A federal appeals court has issued a significant ruling that restricts the ability of local authorities to limit air travel at airports, particularly affecting 'by-the-seat' private jet services. This decision, concerning Westchester County Airport, has broad implications for small airports across the United States, especially those in affluent areas.
The Second Circuit Court of Appeals overturned a 2005 Westchester County ordinance. This rule mandated that all passenger flights, including services like JSX and XO charters, use the airport's main commercial terminal instead of private facilities. The court determined this ordinance was an illegal access restriction under the Airport Noise and Capacity Act of 1990 (ANCA).
Key Takeaways
- Federal court strikes down Westchester County's flight restrictions.
- Ruling prevents airports from forcing 'by-the-seat' private jet services into main commercial terminals.
- Decision has national implications for smaller airports and access rules.
- Airport Noise and Capacity Act (ANCA) limits local control over flight operations.
- Airports receiving federal grants must ensure non-discriminatory access.
Westchester County's Attempt to Limit Flights
Westchester County Airport's main terminal operates under strict flight limits. It has a cap of 240 daily passenger operations, allocated through a lottery system. If JSX, XO, and similar charter services were forced into this terminal, they would automatically fall under these caps. This would effectively prevent them from scheduling flights as they wished.
Many smaller airports have attempted to block scheduled services. Reasons often include local opposition to noise, known as NIMBY (Not In My Backyard) concerns, and a desire to restrict access. These efforts sometimes aim to prevent access for those who purchase first-class seats but do not own private jets.
"This ruling – while not controlling nationwide – is highly suggestive of what the law actually says is permitted," an aviation expert noted, highlighting the decision's potential influence.
The Airport Noise and Capacity Act of 1990
ANCA established a consistent national process for restricting aircraft operations at U.S. airports. These restrictions are typically based on noise or capacity concerns, such as noise-based curfews or operational caps. For an airport to implement a new noise or access restriction, it must go through a Department of Transportation (DOT) process if any airport operator objects.
However, restrictions already in effect on or before October 1, 1990, are considered "grandfathered." These older rules can continue without needing to go through the new DOT approval process. Historically, very few new restrictions have successfully passed the FAA review process.
Important Fact
Under U.S. law, airports that receive federal grants are bound by grant assurances. These include requirements for non-discriminatory access and prohibitions against "unjust discrimination."
Impact on Other Airports: Teterboro and Van Nuys
The Westchester ruling offers insight into similar situations at other airports. Teterboro Airport in New Jersey, located 12 miles northwest of Midtown Manhattan, is a preferred private airport for the New York City area. It traditionally does not allow scheduled service "held out for sale to the public."
However, JSX now operates from Teterboro. They do this by not marketing "scheduled service" and limiting flight sales to members of their loyalty program. This strategy allows them to navigate existing restrictions. Teterboro Airport is not "part 139-certified," which limits certain types of flights.
Defining "Scheduled Operations"
The Port Authority of New York and New Jersey, which manages Teterboro, defines "scheduled operation" broadly. It includes any common passenger-carrying operation for compensation or hire that is advertised to the public at set times via a timetable or schedule, whether in print or online.
Despite these rules, JSX is not the only carrier operating from Teterboro. Tradewind offers both private charter and scheduled flights to destinations like Nantucket and Martha's Vineyard. Their scheduled service is reserved for "ticket book holders," similar to JSX's membership model.
Context: By-the-Seat Flights
Companies like XO offer "by-the-seat" flights, allowing individual passengers to book seats on private jets. For example, XO has offered flights between New York and West Palm Beach or Fort Lauderdale for approximately $1,500 per passenger.
Meanwhile, Van Nuys Airport in Los Angeles does not permit scheduled commercial flights. Yet, Aero operates such services there. Los Angeles World Airports (LAWA) believes it lacks the legal authority to stop Aero, a position that is likely correct given federal precedents.
Operations at Van Nuys have seen a shift in recent years. There are now fewer single-engine piston aircraft and more private jets. This trend suggests that attempts to block certain services are not always about public convenience. Instead, they can be about maintaining exclusive access for some groups over others.
Why Airports Cannot Simply Ban Services
Airport runways that receive federal grants are often compared to public highways. They must generally accept all users. A notable example is Centennial Airport in the Denver area, which tried to ban scheduled passenger service.
