Category AVIATION &ТНЕ ROLE OF GOVERNMENT

The Fourth Amendment to the United States Constitution also had its genesis in the Brit­ish occupation of the American colonies. The

Amendment provides, in relevant part, that the people have a right “to be secure in their persons, houses, papers, and effects, against unreason­able searches and seizures. . and that such right “shall not be violated and no Warrants shall issue, but upon probable cause. .

Since the adoption of the Bill of Rights in 1791, a large body of law has grown up around the interpretation in various fact situations of what “unreasonable” means, and what “probable cause” means, including opinions of the United States Supreme Court and lower federal and state courts. By prior law, property taken by the police to be used in evidence is not admissible in a criminal proceeding against the accused if the seized evidence has been taken in contravention of the Fourth Amendment or the cases interpret­ing it. A number of exceptions to the require­ment of having a warrant to search have been articulated by the courts (for example, no warrant is necessary to search a person who commits a crime in the presence of an officer of the law, or a person who is under arrest). Similar types of exceptions have been articulated to the question of the sufficiency of the facts necessary to secure a warrant, where a warrant is required before a search of premises can be lawfully made. If the facts supporting the warrant are not legally suf­ficient, then the warrant is unlawful and anything seized is inadmissible in a criminal proceeding.

The question arises, then, whether drones may be used in law enforcement to fly over a person’s property to view what is on the prop­erty, for instance, as a basis to secure a warrant to enter the property in order to seize evidence to be used in a criminal proceeding. There have been two cases that bear on this question.

In Summers of California v. Ciralo, 487 U. S. 207 (1986), the Supreme Court had before it a case where the police had received an anony­mous tip that the accused was growing marijuana in his back yard. The back yard was enclosed by a high fence that precluded viewing what was in the back yard from ground level. A police offi­cer in an airplane flew over the property from a

1,0 foot altitude while in navigable airspace and was able to clearly identify the marijuana from the air. A search warrant was obtained and executed the next day, seizing the marijuana plants on the private property.

Prior law had established that a police offi­cer may look and see whatever is in plain view, and he may use this as a basis to either seize unlawful contraband or as a basis for a lawful search warrant. The court held that since the marijuana was in plain sight, using the naked eye, from a place in the navigable airspace (the NAS, which is in the public domain), the accused had no reasonable right of privacy. The view by the naked eye of the backyard was reasonable (as the same would be from a high truck or double decker bus from the street). Other specific legal analyses of the case are not permissible here, but suffice it to say that the court held that the over flight of the accused’s back yard and the viewing of it from 1,000 feet in the NAS, was a legitimate basis for the search warrant.

In the second case, Florida v. Riley, 488 U. S. 445 (1989), a similar situation was before the Supreme Court. The accused had a green­house on his private property, the contents of which could not be viewed from any ground level public place. Relying on an anonymous tip that marijuana was being grown on the prop­erty, a county sheriff using a helicopter circled twice over the subject’s property at 400 feet. Through openings in the roof of the greenhouse, the officer could see with the naked eye growing plants that he identified as marijuana. A search warrant was obtained and the premises were searched, and the marijuana plants were seized as evidence.

The court held, along the lines of Ciralo above, that helicopter flights at 400 feet above people’s property are routine, and that what is viewable from that position in the NAS is not protected under the Fourth Amendment, in spite of FAA regulations limiting low flight for fixed – wing aircraft in the navigable airspace. The FAA limitation is based on safety considerations, not

privacy expectations, and does not necessarily apply to helicopters.

Both of these cases rely on the police being where they were legally allowed to be, on the “plain view” doctrine that allows police to see what is there to be seen using the naked eye, whether through a window or otherwise, and that they were using normal and routinely used aerial vehicles from which the sightings were made. The use of drones, however, is not normal or routine in many venues, and drones frequently use specialized imaging and sophisticated tech­nologies, like infrared and thermal applications, to view the ground. There will no doubt be many other distinctions that will be argued under Fourth Amendment principles as UAVs become more prevalent and are increasingly used by the government. At this point, it is still safe to say that the incorporation of UAV technology in the NAS, as projected by the recent statutory law and by the plans of the FAA, will result in many legal contests between citizens and the government.

Endnotes

1. P. L. 108-176.

2. Atlanta, Boston, Charlotte, Chicago, Cleveland, DC Metro, Denver, Detroit, Houston, Las Vegas Valley, Memphis, Minneapolis-St. Paul, New York/Philadelphia, Northern California, North Texas, Orlando, Phoenix, Seattle, South­ern California, South Florida, Tampa.

3. Multilateration is a means of navigation using the mea­surement of the difference in distance between two or more stations at known locations that broadcast signals, enabling the determination of a “fix.”

4. Portland, OR; Anchorage; Kansas City, MO; New Orleans; Pittsburgh; San Francisco; Cincinnati; Cleveland; and Andrews Air Force Base.

5. In 2009, 50 percent synthetic fuel blends were created from a process known as Fischer-Tropsch synthesis. In 2011, a biofuel known as Hydroprocessed Esters and Fatty Acids (HEFA) can be mixed up to 50 percent with standard kerosene.

6. As a result of the Freedom of Information suits filed against the DOT, the FAA released information in April 2012 disclosing the identities of holders of Certificates of Authorization (COAs) and Special Airworthiness Certificates in the Experimental Category (SAC-EC).

