Tuesday, July 1, 2014

The FAA Clarifies the Rules on Model Aircraft

On July 18, 2014, the Federal Aviation Administration (FAA) published a notice of interpretation for the special rules applicable to model aircraft under the FAA Modernization and Reform Act of 2012 (the Act). 
The Act authorizes the FAA to integrate unmanned aircraft systems (UAS) into the National Airspace System (NAS). A model aircraft qualifies as a type of UAS and the FAA established special rules for this type of aircraft.  Due to public confusion regarding the rules, the FAA provided this recent interpretation to help clarify what constitutes a model aircraft and what qualifies model aircraft for exemption from future rulemaking.  Additionally, the FAA elaborated on the scope of its authority to take enforcement action against those operators who commit safety violations.
The definition of a model aircraft that Congress provides is consistent with the FAA’s long-standing position that it is one that is operated without the possibility of direct human intervention from within or on the aircraft.  As such, the FAA interpreted this portion of the Act in such a way that visual line of sight would mean that the operator has an unobstructed view of the model aircraft.  If the UAS qualifies as a model aircraft, then the next question should be is it exempt from future rulemaking. 
Congress restricted the FAA from establishing regulations regarding a model aircraft that meets certain exemption terms.  These operational requirements are the source of confusion for those who operate model aircraft due to the uncertainty as to whether future rulemaking applies to them or not. A model aircraft that does not meet these statutory requirements is nonetheless an unmanned aircraft and as such is subject to all existing FAA regulations, as well as future rulemaking action.
The FAA concluded that it was the intent of Congress for the FAA to be able to rely on a range of existing regulations to protect users of the national airspace system, people, and property on the ground.  As a result, regardless of whether a model aircraft satisfies the statutory and operation requirements mentioned above, if the model aircraft is operated in such a manner that endangers the safety of the NAS, the FAA may take enforcement action.  
If you are uncertain as to whether or not your UAS qualifies as a model aircraft or for future rulemaking exemptions, then contact Aviation Attorney Ronnie Gipson at (415)692-6523 or gipson@higagipson.com.

Monday, June 2, 2014

The FAA Considers Integrating Commercial Unmanned Aircraft Systems For the First Time into the National Airspace System

           The FAA Modernization and Reform Act of 2012 (the Act) tasks the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UAS) into the National Airspace System (NAS).  The Act legislates under the premise that UAS activity and accompanying regulations will develop from research and test flights and then go on to cover commercial operations.  Currently, public agencies have access to the NAS in order to facilitate testing and operations of UAS.  Certificates of Waiver or Authorization are available to public entities that want to fly UAS in civil airspace and have been issued for the following flight operations:  law enforcement, firefighting, border patrol, disaster relief, search and rescue, and military training. 


            In contrast, commercial operators, i.e. companies who propose to use UAS to earn a profit, have not been granted access to the NAS for testing purposes or otherwise by the Act.  The Act gives the FAA the authority to grant an exemption to commercial operators to operate UAS in the NAS on a case-by-case basis.  The policy of the legislature and the FAA is that for UAS to operate safely in the NAS, the UAS must meet the same certification criteria for aircraft airworthiness and pilot certification as manned aircraft.  In other words, at this stage for the FAA to grant approval of a UAS in the NAS, there must either be a certificated pilot at the controls or the operator must demonstrate that the operator of the UAS can safely perform operations without an airman certificate as well as comply with all of the other pertinent Federal Aviation Regulations. 

            Recently, the Motion Picture Association of America facilitated an exemption requests on behalf of seven of its aerial photo and video production company members to the FAA asking the agency to grant an exemption from the Federal Aviation Regulations that govern general flight rules, pilot certification requirements, manual requirements, maintenance and equipment mandates.  The exemption request, if approved, would represent the first time that the FAA allows use of UAS for commercial operations.  The aviation industry as a whole will be closely watching the MPAA’s exemption request for indicia of the precedential steps that other commercial operators will have to follow in the future to achieve authorization for UAS to operate in the NAS.  If you intend to integrate UAS into your business’s operations, then contact Aviation Attorney Ronnie Gipson for assistance with the project at (415) 692-6523 or gipson@higagipson.com.

