Air & Transportation International Air & Transportation S a f e t y B a r Association Law Reporter

ISSUE 04 MAR 2 0 1 6 President’s Messageb y Justin Green

Registration is open for the The 2016 Joseph T. Nall Award IATSBA Annual Conference, which will take place between April 28 and On April 29, the International April 30 in Washington D.C. We Air and Transportation Safety Bar already have commitments from a Association will award the 2016 Joseph terrific group of speakers, including T. Nall Award to Nick Sabatini for his the NTSB Vice Chair Bella Dinh- incredible contributions to aviation Zarr who will be the opening dinner safety during a storied career at the JUSTIN GREEN joined speaker. Speakers include NTSB Federal Aviation Administration. Kreindler & Kreindler LLP in 1997 after clerking for Board Member Robert Sumwalt, David the Honorable Alfred J. Tochen, NTSB General Counsel, Hon Nick served as the U.S. Lechner in the Federal Alfonso Montano, Chief Administrative Federal Aviation Administration’s District Court for the District of New Jersey. Law Judge, in addition to leading Associate Administrator for Aviation He became a partner in attorneys and professionals from the Safety from 2001 to 2009, where he January of 2003. Federal Aviation Administration and was responsible for the certification, Justin focuses his practice on helping from private practice. production approval, and continued families of aviation airworthiness of aircraft; certification disaster victims, but also The conference will be held at of pilots, mechanics, and others in litigates other complex matters. Justin learned the Holiday Inn Capitol, which has just safety-related positions. In that role, he to fly while in the United finished a major renovation. We have was also responsible for certification States Marine Corps and purposely kept the conference costs of all operational and maintenance served as his squadron’s aviation safety officer as low as possible and you can now enterprises in domestic civil aviation; after graduating from register at the following rates: $425 development of regulations; civil flight the Naval Postgraduate private practice and $275 government. operations; and the certification and School’s aviation safety program. He You can register on line at IATSBA.org safety oversight of some 7,300 U.S. was responsible for his or you can use the registration form commercial airlines and air operators. squadron’s aviation that is included in this newsletter and Nick was responsible for some 7,000 safety, and also for investigating accidents. mail it and a check to the address on employees in FAA Washington He holds an airplane and the form. The block of rooms at the Headquarters, nine regional offices, commercial Holiday Inn for the event is at a low and more than 125 field offices license from the Federal Aviation Administration. $199 per night, plus tax. To book a throughout the world. As an aviation lawyer, room, you can call the Capitol Holiday Justin has successfully Inn at (877) 572-6951 and mention Prior to that, Nick was manager represented families in dozens of major the rate code T9S or you can link to of the Flight Standards Division for aviation cases, including the hotel’s reservation page from our FAA’s Eastern Region, and served most recently the website when you register for the in a variety of aviation operations families of Continental Connection Flight 3407 conference. and management positions in the and Turkish Airlines agency’s Eastern Region, as a Flight 1951 victims. He At our GALA dinner we will principal operations inspector, aviation edits Kreindler, Aviation Accident Law published honor two people who have made truly safety inspector, manager of the Flight by Lexis/Nexis. remarkable contributions to aviation Standards Division Operations Branch, and you will not want to miss the and assistant manager of the Flight PAGE opportunity to join us in making the Standards Division. 02 awards. President’s Message (continued)

