Former Transportation Secretary James Burnley on FAA Reauthorization

• The good & bad of the reauthorization
• The case for making air traffic control a nonprofit
• Transportation priorities for the new U.S. president

In July, a bill funding the U.S. Federal Aviation Administration through Sept. 30, 2017, became law. The reauthorization also expanded the U.S. Transportation Security Administration's PreCheck program and addressed consumer protections for lost luggage but did not include a provision turning the nation's air traffic control system into a self-funding, nonprofit entity. Former U.S. Secretary of Transportation James Burnley, who served during the last years of the Reagan administration and co-chairs law firm Venable's transportation practice, has been a longtime supporter of the air traffic control provision and spoke with BTN transportation editor Michael B. Baker.

BTN: What are your initial thoughts on the reauthorization terms?

Burnley: The best news is that the extension is for as long as it is, 14 months. The last go-round, Congress passed 23 short-term extensions before it was finally able to pass a multiyear reauthorization bill. That is so disruptive, particularly to the airport grants program; the ripple effect plays out at airports all over America. Until there's a multiyear reauthorization bill, the FAA can't write checks for more than the period of time for which it's authorized. It creates an enormous workload for people administering the program, it creates uncertainty and, for people managing the airport, it makes it impossible to get longer-term grants. We've avoided all that. If we have to have an extension, it's a good thing it's as long as it is.

BTN: Does that cause noticeable effects for passengers?

Burnley: That stop-start on the short-term extension basis basically does freeze a lot of projects at airports, and it means the airports don't expand and modernize facilities as they are planning to do. That has a very direct effect on passengers. It's not one they're necessarily cognizant of, but it's real.

BTN: The reauthorization does not include the air traffic control privatization proposal for which many lobbied and that would remove the agency from Congress’ funding cycle. Will that still be a topic of discussion going forward?

Burnley: First, it's not privatization. It's a proposal to transfer the facilities to a nonprofit corporation, which would still have federal representation on it, as well as representation from all the key players in the aviation community. The proposal is a solid one. Along with former [North Dakota] Sen. Byron Dorgan, [I] co-chaired [The Eno Center for Transportation] think tank, and in the spring of 2015, we put out a report that included both the detailed descriptions of the systems around the world we think were good models, including the Canadian system, and a statement of principles. We had every key player in the aviation community almost without exception on our working group. [House Committee on Transportation and Infrastructure chairman Bill] Shuster took our statement of principles to heart, and his bill is constructed along the lines we recommended.

We're trying to run a very complicated 24/7 enterprise under the same rules that apply to federal grant programs in terms of the pay scale and the procurement hurdles you have to go over. No one should be surprised that you don't get great outcomes when you do it that way. The Canadian system was set up in 1996 and, by all accounts, has done a great job of modernizing. Sadly, because I want to see the U.S. do what it has done since the Wright brothers and lead the world in aviation, in some ways, we're falling behind the Canadians. I'd like to see us free up our very able folks who manage the air traffic control system so they can do what needs to be done efficiently and at the lowest possible cost.

BTN: Where are we with the Next Generation Air Transportation System?

Burnley: It continues as a set of procurements. The FAA is doing the best it can within the constraints it has to deal with. The FAA right now has very strong leadership. If you go to a nonprofit group, you can go to the bond markets, like virtually every airport in America does routinely, and make long-term capital plans. You can do the same thing with the air traffic control system, but you cannot do that so long as it's a division of the FAA. The U.S. Treasury and [White House Office of Management and Budget] go nuts if you even talk about that, and it's against the law.

In the mid '80s, when I was at DOT and was the deputy secretary to Elizabeth Dole, we spent a couple of years convincing Congress that we should take National and Dulles airports, which at that time were a department of the FAA, and transfer them to a regional authority. Congress at first was very reluctant to give up control of the D.C. airports, but the singular argument that convinced them was that those airports could then go to the bond markets. If we hadn't been successful in convincing Congress of that, Dulles' main terminal would be half the size it is today, and Reagan National would still have as its main terminal what is now the A Concourse, the oldest part of the facility.

BTN: Will the ATC proposal be easier in a non-election year?

Burnley: Chairman Shuster plans to try to move it forward next year. I don't think [the fact that] it's an election year had anything to do with us not getting it done this year. With the airports, which was a far smaller proposal, it still took us over two years to educate and convince Congress it was a good idea. Chairman Shuster just unveiled his proposal last winter, so it was no surprise to me it might take longer than one session of Congress to go through the same educational process and debate. There is a reasonable chance of getting this done. It's not going to be easy. This day and age, getting any big idea through Congress is not easy, but on the merits, it's compelling as a proposal. The challenge those of us who support his efforts have is to educate and persuade other members. It's not a partisan proposal at all. The closest we came to this before was during the Clinton administration. At the beginning of his second term, they had a proposal called the U.S. Air Traffic Service [Corporation Act], which was a public nonprofit intended to do exactly what Shuster's proposal does.

BTN: The FAA reauthorization included PreCheck expansion. Is that a good idea?

Burnley: We have to be sure we use every tool at our disposal, starting with PreCheck. You don't want to do anything that compromises security, but there are ways like PreCheck and now the Clear program. Anything of that sort that makes it easier for people on the front lines to move people through the system and know they're safe is a good idea. The current leadership at TSA has done an excellent job this summer in addressing the snafus that were causing the horrible lines at some of the airports. In the short term, it seems to have been addressed. If the economy keeps growing, travel will keep growing, so you can't relax.

BTN: What about the provision requiring refunds of checked bag fees for lost or late luggage delivery?

Burnley: You have to be very careful in that area. I'm a skeptic of anything that puts the federal government back into the business of telling the airlines, on nonsafety issues, how to do business. From my perspective, those provisions were not necessary. The way they're written, the airlines will be able to live with them, but if I were writing that bill, I would not have included them. We can all find fault in specific instances, like when an airline loses your bag, but when you take a step back, it's an amazing system, and it's remarkable we move as many people with their luggage as successfully as we do everyday and at an incredibly low cost overall. My mantra in this area is do no harm. If the government goes far down that path, you'll find quickly that you're discouraging innovation.

BTN: Once we're past the election, what should the new administration's transportation priorities be?

Burnley: We still have countries with which we do not have Open Skies agreements. I hope the next administration will push toward Open Skies with those remaining countries. We've continued to make progress to include the Japanese gradually, but Open Skies agreements on the whole are a very healthy thing for our industry and our travelers, and I'd like to see them become ubiquitous. It would be great if the new administration enthusiastically embraced chairman Shuster's proposal and participated in the debate and education process next year. The administration of the FAA does not change with the change of administration because he's on a five-year term. There will perhaps be a new [transportation] secretary. If [Hillary] Clinton wins, [U.S. Secretary of Transportation Anthony] Foxx could be asked to stay on, but assuming there's significant turnover, I would hope the new leadership would take a look at Shuster's proposal early on.