airport proprietors to adopt noise control regulations is limited to regulations that are not unjustly discriminatory.").
Courts applying this standard have upheld route restrictions as within proprietary powers when they are targeted at advancing a specific local interest. To date, courts have permitted airport proprietors to enact regulations aimed at monitoring noise levels, see Santa Monica Airport Ass'n v. City of Santa Monica, 659 F.2d 100, 104 (9th Cir. 1981), tempering environmental concerns, see National Helicopter of America, 137 F.3d at 88, and managing congestion, see Western Air Lines Inc.v. Port Authority of New York and New Jersey , 817 F.2d 222 (2d Cir. 1987). See generally Cross, 17 Transp. L.J. at 106 ("An airport authority's proprietary function permits it to enact regulations benefitting citizens who live near the airport, such as airport noise regulations or airport curfews."). In each of these cases, the proposed restriction was targeted at alleviating an existing problem at the airport or in the surrounding neighborhood. For example, in Western Air Lines, the Second Circuit upheld a 1,500-mile perimeter rule enacted by the Port Authority at La Guardia Airport as a reasonable means both of alleviating congestion at La Guardia and of preserving the shorthaul status of that facility. See Western Air Lines, 817 F.2d at 226. More recently, the Second Circuit considered the validity of a special use permit that imposed significant restrictions on the use of a local heliport. SeeNational Helicopter Corp. 137 F.3d 81. Finding that the proprietor exception allowed municipalities only to promulgate "'reasonable, nonarbitrary and non-discriminatory' regulations of noise and other environmental concerns at the local level," id. at 88, the Second Circuit upheld only the restrictions that were aimed at reducing noise or other environmental concerns at the heliport. Significantly, the court struck down the restriction on sightseeing routes, finding that "Congress, the Supreme Court, and we have consistently stated that the law controlling flight paths through navigable airspace is completely preempted." Id. at 92. [FN 14]
The only case which might support the Fort Worth Petitioners' view of Dallas's proprietary powers at Love Field is Arapahoe County Public Airport v. Centennial Express Airlines, Inc., 956P.2d 587 (Colo. 1998). To the extent that Arapahoe holds that it is within an airport owner's proprietary powers to restrict service at a local airport without articulating a viable purpose for the restriction, we view that case as deviating from the generally accepted rule that we adopt here. In Arapahoe, the Colorado Supreme Court -- without finding any purpose for the restriction beyond the proprietor's bald assertion that it would "strip" the airport Authority "of its ability and authority to manage the Airport," see id. at 59 -- upheld a municipal proprietor's ban on all passenger service at Centennial Airport, see id.at 595. We fear that under the rationale of Arapahoe, virtually any regional regulation enacted by a proprietor would fall within the proprietary powers exception. This would expand the regulatory role of municipal owners far beyond the "extremely limited role" envisioned by the ADA. [FN 15]
We are not persuaded by the Fort Worth Petitioners' attempt to fit the restrictions at Love Field into the existing federal case law defining the scope of proprietary rights. On its face, the Ordinance is clearly not aimed at alleviating noise, pollution, or congestion at Love Field, nor do the Fort Worth Petitioners assert such claims. Rather, they extract from Western Air Lines and City of Houston an overly broad rule that it is within an airport owner's proprietary powers to allocate traffic between two airports so as to preserve the shorthaul nature of one facility. Such a contention misses the import of both cases; that a proprietor can enact a perimeter rule if it articulates a need for the restriction. The Fort Worth Petitioners seem to overlook the Western Air Lines court's repeated emphasis that the primary goal of the restriction was to reduce congestion at LaGuardia, and the allocation of traffic between LaGuardia and Kennedy Airports was a means of attaining this goal. The court specifically held that "a perimeter rule, as imposed by the Port Authority to manage congestion in a multi-airport system, serves an equally legitimate local need and fits comfortably within that limited role, which Congress has reserved to the local proprietor." Western Air Lines, 658 F. Supp. at 958. Similarly, to the extent that City of Houston touched upon the scope of proprietary powers, we spent the bulk of our opinion emphasizing the fact that allocation of flights between Dulles and National was necessary to encourage use of Dulles Airport and ameliorate the overuse of National. See City of Houston, 679 F.2d at 1187. In neither case was re-allocation of flights between airports a goal in and of itself.
