Aircraft Owners and Pilots Ass'n v. Federal Aviation Administration

• Decision Date: 05 June 1979
• Docket Number: No. 77-1904,77-1904
• Citation: 195 U.S.App.D.C. 151,600 F.2d 965
• Parties: AIRCRAFT OWNERS AND PILOTS ASSOCIATION, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent, WSET, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 965

600 F.2d 965

195 U.S.App.D.C. 151

AIRCRAFT OWNERS AND PILOTS ASSOCIATION, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent, WSET, Inc., Intervenor.

No. 77-1904.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 9, 1979.

Decided May 17, 1979.

Rehearing Denied June 5, 1979.

Charles J. Peters, Washington, D. C., with whom John S. Yodice, Washington, D. C., was on the brief, for petitioner.

Mark H. Gallant, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondent.

Thomas J. Keller, Washington, D. C., was on the brief for intervenor.

Before BAZELON, TAMM and WILKEY, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

Petitioner, Aircraft Owners and Pilots Association (AOPA), seeks direct review ¹ of a determination of the Federal Aviation Administration (FAA) that the proposed construction of a television antenna tower on a site near Thaxton, Virginia, would not constitute a hazard to air navigation. We find the informal adjudicatory procedures employed by the FAA created a record which contains substantial evidence supporting the no-hazard decision. Accordingly, we affirm.

I

The Federal Aviation Act of 1958 (Act), 49 U.S.C. §§ 1301-1542 (1976), authorizes the FAA to promote air safety, 49 U.S.C. §§ 1303(a), 1655(c)(1) (1976), and to regulate the use of navigable air space, 49 U.S.C. §§ 1348(a), 1655(c)(1) (1976). Section 1101 of the Act specifically recognizes the threat that tall structures may pose to air safety and provides that the FAA

shall, by rules and regulations, or by order where necessary, require all persons to give adequate public notice, in the form and manner prescribed by the (Administrator), of the construction or alteration, or of the proposed construction or alteration, of any structure where notice will promote safety in air commerce.

49 U.S.C. §§ 1501, 1655(c)(1) (1976).

Pursuant to these statutory powers, the FAA promulgated Part 77 of the Federal Aviation Regulations, 14 C.F.R. § 77 (1978). The pertinent provisions of these regulations require each person who proposes construction or alteration of structures of particular dimensions and within specific proximity to airports to notify the FAA. 14 C.F.R. §§ 77.11, .13, .15. The FAA uses this information to make "(d)eterminations of the possible hazardous effect of the proposed construction or alteration on air navigation." 14 C.F.R. § 77.11(b) (2). The regulations set out various standards against which proposals may be evaluated, See 14 C.F.R. § 77.23(a), and also require the FAA to conduct aeronautical studies in certain circumstances, See 14 C.F.R. §§ 77.19(c)(3), .35(a).

The initial hazard/no-hazard decision is made by a staff member in the FAA's Air Traffic Division. That decision is final unless the Administrator of the FAA (Administrator) grants discretionary review. 14 C.F.R. § 77.37. The Administrator's review may be based on written materials or on a public hearing held in accordance with procedures prescribed in 14 C.F.R. §§ 77.41-.69, .37(c) (1)-(2).

Once issued, a hazard/no-hazard determination has no enforceable legal effect. ² The FAA is not empowered to prohibit or limit proposed construction it deems dangerous to air navigation. Nevertheless, the ruling has substantial practical impact. The Federal Communications Commission, for example, considers the FAA's classification in granting permits for the construction of broadcast towers. ³ 47 C.F.R. § 17.4 (1978). The ruling may also affect the ability of a sponsor proposing construction to acquire insurance or to secure financing. Primarily, however, the determination promotes air safety through "moral suasion" by encouraging the voluntary cooperation of sponsors of potentially hazardous structures. Air Line Pilots' Association International v. FAA, 446 F.2d 236, 240 (5th Cir. 1971).

II

This case arises out of the proposed construction of a television antenna tower by WSET, Inc. (WSET) ⁴ near Thaxton, Virginia. ⁵ The initial height of the tower, 1,506 feet above ground level, ⁶ exceeded the 200 foot notice standard set out in Subpart B of the FAA's regulations, 14 C.F.R. § 77.13(a)(1). Accordingly, on April 28, 1976, WSET notified the FAA of its plan to construct the tower. On May 12, 1976, the FAA acknowledged receipt of the notice, stated that it would conduct an aeronautical study to determine the effect of the proposed tower upon air safety, and invited the comments of interested persons.

