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The Deregulated Skies – United States “Sunset” Legislation and International Air Travel
Published online by Cambridge University Press: 21 May 2009
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Transportation – in other countries a public service owned and operated by government authorities – remains, in the United States, in the hands of private companies, following a pattern established with the construction of the Erie Canal and the Baltimore and Ohio Railroad in the early nineteenth century. To a visitor from Europe, an American airport lobby seems a market-place of competing firms.
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References
1. Federal Aviation Act of 1958, 72 Stat. 737, as amended by 75 Stat. 467, 76 Stat. 143, 82 Stat. 867, 84 Stat. 921, 49 U.S.C. 1301 (1970). Motor carriers and railroads are subject to the Interstate Commerce Act, 49 U.S.C. 1 et. seq. (1980). In the past decade all these laws have been drastically curtailed, under the concept of “regulatory reform.”
2. 52 Stat. 973(1938).
3. Federal Aviation Act, 72 Stat. 732, 49 U.S.C.A. 1302 (1958).
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11. The author wishes to express his appreciation to North Dakota attorney John A. Thelen for research assistance in preparing this section.
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30. 49 U.S.C. § 1551(1980).
31. In the past, the CAB had made it difficult for airlines to exit the market by dropping service to small and medium-sized communities. A certain amount of cross-subsidy resulted from this regulatory behavior. See Cohen, , New Air Service and Deregulation: A Study in Transition, 44 Journal of Air Law & Commerce (1979) pp. 695, 702. The Deregulation Act contains no restrictions against an airline exiting a market, unless it is declared to be “Essential Air Service” under Section 419 of the Act, and thus eligible for subsidy. Most of this service is now performed by commuter airlines, using small planes. 49 U.S.C. § 1389 (1980)Google Scholar.
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40. 49 U.S.C. § 1371(d)(1)(1980).
41. 49 U.S.C. § 1372(b)(1980).
42. “Closed-door restrictions,” also known as “blind sectors”, refer to segments of a flight over which no local passengers can be carried. Although the Airline Deregulation Act does away with closed-door restrictions on domestic carriers, airlines in international transportation may have restrictions placed in their certificates of authority.
43. Only US citizens or corporations mostly owned by US citizens can receive certificates for air travel within the United States. Even after deregulation, foreigners cannot control US airlines, although two major US railroads are owned by Canadian railways. Foreign air carriers may receive permits to receive and discharge passengers in the United States. See Gertler, , Nationality of Airlines: A Hidden Force in the International Air Regulation Equation, 48 J. Air L. & Comm. (1982) p. 51Google Scholar.
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59. Ibid. at pp. 4–73. The Civil Aeronautics Board, the Interstate Commerce Commission, and the Federal Maritime Commission are known as “independent regulatory agencies” – created by Congress, whose members sit for a fixed term. The Department of Transportation is a “cabinet-level agency”, where its Secretary is part of the President's cabinet, serves at his pleasure, and had little political independence from the current Administration.
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65. Pub. L. No. 96–192, sec. 17, 94 Stat. 42 (1980).
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67. Federal Aviation Act, sec. 1002(j), 49 U.S.C. 1482 (1980).
68. C.A.B. Order 78–6–78, 9 June 1978.
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74. This discussion of the new Canadian air policy is adapted from Thoms, , Air Deregulation Comes to Canada, 6 Canadian Law Newsletter (07 1984) pp. 8–10Google Scholar.
75. Contribution of the European Communities to the Development of Air Transport Services, Memorandum of the Commission, adopted on 4 July 1979, Com. (79) 311, reprinted in Bulletin of the European Communities, Supplement 5/79; Decision of the EC CouncilofMinisters of 20 December 1979 setting up a consultation Procedure on relations between Member States and Third Countries in the field of air transport and on action relating to such matters within international organizations. EC OJ No. L 18/24, 24 January 1980.
76. Lowenfeld, , op.cit., pp. 5–114. Professor Lowenfeld also points out that a two-tier market exists in Europe, one operated by the scheduled carriers under bilateral agreement, and another between Northern Europe and Mediterranean resorts, operated by charter airlines. Id.Google Scholar
77. Civil Aviation Policy (Communication and Proposals by the Commission to the Council), Com. (84) 72 Final, para. 43 (15 March 1984).
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