[KSMO]: Are FAA Attorneys Bluffing on their ‘Cease & Desist Order’?

The fight in Santa Monica continues to heat up. City officials have labored for nearly four decades, and patiently endured one FAA delay tactic after another, in their quest to assert local control so they can best manage their local airport. Now, an official at FAA Headquarters in Washington, DC, has issued an ‘Interim Cease and Desist Order’. For what it’s worth, here is a copy of the City’s official response:

ksmo-20161213at1540-n-hernandez-email-w-mayor-vasquez-response-to-faas-interim-cd-order

(text of email by City officials; minor edits may have been added, but only to clarify)

The Order appears authoritative and very threatening, but a closer inspection suggests it is just another bluff by an out-of-control federal agency. Here’s the closing declaration, at page five of FAA’s 15-page document, signed by Kevin Willis, an FAA Director at the Office of Airport Compliance and Management Analysis, on 12/12/2016:

(click on image to view an archived copy of FAA's entire 15-page 'Cease & Desist Order' package)

(click on image to view an archived copy of FAA’s entire 15-page ‘Cease & Desist Order’ package)

‘Cease & Desist’ … hmm, my first thought was, roughly,

“…where does FAA have the authority to issue a ‘Cease & Desist Order’, intervening in the relationship an airport authority has with an airport tenant? I mean, by this logic, FAA should also have the right to dictate all sorts of airport management details, not at all related to aviation safety.”

Evidence That This is Just a Bluff

FAA’s authority to issue the Order is cited as footnote one, on the bottom of page 1 which reads: “This Order is issued pursuant to 49 U.S.C. § 46105 and 14 CFR § 16.109.” So in the probably 100-200 man-hours that went into drafting this Order, FAA’s legal team offered not one but two cites. But, is either cite valid?

I’ll lead off with the second cite. According to GPO’s eCFR website, FAA’s second cite DOES NOT EXIST. I.e., per the screencap below, 14 CFR § 16.109 is a ‘reserved’ section of the CFR framework, meaning there is no language to be consulted.

20161213scp-2-images-showing-part-109-reserved-gpo-ecfr-14cfr

Two screen-captures by aiREFORM, from the current/valid electronic CFR (Code of Federal Regulations) website. These show that there is no valid 14 CFR section 109.

And note, too, this is NOT an out-of-date version; the GPO website declares this eCFR is current as of 12/12/2016 … the same date as Mr. Willis’s signature!

And now let’s consider the other cite. FAA cited 49 U.S.C. § 46105, but their error is immediately revealed by simply reading the language of the law. The actual section contains these words: “…a regulation prescribed or order issued by (…) the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator (…) takes effect within a reasonable time prescribed by the (…) Administrator.”

Note the qualifier, “…with respect to aviation safety duties and powers designated…” FAA’s current action against Santa Monica has nothing to do with ‘aviation safety duties’, and FAA’s legal team has failed to actually cite any real authority. If you want to look even further, see this archived PDF copy of the entire Chapter 461, which contains all sections, from 46101 through 46111. It is a searchable copy, so it is easy to quickly establish: Chapter 461 contains neither the term ‘cease’ nor the term ‘desist’, and the cited § 46105 contains no real authority.

Now, just to be clear, I am not a lawyer. BUT, as a forced-to-retire FAA ATC whistleblower, I have plenty of experience with FAA’s bluff and bluster. FAA pays plenty for their hundreds of inside attorneys, and these civil servants are expected to distort and deceive at will, in support of the true and not-so-ethical FAA mission. If my quick legal assessments are flawed, please show me my error. And if they are not flawed, clearly, it is time for FAA to get off their bureaucratic butts and let the People in Santa Monica get on with owning AND controlling their local airport.


UPDATE, 12/20/2016: — a week has passed and nobody has yet provided even a flimsy legal basis for FAA’s administratively issuing an ‘Interim Cease & Desist Order’ against the City of Santa Monica. The most substantial response I have yet seen was sent by Chris Harshman, and a screencap is provided below:

ksmo-20161220at1641scp-wow-email-from-c-harshman-packetlaw-comHere’s what I sent back to Chris:ksmo-20161220at1728scp-reply-email-to-c-harshmanChris did make one good point in his email. He identified my error in interpreting the CFR nomenclature. The Code of Federal Regulations are an extremely deep and tangled set of rules. When I researched my blogpost, I could not find a 14 CFR § 16.109 and ended up finding a list that looked like it was regarding 14 CFR § 16.109, but was actually declaring that 14 CFR Part 109 was reserved. The online version is viewable here (and I archived a copy, all 31-pages, here).

