Last summer, the FAA outlined an intention to ban JSX and other scheduled public charter operators, largely because they offer a popular, quality product that competitors do not like.

Now the FAA says that it will move forward with a Notice of Proposed Rulemaking that would – at least in some cases – prevent public charter operators from selling scheduled flights from private terminals, using co-pilots with fewer than 1,500 flying hours.

Specifically, they plan to change their definitions of “scheduled,” “on demand,” and “supplemental” operations that allow flights with fewer than 30 seats to fly under part 135 rules instead of part 121 rules that apply to major airlines.

It’s not yet clear what this rulemaking will look like.

• The actual text of what the FAA proposes will be released later this year, soliciting the legally-required comments, with an aim towards issuing a final rule next year.

• The FAA says they’ll plan for a transition period of “several years” for existing carriers to comply with new rules.

• And they plan for a Safety Risk Management Panel that would consider conditions for continued operations under part 135. This will specifically consider the use of of hybrid electric planes and their use in rural communities.

Indeed, based on a statement from a spokesperson for JSX, they seem to think they can work within the framework that the FAA is planning.

JSX supports the Federal Aviation Administration’s efforts to maintain the safety of civil aviation and applauds FAA Administrator Whitaker’s plans to evaluate a new operating authority for certain Part 135 operations.

More than half of JSX’s public charter markets operate in airports that are not served by large network airlines, yet there are thousands more airports – funded by the American taxpayer – that remain inaccessible to the vast majority of Americans unless they have the means to afford private jets.

As the country’s largest public charter air carrier, JSX has modeled the way forward for safe, secure, and reliable regional operations under Part 135 since inception and, with intent to take delivery of up to 332 hybrid-electric airplanes from 2028, aligns with the Biden Administration’s call to encourage competition and innovation in air travel.

We eagerly look forward to collaborating with our regulators to cement the importance of public charters and expand access to vital air connectivity in the future.

JSX Cabin

Timing Makes The Outcome Of This Effort Uncertain

The FAA says they’re planning for a Notice of Proposed Rulemaking by the end of the year, and hope to finalize a rule in 2025 (often these timelines slip, so any final rule might come in 2026).

Different people could be in charge at the Department of Transportation next year. Just like the Biden Administration promised a Department of Transportation rule requiring airlines to pay cash compensation for delays but did not actually propose a rule in time to get it done during a first time, this effort too could be sidetracked by the upcoming Presidential election.

FAA Crackdown Is Legally Dubious

49 USC 41104 limits FAA’s authority to issue regulations on public air charters. It states,

The Secretary of Transportation may prescribe a regulation or issue an order restricting the marketability, flexibility, accessibility, or variety of charter air transportation provided under a certificate issued under section 41102 of this title only to the extent required by the public interest. A regulation prescribed or order issued under this subsection may not be more restrictive than a regulation related to charter air transportation that was in effect on October 1, 1978.

Since these proposed regulations would limit the “marketability, flexibility, accessibility or variety of charter air transportation” in a manner that is more restrictive than regulation on charter transportation on October 1, 1978, the FAA seems to be prohibited from issuing this regulation. Congress created the law which led to current regulations under which JSX operates, and the FAA in doing incumbent interests’ dirty work would be acting against current law.

It will be interesting to see how the FAA’s Notice of Proposed Rulemaking deals with this, as well as President Biden’s Executive Orders requiring consultations with the two dozen Native American tribes that would potentially have air service limited by stricter regulation of scheduled charters, as well as how they handle the processes for rules with significant economic impact (annual revenue of JSX alone is larger than the required threshold).

There’s No Valid Issue To Address

There’s no basis for a concern about relative safety in part 135 operations. Scheduled charters have just as strong a safety record as part 121 airlines, especially when focusing on operations like JSX’s. The 1,500 hour rule doesn’t add to safety. In fact, it allows for hours to be racked up not just in clear air touch and go takeoffs and landings (nothing like what pilots face in commercial operations) it allows hours to be accumulated in a hot air balloon. The balloon can even be tethered. Meanwhile experience shows that current part 135 rules are mission-appropriate for safe operations.

Critics say that JSX and others ‘exploit a loophole’ though without actual safety risk that is a good thing. Moreover it’s also not actually true in the traditional sense. There’s not a drafting mistake that the FAA hadn’t thought of that’s being exploited. In fact, the FAA specifically linked part 380 and part 135 operations to allow the sale of scheduled charters the way that JSX offers.

Why The FAA Is Going After Scheduled Charters

The federal government – both at the FAA and Transportation Security Administration – had been comfortable with JSX and other public charter operations for years. Then two things happened.

• SkyWest wanted to operate as a public charter on Essential Air Service routes in order to broaden its pool of co-pilots. This set off alarm bells at pilot unions and triggered their outrage and lobbying.
  
• Big airlines saw the union push as an opportunity of their own to pile on and block an upstart competitor.

There’s been a admits their lobbying is about blocking what they view as unfair competition.

The one place where I do draw an issue with, where the rules aren’t the same. If you don’t have to deal with the same DOT provisions, the same FAA provisions, the same security TSA provisions that’s not fair….I’m quite certain that the FAA, the DOT, and TSA will take a look at what’s going on and make sure that no one is advantaged.

American Airlines, of course, partners with scheduled public charter operator Contour and owns a stake in Gol whose co-pilots do not need 1,500 hours of flying.

It looks like lobbyists for American, Southwest and ALPA won a victory of some kind – though we do not know yet what the meat of the Notice of Proposed Rulemaking will look like, what a final rule will be, and how potential legal objections will shake out.

It’s possible that, in addition to a ‘transition period’, it will still be possible (though more cumbersome) for carriers to operate under part 135 and offer advantages of less encumbered and more comfortable air travel.

TSA Is Taking Its Own Crack At Attacking Scheduled Charters

This effort by the FAA is entirely separate from the process at TSA to block scheduled charter operations that former American Airlines CEO Doug Parker and Southwest Airlines COO Andrew Watterson personally lobbied the TSA Administrator for.

Since public charters with 30 or fewer seats can operate out of private terminals, going through fully TSA-approved screening but not TSA-staffed screening checkpoints adds to the ease of operations like JSX’s. JSX checks passenger IDs against targeting databases, swabs every bag, and passengers go through weapons detectors. And their planes make less valuable targets. This is a convenience that major carriers do not want them to have, even though flying from private terminals is something that American Airlines and Southwest both promote for their own charter businesses.

So even as we wait for the specifics on the lobbyist-inspired FAA crackdown, we await changes to the TSA”s Twelve-Five Standard Security Program.