The Civil Aeronautics. Act of 1938. (McCarran-Lea Act)

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ince 1926, what little regulation the government had imposed on the aviation community had been administered by the Depart­ment of Commerce, specifically the Aeronautics Branch first and then the Bureau of Air Com­merce beginning in 1934. Even with these rules, regulation was decentralized. Jurisdictional dis­putes existed among the Post Office Department, the Interstate Commerce Commission, and the Bureau of Air Commerce.

In the meantime, flying had progressed from mail planes constructed of wood and wire with open cockpits to all-metal stress-skinned mono­planes flying in instrument conditions at speeds over three times that of early aircraft. In the middle 1930s, flying was still something of an adventure, for navigation facilities were primi­tive, instruments rudimentary, and weather prog­nostication an immature art form.

The TWA crash of the Fokker Trimo­tor in 1931 that killed Knute Rockne was the most notorious domestic airline crash until the death of Senator Bronson Cutting on May 6, 1935, aboard another TWA airplane, a DC-2, on a transcontinental flight from Los Ange­les to Newark. Cutting boarded the aircraft at Albuquerque, N. M., where it was reported that the plane’s radio transmitter was faulty. The
weather at Kansas City, which had been pre­dicted to be good, had deteriorated to a ceiling of 600 feet, 100 feet below minimums, by the time of the flight’s arrival in the area. Unable to communicate or to make the appropriate instru­ment approach, and with fuel low, the DC-2 crashed while attempting to fly visually at tree – top level.

Cutting was much beloved in the Senate. The congressional investigation of the crash centered on the Department of Commerce and its administration of aviation safety. It was determined that the Department had been lax in enforcing what few rules were in place. Then a controversy arose between the Department and TWA as to whether the 45-minute fuel reserve rule had even been properly published, or whether TWA was otherwise notified of the rule. There were questions of conflict of interest over the Department of Commerce investigating itself concerning the adequacy of existing rules and their enforcement. The Department was shown to have a propensity for laying blame on the pilot in command, a tendency, some may argue, that continues to this day. The press stirred the pot well, and the public reaction ranged from a loss of confidence in the system to outrage. The sense of the Congress was that the Department
of Commerce had failed to keep pace with the ongoing progress of commercial aviation.

Then, on October 7, 1935, a United Air­lines crash near Denver killed 12 passengers and crew. On April 7, 1936, another TWA DC-2 crashed in Pennsylvania with 12 more fatalities. On August 6, 1936, a Chicago & Southern Lock­heed went down in St. Louis with fatalities of all 8 aboard, and on February 10, 1937, a DC-3 flown by United Airlines crashed in San Fran­cisco and all 11 on board were lost. The winter of 1937, in fact, recorded 5 airline crashes with fatalities.

The airlines took it upon themselves to develop operating rules and regulations for the governance of their pilots, still a rather undis­ciplined lot, who looked upon flying as another form of freedom, not restriction. The manage­ment of the airlines understood that, in order to win the confidence of the public and take their place as a legitimate form of public transporta­tion that could compete with the railroads, order must be brought to the rather free-form society of aviation, up to that time primarily known for its airmail deliveries and stunt pilots.

In 1935, the airlines knew that someone had to control the growing number of airplanes ply­ing the skies, particularly where they converged for landing, like in Newark, New Jersey. Newark Airport had a departure or an arrival every 10 minutes. It was American Airlines that took the lead in designating a “boss,” someone in charge who could direct planes to maintain separation from each other. This was primarily accom­plished by assigning to each aircraft an altitude as they approached for landing. An agreement among six airlines created a company known as Air Traffic Control, Inc., and it was manned by employees of those companies.

The first facility was set up at Newark (see Figure 16-1) on December 1, 1935, followed by one in Chicago in April 1936, and another in Cleveland in June 1936. At first, the control­lers sought to track flights within 50 miles of the controlled airport, using blackboards, a large

FIGURE 16-1 The beginnings of air traffic control—Earl Ward (left) organized the Newark, New Jersey air traf­fic facility in the mid-1930s. Here he tracks a flight with the aid of a caliper as R. A. Eccles watches. The pointed markers representing aircraft were moved across the map as flights progressed.

Source: FAA.

table map, a telephone, and a Teletype. Flight plans were filed by departing pilots who would then keep in contact with their company’s radio operator, relaying their position at designated waypoints with their speed and altitude. This information would then be telephoned to the center guarding the destination airport, and the airplane’s position would be marked using brass weights that were moved along the table map to represent the airplane’s progress. When an air­craft approached one of the staffed centers, direc­tions to the incoming airplane would be issued by the controller to the airline’s radio operator by telephone, who would then radio the pilot of the incoming airplane to descend to a certain alti­tude, to hold at the beacon, or that he was cleared for the approach.

The authority of the controllers was debat­able, particularly among the more independent pilots who were used to doing things their own way and in their own time. It was at first consid­ered by the pilots that the controllers’ directions to them were advisory only, not mandatory, so that a direction to hold while another aircraft landed might or might not be honored. With air traffic control being taken over by the Com­merce Department’s Bureau of Lighthouses in 1936, procedures at last began to change. Disci­pline and self-control were becoming as much a requirement of good piloting technique as air­speed and altitude.