Prior to joining the FAA in 1979, John Yodice has dedicated his Nick was a pilot for the U.S. Customs professional life to aviation since he Service in New York. From 1958 to graduated from George Washington 1976, he was a police officer and University School of Law in 1959. Since INSIDE THIS ISSUE helicopter pilot for the then he has represented pilots, flight Police Department. He served in the schools, corporate and commercial U.S. Army from 1956 to 1958. operators, aircraft owners, and others PAGE TWO in a broad range of important aviation President’s Message Nick holds an airline transport law matters. He served as General Justin Green pilot certificate and the following Counsel to the Aircraft Owners and ratings: Airplane multi-engine land, Pilots Association, a Sponsor for PAGE FOUR rotorcraft-helicopter, DC-9, CE- the IATSBA Conference, and the Editor’s Column 500, BH206, EMB110, commercial International Council of Aircraft Owner Greg Reigel privileges, airplane single-engine land, and Pilot Association. He is a Director as well as flight and ground instructor (and past president) of the Lawyer- PAGE FIVE certificates. He attended the John Jay Pilots Bar Association and serves as NTSB General Counsel College of Criminal Justice; the Kellogg LPBA’s Convention Manager. John is Katie Inman School, Northwestern University; an active commercial pilot and flight and the Fletcher School of Law and instructor. He uses his twin-engine PAGE NINE Diplomacy, Tufts University. Cessna Turbo 310 primarily in his law practice. His Piper Cub is just for fun. UAS & Privacy Alan Frazier Past honorees include: • Safeflight Instrument Corporation, John is one of the IATSBA founding members and has been a PAGE TWELVE Randy Greene, Chief Executive Office, and his father Board member since day one. He Start Up Commuter • Cirrus Aircraft SR Safety Design Team continues to contribute as the Board’s Airlines • Dr. John K. Lauber, NTSB Board Secretary. He, perhaps more than Jim Waldon Member, Senior Vice President and anyone, is responsible for creating Chief Product Safety Officer, Airbus this bar association of lawyers who PAGE FOURTEEN SAS are dedicated to aviation law and the Annual Conference • William R. Voss. President and CEO, safety of pilots and passengers of fixed Information Flight Safety Foundation and rotary wing aircraft. • Herbert D. “Herb” Kelleher, Co- PAGE TWENTY-FOUR Founder and CEO, Southwest Airlines The IATSBA Lifetime NTSB Law Judge Circuit • Captain Alfred C. Haynes, United Achievement Award is awarded Assignments Airlines Flight 232, Sioux City, Iowa to the attorney who has made a truly remarkable contribution over PAGE TWENTY-FIVE a significant time period to our bar IATSBA Membership The 2016 International Air and association, to aviation law and to Application Transportation Safety Bar aviation safety. No person is more Association deserving than John Yodice of the honor of being the first recipient of the PAGE Lifetime Achievement Award IATSBA Lifetime Achievement Award. 03 Editor’s Column b y Greg Reigel

