BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

------------------------------------------------------------------------

:

UNITED AIRLINES, INC., :

:

Complainant, :

v. : Docket FAA-16-14-____

:

THE PORT AUTHORITY OF NEW YORK :

AND NEW JERSEY, :

:

Respondent. :

:

------------------------------------------------------------------------

COMPLAINT OF 

UNITED AIRLINES, INC. UNDER 14 C.F.R. PART 16

AGAINST THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY

Communications with respect to this document should be addressed to:

Keith J. Harrison 

Gerald F. Murphy

Steven J. Seiden

CROWELL & MORING LLP

1001 Pennsylvania Avenue, NW 

Washington, DC 20004

(202) 624-2500

Robert S. Span

Alan K. Steinbrecher

Sophy Chen

STEINBRECHER & SPAN LLP

1155 F Street, N.W., Suite 1050

Washington, DC 20004

(202) 559-8680

rspan@steinbrecherspan.com

Counsel for United Airlines, Inc.
i

TABLE OF CONTENTS

Page No.

I. INTRODUCTION AND OVERVIEW................................................................. 1

II. CERTIFICATION. .............................................................................................. 9

III. JURISDICTION.................................................................................................. 9

IV. FACTS. .............................................................................................................. 11

A. BACKGROUND............................................................................................... 11

1. Relevant Parties. ........................................................................................ 11

2. EWR Generates Huge Revenue Surpluses While Charging The 

Highest Fees In The Nation....................................................................... 12

3. The Port Authority Diverts Staggering Amounts Of Airport Revenues 

To Subsidize Money-Losing Operations. ................................................... 15

4. The Port Authority Improperly Diverts Funds to Pay for Non-Port 

Authority Projects ...................................................................................... 16

5. The Flight Fee Formula At EWR. ............................................................. 18

B. THE PORT AUTHORITY’S INSATIABLE NEED FOR MONEY DRIVES 

EXCESSIVE AIRPORT FEES. ....................................................................... 22

1. Asset Overbreadth And Mismanagement. ................................................ 24

2. Insufficient Labor Cost Controls. .............................................................. 27

3. Structural Dysfunction. ............................................................................. 32

C. THE PORT AUTHORITY HAS MONOPOLY POWER................................. 33

1. The Critical Importance Of The NYC Metro Area Airline Market.......... 34

2. The Port Authority Controls The NYC Metro Area Airports. .................. 35

3. The Port Authority Exploits Its Monopoly Power To Impose 

Unreasonably High Fees At EWR. ............................................................ 36
ii

4. The EWR Flight Fee Puts United At A Competitive Disadvantage. ....... 36

D. THE PORT AUTHORITY IS CHARGING UNREASONABLE FEES AT 

EWR. ................................................................................................................ 40

1. ARFF........................................................................................................... 40

2. Security Costs............................................................................................. 45

3. Administrative Costs.................................................................................. 47

E. OTHER UNREASONABLE CHARGES......................................................... 48

F. UNITED’S GOOD FAITH EFFORTS TO RESOLVE THIS DISPUTE. ....... 49

V. LEGAL ANALYSIS........................................................................................... 51

A. THE FAA’S AUTHORITY TO CONSIDER THIS FEE CHALLENGE......... 51

1. The FAA Has Jurisdiction Under Part 16 To Investigate The Port 

Authority’s Violation Of Sponsor Assurances. .......................................... 51

2. The FAA Has Jurisdiction To Consider Challenges To Rates Set By 

Written Agreement..................................................................................... 53

B. THE EWR FLIGHT FEE VIOLATES FEDERAL LAW. ............................... 55

1. Overview..................................................................................................... 55

2. The EWR Flight Fee Is Not Reasonable.................................................... 56

a. The EWR Flight Fee Is Not Reasonable Because It Generates A 

Profit...................................................................................................... 56

b. The EWR Flight Fee Is Not Reasonable Because It Includes 

Unreasonable Expenditures. ................................................................ 61

c. The EWR Flight Fee Is A Result Of The Port Authority’s Monopoly 

Power..................................................................................................... 64

d. The EWR Flight Fee Is Not Reasonable Because It Is Unjustifiably 

High Compared To The Landing Fees Charged By Other Airports. .. 65
iii

e. The EWR Flight Fee Is Not Reasonable Because The Fee Is 

Excessive In Relation To The Benefits Conferred. .............................. 66

3. The EWR Flight Fee Violates Federal Law Because The Methodology 

By Which It Is Calculated Is Not Transparent......................................... 68

4. The EWR Flight Fee Unlawfully Discriminates Against EWR Users..... 71

5. The Port Authority Illegally Diverts Aeronautical Revenues to Fund 

Non-Port Authority Facilities .................................................................... 72

PRAYER FOR RELIEF ............................................................................................... 75
 

BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

------------------------------------------------------------------------

:

UNITED AIRLINES, INC., :

:

Complainant, :

v. : Docket FAA-16-14-_____

:

THE PORT AUTHORITY OF NEW YORK :

AND NEW JERSEY, :

:

Respondent. :

:

------------------------------------------------------------------------

COMPLAINT OF 

UNITED AIRLINES, INC. UNDER 14 C.F.R. PART 16

AGAINST THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY

I. INTRODUCTION AND OVERVIEW.

1. Under federal law, the Port Authority of New York and New Jersey 

(“Port Authority”) is required to operate Newark Liberty International Airport 

(“EWR”) “for the use and benefit of the public, on fair and reasonable terms, and 

without unjust discrimination.” 14 C.F.R. Part 152, App. D, § II.20.

1 In fact, 

however, the Port Authority operates EWR for its own benefit, contrary to the 

 

1 See also FAA Airport Compliance Manual, FAA Order 5190.6B, App. A. 

“Airport Sponsor Assurances.” § 22.a. (“Sponsor Assurances”) (requiring airport 

sponsors to “make the airport available as an airport for public use on reasonable 

terms . . .”).
2

interests of the traveling public and the aeronautical users of the airport, imposing 

excessive, unreasonable, and discriminatory charges to generate huge surpluses 

that are siphoned off to non-aeronautical operations.

2. In this Complaint under Part 16 of the Federal Aviation Regulations, 

made pursuant to 14 C.F.R. §§ 16.1, et seq., United Airlines, Inc. (“United”) requests 

that the Federal Aviation Administration (“FAA”) institute an investigation under 

14 C.F.R. § 16.29 into the failure of the Port Authority to comply with its federal 

grant assurances and other statutory obligations2 relating to airport fees and other 

actions at EWR. 

3. Specifically, such an investigation is necessary because the Port 

Authority, as the operator of EWR:

 charges aeronautical users, including United,3 exorbitant and 

unreasonable rates;

 uses a fee methodology that is not cost-based and lacks transparency;

 fails to make EWR available on reasonable terms;

 generates excessive surplus revenues in order to subsidize nonaeronautical functions;

 

2 See Sponsor Assurances (requiring airport sponsors to comply with a 

system of sponsor assurances contained in grant-in-aid agreements issued under 

the Airport and Airway Development Act of 1970, as amended, 49 U.S.C. §§ 41701 

et seq.); see also 14 C.F.R. Part 152, App. D. (requiring grant applicants to certify 

that they will comply with prescribed assurances). 

3 United has standing to file this Complaint as an airline operating at EWR 

that is “directly and substantially affected by any alleged noncompliance” with the 

Sponsor Assurances. See 14 C.F.R. § 16.23(a). 
3

 improperly diverts airport revenue; and

 unjustly discriminates among aeronautical users

in violation of the Airport and Airway Improvement Act (49 U.S.C. §§ 47101, et seq.) 

(“AAIA”); the Anti-Head Tax Act (49 U.S.C. § 40116) (“AHTA”); FAA, Policy 

Regarding Airport Rates and Charges, 78 Fed. Reg. 55330 (Sep. 10, 2013) (“Rates & 

Charges Policy”); the Sponsor Assurances; the Airline Deregulation Act (the “ADA”) 

(49 U.S.C. §§ 41713, et seq.); and FAA, Policy and Procedures Concerning the Use of 

Airport Revenue, 64 Fed. Reg. 7696 (Feb. 16, 1999).

4. The Port Authority’s motivation to charge excessive rates is evident: 

EWR generates huge surplus revenues above its reasonable costs, which the Port 

Authority then uses to subsidize its other vast and loss-making non-aeronautical 

operations. Since 2004, the Port Authority has diverted more than $2 billion from 

the New York area airports to non-airport uses. Instead of functioning in 

accordance with its Sponsor Assurances and as a prudent airport proprietor that 

charges users only what is necessary to cover its aeronautical costs, the Port 

Authority systematically generates excessive surpluses at EWR through 

unreasonable fees, and then diverts airport revenues on a massive scale. The Port 

Authority’s limited legal ability to divert airport revenue does not, however, give it

carte blanche to make airlines pay for its non-airport projects with excessive and 

unreasonable fees. United and other airlines at EWR, and ultimately the traveling 

public, pay the price to the tune of hundreds of millions of dollars each year. 
4

5. In fact, the Port Authority exceeds the limits of its right to divert 

airport revenues. The Port Authority may only use some portion of airport revenues

for “general debt obligations or other facilities of the owner or operator.” 49 U.S.C. 

§ 47107(b)(2). The Port Authority has violated this restriction repeatedly by using 

airport revenues to pay for highways, bridges, parks, hospitals, and other facilities 

that it does not own or operate. The Port Authority currently plans to spend $1.8 

billion over a ten-year period to improve roads and bridges it does not own or

operate. In 2014 alone, the Port Authority will spend $181 million to repair the 

Pulaski Skyway and $60 million on the Wittpenn Bridge, structures owned and 

operated by the State of New Jersey. See paragraphs 30-31. 

6. The effect of the Port Authority’s revenue diversion is to burden 

United, other airlines, and airline passengers with the costs of the Port Authority’s 

unrelated real estate and surface transportation assets. In passing the AHTA, 

Congress intended to prevent the undue burden on interstate commerce and the 

economic harm to airlines and passengers that would result if state and local 

governments were allowed to raise general revenues on the back of commercial 

aviation.4 As the FAA recently stated, “[t]he purposes of the revenue use 

requirements are to prevent a ‘hidden tax’ on air transportation, and to ensure that 

Federal airport grants are used to supplement funding for airport projects and are 

not simply used to substitute funds diverted to support local non-airport programs.”

 

4 See, e.g., Northwest Airlines, Inc. v. County of Kent, Michigan (“Kent 

County”), 510 U.S. 355, 363 (1994).
5

FAA, Policy and Procedures Concerning the Use of Airport Revenue; Proceeds from 

Taxes on Aviation Fuel, 78 Fed. Reg. 69789, 69790 (Nov. 21, 2013). Yet that is 

precisely what the Port Authority is accomplishing through its combination of 

unreasonable rates and revenue diversion.

7. This diversion of revenue away from the Port Authority airports 

threatens to hamper the airports’ ability to undertake needed safety and 

infrastructure improvements. The Port Authority’s own consultants have concluded 

that the practice of spending airport revenues on unwise real estate ventures and 

other non-performing assets has led to inadequate resources for investment in vital 

airport infrastructure and maintenance. See paragraph 48. Despite saddling 

aeronautical users with the highest fees in the nation, the Port Authority’s airports 

paradoxically offer deteriorating facilities, insufficient staffing, and poor customer 

satisfaction. Id.

8. Under federal law, the airfield fees paid by United must be related to 

recovering the costs of operating and maintaining the airfield and must be 

transparent and reasonable. See, e.g., Rates and Charges Policy, 78 Fed. Reg. at 

55333-35, §§ 2-2.72. Yet, these fees at EWR are set through a hidden “cost-plus” 

formula that creates a markup of 38% above actual costs. See paragraph 36. This 

formula creates a perverse incentive for the Port Authority to increase the expenses 

included in the rate base, because the more “costs” the Port Authority passes on to 

the airlines, the more profit it earns. The net effect is that the Port Authority 
6

increases cost components in the rate base and then exacts a significant ad valorem

premium on top of the already unreasonable cost. 

9. The FAA has recognized that accumulation of surplus revenues may 

warrant an investigation into the reasonableness of rates. See, e.g., Rates and 

Charges Policy, 78 Fed. Reg. at 55335, § 5.2. EWR typically generates an annual 

surplus in excess of $160 million. In the five-year period 2007-2011, EWR gave the 

Port Authority a staggering $1.6 billion in operating cash flow. See paragraph 59. 

This is money the Port Authority collects from United and other airlines, but that 

far exceeds the costs of operating EWR. At the same time, the airfield fees at EWR 

are by far the highest in the nation – 59% higher than at the next most expensive 

non-Port Authority airport (Chicago O’Hare) and even 75% higher than at John F. 

Kennedy International Airport (“JFK”), which the Port Authority also operates. See

paragraphs 21-22. These facts alone should give the FAA serious concern about 

whether the Port Authority is meeting its obligations under federal law and in the 

Sponsor Assurances. Further, the Port Authority has monopoly power in the New 

York metropolitan airport market. See Section IV.C, below. Simply put, there is no 

“effective market discipline” that could act as a check on rates at EWR. See Rates 

and Charges Policy, 78 Fed. Reg. at 55335, § 4.2.1.

10. Pursuant to its Sponsor Assurances, the Port Authority has promised 

that it will operate EWR “for the use and benefit of the public, on fair and 

reasonable terms, and without unjust discrimination.” 14 C.F.R. Part 152, App. D., 

§ II.20. In fact, however, the Port Authority operates EWR for its own benefit, and 
7

contrary to the interests of the traveling public and the aeronautical users of the 

airport. 

11. In addition, the unreasonableness of several specific charges at EWR 

in 2014 merits investigation by the FAA:

 The revised Aircraft Rescue and Fire Fighting (“ARFF”) force will increase 

United’s costs at EWR by more than $25 million annually and almost 

510% more than in 2012. The Port Authority staffs ARFF with airport 

police, trained as firefighters, each of whom will cost the Port Authority 

an average of $242,000 annually in compensation, overtime, and benefits, 

a sum considerably in excess of the market compensation for firefighters. 

