The FAA is considering a rule to treat public charters the same way as large commercial airlines, rewriting rules going back 30 years. This would mean that co-pilots for carriers like JSX and the proposed SkyWest Charter could only employ co-pilots with 1,500 hours of training (whether in a tethered hot air balloon or otherwise) and JSX wouldn’t be able to fly from private terminals.
JSX emailed all of their customers asking them to comment on the FAA’s proposed rulemaking. Over 20,000 people filed comments to oppose these changes. Does that matter?
- The FAA statutorily has to consider each comment in its rulemaking process. 20,000 comments to work through is a lot – more than commented on the FAA’s emotional support animal rule, fewer than commented on drones (which set the record).
- However the FAA won’t actually consider each comment individually. They will use software to group these comments, and will more or less waive them away in their written analysis (e.g. “99% of comments were submitted by consumers who value the product offered by certain public charter operators, but we must first consider safety implications”).
- Put another way, in practice they don’t always follow the law to consider each comment. Instead they consider comments like this as a bundle.
In other words, substantively these comments doesn’t matter as the FAA considers a rule. Politically it could matter.
- The rulemaking is happening now because of the big unions who don’t want flights operating with pilots that are outside of their hard-fought occupational licensing rules and because of pressure from Southwest and American who don’t want Dallas-based competition.
- The Biden FAA felt like they could not ignore a union campaign like this, especially one (disingenuously) framing its arguments around safety. There’s an effort not to rock union boats heading into the election.
- In a world of concentrated benefits (to ALPA and American) and disperses costs (to consumers) it was likely that rule changes would go largely unnoticed in the larger world. The administration might adopt a rule, please those making noise, and not face consequences from low-information voters. Over 20,000 comments on an obscure rule signals that calculation may not hold.
Since the rulemaking is happening in and driven by a political context, seeing a lot of people willing to take the time to express an opinion suggests the rulemaking can’t just pay off ALPA and American without also bearing costs.
Uber, which actually operated illegally in many cities, was able to grow because customers were enthusiastic and turned out to let politicians know they’d be held accountable if they gave in to the taxi lobby. JSX is entirely legal. SkyWest Charter is entirely legal, and would help sustain air service to small cities. And there’s a base of customers who care. Are they single issue voters? Probably most of them aren’t. Is it enough to get the FAA to de-prioritize the issue? Perhaps not. But it’s still a signal that goes into decision-making.
For a longer discussion of the issues, I co-authored a regulatory comment submitted to FAA that deals with the various complexities of what they’re considering.