Government can't auction flight slots at U.S. airports, say legal investigators

WASHINGTON — U.S. aviation officials have no legal authority to auction off takeoff and landing slots at airports, a scheme the government devised to try to curb crippling traffic jams at major airports, congressional investigators said Tuesday.

The legal opinion from the Government Accountability Office comes amid a legal fight among airlines, airport operators and the Federal Aviation Administration over the Bush administration's plan to trim flight delays by auctioning off slots at New York City-area airports.

The opinion is another blow to Bush administration officials who hope to get their air traffic experiment off the ground before they leave office in four months.

"We conclude that FAA may not auction slots under its property disposition authority, user fee authority, or any other authority, and thus also may not retain or use proceeds of any such auctions," GAO general counsel Gary Kepplinger said in a letter to lawmakers who had sought the legal opinion.

The GAO's top lawyer concluded that for the first time in 40 years, the FAA claims it may assign airspace as its "property," but the laws covering the FAA were never written to include such a definition of property.

Transportation Department spokesman Brian Turmail said the GAO was unfamiliar with aviation law, and had little time to study it before reaching its conclusion.

"Should Congress give the agency an opportunity to conduct a more thorough review, we are confident that GAO will better understand both the validity and the effectiveness of our approach," Turmail said in a statement.

A number of congressional lawmakers had requested the legal opinion as they tried to stop the FAA's limited tryout of a slot auction this fall at Newark-Liberty Airport.

"This once again shows that the DOT needs to put a stop to this ideological battle that would cause chaos at New York airports. The administration has tried to jam through a half-baked plan that can't even be implemented," said Sen. Charles Schumer, D-N.Y., one of the agency's biggest critics.

Transportation Secretary Mary Peters proposed the auction plan after widespread complaints last year about rampant flight delays across the country. The government says two out of three flights delayed 15 minutes or more were due to cascading backups beginning at one of the New York metropolitan area's three airports: Newark, John F. Kennedy, and LaGuardia.

Trying to fix the problem, the government imposed new limits on the airports and announced plans to auction off some takeoff and landing slots to control the crushing demand for time and space. By auctioning slots, the government reasons, market forces will help restrain such demand and make the system operate more efficiently.

Opponents sued.

Airlines and airports contend the auction proposal will add new costs and make a mess of day-to-day airport operations.

The government pressed ahead with a trial effort at Newark to auction off just two slots, but an internal FAA agency told them to wait.

An agency order lifting that stay was issued after the GAO legal finding Tuesday, meaning the agency can in theory proceed with its trial auction in Newark.