From the basic idea and structure set forth in the Treaty of Rome, the European Union has created itself and its actual structure and composition through a painful process of evolution. The origi­nal idea of union from such a diverse population and separate systems of government, with its violent history, was bound to be difficult. Yet, it is said that “nobody would have deliberately designed a government as complex and as redun­dant as the EU.4”

By 1986, the EC had grown to 12 member states.5

The European Union came into existence with the Treaty of Maastricht, signed in 1992. By 1995, the addition of Austria, Sweden, and Fin­land brought the number of countries in the EU to 15. In 2004, 10 more countries were admitted.6 By 2007, the total membership had risen to 27 with the addition of Bulgaria and Romania.

Along the way came the European Central Bank, which is the central bank for the countries that have adopted the Euro, the EU’s common cur­rency. It controls monetary policy for that currency and its subscribing countries. It has inherited a central and very important role as certain Member States of the EU have demonstrated financial insta­bility and weakness that threatens the very existence of the EU. This instability pits the more “indus­trious” Member States against those that might be termed “profligate” by some, the most glaring extremes of which are Germany (the world’s fourth largest national economy) and Greece.

Although the purposes of the community are increased economic stability, expansion of eco­nomic activities, securing an improved standard of living, and the creation of a genuine, barrier – free internal market, the nature of the culture and the people of the various countries in the Union are playing a divisive role as the EU attempts to accomplish its original goals. The result appears to be that some of the more industrious and effi­cient countries are being called upon to “bailout” other Member States that have accumulated sig­nificant debt and that do not have the financial strength to continue to operate their govern­ments, given their obligations. As of 2013, the EU is in crisis.

From a technical perspective, atmospheres have no “end”; they just get progressively thinner. During the 1950s, it was generally known in the scientific community that, beyond some altitude, the physics of flight changed drastically. The principles for flight in the atmosphere, or the sci­ence of aeronautics, were fairly well understood. The principles for flight without an atmosphere, or the science of astronautics, were less under­stood. Some believed that these two disciplines needed some definition as to their separation.

There is no “bright line” that determines where outer space begins. NASA accords astro­naut status to any individual who travels above 80 kilometers (50 miles). Yet atmospheric drag becomes evident on reentry at 75 miles above the earth’s surface.

The venerable Federation Aeronautique Internationale,8 which was founded in 1905, has ever since that time been accepted worldwide as the arbiter of aeronautical records. Through this private organization, the physicist Theodore von Karman in 1957 proposed a formula for the cal­culation of a boundary that would establish the beginning of space. One of the characteristics of aeronautical flight is the concept of lift, which is a function of speed through the atmosphere, among other things. The thinner the atmosphere, the faster the airplane must fly in order to gain the lift necessary to remain aloft. Karman pro­posed an altitude of approximately (the exact altitude depends on certain variables) 100 kilo­meters (62.1 miles) as the separation point based on his calculations that a space vehicle would have to travel faster than the speed necessary to obtain orbital velocity in order to maintain aero­nautical lift. In other words, aerodynamic lift becomes less than centrifugal force.

This became the internationally accepted boundary to space, and it is known as the “Kar­man line.” The Federation Aeronautique Inter­nationale is now the recognized keeper of all records that are established in astronautics.

The Commercial Space Act resolved the con­fusion. It also specifically approved the development and use of commercial reusable launch vehicles (RLVs) for launch and landing within the United States. In addition, the fledg­ling commercial space launch effort received a significant boost by the law directing NASA to use commercial launch services “when required in the course of its activities” and to “plan mis­sions to accommodate U. S. commercial provid­ers.” The statute prohibited the government from using any missile that was formerly used by the Department of Defense for national defense pur­poses as a space transportation vehicle, which effectively took the government out of the sat­ellite launch business. The statute did provide for seven exceptions to be used in the case of national defense overrides.

The Commercial Space Launch Amendments Act of 2004 (CSLAA)

This legislation was passed by Congress in December 2004. The law is “designed to promote the development of the emerging commercial human space flight industry” and creates the struc­ture for the regulation of private space activities. It also frees the fledgling industry from the patch­work of regulations that had been applied to it.

Its overriding premise is that the federal government should not “over regulate” this new industry for fear that, in so doing, it will stifle the innovation necessary to make the concept succeed. Those now in the forefront of experi­mentation are compared to the early pioneers in aeronautical flight at the beginning of the last century. These current pioneers need a regulatory environment that will allow them room to experi­ment and take chances as they develop the space concepts of the future.

The government has decided that regulation will not be the enemy of innovation. Remember­ing the early days of aviation presented earlier in this book, we saw that the first regulation of aviation by the federal government occurred in 1926, some 23 years after the Wright brothers’ first flight. As with the development of law after the first Sputnik orbited earth, it was clear that law must follow, not lead, technology. Just as government oversight of aviation safety gradu­ally developed as aviation itself developed, so too will government oversight of the commercial space industry evolve.

According to statements made by FAA rep­resentatives to Congress, the government is plac­ing its oversight emphasis on the protection of the public, not the participants. Given the experience of the industry regarding the failure rate of expend­able launch vehicles, which is about 10 percent of all attempts, it is recognized that space launches are a relatively dangerous activity. FAA efforts are directed, therefore, not to the over-protection of those who voluntarily place themselves in harm’s way as a part of the industry itself, but to the bystanders of the process, the public. In this regard the oversight process employed by the FAA has been successful. There have been no deaths or seri­ous injuries, nor any significant property losses, as a result of FAA-monitored commercial launch activity.

