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Archives for February 2014

Sorry, folks, we lost. RRC rejects all complaints against CAA charges

Fellow aviators

It is with a profound sense of disappointment that I convey the result of the Regulations Review Committee to my submission and those from AOPA, NZALPA, Aviation NZ and Mr Blair Boyle, regarding the CAA Fees, Charges and Levies.

In essence, our submissions were unsuccessful and we have lost.

We went into this battle knowing full well that we had a formidable adversary – not just the CAA, but also the Treasury and the Office of the Auditor General.

In considering our submissions, the Regulations Review Committee sought further advice from the Treasury and the OAG.

“The Treasury did not find any aspect of the CAA’s method of fee setting to be
inconsistent with its guidelines. The Treasury also considered that the approach taken by the CAA was in keeping with the intent of the legislation; if Parliament had intended to limit fees to direct costs, it would have made this clear in the legislation. The Treasury considers that fees can be set at a level to cover those costs of the CAA and the convener that are attributable to performing the functions set out in Part 2A. This would allow the inclusion of overhead costs and the cost of running of the medical unit.

The RRC asked the Office of the Auditor General whether the fee-setting arrangements of the CAA were consistent with its guide, Charging Fees for Public Sector Goods and Services. They heard that the OAG had no concerns about the process the CAA followed to review its funding arrangements, calculate the costs of providing its services, and set the fees and charges. The OAG also noted that the CAA has committed itself to a three-yearly review of its fees, charges, and levies, in accordance with OAG guidance. The OAG said it considers that the CAA can recover the full costs of the medical unit through fees and charges, as it does through the regulations.

The OAG suggested, however, that the CAA could improve its description of the medical certificate application fee and what it covers, to minimise the potential for
misunderstanding.”

The conclusion of the RRC

“While we understand that the degree of increase in some of the fees discussed in this report was large, both the OAG and Treasury assured us that the CAA followed their respective guidelines for fee setting. Both the Treasury and the OAG considered that the medical certificate application fee properly reflected, ‘costs directly associated with’ the functions under Part 2A of the Act. We accept their assurances and reasoning. In addition, we consider that several of the complaints in some respects reflect dissatisfaction with underlying policy, rather than the integrity of the regulations and the process by which they were made.

We therefore find that Civil Aviation Charges Regulations (No 2) 1991 Amendment Regulations 2012 are in accordance with the general objects and intentions of the statute under which they are made, do not trespass unduly on personal rights and liberties, do not make unusual or unexpected use of powers conferred by statute, do not unduly make rights dependent on administrative decisions not subject to review, do not contain matters more appropriate for parliamentary enactment, and do not call for elucidation for any other reason concerning their form or purport. We consider that the CAA did not fail to comply with any particular notice and consultation procedures prescribed by statute. Although we consider that the consultation here was adequate and appropriate, consideration could be given to using accepted, modern consultation methods.”

Where to from here?

Those who know me will be aware that I have a “glass half full” philosophy. I am firmly of the belief that defeat or failure may test you, but it need not stop you. I am sorry that we have failed in this instance. What really matters is that we get back up and try again. Being defeated is a temporary condition. Giving up is what makes it permanent.

Loss and defeat are, to my mind, just mile-markers on the road to success. It now serves to strengthen my resolve and while the easiest and the most logical thing to do is to quit (and that is what many may do), I have never been nor do I intend to become a quitter.

As my colleague Brian Mackie has so rightly pointed out, though this particular battle has been lost, much has been gained –

♦ The GA Advocacy Group has come into existence

♦ An alternative means of exchanging user opinion and taking action was created by way of our now extensive email database, making it possible to quickly promulgate information and carry out surveys

♦ We are a lot wiser about how the system works than perhaps we were a year ago

Although this case has been lost due to a failure to prove fault in the interpretation of the legislation, the consequences of Treasury and OAG directives and guidelines will emerge over time.

Everyone involved in GA will have already noticed that the economic effects of the legislation are beginning to show. We believe they will be broadly in line with predictions of a decline in PPL holders in favour of RPL or microlight licence holders, with PPL becoming just an intermediate stage to a professional flying career. There will be a continuation of the already visible change in the profile of NZ recreational flying.

In conclusion, I would like to thank each and every one of you for the support that you extended to me in my efforts to challenge this legislation, particularly the 620 pilots who joined with me as co-submitters. It has been a very humbling experience to have that support and I just wish that I could have delivered you some better news.

Des

“I only know one enemy greater than Adolf Hitler during the war and that was the British Treasury”.

– Air Vice-Marshal D C T Bennett, founder of the Pathfinders, memoirs, 1958

The AIP: Free safety information, or just another money-maker?