See paragraph 86. The Port Authority’s budget for the 2014 ARFF costs 

includes overtime expense that totals 42% of straight-time expense. The 

Port Authority will include the entire cost of the ARFF in the EWR rate 

base, along with a $9 million markup.

 Non-ARFF security costs included in the landing fee total more than $37 

million. The Port Authority also charges the airlines a 14% markup on 

these costs. Security costs have risen 40% since 2010. While security is a 

necessary cost at all airports, high salaries and benefits, as well as 

excessive overtime, contribute to unreasonably high expenses at EWR.

 The EWR rate base includes excessive and unreasonable administrative 

costs, largely the result of unconstrained spending on overtime and other 

benefits. For example, the seven highest-paid employees in the Port 
8

Authority’s Aviation Department in 2013 were non-exempt workers whose 

total compensation (with overtime) was 209% of their base pay. See 

paragraph 52. In all, United pays millions of dollars more than it should 

each year because of the Port Authority’s unreasonable failure to control 

its expenses.

12. The Port Authority’s rate structure also unlawfully discriminates

against aeronautical users of EWR. The Port Authority charges higher Flight Fees 

for EWR than it does at the other major airports it operates in the New York 

metropolitan market. There is no economic justification for these higher charges at 

EWR; in fact, the Port Authority’s cost per enplanement is actually higher at JFK 

than at EWR. See paragraph 168. The law provides that “aeronautical fees may 

not unjustly discriminate against aeronautical users or user groups.” Rates and 

Charges Policy, 78 Fed. Reg. at 55334, § 3. Because it uses EWR as its New York 

City-area hub, the unjustifiably higher Flight Fee at EWR puts United at a 

significant competitive disadvantage.

13. Accordingly, United asks the FAA to investigate (i) the entire ratemaking structure at EWR; (ii) the reasonableness of the resulting aeronautical fees;

and (iii) the extent to which the Port Authority diverts aeronautical revenues at 

EWR to non-aeronautical functions. United further requests that the FAA order a 

comprehensive audit of the Port Authority operation of EWR, order the Port 

Authority to provide complete and detailed financial information to United, and 

order all other appropriate relief to United.
9

II. CERTIFICATION.

14. Pursuant to 14 C.F.R. § 16.21(b), United certifies that it has made

substantial and reasonable good faith efforts to resolve the disputed matter 

informally with the Port Authority prior to filing this Complaint and there is no 

reasonable prospect for timely resolution of the dispute. These good faith efforts, 

which are detailed in Section IV.F, below, include seeking explanations of the 

methodology used to calculate the fees; repeated requests for a reduction of the fees 

in light of the huge revenues produced and the disparity with other Port Authority 

operated airports; and attempts to have specific charges, such as the ARFF costs, 

reduced to reasonable levels. United officials have met with Port Authority officials 

on numerous occasions to resolve this matter without enforcement action, but the 

Port Authority has been and continues to be unwilling to respond to reasonable 

requests for information to which United is entitled, make any meaningful 

reductions to the fees charged at EWR, or otherwise make any structural changes to 

the rate-making methodology.

III. JURISDICTION.

15. The Federal Aviation Act of 1958, 49 U.S.C. §§ 40101, et seq. (the 

“Aviation Act”), confers broad authority on the FAA to regulate air commerce. 

Under the AAIA, an airport receiving federal assistance in the form of an Airport 

Improvement Program grant, such as EWR, must be “available for public use on 

reasonable conditions and without unjust discrimination.” 49 U.S.C. § 47107(a)(1). 

The FAA has a statutory mandate to ensure that airport owners comply with the 
10

Sponsor Assurances, including the obligations to impose only reasonable rates and 

charges on airport users and to apply such rates in a uniform and nondiscriminatory manner. 49 U.S.C. § 47107; Northwest Airlines, Inc. v. Indianapolis 

Airport Authority, FAA Docket No. 16-07-04 (Oct. 7, 2009) (“Indianapolis Airport”) 

at 11.

16. The fees at issue result from unilateral actions and decisions of the 

Port Authority to pass unreasonable and excessive costs on to United. United has 

not agreed to those charges. The methodology for calculating some of these fees

derives from leases dating to the 1970s to which United was not a party but to 

which it ultimately became a successor-in-interest. See paragraphs 33, 117-121. 

The FAA has authority under 49 U.S.C. §§ 46101 and 46105 to investigate a 

complaint with respect to unreasonable airport rates and charges deriving from 

written agreements. Union Flights, Inc. v. City and County of San Francisco, FAA 

Docket No. 16-99-11, 2000 WL 311170, at *14 (Feb. 15, 2000); Continental 

Micronesia, Inc. v. Commonwealth of the Northern Mariana Islands and 

Commonwealth Ports Authority, DOT Docket No. 5019, 1995 WL 156451, at *10

(Apr. 10, 1995) (noting that FAA could consider airline’s challenge to fee imposed by 

written agreement with FAA); Delta Airlines v. Lehigh-Northampton Airport 

Authority, DOT Docket No. 50264, 1995 WL 262369, at *1 (“we consider the 

amended complaint [regarding a challenge of rates set by a written agreement] to 
11

be a Part 135 challenge and will refer this matter to the Federal Aviation 

Administration”) (May 4, 1995) (same); see also Rates and Charges Policy, 78 Fed. 

Reg. at 55332 (noting under Section C., “Applicability of § 113 of the FAA 

Authorization Act of 1994” that “a dispute that is not subject to expedited [DOT] 

procedures [because it is governed by a written agreement], will be processed by 

FAA under procedures applicable to airport compliance matters in general”). See 

also paragraphs 118-120. 

IV. FACTS.

A. BACKGROUND.

1. Relevant Parties.

17. United operates approximately 135,000 departures from EWR 

annually. United is the carrier with the largest presence at EWR; consequently, the 

Port Authority’s continued imposition of the challenged fees directly and 

substantially affects United. 

18. The Port Authority is a bi-state agency that was established as “The 

Port of New York Authority” on April 30, 1921, to administer the common harbor 

interests of New York and New Jersey, pursuant to Article I of the U.S. 

Constitution, with Congressional consent. In 1972, the agency’s name was changed 

to “The Port Authority of New York and New Jersey” to reflect its role of serving 

both states. The Port Authority is the operator of multiple federally-assisted 

 

5 The “Part 13” procedure was the precursor to the Part 16 procedure, first 

adopted in 1996. See 14 CFR § 16.1, et seq.
12

airports, including JFK, EWR, LaGuardia Airport (“LGA”), Stewart International 

Airport, Teterboro Airport, and Atlantic City International Airport.

19. EWR, the Newark/New York City metropolitan area’s first major 

airport, was built by the City of Newark and opened in 1928. The Port Authority

has operated EWR under a lease with the City of Newark since 1947.

20. The Port Authority is the “sponsor” for EWR within the meaning of 14 

C.F.R. § 16.3. The Port Authority receives federal financial funds for EWR. Since 

2009, the Port Authority has received nearly $280 million in FAA Airport 

Improvement Program grants related to EWR and the New York City airports.6 

2. EWR Generates Huge Revenue Surpluses While 

Charging The Highest Fees In The Nation.

21. At EWR, as at JFK, airlines are charged a “Flight Fee,” which is based 

on take-off weight rather than landing weight, for use of the airfield facilities. 

EWR’s Flight Fee is the highest in the nation. In 2014, the EWR Flight Fee7 will 

average $9.98 per 1,000 pounds of take-off weight, equivalent to a landing fee of

$11.77.

8 As shown below, this amount far exceeds landing fees at other major 

airports:

 

6 FAA, Airport Improvement Program (AIP) Grant Histories, available at

http://www.faa.gov/airports/aip/grant_histories/ (last visited Sept. 3, 2014).

7 The EWR Flight Fee includes a charge for the AirTrain.

8 Due to fuel burn, landing weight is, on average, approximately 18% less 

than take-off weight. Accordingly, to compare the Flight Fee with the more 

traditional landing fee charged at other airports, it is necessary to multiply the 

Flight Fee by a factor of 1.18.
13

AIRPORT 2014 PROJECTED 

AVERAGE LANDING FEE

EWR $11.77*

LGA 9.28

CHICAGO O’HARE (ORD) 7.42

JFK 6.71*

DENVER (DEN) 4.67

BOSTON LOGAN (BOS) 4.60

LOS ANGELES (LAX) 4.54

SAN FRANCISCO (SFO) 4.50

WASHINGTON DULLES (IAD) 3.86

WASHINGTON NATIONAL (DCA) 3.60

PHILADELPHIA (PHL) 3.52

HOUSTON (IAH) 2.99

DALLAS/FORT WORTH (DFW) 2.64

MIAMI (MIA) 1.76

ATLANTA (ATL) 0.82

*EWR and JFK Fees converted to equivalent landing fee by 

multiplying by 1.18. See footnote 8, above.

22. United’s Flight Fee costs at EWR have increased 46% since 2012. 

EWR’s Flight Fee is grossly out of line with the landing fees charged by all non-Port 

Authority airports, and is excessive even compared to JFK and LGA. The 

exorbitant Flight Fee at EWR cannot be explained away by saying that the New 
14

York metropolitan area is expensive. EWR’s fee is 75% higher than the Flight Fee 

at JFK and 27% higher than at LGA, and all three of these airports are operated by 

the Port Authority. 

23. In its operations at EWR, United competes with airlines serving JFK 

and LGA. United depends heavily on its EWR hub to serve the New York 

metropolitan area. In contrast to the 135,000 annual departures from EWR, United 

operates only 12,500 departures from LGA and 5,500 departures from JFK. Due to 

the Port Authority’s unreasonable charges at EWR, United annually pays 

approximately $80 million more than it would if it flew its EWR schedule at JFK.9 

This puts United at a significant competitive disadvantage in the New York 

metropolitan area, one of the most important air traffic markets in the world. See 

paragraphs 70-77. 

24. The exorbitant Flight Fee at EWR is a primary driver of the huge 

revenue surpluses generated at the airport each year. According to the Port 

Authority’s financial statements, EWR’s operating revenues and profits for 2009 

through 2013 were:

2009 2010 2011 2012 2013

Revenue $729,120,000 748,973,000 772,987,000 780,081,000 799,553,000

Operating 

Profit 

214,555,000 218,009,000 245,619,000 241,672,000 239,923,000

Operating 

Margin

29% 29% 32% 31% 31%

 

9 United’s total take-off weight at EWR in 2014 multiplied by the difference 

between the EWR and JFK rates.
15

25. In contrast, while JFK and LGA showed operating profits as well, the 

levels were much lower:

2009 2010 2011 2012 2013

JFK Operating 

Margin

20% 23% 22% 23% 22%

LGA Operating 

Margin

15% 15% 15% 13% 8%

26. Thus, the Port Authority’s excessive charges at EWR hurt United in 

two ways. United is forced to spend more for Flight Fees than is reasonable, and 

United is put at a competitive disadvantage in relation to airlines operating 

primarily at JFK or LGA.

3. The Port Authority Diverts Staggering Amounts Of 

Airport Revenues To Subsidize Money-Losing 

Operations.

27. Under 49 U.S.C. § 47107, the Port Authority enjoys grandfathered 

status for purposes of limited airport revenue diversion.10 But the Port Authority

has exploited that status far beyond its intended purpose, and diverts hundreds of 

millions of dollars every year from its airports to non-airport operations. In the 

words of a former Port Authority Executive Director, the Port Authority treats the 

airports as an “ATM” and the airlines end up paying for non-aeronautical functions 

of the Port Authority. See paragraph 59. Indeed, as the Port Authority candidly 

admits in its 2014 Budget, the “facilities that generate net income – such as the 

 

10 Of course, the Port Authority’s grandfathered status does not create an 

exemption from the rule that airport operators may only charge reasonable rates 

and charges. 
16

airports, tunnels and bridges – along with financial income – help pay for those 

facilities that have been operating at a loss...” (emphasis added). Exhibit A, p. 10. 

28. According to a report by the FAA, in the six year period 2005-2010 the 

Port Authority diverted a total of more than $1.7 billion in airport revenues to nonairport uses, an average of almost $300 million annually. Exhibit B, p. 4. This total 

was almost ten times higher than the amounts diverted by SFO and ORD, the 

grandfathered airports with the next highest totals. Id. At the same time, however, 

the Port Authority neglected important capital and maintenance requirements at 

EWR. See paragraph 48.

4. The Port Authority Improperly Diverts Funds To Pay For 

Non-Port Authority Projects.

29. As noted, the Port Authority uses the surplus generated from the 

unreasonable Flight Fee to subsidize the operation of other Port Authority facilities. 

But as explained more fully below in paragraphs 171-178, the law permits the Port 

Authority to use net income from the airports only to pay for its “general debt 

obligations” or to operate its “other facilities.” 49 U.S.C. § 47107(b)(2). The Port 

Authority, however, improperly spends airport revenues on projects it neither owns

nor operates. 

30. A recent press release from the Port Authority reveals that it has 

allocated $1.8 billion for the 2011-2021 period for the “Lincoln Tunnel Access 

Program,” which consists of “the rehabilitation of the Pulaski Skyway, the Wittpenn 

Bridge and the Routes 1 and 9 truck route connecting Tonnelle Circle in Jersey City 
17

to Interstate 495.” Exhibit C, p. 2 (Feb. 4, 2014 Port Authority Press Release re 

$27.6 B Capital Plan); see also Exhibit D (Preliminary Official Statement Dated 

June 12, 2014, re PA Consolidated Bonds), p. II-54 (earmarking $1.8 billion for 

“Lincoln Tunnel Access Infrastructure Improvements” between 2011-2021). None of 

the facilities involved in the “Lincoln Tunnel Access Program,” however, is actually 

owned or operated by the Port Authority. Exhibit A, p. 74 (identifying all Port 

Authority facilities).11 The Pulaski Skyway is a roadway consisting of a bridge and 

causeway that connects Jersey City and Newark (near the Holland Tunnel, not the 

Lincoln Tunnel)12 and is owned and operated by the State of New Jersey. Exhibit E

(http://www.state.nj.us/transportation/commuter/roads/pulaski/.) The Wittpenn 

 

11 These facilities are: the Bayonne Bridge, the Goethals Bridge, the George 

Washington Bridge, the George Washington Bridge Bus Station, the Holland 

Tunnel, the Lincoln Tunnel, the Outerbridge Crossing and the Port Authority Bus 

Terminal. 

