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MH370: Let’s Avoid Hysteria . . . Again

When MH 370 first went missing on March 8, 2014, Plane-ly Spoken was highly critical of the amount of media hysteria and speculation that was taking place. [Link]

The discovery of what appears to be a piece of a wing of a Boeing 777 aircraft, likely MH 370, is like a short fuse set to ignite an explosion of speculation.  Most 24/7 media outlets have, to a greater or lesser degree, entered the arena with a whole host of aviation, ocean current, marine biology, forensic, criminal and other “talking heads.” Theories go from, it’s the key to unlocking what happened to, it’s meaningless since it was found 2400 miles from the area the aircraft was flying, 16 months later.  It would be refreshing if just one of the media outlets would call what they’re doing “All Speculation. All the Time.”

Maybe examination of the piece will yield some answers.  Probably, it won’t.  Either way, speculation is useless and is like a continuing series of gut punches to the families of the crew and passengers, who may very likely never have answers.

And, oh yeah, while we’re talking about the crew, let’s remember there still isn’t a single shred of evidence that the pilot or co-pilot did anything wrong.

Recent reports attributed to unidentified US intelligence authorities that the flight track of the aircraft had to have been directed from the flight deck, has, once again, cast a shadow over the two pilots who, by all accounts, were highly professional, dedicated airmen. Unlike the Germanwings co-pilot who left an evidentiary trail of medical/physiological problems, these men appear to have been squeaky clean.

Despite this, their character and integrity have once again been called into question.  Despite no evidence they did anything wrong, their memories and families will be forever under a cloud.

Let’s not repeat the mass hysteria and speculation of 16 months ago.  Let’s recognize that oceans are vast and may never, despite how hard we ask or how long we look, give up their answers.

MH370: Let’s Avoid Hysteria . . . Again

UAS: ALPA Wish List

The Air Line Pilots Association has not been shy about making their opinions known on UAS issues.  They took a strong stand in favor of requiring a commercial pilot’s license in their comments to the first Section 333 Exemption Petitions.  In addition, they filed rather detailed comments to the Small UAS NPRM on issues related to safety and the proposed UAS Operators Certificate.

Earlier this week, ALPA released a new white paper entitled, Keep America Flying: A Flight Plan for Safe and Fair Skies.  The white paper addresses a number of issues, including NextGen and air traffic reform, the federal flight deck officer program, the growing problem with transport of lithium ion batteries, open skies agreements, and UAS.

ALPA recognizes that small UAS operations have sparked “enormous commercial growth, providing considerable social and economic benefit.”  ALPA believes that so long as these operations are conducted in the current framework, i.e., segregated from other users of the National Airspace System (NAS) by the 500 foot altitude limits and restrictions on operations near airports, the risks to other operators are significantly reduced.  However, the white paper also shows how moving UAS to the next level and integrating their operations into the NAS will be significantly more difficult.  To that end, ALPA draws a line in the sand and sets out what it sees as the minimum requirements for a fully integrated system:

  • All safety-based rules applicable to manned aircraft should be applied to UAS.
  • UAS should not be granted routine access to the NAS unless they meet the same safety standards that apply to current certificated aircraft and operators.
  • Pilots of commercial UAS must hold a commercial pilot’s certificate.
  • Operators of commercial UAS should be subject to the same operational approval and oversight as commercial airlines.
  • No one should be permitted to control more than one aircraft at a time.
  • UAS must have active collision avoidance functionality.
  • All UAS that are not intended to be flown in the same airspace as manned aircraft must have geographic and altitude limitations built into them to ensure they cannot enter manned airspace.
  • All UAS must have the capability to land safely in the event of a lost-link.

Given the enormous time and effort that has gone into the creation of the Small UAS rule, many people have lost sight of the fact that this is actually the easy part of the task Congress has set before the FAA.  Full integration of UAS into the entire airspace is a monumental task, and will require a much more “hands-on” approach from the FAA at all levels, whether it be pilot requirements, training, aircraft certification, air traffic control, or operator certification.  Regardless of whether or not ALPA ultimately gets everything it wants out of this process, all of these issues will have to be examined and addressed in the next round of rulemaking.

