Thursday, March 31, 2016
A new blanket Certificate of Waiver or Authorization issued by the FAA earlier this week allows small UAS operating under a Section 333 exemption or under the authority of a government agency to operate at altitudes up to 400 feet, an increase from the 200 feet altitude cap that was previously in place. Even at the increased altitude, the aircraft must remain within the pilot's visual line of sight and obey restrictions on airspace surrounding airports and metropolitan areas.
Tuesday, March 22, 2016
Over the weekend, the Wall Street Journal published an in-depth article on China's past and current forays into aircraft manufacturing. The story provides an excellent case study in the operation of international safety standards in the aviation sector. It would be impractical for a state to perform a safety check on every foreign aircraft entering its airspace, so a state will instead recognize the airworthiness certificate granted by the aircraft's state of registry. Of course, it would be impractical for the state of registry to conduct the thousands of hours of engineering, testing, and scrutiny that went into the aircraft's design and manufacture, so the state of registry will rely on a type certificate issued by the state of manufacture, and will then issue its own certificate with regards to the aircraft's continued airworthiness on the basis of an evaluation of the aircraft's current condition and the operator's adherence to maintenance requirements. For this system to work, states need to have confidence in the ability of other states to honestly and competently assess the airworthiness of aircraft both at the type certificate stage and the continuing airworthiness stage. For a new manufacturer to successfully enter the commercial passenger aircraft market, airlines will not only need to be reassured about the quality of its products, foreign states will want to know that type certificates issued by the manufacturer's home state are based on a diligent application of international standards. Transparency and cooperation will be necessary if Chinese aviation officials are to convince their counterparts in foreign markets that they can be trusted to vouch for Comac's work.
Thursday, March 17, 2016
The following is a guest post by Daniel L. Spivey, a 2nd-year J.D. student at DePaul University College of Law.
For the first time since the Civil Aeronautics Board was in existence, an airline has been challenged on whether it is allowed to place a blanket embargo on a particular type of cargo. Conservation Force et al v. Delta Airlines, is a case that was filed in the Northern District of Texas challenging Delta's ban on the Big Five hunting trophies (lion, leopard, elephant, rhino, and buffalo).
In July 2015, one of Africa's most well known lions, Cecil the Lion, was shot and killed by Dr. Walter Palmer while he was on a hunting expedition. In response to public pressure, all three major U.S. airlines – American, United, and Delta – decided to ban the transport of big game hunting trophies across their respective fleets. Delta is the only airline named in the complaint because Delta is the only airline that flies directly from the United States to Johannesburg, South Africa and through its alliance partner to Tanzania and Zimbabwe. There are several plaintiffs named in the complaint. Plaintiff Conservation Force is a non-profit 501(c)(3) public foundation formed for purposes of conserving wildlife and wild places. Both Dallas and Houston Safari Clubs, the Community Areas Management Programme for Indigenous Resources ("CAMPFIRE"), Mr. Core Knowlton (a hunter), and the Tanzania Hunting Operators Association ("TAHOA") are also named.
Plaintiffs allege that Delta's discrimination violates its duty as a common carrier under federal common-law and the Federal Aviation Act, specifically 39 U.S.C. §41310. Plaintiffs also allege tortious interference with business relations – claiming that Plaintiffs' businesses will suffer because hunters will be discouraged from going to Africa. Plaintiffs also put forth a public policy argument claiming that conservation efforts will be harmed in Africa because the money used to obtain hunting permits is instrumental in conservation efforts.
Courts have not dealt with this issue since the case of Delta Airlines, Inc. v. Civil Aeronautics Board in 1976. In that case, the court held that airlines could not create a blanket ban on hazardous materials because Congress had already set out the guidelines for transporting such goods and deemed them safe. In the present day, where the FAA is now the aviation regulatory agency, there have been no cases challenging an airline's ban on cargo based on discrimination.
Plaintiffs will face an interesting challenge in convincing the court that they are being discriminated against unreasonably. Delta argues that as a common carrier the common-law only requires it to treat all shippers alike not all cargo. Delta argues that because this ban applies to anybody trying to ship a big game hunting trophy then it is allowed under common-law. A separate but interesting topic is whether there is an implied private cause of action under the Federal Aviation Act. Courts have actually decided this issue both ways. However, even if there is an implied private cause of action under the Federal Aviation Act then the Plaintiffs still must show that they were unfairly discriminated against. Plaintiffs argue they are being discriminated against because it a certain class of people, from a certain part of the world, trying to ship a particular item that are being treated differently. This is an interesting argument and it will be fascinating to see how the court responds.
Plaintiffs' claim for tortious interference with business relations is expressly preempted under the Airline Deregulation Act because it relates to an airline's service. The case law is clear on this issue.
Wednesday, March 2, 2016
The U.S. Department of Transportation has issued a final rule prohibiting the use of electronic cigarettes on scheduled and charter flights. Like the broader smoking ban, the rule applies to both domestic and foreign carriers despite past criticisms that applying smoking bans to foreign airlines oversteps U.S. regulatory authority. Passengers are also barred from packing electronic smoking devices in their luggage out of concern for the fire risk presented by the devices' lithium ion batteries.
Tuesday, March 1, 2016
Late last week news reports confirmed that U.S. House of Representatives Transportation Committee Chairman Bill Shuster's ambitious, but controversial version of the FAA Reauthorization bill has been abandoned. The Senate still intends to introduce a bill this month, but it is unlikely to include some of the far-reaching changes contemplated for the House Bill, most notably the privatization of air traffic control. FAA authorization expires March 31, and it is almost certain that a short-term extension will be required.
New York Senator Chuck Schumer announced plans to introduce an amendment to the forthcoming Senate Bill that would establish minimum seating requirements for passenger aircraft. The details of Senator Schumer's proposal are not yet known, but presumably they would include minimums for leg room and seat pitch. There is no identifiable market failure present that would make it necessary to regulate passenger comfort, passengers who desire increased leg room can easily express that preference by paying extra for a higher class seat, but measures like this are often politically popular. Nonetheless, I would be surprised to see the amendment included in the final bill.