Air Transport World

Regulatory overreach. (U.S. international aviation law)

Under international law, just how far can a government go to protect its own enlightened self-interest?

AS SECTION 41311 OF THE U.S. Code clearly states, "An air carrier or foreign air carrier may not install, transport or operate, or permit the use of any gambling device on board an aircraft in foreign air transportation."

One paragraph buried amid a massive compilation of laws and directives. Twenty-nine words. Yet, it has managed to irritate virtually the entire international aviation community, re-enforcing the idea that while the U.S. may be a leader in aviation, it also tends to be "imperialistic" and "arbitrary" in its dealings with the carriers of other nations.

In 1944, ICAO held the Chicago Convention to develop basic rules under which international aviation would operate. A key to these rules was the idea of reciprocity among nations working within the parameters of international law to promote the free flow of commerce. The flaw is that individual governments operate under the principle of enlightened self-interest, which often is at odds not only with other international bodies but also, occasionally, international law.

A case in point is a recently enacted law that prohibits international carriers from offering games of chance to their passengers, even outside U.S. territory. The law tells the carriers that if they wish to fly into the U.S., the passenger-entertainment-video consoles on the aircraft may not have software that allows a passenger to gamble, even over international waters or the carrier's own territory.

According to a spokesperson for Sen. Slade Gorton (R-Wash.), who inserted the language in the 1994 FAA Authorization Act, gambling is prohibited "because the Senator and others do not want aircraft to become flying casinos. The purpose of an aircraft is to transport people .... The Senator and others do not want someone who does not approve of gambling to be forced to sit next try someone who is gambling." Needless to say, this did not sit well with carriers that already are planning to offer on-board gambling as a part of their interactive video entertainment packages.

The problem, of course, is the phrase "may not install [or] transport." Without those two provisions in the law, non-U.S. carriers would be able to simply turn off the appropriate software as they entered U.S. territory. To the carriers, this is unneeded and possibly illegal regulation of an already highly regulated industry.

Another issue is a proposal that all non-U.S. carriers entering U.S. airspace conform to FAA standards for drug and alcohol testing. NonU.S. carriers contend that the U.S. is implying: that no other standard is equal to its own.

The FAA response was terse: "Any carrier that wants to fly into our market has to meet our standards. …

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