CITY OF HOUSTON

Legal Department

Interoffice
Correspondence

To:

Mayor Armise D. Parker City Council Members

From:

iavid M. Feldman City Attorney May 4, 2012 Southwest Airline Request for International Service at Hobby Airport

Date: cc: Waynette Chan Andy Icken Darrin Hall Janice Evans Marta Crinejo William-Paul Thomas Subject:

In his presentation to City Council on April, 16, 2012, HAS Director Mario Diaz indicated that the City, in operating a public airport system, has limited discretion in responding to Southwest's request for additional gates and a Federal Inspection Services (FIS) facility at Hobby airport to accommodate international service. As a follow up to that, I conducted my own independent legal research to ascertain the City's specific legal obligations in responding to Southwest. My research showed that the City's discretion is, indeed, quite limited and that it has an obligation to provide reasonable access and accommodation to Southwest in response to its request, based in large measure upon the grant assurances the City has made to the FAA. In short, unless the accommodation sought by Southwest places an unreasonable burden on the City, the City must agree to it. Given the highly specialized nature of this area of the law, however, I also concluded that it would be wise to seek an outside legal opinion from a recognized aviation law expert. To that end, Peter Kirsch of the Kaplan Kirsch Rockwell law firm was contacted. Mr. Kirsch's opinion is attached, and it clearly confirms my own legal conclusions. I recognize that the subject of Southwest's request will be discussed at a meeting of the Council Budget and Fiscal Affairs Committee this coming Tuesday, and that both Southwest and United are scheduled to present their own independent studies regarding the economic impact of Southwest providing international service from Hobby. As reflected in the attached legal opinion, however, consideration of such economic issues for the community cannot be controlling; the City's obligation to provide reasonable accommodation to Southwest is paramount, irrespective of such issues. A determination regarding such accommodation can only be made by Council at a later time, based upon consideration of an agreement facilitating access. The agreement must be the result of good faith negotiations between the City and Southwest.