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TSA: There’s No Reason Why Passenger Screening Can’t Be Safe And Expeditious

The current controversy and unhappiness regarding the TSA is understandable.  Prior to 9/11, passenger screening was the responsibility of the airlines.  At each airport, the carriers got together and one airline, acting on behalf of all of them, hired a screening company to staff the checkpoints.  There was no TSA, and it was the FAA which oversaw airport security.  The FAA job was to monitor and surveil the screening companies.

In the post 9/11 world, the TSA was created as part of the Department of Homeland Security and responsibility for all airport security was removed from the FAA.  And then the inevitable occurred…the TSA, over the ensuing 15 years, turned into just one more behemoth, dysfunctional government bureaucracy.  It also became unionized and about as flexible as a steel rod.  The net result has been customer, i.e. the traveling public, service that redefines lousy.

Now, let’s turn to the FAA, certainly an agency which has its problems, but which, in no small measure, is responsible for the safest airline system in the world.  The mission of the FAA is to control the nation’s airspace and, as part of that, to regulate and inspect airlines.  Nobody in their right mind asserts the FAA has failed in this mission.  Certainly the safety record in the United States bespeaks of its success.  That’s not to say that the FAA doesn’t have problems.  It does, but that discussion is for another day.

Keeping the foregoing in mind, let’s forget about abolishing the TSA.  How about we use the FAA as a model.  Take the day to day screening function away from TSA and put it in the hands of the airports who can hire the best company for their airport.  The TSA, like the FAA, will establish minimum standards and procedures, and then monitor, surveil and regulate the companies.  The big difference is that there will be greater flexibility at individual airports and, if a company disappoints, its contract won’t be renewed.

This system has worked pretty well with the FAA and the airlines they regulate.  The FAA sets minimum standards (which virtually every airline exceeds and which the FAA has to approve) and then monitors, inspects, surveils and regulates those airlines to insure they meet those standards.  The FAA doesn’t build, maintain or fly the airplanes.  There’s no reason why the TSA should do the screening.

The TSA should focus on this oversight role. It should get out of the day to day screening business, i.e. stop flying the airplanes.  The TSA has pretty much proven it isn’t good at everything.  It’s time for them to recognize that fact and let the example of the FAA’s relationship with the aviation industry in this country provide a path for the way forward.  There is no reason why the highest level of safety in the screening process cannot co-exist with expedited lines.

The biggest obstacle to fixing the problem is the TSA itself, which seems to think that their hiring 800 more screeners is the answer.  The answer is not a “band-aid,” but rather radical surgery on a bloated, out of control bureaucracy.

TSA: There’s No Reason Why Passenger Screening Can’t Be Safe And Expeditious

EgyptAir 804/MH Flight 370 Déjà vu… All Over Again

Been there!  Seen that!

In the hours and days following the loss of Malaysia Airlines Flight MH 370, speculation was rampant.  The “talking heads” on Fox and CNN felt they had a license, maybe even a mandate, to speculate.  Few and far between were genuine experts and, even fewer and farther between, were  talking heads who were genuine experts and who refused to engage in speculation.

Plane-ly Spoken went back and looked at the posts in the days and weeks following March 8, 2014, the day MH 370 went missing.  The similarities are striking.

At the risk of being accused of repeating ourselves, we re-print our post from March 25, 2014.  Substitute EgyptAir for Malaysia Airlines, dates, airplane model and a few other things, and what can we say, but “Welcome to back to the future!”

EgyptAir 804/MH Flight 370 Déjà vu… All Over Again

The Airline Symposium Webinar Series – The FAA Enforcement Process and Philosophy

We would like to thank everyone who was able to join us yesterday for our Webinar on the FAA Enforcement Process and Philosophy.

For those of you who could not join us and are curious about what you missed, you can download the PowerPoint slides HERE.

For those of you who would like to view the entire presentation, you can click on the link below.









The Airline Symposium Webinar Series – The FAA Enforcement Process and Philosophy

UAS: US Courts to Foreign Drone Manufacturers “Welcome to our Judicial System”

Just because a drone is manufactured in a foreign country doesn’t mean the manufacturer can avoid getting sued in the United States.  In a decision on April 21, 2016, the Colorado Court of Appeals concluded that Align, a Taiwanese company that manufactures remote control helicopters and related parts, could be sued in Colorado for the plaintiff losing his eye when the main rotor broke off. [Link].  The plaintiff, a Colorado resident, had bought the helicopter from Hobby Town Unlimited, a retail store in Ft. Collins.  Horizon Hobby, another US company, had been Align’s distributor.

