ACI-NA Weekly Legal Briefing

                                                   ACI-NA’s Weekly Legal Briefing                                                 

Volume 2011, Issue 28

Week of September 26 – 30, 2011

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Litigation of Interest:

  • The U. S. Court of Appeals for the District of Columbia Circuit acted on the recent requests from Spirit Airlines, Allegiant and Southwest Airlines to stay the implementation of various aspects of DOT’s recent consumer protection regulations, including those that require that fees and taxes be included in fare advertising and the requirement that airlines allow passengers to hold bookings for 24 hours without payment, among others. In a per curiam Order of the Court, issued by Justices Ginsburg, Tatel and Cavanaugh on September 19, 2011, the requested stay was denied.

 

  • On September 22, 2011, the New York Court of Appeals issued its decision in the Matter of World Trade Center Bombing Litigation v. The Port Authority of New York and New Jersey.  The PANYNJ has been busily defending actions seeking damages by those individuals and businesses allegedly harmed as a result of the 9/11  attack for the past several years.  At issue in this matter has been whether the Port Authority enjoyed governmental immunity and therefore could not be held liable for the bombing.  The charge by plaintiffs was that the Port Authority had inadequately secured the World Trade Center, specifically the parking lot area where the bomb was detonated.  After a trial, the Court rejected the governmental immunity defense and found the Port Authority to be 68% liable and the terrorist 32% liable.  The New York Court of Appeals (4-3) has now reversed the finding of liability and dismissed the operative Complaint.  In language, summarizing its rationale, the majority wrote:

“Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion.

                                    (submitted by Carlene McIntyre)

 

  • On  August 2, 2011, Southwest Florida International Airport-based FBO and MRO services provider Private Sky Aviation filed a complaint against its landlord, the Lee County Port Authority (LCPA). In that complaint, filed in the U.S. District Court, Middle District of Florida, Ft. Myers Division, the plaintiff alleges that  LCPA’s newly remodeled Page Field Aviation Center was funded (at least partially) with government grants given to the authority through its status as a special district of the State of Florida. We will be monitoring the litigation.

 

Regulatory Matters:

 

  • DOT Proposed Rule:  Airline Kiosks and Websites Must Be Accessible to Passengers with Disabilities

 

DOT has published a Supplemental Notice of Proposed Rulemaking requiring airport and airline automated kiosks and airline websites to be accessible to passengers with disabilities (such as, passengers who are blind or have low vision).  Many airlines use automated kiosks at airports to perform customer service functions such as automated flight check-in and printing of boarding passes and, increasingly, carriers are using kiosks for bag tag printing, rebooking passengers from cancelled flights, and reporting lost luggage.  DOT believes that these kiosks remain largely inaccessible to passengers with vision and mobility impairments.

 

Regarding air carrier and ticket seller websites, DOT is proposing that all U.S. air carriers and foreign air carriers servicing the U.S. must ensure that these websites conform to the “Website Content Accessibility Guidelines 2.0 Success Criteria” and all Conformance Requirements at Level A and Level AA developed by the World Wide Web Consortium Web Accessibility Initiative (http://www.w3.org).  Within one year after the effective date of the final rule, the core air travel services and information (that is, booking or changing a reservation, checking-in, and accessing a personal travel itinerary, flight status, personal frequent flyer account, flight schedules, or the carrier’s contact information) would have to be conformant.  The remaining pages on a carrier’s primary Web site must be conformant within two years.  During the interim period, carriers must continue to make discounted Web-based fares and other Web-based amenities available to passengers who self-identify as being unable to use a carrier’s inaccessible Web site due to their disability.  However, DOT decided against proposing a requirement for carriers to provide a Web site function allowing passengers to add special service requests for disability accommodations to their passenger record.  DOT considers the marketing of air transportation by air carriers and ticket agents on Web sites that are inaccessible to individuals with disabilities to be discriminatory and an unfair trade practice. 

 

As for automated ticketing kiosks at U.S. airports having 10,000 or more yearly enplanements, DOT is proposing that U.S. and foreign air carriers must ensure that all kiosk orders initiated 60 days after the effective date of the rule must meet the accessibility standard provided in DOJ’s 2010 ADA Standards for Accessible Design applicable to automated teller machines and fare machines and other accessibility criteria described in the SNPRM. These technical criteria address accessibility for individuals with visual, mobility, tactile, and hearing disabilities.  DOT proposes to apply this standard to both proprietary and shared-use kiosks.  For passengers with a disability who are unable to use the kiosks, DOT will continue to require the carriers to ensure equivalent service (e.g., permitting the passenger to go to the front of the line at the ticket counter or to provide airline personnel to assist with the kiosk).  For joint use kiosks that carriers own, lease, or control with the airport operator, carriers and airport operators must enter an agreement allocating responsibility for meeting the accessibility criteria.

Submitted by James Briggs

 

  • On September 29, 2011, DOT’s Notice of Proposed Rulemaking proposing three new obligations regarding the provision of services to passengers with disabilities:  (1) Establishing service animal relief areas, (2) Enabling captioning of televisions and audiovisual displays, and (3) Ensuring availability of mechanical lifts for foreign air carriers was published in the Federal Register. 

