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NTSB – Congratulations Vice-Chairman Sumwalt!!

With the election of President Trump, there was a great deal of speculation over how vacancies on the National Transportation Safety Board would be handled.  Would the new Administration want to shake things up at the NTSB as they have at other agencies or would there be continuity between the new nominees and the existing board?  The answer to that question is, at least for now, “steady as she goes.”

Earlier this morning, the Trump Administration announced that Robert L. Sumwalt III would be re-nominated as a Board member for another 5 year term.  In addition, Mr. Sumwalt is also designated as Vice-Chairman of the NTSB for the next two years.  Mr. Sumwalt has been a member of the NTSB since 2006, and previously served as NTSB vice chairman from 2006 to 2008. Prior to his time at the NTSB, Mr. Sumwalt was a pilot for 32 years, including 24 years with U.S. Airways.

The President’s action is clearly a vote of confidence in the way the NTSB has been handling its duties.  Congratulations Mr. Sumwalt, and here’s hoping your confirmation hearing is less contentious than all of the other ones held by the Senate this year.

NTSB – Congratulations Vice-Chairman Sumwalt!!

FAA/UAS – Judge to FAA “You’re just making things up.”

The federal lawsuit seeking to overturn the FAA’s model aircraft registration regulation passed a very important milestone last week.  A three judge panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument from the Plaintiff, John Taylor and the Federal Aviation Administration.

The main questions raised by Mr. Taylor in his suit is whether a model aircraft is an aircraft subject to FAA regulation and, if it is an aircraft, whether the model aircraft registration regulations are barred by Section 336 of the FAA Modernization and Reform Act of 2012, which states:

the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft . . . .

While the Court’s questions seemed to indicate an openness to Mr. Taylor’s argument regarding Section 336, there seemed to be deep skepticism over his claim that model aircraft are not a civil aircraft subject to regulation.  Under questioning, Mr. Taylor fell back on the argument that the FAA’s broad definition of unmanned aircraft is invalid because it would include paper airplanes and Frisbees.  The panel, however, pointed out that the registration regulation did not apply to Frisbees and paper airplanes, and Mr. Taylor admitted that the Court did not need to reach this argument to decide the appeal.

The FAA began its part of the argument by focusing on the purposes of the registration regulation, which are accountability and education.  The Court almost immediately interrupted and asked the FAA why Congress passed Section 336.  The FAA admitted that the statute was intended to bar the FAA from imposing new regulations on model aircraft, but argued that the statutory requirement that all aircraft be registered under Part 47 were preexisting requirements and not new regulations, and that the model aircraft regulation was simply building on this preexisting legal authority.  The panel was clearly troubled by this argument, with one judge calling the agency’s reading of the statute “bizarre.”  The FAA also argued that Congress made clear that it wants the FAA to enforce safety regarding unmanned aircraft, and that registration was a key part of that effort because it was the only way to identify violators.  The Court responded that these were good policy arguments, but that those were arguments that should be made to Congress.  As one judge noted, “the fact that the thing you are doing has a good effect does not mean that the thing is lawful.”

Finally, the Court questioned how the preexisting statutory requirement that all aircraft be registered could possibly justify a new regulation since Section 336 begins by stating “[n]otwithstanding any other provision of law . . . .” The FAA’s response to this queston was interrupted by one of the judges asking, “[w]here are you getting these words from, you’re just making things up.”  The judge then went on to say:

You know, I like my colleague to my right who says it’s a very perplexing statute but, you know, it is what it is, and judges get themselves in trouble when we start fooling around.  There are some judges that I can point to nationally who will say, well, this is not what Congress said.

This is what Congress said, and you have five, as Judge Wilkerson said, you have a frame, if the model that is within these five [requirements] you are done.  That’s that.  That is what Congress said.