The fact that the restrictions in the Ordinance do not advance a local interest articulated in prior case law is not dispositive of this issue. We do not limit the scope of proprietary rights to those which have been previously recognized. Cf. Western Air Lines, 658 F. Supp. at 957 ("Section 1304(b)(1) [recodified as 41713(b)(1)] does not expressly limit proprietary powers to the regulation of noise, although presumably Congress would have so limited the section if that is what it had in mind."). Thus, we are open to assessing whether the restrictions in the Ordinance are reasonable and non-discriminatory rules aimed at advancing a previously unrecognized local interest. The Fort Worth petitioners fail, however, to offer a viable alternative justification for the route limitations that might support extending the recognized scope of a proprietor's powers under § 41713(b)(3). To allow enforcement of the Ordinance under the proprietary powers exception extends that exemption beyond its intended limited reach. [FN 16]
In sum, reviewing DOT's ruling de novo, we affirm the agency's determination that §41713(b)(1) of the ADA preempted the Ordinance's restrictions on operations at Love Field. Clearly, under the less stringent Chevron review, DOT's interpretation of the preemption provision would also be reasonable. Under either standard, DOT's interpretation is affirmed. [FN 17] DOT's ruling was arguably broader than this, addressing the cities' ability to regulate any services at Love Field. We limit our analysis to the only question before us, whether the Ordinance is preempted. [FN 18]
[FN 18] Because we find that the amendments expressly preempt enforcement of the Ordinance, we decline to address this issue here.
We next review DOT's ruling that the Wright Amendment's "commuter aircraft exemption" authorized carriers using jets with passenger capacity of 56 seats or less to engage in long-haul service from Love Field to any city in the United States. DOT ruled and argues on appeal that the "commuter aircraft exemption" imposes no geographical limitation on the service that can be provided with smaller aircrafts and therefore authorizes longhaul service at Love Field with any aircraft with a capacity of less than 57 passengers. Not surprisingly, intervenors Continental Express and Legend Airlines -- each of whom plan to offer longhaul service out of Love Field on regional or reconfigured jets -- agree with this position. The Fort Worth Petitioners contend that DOT misinterpreted the Love Field amendments and that the exemption authorizes only short-haul service at Love Field.
Because the DOT is authorized to administer the Wright and Shelby Amendments, see Continental Air Lines,Inc. v. Dep't of Transp., 843 F.2d 1444, 1449 (5th Cir. 1988) ("Here, Congress fashioned a specific provision which the agency (once CAB, now DOT) has been called upon to interpret."), we review its decision under the two-step Chevronanalysis.
This inquiry most logically begins with a review of the statutory text. Subsection (a)(2) of the Wright Amendment exempts from the general ban against interstate flights at Love Field "air transportation provided by commuter airlines operating aircraft with a passenger capacity of 56 passengers or less." § 29, 94 Stat. at 48. Section (a) of the Shelby Amendment defines the term "passenger capacity of 56 passengers or less" to include "any aircraft . . .reconfigured to accommodate 56 passengers or fewer if the total number of passenger seats installed on the aircraft does not exceed 56." § 377(a), 111 Stat. at 1447. A plain reading of these provisions appears to permit longhaul service at Love Field on a commuter airline with a passenger capacity of fewer than 57. [FN 19]
The slightly more complicated issue here is what type of aircraft is covered under the "commuter airline"exemption. DOT interpreted the commuter airline exemption as applying to any aircraft -- whether a "regional jet" or turboprop plane -- with a capacity of 56 passengers or less. Legend and Continental Express agree with this interpretation. The Fort Worth Petitioners, on the other hand, argue that the exemption in subparagraph (a)(2) of the Wright Amendment applies only to "commuter aircrafts" and not to regional jets. These differing views, in addition to Congress's failure to define the term "commuter airline," persuade us that the meaning of that term is ambiguous. See Continental Air Lines, 843 F.2d at 1454 ("The language of the [commuter airline exemption] is, we are persuaded, ambiguous."). Consequently, we turn to step two of Chevron and assess the reasonableness of DOT's interpretation.
