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May 27, 2005

Aircraft Co-Ownership: Making The Relationship Work

Would you like to own an aircraft but can't afford or justify it by yourself? If so, co-ownership may be an ownership option for you. Although co-ownership of an aircraft can be a beneficial relationship, it is also a lot like a marriage. Co-owners must be compatible and open and honest about their expectations. A little give and take will also be necessary to make it work. With a little research and planning, the arrangement can be happy marriage. For more information on aircraft co-ownership and making the relationship work, you can read my new article on the topic here.

Posted by Greg

May 25, 2005

Effectiveness Of DC ADIZ Visual Warning System Limited By Clouds

The DC ADIZ Visual Warning System ("CWS") received its first test on Monday when a Canadian registered Cessna 340 lost radio contact with ATC while flying through the restricted airspace. The C-340 was on a flight plan and authorized to fly through the restricted airspace when it was apparently struck by lightning and suffered a communications failure. Although the C-340 did not squack 7600 to indicate communications failure, I guess this isn't too surprising since the lightning probably damaged the transponder along with the other radios. However, because he C-340 was in instrument meteorological conditions at the time, ATC was unable to use the VWS because the lasers will not shine through the clouds.

Of course, if the C-340 continued to follow its flight plan, as required when communication failure is experienced in IMC, I am not sure why the VWS would have even been necessary. With loss of communications procedures established in the Airman's Information Manual, especially when the loss was not the result of the pilot's actions, the flight should be left to continue as filed and previously cleared. ATC could simply monitor the progress of the aircraft to determine whether it was following its flight plan. If the aircraft deviated, ATC could then scramble an intercept.

Additionally, according to the National Climactic Data Center, clouds covered at least 88 percent of the sky over Reagan Washington National Airport during daylight hours for 162 days last year. This means that for almost half the year, aircraft may be flying in or above the clouds through the restricted airspace and the VWS will be unusable for those aircraft. I guess this just goes to show that the VWS is just another nominally effective "security measure" that is really only intended for the small aircraft flying low and slow beneath the clouds. The very aircraft that pose an extremely minimal threat, if any. Sure makes me feel safe.

Posted by Greg

May 24, 2005

Trial Begins For America West Pilots Accused Of Operating Aircraft While Intoxicated

The Florida state court trial of the America West pilots accused of operating an Airbus 319 while intoxicated began yesterday. As you may recall, the two former America West Airlines pilots were indicted in Miami on charges of being under the influence of alcohol while they were behind the controls of an Airbus 319 loaded with passengers. When tested following their arrest, both men had a blood alcohol content in excess of the state limit of .08, but below the federal limit of .10.

The State of Florida initially prosecuted the pilots, but a federal court dismissed the charges ruling that federal law pre-empted state law regarding pilot qualifications. The state appealed that ruling and the 11th Circuit Court of Appeals reversed the district court's dismissal of the state's charges holding that the federal laws did not pre-empt the state's prosecution of the pilots for operating an aircraft while intoxicated. The U.S. Supreme Court then denied the pilots' petition seeking a reversal of the 11th Circuit Court of Appeals reinstatement of the state's charges.

During opening arguments, the defense attorney argued that the pilots were not impaired even if they smelled of alcohol after a night of heavy drinking and regardless, they were not in full control of their taxiing aircraft because it was being towed. Apparently the nose-gear steering in the cockpit is disabled while the aircraft is being towed. Personally, I think they are going to have a tough time with these arguments.

With respect to the impairment issue, the state has the BAC tests showing .08, testimony regarding the quantity of alcohol consumed by the pilots and apparently video showing the pilots drinking at the bar until approximately 6 hours before their flight. It will be difficult to rebut this evidence.

The "operating an aircraft" element is going to be the more interesting issue. If driving while intoxicated case law is used by analogy, this argument actually won't make it very far. At least under Minnesota case law, the threshold for being in "control" of a motor vehicle for purposes of determining whether a person was "operating" the vehicle is very low. If you are sleeping in the back seat of the vehicle, with the vehicle turned off and the keys in your pocket, you are considered to be operating.

If this analogy applies to operating an aircraft, I don't think there is any doubt that these pilots were "operating" the aircraft, regardless of whether the steering was disabled. Certainly they were performing pre-start and/or pre-flight checklists which include operating and testing aircraft systems. The testimony regarding this issue will be interesting to hear.