Of course, we also have the problem that the preamble for the 31-pages of 14 CFR Part 16 says that “…provisions of this part govern all Federal Aviation Administration (FAA) proceedings involving Federally-assisted airports….” This strongly suggests that Part 16 cannot be applied against Santa Monica, because Santa Monica dropped their addiction to airport federal assistance many decades ago.

Thankfully, all of this confusion is easily solved. We just need FAA to start serving ALL OF US, not just the elite aviation interests. Airports serve communities, not businesses; airport impacts need to be properly balanced against health, residential quality of life, and other issues. Attorneys can help make this happen… IF they choose to serve more than just the mighty dollar.

FAA Continues their NextGen Disinformation

At FAA’s ‘Optimization of Airspace & Procedures in the Metroplex (OAPM)‘ webpage, which is marked as last modified on 6/27/2016, there is a link to a video uploaded to FAA’s YouTube page. As has been the practice for FAA and others trying to dupe the Public into buying NextGen, the video is filled with disinformation.

Here’s an example. The two images below are screencaps, showing consecutive slides in FAA’s video, at times 1:07 and 1:13. The first is a satellite view of a hilly, minimally developed and predominantly forested land area; the second is a blue graphic with FAA’s splashy declarations alleging ‘transformative’ benefits of NextGen.

20160627scp-rnav-vs-conventional-zigzag-navigation-faa-lying-to-sell-nextgen-at-time-1m07s-of-4m45s-video

(a fraudulent and intentionally deceptive image provided by FAA, at time 1:07 in the video)

20160627scp-rnav-vs-conventional-zigzag-navigation-faa-lying-to-sell-nextgen-blueframe-at-time-1m13s-of-4m45s-video

No explanation is necessary, but what the hell. Lies annoy me, so I love to skewer them with facts. Here goes… the satellite view presents the direct green line and a zigzag red line route. The clear intent of this green vs red graphic is to impress upon us that our commercial airliner will become amazingly more efficient if, via NextGen, we let them fly those direct ‘greenlines’.

The problem is, it is utter bullshit. Our commercial passenger planes have been flying direct routes (the equivalent of these greenlines) for more than four decades. Thus, this graphic implies a change that will not happen, an alleged benefit never to be gained.

20140618-portion-of-pic-kiah-nextgen-metroplex-celebration-speech-pic-huerta-rinaldi-et-al

June 2014: Huerta hawking NextGen in Houston)

And, furthermore, study that satellite view. It’s fuzzy, but it offers enough detail, including roads and granularity related to both vegetation and topography, that anyone who studies aerial imagery can see: this land area is no more than 10- or 20-miles across. A commercial jetliner would NEVER be able to fly the red zigzag route as the turns are far too tight. But, of course, that does not stop FAA from pushing this kind of NextGen disinformation. All for the money.

And think this one step further: as stated by FAA,  those red lines represent a ground-based route; thus, there have to be navigational stations at the locations where the red lines bend. Out in the middle of this area of hills and hollers. Yeah, right. I wish FAA would show more respect for our intelligence, and for our money.

Michael Huerta: you’ve been FAA Administrator through all of this. Are you going to tell your FAA employees to clean this up, or are you just going to leave the NextGen mess for the next Administrator?

The Wasteful Joke That is FAA’s NextGen

Image

This simulated interview (plausibly, with FAA Administrator Michael Huerta) is non-stop funny, yet painfully too true in exposing FAA’s NextGen fraud.

Click here to open a PDF copy of the transcript in a separate window. Also, thanks to GolfHotelWhiskey and John Ewing of Aviation Mentor for sharing this online!!

FAA’s Latest Controller Workforce Plan Shows U.S. Air Traffic Remains Seriously Depressed

People under NextGen routes may be suffering depression due to repetitive airplane noise (and an agency that keeps them powerless to fix the impacts!), but there is another ‘depression’ that is worth looking at. Specifically, the number of takeoffs and landings in the U.S. is substantially below peak years, and showing no evidence of any major recovery.

Here’s a statistic to ponder: for the 504 control towers currently tracked by FAA, annual operations in 2014 were down 45% from the peak year. Further, an analysis of all 516 towers for which FAA offers ATADS data 1990-present shows that the average peak for towers was in early 1998 … more than 18-years ago.

