Monday, June 30, 2014
Last week the Federal Aviation Administration published notice of and requested comment on its interpretation of the special rule for model aircraft established in the FAA Modernization and Reform Act of 2012. Essentially, the FAA is attempting to clarify the types of model aircraft that will be exempt from future FAA rulemaking on drones as called for in the Modernization and Reform Act. For example, the Act exempts unmanned aircraft that are "flown within visual line of sight of person operating the aircraft." The FAA interprets this to require that aircraft operating under this exemption be visible to the operator at all times, without the aid of binoculars or reliance on persons other than the operator. The Act also restricts the model aircraft exemption to aircraft flown strictly for hobby or recreational use. The FAA's interpretation defines "hobby or recreational use" to exclude any commercial operation or usage incidental to a business. The published notice includes helpful examples of non-exempt usages such as realtor using an unmanned aircraft to take aerial photographs of a property. Comments on the FAA's interpretation must be submitted by July 25.
Wednesday, June 25, 2014
In an opinion released yesterday, U.S. District Court Judge Anna J. Brown ruled that persons whose names have been placed on the federal government's no-fly list are currently being denied the due process required by the U.S. Constitution before the government can deny citizens their right to travel. Specifically, Judge Brown determined that the federal government needs to notify citizens that their names are on the no-fly list, provide them with the reasons for their inclusion on the list and allow them an opportunity to challenge their inclusion on the list. According to the opinion, existing procedures for redress are insufficient.
Friday, June 20, 2014
On the heels of its recent passenger-friendly ruling in Huzar, a UK court again came down on the side of passengers, this time ruling that passengers have up to six years to bring claims for compensation for delayed or cancelled flights. EU Regulation 261/2004, which, among other things, entitles passengers to compensation from airlines for flight cancellations or significant delays, does not set a statute of limitations on those claims leaving those limits to be set by the implementing Member States. In the UK, cases for unpaid debts are subject to a six-year statute of limitations which the UK courts had been applying to 261/2004 compensation and delay claims. In a case decided yesterday, Dawson v. Thomson Airways, the airline argued that the passenger's claim should be subject to the two-year limitation for air transport claims contained in the Montreal Convention. The Court rejected that view. This is just the latest attempt by courts to reconcile the provisions in 261/2004 with the Montreal Convention. Given the Court of Justice of the European Union's repeated rulings that the system of compensation under 261/2004 is not preempted by the Convention, it is reasonable to expect that system of compensation would not be limited by the Convention's statute of limitations.
Thursday, June 19, 2014
Last week, the Court of Appeal of England and Wales issued a ruling that could significantly alter the landscape for passenger rights claims in the UK. In this case, the question at issue was whether a wiring defect discovered in the course of regular aircraft maintenance could be considered an "extraordinary circumstance" that would absolve the carrier of having to compensate the passenger for the flight delay. The Court of Appeal ruled that technical defects caused by the normal wear and tear that occurs in the operation of an aircraft could not be used to trigger the "extraordinary circumstances" exemption.
Tuesday, June 10, 2014
A few news stories this week highlight the steady progress unmanned aerial vehicles are making toward becoming a regular presence in U.S. airspace. On Monday, Nevada joined North Dakota and Alaska as recipients of FAA authorization to operate unmanned aircraft designated test sites. And earlier today the FAA announced the first ever authorization granted for the commercial operation of an unmanned aircraft over land. The operator will be using the unmanned aircraft to monitor and map oil fields in Alaska under a contract with BP. The FAA Modernization and Reform Act of 2012 instructed the FAA to have unmanned aircraft successfully integrated into the national airspace by September of 2015. Both of this week's developments represent important steps toward that objective, though concerns about integration remain. Earlier this spring, an unmanned aircraft operating near an airport reportedly came close to colliding with a passenger jet.
Monday, June 9, 2014
Last night a group of Taliban militants reportedly stormed Jinnah International Airport in Karachi, Pakistan, killing 18 people and halting all airport operations for approximately 14 hours. In a relatively quick turnaround, Pakistan's Civil Aviation Authority reported that it had resumed authority over the airport from the State's security forces and the airport was reopened for business at 2 pm local time today.
