Plane-ly Spoken Blog

Plane-ly Spoken Blog

Commentary on Regulation & Litigation Impacting the Aviation Industry

UAS/FAA: Beware…Enforcement Efforts Are Moving Ahead

Posted in UAS

While the FAA’s Interpretation for the Special Rule for Model Aircraft ruffled a few feathers in the UAS hobbyist community, overall, hobbyists have had it pretty good over the past few years.  After all, the only person to be fined by the FAA for flying a UAS, Mr. Pirker, actually flew his aircraft back in 2011.  Despite all of the news reports about airport incursions and flights over stadiums, there have been no FAA enforcement actions against hobbyists over the past 3 years. 

Part of the reason may be that, so far, the first test case involving Mr. Pirker has not gone particularly well for the FAA.  As we are sure you remember, the Administrative Law Judge handling the matter dismissed the action, claiming that the FAA did not have the authority to fine a hobbyist.  While that ruling is still under appeal, and the FAA believes it will ultimately prevail, they have not been taking any chances.

The issuance of the Interpretation of the Special Rule of Model Aircraft has been part of a carefully thought out, systematic approach to ensure that, regardless of how the appeal comes out, the FAA’s authority to prosecute dangerous or rogue hobbyists is on a sound footing. 

The core of the FAA’s authority comes from the 2012 FAA Modernization and Reform Act.  In creating the carve-out for hobbyists, the FAA specifically stated that nothing in the act:

shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

While we are sure that everyone agrees with that principle, in order to be enforceable, hobbyist have to know what types of action actually endanger the national airspace system.  Well, last week, the FAA provided a comprehensive definition.

The FAA has updated its Compliance and Enforcement Handbook to list the provisions of the FARs that can be used as a basis to punish a hobbyist:  14 CFR §§ 91.13-91.15, 91.113, 91.126-135, 91.137-145, and 14 CFR Part 73.  For those of you who do not have the FARs memorized, 91.13 prevents the “careless or reckless” operation of an aircraft and 91.15 prohibits dropping any object from an aircraft if there is a hazard to persons or property on the ground.  Section 91.113 sets out the right-of-way rules for aircraft.   Sections 91.126-135 sets forth all of the restrictions and rules for operating in each class of airspace.  Sections 91.137-145 deals with a host of temporary flight restrictions, such as after a natural disaster, when the president is near, or if space launches are occurring.  Finally, Part 73 deals with special use airspace.

The new provisions in the Handbook make clear that the penalty for violations should be dependent on how severe the threat was to persons and property, whether the violation was intentional, and whether there were repeated violations.  Under the guidelines, the fine can be expected to range from between $500 and $1,000 per violation. However, just as they do with all aircraft, it is important to keep in mind that each flight can be considered a separate violation, so if the FAA finds out you broke the rules on ten different flights, the fine would be ten times that number.

The Bulletin also makes clear that the FAA plans on stepping up its enforcement actions.  It makes reference to Aviation Safety Inspectors who will be looking into UAS issues, and provides instructions for how the inspectors should coordinate with the FAA Regional Counsel’s Office, the Chief Counsel’s Office, and AFS-80, which is the UAS Integration Office.  The Bulletin also promises that increased enforcement is only part of the effort, and that substantial efforts will be made to educate the UAS community on these standards and how to comply.

So, hobbyists, take note!  It looks like the FAA has plans to get into the UAS enforcement business in a big way.  Now would be a good time to brush up on the FARs and make sure you are not the next test case.

NTSB: What We Need Is A CDSB.

Posted in NTSB

On October 13, 2014, Plane-ly Spoken addressed the idiot who said “I have ebola. You’re all screwed,” calling for him to go to jail.  Events since that day, including the ebola exposed nurse from Texas who flew on Frontier Airlines, along with the monitoring of passengers arriving at five airports in the United States, has further raised concerns about the whole ebola issue, including how it impacts airline travel.

We’re not going to comment about ebola or even the Center for Disease Control, which currently finds itself under a media, public and Congressional microscope.  What we are going to observe is that perhaps a lesson could be learned from how transportation safety is handled in the United States.  The entire transportation industry in the United States — whether air, rail, sea or pipeline (yes. . . .  pipeline) is safer because of the National Transportation Safety Board, recognized worldwide as the gold standard in the investigation of transportation accident and incidents.  The NTSB doesn’t (and can’t) regulate or enforce.  Instead, it investigates and recommends and, when their recommendations are not followed, they publicize and criticize.

Whatever else one can say, the existence of an independent agency does help improve oversight and safety.  It has worked for transportaton.  Similarly, the US Chemical Safety Board which, as its title suggests, is focused on the Chemical industry, is directly patterned on the NTSB and has helped improve safety in that industry.