12 Significantly, as the Port Authority’s own in-house counsel noted in an 

internal memorandum that was published by several news outlets in April 2014, 

the Port Authority lacks authority to build or repair access roads to the Holland 

Tunnel. Exhibit I (March 28, 2011 Memorandum from Carlene McIntyre to 

Christopher Hartwyk), p. 2 (“the Port Authority has no authority in such unification 

statutes to construct, own, maintain or operate any of the approaches to the 

Holland Tunnel”). The U.S. Securities and Exchange Commission is investigating 

whether the Port Authority mischaracterized the Pulaski Skyway in its bond 

offering documents as an access road to the Lincoln Tunnel. Exhibit J (Matt 

Flegenheimer, SEC Conducting Investigation of Port Authority Project, NEW YORK 

TIMES (Jun. 13, 2014); Lisa Brennan, SEC Joins Manhattan DA to Probe Christie’s 

Diversion of Port Authority Funds, MAIN JUSTICE (Apr. 25, 2014).) 
18

Bridge and Routes 1 and 9 also fall within the ambit of the New Jersey Department 

of Transportation. Exhibits F – H.13

31. As of December 31, 2013, the Port Authority had already spent $121 

million on the Lincoln Tunnel Access Program. Exhibit D, p. II-54. The 2014 

Budget calls for another $181 million for the Pulaski Skyway and $60 million for 

the Wittpenn Bridge. Exhibit A, p. 35. 

32. Recent media reports also have detailed the Port Authority’s 

longstanding practice of spending millions of dollars annually on other non-Port 

Authority facilities. See, e.g., Heather Haddon, Port Authority Funding Under 

Scrutiny, WALL ST. J. (Jul. 10, 2014). Exhibit K. According to these media 

accounts, these ultra vires projects are known within the Port Authority as 

“regional banks.” Id. The Port Authority has expended tens of millions of dollars in 

recent years on the New Brunswick Civic Center, the Stevens Institute of 

Technology (a private college in Hoboken), the Jersey City Medical Center and 

Independence Park, a Newark space run by Essex County, New Jersey. Id. The 

Port Authority will spend an additional $48 million on regional projects in 2014. 

Exhibit A, p.11. 

5. The Flight Fee Formula At EWR.

33. The formula for calculating the EWR Flight Fee dates to the 1970s. It 

was included in a lease signed in 1985 between the Port Authority and People 

 

13 (www.state.nj.us/transportation/commuter/roads/rt7wittpenn/); 

(www.state.nj.us/transportation/commuter/roads/route1bridge/); 

(www.state.nj.us/transportation/works/studies/rt9pavement/).
19

Express Airlines, Inc. covering Terminal C as it then existed (including Terminals 

C-1 and C-2) at EWR. That lease was assigned to Continental Airlines, Inc. 

(“Continental”) in 1987,

14 and is referred to herein as the “Master Lease.” After the 

merger of Continental and United,

15 United became the successor lessee under the 

Master Lease. Neither Continental nor United ever negotiated the Flight Fee 

formula. Acquiescence to the formula was a condition of operating at EWR. Given 

the Port Authority’s monopoly power with respect to the airports in the New York

City metropolitan area (see Section IV.C below), Continental and United had no 

choice but to agree to the Master Lease.

34. Under the Master Lease, the Flight Fee is comprised of four

components: (1) a Public Aircraft Facilities Charge Factor (the “PAF Charge

Factor”); (2) an Airport Services Charge Factor (the “ASF”); (3) a Phase 1A Roadway 

Charge Factor; and (4) the EWR AirTrain factor. These four factors produce an 

aggregate Flight Fee rate that is assessed for every 1000 lbs. of maximum take-off 

weight. 

35. The PAF Charge Factor is ostensibly designed to recoup the costs of 

operating and maintaining the EWR airfield. The ASF captures non-airfield costs 

that indirectly support airfield operations. The “Phase 1A Roadway Charge Factor” 

 

14 People Express ceased to exist as a carrier on February 1, 1987, when its 

operations were merged into Continental’s.

15 The corporate merger that resulted in Continental and United Airlines, 

Inc. being owned by the then newly-formed United Continental Holdings, Inc. took 

place on October 1, 2010. On March 31, 2013, the merger and integration process 

was completed with the formation of a single legal entity that is now known as 

United.
20

is determined based on costs of various roadway projects at EWR. The EWR 

AirTrain factor captures the annual amortized capital costs and annual operating 

and maintenance costs of the EWR AirTrain. In contrast to the treatment by the 

Port Authority of analogous costs at JFK, the costs of the EWR AirTrain that are 

not offset by certain annual credits are allocated entirely to the airfield. The Port 

Authority gives the airlines no credit for the parking revenues it receives from the

parking garage that is served by the EWR AirTrain (even though the garage itself 

could not be feasibly used without being connected to the EWR AirTrain).

36. While the Port Authority has always contended that the Flight Fee is 

designed to recover the direct and indirect costs of operating and maintaining the 

airfield, the fee is set through a complex and non-transparent formula, the real 

result of which is that the Port Authority makes a substantial profit on the costs 

included in the Flight Fee rate base. On numerous occasions, Continental and 

United have asked the Port Authority for detailed information to be able to 

determine whether such a profit is built into the Flight Fee calculation. Despite the 

requirements of federal law that rate setting be transparent and that airports 

provide sufficient documentation to airlines, time after time the Port Authority 

steadfastly refused to provide any meaningful data, or to acknowledge the profit. 

But a document created by the Port Authority last year showing the increased 

ARFF costs plainly disclosed, for the first time, that the profit exists. The document 

revealed that the ARFF charges at EWR would be “recoverable at 130 percent” from 

the airlines. Exhibit L, p.1. It was not until this admission by the Port Authority 
21

that United was able to confirm what it had suspected – that the Flight Fee formula 

contains a hidden markup. Even this admission, however, understated the actual 

markup charged by the Port Authority. In fact, United calculates that the ARFF 

charges will be marked up by more than 38%.16 This markup, which is also added 

to many other costs in the airfield rate base, transforms the airfield into a profitmaking venture for the Port Authority. So, for example, the ARFF expenditures for 

2014, already unreasonable, will generate an additional $9 million markup for the 

Port Authority. Overall, United estimates that the hidden markups cost United $30

million in 2013. 

37. For years, the Port Authority has insisted to United that the Flight 

Fee formula at EWR is cost-based, and would produce a Flight Fee comparable to 

the formula used at JFK and LGA. The Port Authority recently advised United, 

however, that the EWR Flight Fee formula costs the airlines $52 million more each 

year than if the JFK methodology were used at EWR. United’s share of that 

disparity is approximately $37 million annually.

38. The methodology of the Flight Fee drives other unreasonable costs at 

EWR. For example, one of the cost categories included in the Flight Fee is the Port 

Authority’s cost of labor and other payments related to policing and traffic functions 

at EWR. Of course, these costs sharply increased as a result of the tragic events of 

September 11, 2001. The result of these increases at EWR, however, is that United 

 

16 Costs included in the PAF Charge Factor, including the ARFF charges, are 

marked up by at least 38%. Costs in the ASF are marked up by at least 14%.
22

and other airlines have been required not only to shoulder those additional actual 

costs, but also have been required to pay an extra premium substantially above 

those actual costs. 

39. A Flight Fee methodology that recovers amounts in excess of actual 

reasonable costs incurred or that actually creates an incentive for the airport 

operator to spend more than is reasonable and prudent is inherently unreasonable. 

An appropriate methodology should allow the airport operator to recover only the 

costs of providing the airfield facilities, without a profit factor. Further, because the 

result of the Flight Fee is the generation of surplus revenues which are then used 

for non-airport purposes, United is paying for facilities and assets it does not use 

and which are unrelated to EWR’s aeronautical functions. As a matter of law, this 

is unreasonable. See paragraphs 153-158. 

B. THE PORT AUTHORITY’S INSATIABLE NEED FOR 

MONEY DRIVES EXCESSIVE AIRPORT FEES.

40. The Port Authority charges unreasonable fees at EWR because it has 

an apparently insatiable need for money to subsidize its other, non-aeronautical 

operations. The Port Authority’s fees at EWR are driven not by airport needs but 

by decisions designed to solve non-airport problems. The result is that United and 

other airlines pay not just the costs of EWR, but the costs of unrelated Port 

Authority assets and even non-Port Authority facilities. The airlines thus pay the 

price for the Port Authority’s unwise choices, inefficiencies, and political influences. 
23

41. For years, the Port Authority’s problems in carrying out its mission 

have given rise to widespread criticism.17 In August 2011, in response to public 

criticism, the governors of New Jersey and New York ordered the Port Authority to 

obtain a comprehensive review and audit of the entire agency, including its 

finances, operations, and ten-year capital plan. The next year, the primary 

consultant that undertook this audit, Navigant Consulting, Inc. (“Navigant”), issued 

two reports – Phase I Interim Report (“Navigant I Report”) and Phase II Report 

(“Navigant II Report”)18 – detailing its findings. 

42. According to the Port Authority, the Navigant Reports constitute a 

“thorough assessment of the Port Authority’s current business model, finances, and 

operations” with “corrective recommendations and measures.” See Letter from the 

Port Authority to Governors Christie and Cuomo (Jan. 31, 2012) (Exhibit O). As 

discussed below, these reports, combined with the agency’s publicized and 

documented problems, confirm the obvious: the unreasonable rates and charges at 

EWR stem from and enable Port Authority dysfunction, which is rooted in 

overbroad asset holdings and poor cost controls. 

 

17 See, e.g., Jameson Doig, Restore Integrity at the Port Authority, N.Y. TIMES

(Feb. 20, 2012); Aaron Elstein, Breaking up the Port Authority is Hard to Do: Why 

the Agency Endures Despite Political Interference, Scandal and Lots of Red Ink, 

CRAIN’S NEW YORK BUSINESS (Jan. 19, 2014).

18 The Navigant I Report is Exhibit M and the Navigant II Report is Exhibit 

N.
24

1. Asset Overbreadth And Mismanagement.

43. The Port Authority currently has a vast array of asset holdings 

segmented into aviation, port commerce, rail transit (“PATH”), tunnels/ 

bridges/terminals, the World Trade Center project, and various real estate 

developments. According to Navigant, the Port Authority “has expanded beyond its 

stated mission as a transportation infrastructure organization and, by fate or 

design, has also become a major real estate developer and asset owner with 

investments that dwarf its past holdings . . . with its own . . . police force numbering 

over 1700 employees.” Navigant I Report, pp. 7, 15. This expansion, according to 

the Port Authority’s consultant, has been grossly deficient in “planning and 

execution.” Id. at p. 7. 

44. As a result, the Port Authority does not manage its diverse holdings in 

an efficient manner, causing it to make up for these inefficiencies through other 

means, including the imposition of excessive aeronautical fees. One publicized 

example of Port Authority mismanagement is the World Trade Center project 

(“WTC”). The Port Authority, which was not intended to be a real estate developer, 

has seen its net costs for the WTC balloon from $3.5 billion in 2006 to $7.7 billion in 

2012, “representing approximately $14.8 billion of total gross costs, less 

approximately $7.1 billion in reimbursements by third parties and [other] funding 

[sources].” Although some of this increase was driven by natural cost growth from 

the original scope of the WTC, most of it was attributable to timing, planning, 
25

execution, and management related to the Port Authority. Navigant I Report, pp. 

36-43.19

45. Indeed, most of the Port Authority’s asset holdings are losing money. 

From 2007 through 2011, the Port Authority generated cash from the following: 

airports (JFK $990 million, LGA $273 million, and EWR $1.3 billion), the George 

Washington Bridge ($1.3 billion), the Lincoln Tunnel ($167 million) and the Holland 

Tunnel ($141 million). During that same period, it sustained losses from most of its 

other assets, including: heliports/Teterboro/Stewart ($65 million loss), the Port 

Authority Bus Terminal ($479 million loss), PATH ($2.3 billion loss), Port Newark 

($317 million loss), Port Jersey ($184 million loss), Howland Hook ($160 million 

loss), Brooklyn Marine Terminal ($27 million loss) and WTC ($3.1 billion loss). 

Navigant II Report, p. 14. 

46. The resultant $2.5 billion cash shortfall must be borrowed. With 

respect to the Port Authority’s exposure to all debt, it “has more than doubled over 

the past ten years, from approximately $9.1 billion in 2001 to approximately $19.5 

billion at the end of 2011.” Navigant I Report, p. 7.

47. Based on the Port Authority’s deficiencies in managing its diverse 

holdings, Navigant recommended that the agency “align its capital strategy with its 

mission and objectives” and “deploy its capital with proper attention to preservation 

of its [transportation] infrastructure.” Navigant I Report, pp. 7, 17. The Rudin 

 

19 The Port Authority’s true WTC debt burden is understated; Navigant 

estimates that its real WTC debt exposure will approximate $8.5 billion, not $7.7 

billion. Navigant I Report, p. 41. 
26

Center for Transportation Policy & Management reiterated this need in March 

2014, similarly stating that the Port Authority must use its financial resources 

“solely for facilities, services, projects, and programs that are clearly aligned with

its core mission.”20 There is no evidence that the Port Authority has heeded or is 

able to heed this advice. 

48. Because the Port Authority loses so much money, it improperly uses 

airport revenues to offset those losses. This diversion of revenue away from airports 

threatens to hamper the airports’ ability to undertake needed safety and 

infrastructure improvements and could put them at significant risk of regulatory 

non-compliance. Specifically, according to Navigant, the draining of revenue from 

airports is causing:

a. a “historical[ ] struggle[ ] to fix [operational and safety] 

violations in a timely manner, primarily as a result of budgetary 

constraints leading to insufficient maintenance staff, and a lack 

of inventory of the necessary parts, such as lights and signs.” 

Navigant II Report, p. 38.

b. the hampering of “runway safety areas at both ends of every 

runway . . . Ten of the Port Authority airports’ 26 runway ends 

still must be made compliant [with safety regulations].” Id.

