Two airlines trade groups, Airlines for America (“A4A”) and the International Air Transport Association (“IATA”), each acting in a representative capacity on behalf of their members, filed a Joint Petition in the U.S. Circuit Court of Appeals in Washington, D.C. for review of the June 20, 2014 TSA Rule increasing the passenger security fee.

A4A’s members: Alaska Airlines, Inc., American Airlines, Inc., Atlas Air, Inc., Delta Air Lines, Inc., Federal Express Corporation, Hawaiian Airlines, Inc., JetBlue Airways Corp., Southwest Airlines Co., United Continental Holdings, Inc., United Parcel Service Co., and US Airways, Inc.

IATA is a nongovernmental international trade association founded in 1945 by air carriers engaged in international air services. IATA consists of 240 member airlines from 118 countries, representing 84% of the world’s total air traffic.

The Problem
A4A and IATA assert that TSA is ignoring the statutory fee cap as well as the intent of Congress in imposing the new security fee increase.

The statute provided that fees “may not exceed $2.50 per enplanement in air transportation or intrastate air transportation that originates at an airport in the United States, except that the total amount of such fees may not exceed $5.00 per one-way trip.” 49 U.S.C. § 44940(c) (2009). In order to implement the $5.00-per-one-way-trip maximum fee requirement, TSA promulgated a regulation limiting the application of the fee to no more than “two enplanements per one-way trip or four enplanements per round trip,” thus capping the fee at $5.00 per one-way trip and $10.00 per round trip. 49 C.F.R. § 1510.5 (2011).

Then, as part of the recent bipartisan budget deal, Congress simplified the fee structure by creating a flat $5.60 fee per one-way trip (regardless of the number of enplanements) with the intent of maintaining the existing round-trip cap of twice the maximum one-way trip fee. Section 44940(c) now is amended to state the security fee “shall be $5.60 per one-way trip in air transportation or intrastate air transportation that originates at an airport in the United States.”

Save on your hotel, spend on yourself
Congressional Intent
The Joint Petition points to two letters (attached as Exhibits B and C to the Joint Petition), one from Senator Patty Murray and Congressman Paul Ryan to Administrator John A. Pistole, TSA (May 6, 2014) and one from John A. Boehner to Secretary Jeh Johnson (May 20, 2014) that support their position that “Congress did not intend for the definition of a roundtrip to change as a result of [the Budget Act].”

Leaders of the House and Senate from both political parties have made clear that “[t]here is nothing about the language modification that reflects an indication to change the overall cap for air transportation fees,” and “[i]t is inaccurate to cite Congressional intent through the [Budget Act] as a basis for changes to the definition of a roundtrip.”

New Fee
The petitioners claim the TSA has now acts against the cap and express intent of Congress to create the new fee that began on July 21, 2014. A4A and IATA believe the law is clear, and are seeking the help of the courts to protect passengers.

By ignoring the cap and the intent of Congress, TSA increased the fee by as much as 236 percent, depending on a passenger’s itinerary. One of the agency’s own published examples shows a multi-stop itinerary with TSA taxes totaling $33.60, three times the intended limit.

TSA is overstepping its bounds,” A4A President and CEO Nicholas E. Calio said. “Ignoring the per-passenger cap and increasing taxes by as much as 236 percent on air travelers is an affront to the flying public and ignores Congressional intent. Air travelers are not an ATM for the government and should not be treated as such.”

The Campaign – “Don’t Be That Guy”
In conjunction with the Joint Petition, it appears A4A has launched a serious social media campaign to draw attention to its goals regarding the TSA security fee increase. The campaign centers around the website and includes the use of the hashtag #TSADontBeTHATGuy and a easy online form to generate a message to your Congressional representatives to protest the TSA’s “unauthorized tax increase…set to cost travelers $1 billion more annually.”

Ads include:

Airlines for America's ad against TSA fee increase.

Airlines for America’s ad against TSA fee increase.

Airlines for America's ad against TSA fee increase.

Airlines for America’s ad against TSA fee increase.

You can find the photo of the Ferrari in the ad here at the flickr account for Steve Brandon on or about September 4, 2008 and described as “Ferrari F430. The exact same Ferrari F430 Berlinetta that I had photographed in May and then immortalized as an oil pastel drawing returned to the parking lot of the Merivale Market plaza on Merivale Road in the Ottawa suburb of Nepean on an early September afternoon.”


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