The Congress should take a lesson from the aviation and transportation experience and create a Communicable Disease Safety Board or CDSB.  They should, given what’s going on, recognize the that CDC, while well-meaning and sincere, appears to be, along with the Texas hospital, way behind the power curve on recent events.

An independent CDSB could, like, the NTSB, provide investigative expertise drawing from federal and state authorities, including CDC, HHS, EPA, FAA, the military, state health authorities, etc. as well as private companies.  The existence of an “ouside agency” to investigate, recommend, and when necessary, criticize, might help matters.  If the NTSB and CSB experiences are any measure, this is a no-brainer!

FAA: Proposed Changes to FAA War Risk Insurance Policy Raises Questions

Posted in FAA

A little known fact outside the aviation industry itself is that the FAA is in the insurance business, providing, under certain circumstances, war risk insurance coverage to US air carriers.  One of the reasons for the program was the concern that US airlines might have difficulty getting affordable war risk coverage from the commercial insurance market.  Without insurance, flying could be curtailed.

Over the years, the nature of war risks and terrorism has changed, as have the associated losses, particularly since the events of 9/11.  Despite this fact, US airlines have continued flying, oftentimes performing what are essentially military missions which would otherwise be flown by military aircraft.  In recognition of this fact, the coverage provided by FAA issued war risk insurance includes losses which were “directly or indirectly” the result of a war risk.  As anyone who has read insurance contracts knows, the use of the phrase, “directly or indirectly” makes the scope of coverage extremely broad. Moreover, even if the use of that phrase makes the scope of coverage ambiguous, the principles of contract interpretation mean that the ambiguous phrase will be interpreted against whomever is responsible for writing it, in this case, the United States.  The end result is that the scope of war risk coverage is extremely broad and any argument by the Government to try to limit the scope of the coverage is a loser.

So, why should the US airline industry care about this?  After all, isn’t the scope of the Government’s war risk coverage broad?  Aren’t we covered when we have a Government contract to fly military cargo on a military mission, and have a loss in a hostile part of the world?

The answer is pretty simple  . . . .  not if the FAA gets its way!  In June of this year, the Government proposed a change to one of its war risk insurance programs which would eliminate the phrase “directly or indirectly” and, in effect,  cover only those airline losses actually caused by thing like bombs, sabotage, enemy fire, etc.

If you’re an airline with military contracts, this is a pretty big deal.   At first, the airlines with military contracts were told the change was going to be made.  Then the proposed change was deferred, presumably for further consideration.  Neither the FAA, nor the military, have given any reason for the change, what is intended, or why it’s needed.

So what should you do?  Well, we know that A4A and other trade associations are asking questions.  Plane-ly Spoken suggests that the more questions asked of the FAA as to why they’re trying to limit coverage when US airlines operate pursuant to military contracts providing battlefield services, the better.

Our advice is that if you’re an airline, an insurer or a broker, contact the FAA and start asking those questions!           

UAS: Federal vs. State Regulations – We Need Uniformity

Posted in UAS

We wrote previously about the growing threat that a “crazy quilt” of state and local UAS regulations will interfere with the creation of a safe and predictable federal regulatory system.  A number of influential groups with a strong interest in UAS issues, including the Motion Picture Association of America, Textron, and Rockwell Collins, have asked the FAA to do something about it.  On October 10, 2014, a letter was sent to Administrator Huerta, asking that the long awaited small UAS regulations, expected at the end of this year, include a specific provision expressly preempting any state or local law relating to the “design, sale, distribution, use or operation of small unmanned aircraft systems.”    

In the past, when questions have arisen about whether a given state or local law impermissibly interferes with some part of the Federal Aviation Regulations, it has resulted in litigation.  While these suits eventually settle the question of whether a given local law is preempted by federal law, the time and effort involved is substantial.  Moreover, in some cases, the issue can be in doubt for more than a decade, and still not be resolved.

For example, in Abdullah v. American Airlines, 181 F.3d 363, 367 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit held that state common law tort standards that would require an air carrier to do anything beyond what is required in an applicable Federal Aviation Regulation are preempted.  Over the past 15 years, that ruling has percolated through the federal courts, with several circuits agreeing and several disagreeing.  No doubt the United States Supreme Court will resolve the dispute at some point in the future.  Until then, the question of whether the standards in the Federal Aviation Regulations are a floor, or a ceiling, will depend on where you sue.

We welcome action by Administrator Huerta on this proposal.  A uniform federal system would halt the uncertainty that is creeping into UAS regulations.  Left unchecked, this uncertainty will give rise to unnecessary disputes, as well as the needless waste of time and money to resolve them. 