AOPA, ⁷ among others, ⁸ lodged written objections to the tower construction with the FAA. The objecting parties primarily contended that the tower would interfere with Visual Flight Rule (VFR) flyways ⁹ and would require an increase in minimum altitudes for radar vectoring ¹⁰ in the area. ¹¹ See Joint Appendix (J.A.) at 4-14, 31.

On July 30, 1976, the FAA held an informal meeting to solicit further comments of interested persons. See 14 C.F.R. § 77.35(b)(4). Opponents of the tower repeated their concern that it would interfere with VFR operations, especially during marginal weather conditions. They also asserted that the tower would impair Instrument Flight Rule (IFR) operations ¹² and Air Traffic Control procedures.

The FAA began its investigation by surveying the number of VFR flights traveling between Lynchburg, Virginia, and Roanoke, Virginia, within close proximity to the tower. During the one-month period of June 23 to July 26, 1976, the survey showed twenty flight plans were filed in which aircraft passed within two miles of the site at an altitude of 3,500 feet or below. J.A. at 16.

On November 2, 1976, the FAA conducted a comprehensive on-site flight inspection and evaluation of the tower proposal, including simulation of all phases of VFR operations. The study focused particularly on IFR and VFR interference and concluded that the tower would have "no substantial adverse effect on aeronautical operations" provided it was equipped with high intensity white obstruction lights. Id. at 33. The FAA, relying on this study, gave the tower a no-hazard rating on November 22, 1976. Id. at 30-35.

Within a month of the initial decision, AOPA petitioned the FAA for review. See 14 C.F.R. § 77.37. The petition reasserted previously raised objections with regard to VFR and IFR operations. AOPA further claimed that the FAA's decision violated specific hazard guidelines set out in FAA Handbook 7400.2B (Handbook).

The FAA Director of Air Traffic Service ¹³ granted discretionary review by notice on January 10, 1977. The notice stated that the review would be conducted "without public hearing" on "the basis of written materials" in accordance with 14 C.F.R. § 77.37(c)(1). J.A. at 53-54. The notice also stated that the review would "consider all material relevant to the question of whether the proposed construction would have a substantial adverse effect on the safe and efficient use of airspace." Id. at 54. To this end, the FAA invited interested persons to comment.

On January 25, 1977, ATC Associates, Inc. (ATC), aviation consultants for WSET, submitted remarks with respect to AOPA's petition for review. On February 15, 1977, AOPA responded to ATC's report, suggesting that the FAA establish an antenna farm ¹⁴ southwest of Roanoke and relocate the tower in that area. ¹⁵ By letter dated March 2, 1977, the FAA stated that the proposal was incorporated into the record and would be considered "in the discretionary review." ¹⁶ Id. at 83.

On March 14, 1977, the FAA conducted another in-flight evaluation of the site. It again surveyed the VFR flights operating between Lynchburg and Roanoke at altitudes below 4,500 feet. According to the survey, only four such flight plans were filed between March 1 and 13, 1977. Id. at 84, 116.

After the protesting parties renewed their objections, the FAA engaged in informal negotiations with ATC concerning possible relocation of the tower. ¹⁷ ATC agreed to reexamine the proposal and asked the FAA to hold review in abeyance pending further exploration of WSET's alternatives. On May 17, 1977, ATC advised the FAA that WSET was willing to lower the tower height at the Thaxton site by 300 feet. Id. at 91. The FAA informed WSET and other participants in the proceeding that review would continue based on a reduced height of 1,206 feet above ground level. The FAA allowed ten days for comment. Id. at 92. AOPA and others ¹⁸ indicated that the 300 foot decrease did not alter their prior objections.

On July 12, 1977, the Director of Air Traffic Service ¹⁹ affirmed the no-hazard determination. The Director thoroughly reviewed the evidence, evaluated the objections, and concluded that the tower constituted no hazard to air safety at the reduced height, provided it was equipped with high intensity obstruction lights. Id. at 107-18. The FAA forwarded a copy of this affirmation and accompanying opinion to the FCC. ²⁰

AOPA filed a petition for reconsideration on July 29, 1977. The FAA denied the request. This appeal ensued.

III

At the outset, both parties squarely call upon us to define the parameters of our review. Section 1006(e) of the Act provides that "findings of fact by the (Civil Aeronautics) Board or the (Administrator of the FAA), if supported by substantial evidence, shall be conclusive." 49 U.S.C. § 1486(e) (1976). The question presented is how should a court apply the substantial evidence standard of review to an informal adjudication during which the agency decisionmaker receives information through nonadversary proceedings and written submissions, rather than formal, trial-type hearings. The FAA contends that the purpose of substantial evidence review cannot be served by application to informal adjudication not held on a formal record. The FAA urges, instead, application of the arguably less rigorous arbitrary and capricious...