Welcome to the Spring/ and agenda are also included in this Conference issue of the International issue of the Reporter. With an agenda Air & Transportation Safety Bar focusing on aviation regulatory issues, Association’s Reporter. As I write this you won’t want to miss this event! column, I am reminded of the value and benefit bar associations such as From the NTSB, Katie Inman IATSBA and LPBA provide to me and discusses several recent cases in to my aviation law practice. They which the Board has decided various sponsor conferences that focus on issues of first impression including a GREG REIGEL is a partner with the law firm the specialized aviation and regulatory determination that it lacks jurisdiction of Shackelford, Bowen, practices of our members. This to review the FAA’s actions relating to McKinley and Norton, publication, which strives to both a statement of aerobatic competency, LLP in Dallas Texas. He has more than two educate and inform our members with as well as a case analyzing the decades of experience articles on a variety of current and application of 14 C.F.R. §91.13(a) to a GARYworking HALBERT with airlines, developing legal issues, provides me situation where the airman caused a jet charter companies, fixed is a partner with the law firm with useful information for my practice. blast after a nearby aircraft would not Hollandbase & operators, Knight. He airports,works out of theirrepair Washington, stations, D.C. pilots, office The camaraderie and friendships I trade places with the airman’s aircraft andmechanics, is a member and of the other firm’s have enjoyed with other association on a taxiway. Katie also updates us aviation businesses Aviation and Transportation Law members also sustain and encourage on several NTSB rule changes that are Practicein Teams. aircraft Gary purchase served in the andUnited sale States transactions, Air Force as a me during those times when a course now in effect. jet instructorregulatory pilot for compliance five years at “Truckmasters” looks like the path to including hazmat and before attending law school at a better career alternative. Next, Alan Frazier analyzes the drugUniversity and ofalcohol Texas. testing, He then servedcontract as an Air negotiation, Force Judge some of the privacy issues facing law Advocateairport forgrant almost assurances, twenty However, to truly enjoy the enforcement agencies that are utilizing airport leasing, aircraft years before retiring in the grade benefits of this and other similar bar small unmanned aircraft systems. And of Colonel.related Gary next agreements, joined the Nationalwet leasing, Transportation dry leasing, Safety associations you need to participate. finally, our President-Elect Jim Waldon BoardFAA (NTSB) certificate as its Generaland civil Attend the conferences. Meet and provides us with a flight-level overview penalty actions and Counsel where he served for network with other members. Read the of the FAA and DOT requirements for fivegeneral years before aviation joining Holland and & Knight.business law matters. newsletter. Or, better yet, contribute starting a Part 121 air carrier. Greg also has extensive an article to the newsletter. Share your experience teaching the next generation experience and expertise. I know this As always, if you would like to of aviation and legal is “preaching to the choir” for some of submit an article but you have questions professionals including our members. But for other members, regarding topic, availability etc., please in such courses as aviation law, aviation I am hoping this will encourage you to feel free to contact me. I will be happy transactions, aviation get involved and to take advantage of to answer questions and help you security, business law the benefits that IATSBA offers to its through the process. Also, if you are and trial advocacy. Greg holds a commercial pilot members. aware of an upcoming event that may certificate (single-engine be of interest to our members, please land, single-sea and And now we take the runway send me the details so we can include multi-engine land) with an instrument rating. in preparation for this issue’s flight. the information in the newsletter. First up, our President gives us a PAGE preview of our upcoming conference I hope you enjoy this edition in Washington, D.C. from April 28- of the Reporter and I look forward to 04 30, 2016. The registration materials seeing you at the conference in April. NTSB

General Counselb y : Katie Inman

In addition to several The Chief Administrative Law noteworthy investigations and safety Judge issued a decisional order on recommendations in the past year, the July 1, 2015, in which he dismissed the NTSB has also been active in issuing appeals for lack of jurisdiction. In the decisions on appeals of various issues order, the law judge concluded SACs of first impression. are not comparable to certificates or ratings over which the Board The Board issued an opinion on unequivocally possesses jurisdiction. November 5, 2015 in a consolidated The order quoted from 49 U.S.C. §§ case involving the Statements of 1133, 44703, and 44709 to reach this Acrobatic Competency (SACs) of nine conclusion. The law judge compared airmen. Administrator v. Hornbeck et SACs to airman certificates or ratings, al., NTSB Order No. EA-5760. The case as described in 49 U.S.C. § 44709(b) arose from appellants’ performance KATIE PLEMMONS INMAN (1), and determined that SACs do not joined the Office of of maneuvers at the Tuscaloosa meet the requirements of § 44709(b) General Counsel in 2005. Air Show on March 29, 2015 in (1). Ms. Inman handles Tuscaloosa, Alabama, in a manner cases on the Board’s enforcement docket,and that ostensibly caused the Federal In addition, the law judge stated serves as the attorney Aviation Administration (FAA) to a SAC is not always required for overseeing rulemaking rescind appellants’ SACs. The April 10, under the Administrative acrobatic operations, and described Procedure Act. Ms. 2015 letter the Alabama and Northwest the procedure for obtaining an SAC, Inman has also served as Florida Flight Standards District Office which is easily distinguishable from the attorney overseeing (FSDO) of the FAA sent to each of the compliance with and the procedure by which an airman litigation regarding nine appellants rescinding the SACs receives a certificate or rating. The law various statutes involving informed appellants they would need to judge concluded, even assuming the the availability of participate in an aerobatic competency information, such as the Board considers an SAC as a type of Freedom of Information evaluation in order to obtain their airman certificate, appellants did not and Privacy Acts. Prior SACs again. The letter also informed exhaust their administrative remedies to joining the Board, appellants they could appeal the Ms. Inman served as a after receiving the FSDO’s letters of law clerk to a Federal rescission of their SACs by writing to rescission, because appellants did not judge in the Eastern the Division Manager, General Aviation wait for review of the rescissions by the District of Texas, where and Commercial Division (AFS 800), she assisted in research FAA General Aviation and Commercial and drafted opinions on at FAA headquarters. Division. a variety of issues. Ms. Inman has also authored Appellants submitted an appeal and published articles Appellants filed an appeal, in scholarly journals to AFS 800 on April 17, 2015. Shortly principally on the basis the law judge’s concerning the legislative thereafter, on April 29, 2015, appellants dismissal deprived them of due process. process and Federal submitted a notice of appeal to the programs. Appellants asserted the manner by NTSB Office of Administrative Law which the FSDO rescinded their SACs PAGE Judges. was unfair, because the International 05 Council of Airshows (ICAS), which NTSB General Counsel c o n t i n u e d

