ABA Forum on Air & Space Law Annual Update Meeting

January 29, 2010 at 4:20 pm | Posted in Aviation Law Current Event, Space Law Current Events, Student Blogger | Leave a comment

by Nicholas Welly, J.D. Candidate, University of Mississippi School of Law & Law Student Liasojn, ABA Forum on Air & Space Law

The morning’s events commenced with a Keynote address from Marion Blakely, the President and CEO of the Aerospace Industries Association. Ms. Blakely provided a brief review of industry successes in 2009 and forecast industry strengths and weaknesses for 2010. She then shifted her focus to the issue of security, proposing several solutions to the security challenges facing international aviation, including (1) a push for internationally standardized screening processes, (2) utilizing the SAFETY Act as a mechanism to drive industry innovation while protecting innovators from lawsuits, (3) revamping the U.S. trade regulations to facilitate export of new security technologies, and (4) supporting NextGen as a comprehensive solution to current air traffic management and international aviation security challenges.

Mary U. Walsh, Assistant Chief Counsel for Legislation, Federal Aviation Administration moderated the morning’s first panel: “Washington Legislative Report.” Panelists included Gael Sullivan, a Democratic Professional Staff Member from the Senate Commerce, Science, and Transportation Committee; Holly Woodruff, Minority Staff Director and Counsel-Aviation on the House Transportation and Infrastructure Committee; Todd Hauptli, Senior Executive Vice President for the American Association of Airport Executives; Nancy Van Duyne, Vice President of Congressional Affairs at Continental Airlines; David Traynham, Director of Commercial Programs for Boeing; and James Conneely, an FAA Detailee to the Senate Commerce, Science, and Transportation Committee. The panelists discussed several issues, including Congressional funding for aviation infrastructure, focusing primarily on the Next Generation Air Transportation System (NextGen), FAA reauthorization, and a 2010 industry outlook.

The morning concluded with the panel “Aviation Regulation: Burdens vs. Benefits,” moderated by Mark Gerchick of Gerchick, Murphy and Associates. Panelists included the Honorable Robert S. Rivkin, General Counsel for U.S. Department of Transportation; J. David Grizzle, Chief Counsel for the Federal Aviation Administration; Monica Hargrove-Kemp, General Counsel at ACI-NA; Ray Neidl, an Independent Airline Analyst (formerly, of Calyon Securities); and Doug Mullen, Senior Attorney at the Air Transport Association. The panelists noted the massive cultural transformation that will accompany the transition to NextGen within the FAA and the aviation industry as a whole. They also noted the cooperative role that airports can play in the development of new regulations and technologies, environmental planning, and screening procedures. Panelists discussed the financial challenges facing the airlines, especially with respect to raising capital. They further noted the DOT’s interest in disclosure regulation, recognizing a need to protect passengers against unfair practices. The panel discussed passenger rights rules and the imposition of strict time limits on air carriers, noting several exceptions to the DOT rule designed to accommodate situations like weather and congestion. The panelists described aviation as a mass transit system which must balance the costs imposed by passenger protection regimes with the financial effects on customer bases and infrastructure. Panelists also debated the role of the DOT in enforcement and the value of self-regulation practices in the industry, noting the costs and benefits to carriers associated with implementing crew resource management rules regarding pilot rest. Finally, panelists briefly discussed congestion management rule making and the issue of slot auctions at major airports.

Lori Garver, the Deputy Administrator for NASA provided the luncheon keynote address. Deputy Administrator Garver highlighted the historical circumstances leading to the passage of the NASA Act of 1958, and commemorated space law pioneers, including Dr. Eileen Galloway. She then noted that, since its inception, NASA has been a critical player in preventing a conflict in outer space, an achievement that ought not be taken for granted. Deputy Administrator Garver further noted the ISS has become the hallmark of international cooperation in space in furtherance of one of NASA’s statutory mandates. She then discussed the current transition to commercial space activities, noting that NASA’s utilization of the Commercial Orbital Transportation System (COTS), its reliance on commercial leases of microgravity transportation systems for astronaut training, and the development of commercial space tourism technologies stands in stark contrast to the Cold War policies that spawned NASA. Deputy Administrator Garver also noted that NASA continues to be a leader in flight safety and engineering, and is placing new emphasis on “green aviation” technologies. She highlighted the Administration’s role in the development of NextGen, and concluded by noting that NASA will continue to utilize its budget to fulfill its statutory charges in new and creative ways.

