A federal appeals court decision could open Newark Liberty International Airport to more Spirit Airlines flights after judges overturned a Federal Aviation Administration decision to withdraw slots from another airline.

The U.S. Court of Appeals in Washington DC on Friday appealed to Spirit the FAA’s decision not to reallocate slots for flights 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 ignored warnings about the impact of its decision on competition in Newark.”

The decision overturns the FAA’s decision to withdraw peak-time permits, also known as slots, previously held by Southwest at Newark Airport. The decision is made as air traffic recovers from coronavirus lows and airlines add and book more flights.

“We conclude that the FAA’s decision was final because it prevented Spirit from making as many peak-time flights as it would otherwise have done in the summer 2020 planning season,” the judges wrote.

Since 2016, the FAA has set hourly and half-hourly caps for take-offs and landings for a specific planning season in Newark.

According to this system, each airline informs the FAA which flights they want to operate in the coming season. The FAA can then approve an airline’s plan or request a change to reduce congestion.

While an airline is not legally excluded from flights that are not on their FAA-approved schedule, this could worsen congestion and cause the FAA to revert to slot control.

If the airport returned to slot control, only flights that are currently operated with the blessing of the FAA could continue.

When the FAA controlled the allocation in Newark in 2010, Southwest received additional slots as a condition for the merger between United and Continental Airlines. The US Department of Justice cleared the merger of United’s transfer of 36 slots to Southwest Airlines, a low-cost airline that was not operating in Newark at the time, in order to avoid competition damage at the airport.

Of the 36 slots in the southwest, around 16 were in the coveted “peak hours”, which last from 7:00 am to 8:59 am and from 1:30 pm to 9:59 pm and are the most popular.

Following the move from Southwest, Spirit Airlines officials immediately urged the FAA to use the 36 slots in Newark to “continue the low-fare service established by the Justice Department in 2010 and prevent the adverse effects on competition” slots were withdrawn.

Port Authority officials and the US Department of Justice’s antitrust division have also campaigned to give Spirit slot clearance to maintain competition at the airport. They called the Southwest rush hour withdrawal permits “a drastic measure to tackle traffic congestion and would cause significant damage to competition and passengers in Newark,” court records said.

United Airlines accounted for 72 percent [Newark’s] Peak hourly operation “and” the real price of [United’s] Dominance … is borne by consumers in the form of higher ticket prices or the “Newark Premium”, “said Huntley Lawrence, aviation director for the port authority, in an August 2019 letter.

In its planning for winter 2019/2020 and summer 2020, the FAA decided not to assign any Southwests slots to an airline as it would exceed the current planning limits of the airport.

Spirit challenged the FAA’s decision, naming it haphazardly because it failed to take into account the competitive impact. Spirit also claimed that the FAA lacked material evidence to support their decision.

The FAA’s action “effectively prohibits Spirit from making as many peak-time flights as it would otherwise,” the judges wrote.

“We welcome the decision of the Court of Justice. This decision recognizes the danger that the largest airline will become even more dominant at Newark-Liberty International Airport, ”said Field Sutton, a spokeswoman for Spirit Airlines. The reopening of Peak Slots in Newark will result in lower rates and will be a win-win for travelers from New York and New Jersey. “

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

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Larry Higgs can be reached at [email protected]