It’s Not Nice to Fool The NTSB

Those of us of a certain age will remember the television ad for margarine that tastes so much like butter that even Mother Nature is fooled.  When Mother Nature learns that the product is not her “delicious butter,” she vexedly responds “It’s not nice to fool Mother Nature!”  Well, as we’re seeing for the second time in 16 months, our federal criminal justice system is also telling us it’s not nice to fool (or allegedly fool) the NTSB.

Last week the U.S. Attorney’s Office for the District of Alaska announced that a grand jury in Anchorage returned a three-count indictment against the pilot and owner of a Part 135 commercial air tour operator. According to the NTSB final accident report, the August 2014 flight, which was carrying 3 passengers, impacted rising terrain below the entrance to Atigun Pass, which crosses the Brooks Range. The aircraft was substantially damaged and the defendant and the three passengers sustained serious injuries, with one of the passengers passing away 35 days after the accident.  In 2015, the FAA revoked the defendant’s airman pilot certificate and last year, an NTSB administrative law judge upheld the FAA’s revocation action.


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Voluntary Disclosure Reporting Program Gets Extended to Drug and Alcohol Programs, Unless…

The Federal Aviation Administration relies heavily on voluntary compliance with its regulations.  As part of its strategy, the FAA encourages regulated entities to participate in voluntary disclosure reporting programs (VDRP) to ensure that sporadic issues do not become systemic problems.  The idea is that if an employer detects a problem and takes immediate, strong corrective action, the FAA will forgo issuing a civil penalty for the violation.

The FAA just recently issued a new Advisory Circular (AC 120-117) that details how regulated entities may take advantage of the VDRP for violations of the drug and alcohol testing regulations contained in 14 CFR Part 120.  In order to qualify, the following conditions must be met:

  1. The FAA must be notified.  The notification should be made within 24 hours and before the FAA learns of the apparent violation by other means.
  2. The violation must be inadvertent. The apparent violation was the result of inattention and did not result from a purposeful choice.
  3. The violation cannot reflect a lack of qualification. The apparent violation does not indicate a lack, or reasonable question of, an employer’s or contractor’s qualification to hold a certificate, letter of authorization, or program registration.
  4. Immediate action satisfactory to the FAA must be taken. The employer or contractor took immediate action upon discovery to terminate the conduct that resulted in the apparent violation.
  5. A comprehensive fix must be developed. The employer must develop a fix for the problem, establish a schedule for implementation, and put in place a system of self-audits to ensure the fix is effective.

The AC provides details on the format for the submission and additional information that should be included, such as a description of the violations, an estimate for how long the problem has been ongoing, when and how it was discovered, verification that the non-compliance has stopped, and what was done to stop it.

After the initial disclosure is made and the FAA acknowledges receipt, the employer has 10 business days to submit the detailed description of the comprehensive fix and the schedule for implementation. The FAA will then make a determination whether to accept or reject the disclosure and issue a written decision stating the reasons for the action.  If the submission is deficient and is rejected, the FAA can begin full enforcement proceedings against the persons involved.

The most important take away from the Advisory Circular is that when a problem is detected, time is of the essence.  Any disclosure made more than 24 hours after it is discovered does not have to be accepted by the FAA, and the submission must have a detailed explanation for the delay to even be considered.  As a result, it is of vital importance that all personnel in the company who are involved in compliance be aware of the VDRP and the actions that must be taken immediately to protect the company.

If you have additional questions regarding implementation of the VDRP, contact either Mark McKinnon, or Allan Horowitz,

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Just One Month Until The 2018 Aviation Symposium

Plans are finalized, and the clock is ticking louder and louder. There are only a few weeks left until our biggest and best Symposium yet. If you haven’t registered yet, please do so now.

In addition to focusing on working with first responders, including the fire department, police department, MEs, EMTs and others, we have panels on:

  • Dealing with the increasingly common issue of the disruptive passenger
  • Hurricanes, hacking, active shooters and other non-aviation aviation emergencies, including effectively using social media
  • Cuba a year later…boom or bust?
  • “I can hack your airplane…”
  • Airline lessons for corporate flight departments

And more!

Many of you have already registered – and we share this email as an agenda update to you. If you have not registered to date – please RSVP here.

For anyone who may have registered for this event prior to September 1, 2017 (before the transition to LeClairRyan): If you have not received a new confirmation from the team here at LeClairRyan – please reach out to Barbara Butler (contact info below) to confirm that we have your details secured.