 

20 Mitchell Moss and Hugh O’Neill, A Port Authority That Works (Mar. 2014), 

p. 22 (Rudin Center For Transportation Policy & Management) (Exhibit P); see also

Matt Flegenheimer, Report Traces Authority’s Flaws to a Crumbling Business 

Model, N.Y. TIMES (Apr. 1, 2014) (Exhibit Q). 
27

c. “the airports to rank among the worst in the country in terms of 

customer satisfaction. Buildings are nearing obsolescence, 

infrastructure is deteriorating, and maintenance needs are 

mounting.” Id.

49. The harm caused by the Port Authority’s diversion of airport revenues 

has similarly been the subject of political commentary and criticism. See, e.g., Jim

Epstein, Inside the Port Authority, THE DAILY BEAST (Jan. 21, 2014) (“[the Port 

Authority’s] hodgepodge of assets that no wise technocrat would ever recommend 

putting under the aegis of one agency . . . allows it to drain money from some 

holdings to float others . . . Its airports generated $892 million in excess cash in 

2011, and yet it can’t afford to fund the major capital upgrades needed at La 

Guardia, Newark, and JFK airports. Instead, the money goes towards sopping up 

losses elsewhere in the organization, such as the agency’s estimated $7.4 billion tab 

for construction cost overruns at the World Trade Center”). Exhibit R. The 

conclusions of the Port Authority’s own consultant parallel this criticism: “Over the 

past five years, the Aviation line department has been the only positive free cash 

flow contributor to the Port Authority but now has some of the largest upcoming 

capital expenditure needs” which cannot be met due to “budgetary constraints.” 

Navigant II Report, pp. 5, 38. 

2. Insufficient Labor Cost Controls. 

50. The Port Authority has also been unable to manage its labor costs, a 

fact directly related to the ARFF and security overcharges underlying the Flight 
28

Fee increase. See paragraphs 79-104. The Port Authority’s decisions on labor 

spending directly impact rates and charges at EWR as well as create further need to 

divert airport revenues to other projects. 

51. Throughout the last decade, the Port Authority has employed roughly 

7,000 persons. As of January 2012, when the Navigant I Report was issued, ninetythree percent of Port Authority employees made no contribution whatsoever to their 

healthcare benefit plans, while all New York and New Jersey state employees 

contributed to their plans. Navigant I Report, p. 5.21 The average base salaries of 

these employees “are among the highest relative to peer group”; the total cost of 

compensation and benefits for the average Port Authority employee is estimated to 

exceed $143,000 annually. Id. at 5, 23. “Add-on” compensation, such as pay based 

on overtime, vacation exchanges, and longevity programs, constituted an exorbitant 

70% of base salaries. Id. at 19, 23. 

52. The Navigant I Report found that the average salary in the Port 

Authority’s Aviation Department was highest among its peer group of major 

airports in the country. Id. at 25. Data made public by the Port Authority reveal 

that the seven highest-paid employees in the Aviation Department in 2013 were 

 

21 In 2012, subsequent to the Navigant I Report, the Port Authority 

implemented a benefits change to be phased in over 4 years in which non-union 

employees would be required to contribute to healthcare premiums. See Ted Mann, 

Port Authority to Cut Bonuses, WALL ST. J. (Mar. 28, 2012) (characterizing change 

as “a gesture of reform at an agency under pressure . . . to rein in spending”). 

Exhibit S.
29

non-exempt workers whose total compensation was 209% of their base pay.22 In all, 

unconstrained overtime and bloated benefit packages result in average pay levels 

for Port Authority employees that greatly exceed market rates, even in the 

expensive New York metropolitan area. See, e.g., paragraphs 86, 97, 104. 

53. Excessive overtime pay has been a defining characteristic of Port 

Authority mismanagement for years. In 2006, the Port Authority paid an 

international management consultant $435,000 to evaluate police staffing practices 

that had led to a 12% jump over the prior year’s already excessive police overtime 

costs. That year, the consultant concluded that the absence of any overtime cap, 

“archaic” record-keeping and “lenient” sick time and disciplinary polices were the 

cause of overtime excesses and required aggressive correction. Ronald Marsico, Port 

Authority Officials Fail to Curb Overtime Pay, NJ.COM (Apr. 26, 2008) (Exhibit T). 

The following year, police overtime costs increased by another 14%, with the 

average officer logging in more than 500 hours of overtime. Id. In 2009, the Office 

of the New York State Comptroller initiated a multiple-year audit of the Port 

Authority. The audit results, issued in August 2011, found that (1) the Port 

Authority’s overtime costs as a percentage of base salaries was actually double its 

self-declared benchmark of 15%; (2) the Port Authority’s 2010 budget goal of 

reducing overtime “was not communicated or implemented within the Authority”;

and (3) there was “no documented justification explaining why the work performed 

 

22 www.PANYNJ.gov/corporate-information/employee-payroll-information2013.cfm.
30

on an overtime basis [by Port Authority police] could not have been performed 

during the employees’ regularly scheduled work hours.” Office of the New York 

State Comptroller, Report 2009-S-87, Port Authority of New York and New Jersey, 

Management and Control of Employee Overtime Costs (Exhibit U), pp. 8, 17. This 

report, like the prior one, found that Port Authority mismanagement was 

responsible for excessive overtime costs and recommended that “Authority officials . 

. . take a much more proactive approach to the management and control of 

overtime.” Id. In response, the Port Authority stated that it had “taken a number 

of actions to further enhance controls over the use and management of overtime 

across the agency.” Letter of Port Authority’s Chief Financial Officer dated July 20, 

2011 in response to initial draft of 2011 report (Exhibit V).

54. The next year, Navigant reported the same overtime mismanagement 

and similarly recommended that the Port Authority make “overtime reduction . . . 

[its] policy focus.” Navigant I Report, p. 29. In response, the Port Authority again 

claimed it had undertaken efforts to control overtime costs. See Letter from the 

Port Authority to Governors Christie and Cuomo (Jan. 31, 2012) (Exhibit O), pp. 2-3 

(stating the Port Authority “has already asked . . . executive management to . . . 

impose stronger controls on overtime”).

55. In the two-and-one-half years following this statement, the Port 

Authority’s overtime costs have continued to skyrocket to even higher levels. See

March 19, 2014 “2013 Overtime Performance” and “2013 Police Overtime 

Performance” reports issued by the Port Authority Committee on Operations 
31

(showing police overtime hours at 59% over budget in 2013 and civilian overtime 

hours at 27% over budget) (Exhibit W); July 23, 2014 “Overtime Performance, 

Second Quarter Results 2014” issued by Port Authority Committee on Operations 

(showing double-digit percentage increases in 2014 for civilian overtime and police 

overtime as compared to 2013) (Exhibit X); Steve Strunsky, Port Authority Overtime 

Exceeds Second-Quarter Projections, nj.com (July 28, 2014) (in response to 2014 

second quarter police overtime increase of 14% over 2013, Port Authority Board 

member calls for the hiring of another “consultant” to “rein in the hours”) (Exhibit 

Y).

56. Like the Port Authority’s inability to manage its diverse holdings, its 

inability to manage its labor costs has been the subject of extensive media reporting 

and criticism. See, e.g., Chris Hawley, Port Authority Beat Policeman Earns 

$221,000 A Year, ASSOCIATED PRESS (Dec. 9, 2011) (“[p]olice at the Port Authority of 

New York and New Jersey have racked up $41.4 million in overtime this year . . . 66 

police officers have made more than $200,000 so far in 2011, thanks to overtime 

that in many cases has doubled their salaries”) (Exhibit Z); Overtime Payouts For 

First 3 Months Of 2013 Skyrocket At Port Authority, CBS NEW YORK (Apr. 24, 2013) 

(Exhibit AA). By comparison, a NYPD officer earns $90,829.00 annually before 

overtime after 51⁄2 years of service, and the total compensation for the final rank of 

Captain is $160,000.00 year. Jason Shueh, The Average Salary of NYC Police,

eHow.com (Apr. 11, 2014) (Exhibit BB).
32

3. Structural Dysfunction. 

57. The Port Authority’s capital and labor excesses, which it seeks to 

subsidize through unreasonable airport fees, are related to its dysfunctional 

structure. The Port Authority itself recently established a Special Oversight 

Committee to “examine the governance, structure and operational oversight of the 

organization and make the necessary recommendations to the full Board of 

Commissioners.” Press Release, Port Authority, Special Oversight Committee to 

Hold a Port Authority Reform Panel Discussion in Public Session (Apr. 17, 2014), 

www.panynj.gov/press-room/press-item.cfm?headLine_id=1961 (Exhibit CC); see 

also Andrew Tangel and Ted Mann, Experts to Weigh in on Port Authority Reforms, 

WALL ST. J. (Apr. 17, 2014), blogs.wsj.com/metropolis/2014/04/17/experts-to-weigh-inon-port-authority-reforms/ (Exhibit DD) (“[s]ome have called for cleaving apart the 

agency, which is controlled by the two states and operates major airports, bridges 

and bus terminals in the region.”) 

58. The structural hierarchy of the Port Authority is unique and takes the 

form of a top-heavy diamond shape, with approximately 60% of its employees sitting 

in the highest four salary band categories (“Service A,” Senior Executive 

Management, Executive Management and Middle Management). Navigant I 

Report, p. 28. This top-heavy structure means there are too many decision makers 

with a too-limited span of control. Id. As a result, the Port Authority “is a 

challenged and dysfunctional organization” that is “inherently resistant to change, 

lacks effective collaboration between its strategic businesses” and “must conduct a 
33

meaningful, top-to-bottom organizational redesign focused on operating efficiencies 

and rooted in clearly defined roles and responsibilities, transparency, accountability 

and aligned incentives.” Id. at 5. 

59. The Port Authority’s vast asset holdings and operations also make it 

an ideal vehicle through which state leaders can fund state projects without 

formally raising taxes. According to Steven Berger, the agency’s former executive 

director, “[t]he Port Authority has been a money tree, an ATM machine . . . a place 

[the governors of New York and New Jersey] can go to do projects that they can’t get 

through their budgets.” Exhibit R. In the five year period 2007-2011, EWR gave 

the Port Authority a staggering $1.6 billion in operating cash flow. Navigant II 

Report, p. 14. 

60. In sum, the Port Authority’s insatiable need for money, ability to divert 

airport revenue, decision-making structure, and monopoly power over the New York 

metropolitan area airports (discussed below), all combine to create the perfect storm 

for unreasonable rates and charges at EWR. United should not be forced to pay for 

the inefficiencies and dysfunctions of the Port Authority through unreasonable fees 

which bear no relation to proper airport costing. 

C. THE PORT AUTHORITY HAS MONOPOLY POWER.

61. The Port Authority has monopoly power with respect to the airports in 

the New York City metropolitan area, the most important market in the United 

States.
34

1. The Critical Importance Of The NYC Metro Area 

Airline Market.

62. The New York City metropolitan area (“the NYC metro area”) is the 

largest airline market in the United States, both for domestic and international 

travel. Expert Report of Daniel M. Kasper (“Kasper Report”) (Exhibit EE), ¶¶ 8-9. 

As explained in the Kasper Report, “airline market” is measured in terms of origin 

and destination passengers. Id.

63. In 2013, over 61 million domestic passengers traveled to or from the 

NYC metro area, approximately 50% more than Los Angeles, the second largest 

domestic airline market in the United States. Id. In terms of airline revenue, the 

NYC metro area accounted for approximately $13.3 billion – 55% more than secondranked Los Angeles – and 7.2% of all domestic origin and destination revenue 

nationwide in 2013. Id.

64. For international air travel, the NYC metro area is the largest market 

in the United States by an even wider margin. Id. The NYC metro area accounted 

for over 13.7 million international passengers in 2013 (approximately twice that of 

Miami, the second largest market for international passenger traffic). Id. In terms 

of origin and destination airline revenue, international travel to and from the NYC 

metro area accounted for $7.2 billion in 2013 – as much as San Francisco, Los 

Angeles and Chicago combined – and approximately 15% of all U.S. carrier 

international revenues. Id.
35

2. The Port Authority Controls The NYC Metro Area 

Airports.

65. The Port Authority operates the three major NYC metro area airports 

– EWR, JFK and LGA – plus Stewart International Airport. The Port Authoritycontrolled airports account for over 96% of all air travel to or from the NYC metro

area. Id. at ¶ 17. Notably, EWR, JFK, and LGA “compete” for the same NYC metro 

air travelers – data shows that a traveler’s proximity to the NYC metro area 

airports does not dictate his or her airport choice. Id. at ¶ 15. 

66. There is, of course, no realistic possibility that a fourth major airport 

will open in the NYC metro area to compete with EWR, LGA and JFK. The market 

for commercial airport services in general, and in the NYC metro area in particular, 

is characterized by exceptionally high barriers to entry. Id. at ¶¶ 11-12. To begin 

with, commercial airports exhibit significant economies of scale and scope. Id. 

Airport scale economies (i.e., decreasing unit costs over a wide range of outputs) 

arise principally from the necessity of making large investments merely to be in a 

position to serve customers on demand. Id. These investments in the case of 

airports include the acquisition of large parcels of land (typically requiring the use 

of eminent domain) and the construction of runways, taxiways, access roadways, 

terminal facilities, towers, runway lighting, and other systems – all investments for 

which the minimum efficient scale is large relative to demand. Id. 
36

3. The Port Authority Exploits Its Monopoly Power To 

Impose Unreasonably High Fees At EWR.

67. Like other monopolies and like public utilities, airports have long been 

subject to heightened levels of public scrutiny and regulatory oversight designed to

prevent them from abusing their market power by increasing prices above 

competitive levels, restricting output, or engaging in price discrimination. See

paragraph 145. These concerns (among others) led Congress to subject airports and 

their rates and charges to federal regulatory review. Exhibit EE at ¶ 12.

68. The Port Authority, however, has largely managed to avoid regulatory 

oversight of its formulation of Flight Fee and other airport rates and charges. It 

has used its market power – monopoly power, really – to impose fees for airlines 

well above those of other large airport operators. Id. at ¶¶ 20-25. 