competes with appellants’ air show certificate or rating. The Board stated organization, recommended the an SAC only serves as an indication of rescission. Appellants also argued the holder’s skill and ability to perform the Administrator sought to require certain maneuvers that otherwise them to enter into an indemnification may require a waiver or some type agreement with ICAS and that the of special permission from the agreement was unjust. Administrator. As a result, the Board concluded it lacks jurisdiction to review The Board denied the appeal FAA actions related to SACs. Based and affirmed the law judge’s decision. on this assessment, the Board stated The Board held its jurisdiction it was not authorized to consider the only extends to appeals of airman alleged violation of due process and certificates or ratings. 49 U.S.C. §§ the invalidity of the indemnification 1133, 44703, and 44709. The Board agreement. held an SAC is easily distinguishable from a certificate or a The Board also revisited a rating. case in which the FAA charged the respondent with a violation of 14 The Board concluded the SAC C.F.R. § 91.13(a) for causing a jet itself, FAA Order 8900.1, Volume 5, blast. Administrator v. Langford, NTSB Chapter 9, governing SACs, and the Order No. EA-5763 (Dec. 1, 2015). On process by which to obtain an SAC remand from the Federal District Court are all readily distinct from an airman for the Western District of Texas, the

National Officers President Justin Green New York, New York Executive Vice President Jim Waldon Seattle, Washington Member at Large Tony B. Jobe Madisonville, Louisiana Secretary John Yodice Frederick, Maryland Treasurer Ray Speciale Frederick, Maryland Membership Chairman Matt Robinson Denver, Colorado Emerging Leaders Chairman TO BE DETERMINED FAA Liason Linda Modestino Oklahoma City, Oklahoma Immediate Past President Gary Halbert Washington, D.C. Regional Vice Presidents Alaskan Brent Cole Anchorage, Alaska Central Elizabeth Vasseur-Browne Kansas City, Missouri Eastern Jeffrey Small Coraopolis, Great Lakes Brett Venhuizen Grand Forks, North Dakota New England Paul Lange Stratford, Connecticut PAGE Northwest TO BE DETERMINED Southern Wayne Ferrell Jackson, Mississippi Southwest Mitch Llewellyn Ft. Smith, Arkansas 06 Western Pacific John T. Van Geffen San Francisco, California NTSB General Counsel c o n t i n u e d