The regulations governing aircraft control adopted by the Commerce Department were actually not known to all airlines and pilots, since they were not required to be published in the Federal Register, a publication whose pur­pose it was to advise of the adoption of agency regulations. The Supreme Court case of Panama Refining Co. v. Ryan1 established the proposition that, in order to be binding, a regulation must be published in the Federal Register as notice to all concerned. The next year, 1937, saw the first codification of air traffic regulations promulgated by the federal government. They came to be known as the Civil Air Regulations. Not only did these first regulations establish rules governing the movement of airplanes within the designated airspace, they required, for the first time, that the airlines themselves draw up a detailed operations manual, approved by the government, contain­ing procedures for that airline regarding weather, minimum altitudes, approach, departure, and en route procedures. These Department of Com­merce regulations did not apply to airport control towers, however, which remained under local city control until just before the United States entered World War II, just as the airports did themselves.

ii Before take-off, a professional pilot is keen, anxious, but lest someone read his true feelings he is elaborately casual. The reason for this is that he is about to enter a new though famil­iar world. The process of entrance begins a short time before he leaves the ground and is completed the instant he is in the air. From that moment on, not only his body but his spirit and personality exist in a sepa­rate world known only to himself and his comrades, w

Ernest K. Gann, foreword to Island in the Sky

Standardization of aircraft procedures was only one aspect of the emerging airline industry that the airlines felt needed the steady hand of government control. Passenger traffic and air­mail carriage had tripled since Black-McKellar, but the airlines were still suffering financially and had, in fact, all lost money each and every year since 1934. The airlines formed their own group, the Air Transport Association, and one of its first acts was to drum up support for and draft a bill creating federal rate and route regulation designed to stabilize the airline industry. The air­line industry was demanding to be regulated.

Government involvement in the airline busi­ness since 1925 had been inconsistent. It had been both proactive and reactive, and both tenta­tive and heavy-handed. The growth of aviation in all respects caused the airline industry in 1938 to bear little resemblance to what it was in 1925.

As the reliance on airmail subsidy gradually diminished because of the growth of freight traf­fic and passenger counts, heightened concerns about safety naturally edged forward. Insuring safety was seen as a government obligation. Like the railroads before them, the airlines were also beginning to be viewed as a national domestic resource, if not a necessity. World political and military turmoil, particularly in the Far East and in Europe, caused the government increasingly to include the aviation sector in its plans for national defense.

As a result of the Airmail Act of 1934 (Black-McKellar), government regulation was broken down into three basic jurisdictional divi­sions: the Post Office Department controlled the bidding and award of postal contracts; the Interstate Commerce Commission controlled the rates that were paid for the carriage of mail, pas­sengers, and freight by the airline carriers; and the Bureau of Air Commerce within the Depart­ment of Commerce controlled the issuance and enforcement of safety regulations. This arrange­ment was cumbersome, divisive, and increas­ingly ineffective.

Never a supporter of the New Deal or Franklin D. Roosevelt, although he was a Demo­cratic senator from Nevada, Pat McCarran felt that the regulation of aviation should be central­ized. In 1935 he wrote a bill to place full control of the airline industry with the Interstate Com­merce Committee, in part to rectify what the Roosevelt Administration and the Black commit­tee had done by the 1934 Airmail Act. The 1934 Act was regarded as punitive to the airlines, and concentrated on limiting rates and eliminating excess profits. In the House, Clarence Lea, from California, introduced a bill to create an indepen­dent Bureau for Aviation within the Executive Branch. These moves were opposed by the Post Office Department and the Department of Com­merce, both of which would lose important con­trol, influence, and funding under centralization.

Vigorous debate roiled the Senate and House as members sought to ensure that the airlines and routes that served their states and districts would not be adversely affected and that any advantages to their constituents would not be lost. Neither bill received necessary support for passage because of these turf battles until 1938, when both bills were passed and then sent to joint committee conferences for the resolution of differences, from which emerged the Civil Aero­nautics Act of 1938, the McCarran-Lea Act. The statute passed by Congress on June 23, 1938 pro­vided a uniform basis of regulation for aviation in the United States and created three indepen­dent agencies to discharge the statute’s mandate: the Civil Aeronautics Authority, the Administra­tor of Aviation, and the Air Safety Board.

“Civilian aviation,” wrote President Roos­evelt on January 24, 1939, “is clearly recognized as the back log of national defense in the Civil Aeronautics Act which set up the effective machinery for a comprehensive national policy with respect to the air.”

“Underlying the statute is the principle that the country’s welfare in time of peace and its safety in time of war rest upon the existence of a stabi­lized aircraft production—an economically and technically sound air transportation system, both domestic and overseas—an adequate supply of well trained civilian pilots and ground personnel.” “This new national policy set up by the Con­gress views American aviation as a special prob­lem requiring special treatment. .. . One fact which stands out is that hardly another civil activity of our people bears such a direct and intimate relation to the national security as does civil aviation.”

Problems quickly arose with the new statu­tory setup. The jurisdiction and authority of the three agencies created by the Act (the Civil Aero­nautics Authority, the Administrator of Aviation, and the Air Safety Board) overlapped, causing friction and inefficiencies in meeting the man­dates of the Act. The president shortly ordered an investigation into these problems. Within a period of two years from its passage, Congress enacted the 1940 Amendment to the Civil Aeronautics Act, which dissolved the three agencies origi­nally created by the Act and redistributed their functions between two new agencies that would administer the Act for the next 20 years.