69. The Flight Fee charged at EWR is far higher than the fees charged at 

other airports. The Flight Fee for a Boeing 737-800 at EWR, for example, is more

than double the Flight Fee at comparably-sized airports in other cities such as San 

Francisco International (“SFO”) or Boston Logan International (“BOS”). Id. at ¶ 20. 

SFO and BOS are especially meaningful comparators because, like the Port 

Authority-controlled airports, SFO and BOS both have limited geographic footprints 

for expansion and are located in a metropolitan area with a high cost of living. Id.

4. The EWR Flight Fee Puts United At A Competitive 

Disadvantage.

70. The Port Authority’s imposition of a higher Flight Fee at EWR than at 

JFK and LGA puts United at a significant competitive disadvantage. United has 
37

approximately 135,000 scheduled departures from EWR annually, in contrast to its 

12,500 scheduled flights from LGA and its 5,500 scheduled flights from JFK. 

71. Because JFK, LGA, and EWR are “slot-constrained” airports operating 

at full capacity throughout most of the day, it would not be possible for United to 

secure sufficient slots at either JFK or LGA to relocate its hub from EWR in order 

to take advantage of the lower landing fees at those airports. Id. at ¶ 29. 

Likewise, there are no other airports in the NYC metro area that have the capacity 

(i.e., terminals, gate facilities, and runway length) to accommodate the hubbing 

operations of a large network carrier such as United. Id. In other words, United 

cannot mitigate the problem of the higher EWR Flight Fee by merely moving its 

operations to JFK or LGA. 

72. In the highly competitive U.S. airline industry, even small differences 

in cost can affect market outcomes. Id. at ¶ 30. The consequences of the higher 

EWR Flight Fee are very real. For example, for a typical domestic flight operated 

using a 737-800 aircraft, the landing fee per enplaned passenger at EWR is 75%

higher than at JFK and 21% higher than at LGA. Id. Because United has no 

practical alternative to EWR for its hub in the NYC metro area, it has no choice but 

to pay the excessive fees the Port Authority charges for access to EWR, even though 

these fees put United at a disadvantage vis-à-vis other carriers – particularly Delta, 

American, and JetBlue – that are competing for many of the same passengers via 

their hubs at JFK and/or LGA. Id. 
38

73. As a further example, for a typical long-haul international flight 

operated using a 777-200 aircraft, the landing fee per enplaned passenger at EWR 

is 75% higher than at JFK. Id. at ¶ 31. This puts United at a competitive 

disadvantage vis-à-vis Delta and American, and a variety of foreign carriers that 

use JFK as the base of their long-haul international services to/from the NYC metro 

area. Id.

74. Because Delta, American, and JetBlue each operate hubs at NYC 

metro area airports with lower costs than EWR, the scope of competitive harm is far 

reaching. Id. at ¶ 32. There are more than 100 destinations worldwide that United 

serves from the NYC metro area exclusively from EWR in competition with U.S. 

carriers serving the same destinations from JFK and/or LGA. Id.

75. The cost disadvantage United confronts because it operates its NYC 

metro area hub at EWR is magnified for passengers making connections, since for 

each round-trip passenger United connects via EWR, United is effectively required

to pay the Port Authority’s landing fees per passenger twice (once on their outbound 

flight and again when they return to their destination). Id. at ¶ 33. This is 

particularly relevant in light of the fact that United competes with both American 

and Delta (as well as a host of foreign carriers) for many of the same international 

connecting passengers that use the NYC metro area (i.e., EWR or JFK) as their 

connecting gateway. Id. For example, a substantial proportion (26% overall) of all 

transoceanic international connecting passengers originating from or destined to 
39

points in the eastern United States use either EWR or JFK as their international 

gateway. Id. at ¶ 34.

76. Because United (via EWR) competes directly with American and Delta 

(via JFK) for many of the same transoceanic connecting passengers that use a NYC 

metro airport as their connecting point, the substantially higher costs imposed by 

the Port Authority at EWR vis-à-vis JFK (which are magnified for connecting 

passengers as mentioned above) put United at a further competitive disadvantage. 

Id. 

77. In summary, the disparity between the EWR Flight Fee, on the one 

hand, and the JFK/LGA Flight Fees, on the other hand, hinders United’s ability to 

compete. United is, therefore, especially vulnerable to the Port Authority’s abuse of 

monopoly power with respect to rates and charges at EWR.

78. The federal regulatory scheme governing airport rates and charges is 

intended to prevent airports from using their monopolistic position to impose 

unreasonable charges. When the Rates and Charges Policy was first developed, the 

Federal Trade Commission, with whom the DOT consulted, noted that “the 

monopoly power of airport operators requires some pricing regulation.” Policy 

Regarding Airport Rates and Charges, Request for Comments, 60 Fed. Reg. 6906, 

6912 (Feb. 3, 1995). As the Rates and Charges Policy notes, “[t]he Department

assumes that the limitation on the use of airport revenue and effective market 

discipline for aeronautical services and facilities other than the airfield will be 

effective in holding aeronautical revenues, over time, to the airport proprietor’s 
40

costs of providing aeronautical services and facilities, including reasonable capital 

costs.” 78 Fed. Reg. at 55335, § 4.2.1. In the New York Metropolitan airport 

market, however, these two controls – limitation on use of airport revenue and 

effective market discipline – do not exist. 

D. THE PORT AUTHORITY IS CHARGING UNREASONABLE 

FEES AT EWR.

1. ARFF.

79. The Port Authority’s response to the FAA’s 2013 investigation into the

ARFF functions is yet another example of the pervasive unreasonableness with 

which the Port Authority treats the airlines that serve EWR. Instead of complying 

with the FAA’s mandates in a thoughtful, efficient manner, the Port Authority

seized the opportunity to impose an exorbitant fee increase which unfairly burdens

the airlines. As the major airline at EWR, United is particularly disadvantaged by 

the Port Authority’s action because of the 38% markup to the Port Authority 

embedded in the Flight Fee. EWR bears a disproportionate share of the staggering 

ARFF fee increase, but had the fewest alleged violations that sparked the FAA 

investigation.

80. The background behind the underlying ARFF changes is not in 

dispute. Until 2014, the Port Authority manned its ARFF cadre in an unusual 

fashion: Instead of hiring firefighters for the ARFF, it cross-trained its police 

officers to serve both on patrol and as ARFF members. Indeed, until last year, the 

Port Authority Police Department (“PAPD”) ran the ARFF. By chance or design, 

this structure resulted in opportunities for police officers to obtain significant
41

overtime pay, first while being cross-trained, and again while working the hours 

necessary to discharge both their patrol and ARFF duties. 

81. The Port Authority was derelict in training its ARFF personnel and in 

properly documenting the training that it did provide. Numerous violations 

occurred between 2002 and 2004, which resulted in the Port Authority entering into 

a Consent Order with the FAA dated February 27, 2006 (“Order”). Pursuant to the

Order, the Port Authority agreed “to ensure that all ARFF personnel on the active 

ARFF duty status at each facility are currently qualified in all areas required under 

part 139 of the FAR” and “to maintain an accurate training record tracking system 

at each Port Authority ARFF facility...” Order, recited in paragraph 5 of the 

Settlement Agreement and Order dated April 8, 2013, between the FAA and the 

Port Authority (“Settlement”) (Exhibit FF).

82. The Port Authority’s dereliction continued after the 2006 Order, 

however, leading to further FAA enforcement activity. The FAA re-examined the 

Port Authority’s ARFF training and record-keeping and again “found substantial 

and continuing noncompliance by the PANYNJ with training requirements 

specified in 14 C.F.R. Part 139 for airport rescue and firefighting (“ARFF”) 

personnel...” Settlement, paragraph 3. The FAA’s findings led to the 2013 

Settlement pursuant to which the Port Authority paid a $3.5 million civil penalty 

and agreed to take remediation actions, including the creation of a stand-alone 

ARFF cadre which will report to the Port Authority’s Department of Aviation 

instead of the PAPD.
42

83. It could reasonably be contemplated that the change in requirements 

for the ARFF would result in some nominal increase in the Port Authority’s 

operating costs as new personnel are hired and trained. Some of these increased 

costs might also be expected to be passed on to the airlines serving the New York 

area airports. But the Port Authority went far beyond the record-keeping and 

training requirements of Part 139 and insisted on staffing the new ARFF cadre

solely with PAPD officers. The decision to man the ARFF cadre with highlycompensated police officers increases costs excessively without providing any 

greater degree of safety or efficiency over that provided by trained firefighters. 

84. United fully supports the Port Authority’s compliance with all legal 

requirements, and of course supports safe and compliant operations at all of the 

Port Authority’s airports. However, the enormous fee increase imposed by the Port 

Authority, purportedly to cover those costs of compliance, is unreasonable and

grossly improper for the reasons explained below.

85. First, the Port Authority plans to use PAPD members as the 280 

dedicated firefighters in the new cadre, fulfilling the firefighting duties previously 

performed by the PAPD. Since this will eliminate the need for 280 police officers, 

one might reasonably expect a reduction in the police force. That will not happen: 

The Port Authority plans to maintain the same number of police officers who were 

providing both police and firefighting services and add the 280 dedicated 

firefighting policemen to the payroll.
43

86. Second, the Port Authority’s plan to hire existing PAPD members for 

the ARFF cadre rather than hire new employees at lower compensation rates 

greatly inflates the cost of the ARFF cadre. The ARFF is staffed with Port 

Authority Police who are paid even higher than their colleagues performing police 

duties. Expert Report of Professor David Lewin (Exhibit GG) at ¶ 20. Their mean 

total compensation in 2013 was $153,000 vs. $133,000 for the other Port Authority 

officers. Id. Third, the Port Authority’s compensation and benefit package is 

excessive compared to the market. The ARFF staffers are paid significantly more 

than NYC area firefighters. They are paid 40% more than FDNY firefighters and 

up to 70% more than other metro area firefighters. Id. at ¶¶ 19-22. Total ARFF 

costs to the Port Authority average $242,000 per firefighter. Exhibit L. 

87. In the Settlement, the FAA specifies that the new “ARFF Cadre 

Firefighters will perform only ARFF duties and no collateral duties as Police 

Officers.” Settlement, Appendix C, paragraph 2b (the limited exception is that on 

off days they may engage in limited firearms and other training under state law up 

to 36 hours to maintain their status as sworn police officers). They are prohibited 

from performing non-ARFF duties, including police duties, and may not perform 

overtime for police duties or any non-ARFF function. So, the new ARFF cadre does 

not need to maintain more than a minimum proficiency in firearms and, since there 

is now a dedicated ARFF force, non-ARFF members of the PAPD do not need crosstraining in ARFF. Despite the FAA’s clear intent to separate the two forces, 

however, the Port Authority will continue to cross-train officers for both firefighting 
44

and police duties, paying mandatory overtime for this additional training,

regardless of the duty to which the officer is assigned. Only at the Port Authority 

airports is the ARFF function structured in this manner, providing compelling 

evidence that the Port Authority’s proposed cross-training system is unreasonable 

and far beyond what industry best practice and the Settlement require.

88. The Port Authority’s staffing plan for the ARFF cadre will increase the

airlines’ costs at the New York area airports by $58 million, a staggering 272% 

increase in one year. Exhibit L. 

89. This increase impacts United disproportionately for two reasons: 

First, the “cost plus” formula used only for the EWR Flight Fee, and not at either 

JFK or LGA, means that for every additional dollar of expense incurred at EWR for 

ARFF, the Port Authority receives a 38 cent markup. Consequently, EWR bears a 

disproportionate share of the staggering ARFF fee increase.

90. Second, perhaps not by coincidence, ARFF costs are not assigned to the 

three airports by any rational metric, but instead the Port Authority over-allocates

costs to EWR. EWR is burdened with 41% of the new ARFF cost, compared to 33% 

at JFK, even though EWR had the fewest claimed instances of training violations,

and JFK the most, among the Port Authority airports. The increased ARFF costs 

for EWR for 2014 will be over $33 million. United calculates that, as a result, its 

share of the additional $58 million in fees attributable to ARFF for all three New 

York-area airports will be nearly $25 million, while Delta’s share will be $7 million, 

American’s $5 million, and JetBlue’s $3 million.
45

91. Similarly, the increase from the 2012 actual to the 2014 budgeted 

ARFF costs is 137% at JFK and 237% at LGA, but 510% at EWR, the one airport 

with a “profit” margin built into the rate methodology. Exhibit L. 

92. The airlines did not cause the problems that the FAA addressed during 

its investigations of the Port Authority. They did not organize the ARFF to report 

to the PAPD, nor were they responsible for the poor training and improper training 

records. Once the remediation measures were ordered by the FAA, they were 

neither asked nor permitted to participate in the process for determining how to 

comply with them. Yet they are now being forced to accept, and pay for, the Port 

Authority’s unilaterally-imposed exorbitant fee increases.

2. Security Costs.

93. The EWR Flight Fee includes a cost component related to police and 

traffic functions at the airports other than terminal security and emergency 

services, such as the ARFF.

94. Since 2010, this cost item has increased by more than 40%, from 

approximately $27 million to approximately $38 million. Further, due to the hidden 

markup contained in the Flight Fee formula, these police costs generated an 

additional $3.8 million in revenue for the Port Authority at EWR in 2013.

95. Port Authority police logged 384,000 hours more overtime than 

budgeted last year. Payroll data provided by the agency show that 187 Port 

Authority police officers and supervisors earned more than $200,000 in wages, often 

doubling their base salaries through overtime and other compensation. See Port 
46

Authority of New York & New Jersey, Employee Payroll Information – As of March 

31, 2014, available at www.PANYNJ.gov/corporate-information/employee-payrollinformation-2013.cfm.

96. Eight members of the force made more than $300,000 in wages, 

including one officer who earned about $331,000, including almost $215,000 in 

overtime, making him the highest-paid Port Authority employee. Id.

