Temporary Flight Restrictions

TEMPORARY FLIGHT RESTRICTIONS REGULATION: IS IT CONSTITUTIONAL? Condition of airline industry after Sept. TFRs and general aviation TFRs without information TFRs and business at busy airports TFRs Circles TFRs and young pilots TFRs: an ineffective measure Temporary flight restrictions (TFR) are considered unconstitutional by many quarters because they are seriously hurting economic conditions of the United States aviation. But speaking from legal point-of-view, we cannot declare any action taken for security reasons as unconstitutional.

This is because the federal government has Congress's permission to take appropriate measures to ensure security of the country, its landmarks, general public and important public figures such as the President and Vice president. But when these actions cross the limits of justice and start interfering with smooth operations of any industry, a petition can be filed against them in U.S. courts to determine the legality of those actions. No such action has so far been taken against TFRs, which were imposed in the wake of September 11.

The paper thus studies the issue closely to find out why people feel that TFRs should be declared unconstitutional and how it is contributing towards bad economic conditions in the country. TEMPORARY FLIGHT RESTRICTIONS: UNCONSTITUITIONAL? INTRODUCTION Temporary flight restrictions were imposed after September 11 in order to protect America public from terrorist attacks. These restrictions had a huge negative impact on the airline industry in specific and on economy in general.

This is the reason why many felt that such restrictions should be declared unconstitutional even if the objective behind such measures is highly constitutional. TFR regulations have been in operation since 1971 but amendments that have taken place over the years have expanded the scope of this regulation. For example while formerly it could be invoked at certain given occasion or days, since September 11, they are being used whenever the government feels a certain site can become potential target for terrorist attacks.

In order to understand why temporary flight restrictions were imposed and whether or not they are unconstitutional, we must first take a look at the economic conditions of the country after September 11. This will help us understand why any flight restrictions can further worsen the United States economic downturn. Temporary flights restrictions are issued by Federal Aviation Authority (FAA) to protect certain sites from any kind of threat.

Before September 11, the main purpose of such restrictions was to protect government military sites from spy planes or to prevent possible collusion of non-participating planes during air shows. But since the tragic incident of September 11, things have changed dramatically for the airline industry as many commercial planes are now being forced to take new routes to reach destination because of FAA flight restrictions.

Al Carrozza (2001) writes, " [In the wake of September 11] The FAA has expanded the range of "class B" airspace in New York, Boston, Washington and around other high-density airports, which means only military and certain commercial aircraft are allowed to fly in the zone. They' ve also banned such flights in a 30-nautical-mile radius of the 30 biggest U.S. cities.

That is keeping the planes away from choice venues with big crowds, like the Meadowlands and Yankee Stadium." This brings us to a very important question, does the government have the right to impose such restrictions when it is clear that such moves would hurt the financial condition of commercial airlines, aerial advertising, flying schools and other related businesses. METHODOLOGY: For this research paper, the author closely studied impressive collection of relevant material on the subject. Research material was collected from magazines, newspapers, aviation web sites and FAA guides.

The material thus gathered was thoroughly studied in order to see how FAA restrictions are affecting the aviation industry in the United States. Various charts of the areas currently under TFR were also examined to see how restricted circles are formed and whether or not they can be effective as deterrents. In this paper, the author has presented review of the material that was collected for research along with conclusions extracted from that literature.

LITERATURE REVIEW AND DISCUSSION Condition of airline industry after September 11 Temporary Flight restrictions are aimed at protecting certain landmarks, famous figures and American public from possible attacks but these restrictions are bound to affect the economy in the long run. It is important to take a look at the economic conditions of the country because this will help us understand why TFR can be unconstitutional.

The United States economy had already been predicted to go into recession when the tragedy of September 11 struck and accelerated the downward spiral of economic conditions of our country. The economy crumpled as many industries in the country were hit harshly by the attacks and the slow down finally took shape of recession. After three-quarters of poor GDP growth, it was almost certain that the economy was heading towards recession but September 11th attacks only accelerated the negative process.

After September 11 most industries were hit badly and many of them ran for Chapter 11 protection. While every business suffered, it was the airline and tourism industry that was hit the hardest. Many major airlines in the country were either forced to cut their flights schedules to half or operate as per the old schedule but with lesser passengers per flight.

The hardest hit was of course the American airline, which was the primary player in the attacks because it was the aircrafts of this company, which the terrorist used in the attacks. The company has since then announced huge cuts in its flight schedules and has also laid-off many of its workers. But it is not just the American Airlines, all other airline companies in the industry faced similar problems with the exception of southwest as it is still operating as per old schedule.

