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Too Close for Comfort

Clifford's Notes, Chicago Lawyer, 06/01/2008
By Robert A. Clifford

The airline industry is in a lot of trouble.  Headlines in major publications across the country report massive flight cancellations, potential corporate mergers, and small airlines shutting down or filing for bankruptcy.

Passengers around the world were affected by the recent action of the Federal Aviation Administration that grounded hundreds of flights due to electrical wiring problems.

And just when we thought the issues were being addressed, there comes word that the FAA covered up near-collisions in Dallas, re-classifying air traffic control mistakes instead as pilot errors or non-events.  Mistakes made by controllers are required to be immediately reported so they can be entered in an agency database where they are used to identify emerging safety problems and to prevent future mistakes.

By the time this column goes to press, who knows what other calamities will be uncovered in what has been called a “culture of complacency and cover-up” by the U.S. Office of Special Counsel, an independent investigating agency responsible for protecting whistle-blowers.

In fact, Special Counsel Scott Bloch, from that office, said, “This culture did not develop on its own.  I believe it happened with the complicity of higher management and could not have been possible without the support of leadership in Washington.”

It took two anonymous whistle-blowing federal safety inspectors who accused the FAA of ignoring maintenance and inspection problems at Southwest Airlines.

Aside from the record $10.2 million fine, it tipped off a congressional investigation into the workings of the FAA and, finally, a realization that the FAA simply hasn’t been doing its job.

What a sorry state the FAA is in.

Created by Congress “to provide the safest, most efficient aerospace system in the world,” the FAA’s website talks about being “accountable” and “responsive to our customers.”  Its customers, though, are not the flying public.  They are considered to be the airlines.  Criticism has recently surfaced about the FAA being too cozy with the very entities they are to regulate. 

And the relationship gets even cozier when one sees the very people regulating the airlines have been executives at the company of lobbyists in the industry, and vice versa.

For example, the FAA proudly lists the previous achievements of its top management, a virtual who’s who from the airline industry.  FAA Assistant Administrator for Aviation Policy, Planning and Environment comes from American Airlines; FAA Chief Financial Officer held CFO and vice president positions for Pan American World Airways, Tower Air, and Trans World Airlines; FAA Chief Operating for Air Traffic Organization held senior management positions for nearly 30 years at United Airlines, and the list goes on.

The coziness has paid off for the airlines, from the multibillion-dollar government bailouts to broad deregulation, not to mention FAA managers ignoring or covering up safety violations.  This is an industry that needs more scrutiny, not people turning their heads.

And the FAA isn’t the only governmental entity accused of such incestuousness.

The Food and Drug Administration has been cited for its tight relationship with the pharmaceutical industry.  Late last year, it was reported that the chief of the Consumer Product Safety Commission had been flown to various events paid for by toy, appliance, and children’s furniture industries – the very groups his governmental entity was supposed to be regulating. 

This has got to stop.

I can understand that people may not want to work forever in a government job, but there has to be some sort of moratorium so that a person can’t leave one job where they are following safety directives and the next day they are issuing directives to the same people they just worked with – not when it involves the safety of the public and tax dollars that pay these salaries.  The Senate is now considering a proposal to mandate a two-year cooling-off period for inspectors who leave the FAA to work for the airlines, as part of a funding bill for the agency.

An oversight commission could create ethics guidelines for the government and linked industries so that it enhances the health care safety of Americans.  It then can examine the job seekers’ backgrounds as they jump from one ship to another to determine if a potential conflict of interest of compromising of interests could potentially occur, and try to prohibit government officials from regulating their former employees.  Also, the investigation continues into alleged cover-ups and the FAA’s overhauling its identification and classification of air traffic controllers’ errors.

These important agencies were created to be watchdogs of the safety and health of the American people.  We count on them to do the right thing even, as the FAA claims, “when no one is looking.”

Travelers had a chance to express their concerns about the problems in the air industry at a June 24 public meeting at the Marriott Hotel on Michigan Avenue in Chicago, hosted by the U.S. Department of Transportation.  Although aviation security and safety issues will not be addressed, this Aviation Consumer Forum is meant to help educate air travelers about their rights and responsibilities.

It may not be much, but at least it’s a start.   
ATTORNEYS

Robert A. Clifford