Board analyzed the applicability and court denied the motion and remanded appropriate sanction for a violation of the case to the law judge. The court 14 C.F.R. § 91.13(a), which prohibits instructed the law judge to determine: careless or reckless operation, so as to (1) whether the Learjet was 40-50 feet endanger the life or property of another. away from the Cessna when it began to In Langford, the respondent caused increase throttle while simultaneously a jet blast in 2009 in Midland, Texas, applying the brakes, and (2) how that after a nearby Cessna 172 would not finding affects whether respondent trade places with the respondent on a violated § 91.13(a). The court also taxiway parallel to the runway. instructed the law judge to reevaluate the sanction of 90 days’ suspension The case arose from the by refraining from considering whether Administrator’s order imposing a 90- respondent’s conduct was intentional. day suspension of the respondent’s The law judge issued a decisional order ATP certificate, based on the on remand from the court on April 16, respondent’s conduct. The Board’s 2015, reaffirming his earlier finding that Opinion and Order in 2013 discussed respondent violated § 91.13(a) and how the Cessna blocked respondent’s concluding that the evidence taxi route back to his parking position. established that the Learjet was On the radio, respondent requested between 40 and 50 feet away from the Cessna switch places with him so the Cessna when it began to increase he could turn right onto taxiway Bravo throttle while simultaneously applying and taxi to his parking position. The the brakes. Cessna’s pilot declined the request. Apparently incensed, respondent In another appeal to the Board, created a jet blast by increasing the the respondent asserted the evidence throttle of the Learjet to an excessive did not support the law judge’s power while simultaneously applying conclusion that the Learjet was 40 to 50 the brakes. The Cessna pilot called feet from the Cessna at the time of the the FAA to report the incident. The FAA events. Respondent also argued the charged respondent with violating 14 law judge should not have mentioned C.F.R. § 91.13(a) and ordered a 90- whether he believed respondent’s day suspension of respondent’s ATP conduct was intentional, and that the certificate. law judge erred in failing to analyze whether the 90-day suspension period Respondent appealed to was appropriate in light of the facts. the United States District Court for the Western District of Texas. The The Board emphasized the Administrator filed a motion for summary record contained ample evidence PAGE judgment in the District Court, and in an establishing respondent’s conduct was 07 order dated September 17, 2014, the careless or reckless. The pilots of the NTSB General Counsel c o n t i n u e d

Cessna testified they were frightened acted with intent or deliberation in and had to apply the brakes and take reevaluating the appropriate sanction. action to control surface movement The Board concluded a 45-day of the Cessna. In addition, the record suspension period for the respondent’s contained testimony and photographs conduct was appropriate. showing the Learjet left significant black skid marks on the area in which Lastly, the Board has also the jet blast occurred. The Board been active in its ongoing project of stated regardless of the exact distance updating its regulations. On December between the two aircraft, the facts 24, 2015, the Board published a Final established respondent acted in a Rule to update its proposed changes reckless manner. to 49 C.F.R. part 845, which includes rules of procedure applicable to Board The Board’s opinion included hearings and other proceedings, as a summary of the evidence followed well as Board products and petitions for by a finding that a 45-day suspension reconsideration of probable cause(s) period, in lieu of the Administrator’s findings. The changes become effective choice of a 90-day suspension period, January 25, 2016. On December was appropriate. The Board stated the 15, 2015, the Board published a sufficiency of evidence establishing Direct Final Rule to remove from 49 respondent’s actions and the dangers C.F.R. § 830.5(a)(10) a requirement they posed rendered unnecessary an that operators notify the Board of an analysis of the respondent’s state of Airborne Collision and Avoidance mind when he caused the jet blast. System resolution advisory that occurs The Board stated, however, that to in Class A airspace. The change will avoid any conflict with the opinion become effective February 16, 2016, of the District Court, it would refrain unless the Board receives comments from considering whether respondent not supportive of the amendment.

PAGE 08 UAS and Privacy:

