JetBlue's stance impliedly raises the long-term stakes for the City and its residents if a Council majority were to overrule JetBlue's appeal, an action that could invite an administrative (FAA) or federal court (statutory) appeal/challenge. That action, if successful for JetBlue, might result in what city officials have publicly claimed they seek to avoid: the permanent loss of LB's protective Airport ordinance.

The hearing materials as agendized can be viewed in full here.

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JetBlue made its initial request for exemption from some late night flight fines on July 7, 2017 -- the same day as 4th dist. Councilman Daryl Supernaw (who had for months reported to his constituents JetBlue's increasing number of late night ordinance violations) stated in his weekly newsletter: "It has become painfully obvious, especially to those living under the flight path, that our "coveted" noise ordinance is not serving its intended purpose. JetBlue violated the 11:00 pm curfew 31 times (every night on average) and the 10:00 pm curfew 48 times last month. This clearly indicates the fine structure is not an adequate deterrent to violating the curfew. For that reason, I will be introducing a city council agenda item in the very near future to examine this issue."

Faced with that prospect, Airport management launched a separate now-ongoing proceeding to consider amending the Airport Ordinance to increase late night flight fines (which is legally separate from JetBlue's May 8 appeal under the current Ordinance.) JetBlue wrote its Sept. 12, 2017 letter to Airport management in the context of city management's proposed Ordinance changes...but a portion of the letter (excerpted text below) references the City's stance under the current ordinance.

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JetBlue is LB Airport's largest commercial passenger operator but with nearly a dozen fewer daily flights expected after JetBlue's April 2018-announced schedule changes effective September 2018. JetBlue's operations account for most of the City's late night flight Ordinance violations, which the company says is proportional to its number of operations.

JetBlue schedules a number of flights using aircraft that travel across the country and are thus impacted by weather and air traffic control issues outside of the L.A.-LB area; other carriers, such as Southwest, apparently use different operational models.

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Airport management, backed by City Manager Pat West, says LB's Ordinance doesn't exempt operators from fines for late night Ordinance violations stemming from Air Traffic Control (ATC) delays caused by factors outside the local area. JetBlue says the exemption does apply and notes that it doesn't seek exemption from all late night flight violations, just those it says stem from FAA ATC-related issues.

On May 8, the City Council will hear JetBlue's appeal and a Council majority vote will decide. The issue was scheduled to reach the Council on March 13 (in the run-up to April citywide elections for a Council majority and Mayor) but for some reason the hearing was delayed until now (after the Mayor and three of five Council incumbents were safely re-elected.)

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The City's hearing record attached to the agendized item doesn't include a September 12, 2017 letter to Airport management -- reported (first again) by LBREPORT.com on January 23, 2018 -- sent in the context of the company's position on ordinance amendments. However a portion of the Sept. 12, 2017 letter [in bold font below added by LBREPORT.com for clarity] takes the position that Airport management's interpretation of the current ordinance raises federal issues.

In the September 12, 2017 letter to Airport management, JetBlue Sr. VP/Associate General Counsel Robert Land responded to an August 9, 2017 Airport request for comments on management's proposed Ordinance amendments, stating in pertinent part: .

[JetBlue Sept. 12 letter text] The proposed amendments to the Ordinance would disrupt aviation operations by requiring JetBlue to reschedule, reroute or cancel flights due to flight instructions given by the FAA air traffic control. This would affect federal air traffic and airspace management. Disturbance to the air traffic both in the Los Angeles area and nationally would impermissibly interfere with the exclusive control of the FAA. [footnote: See U.S. v. Santa Monica, 330 Fed. Appx. 124, 125 (9th Circ. 2009) (affirming injunction against city's proposed ban on certain aircraft due to "the FAA's role in ensuring aviation safety, and the potential disturbance to air traffic around the Los Angeles area").

The City now proposes to increase the fine for a first-time noise violation by a staggering 25 times without having demonstrated any correlation between this increase and the number of violations, or the need for such a dramatic increase. [footnote: Over the past seven years, with nearly 150,000 operations at LGB, JetBlue's rate of hard curfew violations has averaged between just .003 and .006 percent of its total number of operations. The miniscule rate of hard curfew violations confirms that the dramatic increase for noise violations is arbitrary and completely without justification. [footnote omitted] Contrary to law, the proposed changes to penalty amounts for noise violations are unreasonably steep and appear to be arbitrarily but specifically crafted to harm JetBlue [footnote omitted here], a carrier that operates at LGB and which has a majority of its fleet operate to and from cities that disproportionately have Federal Aviation Administration (FAA)-imposed air traffic control restrictions which result in delays over which JetBlue has no control (mostly at Northeast markets in New York City and Boston and in the San Francisco bay area) which can cause late operations at Long Beach.

[emphasis added by LBREPORT.com] The current language in the Ordinance already includes a specific exemption for "aircraft operating pursuant to explicit air traffic control direction." JetBlue is currently appealing the Airport's decision that "air traffic control delays at other airports do not qualify [as an exemption]" and that the exemption "does not apply to other nationwide airports or circumstances occurring throughout the day [that result in delays at LGB]. [footnote omitted] The City's interpretation is contrary to the plain language of the Ordinance and ignores federal statutes that grant the FAA exclusive control over the entire and singular national airspace system and require JetBlue to abide by FAA air traffic control direction. By taking this position, the City is unjustly discriminating and thus violating its economic nondiscrimination obligation under the FAA's Airport Sponsor grant agreement. [footnote omitted]

We believe that the plain-language exemption in the current Ordinance should be applied fairly, impartially and as originally intended. If the City amends the Ordinance, the exemption for "explicit air traffic control direction" should include air traffic control delays at other airports or circumstances occurring nationwide that result in delays at LGB as initially written and approved by the Federal District Court and through ANCA. The Ordinance should also include specific procedures for air carriers to demonstrate that certain delays are a result of FAA explicit direction beyond the carrier's control.