In addition, including this language in the draft UAS regulations will provide an opportunity for the public, and the states, to be involved in the policy debate in a meaningful way through the notice and comment process.  If people have an opportunity to be heard, they are more likely to respect the validity of a rule, even if they do not agree with its content.  In this way, a consensus can be reached on whether it is in the best interests of the nation to have a uniform regulation or rely on a system of state and local law supplementing the FAA’s regulations.  We sincerely hope it is the former.     

Aviation Safety: “I Have Ebola, You’re All Screwed.”

Posted in Aviation Safety

By now everyone has seen the video of the “idiot,” suitably described by a level headed and thoroughly professional USAirways flight attendant, being removed from a flight by emergency responders in blue hazmat suits.  While he proclaimed that he was only joking, the full weight of the system should be brought down on anyone who thinks joking about ebola on an airplane is funny.

We haven’t heard whether the “idiot” is going to be prosecuted, but, considering the environment in which we currently live and the potential vulnerability of air transportation, he should be held fully accountable both civilly and criminally and see how funny his fellow inmates think shouting “I have ebola. You’re all screwed” is when he does it in the prison yard.

Whether he’s learned his lesson or not is secondary.  The message has to be clearly and forcefully delivered to other potential idiots that such joking isn’t funny and we’re not going to tolerate it.

So, you ask yourself at this point in our rant, what can be done?  Well, what he did is a violation of the Tokyo Convention of 1963.  Entitled The Convention on Offences and Certain Other Acts Committed on Board Aircraft, (“Tokyo Convention”), this international agreement, to which the United States is a signatory, applies to the conduct of passengers who “jeopardize good order and discipline on board” an aircraft which is in flight.  If, telling your fellow passengers that you have ebola and they’re all screwed, doesn’t jeopardize good order and discipline, we don’t know what does.

Under the Tokyo Convention, the Captain has the authority to remove offenders for the aircraft and turn them over to the police where they can be extradited to, in the case of the recent incident, the United States.  Once the extradition is completed, he can be charged with, among other things, interference with a flight crew, an offense which can carry both monetary penalties and jail time.

The bottom line is that there’s simply no excuse for any passenger on any airplane to be joking about guns, bombs or ebola.  Anyone who does so ought not be permitted to get on another airplane.  Flying today, in a post 9-11 world, is, under the best of circumstances, tough.  Security measures, extra charges and delays have removed all of the romance the industry had in its early years.

Putting up with all the inconveniences associated with ensuring the extraordinary safety of our air transportation system is enough.  We don’t need idiots like the one escorted off the airplane the other day.  For our money, throw the book at him!!

Oh, yeah . . . .  a big thank you to the whole flight crew and USAirways!  That flight attendant is a winner!

NTSB: Board Extends Comment Period for Proposed Rules to October 31.

Posted in NTSB

Originally scheduled to end on October 14, the NTSB will be extending the cutoff for public comment to the proposed rule changes to Part 831 to October 31.

Here is a link to a comparison of the existing rules and the proposed rules, as well as a link to submit comments.  In addition, for those of you who missed it, here is a link to our October 8 webinar discussing the proposed changes.

Plane-ly Spoken is confident that the Board staff will give real consideration to your comments, so give them something to consider.

NTSB: Deadline for Comments to Proposed Rule Changes at NTSB is October 14

Posted in NTSB

On October 8, MLA held a webinar, with over 200 in attendance to go over and highlight some of the changes being proposed by the NTSB to their rules.  A copy of the webinar materials is available by clicking here.

The cutoff for public comments is October 14, so be sure to consider how the proposed changes will affect your company. 

We assure you they will!

UAS: National Airspace: Not an Area for State Lawmaking

Posted in UAS

As the UAS rulemaking grinds slowly forward, the specter of state and local regulation of UASs looms ever larger.  The public is continuing to push state legislatures into enacting stringent UAS privacy laws.  While many see safety and privacy as completely separate issues, local restrictions on when and how a UAS may be flown impacts uniformity, which in turn, can impact safety.  

Going all the way back to the enactment of the Federal Aviation Act of 1958, Congress found that the creation of a single, uniform system of regulations governing use of the national airspace was vital to increasing air safety Abdullah v. American Airlines, 181 F.3d 363, 366 (3rd Cir. 1999); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).  In fact, the House and Senate Reports from the 1958 Federal Aviation Act specifically state that “[a]viation is unique among transportation industries in its relation to the federal government – it is the only one whose operations are conducted almost wholly within the federal jurisdiction, and are subject to little or no regulation by States or local authorities.”  See S. Rep. No. 1811, 85th Cong., 2d Sess. 5 (1958). 

The fact that state or local governments are acting in what they believe are the best interests of the public does not affect the necessity for federal law to completely occupy this area.  As a number of federal courts have held, in the field of aviation, any state law “must yield to the force of federal law . . ., notwithstanding that it is constructed upon values familiar to many and cherished by most, and notwithstanding that it might fit neatly alongside the federal scheme.”  Abdullah, 181 F.3d at 374.