It may be expected, however, that once com­mercial launch activity is removed from federal launch sites, with their isolated locations and ranges, and with their strict safety regulations and controls, there may be greater likelihood of harm to the general public. The regulatory regi­men of CSLAA provides for launch operators to maintain an under-layer of liability insurance, but also requires the federal government to indem­nify or reimburse operators for losses to third parties in excess of that insurance up to the sum of $1.5 billion. The removal of this financial risk is important to private investment.

Ш U. S. Airlines (Part 121) 1982-Present

he NTSB wishes to make clear to all users of si the following list of accidents that the infor­mation it contains cannot, by itself, be used to compare the safety either of operators or of air­craft types. Airlines that have operated the great­est numbers of flights and flight hours could be expected to have suffered the greatest number of
fatal-to-passenger accidents (assuming that such accidents are random events, and not the result of some systematic deficiency). Similarly, the most used aircraft types would tend to be involved in such accidents more than lesser used types. The NTSB also cautions the user to bear in mind when attempting to compare today’s airline sys­tem to prior years that airline activity (and hence exposure to risk) has risen by almost 100% from the first year depicted to the last.

[1] In 1900, there were 8,000 automobiles registered in the United States. By 1920, there were 8 million automobiles registered. Wall Street Journal 5/17/03.

Endnote

Endnote

[4] http://www. nasm. si. edu/collections/artifact. cfm7id =A19180001000

[5] September 21, 1908—A record for distance and duration that brought a $1,000 prize from the Aero Club de France.

2. October 7, 1908—The first flight with a female passenger, Mrs. Hart O. Berg.

3. October 10, 1908—A record for distance and duration with a passenger.

4. November 18, 1908—An altitude record of 90 meters, earning a prize of 1,000 French francs from the Aero Club de Saitte.

Endnotes

[7] Shulman, Unlocking the Sky: Glenn Hammond Curtiss and the Race to Invent the Airplane, Harper and Collins, 1903.

2. Dayton History Books Online http://www. daytonhistory books. com/the_wright_brothers_18html.

3. Dayton History Books, ibid.

[8] An account of Pratt & Whitney Aircraft Company, 1925-1950, Frederick B. Rentschler, 1950, Pratt & Whitney Archives, East Hartford, CT.

Endnote

[10] The Post Office, which would continue to award contracts, designate routes, and estab­lish schedules;

Endnotes

[12] Barnum, John, What Prompted Airline Deregulation 20 Years Ago, http://library. findlaw. com/1988/ Sep/l/129304.html.

2. Caves, Richard E., Air transport and its regulators: an industry study, Harvard University Press, 1962.

3. Martha Derthick & Paul J. Quirk, The Politics of Deregula­tion 241 (1985).

[13] Immediate automatic market entry in certain cases.

2. Shifted the burden of proof in route author­ity cases from the requirement to show that public necessity and convenience (PNC) was required (in order to secure the route) to one requiring opponents to show that the new award/entry would be inconsistent with PNC.

3. Allowed carriers to obtain authority to fly unused routes of other carriers.

4. Established a range of fares within which carriers could immediately select fares on their own without CAB approval.

5. Established notice procedures to facilitate abandonment of unprofitable routes.

6. Provided a 10-year Essential Air Service Program to ensure air service to small communities.

7. Provided employee protective measures for workers dislocated by changes in the air­lines’ procedures.

Endnotes

[15] 459 U. S. 1145, 103 S. Ct. 784, 74 L. Ed. 992 (1983).

2. 14 C. F.R. 255; Regulation ER-1385, 49 Fed. Reg. 32540 (Aug. 14, 1984), aff’d United Airlines v. CAB, 766 F. 2d 1107 (7th Cir. 1985).

3. See Bankruptcy Code, 11 U. S.C § 1113, et. seq. Under this amendment to the Bankruptcy Code, the debtor in bankruptcy may petition the Bankruptcy Court to void or modify union contracts and impose lower pay scales or more reasonable work rules. The Court must find (after presentation of evidence) that wage and benefit cuts or changes to work rules are necessary for the debtor (airline) to successfully emerge from bankruptcy and that these changes are equitable and not arbitrary. This was not the case when Lorenzo unilaterally canceled the Continental labor agreements.

[16] Gandt, Robert, Skygods, p. 289.

Endnote

[18] The airport gives up the opportunity to make any profit in its operations since any sur­pluses are credited to the airlines.

2. The airport gives up the right to make auton­omous decisions over capital expenditure programs because of provisions in the agree­ments, called “majority-in-interest” (Mil) clauses.

Endnotes

1. Public Law 84-159.

2. 42 U. S.C. section 7401, et seq.

3. California, Massachusetts, and Texas.

4. Aircraft must be built to meet noise certification standards established by ICAO, found in Annex 16, Environmental Protection, V. 1. The first generation of jet aircraft (707, DC-8) preceded the Annex 16 standards. These are Stage

[20] aircraft. Chapter 2 of the Annex applied to aircraft built before 1977, and these are referred to as Stage 2 aircraft. Chapter 3 of the Annex covered the latest production air­craft, and are referred to by the FAA as Stage 3.

[21] It must be developed and implemented at the same time that the present radar-based sys­tem is running full tilt.

[22] It proposes technology that has yet to be perfected.