A Primerb y : Alan Frazier

Unless you have been on a By Federal Aviation deserted island the last few years, Administration (FAA) mandate, sUAS you are undoubtedly aware of the can only be operated within “line-of- controversy surrounding privacy and sight” of the operator. This effectively small unmanned aircraft systems limits the operating radius of sUAS (sUAS). Many involved in airborne law to approximately ½ mile. sUAS enforcement feel that the controversy are currently being operationally has been generated by the media and deployed by approximately 16 U.S. does not accurately reflect the opinion law enforcement agencies. They have of the general public. The media been used to document crime and maintains that the public is genuinely traffic accident scenes, search for concerned about UAS and privacy. missing persons and crime suspects, assess disaster scenes, and provide ALAN FRAZIER has A study conducted in 2014 by additional situational awareness over 35 years of experience social scientists at the University of tactical scenes. The author is unaware in local, state, and North Dakota attempted to gauge the of a single incident in which sUAS federal law enforcement agencies. The majority of public’s acceptance of UAS tasked have been utilized to conduct a covert his career was spent with to a variety of missions. Over 600 surveillance or routine patrol flight. the Glendale (CA) Police respondents living in Northeastern The misconception of sUAS patrolling Department where he served in a wide variety North Dakota indicated very strong randomly or hovering to peer into a of assignments including support for law enforcement use of random home window is just that, a officer-in-charge of the sUAS to search for missing persons misconception. Air Support Unit. Alan is currently employed as and crime suspects, photograph an associate professor of crime and traffic accident scenes, Despite these facts, fifteen aviation at the University and conduct disaster assessments. states have enacted legislation of North Dakota where he teaches helicopter Interestingly, commercial package which restricts the use of sUAS. and public safety delivery by UAS received the lowest Ten more states are considering related courses and level of public support! such legislation. In addition, law conducts UAS related research. He is also enforcement agencies (most notably employed as a Grand Well over 200 U.S. law Seattle, WA Police Department) have Forks County Deputy enforcement agencies currently utilize been forced to discontinue use of Sheriff supervising the department’s Unmanned manned aircraft. In almost all cases, sUAS due to adverse public opinion. Aircraft Systems Unit. those manned aircraft are equipped These occurrences, combined with Alan is a graduate of with much more capable sensor the very important obligation of law Middle Tennessee State University (BS, 1982) systems that those installed on small enforcement agencies to respect and and the University of UAS. It is noteworthy that there has not protect the constitutional rights of the Southern California (MA, been a public outcry regarding invasion public we serve, make it imperative 1990). Alan possesses an FAA Airline Transport of privacy by manned law enforcement that agencies operating sUAS address Certificate with airplane, aircraft. This is likely due to the media constitutional and privacy concerns in helicopter, glider, and and/or public’s misperception on how their policies, training, and operational flight instructor ratings. and when law enforcement sUAS are deployments. PAGE utilized. Originally published in Air Beat: The Official Journal of the Airborne Law 09 Enforcement Association (Jul/Aug 2015). Reprinted with permission. UAS and Privacy: A Primer c o n t i n u e d

Engage and Educate the Public In Ciraolo, Santa Clara (CA) police received a tip that Ciraolo was Trying to keep consideration cultivating marijuana in his backyard. or creation of a sUAS Unit from the The backyard was surrounded by two public is simply a bad decision. On the tall fences preventing officers on the contrary, engage the public as much as ground from viewing the area. The possible. Utilize existing police advisory officers elicited the help of a private panels, community groups, etc… to pilot flying a fixed wing aircraft to fly weigh in on the use of sUAS. Utilize them over the property at 1000’ AGL. input received from these groups to Based on observations made from the help formulate sUAS Unit policies and aircraft, a search warrant was obtained procedures. Reach out to organizations and executed. Marijuana plants were such as service clubs, chambers of seized and Ciraolo was arrested. commerce, and neighborhood watch. Provide these groups’ members with In Riley, Pasco County (FL) factual information on when and how Sheriff’s Department Deputies sUAS will be utilized. Be welcoming received a tip that Riley was cultivating and transparent to the media. Invite marijuana on his property. Orbiting the local media representatives to observe property in a helicopter at 400’ AGL, sUAS Unit training sessions. Answer the deputies were able to see through their questions directly and honestly. a couple of missing panels in the roof of Only through this type of honest dialog a greenhouse and observed marijuana can we dispel the incorrect perceptions growing. A search warranted was of sUAS that, to a great extent, have obtained and executed. Marijuana was been fostered by the mainstream seized and Riley was arrested. media. Both of these cases involved Search and Seizure manned aircraft, not sUAS. However, pending appellate or Supreme Court Agencies considering review of a case involving sUAS, it is establishing sUAS Units should have a logical to utilize Ciraolo and Riley as firm understanding of current law and “guidance cases”. With this in mind, it case decisions related to search and is likely constitutional to view curtilage seizure. Obviously the 4th Amendment (the land immediately surrounding and provides overarching guidance. in close proximity to a dwelling) from a However, specific U.S. Supreme Court sUAS operating at or above 400’ AGL. case decisions and individual states’ In addition to the 4th Amendment and laws play a major role in determining U.S. Supreme Court case decisions, constitutionality. Two significant agencies must research applicable cases worthy of review are California state statutes related to use of sUAS v. Ciraolo, 476 U.S. 207 (1986) and and ensure that they are compliant Riley vs. Florida, 488 U.S. 445 (1989). with those very varied laws. Areas that PAGE do not enjoy a “reasonable expectation 10 of privacy” (open fields, public areas, UAS and Privacy: A Primer c o n t i n u e d