Friday, March 7, 2014

Recap to An Active Week in US Aviation Law

          This week the aviation industry saw a lot of activity in the legal arena that could have a significant impact on general and commercial aviation.   

          First, President Obama sent his budget proposal to Congress for 2015.  In the proposed budget, the President is again seeking a $100 user fee for both commercial and general aviation flights in the National Airspace System.  The congressional leadership kicked into gear immediately sending a strongly worded letter to the President indicating that this aspect of the budget proposal would not pass.  Aviation advocacy groups such as EAA and AOPA issued statements condemning the proposal as the wrong way to fund the services provided by Air Traffic Control.  Advocacy groups reiterated that the current system of collecting excise taxes on fuel purchases is an equitable way to extract proportionate tax revenue from users of the system based on demand.  While Higa & Gipson will continue to monitor the user fee proposal, we encourage airmen and aviation business owners to reach out to their congressional representatives and unequivocally let them know that user fees are not the way to fund ATC services.   

            The second major development this week in aviation law pertains to the nascent commercial drone industry.  The FAA has banned the operation of commercial drones in US airspace until it has time to implement rules for the safe integration of commercial drones into the National Airspace System.  National Transportation Safety Board Administrative Law Judge Geraghty handed down a ruling that overturned a civil penalty imposed by the FAA against the operator of a drone on the basis that the FAA lacked the statutory mandate to impose the penalty for violation of policy guidance disseminated from the FAA and not from an official rule.  While the technology industry lauds the ruling as a step towards advancing the cause of integrating drones into the NAS, it may be too early to open the celebratory champagne.  Almost immediately, the FAA announced that it is appealing the decision to the full NTSB Board.  If the result of this appeal is still considered to be unfavorable by the FAA, then the FAA can launch another appeal to the US Court of Appeals.  Pending the appeals, Judge Geraghty’s ruling is stayed.  Thus, the ban on commercial drone use in the US airspace will continue until the issue is resolved by the appellate process. 

            There are serious ramifications for the introduction of commercial drones into the NAS without thoughtful and measured scrutiny.  For example, the appearance of a commercial drone into the flight path of a commercial jet while landing could cause the airliner to execute a missed approach, which would cost thousands of dollars in fuel costs for the extended flight time.  Then there is the obvious danger in allowing commercial drones too much leeway for operations in the NAS due to the prospect of a mid-air collision with a general aviation or commercial airliner due to an absence of certified technology that can detect the other aircraft’s presence and provide collision avoidance guidance.  These concerns all relate to the potential for significant loss of life and property damage and as such require that the FAA move forward with caution. 
            Should you have questions about the user fees proposal or the National Airspace System, then contact Aviation Attorney Ronnie Gipson at gipson@higagipson.com or by telephone at (415) 692-6520.

Wednesday, January 22, 2014

Airmen Can Minimize Exposure to a FAA Enforcement Action

Several times throughout the year I present a seminar to pilots titled, "Understanding the FAA Enforcement Process".  The purpose of the seminar is to educate pilots about their rights and obligations if they become involved in an enforcement action pursued by the FAA to either suspend or revoke their certificate.  In short, if an airman commits a violation of a Federal Aviation Regulation (FAR), then the FAA has the authority to revoke or suspend an airmen's certificate for that violation. There exists an administrative legal process whereby the airmen forces the FAA to prove that the violation occurred and that the sanction sought is warranted.  These administrative trials are heard by National Transportation Safety Board (NTSB) Administrative Law Judges.  Not surprisingly the process of going to trial on a revocation or suspension action is expensive and time consuming. 

Most general aviation pilots have little to no knowledge of the enforcement process.  Private Pilot & Sport Pilot training do not cover this topic.  In the absence of training, most pilots are unaware of a very useful resource that can assist them in avoiding an enforcement action altogether.  In an effort to improve safety in the National Airspace System, the federal government created the Aviation Safety Reporting System (ASRS).  Through the ASRS, an airman can submit a report, without giving identifying information, that describes an incident, operation, or procedure that could create a hazard to aviation safety.  The ASRS report is submitted to NASA, which has no enforcement authority.  NASA then redacts any identifying information and compiles the safety information for action within the National Airspace System. 