[23] It requires significant financial invest­ment in new ground-based equipment by government and new onboard equipment by flying users of the new system, estimated to be in excess of $40 billion.

[24] Airlines are reluctant to invest in the required onboard equipage until the FAA can demonstrate with some confidence when the government-funded technologies will be available for use in the new system.

[25] It requires training in the use of new equip­ment and in procedures by government, mili­tary, and civilian users of the new system.

Endnotes

[27] A large-caliber muzzle-loading gun able to fire heavy projectiles.

2. Refer to Chapter 8 for a review of the impact of Scientific American on the early aviation community.

3. Refer to Chapters 6 and 7 for a review of the Smithson­ian’s impact on the early work in aeronautics by Samuel Langley and the Wright brothers, and to Appendices 1 and 2 for comments by Dr. Alexander Graham Bell at the Smithsonian in 1913 about their experiments.

4. On July 17, 1969, the day after the launch of Apollo 11 for the moon landing, the Times issued a “correction” to its 1920 mocking editorial of Goddard’s 1919 treatise. It concluded: “The Times regrets the error.”

5. Refer to Chapter 13 for a discussion of the Guggenheim family and their contributions to early aviation and research in the United States.

6. Roswell would become famous as the site of the alleged alien space ship crash in 1947.

«Many wonderful inventions have surprised us during the course of the last century and the beginning of this one. But most were completely unex­pected and were not part of the old baggage of dreams that humanity car­ries with it. Who had ever dreamed of steamships, railroads, or electric light? We welcomed all these improve­ments with astonished pleasure; but they did not correspond to an expec­tation of our spirit or a hope as old as we are: to overcome gravity, to tear ourselves away from the earth, to become lighter, to fly away, to take possession of the immense aerial kingdom; to enter the universe of the Gods, to become Gods ourselves, w

Jerome Tharaud, ‘Dans le ciel des dieux,’ in Les Grandes Conferences de I’aviation: Recits et souvenirs, 1934

t is generally acknowledged that the success of the Wright brothers’ Kitty Hawk flight on December 17, 1903, was due to their success, for the first time, in combining into a single machine
the three essential elements needed for heavier than air powered flight:

1. A source of lift (the wings properly shaped),

2. Propulsion (an engine of appropriate power versus weight, and efficient propellers), and

3. A means of control (a “warping” or bending of the wings for banking, vertical rudders for turning, and an elevator for pitch).

To the date of their first successful flight, no one else had been able to assemble all three of these essential elements into one machine under conditions conducive to flight. It is generally acknowledged that the Wrights’ machine was not so much an “invention” as it was a “devel­opment,” one that relied upon the efforts, trials, failures, and successes of many who went before. In spite of that fact, the U. S. Patent Office issued a patent to the Wrights in 1906.

The flight experience of mankind prior to the Wright brothers’ success was limited to bal­loons, dirigibles, and gliders. Balloons and dirigi­bles are classified as “lighter than air” craft. The Federal Aviation Administration (FAA) classifies gliders as a category of aircraft separate from airplanes, but the essential and only significant difference is propulsion, or the lack thereof. The
wing of the glider produces lift, just as with the airplane, and the control surfaces of the glider (the ailerons, elevator, and rudder) are the same as the airplane. Early work and experimentation with gliders proved much more valuable to the long-term effort of sustained, controllable flight than did lighter than air experimentation. Since no history of flight would be complete without treatment of the history of all successful flight forms, we begin with the first flights of man.

t was not long after the Wright brothers were first successful in marketing their airplane to the French and to the U. S. Army, in 1908 and 1909, that the idea occurred to someone in the Post Office Department that the airplane could be useful in delivering the mail—and faster than the railroads. Federal funding for airmail deliv­ery was not forthcoming in spite of a bill intro­duced in Congress in 1910 by Congressman Morris Sheppard for that purpose. Beginning in 1911 without specific government funding, lim­ited experimentation with airplanes hauling mail (15 pounds a load) was initiated. Congress was not convinced that the entire process of flying mail to a point over a United States Post Office, and dropping it from various heights to the ground, was not too hare-brained to be dignified by appropriations. Only in 1916 did Congress finally approve limited funding ($50,000 from the “Steamship Fund”) for the establishment of a trial airmail route, in large part because of the rapid improvement in the reliability of aircraft. In 1918, specific funding was finally approved (the Sheppard bill had been hung up in Congres­sional debate for eight years) with a $100,000 appropriation for the purchase, operation, and maintenance of airplanes for use by the Post Office Department.

A Rough Beginning

Operations began by using airplanes and pilots furnished by the Army Signal Corps. It soon was clear that the airmail experiment was, in reality, a training device and exercise for the Army, and that delivery of the mail often amounted to an afterthought. It also became clear that the lack of training and experience of Army pilots, particu­larly in cross-country flying and navigation, was going to be a problem. Otto Praeger was Second Assistant Postmaster General of the United States from 1915 to 1921. He believed that the carriage of mail by air would be a logical next step in mail service to the country, and he also believed that the carrying of mail would have the secondary benefit of proving the use of the airplane for com­mercial purposes. After World War I, it seemed that business interests in the United States could not figure out how to put the airplane to any ben­eficial or productive purpose. This was the age of barnstormers, daredevils, adventurers, and a sideshow mentality that overshadowed most other thinking on the subject of airplanes. Banner tow­ing, the selling of rides, and the occasional charter hop from one municipality to another was about the extent of commercial benefit associated with aviation. Besides, flying was fraught with danger.

