Lawyers for the Bahamian government have filed their response to an Airlines for America (A4A) complaint to the US Department of Transportation (DOT) alleging that the Bahamian government is inappropriately charging them for overflights fess in Bahamas airspace.
The December 20, 2022, A4A complaint on behalf of member airlines American Airlines, Atlas Air, Delta Air Lines, FedEx Express, JetBlue Airways, Southwest Airlines, United Airlines, and UPS Airlines allege the Bahamas government is milking them for cash by charging fees (USD8.50-51.60 per 100 nautical miles, depending on aircraft size) to fly in Bahamian airspace above 6,000 feet when airspace services there are provided by the US Federal Aviation Administration (FAA), which US-based airlines already pay annual charges to for airspace services. In their complaint, A4A demanded that the Bahamas stop charging their member airlines and if they did not, asked the DOT to suspend the rights of Bahamas-based airlines to fly to the US.
But the response filed on January 11 by Fort Lauderdale law firm Becker and Poliakoff on behalf of the Bahamian government says the A4A complaint is an attempt by its member airlines to access Bahamian airspace without paying for it. The response contends the member airlines cannot challenge a contract (the existing air transport agreement (ATA)) between the United States and The Bahamas because they are not parties to the contract. The response provides four reasons why the A4A complaint should fail; (i) the DOT does not have jurisdiction; (ii) the member airlines do not have standing to challenge the charges; (iii) the DOT is not the appropriate forum to resolve the alleged dispute; and (iv) the existing airspace charges are consistent with the governing agreement and identical for all airlines using Bahamian airspace.
"There is no support for the members’ claim that they pay double urging the DOT to accept the empty argument that they already pay the FAA for flying over The Bahamas," the filing said.
In January 2020, the Bahamas government entered into an ATA with the US that permitted both countries to charge user fees to the airlines of the other country “no less favourable than the most favourable terms available to any other airline at the time the charges are assessed.” Based on advice from ALG Global Infrastructure Advisors and ICAO's building block charging model, The Bahamas implemented overflight charges that they say covers their operating and capital costs plus a reasonable return on the assets.
The filing notes that before these charges were implemented, the FAA collected overflight fees in Bahamian airspace at a rate of USD61.75 per 100 nautical miles regardless of the aircraft's size, however, those fees were waived if the flight took off or landed in the US.
"After executing the ATA, commercial airlines no longer pay the FAA the en-route fee. Instead, airlines pay the overflight fees to BANSA (the Bahamas Air Navigation Authority), which are lower than the fees previously charged by the FAA." The Bahamian filing says that every airline, regarding of where it comes from, is now charged the same to fly across their airspace,
"The FAA waived the fee if the flight departed or landed in the US," the filing said. "Thus, the FAA did not include en-route fees in the payments made by the members to the FAA, but the members were paying other fees to the FAA... what the members are asking is to have The Bahamas discriminate against all airlines other than the members by charging different rates for them than everyone else."
The Bahamian government maintains its current overflight fees do not include the cost of airspace services provided by the FAA. Instead, the fees cover costs including Civil Aviation Authority Bahamas (CAAB) salaries, the costs of using external service providers, depreciation and amortisation, and the cost of capital.
"There is no way to avoid the core fact: a foreign sovereign (The Bahamas) that treats everyone the same cannot be liable for discrimination. That is the case here."
The Bahamian filing calls on the DOT to dismiss the A4A complaint because the current airspace charges are consistent with all guidelines and agreements that The Bahamas has entered into. In addition to the Bahamian government, six Bahamas-based airlines were also named in the A4A complaint. So far only one, Golden Wings Charter (Bahamas) (GWZ, Nassau International) has lodged a response to the complaint.
