Hearing Begins in Appeal of FAA's Initial Decision on Naples Airport Ban of Stage-2 Jets

JUNE 2, 2003

Aviation experts throughout the country will closely monitor a hearing that starts Tuesday at a federal courthouse in Tampa that pits the city of Naples against the Federal Aviation Administration. The FAA plans to battle the Naples Airport Authority over its ban of stage-2 jet at the weeklong hearing.

Many would like to ban Stage 2 jets from taking off, but balk at shelling out the millions of dollars in noise studies and legal fees like the Naples authority has done to get to this point, said Scott Gray, aviation director for the Scottsdale airport in Arizona. "We're obviously going to continue to follow the Naples situation. We're hope they are successful," Gray said. "If they win, we'll probably institute the same thing (a stage-2 jet ban)."

He said that airport is similar in many respects to Naples Municipal Airport, including the fact that it receives noise complaints about stage-2 jets. Stage-2 jets were made primarily between 1975 and 1983 and are generally noisier than jets made in subsequent years. The federal government has banned all stage-2 jets weighing more than 75,000 pounds but Naples is the first airport in the country to ban stage-2 jets that weigh less than 75,000 pounds.

Last year the authority declared that the stage-2 jets could no longer land or take off at the Naples airport. Naples Municipal Airport officials have said stage-2 jets make up less than 1 percent of the aircraft that fly out of the airport but account for 35 to 40 percent of the noise complaints.

Gray said it would be fair to call the Naples Airport Authority "trailblazers" by taking on the FAA over this issue. He said it won't cost nearly as much for other airports to go through the process if Naples wins. "Whoever does it first, like any technology, spends the most. They've kind of laid groundwork. If they are successful, they will make it easier for everyone," he said.

But the battle has come with a price. The authority has had to cut expenses and delay hiring staff, as well as increase the cost of jet fuel to cover the cost of the battle. And that has not pleased some pilots, who contend that the fight is not worth the cost, particularly considering that stage-2 jets are older planes that are being phased out anyway.

From December 2000 through December 2002, before enforcement of the ban went into effect, there were 109 stage-2 aircraft that used the Naples airport. After the enforcement, there have been nine stage-2 aircraft that have tried to land at the airport. Two did and were issued a notice to appear in court by Naples police; two were allowed to land because of a temporary waiver; and five ended up landing at another airport.

In March of this year, the FAA ruled that the stage-2 jet ban at Naples Municipal Airport is discriminatory and violates federal law. In its ruling the FAA said the ban is illegal because it discriminates against a certain type of aircraft.

As a result of its insistence to continue the ban, the airport authority has stopped receiving federal grants. Airport officials were expecting to receive a $1.5 million federal grant before the summer to pay for a second phase of the new runway lighting system. The aging lighting system frequently gets knocked out by lightning, and airport officials were hoping the new lights would be installed before the thunderstorm season begins. Authority members said the runway lights, even without the improvements, have been around for many years and still illuminate the runway adequately for safe landings. But should this loss of federal grant money drag out over time, it would be a crushing blow to the airport, which expects about $12 million in grants over the next five years.

Ted Soliday said Friday he does not believe that Naples has a good chance of winning the administrative hearing, because the hearing officer is an FAA employee. However, he said, this hearing process is a required step before the case is brought into federal court, where he predicts the authority will win. "We don't think we're going to win (at this step) with the FAA, but we're trying to clear up the record," Soliday said.

The authority has hired the Washington, D.C., law firm of Akin Gump Strauss Hauer & Feld, which specializes in aviation issues, to represent it at the hearing. "We're paying hundreds of thousands of dollars to make sure when we come out of this, we come out of it with a record that clearly shows the facts," he said.

Soliday said he is confident that the Naples Airport Authority will prevail. "We're going to win (eventually), because the law is clear, and we're confident," Soliday said. "But we're not going to win this (administrative hearing). We're fighting the FAA, and they are the judge, jury and prosecutor. They believe that if they allow us to make a decision to do this, then airports all over the country (will follow suit), and this will take away from the air transportation system."

The authority has won in court before over this issue. In 2001, two Washington, D.C.-based trade groups sued the authority, alleging that the stage-2 ban was unconstitutional. A federal district judge ruled in favor of Naples airport before the case went to trial, saying the ban was constitutional.

The National Business Aviation Association chose not to appeal the decision, instead later joining the FAA's complaint alleging that the Naples Airport Authority through its stage-2 ban was not living up to the requirements of the federal grant program.

Marcia Adams, an FAA spokeswoman, said the agency is limiting its comments about the case to what is in the recent director's determination, which declares that the stage-2 ban is preempted by federal law.

Joseph McMackin, a local attorney who has represented the authority on this issue, explained how important this case could be in aviation law. "In the aviation industry, this matter is perhaps the most significant and basic issue to arise in the last 20 years," he wrote in a recent memo to authority members. "Even the procedure through which NAA is proceeding has only occurred on one other occasion in the last five years, and that matter was not pursued to the end."

McMackin said last week that the case is really a type of "mini state's rights issue" that goes beyond noise. "The basic issue is: Can a local government, in this case a municipality acting through its agent the authority, have more restrictive rules for entrance and departure (of planes) to an airport than the FAA imposes nationally?"

Collier County and the city of Naples have filed friend of the court briefs with the FAA to show their support for the authority's cause. Other organizations wanted to do the same, but the FAA would not allow it. Some of them include: the Florida Airports Council, a trade group that represents more than 200 airport executives and staff; Quiet Technology Aerospace, which sells "hush kits" for aircraft; and the city of Pitkin County, Colo.

Those filing briefs in favor of the FAA's position include: the Air Transportation Association of America, the Regional Airline Association, Aircraft Owners and Pilots Association, National Business Aviation Association and General Aviation Manufacturers Association.

FAA officials and authority supporters have submitted hundreds of pages of written testimony for the hearing. During the hearing, each side will get to cross-examine what the witnesses said in this testimony. The FAA is trying to paint a case in which the city contributed to noise complaints by allowing residential developments in the flight path of the airport.

Mayor Bonnie MacKenzie is among those being called to address this issue. "The director's determination contains numerous incorrect statements regarding the city of Naples policy and city actions concerning land-use compatibility and, as a result, reaches several misleading factual conclusions regarding the city's policies and actions," she writes in written testimony. "The citizens and residents of the greater Naples area enjoy and expect a quiet outdoor lifestyle. Our homes are built with a preference for large windows and doors that create an 'open-air' atmosphere which integrates indoor and outdoor living spaces. We believe the Stage 2 restriction is logical, rational and reasonable noise reduction measure for us."

But FAA official Miguel Vasconcelos writes in testimony that the authority is engaged in unjust discrimination by singling out the stage-2 jets. "One cannot assume, as the NAA did, that jet noise is more annoying or deserves to be restricted when compared to propeller noise," he writes. "As a matter of fact, with a report on its own Internet site, the NAA argues that jet noise is likely to be lower than noise created by the majority of the turboprops serving Naples."

David Bennett, FAA director of airport safety and standards, said in his written testimony that the case could have national implications. "Case law over the past 30 years has acknowledged that the federal government has pervasive control over aircraft noise, preempting regulation by state and local governments under their police powers," he said.

Source: Naples Daily News