Any appellate litigator will tell you that you can’t draw too many conclusions about who is going to win an appeal based on the questioning at oral argument.  However, it is also clear that the FAA had a bad day in Court, and those who thought that the regulations would be easily upheld should take some time to think about what “Plan B” might be for the unmanned aircraft registration system.

For those of you who want to listen to the full 30 minute argument, it can be found HERE.

FAA/UAS – Judge to FAA “You’re just making things up.”

Airline Symposium Webinar Series – Privileges in Accident Investigations for lawyers and Non-Lawyers

We would like to offer our thanks for the huge turnout we had for our free webinar on privilege issues in accident investigations.  For those of you who could not make it, we are providing a downloadable version of the slides, as well as a link to the full presentation so that you can listen at your leisure.

Airline Symposium Webinar Series – Privileges in Accident Investigations for lawyers and Non-Lawyers

UAS/FAA – Drones v. Airplanes: It’s Just a Matter of Time

The FAA loves to collect data.  One of the statistics they have been monitoring for the past several years is the number of reported UAS sightings by manned aircraft.  The FAA just released its latest quarterly report, and the numbers are not good.

According to the FAA, there were a total of 474 UAS sightings over the three months covered by the new data, for an average of 158 sightings per month.  This compares to 443 sightings from the same period a year earlier.  While the new number is not dramatically worse, it certainly is no improvement.  The FAA is using the new numbers to emphasize that it is sending “a clear message that operating drones around airplanes, helicopters and airports is dangerous and illegal. Unauthorized operators may be subject to stiff fines and criminal charges, including possible jail time.”  The FAA also reiterated that it “has levied civil penalties for a number of unauthorized flights in various parts of the country, and has many open enforcement cases.”

While the numbers themselves certainly tell a story, the underlying data makes for interesting reading.  The FAA has provided details of each of the 474 sightings in a spreadsheet that can be found HERE.  They range from the concerning:

“PRELIM INFO FROM FAA OPS: LAS VEGAS, NV/UAS INCIDENT/1918P/LAS ATCT ADVISED, HELO, WHILE S BOUND ALONG THE STRIP, REPORTED UAS OVER THE EXCALIBUR HOTEL AT 3,000 FEET. NO EVASIVE ACTION TAKEN. LAS METRO NOTIFIED.

UAS MOR Alert for LAS

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Sep 25, 2016 – 0218Z

A/C: (HELO)

Summary: CONFIGURATION TWO LANDING RWY 1L,1R DEPARTING RWY 7L ACFT WAS SOUTHBOUND ALONG THE STRIP WHEN HE NOTIFIED ATC OF A DRONE OVER THE EXCALIBUR HOTEL AT 3000FT. LAS NOTIFIED LAS METRO.

To the disturbing:

“PRELIM INFO FROM FAA OPS: IAH/UAS INCIDENT/1830C/HOUSTON TRACON ADVISED AMERICAN GENERAL AA5, REPORTED A NMAC WITH A BLACK UAS APPROXIMATELY 2 FT TALL WHILE W BOUND AT 2,500 FEET 11 WSW IAH. ACFT TURNED LEFT TO AVOID UAS. FBI NOTIFIED.

UAS MOR Alert for I90

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Jul 3, 2016 – 2330Z

A/C: (AA5)

Summary: Pilot advised he took evasive action to avoid a stationary or slow moving north bound UAS. ACN.”

To the frightening:

“PRELIM INFO FROM FAA OPS: PITTSBURGH, PA/UAS INCIDENTS/0013E/EC135, REPORTED TWO UAS ONE RED AND THE OTHER WHITE AT 2,500 FEET APPX. 5.5 MILES SE OF PITTSBURGH ARPT. AN IMMEDIATE CLIMB WAS REQUIRED TO AVOID THE UAS.