In the end it is still an unfortunate situation and will result in negative publicity for pilots and for aviation. However, from a legal perspective, it will definitely make for good reading.

Posted by Greg

May 23, 2005

Another Stupid Pilot Trick

A recent NTSB factual report regarding a May 5, 2004 fatal accident involving a Rans S-12 XL Airaile just makes you wonder "What the heck were they thinking?" Apparently the pilot, and I use the term loosely because he did not hold an airman or medical certificate, wanted to go flying from the Mathis Airport after dark. Unfortunately, the runway did not have runway edge lights.

Undaunted, several witnesses aligned their cars along the end of the runway and turned on their headlights. The pilot then made three low approaches to runway 21, but on the third time around, the pilot had to bank the aircraft to the left to avoid a hitting with the wind sock. The aircraft descended into the night and the next thing the witnesses heard was the on-board ballistic rocket system detonating followed by a power line transformer explosion.

The airplane was located 275 feet, southeast of the airport in a nose low vertical attitude. The weather at the nearest reporting station was VFR at the time of the accident. The post-mortem toxicology report indicated levels of ethanol in the pilot's system as well as acetaldehyde and fluoxetine.

Obviously, neither the pilot nor the witnesses who used their vehicles for runway lights were thinking clearly at the time of the accident. It just makes you wonder whether anyone had the minimal common sense to stop and say "Hey, this is a bad idea." Unfortunately, the factual report doesn't provide the complete story. We can speculate based upon what it does disclose, but we don't know for sure. What we do know, is that some obviously poor choices resulted in a fatal accident.

Posted by Greg

May 19, 2005

D.C. ADIZ Visual Warning System Goes Into Effect Saturday

The Visual Warning System ("VWS") for the D.C. ADIZ discussed in my May 13, 2005 post goes into effect this Saturday. You can review a Fact Sheet, Questions and Answers and a Video on the VWS here. The video shows what a pilot can actually expect to see both looking out the front of the aircraft as well as looking out the passenger window. The red-red-green flashing lights appear similar to the flash of a rotating beacon, only more frequent.

Although this system does not appear to prevent ADIZ incursions, if the VWS is understood and followed by pilots, it should help prevent last week's "scare" by encouraging earlier diversion from the ADIZ once an incursion has occurred.

Posted by Greg

10th Circuit Affirms Bad Faith Claim Against Aircraft Insurer For Failure To Pay For Lightning Strike Damages

The 10th Circuit Court of Appeals has affirmed a district court judgment against an aircraft insurer for failing to pay for repairs to an aircraft's engines arising from a lightning strike. In Quail Creek v. XL Specialty Insurance, Quail Creek's aircraft sustained a lighting strike. The aircraft's engines were subsequently repaired and, in compliance with manufacturer and Federal Aviation Administration specifications, a number of engine parts were replaced even though they had not reached the end of their useful life. The insurer "paid for only part of the engine repairs, refusing to pay for those engine components that it contended were replaced, not because of the lightning strike, but because of wear and tear", which was expressly excluded under the aircraft's insurance policy.

Quail Creek sued its aircraft insurer for breach of contract and for bad-faith failure to pay the claim. On motions for summary judgment, "the district court held that the 'loss for wear and tear items is a direct result of the lightning strike. The components would not have been replaced but for the lightning strike and the consequent repair of the engines.'" As a result, the general provisions of the aircraft insurance policy requiring the insurer to pay for any loss of due to an accident controlled and the court entered judgment on the breach of contract claim and required the insurer to pay the full repair bill. It also awarded Quail Creek attorneys' fees, though less than Quail Creek requrested.

On appeal, the 10th Circuit affirmed the grant of summary judgment on the breach of contract claim. It held that due to the lightning strike, the engines could not be properly restored to airworthiness under the applicable regulations without complete part replacement and thus, the wear and tear exclusion did not apply. The Court also affirmed the award of attorneys' fees, but reversed as to the amount because it felt the district court had improperly excluded fees and expenses to which Quail Creek was entitled.

I think it is likely that this case was primarily determined based upon the testimony of Quail Creek's expert witness which indicated that the combination of the lightning strike, the regulations and rebuild manual, the FAA regulations and the insurance policy requirement of airworthiness forced replacement of the parts. This testimony established that the loss of usable aircraft parts was due to the lightning strike. The 10th Circuit's opinion is silent as to any testimony on behalf of the insurer that rebutted this testimony or otherwise indicated that replacement of the usable parts was not necessary or precipitated by the lightning strike. As a result, it appears that the aircraft insurer was unable to present testimony sufficient to raise an issue of material fact as to the need to replace the usable parts.