In April, FAA released their latest ‘Controller Workforce Plan’ (CWP). This 60-page document includes a graph, showing both past and projected ATC workload and ATC staffing. Here is a copy of the graph, from the 2016 CWP:

20150919.. Traffic & ATC Staffing graph (from pg.7 of 2016 CWP)

ATC staffing figures as of September 2015 (source: 2016 CWP)

And, for comparison, here are two earlier graphs, from the 2012 CWP and 2009 CWP:

20110924.. Traffic & ATC Staffing graph (from pg.7 of 2012 CWP)

ATC staffing figures as of September 2011 (source: 2012 CWP)

20080927.. Traffic & ATC Staffing graph (from pg.6 of 2009 CWP)

ATC staffing figures as of September 2008 (source: 2009 CWP)

Yellow lines were added to each graph to identify the break point between actual past data and FAA’s future projections. Note that all graphs are indexed to the year 2000. Look closely at these graphs and you will see that:

  • in the 2009 CWP (the oldest of the graphs, at the bottom), traffic had fallen to 87% of Index.
  • in the 2012 CWP, traffic had fallen further, to 77% of Index.
  • in the 2016 CWP, traffic was still at 77% of Index.
  • in the 2009 CWP, FAA properly projected a decline for the first year (we were deep into the economic meltdown related to mortgage scams and the housing bubble), but FAA also projected a robust turnaround after 2009.
  • the robust turnaround never happened. While FAA had projected traffic to grow back to 94% of Index by 2015, the actual data for 2015 remained flat, at 77% of Index.
  • now, in 2016, FAA is being a bit more realistic (projecting a recovery to 85% of Index by the year 2026). But, FAA remains stuck on growth as a given …. with zero regard to history and to other major factors such as fossil-fuel related Climate Change.

So, what we have is a system that is not growing and an agency in denial about that stagnation. Meanwhile, FAA and other players in the Av-Gov Complex are insisting we must spend more money upgrading from World War II technologies, to accommodate record traffic levels.

Hey, Michael Huerta and Anthony Foxx, give us all a break; demand accountability within your rogue agency, and immediately revert to pre-NextGen departures and arrivals, so residents can recover from their sleep loss!


See also:
  • As a resource, aiREFORM has archived copies of all FAA’s CWPs that were found online. To view/download, click here.

FAA Offers $10 Million Giveaway to Buy Support for NextGen

The NextGen program that is destroying communities while supplementing airline profits has been needing more money to advance further. But, the program is seeing increasing resistance, especially from impacted homeowners. So, in order to garner more support and create the appearance of public acceptance needed to convince Congress to invest more public money into NextGen, FAA has announced an investment of $10,000,000 to subsidize ADS-B Out installations on small aircraft.

(click on image to view source article at AOPA.org)

(click on image to view source article at AOPA.org)

The new program will rebate up to $500 per aircraft to as many as 20,000 owners, which FAA believes to be roughly one-eighth of eligible aircraft. Bear in mind, rebate eligibility is restricted to single-piston-engine, fixed-wing aircraft that have not yet added this equipment, which FAA is requiring no later than January 2020, for all pilots who want to access ‘busier’ airspace. In other words, while NextGen is a program aimed at serving the airlines, FAA is directing its supposedly scarce resources to the lowest performing, personal-use aircraft … the vast majority of which will never have an urgent need to fly near any of our thirty busiest airline airports.

As some of the smarter online commenters have noted, what usually happens when a federal subsidy is announced is the industry jacks up the price of the product/service being subsidized. And also commonly, the subsidy is just a ‘gift’ for a huge number of recipients who had already planned to purchase the product/service anyway. So, in total, it is effectively FAA giving $10 Million to the aviation electronics industry. As if on queue, the aviation media reports that alphabet-group lobbyists are ‘applauding’.

20160607scp.. portion of article re $500 ADS-B subsidy, alphabet groups (GANews)

(click on image to view source article at GANews)

Congress never put this $10 Million scheme through an appropriation process. Congress never authorized this substantial expenditure. This $10 Million is just FAA, acting arbitrarily and on its own, as a lobbyist seeking to tip to the balance toward more NextGen funding by Congress. Which begs the question: if FAA has $10 Million or more to arbitrarily spend, how else might they spend OUR money to serve the Public?

How Might FAA Better Invest $10 Million?