Friday, June 6, 2014
In need of additional revenue, the Egyptian government has introduced a new $25 per person airport tax. The tax is being levied on carriers who pass along the additional costs in the price of ticket sales, rather than passengers having to pay directly at the airport. While the reporting isn't entirely clear, the tax appears to only affect international flights, both departing and arriving.
Monday, June 2, 2014
Because today's biggest story is the release of a proposal by the U.S. Environmental Protection Agency (EPA) to regulate carbon pollution from existing power plants, this seemed like a good time to remind everyone of the agency's authority to regulate emissions from the aviation sector. Though seldom discussed, the same legislation that authorizes today's proposed rule for power plants, the 1970 Clean Air Act (CAA), authorizes the EPA to regulate aircraft emissions as well. It is under this statutory authority that the EPA, in conjunction with the Federal Aviation Administration (FAA), has issued rules concerning other aircraft emissions, such as nitrogen oxide, necessary to meet ICAO standards. As a result of the Supreme Court's 2007 ruling in Massachusetts v. EPA that carbon is a pollutant under the CAA, it is likely the EPA will eventually have to address carbon emissions from the air transport sector the way it has with surface transportation and power plants.
To be clear, the EPA is unlikely to regulate in this area any time soon. To date, the EPA has used its authority under the CAA to keep U.S. aircraft emissions standards in line with and not more stringent than the international standards adopted through the International Civil Aviation Organization (ICAO). The only mention of aviation emissions in Obama administration's 2013 Climate Action Plan is an expression of support for the development of a comprehensive global approach through ICAO. Aircraft emissions are a relatively small percentage of total U.S. emissions compared to the sectors for which the EPA has been writing rules thus far and are therefore much less of a priority. The EPA is also unlikely to be in a hurry to wrestle with the political and legal problems inherent to regulating aviation emissions, in particular the question of how to apply the rules to foreign aircraft, that have caused the EU such grief. Still, the EPA will eventually have to take some action on carbon emissions from the aviation sector and if the ICAO fails in securing a global agreement, what the EPA does will take on considerably more significance.
Anyone interested in learning more about this subject should read Nathan Richardson's Aviation, Carbon and the Clean Air Act.
Tuesday, May 27, 2014
In an apparent effort to reassure foreign airlines, Venezuela will allow six Latin American carriers to repatriate revenues from local ticket sales from the past two years. As noted in a blog post earlier this year, foreign airlines had been cutting service to Venezuela because the government had frozen their access to funds from ticket sales in the country.
Wednesday, May 21, 2014
Reports out of a constitutional complaint hearing suggest that Germany's air travel tax, introduced in 2011, is likely to be upheld when the constitutional court issues its ruling in a few months. The legal challenge was brought by the state of Rhineland-Palatinate, which has expressed concern that the levy is harmful to airports near Germany's external borders.
Friday, May 16, 2014
Reuters is reporting that EU officials may ask the WTO to consider $8.7 billion in tax breaks passed by the State of Washington late last year, primarily for the benefit of Boeing, as part of the ongoing proceedings between the U.S. and EU over subsidies to Boeing and Airbus. The U.S. recently objected to loans given to Airbus for the development of the A350. The long-running dispute shows no sign of abating any time soon.
Wednesday, May 14, 2014
Representatives from States on the ICAO Council, the Air Navigation Commission and the aviation industry met earlier this week to discuss the use of flight tracking technologies for passenger airlines. The meeting was of course prompted by the tragic disappearance of Malaysia Airlines Flight 370 two months ago. The plan appears to be to endorse by September some near-term steps States could voluntarily adopt to improve their flight-tracking capability, with discussions for the eventual development of standards requiring flight tracking. There appears to be a preference right now for performance-based standards that would require that States have the ability to track aircraft without mandating a specific technological approach to doing so.