Elsewhere, the EFB is ubiquitous. United Airlines aircrew at work with their iPads

Elsewhere, the EFB is ubiquitous. United Airlines aircrew at work with their iPads

EFBNZ was a priceless asset for the New Zealand general aviator. So priceless, in fact, that it was free. For those unfamiliar with EFBNZ, it was an app written by George Richards and gifted to us. It provided all the AIP on a mobile device, with easy updates – and it removed around a kilo of hard-to-handle, ring-bound paperwork from the W and B calculation.

But as in everything else, there are a few passages rectale in GA whose mission is to spoil it for the others. When George decided to offset his not inconsiderable costs by adding a few pop-up ads to EFBNZ, up rose the Richardheads to loudly complain.

These nitwits harmed all their flying comrades, because an exasperated George quite rightly offered everyone a digital two-fingered salute – and withdrew his app.

For those who had kept EFBNZ on their devices, all was not yet lost. They could still update their digital AIP.

EFBNZ - it provided an easy and free method of storing the AIP on a mobile device

EFBNZ – it provided an easy and free method of storing the AIP on a mobile device

Until, that is, somebody at the CAA decided to destroy EFBNZ and any kind of open-source software designed to automate AIP information downloads. The EFBNZ app drew its data from www.aip.net.nz, and part of the package included an automatic download of updates. Anyone familiar with the clunky AIP website knows that manual downloads from it are incredibly labour-intensive and the database was probably designed by a roomful of chimps with special needs, originally tasked with recreating Beethoven’s Fifth Symphony.

Suddenly, EFBNZ became unusable.

But it gets worse.

Christoph Berthoud had written a macro called FetchAIP to automate AIP downloads. You could retrieve the entire AIP to your PC with only a few keystrokes, and port it over to a mobile device.

But in late 2013, Christoph discovered that his macro – just like EFBNZ – had crashed.

Why?

And then the CAA sabotaged it

And then the CAA sabotaged it

Someone at CAA, possibly working in collusion with Airways, had introduced an element to the AIP website that meant you had to read terms and conditions and manually click an “I agree” button. This is what had wrecked EFBNZ.

AIP information has always been freely available online to aviators, but it was now obvious that someone at Airways or CAA had spotted an opportunity to turn free information into a revenue generator.

When Christoph emailed Airways and explained that his macro breached no copyright law because it was only a “switch” that facilitated downloads and made no use of data, he had to send another two more emails just to get a response (which will not surprise veterans hardened in the dark arts of dealing with the CAA and Airways).

Trent Clarke, Manager Aeronautical Information Management at Airways, displayed a stunning ignorance of software and an equal level of arrogance when he told Christoph:

I have had discussions with our Legal advisors, and we cannot comment with regard to the lawfulness of your activity and suggest that you obtain legal advice in this regard.

You should also approach the CAA regarding the appropriateness of replacing the CAA conditions of use with your suggested “in-app” disclaimer/conditions of use.

Finally, there is the issue of liability. Many of those who get involved in data distribution believe that a disclaimer is sufficient to cover their exposure, but it often is not. Even with a prominent disclaimer, you should seek legal advice on your need for 3rd Party Public Liability insurance. It is common in NZ and Australia for those involved in disseminating aeronautical information to carry suitable insurance. CAA may ask this of you before they consider giving you the go ahead to access their site. In the absence of insurance, if your product was to fail or provide erroneous or out-of-date information, then the user would look beyond you to the CAA, and if your app had circumvented their conditions of use, it may be problematic.

In brief, we can provide access to source files for redistribution under a commercial agreement, but if you want to discuss a way to interface with the CAA site, then you will need to contact the CAA.

Christoph is an author of open-source software and he is therefore prohibited from making money from it. He is a volunteer, working for nothing, for the benefit of aviators.

When Trent advised Christoph that third party liability was recommended, he obviously hadn’t read the CAA’s terms and conditions of access to AIP, where the CAA (and by association, Airways) goes to great lengths to disclaim any responsibility or liability. We must also note that much of the content of AIP (and in particular, the airfield data) is supplied, and not written by either Airways or the CAA.

What the CAA and Airways have done, in destroying EFBNZ and disrupting the FetchAIP macro, goes against the ethics of aviation safety which the CAA constantly lectures us about. It is a clear case of an authority needlessly and recklessly obstructing access to information by users of free, open-source software, at the expense of safety, in order to promote a source of revenue by licensing commercial operators to sell an AIP package. This motive is evident in a letter from Trent Clarke to GAA:

We have received feedback consistent with yours that our customers want to access AIP data using tablets (electronic means), and over the past couple of months we have been working hard to make this happen. To support this and enable the app market we have licensed data to four app providers, including three for AIP content (two of which have signalled they intend to go live in January).

