Many of us will always remember the “too big to fail” argument that was used to protect some major financial institutions from going under during the financial crisis of 2008. It was popularized in a book by that title by Andrew Ross Sorkin and later was made into a movie. Basically, the argument is that the government can’t allow certain major institutions to go under because they are so interwoven into the American economy that their failure will cause devastating ripple effects throughout the economy. While small companies can be allowed to suffer the consequences of their bad economic decisions—like taking on too much risk, which causes them to go belly up—the government will intervene to bail out those that are deemed “too big to fail,” no matter their culpability. The “too big to fail” policy is one that many believe allowed those most responsible for the financial crisis to escape accountability.

With that in mind, I have to admit that reading the latest DOT Office of Inspector General’s report on the FAA’s oversight of Southwest Airlines made my blood boil. For many reasons. For one, the report highlights an issue that has been percolating in aviation circles for as long as I can remember. Is there a different law for big carriers versus small carriers? In other words, are similar regulatory violations at the major carriers enforced differently by the FAA than they are against smaller airlines, especially Part 135 operators? And most especially when it comes to emergency revocation of Part 135 air carrier certificates? Is there such a thing as “too big to revoke” in the aviation industry?

By government report standards, OIG’s report is fairly short at 31 pages, and it’s truly startling. The report addresses the FAA’s oversight shortcomings but takes the opportunity to highlight Southwest’s alleged regulatory violations that demonstrate just how big those shortcomings are. The two biggest conclusions of the report are: “First, Southwest Airlines continues to fly aircraft with unresolved safety concerns” and second, “The FAA cannot provide assurance that the carrier operates at the highest degree of safety in the public’s interest, as required by law.”

As far as unresolved safety issues, this is what the report states:

For example, the FAA learned in 2018 that the carrier regularly and frequently communicated incorrect aircraft weight and balance data to its pilots—a violation of FAA regulations and an important safety issue. Southwest Airlines also operates aircraft in an unknown airworthiness state, including more than 150,000 flights on previously owned aircraft that did not meet U.S. aviation standards—putting 17.2 million passengers at risk. In both cases, the carrier continues operating aircraft without ensuring compliance with regulations because the FAA accepted the air carrier’s justification that the issues identified were low safety risks. [emphasis added]

What? “...continues operating aircraft without ensuring compliance with regulations”! These are pretty startling allegations about any airline let alone a major carrier that transports millions of passengers annually. Southwest has publicly disputed characterizations in the report about its safety culture and commitment to safety. The allegations related to incorrect weight and balance data are now the subject of a recently announced proposed $3.9 million FAA civil penalty. But a civil penalty doesn’t cure the OIG’s claim that aircraft are continuing to be operated “without ensuring compliance with the regulations.”

In what universe would the FAA allow a small Part 121 or any Part 135 operation to fly with known violations of the federal aviation regulations? A look at recent revocations of Part 135 operators indicates the disparity in sanctions.

This past January, the FAA issued a press release announcing that it proposed to revoke a small carrier (I won’t name the carrier because I don’t know the status of the case, and I don’t want to give it more bad publicity if the case has been withdrawn or settled) for allegedly operating numerous Part 135 flights using aircraft not listed on its operations specifications, using aircraft that had not undergone safety inspections and with unqualified pilots. Of course these sound like dangerous violations. But not that different from the ones alleged against Southwest. A careful reading indicates that the violations relate to operations without knowing the status of the aircraft and not knowing the status of the pilots. Aviation safety depends on affirmatively knowing whether an aircraft is safe to fly and whether the pilots are, in fact, qualified. The same is true for small airlines and big airlines, in my opinion.

Another recent FAA enforcement action involves the proposed revocation of a Part 135 operator's certificate for allegedly operating numerous flights in a Learjet that was not on the company OpsSpecs and continuing to operate the aircraft even when the FAA notified them of discrepancies that didn’t allow the aircraft to be placed on the company’s OpsSpecs. If true, these are significant safety violations. But how different are they from what the OIG has alleged against Southwest?

And there are more similar cases against small air carriers, many of whose certificates were revoked by emergency order. In other words, the FAA grounded them first and then they were given an opportunity to appeal, while not making any money to pay for their appeal.

I have no idea whether the allegations made by the DOT OIG against Southwest are true. And I don’t know whether they are too big to revoke. But at a minimum, the FAA should review whether individual aircraft that don’t meet the requirements of the regulations should be grounded. The FAA can do this in several ways, but ultimately by pulling the airworthiness certificate of the aircraft. At least then it would be protecting the safety of the traveling public and giving the appearance of treating small and big carriers the same when it comes to violations of the regulations.