The aircraft available after World War I were numerous, but they were mostly JN-4s, the latest version of which was the H model. This airplane had an average speed of 50 miles per hour, 60 tops, and could carry some 150 pounds of mail. The route fixed as the first experimen­tal airmail route was between New York and Washington, D. C., a distance of 218 miles, with an intermediate stop at Philadelphia, and the date set for its inauguration was May 15, 1918. Airplanes would depart both New York and Washington at the same time. In Washington, President Woodrow Wilson was in attendance, attesting to the magnitude and portent of the event, as was Otto Praeger and other Post Office dignitaries. (See Figure 10-1.)

The pilot selected for the Washington depar­ture, Lt. George Boyle, was chosen more for his family contacts than for either his experience or his skill. (See Figure 10-2.) As the presi­dent watched, Lt. Boyle called “contact” and the propeller was pulled through for start, but nothing happened. After several attempts, amid an embarrassing silence from the august assem­bly, someone thought to check the airplane’s gas tank. It was empty. Upon being filled, the engine coughed to life and presently brand-new airmail pilot Boyle was finally airborne, and the airmail service had been launched, much to the relief of the Post Office and Army officials gath­ered there. (See Figure 10-3.) But there was yet another problem.

A pilot wishing to fly from Washington to Philadelphia is required to follow a generally northerly course, owing to the fact that Phila­delphia is north of Washington. Lt. Boyle, how­ever, turned to the south shortly after take off and landed in a pasture farther away from Phil­adelphia than where he started. The day was saved by the southbound mail, which arrived in Washington 3 hours and 20 minutes after it left New York. The second leg of the northbound route, from Philadelphia to New York, was sal­vaged when Boyle’s difficulties became known,

whereupon the second-leg pilot loaded his air­plane with Philadelphia mail and took off for New York.

Ш Scheduled Airmail Service

The experimental airmail service continued for about three months, until August 10, 1918, with an impressive record of 88% completion of flights attempted. The experiment using Army personnel had come to an end, and since it was the intention of the Post Office to use civilian pilots to operate the new, permanent airmail sys­tem, six new pilots were hired and new planes were put in service. (See Figure 10-4.) On August 12, 1918, the world’s first regularly scheduled airmail service was begun between New York
and Washington. On May 15, 1919, service was commenced between Cleveland and Chicago, the first segment of what was to ultimately become the transcontinental airmail route of the United States Post Office. Service on the segment from New York to Cleveland was deferred due to the adverse terrain, the Allegheny Mountains, which lay between those two cities.1 Attempts to inau­gurate that service in December 1918 had failed due to the fact that every airplane sent aloft had been forced down by weather. But by July 1, 1919, that service had been begun as well. The

New York-Chicago route segment would come to be known as the “graveyard run,” and it would claim the lives of 18 airmail pilots.

The mail was mostly flown in Curtiss Jen – nys from the beginning of experimental service, but it was clear that more powerful and larger airplanes were needed. The Army had developed an appreciation for Glenn Martin’s airplanes during World War I, and was about to order the improved MB-2 bomber when the Post Office took over airmail delivery from the Army. In 1919, the Post Office applied some of the Con­gressional airmail appropriation to order six Mar­tin MPs (mail planes), specially designed with nose cargo compartments capable of holding up to 1,500 pounds of mail, which were put into ser­vice in 1919 and 1920. Pilots crashed four of the new Post Office MPs on the New York to Chi­cago route, and the Post Office finally transferred the other two to the Army Signal Corps.

The Jennys gave way to the De Havilland DH-4 with Liberty engines, also leftovers from the war, that had earned the name “flying coffins” because of their propensity to catch fire on crash­ing, a not uncommon occurrence. (See Figures 10-5 and 10-6.) These planes generally had as

instrumentation an airspeed indicator, an altimeter of sorts, and an oil compass. The planes had to be flown visually, by reference to horizon, sky, and land outside of the cockpit. Navigation was also by outside reference, referred to as “pilotage,” “contact flying,” or “ded reckoning.”2 Landmarks on the ground were the prime navigational refer­ence for these early cross-country pilots, and when clouds or fog obscured these, finding one’s way became problematical, indeed. The airmail service did not operate at night; the mailbags were deliv­ered to the trains for continuation of the journey until the next day, when once again the mail flew.

These two incapacities severely hampered the fledgling airmail service from fulfilling its promise.

• First, the lack of instrumentation to fly “blind,” or by instruments alone, was a problem that had to be addressed by the aircraft manufactur­ers, their vendors, and by the pilots themselves.

• Second, the lack of any land-based naviga­tional infrastructure by which airplanes might find their way at night or in adverse weather conditions was a problem too big for indi­viduals or the fledgling aircraft community.

A navigational infrastructure was an under­taking for government.

The first airmail pilots (see Figures 10-4 and 10-7), like Max Miller and Wesley Smith, began pushing the limits of “blind” flying, usually in order to extricate themselves from situations inadvertently encountered, like flying into clouds or fog. Smith is said to have taken a half empty bottle of whiskey aloft, which he placed on top of his instrument panel, to practice flying wings level with the whiskey level. Soon, he found that a curved tube filled with liquid and containing a ball, like a carpenter’s level, was available, and this he fastened to his instrument panel. And so it went. It was found that turns made at a con­stant, steady rate could be timed and the airplane could be rather accurately rolled out on prede­termined headings. Sperry introduced a two-axis gyroscopic instrument that allowed a pilot to determine whether his airplane had inadvertently entered a turn. This was followed up with a three- axis instrument that showed changes in pitch attitude.