UAS MOR Alert for PIT

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Jul 24, 2016 – 0413Z

A/C: (EC135)

Summary: ACFT IN VFR FLIGHT, AT 2500 MSL, FROM DOWNTOWN PITTSBURGH ENROUTE TO 4G4. APPROXIMATELY 5.5 MILES SE OF BVI AIRPORT, THE PILOT REPORTED TWO DRONES IN FRONT OF AIRCRAFT, AT 2500 MSL, WHICH REQUIRED AN IMMEDIATE CLIMB TO AVOID THE UAS. THE HELICOPTER CLIMBED AND LEVELED AT 3500. WHEN PIT REQUESTED MORE INFO, THE PILOT STATED HE OBSERVED TWO “”””DRONES””””, ONE UAS WAS RED AND THE OTHER WHITE, AND THEIR POSITION WAS 2.5 MILES FROM BEAVER FALLS CITY, “”””ON THE WEST SIDE OF THE OHIO RIVER””””. AT 0418Z, DISPATCH CALLED PIT APCH TO REPORT THE INCIDENT.  HELO 14 RESUMED THE FLIGHT TO 4G4, AND DID NOT REQUIRE ANY FURTHER ASSISTANCE.

The biggest take-away from this data is that the FAA’s job of educating drone users will never end.  No matter how good the education program was last year or last month, there is a continuous flow of new entrants to the market.  Everyone needs to keep their guard up, and continuously promote best practices.  Hopefully, a year from today, the numbers will be going down, instead of up.

UAS/FAA – Drones v. Airplanes: It’s Just a Matter of Time

FAA – WORD ON THE STREET . . . PEGGY GILLIGAN TO RETIRE

Planely Spoken prides itself on avoiding rumor, gossip, innuendo, or other forms of “fake news.”  On the other hand, sometimes the word on the street, or in these case, the “word on the runway,” is so compelling that we have to pass it on.

It appears that Peggy Gilligan, the FAA’s Associate Administrator for Aviation Safety, has informed the FAA that she is retiring.  According to sources, her resignation email stated:

I have had the great good fortune to be a part of the FAA and the Aviation Safety organization during some of the most challenging — and most successful — times . . . . I am proud to have been a part of the safest time in this community and will watch closely as all of you build on the legacy we inherited from those who came before us. Thank you for letting me lead this outstanding organization and thank you for all you do for aviation safety every day.

Peggy Gilligan became Associate Administrator for Aviation Safety on January 5, 2009 after serving as the Deputy Associate Administrator in that organization for 14 years. In that position, she leads the organization responsible for setting, overseeing, and enforcing safety standards for all parts of the aviation industry – airlines, manufacturers, repair stations, pilots, mechanics, air traffic controllers, flight attendants, and any person or product that operates in aviation. These programs have a direct impact on every facet of domestic and international civil aviation safety.

The Aviation Safety programs under her direction involve more than 7,000 employees located in Washington headquarters, regional and directorate offices, and more than 125 field offices throughout the world. According to the FAA, she oversees an annual budget of more than $1 billion.

Anyone who has worked in aviation for any length of time has been impacted by her work.  The industry will miss her!

FAA – WORD ON THE STREET . . . PEGGY GILLIGAN TO RETIRE

The Intersection of Aviation and Politics

Nearly a hundred years ago, the Nobel Prize winning German philosopher Thomas Mann wrote “[t]here is nothing that is not political. Everything is politics.”  These days, politics has become the lens through which all actions are judged.  Thanks to social media, something as apolitical as a company providing air transportation can find itself in the middle of a political and media firestorm at a moment’s notice.

For example, just this week, a woman who had come to Washington to protest the inauguration of Donald Trump had to be removed from a plane when she provoked a political argument with a Trump supporter sitting next to her.  According to media reports, the woman asked the man if he had come to protest or support President Trump.  When he responded that he was there to “celebrate democracy,” the woman began to berate him, requiring the intervention of a flight attendant.  At this point, with tempers flaring, the flight crew was called on to make quick decisions to try to defuse the conflict, and, when it appeared that the woman would not let it go, take control of the situation.