Many are of the view that the airline industry will not be able to recover for some time even after the government announced a $15 billion bailout package for the industry. The workers of this industry are facing other problems, as many of them have been laid off, they are uncertain about their future and this has resulted in higher unemployment in the country.

So far more than 140,000 workers of the airline industry have lost their jobs due to the attacks and more layoffs might result if something is not done quickly to improve the situation. In October last year, the performance of United Airlines was so dismal that the CEO James Goodwin announced clearly that bankruptcy was a real possibility if the situation in the travel sector did not improve. (Business Week, 2001) The airline industry laid-off more than 150,000 workers thus worsening the unemployment problem in the country.

The Mirror reported, "American Airlines and Continental Airlines are shedding 20,000 redundancies each. Delta Airlines is cutting 13,000 jobs by the end of 2001 and will reduce capacity by 15 per cent. British Airways has already cut 7,000 jobs. Boeing, the world's biggest jet maker, is slashing between 20,000 and 30,000 jobs next year." (Airlines count the cost, The Mirror, 2001) TFRs and general aviation Under such conditions, Bush administration was aware of the fact that further restrictions on use of airspace would result in complete destruction of the airline industry.

Even temporary halting flights could cause great damage to airline industry because of the weak financial structure of most commercial airlines. But these TFRs are needed from time to protect public places and figures from further attacks. But if we closely measure the long-term effects of TFR, we would be able to see why they are not a feasible option. Because of TFR not being commercially viable, it is felt that government crosses the limits of its federally granted rights when it disallows use of airspace above certain areas.

Kathy McCabe of Globe Correspondent (2001) writes about negative impact of temporary flight restrictions and shows how it is hurting airline businesses. In her article titled 'Airspace limits hurt flight schools', McCabe writes, "Severe restrictions on airspace within 20 miles of Logan Airport have crippled flight schools, fuel suppliers, and other small aviation businesses at Beverly Municipal Airport and Hanscom Field in Bedford. The restrictions, put in place after the Sept.

11 terrorist attacks, also have grounded most recreational pilots, who fly under so-called "visual flight rules," meaning they do not use instruments to fly a plane. Only instrument-trained pilots may fly within the 20-mile restricted airspace. Everyone else must be accompanied by a flight instructor, according to the Federal Aviation Administration." TFRs without Information This proves that temporary flight restrictions can often hurt economic conditions and also highlights another very important point.

Government's measures regarding flight restriction can be considered unconstitutional when the intelligence agencies do not have any information, which can warrant such actions. But if the government knows something which others are unaware of, then its actions can be granted constitutional cover. This means that sometimes government takes action because of the information provided by intelligence agencies but at others restrictions are imposed without any kind of warranty.

In the latter case, the government can be held responsible for contributing to economic disaster but in the former case, its actions would be absolutely constitutional. This is the point which FAA spokesman in McCabe's article, "The National Security Council ordered the airspace restrictions around 30 major airports across the country immediately following the Sept. 11 attacks. Since then, the restrictions have been either lifted or eased in several major markets.

In Boston, although the restricted airspace was reduced to 20 from 30 miles, the new rules are not likely to be eased further anytime soon. "The restrictions remain in place indefinitely," said Jim Peters, an FAA spokesman in New York. "I can only make the assumption that [federal intelligence officials] have information that warrants these restrictions be kept in place." TFRs and business at busy airports Not only is it hurting the airline industry, federally imposed flight restrictions can also cause a get deal of damage to busy airports.

The government usually imposes restrictions on airports where traffic is usually the heaviest, without realizing that such restrictions can cost airports hundreds of flights, thousands of passengers and millions of dollars. This is because with flight restrictions that disallow use of certain portion of airspace, many fights are either to be diverted to other airports or they are forced to change their landing schedule.

This can have a very negative impact on the airports' financial conditions and many are of the view that FAA doesn't even know what area should be restricted. In an Editorial feature in Newsday, (2001), the author condemned the FAA's actions and urged the authority to use common sense when imposing restrictions.

Discussing the problems caused by senseless restrictions imposed by FAA in the wake of September 11, the author writes, "The broad cloak of security that the federal government has thrown over aviation in metropolitan New York is economically strangling Republic Airport in East Farmingdale. The government should act quickly to make its restrictions work without killing the airport. In the wake of the Sept. 11 terrorist attacks, the Federal Aviation Administration imposed a temporary flight restriction here, banning some kinds of flights within a circle of 25 nautical miles from John F.

Kennedy International Airport. The most hurtful provision prohibited all flights by small general aviation aircraft using visual flight rules, the overwhelming majority of Republic's business. That action cut daily flight activity by 96%. The airport's 50 businesses are losing $200,000 a day." TFR Circles While people agree that government needs to be more vigilant and security is certainly a big issue on its agenda, still it is important to exercise some caution when taking security related measures.