Posted by Greg

May 18, 2005

What Is A Security Violation Worth?

Have you ever wondered just how much trouble you would be in if, for example, you forgot that your Zippo lighter was still in your pocket when you tried to go through the security checkpoint at an airport? Well, a quick review of the TSA's Enforcement Sanction Guidance Policy indicates that you could be facing a fine of $250.00 to $1,500.00. A firearm, depending upon whether or not it is loaded, could net you a fine anywhere from $1,500.00 to $7,500.00 plus a referral for criminal prosecution. Of course, where you end up in these ranges will depend upon the circumstances of the violation and whether any of the aggravating or mitigating factors identified in the Policy are present.

In addition to sanctions for individual violations, the Policy also includes sanction guidance for security violations by aircraft operators, airport operators and by "indirect air carriers" such as cargo operators. The Policy provides ranges of fines, which opens the door for discretion in the actual amount that is assessed against a violator. This discretion presumably takes into account any aggravating or mitigating factors. Enforcement of a violation for which a fine is the penalty proceeds as a civil penalty action pursuant to a Notice of Proposed Civil Penalty.

So, if you want to assess your liability exposure (both civil and criminal), in addition to the delay and embarrassment associated with being caught, you can review the Enforcement Sanction Guidance Policy to get an approximate idea of just how much hot water you would be in for a particular type of violation. Not something I would recommend. But it makes for interesting reading.

Posted by Greg

May 16, 2005

FAA Publishes Disposition Of Comments On "Security Threat" Assessment Final Rule

The FAA today published its Disposition of Comments on the final rule regarding "ineligibility for an airman certificate based on security grounds". Not surprisingly, the FAA received over 700 comments to the rule. Almost all of the comments were opposed to the rule. Again, not too surprising. The major categories of objections included due process; ineffectiveness against terrorists; TSA/Government will become too powerful; and adoption of rule without prior comment.

Four of the commenters supported the FAA's rule. Apparently, they felt that the rule "is a worthwhile deterrent in the fight against terrorism because of current safety concerns". One commenter went so far as to state "that national security is more important than the possibility of a pilot's losing his or her license for a period of time." (Nothing like missing the forest for the trees.)

The FAA's response to the comments is "Congress has enacted a law that has largely overtaken the FAA's rulemaking action and the challenges to the FAA's and TSA's rules have been decided by the U.S. Court of Appeals for the District of Columbia Circuit. Based on these developments, a detailed response to the comments is not warranted. In addition, many of the comments addressed the TSA's rules, and it would be inappropriate for the FAA to address these comments." (How is that for a response that doesn't provide much of a response?!)

Additionally, according to the FAA, it "is working with TSA to determine if additional rulemaking is necessary to reflect the statutory requirements of 49 U.S.C. 46111. In this new rulemaking action, the public will have an opportunity to comment before the adoption of a final rule." If you would like further information regarding the final rule or the comments, contact Peter J. Lynch, Enforcement Division, AGC-300, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; Telephone No. (202) 267-3137.

Posted by Greg

May 13, 2005

FAA Issues Visual Warning System For Washington D.C. ADIZ And FRZ

The FAA has issued a Special Notice regarding the implementation of a visual warning system for the Washington D.C. air defense identification zone ("DC ADIZ") and the flight restricted zone around the capitol and white house ("FRZ"). The new signal "consists of highly focused red and green colored lights in an alternating red/ red/green signal pattern" and "may be directed at specific aircraft suspected of making unauthorized entry into the ADIZ/FRZ and are on a heading or flight path that may be interpreted as a threat or that operate contrary to the operating rules for the ADIZ/FRZ." According to the FAA, the laser beam is not injurious to the eyes.

If a pilot finds him or herself "illuminated", the pilot should communicate with ATC either on the current frequency if in radio contact or, if the pilot is not in radio contact, the pilot should communicate on VHF guard 121.5 or UHF guard 243.0. In either event, the pilot should turn to a heading away from the center of the DC ADIZ and the FRZ. The FAA advises that failure to comply with the signal "may result in interception by military aircraft and/or the use of force." The target date for implementation of the new signal is May 21, 2005. For more information regarding the signal, NORAD has published a Fact Sheet including a detailed description of the signal as well as answers to anticipated questions.