Immediately after passage of the legislation, Brown summoned to Washington representatives from the major lines around the country, who assembled in the Postmaster General’s office on May 19, 1930. It was his belief, he said, that the mail should be carried by substantial, established air carriers, the vast majority of which fell within the ownership of the three largest holding com­panies, United Aircraft & Transport Corporation, North American Aviation, and Aviation Corpora­tion. He explained his master plan to them in con­junction with the expressed and unexpressed terms of the new law. He decreed that there could be no monopoly of transcontinental service, but that competition along that route would be required, to the dismay of United. Brown explained, in effect, that the country would be carved up among a few lines, with United flying the transcontinental route to San Francisco, another line flying the New York-Los Angeles route by way of Pittsburgh and St. Louis, and still another line proceeding from New York via Washington, Atlanta, and Dal­las, thence on to Los Angeles. He also outlined a north-south route along the east coast. He told the representatives in attendance that they should decide among themselves who would take which routes.

Brown brought in William P. MacCracken, aviation’s first regulator as head of the Bureau of Aeronautics in the Commerce Department in 1926, to monitor the ensuing meetings among the carrier representatives in attendance. Not surprisingly, the strong-willed leaders of the industrial and financial interests that controlled these carriers were unable to agree among them­selves, as directed by the Postmaster General, as to how the country should be split up. Represen­tatives of the carriers remained in Washington, attending meetings with each other, until June 4, 1930. On that date, the carriers reported to the Postmaster General that they were unable to agree on allocating the five major routes in the country, including the transcontinental routes, and submitted the issues back to Brown. The carriers advised the Postmaster General that they would agree to be bound by his decision as to the route awards.

During June and July 1930, negotiations and correspondence continued between the parties with a view toward an agreement that would be fair to all concerned and that would take care of smaller lines having some “equity” due to their “pioneering” efforts. Brown suggested that the central transcontinental route should go to the beleaguered TAT, the plane and train airline, which had been flying without airmail subsidy. TAT had no night flying experience, however, and was ineligible for consideration for the trans­continental route because Brown had added this experience requirement under his “discretion­ary” authority. Western Air Express, however, did have the requisite night flying experience. Brown, in effect, ordered the merger of TAT with Western Air Express. This merged airline was to be TWA, or Transcontinental and West­ern Air. As consolation for sacrificing its inde­pendence, Western Air Express was allowed to survive as an independent entity and retain its passenger service between San Diego and Los Angeles, and between Los Angeles and Salt Lake City.

United kept its New York-San Francisco route through Chicago, and was allowed to expand northwest. Eastern was assigned New York-Miami, along with Atlanta, New Orleans, and Houston. TWA got New York-Los Angeles through St. Louis and Kansas City. American would fly New York-Los Angeles via Nash­ville, Dallas, and points in the Southwest. Thus were the “Big Four” (United, Eastern, TWA, and American) born.

Although the smaller lines were not invited to the meetings in May, the Post Office-carrier conferences were no secret. The Post Office had even put out a press release about the whole affair. Representatives of several small operators showed up, including Southwest Air Fast Express (SAFE), owned by oilman Erie Halliburton, Pittsburgh Aviation Industries, U. S. Air Transport, Curtiss Flying Service, Delta Air Service, and Thompson Aeronautical Cor­poration. During the summer of 1930, prior to the request for bids being sent out by the Post Office, discussions and negotiations continued. The financial interests of some of the smaller lines were taken into consideration, like SAFE and Delta, and mergers and buyouts were agreed to between them and the larger carriers who would be serving the routes on which the smaller lines had “pioneered.” The parties even agreed that Walter Folger Brown would be the arbiter of the value of the stock transactions made to complete the arrangements. Some of the smaller operators received “extensions” of the major routes as additional consideration for the overall agreement.

The airlines paid lip service to the require­ments of the Watres Act by going through the motions of competitive bidding with all of the carriers duly submitting bids. The only thing was, none of the Big Four submitted compet­ing bids on the routes that had been assigned by Brown to others. Lower bids on the assigned routes submitted by small carriers were rejected as “not responsible.” In this way, modern com­mercial aviation was born.

Hindsight will not compel a uniform judg­ment of Brown’s actions. It cannot be doubted that the struggling world of commercial avia­tion was given a mighty boost by the arrange­ments put in place, and that it evolved at a much accelerated pace over what would otherwise have been the case. At the end of Brown’s tenure in 1933, passenger traffic was rising, and the air­lines were competing on their transcontinental routes. The cost to the government was less than it had been 4 years before, down from an aver­age of $1.10 per mile in 1929 to half that in 1933, $.54 per mile. The airlines were in good shape financially. It is clear, therefore, that the public interest was served. As we shall see in the next chapter, the 1932 election of Franklin D. Roosevelt as President of the United States (he assumed office in 1933) would have a profound effect on the new commercial aviation com­munity. The allocation of airmail routes and the award of airmail contracts would be the subject of a political Congressional investigation, and Walter Folger Brown, himself, would be the sub­ject of intense scrutiny and criticism.