The afternoon line-up began with “Spotlight On International Affairs and Airline Alliances,” moderated by Charles Hunnicutt, a Partner at Troutman Sanders LLP. Panelists included the Honorable Susan Kurland, Assistant Secretary for Aviation and International Affairs at the U.S. Department of Transportation; Nancy D. LoBue, Acting Assistant Administrator for Aviation Policy, Planning & Environment at the Federal Aviation Administration; Rosalind K. Ellingsworth, a Consultant to labor organizations and airlines; David Heffernan, a Partner at WilmerHale; and Paul H. DeLaney III, Senior Attorney for Legal, Trade, and International Affairs at FedEx Express. The panel addressed major developments in 2009, noting the “second stage” negotiations between the U.S. and EU; agreements to expand the Star, Skyteam, and Oneworld alliances; bilateral talks with Japan aimed at Open Skies; climate talks at ICAO; and first steps toward implementation of the EU’s emissions trading scheme. Panelists debated the strengths and weaknesses of outsourcing in the aviation industry, especially with respect to maintenance, noting the pros and cons of trade restrictions in this area. They also reviewed the proposed slot auction at JFK, but could not comment on specifics of the transaction. The panelists discussed several approaches to reducing trade deficits and the ultimate impact on aviation.

The Conference space panel, “Satellite Navigation and the Emerging Space Law” followed next, chaired by Pamela Meredith, Co-Chair of the Space Law Practice Group at Zuckert Scoutt & Rasenberger, L.L.P. Panelists included Prof. Joanne Irene Gabrynowicz, Director of the National Center for Remote Sensing, Air and Space Law at The University of Mississippi School of Law; George Kinsey, Senior Attorney for Aquisition and Commercial Law at the Federal Aviation Administration; Shawn Cheadle, Associate General Counsel for Lockheed Martin Space Systems; and Naveen Rao, an Associate with the Government Regulation practice group at Jones Day. The panel discussed the historical advent of the Global Positioning System, several foreign satellite navigation systems, a technical description of the GPS constellation, the FAA’s role in managing satellite navigation systems and contracts (including GPS augmentation systems), and several GPS applications pertinent to the aviation industry. The panel then discussed the GPS-III contract recently awarded to Lockheed Martin and liability issues associated with government satellite contracts. The panelists also discussed emerging legal issues in the arena of GPS-enabled user equipment, including privacy issues and contract enforceability. Finally, the panelists highlighted challenges arising from satellite development and design, including the issue of counterfeit parts.

Hogan and Hartson Partner Thad T. Dameris moderated the Conference’s final panel, “Aviation Claims–Litigation Developments In 2009.” Panelists included Sebastien Saillard, Head of the Aviation Legal & Claims Department at Allianz Global Corporate & Specialty (AGCS); Andrew Harakas, a Partner at Clyde and Co.; Jessica McCausland, a Trial Attorney with the U.S. Department of Justice Aviation and Admiralty Litigation Section; and James Healy-Pratt, a Partner at Stewarts Law LLP. The doctrine of Forum Non Conveniens (FNC) was the prevailing topic of the day’s final panel. The panelists introduced the doctrine and explained the basis for its invocation, following quickly with a debate about the pros and cons of pursuing claims in the U.S. which arise out of international aviation accidents, noting the sometimes unreliable accident investigation process in foreign countries. The panelists also discussed the expectations and outcomes generally associated with invoking the doctrine, and described recent trends in U.S. courts regarding FNC motions. The panelists further highlighted the role of tort reform in making FNC claims available to defendants, and highlighted several hot venues for plaintiffs both domestically and internationally. Moving away from FNC, the panelists discussed some of the current challenges in aviation litigation arising from the financial crisis, as well as the relative value of wrongful death cases under various legal systems. The panel concluded with a brief discussion about EU data privacy laws, the litigation challenges the present in the U.S., and several solutions to overcome these hurdles.