Of course, what everyone would agree is that every delicate situation now has the potential to become a public relations nightmare due to the ubiquitous cell phone.  What once would have been nothing more than a small human interest story of a few lines about someone being ejected from a plane becomes a dramatic event that everyone in the world can watch over and over again, from every conceivable angle, with arm chair pundits second guessing the actions of all of the participants.  This high profile incident joins several others that also got a great deal of attention recently, such as Ivanka Trump being harassed by a fellow passenger during boarding, and the Trump supporter who earned a lifetime ban from an airline for berating Hillary Clinton supporters.

With literally the whole world watching every minor incident, the airlines have been well served by the calm professionalism of their employees.  Perhaps we, as passengers can follow their lead.  Even if we can’t act “professionally” as passengers, at least try to be level headed and courteous to each other, particularly since we will be sitting together in a confined space for several hours as we travel.

P.S. Watch the video and look at her husband . . . .

The Intersection of Aviation and Politics

The UAS Webinar Series – Defending against drones: The next step

Thank you for joining us in our webinar on Drone Defense Technology, the Next Steps.  The slides for the presentation can be downloaded HERE.

For those of you who missed it, the full presentation can be viewed by clicking this LINK.

The UAS Webinar Series – Defending against drones: The next step

UAS – The US Laps Europe on UAS Innovation and Regulation

We once again turn our attention to Europe, where SESAR has just released a comprehensive study on the European Drone Outlook.  SESAR, or the Single European Sky ATM Research project, was established in 2007 as a public-private partnership and is responsible for the modernization of the European air traffic management (ATM) system.

The study opens by warning that Europe risks falling behind the rest of the world in exploiting the UAS boom, as both the US and China spend more on technology and innovation than all European countries combined.  The study projects total demand for UAS services in Europe at $10 billion per year by 2035 and $15 billion per year by 2050.  The study also projects the total number of consumer drones in use in Europe by 2050 at 7 million aircraft, with another 400,000 commercial and government aircraft.  As in the US, the biggest user of drones is expected to be in the agricultural sector, which will account for nearly 25% of all commercial operators.  In addition, the UAS industry is expected to create 100,000 new jobs Europe wide.

The study warns the Europe only has 5-10 years to put the basic infrastructure for UAS airspace integration in place, including working detect and avoid and low level traffic management systems.  The study believes that it will take at least $200 million in additional research and development spending to make this a reality.  Any delay beyond that timeline puts the EU at a substantial competitive disadvantage, and makes it increasingly difficult to the EU to keep up with the rest of the world.

One of the other major focuses of the report is the need for UAS air traffic and regulatory systems to be created and run above the level of the member states and instead run at the EU level.  In particular, SESAR is wary of the results if each member state pursues unmanned traffic management solutions on their own, as there will be duplication of effort and a fragmentation of solutions, making it difficult for companies to do cross-border work as the systems mature.

After having read numerous stories over the years that the US is falling behind Europe in the race to integrate UAS, it is nice to see a comprehensive study that shows the opposite.  Of course, this challenge comes at a bad time for Europe, with Brexit in full swing, and the possibilities of Frexit, Grexit, Oexit, etc., looming, it may become increasingly difficult to find the will to make the substantial investments in technology and systems the report calls for.  Only time will tell whether Europe will be able to take advantage of the bright future the study predicts.

UAS – The US Laps Europe on UAS Innovation and Regulation

Tarmac Delays . . . Tick, Tock, Tick ,Tock . . . .

Tarmac delays have long been a problem for the aviation industry, with the possibility of substantial fines in cases where there is a long delay in returning to the gate.  Congress, heeding the complaints from the industry, implemented new language in the FAA reauthorization act, making it easier for airlines to avoid enforcement action in the case of departure delays.  As a result, DOT has now issued new enforcement guidance that takes these changes into account.

