In what looks like a swap of increased capacity for reduced hours of operation, brokered by Representative Adam Schiff, the City of Burbank has offered the Federal Aviation Administration (“FAA”) a 14 gate replacement terminal at Bob Hope Airport (“Airport”) in return for which the FAA is being asked to approve a mandatory nighttime curfew from 10:00 p.m. to 7:00 a.m.

What makes this potential deal especially unusual is that in the years since the passage of the Airport Noise and Capacity Act of 1990, 49 U.S.C. §§ 47521-47534 (“ANCA”), the FAA has never agreed to the enactment of a limitation on hours of operation at any airport. It is true that some airports which had preexisting limitations on hours of operation, such as John Wayne Airport in Orange County, California, were allowed to retain those limitations as exceptions to the constraints of ANCA. See 49 U.S.C. § 47524(d). However, as recently as 2009, the FAA maintained its standard position that a mandatory curfew was not reasonable and would “create an undue burden on interstate commerce.” However, under ANCA, § 47524(c), the FAA has the power to approve a restriction that might otherwise be regarded as violative of the Airport’s contractual obligations to the FAA. See, e.g., City of Naples Airport Authority v. FAA, 409 F.3d 431 (2005). Thus, given the quid pro quo of a new 14 gate passenger terminal to enhance passenger access as well aircraft mobility; and the already existing voluntary curfew of the same scope; it is not inconceivable that the FAA may take the hitherto unprecedented step of allowing a mandatory curfew, where none had previously been permitted.

This negotiated outcome would sidestep the failure of Congressman’s Schiff’s efforts to enact a curfew at the federal level which effort made it to the floor of the House of Representatives in 2014 only to be rejected by a margin of four votes. In the final analysis, the FAA’s willingness even to discuss a curfew may signal a reversal in attitude which could serve the interests of airport impacted communities throughout the nation.