More Spirit Airlines Flights Could be Coming to Newark Airport Thanks to Court Ruling

A federal appeals court decision could open up Newark Liberty International Airport to more Spirit Airlines flights after judges reversed an Federal Aviation Administration decision to retire slots left by another airline.

The U.S. Court of Appeals in Washington D.C. granted Spirit’s appeal on Friday of an FAA decision not to reallocate slots for flights that were left after Southwest Airlines moved from Newark Airport to LaGuardia in 2019.

The three-judge panel concluded that “the FAA’s decision was arbitrary and capricious because the agency disregarded warnings about the effect of its decision on competition at Newark,” according to the ruling.

The decision vacates the FAA’s decision to retire the peak-period flight authorizations, also known as slots, previously held by Southwest at Newark Airport. The decision comes as air travel is bouncing back from coronavirus lows and airlines are adding and booking more flights.

“We conclude the FAA’s decision was final because it prevented Spirit from operating as many peak-period flights as it would otherwise have done in the Summer 2020 scheduling season,” the judges wrote.

Since 2016, FAA places hourly and half-hourly caps on takeoffs and landings for a given scheduling season at Newark.

Under that system, each airline tells the FAA what flights it wants to operate during the upcoming season. The FAA can then approve an airline’s plan or request a change to reduce congestion.

While an airline isn’t legally barred from operating flights that aren’t on its FAA-approved schedule, that could worsen congestion and prompt the FAA to return to slot control, court papers said.

If the airport were returned to slot control, only flights that currently operate with the FAA’s blessing would be allowed to continue.

When the FAA controlled allocation at Newark in 2010, Southwest gained additional slots as a condition of the merger between United and Continental Airlines. The U.S. Department of Justice made approval of the merger contingent on United transferring 36 slots to Southwest Airlines, a low-fare carrier that wasn’t operating at Newark at that time, to prevent harm to competition at the airport.

Of Southwest’s 36 slots, approximately 16 were in the highly desirable “peak hours,” which run from 7:00 a.m. to 8:59 a.m., and from 1:30 p.m. to 9:59 p.m., which are in the greatest demand.

After Southwest moved, Spirit Airlines officials immediately asked the FAA for the 36 slots at Newark to “continue the low-fare service that had been established by the Department of Justice in 2010 and prevent the detrimental effects on competition” they contended would ensue if the slots were retired.

Port Authority officials and the U.S. Department of Justice anti-trust division also weighed in to support giving Spirit the slot authorizations to maintain competition at the airport. They called retiring Southwest’s peak hour authorizations “a drastic measure to address congestion and would do substantial harm to competition and to passengers at Newark”, court papers said.

United Airlines accounted “for 72 percent of [Newark’s] peak hour operations” and, “the true price of [United’s] dominance ... is borne by consumers in the form of higher ticket prices, or the ‘Newark Premium,” said Huntley Lawrence, Port Authority aviation director in an August 2019 letter.

In its Winter 2019/2020 and Summer 2020 scheduling, the FAA decided not to allocate Southwests slots to any airline, contending it would exceed the airport’s current scheduling limits.

Spirit challenged the FAA decision, calling it arbitrary because it failed to consider the effect on competition. Spirit also contended the FAA lacked substantial evidence for its decision.

The FAA’s action, “effectively forecloses Spirit from operating as many peak-period flights as it would otherwise do,” the justices wrote.

“We applaud the Court’s decision. This ruling recognizes the danger of allowing the largest airline at Newark-Liberty International Airport to become even more dominant,” said Field Sutton, a Spirit Airlines spokeswoman.” Re-opening peak slots at Newark will promote lower fares, and it’s a win for New York and New Jersey travelers.”

Currently, Spirit has 14 daily flights from Newark, primarily to Florida, Puerto Rico, Texas, New Orleans and Las Vegas.

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Larry Higgs may be reached at [email protected].

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