Relying on well-established US Supreme Court precedent, the Colorado court concluded that:

  • Align provided marketing materials to its distributors, attended trade shows in the United States where Align actively marketed its products, and established channels through which consumers could receive assistance with their Align products.
  • Align injected a substantial number of products into the stream of commerce, knowing that those products would reach Colorado.
  • Align took steps to market its products in the United States and Colorado.

Do the Court’s conclusions sound familiar? Well, they should because they describe the manner in which most non-US manufacturers of drones sell their products in the United States.

So, what are the takeaways?

  • If you’re a non-US manufacturer who wishes to distribute or sell your drone or related part in the US, you can be sued in the US.
  • If you’re a US retailer or distributor of a non-US manufactured drone or related part, you will be sued.
  • If you’re a US retailer or distributor of a non-US manufactured drone or related part, carefully examine the terms and conditions pursuant to which you are acting as a retailer or distributor for the non-US company. If the product hurts someone due to a design or manufacturing defect, the way to protect yourself, in addition to having your own insurance, is to have contractual recourse —- indemnity, duty to defend — running in your favor from the manufacturer.

With the number of non-US manufactured drones being sold in the United States, US distributors and retailers should proceed with great care in establishing relationships with foreign manufacturers.

UAS: US Courts to Foreign Drone Manufacturers “Welcome to our Judicial System”

UAS: Night Time Operations A Go!

The first Section 333 Exemption permitting UAS operations at night has been granted. Industrial Skyworks and Aeryon went through a rigorous 17-month process to get the authority to operate the Skyranger after sunset.  The resulting 24-page grant of exemption has an analysis of the risks and what the FAA thinks is necessary to mitigate them.

The FAA notes in the Grant of Exemption that the requirements for night flying are different from day flying regardless of whether the aircraft is manned or unmanned.  In particular, sport and recreational pilots do not receive training in “principles of night vision and night vision illusions . . . and how to adapt to them . . . .”  In order to mitigate this risk, Industrial Skyworks proposed a UAS training program as part of its safety case to ensure that a pilot-in-command has accumulated nighttime operating skills, knowledge, and experience prior to conducting any commercial operations.  Even with this additional training, the Grant of Exemption does not permit holders of sport or recreational pilot certificates to fly UAS at night.  The FAA concluded that only airline transport, commercial, or private pilots have a sufficient knowledge base for these types of operations.

Industrial Skyworks also proposed a number of  additional operational limitations to help reduce the risks, including day time site assessment for obstacles, controlling access to the operational area, and a lighted take-off and landing area.  Based on this, the FAA did not impose any additional restrictions on operating near people, and will permit site personnel to be within 500 feet of the operation, so long as the aircraft is not flown over them, they receive a full safety briefing prior to flight, and the exemption holder has an operations manual that addresses all aspects of safe UAS operations.

With regard to aircraft lighting, the FAA agreed that the traditional red/green position lights did not make sense because the Aeryon Skyranger is a symmetrical quadcopter, and there is no consistent forward and aft position on the aircraft.  The FAA did, however, require an anti-collision light on the UAS which is visible at 5,000 feet pursuant to 14 CFR 91.209(b).  Because the Skyranger has such a light, the FAA found it met this requirement.

It is important to note that, while this exemption permits night operations, it does not permit beyond visual line of sight flight.  As a result, the pilot must be able to see the aircraft at all times with his naked eye.  The FAA also did not permit the UAS to be operated in an open area at night.  The FAA considered the fact that Industrial Skyworks only intends to use the UAS for building inspection at night, and the fact that the aircraft will always be no more than 100 feet from the structure, as  providing a necessary means of ensuring that there is adequate separation of the UAS from manned aircraft.  The close proximity to the building also gives the operator a reference point to aid him in determining the exact location of the UAS.

While we are assured that Part 107 is coming soon, this exemption will remain very important because Part 107, as proposed, does not permit night operations.  As a result, for the foreseeable future, anyone wanting to conduct night operations will either have to receive a similar exemption and be willing to abide by these restrictions, or propose an alternative procedure and convince the FAA that it is safe.

UAS: Night Time Operations A Go!

UAS/FAA/Products Liability

Federal Preemption Is/Is Not The Answer!

During the last several days, we have seen the principle of federal preemption featured in not only the drone/UAS World, but in the more traditional world of aviation as well.

In the latter context, on April 19, the United States Court of Appeals for the Third Circuit ruled that federal law, does not preempt state law product liability claims.  Sikkelee v. Precision Airmotive Corp. et al.  In doing so, the Third Circuit snatched a victory away from Textron Lycoming which the District Court had given it when, in 2010, it dismissed the plaintiffs’ claims, finding that such claims, premised on state law, were preempted by federal law.