97. Port Authority Police are paid significantly more than NYPD officers. 

Including overtime, mean annual total compensation for Port Authority officers in 

2013 was $124,000 vs. $83,000 for NYPD – 49% higher. Exhibit GG at ¶18. For 

sergeants, the Port Authority mean compensation was 57% higher. Id. Port 

Authority Police are also paid significantly more than police in the NYC metro area 

(including Northern NJ). Id. In 2013, Port Authority officers received 65% more 

pay, while sergeants were paid 76% more. Id.

98. Terminal Security costs at EWR also continue to increase at 

unreasonable rates. At EWR, United is charged for terminal police on the basis of 

a cost per “tour.” At Terminal C, which is occupied exclusively by United, there are 

five police tours per day. At Terminal A, where United operates along with other 

airlines, there are three police tours per day. 

99. Since 2010, the average annual cost per tour charged by the Port 

Authority at EWR has increased by more than 120%. This staggering increase is a 

result of the Port Authority’s excessive wages, benefits, and overtime. 
47

100. All these security cost increases are driven by the fact that the 

compensation and benefit package of Port Authority police officers is well above 

market. In addition to the Lewin Report (Exhibit GG), Port Authority police 

compensation has been analyzed by the Citizens Budget Commission. That agency

concluded that compared to officers in Jersey City, New York City, and Newark, 

Port Authority officers’ base pay is 17% to 29% more at two years of service, 22% to 

52% more at six years, and 21% to 28% more at twenty-five years. Citizens Budget 

Commission, A Comparative Analysis of the Pay of Port Authority of New York and 

New Jersey Police Officers, December 2012, pp. 12-15 (Exhibit HH). Yet despite 

earning higher pay, Port Authority police officers work fewer hours than the officers 

in any of these municipalities. Id. at 15-16 (attributing lower number of hours 

worked to a greater number of days off and shorter tours; “the municipal forces 

receive generally fewer vacation days than [Port Authority] officers”).

101. Similarly, the hourly pay of Port Authority officers is anywhere 

between 23% and 215% higher than that of similarly situated federal agents at the 

Bureau of Alcohol, Tobacco, Firearms and Explosives. Id. at 24-27. 

102. The Citizens Budget Commission concluded that Port Authority police 

compensation is excessive and should be closer “to the pay received by officers in 

other large urban departments in the region.” Id. at 28. 

3. Administrative Costs.

103. The Navigant I Report found that the average salary in the Port 

Authority’s Aviation Department was highest among its peer group of major 
48

airports in the country. See paragraph 52. Data made public by the Port Authority 

reveal that the seven highest-paid employees in the Aviation Department in 2013 

were non-exempt workers whose total compensation was 209% of their base pay. 

Id. In all, unconstrained overtime and bloated benefit packages result in average 

pay levels for Port Authority employees that greatly exceed market rates, even in 

the expensive NYC metro area. 

104. There are countless examples of excessive compensation levels among 

the Aviation Department employees. Even the media has taken notice of Port 

Authority gardeners who earn in excess of $100,000 annually. See, e.g., Benjamin 

Lesser, 103G(reen) thumb, NY DAILY NEWS (Apr. 24, 2007), Exhibit II. Professor 

Lewin concludes that compensation paid to employees in the Aviation Department 

is well over market. Most job titles receive median pay ranging from 50% to 160%

more than comparable workers in the NYC metro area. See Exhibit GG at ¶¶ 23-24.

E. OTHER UNREASONABLE CHARGES. 

105. United believes that there are other specific cost items included within 

the Flight Fee that are unreasonable. Because of the Port Authority’s continuing 

refusal to provide detailed cost information, however, United cannot identify those 

items or determine the extent of unreasonableness. United therefore asks that the 

FAA order the Port Authority to provide sufficient information to United and the 

FAA such that the FAA and United can make such determination.

106. The Port Authority should also be ordered to provide sufficient 

information so that the FAA and United can determine:
49

 the actual costs incurred by the Port Authority in operating and 

maintaining the airfield at EWR;

 the amount and source of all revenues received by the Port Authority with 

respect to the airfield at EWR;

 the extent of the surplus generated by the Flight Fee and other airfield 

charges; 

 the extent and sources of any other surplus revenue generated at EWR; 

and

 the uses to which the Port Authority puts net revenues generated at EWR.

F. UNITED’S GOOD FAITH EFFORTS TO RESOLVE THIS 

DISPUTE.

107. On July 19, 2013, after the Port Authority announced the huge 

increase in ARFF fees for EWR, JFK, and LGA, United and the other airlines wrote 

to the Port Authority, expressing surprise at the astronomical 284% fee increase 

and disappointment that the Port Authority’s Aviation Department staff was 

purportedly not “authorized” to provide the detailed back-up information the 

airlines had requested. Exhibit JJ.

108. On September 10, 2013, United wrote to the Port Authority, protesting 

the ARFF fee increase and again requesting information upon which to base a 

determination whether or not the increase was reasonable. Exhibit KK.

109. United has had many other communications with the Port Authority to 

convey United’s concern over the cost increases in the 2014 Flight Fee, including the 

following:
50

 September 5, 2013 meeting with the Port Authority’s then Deputy 

Director, William Baroni, and staff;

 September 13, 2013 telephone call from representatives of United’s 

Corporate Real Estate Department (“CRE”) to the Port Authority to 

discuss the ARFF costs;

 November 6, 2013 meeting with Port Authority staff regarding ARFF 

charges;

 November 13, 2013 meeting of the EWR Finance Committee;

 December 4, 2013 meeting of the EWR Airport Affairs Meeting;

 December 30, 2013 meeting between senior representatives of United 

and the Port Authority;

 January 13, 2014 meeting between CRE representatives and senior 

representatives of the Port Authority;

 May 20, 2014 meeting of the EWR Finance Committee;

 Between September 2013 and September 5, 2014, Nene Foxhall, 

United’s Executive Vice President, Communications and Government 

Affairs, had nine meetings and three calls with senior Port Authority 

representatives, including Deputy Directors William Baroni and 

Deborah Gramiccioni, and Director of Aviation, Thomas Bosco.

110. On September 15, 2014, in a final effort to resolve this dispute, United 

wrote to the Port Authority, outlining its concerns and requesting a meeting. 

Exhibit LL. The letter further advised the Port Authority that if the dispute could 
51

not be resolved, United would have no choice but to seek relief from the FAA under 

Part 16. The Port Authority responded by letter dated September 26, agreeing to 

meet (Exhibit MM); United responded on September 30, stating it would follow up 

with a call to schedule the meeting. Exhibit NN. 

111. On October 24 and November 4, 2014, representatives of United and 

the Port Authority met. At the conclusion of the meeting on November 4, it 

appeared that the parties were at an impasse. United made one further attempt at 

resolution through telephone calls from United’s Deputy General Counsel to his 

counterpart at the Port Authority. Unfortunately, however, the parties were not 

able to resolve their differences. At this point, United has exhausted all avenues for 

a reasonable resolution with the Port Authority. 

V. LEGAL ANALYSIS.

A. THE FAA’S AUTHORITY TO CONSIDER THIS FEE 

CHALLENGE.

112. As noted, the Aviation Act confers broad authority on DOT and FAA to 

regulate air commerce, see 49 U.S.C. § 40101, et seq., and the FAA has a specific 

statutory mandate to ensure that airports are complying with the Sponsor 

Assurances enumerated in the AAIA. See 49 U.S.C. § 47107.

1. The FAA Has Jurisdiction Under Part 16 To 

Investigate The Port Authority’s Violation Of 

Sponsor Assurances.

113. The regulations promulgated under Part 16 of Title 14 (Aeronautics 

and Space) of the Code of Federal Regulations provide that the FAA has the 

authority to adjudicate certain disputes between air carriers and airport 
52

proprietors. 14 C.F.R. § 16.1(a). Specifically, the FAA is empowered to investigate 

and adjudicate a complaint that an airport proprietor has violated the binding 

Sponsor Assurances. Id.

114. As shown herein, the Port Authority has violated the federal mandate

that “airport fees, rates and charges must be reasonable.” 49 U.S.C. § 47101(a)(12); 

49 U.S.C. § 47107 (requiring airport sponsors to give assurance that “the airport 

will be available for public use on reasonable conditions and without unjust 

discrimination”); see also Sponsor Assurances, § 22.a (requiring that the airport 

proprietor “make the airport available as an airport for public use on reasonable 

terms”).

115. The Port Authority has also violated the Sponsor Assurance that 

provides that “[e]ach air carrier using [the] airport shall be subject to . . . 

nondiscriminatory and substantially comparable rules, regulations, conditions, 

rates, fees, rentals and other charges....” Id., § 22.e (which implements the 

Congressional guidance regarding airport fee structures set forth in 49 U.S.C. 

§ 47101(13)).

116. The Port Authority has also violated the Sponsor Assurance requiring 

airport operators to use “[a]ll revenue generated by the airport...for the capital or 

operating costs of the airport; the local airport system; or other local facilities which 

are owned or operated by the owner or operator of the airport and which are directly 

and substantially related to the actual air transportation of passengers.” Id. at 

§ 25a. The “grandfather” exception to this Sponsor Assurance allows airport 
53

operators to divert aeronautical revenues if “covenants and assurances in debt 

obligations issued before September 3, 1982” allowed for such revenue diversion, 

but only if the funds are used for facilities owned and operated by the airport or for 

general debt obligations. Id. As discussed below, this exception does not apply to 

the Port Authority’s diversion of EWR revenue to facilities that the Port Authority 

neither owns nor operates.

2. The FAA Has Jurisdiction To Consider Challenges 

To Rates Set By Written Agreement.

117. An air carrier may challenge rates and charges imposed by an airport 

proprietor either by initiating an action with the DOT under 14 C.F.R. Part 302 or 

with the FAA under Part 16. See, e.g., Air Canada v. Dep’t. of Transp., 148 F.3d 

1142, 1145 (D.C. Cir. 1998) (noting that air carriers have “two administrative 

options...traditional investigation by the FAA or expedited determination by the 

Secretary [of the Department of Transportation]...”). Under the expedited Part 302 

procedure, the DOT may not consider airport fees set by a written agreement. 14 

C.F.R. § 302.601(b)(1). 

118. Under the traditional Part 16 challenge procedure, however, the FAA 

“clearly has authority, under 49 U.S.C. §§ 46101 and 46105, to investigate a 

complaint with respect to allegedly unreasonable airport rates and charges,” 

including those set by written agreement. Union Flights, Inc. v. City and County of 

San Francisco, FAA Docket No. 16-99-11, 2000 WL 311170, at *14 (Feb. 15, 2000); 

Continental Micronesia, Inc. v. Commonwealth of the Northern Mariana Islands 

and Commonwealth Ports Authority, DOT Docket No. 50191, 1995 WL 156451, at 
54

*10 (Apr. 10, 1995) (noting that airline could challenge fee imposed by written 

agreement with FAA); Delta Airlines v. Lehigh-Northampton Airport Authority, 

DOT Docket No. 50264, 1995 WL 262369, at *12.15 (May 4, 1995) (noting that 

dispute concerned a fee set by a written agreement and transferring the matter to 

FAA for a Part 13 proceeding). 

119. Indeed, the Rates and Charges Policy plainly contemplates that the 

FAA will investigate fees set by written agreement. See Rates and Charges Policy, 

78 Fed. Reg. at 55331-32 (noting that “a dispute that is not subject to expedited 

procedures [because it is governed by a written agreement], will be processed by 

FAA under procedures applicable to airport compliance matters in general”). The 

requirements of federal law cannot be waived or abrogated by contract. Id., § 1.3 

(“the requirements of any law...may not be waived, even by agreement with the 

aeronautical user”).

120. Neither United, nor its predecessor-in-interest, Continental, negotiated 

the EWR Master Lease. In fact, the Flight Fee formula in the EWR Master Lease 

was first implemented by the Port Authority in 1972, before the enactment of the 

Airline Deregulation Act in 1978. United does not know whether any airlines 

actually negotiated the terms of the Flight Fee formula in 1972 or whether the 

methodology was simply imposed by the Port Authority. But certainly, neither 

United nor Continental ever negotiated the Flight Fee methodology. And, as noted 

above, the Port Authority did not disclose to United the hidden profit embedded in 

the methodology until 2013.
55

121. Further, United never agreed – in writing or otherwise – to the ARFF 

charges or the other unreasonable or excessive charges described above. A charge 

imposed unilaterally by an airport, but which is calculated under a formula that 

exists in a master lease, is not a “charge imposed by written agreement.” Miami 

Int’l. Airport Rates Proceeding, Docket DOT-OST-96-1965-138, 1997 WL 33631154, 

at *11 (Mar. 19, 1997) (“Miami Airport”) (noting that “...we are reluctant to hold 

that an airline’s acceptance of a standard agreement requiring the payment of fees 

set by the airport must be deemed to constitute the kind of agreement barring an 

airline from obtaining relief under 49 U.S.C. § 47129...”).

B. THE EWR FLIGHT FEE VIOLATES FEDERAL LAW.

1. Overview.

122. The Flight Fee charged to United by the Port Authority at EWR 

violates federal law because (a) it is unreasonable and discriminatory; and (b) the 

formula by which the fee is calculated is not transparent.

123. The Flight Fee imposed by the Port Authority is unreasonable in two 

fundamental respects. First, it generates revenues in excess of the reasonable cost 

of operating the airfield; the Master Lease actually sets a Flight Fee rate that 

includes a hidden 38% markup over actual costs. Second, because the Master Lease 

structures the Flight Fee as a “cost-plus” arrangement, the Port Authority has a 

disincentive to maintain and operate the airfield in an efficient manner. The 

resulting Flight Fee is then unreasonably high. Because it has monopoly power, the 

Port Authority can force United and the other air carriers to pay this unreasonable 
56

Flight Fee, and because the Port Authority can divert its profits at EWR to 

subsidize its many money-losing off-airport projects, it has an incentive to maximize 

the fees it charges at EWR. Requiring United to pay fees that subsidize non-airport 

facilities is also unreasonable. The conclusion that the Flight Fee is unreasonable is 

amply supported by comparing the EWR Flight Fees to the landing fees charged at 

other airports.

124. The Flight Fee methodology is not transparent. The Master Lease 

itself does not reveal that there is a built-in profit component to the Flight Fee. 