Thursday, May 8, 2014
We would like to take a minute to recognize former U.S. Congressman Jim Oberstar who passed away last weekend. Oberstar entered the U.S. House of Representatives in 1975, just in time to participate in the policy debate that would culminate in the Airline Deregulation Act a few years later. Though he voted in favor of the act, he would not hesitate to criticize some of deregulation's consequences in subsequent years and was a vocal opponent of the recent wave of industry consolidation. He remained heavily engaged with transportation issues throughout his 36-year career in Congress, ultimately becoming chairman of the House Transportation and Infrastructure Committee. The International Aviation Law Institute had been planning to interview him this fall for the Conversations with Aviation Leaders oral history series.
Monday, May 5, 2014
Qatar has announced that it has bought out all of the national airline's private shareholders, including a former prime minister, to bring Qatar Airways under complete government ownership. This provides a worthwhile reminder that while the industry trend over the past decade has been toward privatization, the shift away from State ownership of airlines is far from universal.
Thursday, May 1, 2014
Earlier today the Malaysia Transport Ministry made public a preliminary report produced as part of the investigation into the disappearance of Malaysia Airlines Flight 370. ICAO's Annex 13 to the Chicago Convention, which covers Accident and Incident Investigation, instructs the state conducting the investigation to produce a preliminary report within 30 days of the incident and to distribute it to the states of design and manufacture as well as other states that have assisted with the investigation. This report is from April 9, but it has not previously been made available to the public.
Monday, April 28, 2014
A federal judge has just recently issued the final approval necessary for the settlement of the U.S. Department of Justice's lawsuit opposing the American Airlines/US Airways merger. The settlement received a preliminary approval in November, but U.S. law requires the proposed settlement be subject to a public comment period, followed by time for the DOJ to respond and the judge to consider all comments and responses.
Thursday, April 24, 2014
The Volume 13, Spring 2014 issue of the International Aviation Law Institutes's journal, Issues in Aviation Law and Policy (IALP), will be available next week. The following articles will appear in the issue:
- Bruce L. Ottley, Airline Immunity for Reporting Suspicious Activities Under the Aviation and Transportation Security Act: Air Wisconsin Corp. v. Hoeper
- Gregory O. Principato, Trouble on the Tarmac: Redirecting U.S. Aviation Policy to Promote Economic Growth
- Vincent Correia, Air Passengers' Rights, "Extraordinary Circumstances," and General Principles of EU Law: Some Comments After the McDonagh Case
- Wouter Oude Alink, The Regulation of Registered Traveler Programs
- Mark Ells, Unmanned State Aircraft and the Exercise of Due Regard
- Gabriel D. Kaim & Nicholas A. Morrow, Examining the Standard of Care for Failure to Divert During In-Flight Emergencies
- Eric Johnson, Heads I Win, Tails You Lose: The Illusory "Option" of Montreal Convention Article 33(1) in West Caribbean Airways
- Moses George, The User Development Fee (UDF) in Indian Airports - Legal and Regulatory Issues
Blog readers interested in subscribing to IALP, ordering back issues, or perusing a list of published articles may do so at the Institutes's website here.
Thursday, April 17, 2014
A recent story from the Economic Times highlights the difficulties States encounter as they try to relax restrictions on foreign ownership of airlines without actually allowing foreign ownership or control. India has recently opened up its carriers to investment by foreign airlines, which has allowed Etihad to make a significant investment in Jet Airways. The Directorate General of Civil Aviation is currently introducing measures, such as limiting the number of foreign directors that can be part of a joint venture, that are designed to prevent newly permitted foreign investment from resulting in a transfer of control abroad.
Because of the need for capital, States have become more accepting of foreign investment in airlines. However most still want to have their cake and eat it too, with foreign money coming in, but control remaining local. States will eventually have to decide whether efficient capital allocation or strict ownership rules are of greater importance.
Tuesday, April 15, 2014
Last week the European Commission released the 23rd version of its EU air safety list, identifying airlines that are subject to an operating ban or operational restrictions within the EU because of concerns about their level of compliance with international safety standards. The list can be found here.
Friday, April 11, 2014
ICAO has announced the adoption of a new Protocol to the 1963 Tokyo Convention on offenses committed on aircraft. The Protocol enhances states' authority to penalize passengers who commit disruptive acts on-board aircraft. It is now open for signature and will require 22 ratifications before taking effect. The full text of the Protocol is available here.