Here’s two simple ideas (readers are encouraged to share their ideas, too!):

  1. for the NextGen-impacted people of Phoenix, offer a small subsidy to the airlines to fly the old departure routes out of KPHX. Try this for just 2-months, pay Southwest and American a couple million tops to cover their added cost, and see what it does to noise complaints and residential quality of life.
  2. for the NextGen-impacted people in the NYC area, take advantage of the current major project to upgrade the LaGuardia terminal (at KLGA). This is a great opportunity for a ‘test’. For a period of at least 6-months, get the airlines to voluntarily reduce their daily schedule by say 25%, and hourly flow rates to say a maximum of 25 takeoffs per hour. With these lower and more manageable KLGA traffic levels, revert to the old (and since-abandoned) noise abatement departures such as Whitestone Climb. Get the airlines to voluntarily make this happen, then see what a scaled-down LaGuardia does to improve efficiencies and reduce impacts for both JFK and Newark. The results may be surprising.

MHFC: NextGen Enroute Delays & Noise Impacts over Vashon Island

An incredible airshow: Michael Huerta’s Flying Circus.

20160408.. Michael Huerta's Flying CircusIn service to the airlines, FAA has carefully worked to bypass environmental review procedures while also embarking on a scheme to abandon wholesale decades worth of noise mitigation procedures. In their effort to increase ‘throughput’, turns are being made lower and closer to the airports, for both departures and arrivals. This would reduce fuel consumption by a small amount, but the savings are routinely more than lost when excessive airline scheduling necessitates that ATC must issue delay turns (even entire delay loops) during the enroute/cruise portion of the flight.

It is really a circus. ATCs work harder, and pilots also work harder. More delays are incurred, all so that FAA can justify increasing the repetitive-noise-pattern impacts on neighborhoods that previously had no aviation noise issues.

This Analysis looks at how NextGen is destroying quality of life for residents of Vashon Island, west of SeaTac [KSEA]. As shown in the map below, with FAA’s NextGen redesign of the Seattle airspace, ATC is compressing small planes to fly lower in corridors crossing east-west over KSEA (specifically, note the magenta arrows and magenta text boxes). This is to accommodate lower (and heavier) arrival flows on north-south downwind legs roughly 6-miles west of SeaTac (over the island’s eastern half). KSEA.20160512.. portion of VFR sectional focused on S ARR flow impacts Vashon level-offsOn a beautiful clear day (May 12, 2016), KSEA was landing south. In a south flow, all arrivals from California/Oregon are aligned northbound on a published RNAV route over the east half of Vashon Island. Thus, Vashon Island residents become subjected to the noise of one flight after another. Problematically, with the NextGen changes, this noise impact pattern is repeated all day long and all night long.

A scrollable PDF of the Analysis is presented below. Note that the Analysis also looks at how NextGen is being oversold and consistently fails to deliver on the ‘benefits’ claimed by FAA and others. In this example, every KSEA arrival from California was turned early after taking off, and then given a direct flight to the KSEA arrival fix at Battle Ground, just north of Portland. But then, once enroute, ATC issued significant delays to each arrival, eliminating all time and fuel savings benefits of the NextGen departure procedures. These delays were necessitated by the excessive arrival flows that happen at hub airports. In this example, KSEA is a major hub used by both Delta (including Compass, or CPZ) and Alaska (including Horizon).

Click on the image below for a scrollable view; the PDF file may be downloaded.

If FAA chose to, they could substantially mitigate these Vashon Island noise impacts. Notably, a natural descent corridor exists a few miles to the east, over Puget Sound. NextGen technologies would easily allow FAA to create a simple customized noise-mitigation arrival route over the middle water area. But, unfortunately, it appears FAA is set on cookie-cutter downwind legs.

MHFC: How FAA’s NextGen Debacle is Impacting Portola Valley

United Airlines dominates the airline hub at [KSFO], and schedules too many arrivals in too little time. Arrivals from the LA Basin cause ATC to bend airplane routes, especially when also working San Jose [KSJC] arrivals from Seattle, Portland, and other Pacific Northwest locations. Arrivals are brought down to low altitudes, and their routes are widened out, often with long stretches of low & level flight. Here are three images (two KSFO arrivals and one KSJC arrival) showing the mess this creates over the Portola Valley area.
KSJC.20160407at1212.. ASA408 ARR from KSEA (flightaware)
KSFO.20160407at1214.. SKW5439 ARR from KSAN (flightaware)KSFO.20160407at1217.. SKW5243 ARR from KSBA (flightaware)

An incredible airshow: Michael Huerta’s Flying Circus.

20160408.. Michael Huerta's Flying CircusIn service to the airlines, FAA has carefully worked to bypass environmental review procedures while also embarking on a scheme to abandon wholesale decades worth of noise mitigation procedures. In their effort to increase ‘throughput’, turns are being made lower and closer to the airports, for both departures and arrivals. This would reduce fuel consumption by a small amount, but the savings are routinely more than lost when excessive airline scheduling necessitates that ATC must issue delay turns (even entire delay loops) during the enroute/cruise portion of the flight.