In another context, on the same day, by a vote of 95 to 3, the Senate passed its version of the Federal Aviation Administration Reauthorization Act of 2016, in which it, among other provisions, proposed that states cannot enact laws relating to the “design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.”

While Plane-ly Spoken questions the necessity of such language, given the fact that we believe the Federal Aviation Administration has clearly preempted regulation of the navigable airspace and the airplanes which operate in it, including drones, the Sikkelee decision gives us pause since it appears that at least the Third Circuit believes that aviation product standards should be measured by state law and not the Federal Aviation Regulations.

Plane-ly Spoken believes the application of general state law principles of negligence and strict liability have a place in the context of aviation products, but not if the area has been spoken to by federal standards.  The door which Sikkelee opens is one which will encourage plaintiffs to encourage courts and juries to “re-design” airplanes.  That may be all well and good in the world of lawnmowers, chainsaws and even automobiles, but it has no place in the world of aviation, which is so pervasively regulated, monitored, surveilled and controlled by the Federal Aviation Administration.  The FAA has to approve, through multiple levels of certification, every aircraft engine, airframe and most aviation/aircraft products, before they can occupy the navigable airspace.

Bottom-line . . . . . the Senate has it right and the Third Circuit has it wrong.  Looks like a candidate for Supreme Court review, but that’s a subject for another day.

UAS/FAA/Products Liability

FAA UAS Symposium: Jim Williams Reports from the Front Lines

Earlier this week (April 19-20) the FAA held its first ever Unmanned Aircraft Systems (UAS) Symposium at the Daytona Beach Ocean Center.  The FAA called the meeting as “a forum for the UAS Industry and stakeholder community to provide input and feedback directly to the FAA decision-makers on topics related to UAS Integration.”  They were not kidding about the “directly to decision-makers” part.  The FAA brought a “Who’s Who” of the senior most management of the FAA.

FAA Administrator Michael Huerta opened the session with a recap of the FAA’s recent accomplishments including the registration task force and subsequent rule, the micro UAS task force, and the improvements to the Section 333 process and operational limitations.  He also restated his commitment to deliver the Small UAS Rule by “late Spring.”  He cautioned the industry, however, that there are still areas of risk that need to be addressed and he mentioned the possible impact of the recent drone vs. Airbus 320 incident at Heathrow Airport.  He also mentioned that the FAA is preparing a strategic plan for UAS integration that will lay out the tasks that the agency still needs to address.  For those of you who missed it, the full text of the Administrator’s speech can be read here:  Michael Huerta’s Remarks at UAS Symposium

Other notable FAA Executives who spoke at the symposium included:

  • Michael Whittaker, Deputy FAA Administrator
  • Lynn Ray, Vice President of Mission Support Services, the organization in Air Traffic that is in charge of implementing UAS into the airspace.
  • Jim Eck, the new Associate Administrator of the Next Gen Organization and responsible for all the FAA’s research
  • John Duncan, Director of the Flight Standards Service who is responsible for certifying pilots and air carriers
  • Dorenda Baker, Director of the Aircraft Certification Service who certify aircraft and parts
  • Earl Lawrence, Director of the UAS Integration Office, responsible for coordinating all of the Aviation Safety UAS integration efforts
  • Victoria Wei, Deputy Director, Airport Planning and Programming who is responsible for national airport planning, airport grants, and passenger facility charges
  • Reggie Govan, FAA Chief Council, FAA’s head lawyer
  • Marke (Hoot) Gibson, Sr. Advisor on UAS Integration, responsible for coordinating UAS integration across the FAA Lines of Business

NASA Executives, other FAA executives, Executives from the Department of Defense and many high level representatives from the aviation industry rounded out the speakers.  The FAA spent the first afternoon describing in some detail their plans to adapt the current rules and procedures to integrate Unmanned Aircraft into the US Airspace.  Specifically they addressed the airspace changes in work, the ongoing certification changes and the technological initiatives that will help enable full UAS integration into the NAS.

The second day consisted largely of listening sessions on the following topics:

  • Engaging Industry
  • Airspace Management
  • Aircraft Certification
  • Pilot/Operator/Maintenance Certification
  • Airspace Authorities (Federal Preemption vs. State and Local Laws)
  • Research Challenges and Opportunities
  • Managing Public Perception
  • Airports Issues
  • Technological Enablers and Restrictors

The symposium closed with brief summaries of the results of the listening sessions.  The FAA plans to share the briefings and results collected on their website:  FAA UAS Symposium webpage.  The FAA also plans to roll what they learned at the symposium into their upcoming strategic plan for UAS integration.

Overall, the event seemed to be very well received by the attendees and useful to the government officials who participated.  Hopefully, this type of high-level interaction with stakeholders will continue, so that final UAS integration will be both safe and flexible enough to accommodate the rapid pace of technological innovation.