UAS: ALPA Wish List

Third Party Providers: What They Are, What They Do and What You Need to Know About Using Them

The Airline Symposium, held annually in February, has grown in both numbers and profile over the last nine years. To bring you the Symposium’s benefits all year long, we are pleased to invite you to the Airline Symposium Webinar Series. These complimentary hour-long webinars take a more in-depth look at subjects touched on at the Symposium.

Dentons is proud to work with Deborah Thompson, a recognized expert in airline emergency response and family assistance, to bring you these events.

This webinar will focus on selecting and using third-party family assistance support providers following an incident or accident. We will discuss:

  • What a third-party provider is
  • What services a third-party provider offers
  • Levels of services available
  • Who offers these services
  • How to hire and control third-party providers
  • How to differentiate among providers
  • The role of the Red Cross at the local and national levels
  • Interfacing third-party providers with company personnel, passengers and families
  • And many other aspects of this little examined topic

We hope you can join us on August 5. If you’re unable to attend, a recording of the webinar will be made available after the event.

Event Details
Webinar

Date and Time
August 5, 2015
1:00-2:30 pm ET

Contact
Ann Gammon
D +1 202 496 7387

RSVP now

Third Party Providers: What They Are, What They Do and What You Need to Know About Using Them

FAA – Lasers And Airplanes: It’s Only A Matter Of Time

Despite all of the attention and action taken over the past three years, lasers continue to be a serious problem for aviation safety.  Just this week, four more planes had lasers shined into their cockpits at an altitude of several thousand feet.  This comes on top of reports last week of sixteen planes being targets of lasers over New Jersey and Pennsylvania.

Most people look at “street legal” lasers, which have power of 5 milliwatts or less, as harmless toys, but as this picture shows, even these low-power lasers can produce a blinding glare in a cockpit  at over a quarter mile.  Even more serious, lasers 100 times more powerful are used for a wide array of commercial and medical purposes and are subject to abuse.  For example, in March of this year, a man was arrested after his misuse of a laser resulted in eye injuries to three pilots and two police officers who were looking for the laser’s origin.

So, how widespread is the problem?  According to the FAA, the number of reported laser incidents has gone from 2,837 in 2010 to 3,894 in 2014.  Is this problem the result of a lack of laws or enforcement actions?  No.  The man in the incident above was arrested and charged with “assault on a police officer, felony assault, menacing a police officer, reckless endangerment and criminal possession of a weapon.”  In addition to these sorts of charges that can be brought under state law, aiming a laser pointer at an aircraft is a federal crime under 18 U.S.C. § 39A, and is punishable by fine and up to five years imprisonment.  The FAA Chief Counsel’s Office has also held that shining a laser at an aircraft constitutes interference with a crewman in the performance of his duties.  As a result, the FAA can pursue the matter as a civil penalty action with a maximum fine of $25,000 for each occurrence.

This problem is, in many ways, the same one that arises from UAS operations near airports.  There is a proliferation of very capable technology at a very low cost.  As a result, there are a large number of people using devices who do not have a very clear understanding of either what the risks are, what the consequences might be of careless actions, or, simply stated, don’t care.  Perhaps it’s time for the FAA to update its laser safety page and once again, shine a “spotlight” on this issue.

FAA – Lasers And Airplanes: It’s Only A Matter Of Time

MH 17/MH 370: One Year Later . . . . And Counting

A year ago MH 17 crashed in Ukraine, killing 298 people.  The airplane was shot down, but other than that one fact, little else is known.  Sure, there’s been a lot of geo-political finger pointing and the talking heads of the 24-hour news cycle have speculated and theorized.  However, there has been no meaningful investigation and no real closure for the families or, for that matter, the international community.

Even more frustrating is MH 370, where, despite extensive efforts to find some evidence of the airplane, here we are, 16 months later, not knowing any more than we knew on March 8, 2014, when the airplane disappeared.  At least the families of the passengers of MH 17 know how their loved ones died.  Seemingly, neither of these events rises to the level of news anymore, let alone “breaking news.”

So what happens now for these two tragedies?  The Australian/Malaysian search effort for MH 370 has been unsuccessful.  In all likelihood, whatever residual search efforts are still going on will end, followed by outcries from the families.  But the time is coming, sooner rather than later, when the involved governments will have to “bite the bullet” and declare they’ve done their best and, simply stated, there’s no place else left to look.