The agenda is available here. Please understand that our agenda may change closer to the event, as we are committed to addressing the most current and newsworthy topics.

Symposium App

The Symposium App is almost ready, so be on the lookout for an introduction and downloading instructions. Along with the most current symposium agenda, registration list and panel list, you’ll also have access to our Aviation Emergency Response Manual, our highly acclaimed blog, Plane-ly Spoken, and our companion podcast, aptly named, Plane-ly Spoken. In addition, you’ll also have access to the full library of the Aviation Symposium Webinar Series, as well as the UAS Webinar Series.

If you have questions or concerns about the event please contact We look forward to seeing you there!



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Drones and Liability—Four Ways to Protect Yourself

A gas company needs to inspect a far-flung pipeline. A brokerage firm seeks aerial views of a shopping mall. A pizza chain envisions delivering a pie to home plate as part of a baseball-themed ad campaign. In each of these hypothetical cases, management could turn to technology that is increasingly becoming part of American life—Unmanned Aerial Systems (UAS), or “drones” for short.

While the U.S. military has been flying drones for 30 years, the whirring, remote-controlled aircraft are now on the shelf at just about every discount store or electronics retailer in the country. They are also getting cheaper and better by the day. According to one estimate, Americans will have purchased an estimated 1.6 million drones in the 2017  holiday season alone. Higher-end UAS, which are suitable for a wide range of commercial purposes, are also easily available on websites like DroneFly or Drones Etc.


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The Aviation Symposium Webinar Series Presents: An Inside Look at the NTSB: A Conversation with David Tochen

The National Transportation Safety Board (NTSB) plays a vital role in the safety of virtually all modes of transportation, including railroads, highways, shipping and pipelines. While many know that the NTSB determines the probable cause of accidents and issues safety recommendations, few know how the NTSB operates on a daily basis.

Join us on January 24, 2018 for a complimentary webinar where we will take an in-depth look at all aspects of the NTSB. LeClairRyan’s newest aviation attorney, recently retired NTSB General Counsel David Tochen, will lead the webinar. Among the topics we will discuss are:

  • The latest changes at the NTSB and the effect NTSB reauthorization will have on the NTSB’s activities and priorities
  • How changes in technology have altered the NTSB’s operations and involvement in cutting-edge fields such as commercial space launches
  • The NTSB’s role in shaping the future of autonomous vehicles
  • Recent NTSB investigations such as the sinking of the S.S. El Faro and the extraordinary efforts that were made to document the wreckage at a depth of 15,000 feet
  • How the NTSB’s independence sometimes leads to a contentious relationship with other agencies

As always, the audience will also have an opportunity to ask questions and shape the discussion. You will not want to miss this no-holds-barred discussion, providing a unique, behind the scenes insight into the workings of the NTSB.

If you would like to register for this event, please follow this LINK. If you have any additional questions, please email us at


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Drone v. Helicopter: And the loser is…

The NTSB Report into the midair collision between a DJI Phantom and an army Blackhawk helicopter has been released and not surprisingly, the probable cause of the accident was sUAS pilot error.

On September 21, 2017, an army UH-60 helicopter was operating in class G airspace at an altitude of 300 feet near Staten Island, New York.  The pilot saw the UAS and took evasive action, but it was insufficient to avoid the collision.  The helicopter suffered a 1.5 inch dent in its main rotor and cracks in the composite fairing and a window frame.  The Phantom was destroyed with parts of it remaining lodged in the helicopter.

Given these facts, the question arises as to why the sUAS pilot did not also take evasive action?  According to the NTSB, the answer is that the pilot was 2.5 miles from the aircraft at the time of the accident, was flying based on waypoints entered into his tablet, was not flying using visual line of sight, and had no idea the helicopter was there.  In addition, the investigation revealed that earlier in the day, the pilot had flown at an altitude of 547 feet at a distance of 1.8 miles, which almost certainly was not within visual line of sight.

Compounding these errors, the Phantom pilot was also unaware that there were two Temporary Flight Restrictions (TFR) in place that specifically prohibited all UAS flights; one for a meeting of the United Nations and the second for the President’s aircraft.

