Before: Silberman, Ginsburg, and Henderson, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with No. 96-1269
On Petitions for Review of Orders of the United States Department of Transportation
Walter A. Smith, Jr. argued the cause for petitioner Air Transport Association of America, with whom Allen R. Snyder, Jonathan L. Abram, and Jonathan S. Franklin were on the briefs.
Steven S. Rosenthal argued the cause for petitioner City of Los Angeles, with whom Ronald N. Wilson, Stanley A. Zamel, Ardis M. Conant, Leilani F. Battiste, and Breton K. Lobner were on the briefs. G. Brian Busey entered an appearance.
Thomas L. Ray, Attorney, United States Department of Transportation, argued the cause for respondents, with whom Nancy E. McFadden, General Counsel, and Paul M. Geier, Assistant General Counsel, were on the brief. Marion L. Jetton and Robert B. Nicholson, Attorneys, United States Department of Justice, entered appearances.
Steven S. Rosenthal, Ronald N. Wilson, Stanley A. Zamel, Ardis M. Conant, Leilani F. Battiste, and Breton K. Lobner, Attorneys, City of Los Angeles Department of Airports, filed the brief for intervenor City of Los Angeles. G. Brian Busey entered an appearance.
Allen R. Snyder, Walter A. Smith, Jr., Jonathan L. Abram, and Jonathan S. Franklin filed the brief for intervenor Air Transport Association of America.
Scott P. Lewis and Kenneth W. Salinger filed the brief for amici curiae Airports Council International-North America and American Association of Airport Executives. Patricia A. Hahn entered an appearance.
Opinion for the Court filed by Circuit Judge Silberman.
Petitioners City of Los Angeles and the Air Transport Association of America, an airline trade association, each challenge the Department of Transportation's Final Policy Regarding Airport Rates and Charges. We grant the petitions for review and remand.
Airports are required by statute to charge aeronautical users reasonable fees. *fn1 Section 511 of the Airports and Airways Improvements Act, codified at 49 U.S.C. Section(s) 47107 (1994), requires an airport that accepts federal grant money (or land) to assure that the airport will be available for public use on reasonable conditions and without unjust discrimination; this assurance has been interpreted to include a requirement that the airport's fees be reasonable. See New England Legal Found. v. Massachusetts Port Auth., 883 F.2d 157, 169-70 (1st Cir. 1989). Similarly, the Anti-Head Tax Act allows a publicly owned airport to collect only reasonable landing fees and charges from aeronautical users. See 49 U.S.C. Section(s) 40116(e)(2) (1994); Northwest Airlines v. County of Kent, 510 U.S. 355, 366 (1994). Although the Department of Transportation (DOT) has adjudicated disputes over the reasonableness of airport fees under these statutes, see, e.g., New England Legal Found., 883 F.2d at 163-66, until recently it never promulgated regulations defining what it thought to be reasonable ...