As for MH 17, the involved governments have never gotten past the finger pointing and political games. To date, there has been no meaningful accident investigation.  ICAO Annex 13 has become a theoretical exercise and the international community has essentially found itself, if not powerless, pretty close to it.  At this point, it appears that there may never be a meaningful investigation of this aviation tragedy.

It is a tremendous contradiction that while the safety of airline travel is at unprecedented levels, we still have two airline disasters with very few meaningful answers.

MH 17/MH 370: One Year Later . . . . And Counting

ALERT!

Jim Williams, Former Manager of FAA UAS Integration Office, Joins Dentons US

Plane-ly Spoken is very excited to announce that James (Jim) Williams, who retired from the FAA on June 1, as the Manager of the UAS Integration Office (AFS-80), has joined Dentons US as a Principal and Co-Chair of the UAS Practice.

Look for more information shortly in Plane-ly Spoken about an interactive webinar in mid-August, “A Conversation with Jim Williams,” where attendees will be able to ask Jim questions about all things UAS.

ALERT!

Webinar Roundtable: Insurance and UAS Operations

What You Should Be Looking for in an Insurer and What Insurers Are Looking for From You

Everyone knows they need insurance, but how do you get it?  This webinar will feature a distinguished panel of insurance professionals who write policies that cover all aspects of the unmanned aircraft systems (UAS) industry.  They will present you with a lively discussion and practical information you need to know before you begin your UAS operations.

Join us to learn more about:

  • What insurers are writing UAS policies?
  • Who are the key brokers?
  • How much coverage do you need?
  • How much, if any, of your liability is it safe to “self-insure?”
  • If you are a service provider, how do you get your customers to be “additional insureds”   on your policy
  • What are insurers looking for in a customer.
  • What can you do to lower your premiums.
  • How can you convince an insurer that you are a responsible operator?
  • What types of safety management systems should you have?
  • How can you mitigate and/or shift risks?

Event Details
Webinar
Date and Time
July 30, 2015
1:30-3:00 pm ET
Contact
Ann Cabiness
D +1 202 496 7387

Download PDF of webinar

Webinar Roundtable: Insurance and UAS Operations

UAS: Hobbyists May Have Shot Themselves In the Foot

State and local governments have not been shy about attempting to regulate drone use.  So far in 2015, 45 states have considered 153 bills related to drones. As these laws proliferate, it is only a matter of time before UAS operators who are caught up in this patchwork of state laws will begin to challenge them. One of the most obvious avenues of attack is federal preemption. Courts will have to determine the boundaries of the FAA’s authority, and what issues are left for the states to control. Earlier this week, the Commonwealth of Virginia provided a preview of how those issues may develop.

On July 13, 2015, the Virginia Attorney General issued a memorandum addressing the question of “whether the Commonwealth or its localities may regulate the use of drones, or whether such actions are preempted by federal law.” The answer, not surprisingly, is “it depends.”

The Attorney General began his analysis by noting that the federal government has asserted exclusive sovereignty over the airspace of the United States. In addition, the Federal Aviation Act grants the FAA broad authority to regulate “air safety, the operation of aircraft, and the use of navigable airspace (i.e. airspace management).” As a result, the Federal Aviation Act has consistently been held to preempt “the entire field of aviation safety,” as well as aircraft operation and airspace management. The Virginia Attorney General also concluded that, based on the ruling in the Pirker decision as well as the plain language of the FAA Modernization and Reform Act of 2012, it is beyond dispute that UAS are aircraft. As a result, it is clear that “Congress intends to occupy the fields of drone safety, operation, and airspace management – including specific standards governing drone certification and the training and licensing of pilots.”

So, what does that leave for the states? According to the Opinion, privacy, property rights and model aircraft. The first is not surprising. The FAA has repeatedly stated that it has neither the inclination nor the expertise to regulate privacy. With regard to property rights, the Attorney General recognizes the exclusive sovereignty of the United States over the airspace, but also notes that the Supreme Court has previously held that land owners have a right to the use of the “immediate reaches” or “superadjacent airspace” over the land. The Attorney General does not, however, attempt to define an altitude at which the state’s ability to regulate ends.