No evidence would be adduced that would even suggest any financial or material gain by Brown. His actions appear to have been the result of a sincere desire to promote aviation, and he did so with success. It is, however, beyond dis­pute that the procedures employed by Brown were outside of the requirements of the Watres Act. The Congress did not remove the require­ment of competitive bidding in 1930, yet that requirement was not observed. The bill that was passed by Congress had removed consideration being given to “pioneering” efforts of some of the operators, yet such consideration was given. But, with the aid of hindsight, it can be seriously argued that his vision for the future of aviation was far superior to any of his peers’.

Although the results of Brown’s actions would be undone at the beginning of the next administration, the reality is that the Big Four put in place by the Brown policy were still the Big Four for the ensuing 48 years, until deregulation in 1978, in fact. It was then, in 1978, that the country would finally have the chance to glimpse what might have happened during the 1930s had it not been for Walter Brown.

Endnotes

1. Sobel, Coolidge, An American Enigma, Regnery Publishing, Inc. 1998.

2. For a more detailed discussion of NACA, see Chapter 15.

3. See Appendix 4 for details of Lindbergh’s flight, including hourly log entries.

4. Lindbergh served as technical advisor to Pan American for 45 years.

5. See Appendix 5.

6. Moolman, Valerie, Women Aloft, Time Life Books, 1981.

7. By contrast, the around the world flight in 1938 by How­ard Hughes was 14,456 miles in length, incorporating the itinerary New York-Paris-Moscow-Omsk-Yakutsk-Fairbanks – Minneapolis-New York. Except for New York, Paris, and Minneapolis, all stops were above 55 degrees north latitude. Hughes’ flight set a new around the world speed record of 3 days, 19 hours, and 8 minutes, beating both of Wiley Post’s world records of 8 days and 16 hours in

1931 and 7 days 19 hours in 1933 along a route similar to that flown by Howard Hughes in 1938.

8. In 2012, the International Group for Historic Aircraft Recovery (TIGHAR) began its 11th expedition to Nikuma- roro (formerly Gardner Island) in search of evidence of Earhart’s aircraft. An underwater search of the waters off the western end of the island was conducted using unmanned submersibles. This coral atoll is about 400 miles southeast of Howland Island, which was Earhart’s intended destination. Although TIGHAR departed the area with no known positive results from their underwater search, in August 2012 TIGHAR announced that a review of high-definition video footage taken during the expedi­tion revealed aircraft parts similar to Earhart’s Lockheed Electra. Further analysis will be required to correlate this find definitively to Earhart.

9. An Account of Pratt & Whitney Aircraft Company 1925-1950, Frederick B. Rentschler, 1950, Pratt & Whitney Archives, East Hartford, CT.

10. See discussion of Pan American in Chapter 15.

As the sole American airline with prewar opera­tions overseas, Pan American became an impor­tant asset of the United States during World War II. Pan American operated flying boats, in part, because of the lack of airfields. But Pan Am also had experience in building airfields in remote areas. Roosevelt had secured rights to bases on many of the islands of the Caribbean from the British under the “Destroyers for Bases Agree­ment.” He now called upon Pan American to build airfields on these islands as a part of a larger plan to supply the war effort against Ger­many. Airports would be built down through the Caribbean to South America and along its east coast, for ferrying equipment and supplies across the Atlantic narrows to Africa. The British were engaging the Germans in North Africa, and North Africa would be the location of America’s first military engagements in World War II. Although the United States paid for all of the airport con­struction (over $90 million), Pan American held title to these facilities initially for appearance purposes since the United States was diplomati­cally neutral prior to its entry into the war. After the war, negotiations caused these improvements to revert to the United States, but with limitations on their use by airlines other than Pan Am.

The Airlines at War

At the beginning of the war, there were only some 365 commercial transport aircraft in the United States. The airplane manufacturing community would shortly begin to produce 50,000 aircraft a year, the largest manufacturing activity in the United States during the war, and at war’s end over 300,000 airplanes would have been produced. America’s main contribution was in production, not development, for the existing fighter and trans­port aircraft designs were considered sufficient, at least in the short run, to win the war if only there were enough of them. The P-51 Mustang was the only new development in airplane technology sup­plied by the United States after the onset of war.

The main production effort was, of course, directed toward fighter and bomber aircraft, although over 10,000 DC-3s, designated for the military as C-47s, were built, along with over

1,0 DC-4s (as C-54s). America needed every bit of transport potential it could muster during the years 1941-1945, including railroads as well as air carriers, and while the railroads enjoyed a resurgence of their former glory during these years, the air carriers came into their own for the first time. Aircrews flew everywhere, either as military or civilian to military or civilian airports, on domestic and overseas routes. Flying trans­oceanic routes became routine.

TWA, the only airline with land-based four – engine aircraft at the beginning of the war, set up a training center at government direction in New Mexico for instructing American and British pilots how to fly the four engine bombers, the B-24 and the B-17. (TWA had purchased the new Boeing Stratoliner, the 307, in 1940.) Pan American also contributed to four engine train­ing, sharing its pilots’ experience in long-range ocean and celestial navigation. (See Figure 17-1.)

Domestically, the airlines discovered after the onset of hostilities that they had only 165 air­planes to service their routes. The armed forces had commandeered the rest for military purposes. Travel space on the relatively few air carrier air­craft was allocated according to a government imposed “priority system”:

• Priority One was for persons traveling under the authority of the president.

• Priority Two got military pilots a seat.