The proposal to dramatically increase the fine schedule also raises potential issues under ANCA. The FAA has found that an increase in fines would violate ANCA if the underlying grandfathered restriction penalizes conduct beyond willful violations such as infractions caused by weather, air traffic control, or any other safety-based non-emergency circumstance. Specifically, in reviewing an increase in fines for San Diego's ANCA-grandfathered noise restriction, the FAA stated that "ANCA applies to any proposal by the District to further directly or indirectly affect or reduce scheduled operations that were unavoidably delayed in accordance with applicable Federal Aviation Regulations." [footnote omitted] More importantly, nowhere in its opinion did FAA state that relevant air traffic control delays were limited to delays caused or directed by the subject airport.

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In its May 8 hearing transmittal letter to the City Council, Airport/City management states in pertinent part:

The Airport has consistently applied the "exemption provisions" of the Ordinance relative to curfew violations since the adoption of the Ordinance in 1995 and has, likewise, consistently applied the exemption provisions in situations involving JetBlue since its arrival as an Air Carrier in 2001. Until JetBlue's recent assertions in July 2017, it has not objected to the application or interpretation of the Ordinance by the Airport Director or Airport staff, despite having been issued numerous violations over the past ten years. In fact, JetBlue has routinely self-reported late night curfew violations. Therefore, the Airport's interpretation of the Ordinance is not new. Rather, the Airport Director and Airport staff have continued to enforce the curfew provisions of the Ordinance related to possible air traffic control exemptions in a consistent manner whether the violation involves JetBlue or any other Air Carrier operating at the Airport.

The Airport's interpretation of the Ordinance is consistent with the way other curfew airports enforce curfew provisions including John Wayne Airport, Orange County and San Diego International Airport (departure curfew). The failure to interpret the exemption provisions in the manner that the Airport Director and Airport staff have consistently done since 1995 would essentially render the curfew provisions of the Ordinance meaningless because flights for all air carriers operating at the Airport would be able to depart or arrive at the Airport subject to air traffic control delays throughout the country on any leg of the flights, irrespective of the actual curfew provisions at the Airport.

JetBlue continues to have several options relating to air traffic control delays occurring at other airports throughout the country including, but not limited to, cancelling or diverting flights to other airports, substituting aircraft, providing alternative operations during noncurfew hours, accommodating passengers by alternative transit, or providing sleeping accommodations for the delayed passengers until the aircraft can depart or arrive consistent with the curfew requirements at the Airport. Interpreting the exemption provisions of the Ordinance as now suggested by JetBlue would essentially render meaningless many of the important curfew provisions in the Ordinance and would disrupt the delicate balance between the valid noise-related concerns of surrounding Airport neighbors impacted by late night flights, and those operational concerns of the Air Carriers who consistently provide service at the Airport.

Long Beach currently has the protection of a "grandfathering" provision in the federal Airport Noise Capacity Act (ANCA) that lets LB Airport (one of only a handful Airports nationally) maintain some local flight limits/neighborhood protections. If Long Beach were to lose its ANCA "grandfathering" protection -- if a federal court challenge were successful or an adverse FAA decision were upheld -- LB could lose virtually all of its current protections under its Airport ordinance. That would expose the City of Long Beach, likely permanently, to unlimited numbers of flights at its Airport at unlimited noise levels at all hours on all runways.

JetBlue's Senior VP/Associate General Counsel Robert Land publicly called attention to the company's September 17, 2017 letter more than once during Jan. 18, 2018 testimony at LB's Airport Advisory Commission on an agenda item regarding the possible future Ordinance amendments (a separate matter management is considering for separate future Council discussion.)

LB's Airport Ordinance includes a "curfew" requiring air carriers to schedule all departures and arrivals between 7:00 a.m. and 10:00 p.m., although air carrier operations between 10 p.m. and 11 p.m. are allowed if the delays result from weather, air traffic, or mechanical issues. Violations between 10 p.m. and 11 p.m. caused by unanticipated delays beyond the operator's reasonable control -- such as weather, air traffic or mechanical issues -- are waived on presentation of evidence satisfactory to the City that the delayed arrival or departure resulted from these circumstances. Air carrier operations after 11 p.m. are automatically deemed violations and fined; under the Ordinance's 1995 fine structure, after two warnings a third violation brings an administrative fine of $100; the fourth and subsequent fines are $300.

The amount contested by JetBlue for the second quarter of 2017 is $96,000 (with any amounts paid credited to the Long Beach Library Foundation, for the benefit of the Library Department under the terms of the Consent Decree between JetBlue and the City Prosecutor.)

A potentially fateful sentence, included in the "Fiscal Impact" section of Management's accompanying agendized memo, notes that if the Council upholds City Management's stance and overrules JetBlue's appeal, that sum would become payable "subject to any remaining remedies, either administrative or statutory." "Administrative" presumably refers to the possibility of some action by JetBlue with the FAA. "Statutory" presumably refers to the possibility of a federal court challenge.

Developing.