The Fort Worth Petitioners contend that DOT erred in failing to interpret the phrase "commuter airline" as a limitation on the commuter aircraft exemption. As an initial matter, to the extent that American attempts to resurrect the argument that the term "commuter airlines" cannot refer to an air carrier offering longhaul service, we agree with and adopt the rationale of the District of Columbia Circuit in Continental Air Lines. In that case, the court upheld as reasonable DOT's interpretation of the commuter airlines exemption as restricting the type of aircraft that could operate unrestricted service at Love Field rather than the class of airlines that could operate longhaul services at the facility. See id. at 1454-55.
Fort Worth presents a different argument, namely, that the term "commuter" limits the type of aircraft to thekind of turboprop aircrafts that were in use at the time the Wright Amendment was enacted. Regional jets, it contends,"cannot qualify as 'commuter' aircraft." We disagree. First, Congress chose not to define "commuter airline" by reference to the kind of planes with a limited passenger capacity in 1979 and we decline to define that term for it here. Cf. Continental, 843 F.2d at 1454 ("First, Congress might have defined 'commuter airlines' with greater specificity by explicitly incorporating definitional references to agency regulations, but it chose not to do so. We cannot say that Congress meant to incorporate those regulatory definitions absent indications of its intention to do so in the statute or the legislative history."). Furthermore, to impose such a definition would essentially penalize those airlines who chose to update their technology as the airline industry advanced over the past twenty years.
Second, the Fort Worth Petitioners' definition of a "commuter airline" essentially renders the Shelby Amendment meaningless. The City of Fort Worth's contention that "the Shelby Amendment merely permits the use of reconfigured jet aircraft if the aircraft otherwise qualifies as a commuter aircraft" is nonsensical since, under its own definition of a "commuter airline," a reconfigured jet would never qualify as a commuter plane. [FN 20] The more rational view is that the term "operating aircraft with a passenger capacity of 56 passengers or less" as defined by the Shelby Amendment, defines the term "commuter airlines" so as to include all planes weighing less than 300,000 pounds, including regional jets, with a passenger capacity of less than 57. Thus, our reading of the commuter aircraft exemption leads us to conclude that DOT's interpretation of the commuter aircraft exemption as permitting carriers using jets with a 56-passenger capacity to engage in longhaul service at Love Field is reasonable.
DOT found that, "[f]or the same reasons [the cities could not directly limit services from Love Field], the DFW Board may not prohibit or limit an airline's use of a competing airport" through the use agreements. DOT Order 98-12-27 at 52. Continental Express agrees with this ruling, [FN 21] while the DFW Board, Dallas, and Fort Worth argue that the use agreements are not preempted. We again need not decide whether we must defer to DOT's ruling on this point because we would uphold it even if we reviewed it de novo .
In determining whether government contracts are subject to preemption, the case law distinguishes between actions a state or municipality takes in a proprietary capacity -- actions similar to those a private entity might take -- and actions a state or municipality takes that are attempts to regulate. The former type of action is not subject to preemption while the latter is. For example, in Building & Trades Council v. Associated Builders, 507 U.S. 226, 113 S. Ct. 1190, 122 L. Ed. 2d 565 (1993), the Supreme Court held that a labor contract was not preempted by the National Labor Relations Act because it was not "government regulation" but rather "constitute[d] proprietary conduct." Id. at 232, 113S. Ct. at 1199, 122 L. Ed. 2d at __. More recently, in Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Texas, 180 F.3d 686 (5th Cir. 1999), we considered whether a municipal ordinance and a contract entered into pursuant to that ordinance were preempted as "law[s], regulation[s], or other provision[s] having the force and effect of law." Id. at 691. Analyzing the contract and the ordinance in the same manner, we held that neither was preempted because both were valid exercises of proprietary power rather than impermissible attempts to regulate. See id. at 693-94; see also Associated Gen. Contractors of America v. Metropolitan Water Dist. of S. Cal., 159 F.3d 1178, 1182-83 (9th Cir. 1998) (holding that labor contracts between a state entity and private groups were not "laws" because they were not efforts to regulate but rather "reflect[ed] an owner's desire to contractually assure peace and prosperity on particular projects").
