JetBlue Tells LB Airport Proposed Higher Fines For Late Night Flights "Appear Intended To Have Discriminatory Effect" On JetBlue, "Seem Designed To Encourage JetBlue To Terminate Service," And Said City Should "Proceed Cautiously" And Consider JetBlue's Specific Comments, Warning "Any Decision Otherwise Could Lead To" Protracted Dispute As Carrier Believes "City's Actions Will Violate" Certain FAA Provisions And Create Fed'l Regulatory Conflicts
|(Jan. 23, 2018, 7:45 a.m.) -- LBREPORT.com has learned that JetBlue Airways has told LB Airport that amendments now being considered to LB's 1995 Airport ordinance to increase fines to deter ordinance violations for late night flights "appear intended to have a discriminatory effect specifically on JetBlue" [and] "seem designed to encourage JetBlue to terminate service." In a sternly worded letter, JetBlue urged the City "to proceed cautiously and to carefully consider" the company's specific comments (detailed below) warning "Any decision otherwise could lead to a protracted dispute as we believe the City's actions will violate certain Federal Aviation Administration (FAA) provisions and create regulatory conflicts with both the FAA and U.S. Department of Transportation (DOT)."
The five-page Sept. 12, 2017 letter from JetBlue's Sr. VP for Gov't Affairs/Associate General Counsel Rob Land responded to an
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[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").
JetBlue's comments also raised technical issues related to flight slot operations/utilization requirements, definition of flight slot and ferry operations, and administrative amendments
Mr. Land referenced the letter more than once during his Jan. 18 LB Airport Advisory Commission testimony without detailing the company's legal stance on the ordinance amendment, limiting himself to discussing JetBlue's disagreement with the Airport over Air Traffic Control delays (mentioned in the letter.) LBREPORT.com -- the only LB news outlet to stream the meeting LIVE on LBREEPORT.com's Facebook page, now available on-demand at this page link -- didn't report the meeting in text form until we had the JetBlue letter in hand to provide a complete report for our readers. LB Airport provided us with JetBlue's letter on request (received at late afternoon Jan. 22.)
During the Jan. 18 Airport Advisory Commission meeting, LB Airport Director Jess Romo indicated verbally and in an accompanying PPT presentation -- which can be viewed in pdf form here) -- that LB Airport management understands that LB's Airport ordinance is "unique and must be protected." Mr. Romo said the Airport has had "preliminary communication" with the FAA and at this point, the agency hadn't voiced objections to the Airport pursuing the type of ordinance amendments now being considered. Outside aviation counsel Lori Ballance indicated that the proposed amended fine levels are roughly similar to those now applied by OC's John Wayne Airport. Ms. Balance and Mr. Romo both said the ordinance amendments are intended to produce ordinance compliance, not otherwise change the ordinance's basic terms.
Mr. Romo and the associated PPT indicated that the process would include "further communication and detailed coordination" with the FAA, ultimately including a request by the Airport for a legal opinion from the FAA before submitting any draft amendments to the ordinance to the policy-setting LB City Council for consideration. Mr. Romo reiterated several times that [paraphrase] if at some point it appeared that amending the ordinance would put the ordinance at risk, Airport management would halt the process and ultimately recommend against Council approval.
Long Beach is currently protected by a "grandfathering" provision in the federal Airport Noise Capacity Act (ANCA) that allows LB Airport (one of only a handful Airports nationally, including OC's John Wayne Airport) to maintain some local flight limits/neighborhood protections. If Long Beach were to lose its ANCA "grandfathering" protection (through an adverse FAA decision or in federal court litigation), LB could lose the current protections in its Airport ordinance, exposing Long Beach to unlimited numbers of flights at unlimited noise levels at all hours on all runways.
Air management's assurances didn't reassure some members of the public, including retired 8th dist. Councilwoman (and founder of LBHUSH2) Rae Gabelich, who said she'd received cautionary advice over many years that leads her now to recommend against moving forward. Neighborhood advocate Birgit de la Torre said the City needs more than a revocable FAA opinion letter; it needs a binding commitment from the FAA to support the City's position if any party sues to try and overturn the ordinance in court. Some public speakers asked rhetorically why the City is taking a risk with an ordinance amendment when the lion's share of the issue results from operations by a single operator: JetBlue.
Los Altos Adjacent Neighborhood Ass'n leader Joe Mello supported moving forward if it doesn't jeopardize the ordinance.
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; after two warnings, a third violation brings an administrative fine of $100; the fourth and subsequent fines are $300. Proposed amendments to those fine levels are detailed on p. 9-10 of the PPT at this link.
The proposed ordinance amendment surfaced after 4th dist. Councilman Daryl Supernaw had been doing a slow burn on the issue for months, regularly reporting in his weekly newsletter on JetBlue ordinance violations. In his July 7, 2017 weekly newsletter, Councilman Supernaw headlined an item "JetBlue Fined Record-Breaking $168,900 for June Noise Violations" and wrote:
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.
Councilman Supernaw's newsletter included the following chart:
On July 7, 2017, Councilman Supernaw signaled that he planned to introduce a City Council agenda item (date not specified) to examine the issue of the LB Airport ordinance's fine structure in the context of providing a better deterrent. The Council agenda item never happened, presumably preempted by Airport management's announcement in August that it would pursue the ordinance amendments now being considered.
On a separate but related track, LB City Prosecutor Doug Haubert and JetBlue last year agreed to a change in a long-standing consent decree in which JetBlue will now pay $6,000 (instead of $3,000) for the first six violations of the curfew in each calendar quarter, meaning all curfew violations will now be $6,000 payable to the LB Public Library Foundation. [LBREPORT.com coverage here.]
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