In 1998, the Colorado Supreme Court supported Centennial Airport's ban against Centennial Express, a Part 135 flight operator. However, the Federal Aviation Administration (FAA) later found the ban violated federal grant assurances. These assurances prohibit unjust discrimination and exclusive rights. The FAA also stated the ban conflicted with the Airline Deregulation Act because the airport authority could not prove safety or capacity issues justified the rule.
Legal Precedent
The Tenth Circuit Court of Appeals affirmed the FAA's decision in 2001. It ruled that Centennial Airport's ban was preempted and unreasonable. The court found a "dearth of evidence" supporting the ban and noted that allowing unscheduled operations on the same aircraft undermined any safety rationale.
The Proprietor Exception
There is an exception under 49 U.S.C. § 41713(b)(3). This allows an airport proprietor to regulate "as proprietor" if a restriction is necessary for safe operation or serves civil aviation needs. However, whether this exception applies depends heavily on specific evidence. The Westchester case underscores that such restrictions must be clearly justified.
Westchester County's Specific Actions
The Westchester County Executive had expressed opposition to some airport uses. The County previously denied FBO operator Million Air permission to construct a new terminal, despite Million Air's contractual entitlement. This denial was later deemed "not reasonable as a matter of law."
In 2022, Westchester County sued Blade, JSX, and XO. The lawsuit targeted these companies for selling flights with more than nine seats while using private terminals. The Westchester Airport's Terminal Use Agreement requires commercial airlines to operate from the main terminal, where flights are subject to lottery-based operating rights and passenger limits.
Policy Change
In January 2022, the airport adopted a new policy. This policy required these carriers to operate out of the main terminal, subject to TSA screening. This would have also subjected them to the lottery system, significantly limiting their operations.
A United States District Judge initially ruled that the airport could enforce its terminal use rules. The judge suggested this fell under the airport's authority to set safety and operational limits.
Appeals Court Overrules Westchester
The federal appeals court panel ultimately ruled against Westchester County. It determined that the terminal-only requirement for air carriers constituted an "access restriction" or limit on operations. The court found that the airport's 2005 rules were preempted by the Airport Noise and Capacity Act of 1990.
The court's reasoning was based on ANCA's requirements. For a restriction to be valid, it must be either:
- Approved by the DOT Secretary,
- Agreed to by all carriers, or
- Grandfathered (in place before 1990).
Westchester's terminal-only rule did not meet these conditions. It was not grandfathered because it reduced or limited aircraft operations in a way that triggered the law's requirement for agreement from all operators or approval from the Secretary of Transportation. Neither of these conditions was met.
Other Legal Arguments
While the county did not win on all counts, the core issue of access was decided against them. The court found that the county's rule was not preempted by the Airline Deregulation Act. Additionally, the plaintiff's Equal Protection challenge failed because the rule was rationally related to legitimate local interests. However, these points did not override the ANCA preemption.
ANCA's Broad Application
ANCA ensures a uniform national approach to airport access. Almost no new restriction has ever survived the FAA review process. Examples of grandfathered restrictions include:
- Orange County (SNA): Curfew and slot/cap system for commercial operations.
- San Diego (SAN): Curfew on departures from 11:30 p.m. to 6:30 a.m.
- Boston (BOS): Night noise rules, including preferential runway use.
- Teterboro (TEB): Night noise limits and weight restrictions.
- Burbank, Aspen, Naples: Some restrictions and caps predate ANCA.
Many airports have tried and failed to impose new restrictions. Burbank's attempt to impose a mandatory nighttime curfew was rejected in 2009. East Hampton tried to impose slot limits and curfews after letting grant assurances expire, but courts still applied ANCA.
Specific Cases
Aspen has aircraft size and weight rules, adjudicated under safety-based proprietor rules rather than noise rules. Naples, Florida, successfully imposed restrictions on small, noisier 'stage 2' jets, which are now largely out of use, back in 2005.
Some airports try to write noise-sensitive practices into lease covenants. However, these are still vulnerable if they function as de facto access restrictions. Because ANCA preemption was affirmed in the Westchester case, the airport cannot enforce its terminal-only requirement. This legal logic suggests that other local airport rules, such as "terminal only" or "scheduled operations exclusion" provisions, are likely to fail if they lack DOT approval.
