LeClairRyan Attorneys: Big Changes at FAA to Benefit U.S. Aviation

The far-reaching reorganization proposed for the FAA is a sensible move that should help the agency keep pace with 21st-century aviation, asserted two LeClairRyan attorneys during a 90-minute webinar covering a wide range of issues in the U.S. aviation sector, including the proposed privatization of the air traffic control system.

The planned reorganization of FAA focuses on replacing a 30-year-old organizational structure made up of regional offices and administrators with a streamlined one that better suits today's air carriers, said veteran aviation attorney Mark A. Dombroff, an Alexandria-based shareholder in LeClairRyan and co-leader of the national law firm's Aviation Industry practice. "Throughout my career, I have heard complaints about various regional offices taking different approaches from one another, with inconsistent application of both rules and inspections," he noted during the webinar. "This has caused all sorts of problems in the industry."

A streamlined structure, by contrast, promises to bring a greater level of regulatory consistency and standardization to today's globalized and consolidated air carriers, Dombroff said. "Certainly, in my opinion, this is not a change simply for the sake of change," he told the online audience, which included more than 200 people. "It makes a lot of sense."

Dombroff was joined in the webinar ("FAA Reorganization and Change: Everything Changing or Nothing Changing?") by Mark E. McKinnon, also a veteran aviation attorney and partner in LeClairRyan's Alexandria office.

The presentation included a thorough update on the 21st-Century Aviation Innovation, Reform, and Reauthorization (AIRR) Act. The bipartisan federal legislation, now wending its way through Congress, is geared toward reorganizing FAA as part of a pending, six-year reauthorization. As the attorneys noted during the webinar, the goals of the bill include improving air safety and the flying experience; fostering innovation in unmanned aircraft systems (i.e., drones); funding airport infrastructure, and privatizing the air traffic control system.

The latter issue, McKinnon noted, has created a divide, with corporate and general aviation generally supporting privatization and the airline industry preferring the status quo. Nonetheless, McKinnon said, proponents of the change do make persuasive arguments.

"The way the federal government operates, with temporary appropriations of four years or seven years, isn't necessarily optimal for the air traffic control system," he told the audience. "After all, it faces a lot of technological challenges, such as aging infrastructure and facilities. You cannot really manage upgrading those systems when you have to kick the can down the road and revisit these efforts only every few years. Rather, you need an entity that is able to address the process more logically, with a timeline not disrupted by the politics of the day."

Unshackled from dependence on federal coffers, a privatized system would also have greater ability to access capital markets and issue bonds, at least as proponents see it, McKinnon told the audience. "There would be another source of funding," he said. "You would not have to rely on the federal budgeting process and could make better plans about what money is coming in and how to spend it."

But what about criticism that privatization would hand U.S. air traffic control to the lowest bidder, undermining safety for the sake of profit? During the webinar, Dombroff noted that components of the existing system—in particular, non-radar control towers—have already been successfully privatized via FAA's contract control tower program. "A number of companies, such as Robertson Aviation or Midwest Air Traffic Control, already operate under contract with the FAA," he said. "They utilize FAA procedures and handbooks and are monitored under the same standards. In fact, FAA is good at ensuring that appropriate standards are still maintained."