After the overly publicized DC ADIZ incursion on Wednesday, I am sure this system will be well received. However, for situations such as Wednesday, I am not so sure the signal will make much of a difference. It is still inconcievable to me how a pilot (a cfi no less) flying along the east coast in this post 9/11 era could be so ignorant as to fly right through the DC ADIZ. With a student no less! In this type of situation, I would be surprised if such a pilot would be familiar with the warning system or understand what was going on if he or she were actually "illuminated".

Unfortunately, that pilot's stupidity will just add fuel to the chicken littles out there preaching the supposed threat of general aviation. It will certainly make it more difficult to regain access to Reagan National Airport.

Posted by Greg

May 11, 2005

NTSB Recommends Changes To FAA’s Procedures For Collecting And Reporting General Aviation Activity

The NTSB yesterday issued Safety Recommendations relating to the FAA's collection and reporting of general aviation activity. According to the NTSB, "[v]alid activity data are necessary to compare the accident rates for different aircraft types and types of operations, to establish baseline measures that can be used to identify and track accident trends, and to assess the effectiveness of safety improvement efforts." When the Board analyzed the methods currently used to produce those estimates, it found the existing data lacking.

The Board recommended that the FAA (1) Develop, validate, and document an unbiased method for generating and revising activity estimates based on nonscheduled 14 Code of Federal Regulations Part 135 and Part 91, Subpart K, operator surveys or reporting; (2) Require Part 91, Subpart K, fractional ownership operators to report activity on an annual basis to include total hours flown, revenue flight hours flown, revenue miles flown, and number of departures by category/class of aircraft; and (3) Develop, validate, and document an unbiased method for generating and revising activity estimates based on surveys or reporting of general aviation operations.

Additionally, the NTSB reiterated its previous recommendations that the FAA (1) Identify measures independent of the General Aviation and Air Taxi Survey that can be used to check the accuracy of nonairline flight hour estimates; and (2) Implement a program that will (a) measure and track the currency of aircraft owner contact information in the Civil Aircraft Registry and (b) systematically improve the currency of this information in a measurable way.

If you would additional information regarding the recommmendations, you may contact the NTSB directly at (202) 314-6177.

Posted by Greg

May 10, 2005

FAA Holds EAJA Inapplicable To Hazardous Materials Cases

The FAA has affirmed a DOT administrative law judge's denial of a request for attorney's fees and expenses under the Equal Access to Justice Act in a civil penalty action alleging violations of hazardous materials statutes. In In the matter of Dominion Concepts, Inc., the FAA was seeking to assess a $27,000.00 civil penalty against Dominion for knowingly offering an undeclared shipment of hazardous materials for air transportation, failing to class, describe, package, mark, label, and certify the materials properly, failing to provide emergency response information, and failing to instruct Dominion’s officers, agents, and employees as to the applicable regulations.

However, after the alleged violations, Dominion had apparently filed for bankruptcy and was no longer in existence. After discussions between Dominion, the FAA and the ALJ, the parties agreed to have the ALJ issue a consent order assessing a $1,000 civil penalty against Dominion and dismissing the FAA's complaint with prejudice. Following entry of the consent order, Dominion filed an application for $10,000.00 in attorney's fees and expenses under EAJA. The ALJ dismissed the application on the ground that his consent order was not a "decision of the adjudicative officer" because it was not issued after consideration of the facts and the law. Thus, EAJA did not provide a remedy in that situation. Dominion then appealed.

On appeal, the FAA administrator, who reviews civil penalty decisions, rejected the application holding that the EAJA does not apply to hazardous materials cases. Rather, it only applies to adversarial adjudications. The administrator also found that Dominion was unable to show that the FAA's demand was unreasonable under all of the facts and circumstances of the case.

Currently, Dominion has appealed the case to the United States Court of Appeals.