The Opinion’s position regarding hobbyists may have the greatest impact on UAS use. The Attorney General argues that the explicit carve-out for model aircraft in the 2012 Reform Act should be read as an implicit grant of broader control over recreational UAS use. Arguably, this reasoning could support a broad system of state or municipal laws regarding when, where, and how model aircraft are flown, including setting licensing or piloting standards.

It is somewhat ironic that the greatest triumph of the UAS hobbyist community, receiving a broad carve-out from FAA jurisdiction, may have the effect of enmeshing recreational flyers in a web of conflicting local laws. It will be interesting to see what Virginia legislators do with this green light to regulate.

UAS: Hobbyists May Have Shot Themselves In the Foot

FAA: Chief Counsel Office Announces “Realignment” . . . Huh?

In a “Notice” effective on June 10, 2015, the Chief Counsel’s office at the FAA announced a ” . . realignment and restructuring of [its] legal practice areas and units . . .” [Link]

Any of the readers of Plane-ly Spoken who find themselves having to deal with the FAA in enforcement or other matters, should get themselves up to speed regarding these changes.  It looks like one of the most significant changes is going from one to three Deputy Chief Counsel, one of whom is responsible for both enforcement and regulations and to whom two Assistant Chief Counsel report, one in each of the two areas.

Cynics might suggest that this entire reorganization represents change for the sake of change.   The “Background” describes why the “moves” were made, using words like “streamline”, “strengthen”, “transition”, “constrained budgets” and “unprecedented retirement turnover”.  Time will tell whether any or all of these rationales have any validity, or whether the new Chief Counsel simply wants to leave his mark on the office.

One thing which is clear, however, is that if you find yourself  in a position of  having to deal with the FAA attorneys, whether at the Regional or Headquarters level, an understanding of the “moving parts” or, in this case, how the parts have moved, is essential.

FAA: Chief Counsel Office Announces “Realignment” . . . Huh?

NTSB: Just Because You Don’t Like the Probable Cause, Don’t Expect the Courts to Help

A few days ago, the United States Court of Appeals for the District of Columbia made it clear the courts have no substantive role in the accident investigation process. Joshi v. NTSB

The father of the pilot killed took issue with a probable cause finding of pilot error. After undertaking his own investigation, a petition to re-open the investigation was filed with the NTSB. After it was denied, he sued the Board. The Court found it did not have authority to review the probable cause finding because it was not a “final order” under the Administrative Procedure Act.

There is both good news and bad news from this result. The good news is that the consequences of permitting judicial review of NTSB accident reports would be to venture down a path which would essentially destroy the NTSB investigation process. Think about it. Any party to any investigation which was unhappy with the outcome of an investigation – aviation, rail, marine, motor vehicle, pipeline—could simply sue the NTSB.

Unless the NTSB fails to follow its own procedures, something which was not the case here, the courts are simply not equipped to engage in second guessing professional accident investigations. The simple reality is that not every party to an investigation is going to like the outcome. Some may passionately disagree, but that does not justify judicial review of the investigation.

Now, the bad news. The Court in Joshi indicated that NTSB accident reports are not used in litigation, and that is pretty much wrong.

The reality is that, more often than not, almost everything written by the NTSB, with the exception of probable cause, contributing causes and recommendations, is frequently received into evidence, either as direct evidence or through an expert. Moreover, there is clearly a split in authority among those courts which have addressed the issue.

As someone who has litigated aviation cases for 35 years, the majority of all NTSB reports find their way into litigation. While arguments are still made to keep them out, there is ample judicial authority out there for judges to rule in favor of their admissibility, minus the probable and contributing causes.

The Board recognizes the uses to which its investigations are put, and has drawn reasonably sensible lines around what it believes should be used in litigation. Nonetheless, it’s still up to an individual judge to decide whether and to what extent those lines will be observed.

As frequently as lawyers may be frustrated with the outcome of an NTSB investigation, the thought of a judge reviewing the substance of an investigation and assuming the mantle of expert to decide between competing investigations – one from the NTSB and one from an expert hired to challenge the NTSB —– is, even to me, somewhat unsettling.

The fact is, and history tells us, the NTSB usually gets it right!

NTSB: Just Because You Don’t Like the Probable Cause, Don’t Expect the Courts to Help