The creation of a patchwork of laws and regulations by state and local government would undo all of the benefits of a uniform aviation system.  Predictability is the key to aviation safety.  Inconsistent state and local regulations over where and how a UAS can be flown would make it difficult for a pilot to predict where hazards might be lurking.  If, for example, there are two states with different views and, in the name of privacy, one state prohibits UAS from public land, while another requires that they be used exclusively in public parks or other public land, then the result will be confusion and increased danger.  A pilot may not know if the state he is flying over is one where public land is free from hazard, or whether it has become a magnet for hazards by operation of local law. 

This is not to say that there should be no privacy rules.  To the extent the public wants these matters to be a part of aviation policy, the better path would be for the FAA to work with the executive branch to create uniform federal rules or standards for privacy.  In fact, press reports indicate that a multi-stakeholder process will soon be announced that will be led by the National Telecommunications and Information Administration of the Department of Commerce.  Hopefully this process, proceeding in parallel with the UAS rulemaking, will maximize uniformity and safety.  

MH 370: Breaking News! The Search Resumes . . .

Posted in MH Flight 370

After a hiatus of several months, the search for MH 370 has apparently resumed.  Whether this is truly good news or just the beginning of another cycle of frustrating news remains to be seen.

While the scheduling is probably a coincidence, as this is being written, the NTSB is holding a one day forum on Emerging Flight Data and Locator Technology.  No doubt the NTSB examination of this area was driven by MH 370 vanishing without a trace.

What’s so striking about the announcement regarding the resumption of the search for the aircraft is the complete absence of any meaningful information since the search was discontinued four months ago in late April.

So let’s see what’s really happening . . . .   

The Australian government has been conducting a low resolution survey and mapping of over 111,000 square kilometers of ocean floor.

Once the survey and mapping is completed, sleds will be towed close to the ocean floor to conduct a high resolution examination.

The Australian Government and the Malaysian Government have agreed to each provide approximately $53 million, for a total of $106 million.

Public statements attributed to the search authorities suggest they believe they have identified the correct search area.  If we were of a cynical nature, we might observe that every time the focus of the search efforts has been changed, search authorities have expressed great optimism.

Plane-ly Spoken, which, as our readers know, has closely followed the MH 370 investigation, has repeatedly expressed concern regarding statements coming from the investigators.  While reporting on the resumption of search efforts and what is being done is appropriate, statements of optimism are no less irresponsible now than they were four months ago, no matter how cautiously they may be phrased.  Given history to date, for Martin Dolan, the Chief Commissioner and CEO of the Australian Transportation Safety Board, to suggest to CNN or anyone that they have any measure of confidence in anything, is, if not irresponsible, certainly silly.

Seemingly lost in the rush to report the resumption of the search activities, is the fact that the families and the airline continue to be without any answers.  While the search activities have taken on their own life and meaning, everyone should stay aware of the fact that, first and foremost, this is not really a logistical exercise in search and recovery.

Let’s not forget this is a human tragedy.

UAS: Get Off The Fence! Fish or Cut Bait! Do Something!

Posted in UAS

As we predicted, once the FAA granted the first exemption to operate UAS commercially, something they did on September 25, 2014, the pace of filings dramatically increased.  There are now almost 60 Section 333 petitions pending with the FAA.  We believe the pace of filings will continue and that, as the FAA continues to act on them, it will further increase.

Measured against this increase in requests for operating authority from the FAA, is what seems to be an almost geometric growth in UAS startup companies.  Excited by the technology, as well as the money to be made, not a day passes without some new UAS or drone company announcing its wide range of services, whether in precision agriculture, pipeline or powerline inspection or any number of areas.  More often than not, the real extent of these companies’ activities in the UAS field, is nothing more than the announcement that they are now in the UAS field.

To be sure, there are companies which have declared they’re in the UAS business or want to be in it and actually have funding and can benefit from the use of UAS.  Too many of them however, are not filing for exemptions and continue to sit back and wait.  Now is the time to stop talking and start doing.

We guess it comes down to putting your money where your mouth is.  Logic would seem to dictate that if you want to be in the UAS business, whether as a manufacturer, an operator, or a user, you take all the necessary steps, starting with getting an exemption.  The idea, as has been expressed to us by a few such companies on the sidelines, that they will wait until the FAA issues the NPRM on small UAS (still expected by the end of the year), is ridiculous.  As the rulemaking drags on, and other companies keep filing exemption petitions, all that’s going to happen is the line is going to get longer.

So, fish or cut bait!  Stop talking about it and start doing something!  If you’re really serious about wanting to be in the UAS business, put your money where your mouth is, stop talking about all the services you’re going to provide and file a petition for an exemption so you can start really being in the UAS business.

Do something!