Posted by Greg

May 09, 2005

Florida Court Of Appeals Affirms Florida Requirement That Aircraft Mechanic Lien Be Recorded Both With FAA Registry And In County Where Work Was Performed

In Creston Aviation v. Textron Financial Corporation, the Florida Court of Appeals affirmed a Broward County court's grant of summary judgment holding Creston Aviation's mechanic's lien unenforceable. In Creston, the owner of the aircraft defaulted on his financing with Textron and ultimately returned the aircraft to Textron. However, at the time of surrender, Creston was in possession of the aircraft and claimed a mechanic's lien for work it performed on the aircraft. Creston Aviation filed its notice of mechanic's lien with the FAA Registry in Oklahoma City, Oklahoma, but did not file in Broward County, Florida.

In opposition to Textron's motion for summary judgment, Creston argued that the filing requirement of 49 USC 44107 pre-empted Florida statute 329.51 which, in addition to the FAA Registry filing requirement, also requires that a mechanic lien claimant file in the county in which the work was performed. The circuit court granted summary judgment finding that the lien was invalid for failure to comply with state law.

On appeal, the court noted that "the federal recording statute preempts any state law which would give priority to a claim against an aircraft where that claim was not recorded with the FAA in Oklahoma City, and where the competing claim was recorded with the FAA." It went on to state that "It is apparent that the supremacy of the federal regulation requiring recordation of interests in aircraft with the FAA is operative to the extent that if the title or lien interest is not recorded in the FAA Aircraft Registry, then it will not be valid as against third parties without notice, regardless of any state law to the contrary". The court affirmed the grant of summary judgment by concluding that the federal requirement that notice of mechanic’s liens on aircraft be filed with the FAA did not preclude the State of Florida from imposing requirements which affect the “enforceability” of those liens in Florida.

Although this is an unfortunate outcome for Creston, especially since it filed its mechanic's lien with the FAA Registry, we can learn something from this case. Aircraft mechanic's liens are creatures of statute, both federal and state. If you want to assert a mechanic's lien against an aircraft, you need to be familiar with both the federal and state laws that may affect your ability to perfect your aircraft mechanic's lien and to protect the priority of your lien. Each state is different. Make sure you do your homework so you don't end up empty handed.

Posted by Greg

May 06, 2005

GAO Issues Report Addressing Financial Condition Of Airport And Airway Trust Fund

On May 4, 2005, the Government Accounting Office (GAO) issued a Report titled "Airport and Airway Trust Fund: Preliminary Observations on Past, Present, and Future". The Report was given to Subcommittee on Aviation, House Committee on Transportation and Infrastructure in connection with the current debate regarding the future of the Fund as well as the future funding of the FAA. The Report addresses the financial condition of the Fund and makes for interesting reading.

The Report concludes that "[o]ne of the critical questions that will need to be addressed is not only the amount of the Trust Fund’s uncommitted balance but also whether the government has the fiscal capacity to fund current and future Trust Fund obligations while concurrently addressing the needs of other competing programs for scarce resources." It also notes that "FAA and Congress will also have to find a way to better align FAA’s costs with revenue and to better address both the cost and revenue sides of the ledger" (meaning balance the FAA's budget). To do this, the Report suggest that the FAA will have to consider alternatives "ranging from increasing the current taxes that accrue to the Trust Fund to adopting user fees that would be more cost related—and the trade-offs associated with each."

With the mention of user-fees, the GA alphabet groups have and will continue to oppose any such fees. Additionally, the reports of the comments made by some of the Aviation Subcommittee members seems to indicate that the FAA's financial management will receive considerable scrutiny before user-fees will even be considered. It appears however that the user-fee issue will remain on the table during the debate and will continue to warrant vigilance on the part of those who oppose such fees.

Posted by Greg

FAA Issues AC 23-17B, Systems and Equipment Guide for Certification of Part 23 Airplanes and Airships

The FAA today published a Notice of Issuance of Advisory Circular for AC 23-17B, Systems and Equipment Guide for Certification of Part 23 Airplanes and Airships. AC 23-17B sets forth an acceptable means, but not the only means, of showing compliance with 14 CFR 23, for the certification of systems and equipment in normal, utility, acrobatic, and commuter category airplanes and airships. The AC consolidates existing policy documents, and certain ACs that cover specific paragraphs of the regulations, into a single document, adds new guidance and includes preamble material, in italics, under the applicable rule and amendment level.

The AC is applicable only to an original applicant seeking issuance of a Type Certificate (TC), an Amended Type Certificate (ATC), or a Supplemental Type Certificate (STC) for the initial approval of the new type design or a change in the approved type design. It is important to note that this AC is not mandatory or regulatory and does not constitute a regulation. Also, the AC only covers policy available through September 30, 2003. Any policy that became available after September 30, 2003, will be covered in future revisions to the AC.