Thus, the critical inquiry here is whether the use agreements represent a valid exercise of the cities' proprietary powers. This question is easily resolved. The use agreements are essentially coextensive with the Ordinance, indicating in their breadth an intent to achieve everything achieved by the Ordinance. Cf. Cardinal Towing, 180 F.3d at 694 (looking to the scope of the contract and the activity it covered to determine whether it represented an attempt to regulate). They were enacted to effect the Ordinance, and the most recent version of the agreements directly links the airlines' obligations to the terms of the Ordinance: "Airline agrees that it shall conduct its Certificated Air Carrier Services serving the Dallas/Fort Worth areas to, from and at the Airport, to the extent required by the terms of the 1968 Regional Airport Concurrent Bond Ordinance." [FN 22] Given this overlap, for the same reasons we have already determined that the Ordinance is preempted as an improper attempt to regulate, we must determine that the use agreements are preempted as an impermissible attempt to regulate in an area where the federal government has preempted state regulation. [FN 23] See Skydiving Center of Greater Washington, D.C., Inc. v. St. Mary's County Airport Comm'n, 823 F. Supp. 1273, 1284 (D. Md. 1993) (finding that when federal law preempted a municipal corporation's ban on off-site parachute landings, it also preempted lease provisions between the corporation and the skydiving center that incorporated this ban by reference).
[FN 23] Thus, this case is distinguishable from the Supreme Court's recent decision in Wolens, where the Court addressed a class action by passengers against an airline over changes the airline made to its air-miles program. SeeWolens, 513 U.S. at 224-25, 115 S. Ct. at 822, 130 L. Ed. 2d at __. The Court first found that the passengers' state consumer protection act claims were preempted by federal law, because their claims related to "rates" and "services." See id. at 228, 115 S. Ct. at 823-24, 130 L. Ed. 2d at __. The Court proceeded to find, however, that the plaintiffs could still pursue contractual claims against the airlines because, unlike the consumer protection statute, the contracts were "privately ordered obligations" which "did not amount to a State's enact[ment] or enforce[ment] [of] any law." Id. at228-29, 115 S. Ct. at 824, 130 L. Ed. 2d at __ (quotations omitted) (alterations in original). It based this finding in part on the fact that "[m]arket efficiency requires effective means to enforce private agreements." Id. at 230.
As several of the parties note, Wolens is distinguishable from this case because it did not involve a contract entered into by a state. Instead, the contracting parties in Wolens were private actors. Thus, the only question of state regulation in Wolens was the more tangential question of whether the contract could be enforced in state court. See id.at 229 n.5, 115 S. Ct. at 824 n.5, 130 L. Ed. 2d at __.
Additionally, although Wolens referred to the importance of contracts in ensuring "market efficiency," there has been no convincing showing here that the parties entered into the use agreements for this purpose. Instead, it seems that they entered into the use agreements to implement an agreement between the cities to regulate airport use in the Dallas-Fort Worth area.
The parties favoring the use agreements contend that even if the use agreements were preempted, the signatories waived their preemption rights by voluntarily entering into the agreements. DOT rejected this argument by finding that any waiver was invalid as violative of public policy. See,e.g., Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 900-01 (1945) (noting "that a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy," and holding that in the case before it, employees could not waive their private rights to liquidated damages because of the public interest at stake.
We need not address the waiver issue because we find it inapplicable here. Section 41713 does not expressly announce affirmative rights for airlines, but instead bars states from regulating incertain areas. The airline signatories cannot "waive" this preemption because there is no indication that the federal preemption is limited to granting them individual rights. Cf. Niswonger v. American Aviation, Inc. , 411 F. Supp. 769, 771 (E.D. Tenn. 1975) (holding, without analysis, that "[t]he lease indenture of June 16, 1969 between American and the authority violates 49 U.S.C. § 1349(a), a statute enacted for the protection of the public, in so far as it grants American the exclusive right for the use of the landing area and the air navigation facility at the airport").
Finally, we review DOT's ruling that the Wright Amendment permits an airline to offer through service from Love Field to points outside the Love Field service area as long as the airline uses a city within Texas as a connecting point and a 56-passenger aircraft to get to that point. [FN 24] While DOT, Continental Express, and Legend Airlines argue that we should uphold this ruling, every other party to this action -- Dallas, Fort Worth, the DFW Board, Southwest Airlines, and American Airlines -- contends that permitting an airline to offer through service between Love Field and "the world" violates both the plain meaning of and the congressional intent behind the Wright Amendment. Once again, since DOT is charged with administering the Wright Amendment, we review its ruling under the two-step Chevron analysis. See Texas Oil & Gas Ass'n , 161 F.3d at 937-38.
