As you may know, the Obama administration's latest budget proposes a new $100 per flight user fee for the privilege of using air traffic control services. The operators flying in controlled airspace would be required to pay the fee to the FAA. However, certain operations would be exempt from the fee including military aircraft, public aircraft, recreational piston aircraft, air ambulances, aircraft operating outside of controlled airspace, and Canada-to-Canada flights.
However, what has been missing from the discussion of the proposed user fee are a whole variety of practical, and legal, questions that remain unanswered:
The FAA as collector? If the FAA collects the fees, will this require formation of an additional level of bureaucracy to deal with collection and enforcement? Alternatively, would the FAA's regional counsel's offices be tasked with collection of unpaid fees? If so, how would that impact their current civil penalty and certificate action enforcement caseload? Or perhaps the FAA would handle collections out of its chief counsel's office.
In any event, more bureaucracy is very rarely a good thing. As an example, just look at the creation and unprecedented growth of the Transportation Safety Administration bureaucracy. And how would that additional bureaucracy be funded? Seems like a "catch-22" waiting to happen.
How will the user fee be assessed? Will the fee be assessed against the pilot, against the aircraft or, perhaps, against the aircraft owner? If the fee is assessed against the aircraft owner, what if the aircraft owner didn't authorize the activity for which the fee was charged? Would assessment of a fee against an aircraft owner under these circumstances violate due process?
How will the user fees be collected? Will the fees be charged at the point of sale (e.g. when you obtain file a flight plan or request a clearance) or will an account be established upon which an invoice or bill will later be sent requesting payment? If the former, would ATC demand a credit card number from a pilot prior to delivering a clearance or accepting a flight plan? If the latter, will the account be for the pilot, the aircraft, the aircraft owner or all of the above?
What happens if a user disputes a fee? For example, what if the fees are assessed against the wrong party or the amount assessed is incorrect? Will the innocent/aggrieved party have the opportunity/ability to contest or object to imposition of the fee? Who will decide the dispute? Will the dispute resolution process be fair and provide due process? Will the user have the right to appeal?
What happens if they are not paid? Will the government aggressively collect unpaid fees? Could unpaid fees become liens against aircraft or, worse yet, the equivalent of tax liens against the pilot or aircraft owner? If the unpaid fees are assessed against a certificate holder (e.g. pilot or air carrier) could the certificate holder's certificate(s) be at risk for failure to pay?
As you can see, aside from the political arguments as to whether user fees are an appropriate funding source for the FAA, the logistics of implementing a user fee system present equally formidable challenges that have yet to be addressed. Rather than simply looking at the potential revenue that user fees may generate, the administration will also need to offset that revenue with the costs of implementing and managing the necessary collection and enforcement mechanisms.
Additionally, the FAA would likely need to promulgate rules to address, and answer, all of these questions, and more. This would take time and cost more money. At the end of the day, an honest analysis will likely reveal that aviation user fees are simply not worth it.