This lack of transparency is compounded by the fact that the Port Authority has 

failed to share financial information with the airlines.

125. In addition, the Port Authority’s overall rate scheme violates federal 

law because it discriminates, without justification, between users of EWR, on the 

one hand, and JFK and LGA, on the other hand.

2. The EWR Flight Fee Is Not Reasonable.

a. The EWR Flight Fee Is Not Reasonable 

Because It Generates A Profit.

126. Under federal law, the fees imposed by an airport proprietor must be 

reasonable. The governing statutes, regulations, and policies that require that fees 

be reasonable are as follows:

a. The AAIA provides that an airport receiving federal assistance 

in the form of an Airport Improvement Program grant, such as 

EWR, must “be available for public use on reasonable conditions 

and without unjust discrimination.” 49 U.S.C. § 47107(a)(1)
57

(emphasis added). Once an airport accepts a federal grant, the 

assurance that it will be available on reasonable terms becomes 

“a binding contractual obligation between the airport sponsor 

and the federal government.” Indianapolis Airport at 11.

b. The AHTA provides that state and local governmental entities 

(including a local airport authority) “may not levy or collect a 

tax, fee, head charge” relating to the sale of air transportation or 

related transactions. 49 U.S.C. § 40116(b). An airport authority 

may impose charges on aircraft operators for the use of the 

airport facilities, but such charges must be “reasonable.” 49 

U.S.C. § 40116(e)(2) (emphasis added).

c. The FAA Authorization Act of 1994, 49 U.S.C. § 47129, 

mandated that the DOT publish “regulations, policy statements, 

or guidelines establishing...the standards or guidelines that 

shall be used by the Secretary in determining...whether an 

airport fee is reasonable.” 49 U.S.C. § 47129(b)(2). In response, 

the DOT and FAA published the Rates and Charges Policy, 

which has been revised from time to time since 1994 and most 

recently in September 2013. See Rates and Charges Policy, 78 

Fed. Reg. 55330. The Rates and Charges Policy in turn repeats 

the reasonability standard prescribed by the AAIA and AHTA: 

“Rates, fees, rentals, landing fees, and other service charges 
58

(‘fees’) imposed on aeronautical users for the aeronautical use of 

the airport (‘aeronautical fees’) must be fair and reasonable.” 

Rates and Charges Policy, 78 Fed. Reg. at 55331, § 2 (emphasis 

added).

d. Sponsor Assurance 22(a) requires that airport proprietors “make 

the airport available as an airport for public use on reasonable

terms.” Sponsor Assurances, § 22.a (emphasis added).

e. Sponsor Assurance 25 also requires operators to use “all revenue 

generated by the airport” on the airport, on airport-related 

facilities or, if a grandfather exception applies, on facilities 

owned or operated by the airport or on general debt obligations.

127. The law presumes that an airfield fee is unreasonable if it results in a 

profit for the airport proprietor. As the Rates and Charges Policy explains, “...the 

progressive accumulation of substantial amounts of surplus aeronautical revenue 

may warrant an FAA inquiry into whether aeronautical fees are consistent with the 

airport proprietor’s obligations to make the airport available on fair and reasonable 

terms.” Rates and Charges Policy, 78 Fed. Reg. at 55335, § 4.2.1; see also id. § 5.2 

(“[t]he progressive accumulation of substantial amounts of airport revenues may 

warrant an FAA inquiry into the airport proprietor’s application of revenues to the 

local airport system”). 

128. Rates, fees, rentals, landing fees, and other service charges should be 

set in a manner that enables the airport authority to recover the costs of operating 
59

the airport, not to make a profit. See id., §§ 2-2.7.2; FAA Airport Compliance 

Manual, FAA Order 5190.6B, § 18.8(h) (explaining that “[u]nless users agree 

otherwise, airfield fees generally may not exceed the airfield capital and operating 

costs of existing airfield facilities and services...”). A federally-funded airport, after 

all, belongs to the public; it is not a for-profit enterprise. See, e.g., Air Cal., Inc. v. 

City and County of San Francisco, 865 F.2d 1112, 1117 (9th Cir. 1989) (noting that 

cases have consistently “classified a municipally owned airport as a public utility.”);

cf. 18 U.S.C. § 956(b) (criminal statute punishing the destruction of an “airport...or 

other public utility”).

129. The Rates and Charges Policy’s rule prohibiting excessive profits is in 

line with the general rule of rate-making that fees should be based on the costs 

generally incurred. See, e.g., Public Systems v. F.E.R.C., 709 F.2d 73, 81 (D.C. Cir. 

1983) (“[r]atemaking is generally cost-based, and it is usually improper to consider 

‘costs’ that a utility does not actually incur”); Northwest Airlines, Inc. v. County of 

Kent, Michigan, 510 U.S. 355, 369 (1994) (“Kent County”) (holding that “a levy is 

reasonable...if it (1) is based on some fair approximation of use of the facilities, (2) 

is not excessive in relation to the benefits conferred, and (3) does not discriminate 

against interstate commerce”). 

130. Consistent with the Rates and Charges Policy’s admonition that the 

“progressive accumulation of substantial amounts of airport revenues may warrant 

an FAA inquiry,” (Rates and Charges Policy, § 5.2), DOT has held that “landing fees 

must be based on costs and that the airport may not charge landing fees that will 
60

cause the airport to generate unreasonable surpluses.” Los Angeles Int’l. Airport 

Rates Proceeding, Docket DOT-OST-95-474, 1997 WL 784476, at *20 (Dec. 23, 1997) 

(“LAX II”). 

131. Notably, in a dispute involving airport charges imposed by the Port 

Authority with respect to the operation of EWR, the D.C. Circuit affirmed the DOT’s 

ruling that certain capitalized planning costs were unreasonable. Port Authority of 

New York and New Jersey v. U.S. Dep’t. of Transp., 479 F.3d 21, 34-35 (D.C. Cir.

2007) (“Brendan Airways”). These charges were unreasonable because, among 

other reasons, the evidence showed that the Port Authority sought to collect 

significantly more than it actually spent. Id.; accord Los Angeles Dep’t of Airports v. 

U.S. Dep’t. of Transp., 103 F.3d 1027, 1035 (D.C. Cir. 1997) (“LAX I”) (noting that 

revenues from aeronautical fees should not exceed the costs of providing airport 

services).

132. Here, the Port Authority sets its Flight Fee rate-making formula so

that it reaps a 38% profit on many costs, and a 14% profit on others. This 

guaranteed profit may be the envy of the boardrooms of private corporations, but 

EWR is a public utility and the profit earned by the Port Authority at the expense of 

United and other airlines is not permissible under federal law.

133. As specific examples of the markup, the Port Authority will collect $9

million in 2014 on top of the ARFF charges, and an additional $3.8 million markup 

on police and traffic costs. 
61

134. In total, EWR typically generates an annual surplus of more than $160 

million. The Port Authority has not disclosed how much of this surplus comes from 

the Flight Fee, but United believes it may be as much as $50 million. As discussed 

above, the Port Authority uses this windfall to fund its other projects.

135. The EWR Flight Fee significantly exceeds the cost of operating and 

maintaining the airfield. This practice of imposing charges on the aeronautical 

users to generate a substantial annual profit violates federal law. See Rates and 

Charges Policy, 78 Fed. Reg. at 55335 at §§ 4.2.1, 5.2; Airport Compliance Manual, 

FAA Order 5190.6B, § 18.8(h); LAX II, 1997 WL 784476, at *20; Brendan Airways, 

479 F.3d at 34-35; LAX I, 103 F.3d at 1035. See also paragraphs 153-158.

b. The EWR Flight Fee Is Not Reasonable 

Because It Includes Unreasonable 

Expenditures.

136. Federal law, and the case law interpreting it, defines a “reasonable” 

landing fee as one that is roughly equivalent to the costs of operating the airfield. 

The other component of the reasonability of a landing fee is, as one would expect, 

that the airport proprietor’s expenditures in operating the airfield must be 

reasonable. 

137. As explained in the Rates and Charges Policy, “[a]irport proprietors 

are encouraged to establish fees with due regard for economy and efficiency.” 78 

Fed. Reg. at 55334, § 2.4.3. In other words, the guidelines prohibit the practice of 

“gold plating” – an airport cannot make extravagant and unnecessary expenditures 

and then pass the costs on to the users.
62

138. The Port Authority operates EWR as a cost-plus enterprise. If the Port 

Authority includes $1.00 of costs in the PAF Cost Factor component of the Flight 

Fee, it collects $1.38 from the aeronautical users for a 38 cent profit. And, if the 

Port Authority spends $2.00, it collects $2.76 from the users for a 76 cent profit. 

Perversely, the more money the Port Authority spends to operate and maintain the 

airfield, the more profit it generates.

139. Unsurprisingly, the Port Authority’s expenditures on the operation of 

the airfield are excessive. The ARFF expenditures are a prime example.

140. As noted in paragraphs 79-92, the Port Authority’s implementation of 

the ARFF cadre is unreasonable:

a. The Port Authority plans to hire existing PAPD members as 280 

dedicated firefighters to perform the firefighting duties 

previously performed by the 280 police officers, but nonetheless 

plans to hire 280 additional police officers. This redundant 

staffing will result in massive and unnecessary labor costs. 

b. Although the Settlement plainly provides that ARFF officers 

may not perform non-ARFF duties, the Port Authority 

nonetheless is devoting substantial resources to cross-train the

officers in firearms and other policing functions. This training 

will serve no purpose other than to drive up costs, which are 

borne by the users, including the built-in 38% markup.
63

c. The average annual cost per ARFF firefighter at EWR is an 

astronomically high $242,000. This is the result of the Port 

Authority’s decisions to provide wages and benefits that far 

exceed market rates and to allow excessive overtime.

141. The FAA Settlement does not require the Port Authority to operate the 

ARFF cadre in this manner. The FAA never, for example, directed the Port 

Authority to retain all 280 police officers on the ARFF cadre after hiring 280 new 

dedicated ARFF firefighters. Rather, the Settlement merely required the Port 

Authority to create a cadre of qualified ARFF firefighters. Nor does the Settlement 

require the Port Authority to provide training to its ARFF force in police functions. 

In truth, the Port Authority is using the Settlement as an excuse to cover excessive 

costs, which will in turn generate a greater profit. 

142. The costs associated with airport security and administration are also 

unreasonably high. See paragraphs 93-104. Once again, the Port Authority’s 

decisions to provide wages and benefits that far exceed market rates and to allow 

excessive overtime result in unreasonable charges to United and the other airlines.

143. There is every reason to believe that the Port Authority’s expenditures 

are unreasonably high in every other facet of the operation of the airfield as well. 

Unfortunately, the Port Authority has generally refused to share any meaningful 

data regarding its costs.
64

144. In summary, the Port Authority’s inefficient operation of the airfield –

which may be inefficient by design – results in unreasonably high fees and charges 

in violation of federal law. 

c. The EWR Flight Fee Is A Result Of The Port 

Authority’s Monopoly Power.

145. The federal regulatory scheme governing airport rates and charges is 

intended to prevent airports from using their monopoly power to impose 

unreasonable charges. As the Rates and Charges Policy notes, “[t]he Department 

assumes that the limitation on the use of airport revenue and effective market 

discipline for aeronautical services and facilities other than the airfield will be 

effective in holding aeronautical revenues, over time, to the airport proprietor’s 

costs of providing aeronautical services and facilities.” 78 Fed. Reg. at 55335, 

§ 4.2.1. Indeed, when the Rates and Charges Policy was first developed, the Federal 

Trade Commission, with whom the DOT consulted, noted that “the monopoly power 

of airport operators requires some pricing regulation.” 60 Fed. Reg. at 6912.

146. As the D.C. Circuit remarked in Alaska Airlines, Inc. v. Dep’t. of 

Transp., 575 F.3d 750 (D.C. Cir. 2009) (“LAX III”), the question of whether an 

airport proprietor is wielding its monopoly power to charge unreasonable rates is 

“the elephant in the room.” LAX III, 575 F.3d at 761. In evaluating a challenge to

airport rates and charges, the adjudicating agency or court must consider the 

impact of the airport’s monopoly power in setting rates. Id.

147. As discussed in paragraphs 65-66, the Port Authority has a monopoly 

on airports in the NYC metro area, the largest and most important airport market 
65

in the United States for both domestic and international travel. Specifically, the 

Port Authority operates EWR, JFK, and LGA, which account for over 96% of all air 

travel to and from the NYC metro area and are the only airports large enough to 

support any significant operations.

148. The Port Authority exploits its monopoly power to charge an 

unjustifiably high Flight Fee at EWR. The EWR Flight Fee is the highest in the 

United States by far – higher even than the JFK Flight Fee, even though the cost 

per enplanement at JFK is greater than EWR. The EWR Flight Fee, and all the 

fees charged to the aeronautical users at EWR, far exceed the costs to operate the 

airfield. 

149. As noted, EWR’s Flight Fee is higher than the JFK and LGA Flight 

Fees. Because United operates the vast majority of its flights to and from the New 

York City metro area out of EWR and United’s competitors operate mostly out of 

JFK and LGA, the unreasonably high EWR Flight Fee puts United at a significant 

competitive disadvantage.

d. The EWR Flight Fee Is Not Reasonable 

Because It Is Unjustifiably High Compared To 

The Landing Fees Charged By Other Airports.

150. When determining whether an airport’s fee scheme is reasonable, the 

DOT and FAA consistently seek to validate the methodology or fee by comparing 

the practices at issue with those of other airports. See, e.g., Miami Airport, at *10; 

LAX II, 1997 WL 784476, at *18; Bombardier Aerospace Corp. v. City of Santa 

Monica, FAA Docket No. 16-03-11, 2004 WL 3198208, at *33 (Jan. 3, 2004) 
66

(“Bombardier”). In Miami Airport, the DOT relied heavily on the evidence 

regarding the practices of other airports in arriving at its decision that the airport’s 

charges were reasonable. Miami Airport, 1997 WL 33631154, at *28.

151. Lest there be any doubt that the Port Authority’s Flight Fee at EWR is 

unreasonably high, one need only look at what other major airports charge. EWR’s 

Flight Fee is dramatically higher than the fee charged at any other airport in the 

nation. There is no justification for the disparity between EWR’s Flight Fee and 

those charged by other airports. 