AC 23-17B was issued April 12, 2005 and supercedes AC 23-17A, Systems and Equipment Guide for Certification of Part 23 Airplanes. You can obtain a paper copy of AC 23-17B by writing to the U.S. Department of Transportation, Subsequent Distribution Office, DOT Warehouse, SVC-121.23, Ardmore East Business Center, 3341Q 75th Avenue, Landover, MD 20785, telephone 301-322-5377, by faxing your request to the warehouse at 301-386-5394 or online here.

Posted by Greg

May 05, 2005

"Bizarre And Unusual" Question From ATC Does Not Create An Emergency

An interesting enforcement action arose out of an airman's unauthorized incursion into the Baltimore-Washington enhanced Class B airspace shortly after 9/11. In Administrator v. Smith, the FAA issued a Notice of Proposed Certificate Action seeking a 150 day suspension for the airman's alleged violations of 14 C.F.R. 91.131(a) (prohibiting operation in Class B airspace without ATC clearance), 91.139(c) (prohibiting operation inconsistent with airspace restrictions issued by emergency rule in NOTAM), 91.13(a) (careless and reckless) and 91.103(a) (preflight duty to familiarize with all information concerning flight). The FAA alleged that on September 23, 2001, the airman operated a Piper PA-28-180 within the Baltimore-Washington Class B airspace without having received an ATC clearance from the appropriate ATC facility and that he failed to comply with FAA NOTAM Number FDC 1/0356, which prohibited the operation of VFR aircraft in enhanced Class B airspace

The airman didn't deny the FAA's allegations, but rather argued that his actions were excused because an emergency situation existed. The airman claimed that he became concerned and nervous after the controller asked him whether he was on a training flight following his request for a clearance to descend and land at an airport located within enhanced Class B airspace. (VFR training flights were exempted from the enhanced Class B prohibition). The airman replied that he was not on a training flight and then allegedly lost radio communications.

At the hearing, the airman explained that when he heard the controller ask if he was on a training flight (a question respondent said he considered unusual), immediately followed by the loss of radio communication, he became alarmed and feared another terrorist attack might be occurring. Upon landing, however, he determined that his radios were working again. The FAA inspector testified that ATC's question to the airman was not unusual and did not constitute an emergency situation. The ALJ agreed and held that the airman's unauthorized Class B incursion violated sections 91.131(a)(1), 91.139(c) and 91.13(a)(1). However, the ALJ felt that the airman had adequately familiarized himself with all available information before the flight and, therefore, had not violated section 91.103(a). The ALj then reduced the suspension from 150 days to 110 days.

On appeal to the NTSB Board, the airman reiterated his emergency defense that an emergency situation was created by ATC's "bizarre and unusual" question and his loss of radio communication. However, he also admitted that "the reason his radios stopped working in flight was, 'probably because he inadvertently rendered [them] inoperative' and "that after he lost radio communication in flight he failed to use his transponder to transmit the code for lost communications (7600), and that this was a mistake."

The Board rejected the airman's arguments. They felt that whether ATC's question was unusual was irrelevant to whether the airman reasonably believed he was in an emergency situation and also opined that the airman "obviously was not fully informed about the contents of the NOTAM prohibiting flight into enhanced Class B airspace without a clearance" and thus "he would not likely have known whether the controller’s question was apropos". They also found that the loss of radio contact did not qualify as an emergency because it was of his own making and, thus, did not justify his violations.

This case is interesting for several reasons. One, it is curious that the case has taken so long to work its way through the system. The violations occurred on September 23, 2001 and the hearing was held on September 17, 2003. Not too unusual so far. But then the Board's opinion was not issued until March 23, 2005. This seems like an awfully long time for an appeal.

Second, I don't think this case should have made it as far as it did. When you compare the airman's admissions and version of what happened to existing case law interpreting the emergency doctrine, it is pretty clear that the airman was not in an emergency situation. However, the suspension sought by the FAA was also excessive for a single airspace violation. And this wasn't even a restricted area. I understand that it occurred shortly after 9/11, but given the facts and the time this case took to wallow through the system, you would think that a more reasonable resolution could have been reached by the parties sooner. Perhaps additional circumstances were involved that are not revealed in the NTSB opinion?