Link to Federal Register Notice:  http://www.gpo.gov/fdsys/pkg/FR-2011-09-29/pdf/2011-24849.pdf

Docket Information at www.regulations.govunder Docket Number DOT–OST–2011–0182

SUMMARY: The Department is proposing to amend its rules implementing section 504 of the Rehabilitation Act of 1973, which requires accessibility in airport terminal facilities that receive Federal financial assistance. The proposed rule includes new provisions related to service animal relief areas and captioning of televisions and audiovisual displays that are similar to new requirements applicable to U.S. and foreign air carriers under the Department’s Air Carrier Access (ACAA) regulations, 14 CFR part 382. The NPRM also proposes to reorganize the provision in 49 CFR 27.72 concerning mechanical lifts for enplaning and deplaning passengers with mobility impairments, and to amend this provision so airports are required to work not only with U.S. carriers but also foreign air carriers to ensure lifts are available where level entry loading bridges are not available. This proposed rule would apply to airport facilities located in the U.S. with 10,000 or more annual enplanements and that receive Federal financial assistance.

DATES: Comments must be received on or before November 28, 2011.  ACI-NA will provide comments in the proceeding.  If you have suggestions, please send them to James Briggs at jbriggs@aci-na.org

 

Recent Events of Interest

 Aviation Lawyers Hold Annual Conference In Montreal

From September 22 through 23, 2011, aviation lawyers from a cross-section of aviation firms and government agencies attended the American Bar Association’s Air & Space Law Forum’s 2011 Annual Meeting and Conference in Montreal, Quebec.  ACI-NA was represented at the conference through the attendance of ACI-NA General Counsel, Monica Hargrove, who moderated the closing conference session, which featured several aviation General Counsel, including David Mackey, Interim CEO & Chief Legal Counsel, Massachusetts Port Authority, and Francine Kerner, Chief Counsel, U. S. Transportation Security Administration, among others.

 

The featured conference sessions ranged from “Competing in a Post-Open Skies Environment:  A Hard Look at International Aviation Rights” to an aviation security update and a consumer protection panel, and sessions on hot issues such as airline fare, reservation, and ticket distribution systems and aviation enforcement for the 21stcentury. 

 

Robert Rivkin, General Counsel of the U. S. Department of Transportation, was the opening speaker of the conference and emphasized that strong airports and a strong aviation industry as key components of a strong economy.   His remarks included strong criticism of Congressional inaction and stalemate that forced the 14-day partial shutdown of the FAA in August, and he encouraged all to support the passage of the American Jobs Act, long-term FAA and surface transportation bills, and to provide backpay for the workers who were laid off during the shutdown.  He stated, in part:

“You don’t need to work at the Department of Transportation to understand the recklessness of this approach.  It’s nearly impossible to manage large-scale, long-term programs when there’s only enough money to pour  50 feet of concrete at a time.  And these projects end up costing taxpayers a lot more---meaning we get less bang for the buck.  With a multiyear reauthorization, airports could make better plans to resurface runways and avoid crumbling pavement.  They could better maintain proper signs and lighting, build safer taxiways, and acquire equipment to prevent snow and ice buildup.”

 

Jim Cherry, President and CEO, Aeroports de Montreal, and former Chair of ACI World, was the opening speaker on Friday, September 23.  He provided an overview of trends in airport ownership models worldwide, with special focus on Canadian and U. S. models, and discussed some of the related challenges and issues.  In his concluding remarks, he stated that the U. S. airport model is at a crossroads, and that the World Economic forum ranks the U. S. air transport infrastructure 32ndin the world, behind countries like Panama and Chile.  He suggested that given the growing worldwide trend toward airport privatization, the U.S. would benefit by allowing its airports greater flexibility in financing options.   He emphasized that due to too much federal involvement and too little local control over U. S. airports, and the need for user fee and airline charge liberalization, American airports are not keeping pace with the top airports throughout the world.  He identified several disincentives to privatization in the U.S., including:  access to cheap tax-exempt debt, airline agreements and collective bargaining agreements, high levels of debt and limited incentive to sell unless a gain can be realized.  His remarks provided great insights in this area.

 

Upcoming Conferences

  • The ACI-NA Fall Legal Conference will take place at the San Diego Convention Center

on October 15 – 16, 2011

The agenda is available on the ACI-NA Website!

 

Featured Governmental Speakers Include:

  • Francine Kerner, Chief Counsel, Transportation Security Administration
  • Joanne Halley, Senior Deputy Associate Chief Counsel, U.S. Customs and Border Protection
  • Starla R. Matthews, Supervisory Counsel, San Diego Field Office, TSA
  • Brandon Straus, Supervisory Field Counsel, Las Vegas-McCarran International Airport
  • Marc Warren, Acting Chief Counsel, Federal Aviation Administration
  • Michael Frielich, Federal Aviation Administration, Office of Civil Rights,

                 Director, Civil Rights, Western-Pacific Region & DBE Compliance

AND

Special Guest Speaker,

Christopher Guzelian, Assistant Professor, Thomas Jefferson School of Law, San Diego

 

Online registration is available!

If you have any litigation issues for inclusion during the Litigation Update Session or any transactions of note for inclusion during the Transactions Update Session in October, please send them to me or to the Chairman of the Legal Steering Group,

Timothy Karaskiewicz at timothy.karaskiewicz@milwcnty.com

If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:  mhargrove@aci-na.org

Have a great weekend!

Monica

Monica R. Hargrove
General Counsel

Direct: (202) 861-8088                                                                                                             
E-mail: mhargrove@aci-na.org