This is because if these measures later hurt the airline industry and several other related businesses, the moves made by the government would not only become unconstitutional but to certain degree criminal too. The government thus needs to understand that vigilance must not lose sense of direction and temporary flight restrictions should be formulated and imposed carefully. Many are of the view that circles of airspace that are put under restriction are not calculated wisely as they are anything but foolproof methods to ensure security.

The author of Newsday Editorial further adds, "No one doubts the need for vigilance, but the leaders of the airport, used mostly by corporate and private planes, have raised good questions about the way the FAA chose to be vigilant. One question is whether the circle should have been centered at JFK or on the high-risk area to be protected in Manhattan. As a result of the decision to center it on JFK, the circle covers Republic, but it excludes New Jersey airports that are actually closer to Manhattan.

The size of the circle is another issue. Just yesterday, the airport learned that the FAA is reducing it from 25 miles to 18, but that does not help Republic, which just barely falls within the smaller circle." TFRs and Young Pilots Thus it is clear that flight restrictions imposed by federal government can seriously hurt businesses especially those connected with aviation.

In this sense we can claim the flight restriction measures are unconstitutional and if we look at the way it is contributing towards unemployment, we almost become certain that Courts must take some actions against TFRs. The section of pilots that get hurt the most are the ones for whom skies remain heavily restricted even after some seasoned pilots have been granted permission to enter forbidden area.

These pilots are usually the ones getting training from various flying schools across the country and they are in dire need of applying their flying skills in heavy traffic airspace in order to be able to get a license. But since September 11, they are being asked to stay away from certain heavy traffic areas because they are potential targets for terrorist attacks. But the future of these pilots is in jeopardy if flight restrictions are not suspended from most dense areas of the country.

During a television discussion on the subject of TFR, ANDY BOWERS said, "It's not that all private flights are grounded. Pilots with an advanced instrument rating and who file flight plans to go from one point to another can do so, except in New York and Washington. But in 28 other major cities, pilots are not allowed to fly under what are known as visual flight rules, or VFR.

Phil Boyer, president of the Aircraft Owners and Pilots Association, says that affects the vast majority of pilots." To this Boyer himself replied, "Ninety percent of all flying is under visual flight rules, it's not on instrument flying.

And if you were to look at the pilot population, you have about 15% only of the 620,000 pilots who are licensed in this country that are current on and able to fly on instruments at this moment." TFRs: an ineffective and futile security measure Whatever are the flight restrictions imposed in the wake of September 11, most of them are seriously hurting the American public and businesses and on top of that many are of the view that these restrictions are not very effective too.

According to FAA, any person violating the airspace restrictions would be intercepted midair. In other words, such planes would probably be gunned down but this is according to many experts a highly ridiculous penalty. This is because in the most cases, the area, which is to be protected, can be reached within 20 seconds and there is a very dim chance that government would be able to intercept pilots within such short time.

While such steps are being taken for the security of the country, we need to understand that senselessly imposing these restrictions would hurt both the economy and the security of the homeland. While the constitution allows the government to take appropriate measures to ensure security of the homeland, it doesn't grant permission for moves that could prove detrimental to economy or public in the long run.

Another important thing to keep in mind is that TFRs are not unconstitutional as long as the government has some information that certain areas can become targets of terrorist attacks. But the authenticity of this information should be checked thoroughly before taking any action and secondly, the restrictions must be removed as soon as the threat is over.

This is because prolonged restrictions can not only become a liability for businesses in the country, they can also turn ineffective as terrorists in most cases can find an alternative route to their target. As we mentioned above, it is not the temporary flight restrictions or their objective which are unconstitutional but the consequences of such measures along with the way these restrictions are implemented that can make government's actions in this connection unconstitutional.

Some experts actually measured the effectiveness of restricted airspace circles to find out if they would really be able to deter the terrorists and to our utter disappointment, they found that the answer was no. They concluded that meaningless attempts to protect the American public are doing more harm than good and therefore government moves in this connection should be declared unconstitutional unless intelligence agencies can back it with some significant piece of information.

HAL FISHMAN (2002) writes, "The story about flight restrictions around our treasured national landmarks is a good example of homeland security. Right? Wrong! It's completely ridiculous. Let's take the Statue of Liberty for example. The flight restriction is for a one nautical mile radius from the statue to 1500 feet altitude. Now, let's say I am one of those evildoers determined to crash into this symbol of American freedom. Flying my own airplane, which is capable of easily covering three miles in one minute, I can.