Why does this matter to GA pilots?  The answer is simple and straightforward-- if an airmen submits an ASRS form in relation to an incident that is directly related to an FAA enforcement action, then the airmen is immune to disciplinary action by the FAA.  See 14 C.F.R. section 91.25.  However, there is an exception, if the ASRS pertains to an accident or criminal activity, then the immunity does not apply. 

Allow me to demonstrate with two examples.  Recently I was flying  through Class C airspace with a VFR clearance.  I received an instruction from ATC that I did not understand.  I asked the controller to repeat the instruction twice.  The controller repeated the instruction twice, but I did not understand what she wanted me to do.  I then explained that I did not understand and the controller amended her instruction and told me to fly a heading.  During the time that our communication exchange occurred it is possible that I may have flown too close to aircraft being sequenced for landing at the Class C airport.  I don't know.  To protect myself, I filed an ASRS to identify the problem...namely the use of language and phrasing by ATC with a VFR pilot that was confusing.  Should the FAA seek to pursue any type of enforcement action against me, I am immune from any sanction because I voluntarily reported the incident to NASA. 

Now consider an instance where the airmen would not get the benefit of the ASRS immunity.  Earlier this month a private jet crashed while attempting to land in Aspen, Colorado.  If the surviving first officer were to file an ASRS form pertaining to the accident, then NASA would be obligated by law to share the identifying information with the FAA and the airmen would not get the benefit of the immunity policy.  Remember, criminal activity and the occurrence of an accident will prohibit the airman from being eligible to claim the protection of the immunity policy.

There exists more information about the ASRS form and the immunity policy.  If you are contacted by the FAA in relation to an enforcement action, then call Ronnie Gipson at (415) 692-6523 or email him at Gipson@higagipson.com to discuss whether or not you can utilize the ASRS form to avoid suspension or revocation of your certificate. 

Tuesday, August 6, 2013

FAA Publishes New Rule on Pilot Qualifications

On August 1, 2013, the Federal Aviation Administration ("FAA") published a new rule on pilot qualification requirements impacting pilots who fly as first officers for U.S. passenger and cargo airlines. The rule requires first officers to hold an Airline Transport Pilot ("ATP") certificate with 1500 hours of total time as a pilot. The new rule also requires first officers to have an aircraft type rating specific to the airplanes flown for the airline.

There is an allowance for current first officers with fewer than 1500 hours of flight time enabling those pilots to obtain a restricted privileges ATP certificate. The restricted privileges ATP certificate allows a pilot to serve as a co-pilot until he obtains the necessary 1500 hours.

The new rule stems from the Colgan Air flight 3407 crash in February 2009. This rule is meant to increase the safety of operations by raising the experience level for both pilots flying for passenger and cargo airlines.

If you have questions about the new rule or its implementation, then contact Aviation Attorney Ronnie Gipson by email at Gipson@higagipsonllp.com or by telephone at (415) 692-6520.

Thursday, July 18, 2013

An Employee Terminated For Not Cooperating in an Internal Investigation Does Not Automatically Constitute A Wrongful Termination

Recently a supervisor working for a California company was fired for not cooperating with his employer’s investigation regarding a subordinate’s claim against him for discrimination and harassment. The supervisor had criticized the subordinate’s work performance and the subordinate responded in turn by complaining to human resources that the criticism was a result of sexual discrimination and harassment.

An external investigator was hired to conduct the company's internal investigation. The investigator determined that the supervisor intentionally misrepresented some facts and was uncooperative during the internal investigation. As a result of this report, the supervisor was terminated. The supervisor then filed a lawsuit against his employer stating that he was wrongfully terminated for participating in the investigation.

The court applied California’s Fair Employment and Housing Act (FEHA) to the facts and issues and concluded that FEHA did not shield an employee against discipline, up to an including termination, for misconduct during an employer's internal investigation of a discrimination claim. Employees have a duty to be truthful and cooperate with their employers in an internal investigation; otherwise, the employer can discipline or terminate that uncooperative employee.

As employers, if you have questions pertaining to questionable conduct from an employee participating in an internal investigation, then contact Ronnie Gipson by telephone at 415.692.6520 or by email at Gipson@higagipsonllp.com.

