TITLE
Recommendation to receive supporting documentation into the record, conclude the public hearing, and uphold the decision of the City Manager to deny the appeal of JetBlue Airways for an exemption for certain late night (curfew) violations at the Long Beach Airport during the second quarter of 2017, and adopt findings related thereto. (Citywide)
DISCUSSION
This matter is an appeal by JetBlue Airways (JetBlue) of the administrative decisions of the Airport Director and the City Manager determining that JetBlue is not entitled to an exemption from the City’s Airport Noise Ordinance (LBMC 16.43 - Airport Noise Compatibility Ordinance) for certain JetBlue curfew violations occurring during the second quarter of 2017 (April through June).
JetBlue made its initial exemption request on July 7, 2017 (Exhibit 1). This request was denied in a response by the Airport Director on July 18, 2017 (Exhibit 2). JetBlue requested clarification of the Airport Director’s exemption denial on July 28, 2017 (Exhibit 3), and the Airport Director provided the requested clarification on August 17, 2017 (Exhibit 4). Thereafter, JetBlue requested an Administrative Hearing on August 25, 2017 (Exhibit 5) in accordance with the provisions of Long Beach Municipal Code (LBMC) Section 16.43.110A (Exhibit 6).
The Airport Director conducted an Administrative Hearing of JetBlue’s appeal on October 6, 2017, at which time the Airport Director received relevant evidence from JetBlue representatives and Airport staff (Exhibit 7 - Transcript of proceeding). After taking the matter under submission, the Airport Director issued a formal written Decision denying JetBlue’s exemption request on October 16, 2017 (Exhibit 8). On October 31, 2017 JetBlue, filed an appeal of the Airport Director’s Decision (Exhibit 9) and requested an Administrative Hearing before the City Manager in accordance with LBMC Section 16.43.110B (Exhibit 6). The City Manager held an Administrative Appeal Hearing on December 21, 2017, at which time JetBlue representatives and City Staff provided relevant evidence to the City Manager for his consideration (Exhibit 10 - Transcript of proceeding). After taking the matter under submission, the City Manager issued a formal written Decision on December 21, 2017, upholding the determination of the Airport Director and denying JetBlue’s exemption request (Exhibit 11).
On January 5, 2018, JetBlue filed an appeal to the City Council of the City Manager’s Decision in accordance with the provisions of LBMC Sections 16.43.110B&C (Exhibit 12).
Background
The Airport Noise Compatibility Ordinance (the Ordinance) was adopted by the City Council in 1995 as an effective method to manage Air Carrier flight activity and related aircraft noise impacts. The Ordinance provides a balance between the operational needs of the aviation community, the desire of the City and the Airport to provide travel and economic benefits to our residents while being environmentally responsible, and the valid concerns of those residents who are consistently impacted by late night flight noise events.
Although the Airport is technically open 24 hours a day, the Ordinance contains a “soft curfew” that requires all commercial Air Carrier departures and arrivals to be scheduled between 7:00 a.m. and 10:00 p.m. Violations of the curfew regulations are subject to monetary administrative penalties as well as criminal sanctions. Certain flight activities, regardless of the hour of the day that they occur, are completely exempt from the Ordinance’s curfew restrictions. These activities include military flights, law enforcement and fire-related flights, Civil Air Patrol flights, medical emergency flights, aircraft experiencing in-flight emergencies, and aircraft operating pursuant to explicit air traffic control direction (LBMC Section 16.43.070.G, Exhibit 6).
Curfew violations occurring only between the hours of 10:00 p.m. and 11:00 p.m. can be waived by the Airport Director if the Air Carrier provides satisfactory evidence that the delayed arrival or departure is due to circumstances beyond the “reasonable control” of the operator. Such circumstances could include mechanical failures (but not routine maintenance), weather conditions, air traffic control conditions, or circumstances such as a passenger suffering from a serious in-flight medical emergency. It is important to note that nothing in the Ordinance establishes a “right” or “privilege” of any Air Carrier to conduct air operations outside of the established curfew hours.
The Ordinance provides two classifications of exemptions related to air traffic control. Between the hours of 10:00 p.m. and 11:00 p.m. the Airport Director may waive violations attributable to “air traffic control conditions.” After 11:00 p.m., the Ordinance specifies a more stringent standard of, “explicit air traffic control direction” to justify an exemption.