FAA UAS Symposium: Jim Williams Reports from the Front Lines

UAS: Down Under and Hands Off . . . Almost

This has been a momentous period for Micro UAS.  The FAA’s Aviation Rulemaking Committee has made its recommendations, the first step in the long process of rulemaking.  Meanwhile, on the other side of the world, the Australians have just finished their Micro UAS rulemaking.  Today, we take a look at the Australian approach and how it compares with the FAA’s philosophy.

First, the Australians have decided to officially drop the term UAV and replace it with RPA (Remotely Piloted Aircraft).  This change was done to make the regulations consistent with the terminology used by the International Civil Aviation Organization (ICAO).  The regulations then go on to create five classes of RPA:

Micro RPA                 less than 100 grams (3.5 ounces)

Very Small RPA         100 grams to 2 kg (3.5 ounces to 4.4 pounds)

Small RPA                  2 kg to 25 kg (4.4 pounds to 55 pounds)

Medium RPA              25 kg to 150 kg (55 pounds to 330 pounds)

Large RPA                  150 kg (330 pounds)

Depending on how the various classes of RPA are used, they become either excluded or included RPA.  Micro RPA are always excluded RPA, and are not subject to government regulation.  Very small RPA are excluded if they are being flown for hobby or recreational purposes or are being operated under “standard RPA operating conditions.”

Small RPA are excluded if they are being flown as hobby aircraft or if they are flown by or on behalf of the owner, over the owner’s land, and under “standard RPA operating conditions.”  In addition, the small RPA cannot be flown for compensation or hire.  Essentially, the regulations do not cover flying your own small UAS on your own land for your own purposes.  For example, a farmer could fly his UAS on his land to support his crop growing, without coming under the RPA regulations.

Medium RPA are excluded on the same terms as small RPA, but only if they are also being flown by someone who “holds a remote pilot license” that is valid for that type of RPA.

The standard operating conditions are fairly easy to meet.  You must:

  • Operate within visual line of sight,
  • Operate during daylight at or below 400′,
  • Remain at least 30 meters (98 feet) from persons not involved in the operation of  the RPA,
  • Outside a populated area,
  • Remain 3 nautical miles from an airport
  • Away from any fire or police emergency without permission.

Of all of these changes, the most significant are the clear definition of a micro RPA that is freed from all aviation regulation, and the adoption of this new philosophy towards operating RPA on your own property.  Rather than drawing the line for regulation where any commercial activity is involved as we do in the United States, the Australians are limiting their regulatory activities to circumstances where a third party is flying for compensation or hire or you want to fly outside the standard conditions.  CASA is essentially telling even large commercial entities, if you want to operate your own UAS on your own property to support your business, whether it be mining, agriculture or similar activities, just fly using the standard conditions, and we really don’t want to be involved in the day-to-day supervision of your operations.

UAS: Down Under and Hands Off . . . Almost

The Airline Symposium Webinar Series

Dealing with Witnesses and Documents After an Incident/Accident

We would like to thank everyone who was able to join us today for our Webinar on dealing with witnesses and documents after an incident or accident has occurred.

For those of you who could not join us and are curious about what you missed, you can download the PowerPoint slides HERE.

The Airline Symposium Webinar Series

The Airline Symposium Webinar Series

Dealing with Witnesses and Documents After an Incident/Accident


April 12, 2016

1 p.m. – 2:30 p.m. ET



Welcome to the first webinar of 2016. Just a few weeks ago, we hosted the 2016 Airline Symposium. This Symposium was the biggest and, from the comments received, the best yet.

The Airline Symposium series will, as it did in 2015, serve as the link between the 2016 Symposium and the 2017 Symposium, scheduled for February 7-9, 2017.

During the 90-minute webinar, we will address the practical realities of dealing with witnesses, including employees, as well as reports and documents after an incident or an accident. It doesn’t matter whether it’s a slip and fall on the airplane, a claim of food poisoning, an emergency evacuation, running off the runway or a catastrophic accident, this webinar will focus on the practical realities of how things really happen.

Among other subjects, we will address:

• Taking effective statements from witnesses
• The role of unions in investigations
• Who should attend/take statements
• Preparation for interviews
• Accident/incident report forms
• Effectively managing documents
• Interviews by the NTSB
• Collecting/preserving/controlling/providing documents
• Originals v. copies

Do not miss this webinar as it does a “deep dive” into the nuts and bolts of how to effectively prepare for and deal with witnesses and documents both before and when something goes wrong.


Please contact Ann Gammon at +1 202 496 7387



The Airline Symposium Webinar Series