Monday, July 1, 2013

Government Officials Conducting Questionable Searches of General Aviation Aircraft

As we near the half way mark of 2013, the aviation community has seen a startling trend emerge – there are a growing number of reports from law abiding airmen being stopped by armed federal agents on the ramp and their aircraft being searched without a warrant.  The agency reportedly conducting the searches is the U.S. Department of Homeland Security (DHS) Customs and Border Protection Division. 

 The searches seem to be targeted at General Aviation and have raised concerns regarding privacy and civil rights intrusions by the Federal Government.  To place these searches into context, a little education is required.  The Fourth Amendment to the U.S. Constitution protects people from searches by the government without a warrant.  The Amendment further provides that a warrant may be issued only upon probable cause.  Cases decided in our Fourth Amendment jurisprudence history stringently adhere to the warrant requirement for a search of a person’s property such as an automobile.  However, there are exceptions to the warrant requirement that allow government actors to conduct a search without a warrant. 

There exist a lot of questions about whether the searches are properly authorized because the reported searches were conducted by armed Customs and Border Protection agents at airports a significant distance away from the U.S. border such as in Iowa City, IA.  The Aircraft Owners and Pilots Association (AOPA) along with the Experimental Aircraft Association (EAA) have both demanded official responses from officials at the highest level of DHS with no response.  The affected airmen and AOPA have filed Freedom of Information Act requests to no avail.  The purpose of the demand for official responses is to identify the legal basis upon which the searches are being conducted to assess whether or not the searches comply with the Fourth Amendment’s warrant requirement or whether the searches qualify for one of the exceptions.  The searches, as they are reportedly being conducted, amount to harassment by government officials who wrongly believe that constitutional protections do not apply to GA pilots. 

To date, none of the airmen have been arrested in connection with the warrantless searches.  As a result, without legal action in the courts by the government agencies no one has been provided with the right set of circumstances to challenge or question the DHS’s expansion of searches before a sitting Judge.  Regardless of whether or not the government takes subsequent action, if the right set of circumstances come to pass, there may exist an opportunity to challenge the actions.

If you, as an airman encounter a situation where a law enforcement official endeavors to search the aircraft without a warrant, then there are some suggested steps for you to follow to protect your rights.  First, ask the law enforcement official(s) to explain the purpose of their search.  Next, request to see the law enforcement’s official identification and make note of their name, badge number, and agency.  Third, in response to a request for documentation, provide the information specified in the Federal Aviation Regulations (FARs) to officials from the following:   the FAA, the NTSB, Federal, State, or local law enforcement agencies.  For example, a private, commercial, or ATP pilot must present their pilot certificate, medical certificate, and a photo id[1].  Additionally, the pilot must present a valid aircraft registration upon request.  The fourth recommendation is for you to ask the official to identify the authority for the search.  Ask if you are under arrest.  If you are not under arrest, then ask if you are being detained and if you are free to go.  Next, if the law enforcement official states that they are going to search the aircraft and its contents over your objection, then you should plainly state that you do not consent to the search, but that you will not interfere.  It would also be prudent to alert the law enforcement official that disassembly of any portion of the aircraft may render the aircraft unairworthy[2].  

If feasible and allowed to do so, then take steps to document the search such as with a camera of cell phone.  Make a detailed written report as soon as practical to preserve the sequence of events as close as possible to how they transpired.  Each situation is unique and it is not the intent of Higa & Gipson through this blog entry to provide legal counsel on a specific factual scenario.  If you find yourself presented with this frightening circumstance in California, then contact Aviation Attorney Ronnie Gipson to discuss the situation at (415) 692-6523 or by email at gipson@higagipsonllp.com.      

[1] Code of Federal Aviation Regulations § 61.51(i) (1) (WEST 2013).   
[2] Portions of the recommended steps were adopted from AOPA’s brochure titled, “What To Do If Stopped by Law Enforcement” dated June 19, 2013, and appearing on the Internet at http://www.aopa.org/-/media/Files/AOPA/Home/News/All%20News/2013/June/CBPGuildelinesKneeboard.pdf