The NTSB’s interview with the Phantom pilot revealed that he had no idea the TFR was in place, that he was unfamiliar with either FAA regulations or good operating practices, and was generally unconcerned with the risks of flying beyond visual line of sight.

Rather than learn what his obligations were, the pilot decided to rely on the software provided by DJI to tell him whether it was legal for him to fly there.  Unfortunately, “the TFR airspace awareness functionality in the DJI app (GEO) was not active at the time of the incident . . . .”  The NTSB also noted that, even if the functionality had been active, the pilot’s tablet did not have a cellular connection, and as a result, probably would not have gotten the TFR information prior to flight.

As detailed by the NTSB:

During August 2017, an issue was identified with the GEO function that inadvertently and intermittently rendered the self-unlock feature for certain TFRs ineffective for some users. After a significant number of complaints about the problem, DJI decided to temporarily disable the TFR functionality in GEO until the feature was investigated and confirmed to be working properly. Therefore, at the time of the incident, no TFR information was available in GEO. Since GEO is meant to be an advisory system to pilots, DJI decided it was better to disable this feature until the problem could be corrected to enable authorized users to support recovery efforts and other authorized missions across the country, including firefighting response and demonstrations at air shows. There was no notice or advisory to users that this advisory function had been disabled. The TFR functionality in GEO was restored in October 2017.

The most important point of this entire incident is that the Phantom pilot was not legally operating as a hobbyist flying a model aircraft.  Pursuant to 14 C.F.R. § 101.41(b), all hobbyists must operate in “accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”  If the pilot had been flying in accordance with, for example, the Academy of Model Aeronautics safety code, he would have known what his obligations were with regard to airspace and best practices. He also would have known that, regardless of whether the DJI GEO app was working, he had an obligation to verify whether there were active TFRs prior to flight.  The question now is whether the FAA will pursue a high profile enforcement action against the pilot to help publicize the obligations on all sUAS operators.

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NTSB Reauthorization– Part I

The U.S. Senate Committee on Commerce, Science, and Transportation completed work the week of December 4th,  on a legislative proposal to reauthorize the National Transportation Safety Board (NTSB). The last NTSB reauthorization was enacted in December 2006 and authorized NTSB appropriations through September 30, 2008 (Just to be clear, as long as a federal agency has current appropriations or other budget authority to operate, the lapse of authorization amounts does not impair its ability to continue operating).

More importantly, the reauthorization proposal, S. 2202, would add new measures to the NTSB’s organic statute and amend numerous current statutory provisions. The proposal is a curious thing; rather than a coherent organic package, it contains a grab-bag of provisions. Particularly striking is that the proposal would place significant additional administrative burdens on the NTSB itself. (Which we will address in Part II of this post).


Of particular note to readers of Plane-ly Spoken are two provisions that could have a significant impact on air carriers and passenger rail operators.

  • Addressing the Needs of Families of Individuals Involved in Accidents (section 10):
    • Amend 49 U.S.C. § 41113 and 49 U.S.C. § 41313 to require family assistance plans of  domestic air carriers’ and foreign air carriers providing foreign air transportation, respectively, to address “any loss of life” rather the current “major [or in some places, “significant”] loss of life.”  The provision would also require foreign air carriers’ assistance plans to include an assurance that they will treat families of nonrevenue passengers (including any victim on the ground) the same as revenue passengers.
    • Require the NTSB to provide assistance to families of passengers in any aircraft accident resulting in any loss of life “in which the [NTSB] will serve as the lead investigative agency.” [The current requirement in 49 U.S.C. § 1136 applies to aircraft accidents within the United States. This provision would cover aviation accidents occurring in foreign countries where the NTSB is the lead investigative agency under ICAO Annex 13].
    • Require the NTSB, to the maximum extent practicable, to ensure that families of individuals involved in an aviation accident described in 49 U.S.C. § 1136 or a rail passenger accident described in 49 U.S.C. § 1139 are briefed about the accident and its causes prior to any public briefing about the accident.
    • Still Images (section 4): This section is designed to increase transparency and would amend subsections (c) and (d) of 49 U.S.C. § 1114 to require the NTSB, in the course of making safety recommendations, to publicly disclose still images obtained from a video recorder provided that the agency protects from public disclosure any information that readily identifies an individual, including a decedent.

While this is an important action by the Committee, it is only one step in a long process.  We will continue to advise of further developments as the NTSB reauthorization proposal moves forward in the legislative process.