This issue arose from Continental Express's decision to offer and advertise through service between Love Field and "the world." Continental Express flies passengers from Love Field to Houston's Intercontinental Airport on an aircraft with a maximum capacity of 56 passengers and then transfers them to worldwide flights on large jets. Passengers taking advantage of this service receive one ticket and, though they must change planes, do not have to reclaim and recheck their luggage at the connecting point.
As discussed above, subsection (a)(2) of the Wright Amendment excludes from section (a)'s general prohibition against interstate transportation flights out of Love Field that are operated on an aircraft with a capacity of 56 passengers or less. Subsection (c) of the Amendment permits flights between Love Field and any point in Texas or one of the four contiguous states (later expanded to seven) on any size aircraft as long as "(1) such air carrier does not offer or provide any through service or ticketing with another air carrier or foreign air carrier, and (2) such air carrier does not offer for sale transportation to or from, and the flight or aircraft does not serve, any point which is outside any such State." § 29, 94 Stat. at 48.
DOT interpreted subsection (a)(2) as authorizing the service offered by Continental Express. More specifically, DOT reads the commuter airlines exemption to exempt planes with a passenger capacity of less than 57 from all restrictions in the Wright Amendment. Under this interpretation, the restrictions on service in subsection (c) -- including the restrictions on through service -- do not applyto aircrafts operating under the commuter airline exemption. In contrast, the Fort Worth Petitioners, Southwest Airlines, and the City of Dallas contend that DOT's interpretation violates the plain language of the Wright Amendment. Under their interpretation of the statute, the restrictions onservice in subsection (c)(2) apply to both commuter flights under subsection (a)(2) and flights onlarge aircrafts.
These two plausible yet conflicting readings of the relevant provisions of the Wright Amendment, coupled with a lack of legislative history illuminating the proper interaction between subsections (a)(2) and (c)(2), convince us that Congress did not speak directly to the issue before us. Accordingly, we move to step two of Chevron and inquire whether DOT's interpretation is a reasonable one. Under Chevron, an agency's interpretation is "reasonable" if it is "not patently inconsistent with the statutory scheme." See Continental, 843 F.2d at 1452 (citations omitted). We need not agree with DOT's interpretation in order to uphold it as reasonable. See Exxon Corp. v.Lujan, 970 F.2d 757, 761 (10th Cir. 1992) ("The agency's interpretation need not be the only one it could have adopted, or the one that this court would have reached had the question initially arisen in a judicial proceeding.") (citation omitted).
We are persuaded that DOT's interpretation of the Wright Amendment is a permissible one within the meaning of Chevron. DOT grounds its ruling largely on the argument that by imposing an express restriction on through service on large jets operating under subsection (c)(2) but declining to impose a similar restriction on commuter planes operating under section (a)(2), Congress was evincing its intent to permit small aircrafts to fly without such a restriction. [FN 25]
We view this reading of the amendment as reasonable and not inconsistent with a statutory scheme aimed at preserving Love Field as a primarily shorthaul facility while still allowing some longhaul service. See H.R.Conf. Rep. 96-716, at 24 (1979), reprinted in 1980 U.S.C.C.A.N. 78, 86 (stating that the Wright Amendment "embodies a compromise which permits limited commercial passenger service ininterstate transportation at Love Field.").
This is not to say that we find DOT's interpretation to be the only or the best reading of the Wright Amendment. In order to reach its decision, DOT necessarily defined "air transportation on 56-passenger capacity planes" as including air service provided in part by such aircrafts. Similarly, it implicitly defined intrastate service as including flights with only an intrastate portion. These interpretations strain the meaning of both terms. Furthermore, we note with concern the potential impact of DOT's ruling. While it seems unlikely that permitting interstate service outside of the Love Field service area on small planes would have any impact on DFW's role as the Dallas area's primary long-haul facility, it seems significantly more likely that following the DOT ruling, airlines who already operate small aircrafts will commence interlining service connecting in Houston or another Texas airport. However, determinations of this nature are directly within DOT's expertise, not ours, and we will not substitute our judgment on aviation-related issues for their reasonable one. Accordingly, we affirm DOT's ruling as a reasonable interpretation of the Wright Amendment.
V
For the foregoing reasons, we DENY the petitions for review and AFFIRM DOT's orders.