Under DOT’s existing tarmac delay rule, 14 CFR 259.4, a tarmac delay is defined as the “holding of an aircraft on the ground either before taking off or after landing with no opportunity for passengers to deplane.”  Thus, once the last passenger door shuts, the clock begins and continues to tick until a door is opened allowing passengers to deplane.   However, earlier this year, Congress included a revision in the FAA reauthorization statute that stated that a tarmac delay begins “after the main aircraft door is closed in preparation for departure” and ends when a U.S. carrier “begin[s] to return the aircraft to a suitable disembarkation point.”  As a result, the regulatory standard did not match the newly stated Congressional language, requiring a new rulemaking by DOT.

In the interim, and in light of the anticipated rulemaking, DOT has now stated that it will not pursue enforcement action against “covered carriers” (which includes both U.S carriers and foreign carriers, even though the statute only covers U.S. carriers) whom do not comply with its existing tarmac delay regulations, with respect to departure delays, so long as covered carriers begin to return aircraft to the gate or another place for disembarkation no later than three hours for domestic flights and no later than four hours for international flights.

With respect to arriving flights at an airport, including diverted flights, DOT will continue to apply its tarmac delay rule as written—carriers must allow passengers to deplane within three hours for domestic flights and four hours for international flights.  Furthermore, carriers must continue to abide by the remaining obligations and assurances under DOT’s rule, such as providing food and water to passengers within two hours of a delay, etc. (14 CFR 259.4(b)(3)-(10)).

The amendment to the tarmac delay statute also codifies the length of tarmac delays in 49 U.S.C. § 42301 by defining an “excessive tarmac delay” as a tarmac delay of more than three hours for a domestic flight and more than four hours for an international flight.  This is not a major change because DOT’s existing regulations currently define tarmac delays as three and four hours, but now there is no discretion, as the length of time is codified.

Bottom line get your passengers off the plane before three or four hours … or in the case of a departure delay, start turning yourself around to a gate!

Tarmac Delays . . . Tick, Tock, Tick ,Tock . . . .

Montreal Convention – PTSD Is Not Compensable . . . Or Is It?

An Australian nurse was recently awarded a $5 million verdict after she developed post-traumatic stress disorder (PTSD) following the crash of a medevac flight into the ocean, at night, and in rough seas.  This award would normally not be noteworthy, as a person who suffers a mental injury while within the zone-of danger during a life threatening accident such as this, can normally recover for mental distress, even if they ultimately escape without any serious physical injuries.  The difference here is that the flight in question was an international flight governed by the Montreal Convention.

Under the Montreal Convention, and its predecessor, the Warsaw Convention, the types of damages that a passenger can recover are strictly limited.  Passengers can only receive compensation for “dommage survenu en cas de … lésion corporelle,” or damages arising from a bodily injury.  As a result, courts in the United States have permitted recover for pain and suffering from a physical injury, such as a broken arm, but denied it in cases where passengers thought they were going to die from an imminent crash, but ultimately came through the experience unharmed.

In the case of the Australian nurse, the PTSD claim, unaccompanied by any physical injury would normally not be compensable under the Montreal Convention.  However, the court found that the PTSD itself had caused physical changes in her brain that impaired its function, making her unable to sleep or work, and that these changes in her brain were a bodily injury that was compensable under the Montreal Convention.

The air carrier, Pel-Air, is appealing the decision, arguing that the mental suffering has to arise from a physical injury, and that her expert’s claim that the purely mental injury produced a compensable physical injury goes against the plain language of the Montreal and Warsaw Conventions.

It should be noted that one of the purposes of an international convention such as this is to ensure uniformity of outcomes across all member nations.  While the courts in the United States have consistently held a hard line on this bodily injury issue, there have been some conflicting decisions coming out of courts in the UK.  If this Australian decision stands, it could lead to increased pressure in the us to change the way the terms are interpreted to “better conform” to the international norm.  This is definitely a case worth watching.

Montreal Convention – PTSD Is Not Compensable . . . Or Is It?