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“Sir/Madam, Show Me Your License and Registration”

The long and tortured path to mandatory registration of all hobby aircraft appears finally to be at an end.  After a seven month hiatus, the law is changing once again, and the registration requirement is being reinstated.

As most of you will remember, the FAA unexpectedly issued regulations on an emergency basis just before Christmas 2015 that required all hobby aircraft under .55 pounds to be registered with the FAA. 


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‘Tis the season for drones- so learn the rules of the sky

Predictions about the number of drones that will be given as gifts this holiday season have “taken off.” According to the Consumer Technology Association, Americans will buy about 1.6 million drones over the holidays, nearly half the total for the entire year and an increase of about 30 percent over last year.

Unlike the typical holiday gift, however, drones are technically considered airplanes by the federal government. If you plan to give the kids or grandkids a drone, you need to be aware of the rules. Better to hear them now than to hear from the police later.

When drones are flown for recreational purposes, as is the case for most drones given as gifts, the FAA does not formally regulate them. Only drones being flown for commercial purposes—things like wedding photography, construction or real estate sales—are subject to the federal regulations controlling aviation.

But the operative word here is “formally”: Even those drones given as holiday gifts are subject to some federal rules and guidelines. As a practical matter, if a drone hits an airplane or a person, it doesn’t matter whether the drone was being flown for hire or for fun. Drones are not your typical toys. It’s way too easy, if a few simple rules are not observed, to hurt someone or break the law. The rules/guidelines include:

  1. Don’t fly a drone within 5 miles of an airport. Airplanes are taking off and landing at low altitudes and could easily collide with a low-flying drone. Even if the drone doesn’t actually hit a plane, it could distract the pilot and cause an accident.
  2. Keep them away from highways and roads. A drone colliding with a car or 18-wheeler won’t necessarily cause the vehicle to crash by force of impact, but it could certainly distract or startle the driver, causing the person to hit someone else or drive off the road.
  3. Drones should be flown at no more than 400 feet above the ground and should never be out of sight.
  4. Don’t fly over obstacles like buildings or power lines or over or near crowds. As tempting as it may be to fly them at the playground, don’t…the risk of injury is way too high.
  5. Don’t fly a drone at sporting events, stadiums or other venues where there are large numbers of people. Even though these occasions provide great opportunities for taking pictures, the risk of injury is even greater.
  6. The operator should be fully expert at controlling the drone. A good practical rule of thumb is to confine flying to 20 or 30 feet above the ground until fully proficient. Only then should consideration be given to the fact that you’re allowed to fly up to 400 feet above the ground.
  7. Given the potential risks, the younger the pilot/operator, the more important it is for a responsible adult who knows the rules to be there to supervise. It only takes a second of inattention or a single mistake to lose control of a drone and cause an accident.

The Wright Brothers flew their aircraft in 1903. It has taken us 114 years to bring aviation to its current level of development and safety. Even though drones have only entered the commercial and consumer markets in the past few years, it won’t take 114 years for them to become a safe and enjoyable part of everyday life. If we all use common sense and observe a few simple rules, we can achieve the same extraordinary level of safety as the rest of U.S. aviation. Happy Holidays and happy flying!


Mark Dombroff is an Alexandria, VA-based shareholder in LeClairRyan, a nationwide law firm, and co-chair of the firm’s aviation industry practice.  He owns and flies 5 drones (of course, not all at once).

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David Tochen Joins The LeClairRyan Aviation Team

Plane-ly Spoken strives to provide you with our unique take on the significant news of the day affecting the aviation industry.  Our task just got easier, as we are pleased to announce that David Tochen has joined the aviation practice at LeClairRyan and will be a regular contributor to Plane-ly Spoken.

David retired from government service after most recently serving six years as the General Counsel of the National Transportation Safety Board.  Prior to that, he was Deputy Chief Counsel for the Federal Motor Carrier Safety Administration and Deputy Assistant General Counsel for the Department of Transportation.

David Tochen will provide unique insights into the workings of the NTSB and government regulation of all forms of interstate transportation.  Moreover, as the immediate retired General Counsel of the NTSB, he will give a special point of view on safety and enforcement matters.

Welcome aboard David, we’re very excited to have you with us!

David can be contacted as follows:

David Tochen, Attorney at Law

815 Conneticut Avenue, NW, Suite 620

Washington, DC 20006



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