152. The fact that EWR’s Flight Fee is out of step with other airports is 

powerful evidence that these charges are unreasonable. See, e.g., Bombardier, 2004 

WL 3198208, at *33 (finding that landing fees were unreasonable based on 

comparison with other airports).

e. The EWR Flight Fee Is Not Reasonable 

Because The Fee Is Excessive In Relation To 

The Benefits Conferred.

153. As explained above, the Flight Fee violates federal law (the AAIA, 

AHTA, and FAA Authorization Act) because it is not reasonable under the 

standards set by the Rates and Charges Policy. Prior to the publication of the Rates 

and Charges Policy, reasonableness was determined by the more general standard 

used by the Supreme Court in Kent County. See Kent County, 510 U.S. at 368-69. 

The Kent County standard tests whether a fee violates the Commerce Clause’s 

prohibition of state taxation that unduly burdens interstate commerce. Id. at 367.
67

154. Under Kent County, a local tax, fee, or levy passes constitutional 

muster if the fee “(1) is based on some fair approximation of use of the facilities, (2) 

is not excessive in relation to the benefits conferred, and (3) does not discriminate 

against interstate commerce.” Id. at 369. 

155. Whereas the Kent County standard establishes only a constitutional 

bare minimum for whether a fee imposed by a local government is compatible with 

the Commerce Clause, the Rates and Charges Policy articulates specific criteria for 

fees imposed on aeronautical users by airports. In other words, the Rates and 

Charges Policy is more stringent than the Kent County test.23

156. The Flight Fee and other charges paid by United at EWR violate even 

the less exacting Kent County standard because the fees are excessive in relation to 

the benefits conferred. Specifically, the fees generate surplus revenue that is used 

to pay for non-aeronautical activities, such as the construction of the World Trade 

Center or the repair of the Pulaski Skyway. A user fee is not permissible under 

Kent County if it includes an excessive amount of charges for activities or programs 

that confer no benefit to the user. See, e.g., Bridgeport and Port Jefferson 

Steamboat Co. v. Bridgeport Port Authority, 567 F.3d 79, 87 (2nd Cir. 2009) 

(“Bridgeport”) (striking down fee charged to ferry passengers because it was 

formulated to cover projects that did not benefit ferry passengers).

 

23 In Miami Airport, the DOT noted that the Rates and Charges Policy is the 

controlling standard for whether a fee is reasonable. Miami Airport, 1997 WL 

33631154, at *11. A fee must still, of course, pass constitutional muster under the 

Commerce Clause and Kent County.
68

157. Automobile Club of New York, Inc. v. The Port Authority of New York 

and New Jersey, 842 F. Supp. 2d 672 (S.D.N.Y. 2012), is instructive. In that case, 

the Automobile Club of New York (“AAA NY”), sought to enjoin certain toll 

increases because they were being used to fund the World Trade Center project. 

Notably, the Port Authority conceded “the applicability of the Supreme Court’s 

three-prong test, set forth in [Kent County], to determine the reasonableness of [the] 

fees....” Automobile Club of New York, 842 F. Supp.2d at 677. The district court, 

however, denied the plaintiff’s motion for preliminary injunction because the 

plaintiff was unable to prove that the Port Authority was using toll revenues to 

fund the World Trade Center project. Id. at 678.

158. Here, by contrast, the Port Authority openly admits that it diverts 

revenues from EWR to cover its other, non-aeronautical projects – such as the $14.8 

billion dollar construction of the World Trade Center – that provide no benefit to 

EWR’s aeronautical users. Consequently, the Flight Fee and other charges at EWR 

violate the Commerce Clause under Kent County. See Bridgeport, 567 F.3d at 86-

88.

3. The EWR Flight Fee Violates Federal Law Because 

The Methodology By Which It Is Calculated Is Not 

Transparent.

159. Airport proprietors must charge rates in a manner that is 

“transparent.” See Rates and Charges Policy, 78 Fed. Reg. at 55335, §§ 3.4 

(“[a]llowable costs – costs properly included in the rate base – must be allocated to 

aeronautical users by a transparent, reasonable, and not unjustly discriminatory 
69

rate-setting methodology”), 3.4.1 (“[c]ommon costs...must be allocated according to a 

reasonable, transparent and not unjustly discriminatory cost allocation 

methodology. . .”). 

160. The Rates and Charges Policy’s rule stating that rate-making formulas 

must be “transparent” requires the airport to disclose to the airlines all the cost 

data used to calculate the fees and charges. Indeed, the Rates and Charges Policy 

identifies certain information that airport proprietors should share with airport 

users to facilitate “meaningful consultation” regarding rates and charges. 78 Fed. 

Reg. at 55332, § 1.1.2, App. 1.

161. Courts have interpreted the Rates and Charges Policy to require that 

airports employ a “transparent, i.e. clear and fully justified method of establishing 

the rate base.” Bombardier, 2004 WL 3198208, at *13; see also Brendan Airways, 

479 F.3d at 35 (finding that EWR’s cost forecast supplied insufficient information 

about capital project planning costs to justify fees); Valley Aviation Services, LLP v. 

City of Glendale, AZ, FAA Docket No. 16-09-06, 2011 WL 2274635, *47 (May 24, 

2011) (“[t]here must, however, be a reasonable basis for establishing the rates, and 

the rate requirement must be applied consistently and in a transparent manner...”).

162. In fact, the Rates and Charges Policy contains a list of financial 

information that airports should share with the airport users who must pay the 

rates and charges. 78 Fed. Reg. at 55332, § 1.1.2, App. 1; see also American Airlines 

v. Puerto Rico Ports Authority, DOT Docket No. 50178, Order 95-46 at 18-19 (Apr. 3, 
70

1995) (directing airport to follow the practice of sharing information, as set forth in 

the Rates and Charges Policy). 

163. Importantly, in a fee challenge involving the Port Authority in 2000, 

the DOT stated that it was “concerned by the allegations that the Port Authority

refused to share financial information with the airlines when the airlines requested 

justification for the fees.” British Airways v. Port Authority of New York and New 

Jersey, Docket DOT-OST-2000-7285-15, Order 2000-5-23, at 10. (May 24, 2000). As 

the DOT stated, “we expect airports to make information available to the carriers, 

including historical financial information; economic, financial and/or legal 

justification for changes in fees; traffic information; and planning and forecasting 

information.” Id. at 10-11. 

164. Over the years, United has repeatedly asked the Port Authority to 

disclose the cost data used to calculate the Flight Fee. With few exceptions, the 

Port Authority has consistently refused to share any meaningful information 

regarding the specifics of the operational costs of the airfield.

165. At best, the Port Authority’s rate setting methodology for calculating 

the Flight Fee is opaque. The rate setting methodology lacks transparency and 

therefore violates federal law. See, e.g., Rates and Charges Policy, §§ 3.4, 3.4.1; 

Bombardier, 2004 WL 3198208, at *13; Brendan Airways, 479 F.3d at 34; Valley 

Aviation Services, LLP, 2011 WL 2274635, at *47.
71

4. The EWR Flight Fee Unlawfully Discriminates 

Against EWR Users.

166. Federal law requires not only that rates and charges be reasonable, 

but also that charges be imposed uniformly among similar aeronautical users. See

49 U.S.C. § 47107(a)(1) (airports must “be available for public use on reasonable

conditions and without unjust discrimination.”) (emphasis added); Rates and 

Charges Policy, 78 Fed. Reg. at 55334, §§ 3 (“[a]eronautical fees may not unjustly 

discriminate against aeronautical users or user groups”) (emphasis added); Id. at 

3.1 (“[t]he airport proprietor must apply a consistent methodology in establishing 

fees for comparable aeronautical users of the airport”); Airport Compliance Manual, 

FAA Order 5190.6B, p. 9-1 (“[a]n air carrier that assumes the same obligations 

imposed on other tenant air carriers shall enjoy the same classification and status. 

This applies to rates, fees, rentals, rules, regulations, and conditions covering all 

the airport’s aeronautical activities”); Indianapolis Airport at 12 (holding that 

airport proprietors must “treat in a uniform manner those users making the same 

or similar use of the airport...”). 

167. The Port Authority operates all three major airports in the NYC metro 

area. 

168. Air carriers operating out of JFK and LGA, on the one hand, are 

making similar use of the New York area airport system as those air carriers 

operating out of EWR, on the other hand. The Port Authority, however, charges 

higher Flight Fees for EWR than it does for JFK and LGA. There is no economic 
72

justification for the higher fees at EWR; in fact, the Port Authority’s cost per 

enplanement is actually higher at JFK than at EWR. Exhibit EE, ¶ 19.

169. This unjust economic discrimination greatly impacts United, which has 

a major hub operation at EWR. In fact, the Port Authority’s imposition of higher 

rates and charges at EWR than at JFK and LGA results in significant competitive 

imbalance that disadvantages United. In summary, the higher Flight Fees at EWR 

constitute unjust economic discrimination.

5. The Port Authority Illegally Diverts Aeronautical 

Revenues To Fund Non-Port Authority Facilities.

170. As noted in the FAA’s Policy and Procedure Concerning the Use of 

Airport Revenue, “[f]our statutes govern the use of airport revenue: the AAIA 

[Airport and Airway Improvement Act of 1982]; the Airport and Airway Safety and 

Capacity Expansion Act of 1987; the FAA Authorization Act of 1994; and the FAA 

Reauthorization Act of 1996. These statutes are codified at 49 U.S.C. 47101, et seq.” 

64 Fed. Reg. 7696 (Feb. 16, 1999). 

171. The regulatory framework of these four closely related statutes can be 

distilled as follows: Airport operators are eligible for federal funding only if they use 

aeronautical revenues for the operation or capital improvement of the airports, or 

the airport-owned facilities that are “directly and substantially” related to the 

airport. 49 U.S.C. § 47107(b)(1). 

172. The law carves out one narrow exception to this rule: the airport 

operator may divert aeronautical revenues but only if (a) such expenditures are 
73

governed by a “provision enacted not later than September 2, 1982, in a law 

controlling financing by the airport operator or owner”; and (b) the expenditures are 

used for “the general debt obligations or other facilities of the owner or operator.” 

49 U.S.C. § 47107(b)(2). It is this “grandfather” exception that the Port Authority 

uses to divert hundreds of millions of aeronautical revenues to other projects.24

173. The Policy and Procedures Concerning the Use of Airport Revenue

makes clear that airport revenue may only be diverted only if “the ‘grandfather’ 

provisions of 49 U.S.C. § 47107(b)(2) are applicable to the sponsor and the 

particular use.” 64 Fed. Reg. at 7719 (under heading “Expenditures of Airport 

Revenue by Grandfathered Airports”).

174. As discussed above, the Port Authority makes no secret that it diverts 

airport revenues to fund its non-airport money losing operations. In the Port 

Authority’s own words, the “facilities that generate net income – such as the 

airports, tunnels and bridges – along with financial income – help pay for those 

facilities that have been operating at a loss...” (emphasis added). Exhibit A, p. 10. 

175. The Port Authority also uses airport revenues to fund projects that 

exceed the limits of the “grandfather” exception. Specifically, the Port Authority 

spends money on roads, highways and other projects that it does not own or 

 

24 Notably, “in addition to the prohibition against awarding grants to airport 

sponsors that have illegally diverted revenue, the FAA considers the lawful 

diversion of airport revenues by airport sponsors under the grandfather provision as 

a factor militating against the distribution of discretionary grants to the airport, if 

the amounts being lawfully diverted exceed the amounts so lawfully diverted in the 

airport’s first year after August 23, 1994.” Policy and Procedures Concerning the 

Use of Airport Revenues, 64 Fed. Reg. 7697 (Feb. 16, 1999).
74

operate. The Port Authority’s 2014 Budget, for example, allocates $181 million for 

improvements to the Pulaski Skyway and $60 million for repairs to the Wittpenn 

Bridge. Neither are owned or operated by the Port Authority, and neither are listed 

as Port Authority facilities in the 2014 Budget. Exhibit A [2014 Budget] at p. 74.

176. The Port Authority has also diverted airport revenues to other projects 

far outside the scope of the “grandfather” exception. The Port Authority has 

expended tens of millions of dollars in recent years on the New Brunswick Civic 

Center, the Stevens Institute of Technology (a private college in Hoboken), the 

Jersey City Medical Center and Independence Park, a Newark space run by Essex 

County, New Jersey. See Exhibit K. 

177. The law is clear. Even under the grandfather exception, diversion of 

airport revenues is limited to debt service and “other facilities of the owner or 

operator.” 49 U.S.C. § 47107(b)(2).25 The Pulaski Skyway is not owned by the Port 

Authority; it is owned and operated by the New Jersey Department of 

Transportation. Similarly, the Wittpenn Bridge is not a Port Authority facility, nor 

are the other civic centers, parks, and hospitals that the Port Authority has funded 

with airport revenues over the years. 

 

25 Even if one were to ignore the clear statutory language and allowed the 

exception to include funding of facilities that are related to the operation of the 

airports, the Port Authority’s expenditures still violate the law. Indeed, with regard 

to the Pulaski Skyway, the Port Authority’s own in-house lawyer has opined that, 

even setting aside issues of revenue diversion, the Port Authority has “no 

authority. . . to construct, own, maintain or operate any of the approaches to the 

Holland Tunnel,” such as the Pulaski Skyway. Exhibit I, p. 2.
75

178. The Port Authority’s illegal diversion of airport revenues to pay for 

facilities that it does not own or operate constitutes a distinct and independent 

violation of federal aviation law.

PRAYER FOR RELIEF

Accordingly, United asks the FAA to investigate (i) the entire rate-making 

structure at EWR; (ii) the reasonableness of the resulting aeronautical fees; (iii) 

whether the Port Authority’s fees at EWR are discriminatory; and (iv) the extent to 

which the Port Authority diverts aeronautical revenues at EWR to non-aeronautical 

functions. United further requests that the FAA order the Port Authority to provide 

financial information to United, order a comprehensive audit of rate-making at 

EWR, and order all appropriate relief to United.