etc…) would clearly fall under the “open those images. Document all training fields” and “plain view” doctrines. If you thoroughly and accurately. As we all can legally be there, any observations know, if it is not documented, it did you make should be constitutional. not occur. Supervisors and managers should provide adequate oversight Policies and Procedures to ensure that sUAS Unit policies and procedures are being properly Agencies should include implemented. unequivocal language in their sUAS policies and procedures document Internal Investigations citing the importance of respecting the constitution and the privacy of the As in the case of any alleged public. Specific guidance on when serious violation of an agency a search warrant is required should policy, agencies should accept and be included in the policy. Guidelines vigorously investigate any allegations and procedures for minimization of of inappropriate use of sUAS. If the camera usage, and storage of images allegation is sustained, appropriate is essential. Digital images obtained action should be initiated up to and from sUAS should be safeguarded including transfer from the Unit or as evidence in compliance with the termination of employment. agency’s evidence policy. Law enforcement has become Initial and Recurrent Training a complex undertaking. Each time we add a new , complexity All sUAS Unit Personnel should increases. In order to ensure that we receive initial training on aerial search are not only “doing things right” but and seizure statutes and case law as more importantly “doing the right thing” well as Unit and Department policies we must carefully consider each new and procedures related to search technology we implement. sUAS is and seizure and evidence. Emphasis just one of the recent should be placed on minimizing that we must carefully consider and gathering of images and safeguarding responsibly implement.

