[KSMO]: Are FAA Attorneys Bluffing on their ‘Cease & Desist Order’?

The fight in Santa Monica continues to heat up. City officials have labored for nearly four decades, and patiently endured one FAA delay tactic after another, in their quest to assert local control so they can best manage their local airport. Now, an official at FAA Headquarters in Washington, DC, has issued an ‘Interim Cease and Desist Order’. For what it’s worth, here is a copy of the City’s official response:

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(text of email by City officials; minor edits may have been added, but only to clarify)

The Order appears authoritative and very threatening, but a closer inspection suggests it is just another bluff by an out-of-control federal agency. Here’s the closing declaration, at page five of FAA’s 15-page document, signed by Kevin Willis, an FAA Director at the Office of Airport Compliance and Management Analysis, on 12/12/2016:

(click on image to view an archived copy of FAA's entire 15-page 'Cease & Desist Order' package)

(click on image to view an archived copy of FAA’s entire 15-page ‘Cease & Desist Order’ package)

‘Cease & Desist’ … hmm, my first thought was, roughly,

“…where does FAA have the authority to issue a ‘Cease & Desist Order’, intervening in the relationship an airport authority has with an airport tenant? I mean, by this logic, FAA should also have the right to dictate all sorts of airport management details, not at all related to aviation safety.”

Evidence That This is Just a Bluff

FAA’s authority to issue the Order is cited as footnote one, on the bottom of page 1 which reads: “This Order is issued pursuant to 49 U.S.C. § 46105 and 14 CFR § 16.109.” So in the probably 100-200 man-hours that went into drafting this Order, FAA’s legal team offered not one but two cites. But, is either cite valid?

I’ll lead off with the second cite. According to GPO’s eCFR website, FAA’s second cite DOES NOT EXIST. I.e., per the screencap below, 14 CFR § 16.109 is a ‘reserved’ section of the CFR framework, meaning there is no language to be consulted.

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Two screen-captures by aiREFORM, from the current/valid electronic CFR (Code of Federal Regulations) website. These show that there is no valid 14 CFR section 109.

And note, too, this is NOT an out-of-date version; the GPO website declares this eCFR is current as of 12/12/2016 … the same date as Mr. Willis’s signature!

And now let’s consider the other cite. FAA cited 49 U.S.C. § 46105, but their error is immediately revealed by simply reading the language of the law. The actual section contains these words: “…a regulation prescribed or order issued by (…) the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator (…) takes effect within a reasonable time prescribed by the (…) Administrator.”

Note the qualifier, “…with respect to aviation safety duties and powers designated…” FAA’s current action against Santa Monica has nothing to do with ‘aviation safety duties’, and FAA’s legal team has failed to actually cite any real authority. If you want to look even further, see this archived PDF copy of the entire Chapter 461, which contains all sections, from 46101 through 46111. It is a searchable copy, so it is easy to quickly establish: Chapter 461 contains neither the term ‘cease’ nor the term ‘desist’, and the cited § 46105 contains no real authority.

Now, just to be clear, I am not a lawyer. BUT, as a forced-to-retire FAA ATC whistleblower, I have plenty of experience with FAA’s bluff and bluster. FAA pays plenty for their hundreds of inside attorneys, and these civil servants are expected to distort and deceive at will, in support of the true and not-so-ethical FAA mission. If my quick legal assessments are flawed, please show me my error. And if they are not flawed, clearly, it is time for FAA to get off their bureaucratic butts and let the People in Santa Monica get on with owning AND controlling their local airport.


UPDATE, 12/20/2016: — a week has passed and nobody has yet provided even a flimsy legal basis for FAA’s administratively issuing an ‘Interim Cease & Desist Order’ against the City of Santa Monica. The most substantial response I have yet seen was sent by Chris Harshman, and a screencap is provided below:

ksmo-20161220at1641scp-wow-email-from-c-harshman-packetlaw-comHere’s what I sent back to Chris:ksmo-20161220at1728scp-reply-email-to-c-harshmanChris did make one good point in his email. He identified my error in interpreting the CFR nomenclature. The Code of Federal Regulations are an extremely deep and tangled set of rules. When I researched my blogpost, I could not find a 14 CFR § 16.109 and ended up finding a list that looked like it was regarding 14 CFR § 16.109, but was actually declaring that 14 CFR Part 109 was reserved. The online version is viewable here (and I archived a copy, all 31-pages, here).

Of course, we also have the problem that the preamble for the 31-pages of 14 CFR Part 16 says that “…provisions of this part govern all Federal Aviation Administration (FAA) proceedings involving Federally-assisted airports….” This strongly suggests that Part 16 cannot be applied against Santa Monica, because Santa Monica dropped their addiction to airport federal assistance many decades ago.

Thankfully, all of this confusion is easily solved. We just need FAA to start serving ALL OF US, not just the elite aviation interests. Airports serve communities, not businesses; airport impacts need to be properly balanced against health, residential quality of life, and other issues. Attorneys can help make this happen… IF they choose to serve more than just the mighty dollar.