The appeal by JetBlue involves 16 of 58 curfew violations occurring after 11:00 p.m.; and only in situations where JetBlue is claiming that it is exempt from the Ordinance’s curfew restrictions because of claims that a JetBlue aircraft was operating pursuant to “explicit air traffic control direction” at the time of the violation.
It should be noted that during the period in question (second quarter of 2017), JetBlue had 114 operations that did occur between the hours of 10:00 p.m. and 11:00 p.m. JetBlue was assessed an administrative penalty for ten of these operations that were determined to be violations; however, JetBlue was not assessed any administrative or criminal penalty for the remaining 104 operations because it was determined that the operations occurred due to circumstances beyond the “reasonable control” of JetBlue, as described above. In particular, 21 of the 104 operations that were beyond the “reasonable control” of JetBlue were waived specifically for “air traffic control conditions.”
JetBlue’s basic contention in this proceeding, and on the appeal, is that the phrase “explicit air traffic control direction” should exempt JetBlue from the Ordinance’s curfew and penalty provisions if the air traffic control direction comes at any time of the day from any airport nationwide that JetBlue might be arriving at or departing from irrespective of how far removed the flight(s) are from the flight(s) departing or arriving from Long Beach Airport. The City, on the other hand, contends that JetBlue can only claim an exemption if the explicit air traffic control direction comes from the Air Traffic Control facility operating at the Long Beach Airport. For example, JetBlue would contend that a four-hour air traffic control weather-related morning delay occurring in Boston that “backs up” a flight that has numerous arrivals and departures throughout the day (or that is a direct flight into LGB) would permit a JetBlue flight to land in Long Beach after the 11:00 p.m. curfew, with no violation or penalty. Arguably, JetBlue’s “exemption” argument may even apply to flights that have been delayed the previous day due to air traffic control weather or other delays.
The Airport contends, however, that since such a delay was attributable to “air traffic control conditions” but not “explicit air traffic control direction” from the Air Traffic Control facility at the Airport, JetBlue should be subject to administrative penalties consistent with the Ordinance for a curfew violation if it chooses to land at the Airport well after the established curfew hours. An example of a permitted exemption would be a situation where a JetBlue flight takes off from Boston in a timely manner and upon arrival in Long Beach is directed by the Air Traffic Control facility at the Airport to delay its landing beyond the curfew hours and until a local condition, such as a runway hazard or other event specific to the Airport, is cleared. This type of curfew violation would be exempted from the imposition of any curfew violation or administrative penalty because it is a result of an explicit directive coming from the Long Beach Air Traffic Control.
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 non-curfew 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.
Not only do consistent and pervasive curfew violations disturb surrounding neighborhoods, such violations serve to “fill up” the Air Carrier “noise budget,” thereby preventing the allocation of additional flight slots in accordance with the provisions of the Ordinance. This is because curfew violation flights are penalized from a noise budget standpoint at ten times the rate of a flight landing or taking off during the daytime (7:00 a.m. to 7:00 p.m.) and approximately three times the rate of a flight landing or taking off during the evening (7:00 p.m. to 10:00 p.m.).
The longstanding interpretation of the curfew provisions of the Ordinance reflect the experience of the City in the management and operation of the Airport and the public controversies resulting from operations at the Airport since adoption of the Ordinance in 1995; including extensive experience in many forums with the views and interests of the federal government, commercial aviation operators, general aviation operators, the Long Beach business community, local public entities, and the residents of the areas affected by aircraft noise in the general vicinity of the Airport.
The City’s consistent interpretation of the exemption provisions of the Ordinance serves to balance the needs of the Long Beach community for adequate commercial air transportation facilities, and the desire of the local community for environmentally responsible air transportation operations at the Airport.
This matter was reviewed by Assistant City Attorney Michael J. Mais on April 27, 2018 and by Budget Analysis Officer Julissa José-Murray on April 30, 2018.
TIMING CONSIDERATIONS
[Timing Considerations]
FISCAL IMPACT
The amount contested by JetBlue for the second quarter of 2017 is $96,000. Approval of this item constitutes the final step in the administrative process as provided in LBMC Section 16.43.070. Accordingly, this amount would become payable, subject to any remaining remedies, either administrative or statutory. Any amounts paid would be 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.
SUGGESTED ACTION
Approve recommendation.
BODY
[Enter Body Here]
Respectfully Submitted,
JESS L. ROMO, A.A.E.
DIRECTOR, LONG BEACH AIRPORT
APPROVED:
PATRICK H. WEST
CITY MANAGER