PAGE 11 How to Start a

Commuter Airlineb y : J i m W a l d o n

The process to become an airline Next, the applicant must obtain can take years. The process requires DOT economic authority. To receive certification from both the Federal economic authority, the applicant must Aviation Administration (“FAA”) and the file an application in the DOT public Department of Transportation (“DOT”). docket. Separate applications are Assuming the goal is to start a small required to obtain interstate authority carrier, operating non-turbine jet, aircraft and foreign authority. that are under 12,500 lbs, having a seat configuration of 10 passengers or less, The DOT uses a three-part test to the process will begin by reviewing FAA determine the fitness of a company: Advisory Circular 120-49. This advisory circular provides an overview of the First, it examines the managerial certification process. The applicant then competence of the applicant’s key must submit a PASI (Pre-application personnel to determine whether they Statement of Intent); a formal application have sufficient business and aviation letter to their local FAA Flight Standards experience to operate an airline, and District Office. whether the management team, as a whole, possesses the background and The FAA will also require the following: experience necessary for the specific kind of operations proposed. • Operations Specifications • a Letter of Compliance Second, it reviews the applicant’s • Corporation documentation operating and financial plans to see JIM WALDON has • Pilot qualifications whether the applicant has a reasonable extensive legal and management experience • Proof of access to aircraft understanding of the costs of starting its within the aviation • a HazMat Procedure Manual and operations and either has on hand, or has industry, including Lead Training Program1 a specific and verifiable plan for raising, Counsel at Alaska Airlines 2 and Senior Attorney at • a Drug and Alcohol Program the necessary capital to commence Trans World Airlines. • a Ground Deicing Program & Training operations. Before being granted He holds a commercial • additional documents as requested by effective air carrier authority, the applicant pilot license with over the FAA3 must submit third-party verification that 2,500 hours and was the Chief Operating Officer it has acquired the necessary capital to and General Counsel The applicant may request conduct its operations. of a regional Hawaiian deviations where rules allow it, and may airline. He is currently request exemptions in accordance with Third, the DOT looks at the the managing attorney of Paramount Law Group, 14 C.F.R. §11.25. applicant’s compliance record to see an aviation law firm whether it and its owners and managers with a national focus. The applicant may also submit a have a history of safety violations or His practice focuses on aircraft transactions and minimum equipment list if they wish to consumer fraud activities that would 4 finance. He represents operate with inoperable equipment. pose a risk to the traveling public, or domestic airlines and whether other factors indicate that the business aircraft owners, 1 FAA Notice 8000.352, Revision of Operations applicant or its key personnel are unlikely operators, pilots and Specification A055 for the Carriage of Hazardous to comply with government laws, rules mechanics. Materials. and directives. 2 http://www.faa.gov/about/office_org/headquar- PAGE ters_offices/avs/offices/aam/drug_alcohol/ 3 See FAA Advisory Circular 120-49 In addition, the applicant must 12 4 Id. establish that it is owned and controlled How to Start a

Commuter Airlinec o n t i n u e d

by U.S. citizens. A U.S. Citizen, as process can be reduced dramatically be defined in 49 U.S.C. 40102 (a)(15), is: ensuring the initial application is accurate and complete prior to submission. (A) An individual who is a citizen of the United States; (B) Once both the FAA and DOT A partnership each of whose submissions have been approved, the partners is an individual who is next step is to have the airline aircraft a citizen of the United States; or pass a conformity inspection by the FAA. (C) A corporation or association Finally, all pilots must pass a check ride organized under the laws of with the FAA. the United States or a State, the District of Columbia, or a Many of the problems with starting territory or possession of the from scratch are obvious. The process United States, of which the can be time consuming and complex. president and at least two- Because this process can take years, thirds of the board of directors and because many of the employees and other managing officers and the aircraft must be identified, and are citizens of the United therefore paid, during the application States, which is under the process, while no revenue is likely being actual control of citizens of the generated, this process can also prove United States, and in which at quite costly. Some of the problems with least 75 percent of the voting this process, however, are less obvious. interest is owned or controlled Economic change during the application by persons that are citizens of process, for instance, can cause the the United States.5 principal owners and investors of a start up carrier to rethink their initial business Once the applications for an FAA model. certificate and DOT economic authority have been submitted, the next step is In recent years two startup 121 to wait. And wait. The applicant may carriers come to mind – Virgin America receive a response from the respective and Air Hawaii. Both were initially well regulatory entities in a relatively short funded and had qualified key personnel. period (weeks), or longer (months), Virgin America, after a very costly and depending on many factors. The biggest time consuming process eventually of these factors is the current workload of obtained certification. Air Hawaii, after the individuals to which the applications many years in the application process, have been assigned. eventually abandoned their application.

Once the FAA and DOT Starting an airline is costly and applications have been reviewed, they will time consuming. Many have tried and either be approved, denied, or additional many have failed. The few who have information will be requested. In my succeeded did so with a solid business experience, additional information will plan, significant experience and strong almost always be requested, and often, financial backing. My advice, to anyone PAGE additional information will be required who asks for my assistance in this numerous times prior to approval. This process is simple. Don’t. There are 5 https://www.transportation.gov/policy/aviation- better ways to make a living. 13 policy/licensing/US-carriers Circuit Assignments

Image courtesy of National Transportation Safety Board, current as of April 1, 2013

PAGE 24 IATSBA Membership

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