• Priority Three was other military personnel or civilians on essential wartime business.

• Priority Four was military cargo.

The remaining seats, of which there were precious few, went to everyone else. The lexi­con of future airline travel was being established too. “Standbys” were those who hoped a priority above them would become a “no-show” so that a seat would become available. To be “bumped” was to have a higher priority passenger show up to take your seat.

American air carriers began to make money for the first time since 1934, and although the high load factor of domestic commercial opera­tions contributed to profitability, the main effort of the airlines during the war was as contract car­riers for the military.

The government allocated the airlines’ responsibility during the war in logical fashion. Northeast Airlines was given the North Atlantic route as far as Greenland and then Reykjavik, Iceland. Northwest was assigned to the Alaska route, Eastern to the Caribbean and Brazil. American flew to South America and, in the process, caused a radio range to be built along its route from the United States. TWA had its five Boeing 307s, the only four-engine land-based transoceanic aircraft available at the time, com­mandeered by the military and was given the transatlantic route to Egypt, the most significant long distance route of any airline except Pan

American. TWA set up its transcontinental divi­sion immediately at the beginning of the war, no doubt with an eye on the postwar period. At first, TWA flew to Africa via the South American route, and later, after Portugal granted landing rights, via the much shorter North Atlantic route by way of Prestwick, Scotland. TWA flew mili­tary supplies and equipment, like the other air­lines, but it was the preferred carrier for VIPs and, in fact, TWA carried President Roosevelt to the three wartime conferences with Churchill in Casablanca, Tehran, and Yalta.

It is not surprising that Pan American, as the only overseas carrier in existence before the war, was counted on as the major civilian arm of the military during the war. Yet, it is noteworthy that Pan American’s five divisions, the Alaskan, Pacific, North Atlantic, Caribbean, and Africa-Orient, flew half of all contract miles flown by all airlines for the U. S. mili­tary. In the process, Pan American began flying landplanes instead of the flying boats that had been its trademark during its early years, thus marking the end of the romantic and adven­turous era of the Pan American Clipper. The range and speed of the DC-4 and the airplanes to follow, the availability of the airports that Pan American and others had built around the
world, and the relative high maintenance costs and requirements of amphibious planes over landplanes sounded the death knell of the flying boat airliner, and Pan American never ordered another one.

Most of the flying done during World War II was not by the personnel of the commercial airlines but by the military forces created and trained by the government. The exigencies of war, shown once again to be a mighty moti­vating force, had caused a great technological leap forward in aircraft, engines, and systems. The feats of the non-combat pilots of the mili­tary lift branches, some 25,000 of them, during the four-year duration of the war testify to the great advance in air transportation over that short span of time. Feats only imagined a mere four years before were now commonplace. Distances had been covered and heights had been over­come for the first time in the airborne delivery of personnel and goods that would henceforth be considered routine. There was a confidence born not only of victory, but also of studied accomplishment.

Contrasted to the unspeakable devasta­tion visited on the landscapes and structures of Europe that had been created by the world’s most advanced civilization for the better part of two millennia, the homeland of the United States emerged from the war unscathed, and with the robust industrial complex that had supplied the weapons and material of war intact. America had:

• The pilots

• The planes

• The know-how

• The international presence on the ground

• The financial structure and stability to lead the world into the postwar realms of com­mercial aviation.

And the United States was ready to use all

of it.

Endnotes

1. Gann, Ernest K., Fate is the Hunter, Simon and Shuster, New York, NY, 1961.

2. Simon and Shuster, 1961.

Under the provisions of the FAA Reauthoriza­tion Act of 2012, the FAA has been directed to develop regulations to facilitate the widespread use of UAS within the United States and to pre­sent its plan to do so to Congress by the end of 2012. The FAA has announced that it will authorize at least six UAS test sites in the United States, and has created the Unmanned Aircraft Program Office (UAPO) to oversee the devel­opment of procedures, standards, and policies that will govern this activity. These sites will be operational sometime in 2013. The FAA says that it plans to fully integrate flights of UAVs into the NAS by September 30, 2015. But this conclu­sion presumes that issues of privacy and possible encroachments on 4th Amendment rights will have been settled by then. As of this writing, it appears that a battle may be looming over the general deployment of drones over the United States.

Investigation

The FAA conducts investigations of aircraft acci­dents subordinate to and in cooperation with the National Transportation Safety Board pursuant to an arrangement known as the Accident Investiga­tion Selectivity Program. This program is formal­ized in an agreement between the NTSB and the FAA and is designed to delineate responsibility in accident investigations and to avoid conflicts.2 Previously, separate investigations conducted by the NTSB and the FAA sometimes resulted in contrary findings and conclusions, and were the occasion for embarrassment to one or both agencies.

The types of accidents investigated by the FAA are normally limited to general aviation accidents or those that, by comparison to air­line accidents, are relatively limited in scope or impact in the aviation community. It should be noted that the objectives of an FAA investigation are different from those of the NTSB. In par­ticular, the FAA is looking for violations of the FARs, and it scrutinizes whether the accident was a result of deviations from standards adopted by the FAA. FAA investigations seek to determine whether FAA facilities were a factor and whether the FARs were adequate. The FAA also investi­gates aircraft incidents that do not result in acci­dents, such as “near misses” by passing aircraft or other instances when aviation safety may have been jeopardized. The FAA is also mandated by Congress to investigate all reports of violations of the FARs.