Major U.S. airlines ran to the government to try to quash competition and a better inflight product option for passengers. Their first attempt, with the Department of Transportation, may not be working. But their next play with TSA can be done in secret and stands a better chance.

Dallas-based JSX flies regional jets that usually hold 50 seats with just 30 first class seats. This allows them to:

operate from private terminals, instead of the main terminal at airports hire senior captains, often recently-retired from American Airlines and Southwest, as well as co-pilots with fewer hours in the cockpit They do this by selling seats (part 380) on public charter flights (part 135), rather than as a regularly scheduled airline. It’s a brilliant business model that benefits from long-standing regulations, and provides a unique product to customers – show up at the airport 20 minutes before your flight, walk out to a shared private jet.

Naturally, Southwest Airlines which is based at Dallas Love Field alongside JSX doesn’t like it. And American Airlines, based at Dallas-Fort Worth and which sells its own first class product, doesn’t like it.

The major pilot unions do not like it either, because it allows pilots to keep flying after age 65 and allows a path towards earning a salary while building up the hours needed to fly for a commercial airline. ALPA, in particular, takes great pride in the barriers to entry – both cost and time – that they’ve succeeded in lobbying for, limiting the number of commercial pilots and increasing their bargaining leverage.

This all came to a head when SkyWest proposed using this same business model for ‘SkyWest Charter’ which they intended to use for Essential Air Service routes. Pilot unions opposed this, which meant they had to attack incumbent carriers flying as public charters as well. And major competitors American and Southwest signed on (United and JetBlue are part-owners of JSX).

Opponents succeeded in getting the FAA to consider new rules that would bar the business model. I co-authored a regulator comment which, among other things, pointed out:

That data doesn’t support safety concerns That the rules JSX follows are appropriate And that DOT likely lacks the statutory authority to impose new requirements on public charter operators. 49 USC 41104 clearly precludes the Secretary of Transportation from imposing rules on public charters that are more restrictive than those in place on October 1, 1978.

The FAA, still reviewing the unprecedented 60,000 comments they received on this rule, has not yet acted or offered comment on when they might take any action.

However the TSA is expected to suggest rule changes for public charter operations in the coming weeks.

The Department of Transportation can address pilot training rules, but not security rules. That’s the province of TSA. Airlines have been pushing for a crackdown on JSX’s ability to operate out of private terminals. TSA is going to share new proposed rules with airlines, but not the public. There will be no public opportunity to comment on “sensitive security information. The Transportation Security Administration plans to share the proposals with public charter carriers such as Dallas-based JSX and will allow a period for feedback, according to people familiar with the matter who asked not to be identified because the issue is private. The suggested changes, which potentially could threaten the business model, won’t be made public because they’re considered sensitive security information.

So this is another bite at the apple for big airlines to try to put JSX out of business. When speaking internally to employees, American Airlines has explained their lobbying against JSX as a competitive response to the carrier which offers consumers a more compelling product.

And of course American codeshares with public charter carrier Contour, and owns a stake in Brazilian carrier Gol, neither of which operates under pilot rules that the airline claims when in public are necessary for safety.

Currently, JSX passengers have their bags swabbed, their IDs checked against screening databases, and go through screening. This screening is not conducted by TSA however, and there’s no shoe removal or liquid bag restrictions.

Will TSA’s proposed rules do the airlines’ bidding, shutting down a competitor, when their lobbying of the Department of Transportation hasn’t worked thus far? We don’t actually know, because this is all happening in secret. TSA had no concerns over security of public charter operators using private terminals until major airlines and pilot unions began their lobbying campaign.

DOT planned to put JSX out of business at the behest of American, Southwest and ALPA. But that had to be done publicly and more public comments in opposition were filed than DOT has ever received before. The TSA does not have to operate under the same sort of sunlight – we don’t even get to know what they propose.

Update: TSA offers the following statement,

TSA works closely with all its airline stakeholders to ensure the appropriate security procedures are in place to protect the transportation system and facilitate the movement of people and goods. There is an increase in the number of airlines operating public charter flights on a scheduled basis, so TSA is reaching out to the airlines in review of its security program related to these public charter flights.

TSA had not expressed concerns over the long-standing business model of carriers like Contour, and JSX which has been operating for more than 7 years, until American, Southwest and ALPA began their lobbying campaign. There are, in fact, fewer public charter carriers operating today than there were in 2010. And there are no more passengers flying public charters than during the period of 1976 (prior to deregulation) through 1998, as my co-author and I document in our public comment submitted to DOT on proposed rules.