Posted by Greg

TSA To Demand More Airline Passenger Info

A CNN Article reported yesterday that the TSA will require airlines to solicit passengers' full names and dates of birth. Although passengers are not required to provide the information, the TSA official in charge of the program, Justin Oberman, indicated that a passenger who doesn't provide the information will be more likely to receive more stringent screening. (In other words, give us the information or you will suffer the consequences).

Apparently the information will be used by the TSA as it develops its Secure Flight program with the eventual goal of TSA taking over the entire screening process from the airlines. According to Mr. Oberman, by providing this information passengers will make it less likely that they'll be confused with people who are known or suspected terrorists and, supposedly, "[f]ar fewer people will be inconvenienced than they are today."

In light of the recent GAO report finding inadequacies in the TSA's management and protection of passenger data, adding this additional information to a TSA database that lacks the necessary privacy safeguards seems like a risky proposition to me. However, the alternative of receiving additional poking, prodding and screener attention isn't particularly appealing either. This just reinforces the decision to travel in any way possible other than having to fly the airlines. Glad I can fly myself!

Posted by Greg

May 03, 2005

NTSB Board Rejects Airman's Mistaken Identity Defense

In a recent NTSB decision, the Board upheld an ALJ's finding of violation for an airman's flight into Camp David (P-40) restricted airspace. In Administrator v. Goodman, the father and son were flying a Cessna 172 owned by the father when they were intercepted by F-16's and forced to land. After landing the tower instructed the pilot in command (PIC) to call the FAA. According to the son, the father called the FAA. Of course, the father and son also had the mandatory chat with the secret service.

Subsequently, an FAA inspector contacted the father to discuss the airspace violation and possible enforcement action. The father then called the son who then called the FAA inspector. In that conversation the son stated that he had been the PIC. The son also sent a letter to the FAA to that effect.

However, when the expected certificate action was initiated, the son submitted an answer that simply denied that he was PIC and did not address any of the other allegations contained in the order. According to the son, he had earlier assumed responsibility for the flight to take the burden/pressure off of his father and because he did not believe the flight had actually encroached upon the restricted airspace.

At the hearing, the son and the FAA agreed that the only issue was whether the son was PIC for the flight. The son testified that when he realized the impact a certificate action would have on him, he then decided he was no longer willing to take responsibility for his father's actions. The ALJ didn't buy it. Although he thought the son might be protecting his father, the ALJ placed greater reliance upon the prior oral and written admissions made by the son. The ALJ affirmed the FAA's order finding that the son had violated 14 C.F.R. 91.103 (airman's duty in preflight to familiarize himself with all aspects of flight), 91.141 (prohibition against flying in vicinity of president), and 91.13(a) (careless and reckless) and imposed a 90 day suspension of the son's airman certificate.

The son then requested reconsideration of the ALJ's decision and included a letter (with a later postscript) from his father to Alabama Congressman Jo Bonner, stating among other things that he, not his son, had been the PIC. The ALJ denied the request for reconsideration. The son then appealed, continuing to argue that he was not PIC and that the Administrator failed to prove that the aircraft actually entered the expanded P-40 airspace.

The Board rejected the son's appeals. Since the son did not respond to any of the FAA's allegations regarding the airspace violation (other than him denying that he was PIC) and stipulated to only trying the PIC identity issue, the Board held that the son could not raise any of the other issues on appeal. The letter to the congressman was similarly rejected since it was not produced at the hearing, nor did his father testify at the hearing. The Board held that the record contained no basis for reversing the ALJ's credibility determinations regarding the identity of the PIC.

It appears that this is a case in which the airman was trying to play the system by raising the PIC identity issue. He placed himself in a tough situation. Once he made his admissions, he either had to take the blame or try to shift it back to his father. Unfortunately, he wasn't able to meet his burden of proof. Also, in hindsight, he probably made procedural errors in failing to respond to all of the FAA's allegations and by stipulating to only presenting evidence at the hearing regarding the identity issue.

Although the procedural issues may not have ultimately been dispositive, an aviation attorney certainly could have preserved the issues and perhaps asserted additional defenses on behalf of the airman. Not to mention presenting a stronger argument regarding the PIC identity issue.

Posted by Greg

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12/01/2005 - 12/31/2005
01/01/2006 - 01/31/2006
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