GAO says no to user fees

The Government Accountability Office (GAO) says the FAA’s plan to auction landing rights at New York-area airports is illegal. The GAO’s opinion reinforces an earlier rebuke from Congress, which had already told the FAA that its “slot auctions” proposal violated the law and the intent of Congress.

“For the first time since it began regulating U.S. navigable airspace nearly 40 years ago, the FAA now asserts that it may assign the use of that airspace using its general property management authority,” wrote the GAO. But the agency concluded that airspace use was not “property” in the sense that Congress intended.

“Since 1998, Congress has...specifically prohibited FAA from imposing ‘new aviation user fees,’ and we conclude that proceeds from the FAA’s proposed auctions would constitute such a fee.” The GAO said that the FAA had no authority to conduct the auction. If the agency proceeds anyhow, the GAO would raise an exception and contend that the FAA had violated the “purpose statute” that says an agency can only use money that has been specifically appropriated by Congress.

“The GAO opinion echoes many of the arguments AOPA has made against this FAA user fee plan,” said Andy Cebula, AOPA executive vice president of government affairs. “An agency ignores the GAO at its own peril. Congress frequently finds a way to make what the GAO says stick.” GAO also said the FAA plan could violate the Antideficiency Act, which carries a criminal sanction and thus a possible referral of the matter to the U.S. attorney.