It is really a circus. ATCs work harder, and pilots also work harder. More delays are incurred, all so that FAA can justify increasing the repetitive-noise-pattern impacts on neighborhoods that previously had no aviation noise issues.

An Exchange of Letters, Proposing Michael Huerta’s Removal

A New York area citizen, enduring years of unmitigated (and even expanding!) aviation noise impacts exacerbated by FAA’s ‘unmitigated capture by industry’, recently sent letters to both DoT Secretary Anthony Foxx and President Barack Obama. Both letters point to the ongoing failures by FAA, as well as a recent DoT-IG report: ‘FAA Reforms Have Not Achieved Expected Cost, Efficiency, and Modernization Outcomes’ (34p, 1/15/2016). Both letters also called for these top officials to “…find someone who is really responsive to citizen complaints coming from Phoenix, Palm Springs, Chicago, Boston, & New York and replace Michael Huerta…” and to “…remove Michael Huerta and replace him with someone who cares for more than just throughput and efficiency.”

Here are copies of the letters, shared with aiREFORM. Highlights were added, and the citizen’s personal info redacted. The first letter, dated January 25, is to Secretary Foxx:20160125.. (redacted) letter to DoT.A.Foxx (1p)

The second letter, dated February 10, elevated the issue to President Obama:201602010.. (redacted) letter to Pres.B.Obama, need to replace FAA.M.Huerta (1p)

Evidently, a pair of letters crossed in the mail. Secretary Foxx’s office staff forwarded the letter to FAA, directing that someone respond to the citizen. A letter with an illegible signature was sent from FAA’s Office of Environment & Energy, dated February 9:

This pop-out view is scrollable, and the PDF copy may be downloaded.

The content of the FAA response letter is telling. You will note the text is extraordinarily framed to say nothing and do nothing; ‘bureaucratese’, precisely deployed so as to demoralize the letter recipient. Sadly, these days, people everywhere in our nation get this sort of treatment; this is how FAA (and other agencies) routinely treat the good citizens, those who care and act responsibly to try and solve ongoing problems that FAA refuses to address. Is it any wonder, than, that so many people are so outraged these days, across the whole spectrum, from progressive to conservative?

For a closer analysis of FAA’s response letter, identifying cut-and-paste response elements that are routinely sent to citizens, click here.

ICAO Announces New CO2 Rules … Their Proposal is All Hype & Offers Little Meaningful Progress

In early December, world leaders met at COP21 in Paris to try and work out agreements to get our collective fossil fuel addiction under control. Conspicuously, two major transport modes were not even part of the debate: maritime and aviation. The COP21 leaders could have at least declared targets and ‘asked’ world aviation officials to aim at meeting these targets. Instead, we were told, let’s let the U.N. group ICAO take care of creating their own targets. Sort of like letting the foxes define the daily predation rate at the local henhouse.

ICAO has now delivered, and the product is underwhelming. Here is their Press Release link, as well as a copy of a New York Times article, with highlights (and footnoted analysis) added by aiREFORM.com:

This pop-out view is scrollable, and the PDF copy may be downloaded.

As noted in the aiREFORM footnotes to the New York Times article, this ‘agreement’ by a large group of people who generate profits by burning fossil fuels to move people and cargo… well, it’s all hype. The net positive improvement is frankly insignificant, yet all the official cheerleaders (including the White House and FAA’s Michael Huerta) are announcing this as a great achievement. It is not.

As further emphasis of the fraudulent cheerleading, read the statement within the News Release by GAMA, the General Aviation Manufacturing Association. Their headline was ‘Business aviation hails historic global agreement on CO2 standard for aircraft’, but within, note that small business jets are exempted from the new standards. This means that the most intensive CO2 generators – private jets with few passengers, flown on business trips and golfing junkets – are not even covered in this proposed agreement. No wonder people like GAMA President and CEO Pete Bunce are smiling during this PR moment.

A short film by Germanwatch.org, about carbon-intensive living in Germany. Strong points made, especially at the finish.

Click on image to watch a short film about climate injustice and carbon-intensive living by some Germans. Strong points made, especially at the finish. (Germanwatch.org)

If our Congress (and FAA) wanted to do something truly ‘Transformational’, they would focus efforts on imposing a substantial aviation carbon tax, and disincenvitizing energy-wasteful airline hubs – hubs that simply have grown to be ‘too big to fly straight’.