A commercial developer is much more likely to build a product if the licensor can also be persuaded to make it as difficult as possible for anyone else to access the data.

I raised this issue with CAA Director Graeme Harris early in February:

GAA is now looking into Airways’ destruction of the ability to easily download AIP information to an EFB for general aviators. In this respect, I ask the Director: which of these pieces of information is more important?

– Notams

– the AIP

– Met information

I know you will correctly answer that they all have equal importance in safe operations.

I will then ask:

Why are Notams free, but MetFlight is not?

and

Why, when the AIP must be made freely available, has Airways introduced a barrier which destroys everyone’s ability to download current information to their androids or iPads?

The macros that Airways has rendered useless do not of themselves copy or use the information. They merely facilitate its downloading to a device. Airways is on shaky ground with the defence it has so far offered, and we will seek to prove that the introduction of the sign-in-and-acceptance-of-terms barrier endangers flight safety and is intended to increase revenue.

The easy and free accessibility to AIP information to be downloaded on general aviators’ devices should never be interfered with, or be subject to whatever Airways personnel deem to be desirable in the interests of third party liability insurers or its chosen professional suppliers of Apps. Airways has introduced a commercial element to the free access to information that is totally unacceptable. I hope that you will look into this without delay, have a word with whoever created this problem and require them to restore the status quo ante.

Mr Harris replied, indicating that he had not the faintest idea what I was talking about.

“It would help if you could let me know exactly what the problem is with respect to AIP access is and what Airways response was when you raised the problem with them.”

So I sent him chapter and verse of the email correspondence between Christoph and Airways, and my correspondence with Airways as well.

Printing the AIP and its updates is obsolete, costly, weighty, wasteful and unnecessary. Rather than seeking to exploit and commercialise this vital safety information, the CAA and Airways have a duty to encourage distribution via free software to any general aviator’s Electronic Flight Bag – or at least not impede it.

They need not worry overmuch about litigation, because as part of the sabotage operation, the CAA inserted the following caveats which every user must agree to:

CAA accepts no liability for any direct or indirect loss or damage of any kind arising from use of Material. The Material should not be regarded as legal advice. The CAA may change the content, format, structure or functionality of the Material on this site without notice. You must ensure that You are using current information, and must consult the latest NOTAM.

And…

This site may contain statements of persons other than the CAA. Unless otherwise stated, the CAA does not endorse the accuracy or reliability of any such material. Reliance upon any such material shall be at Your own risk.

And…

Where the limitations on liability as set out above do not apply or are unenforceable and to the extent permitted by law, the CAA shall have no liability for loss, damage or delay (including consequential, financial or economic loss, and claims for indemnity or contribution) suffered or incurred by You, whether such liability arises in contract or in tort or in any way howsoever, in respect of or arising out of or in any way connected with the provision of the Material

And…

Nothing in this clause shall be construed as any indication or acceptance by the CAA of any liability in any respect for any amount.

And…

In respect of any third party claim, action, demand or proceeding against the CAA, You agree to indemnify the CAA to the extent that such claim, action, demand or proceeding arises out of any wrongful act, neglect or default by You.

Commercial development of integrated solutions for aviators, replacing the rag-bag and disconnected information provided by Airways and the CAA, is to be encouraged. But not if it involves hindering easy and free access for those who do not need a sophisticated product, or for the authors of free, open-source solutions.

Footnote: Compare our money-grubbing CAA and Airways with how they do it in the United States. The US equivalent to our CAA Rules and AIP is available as one downloadable pdf file in E reader format for all platforms and devices for a paltry $11.95 US.

http://www.avweb.com/avwebBooks_farAIM2014.5?ET=avweb:e2737:452324a:&st=email&kw=newsletter-FARAIM2014-0.5-TextOnly

The CFZ network: How GA won, but the CAA denies us a safer place to fly until 2016

Tucked away on page 12 of the latest CAA Vector magazine is a small but significant article – the result of submissions to the Radio Frequency Consultation. It quietly announces the CAA’s “plan” for a national system of common frequencies.

A problem with flying is that...

A problem with flying is that…

This article shows, from its brevity and its position in the magazine, that either the CAA’s Vector editor has no news sense or that the CAA would prefer to camouflage the reality:

♦ That – for approaching two decades – the CAA has been in denial about a fundamental aspect of general aviation safety: The need to protect low-level aviators against the risk of not hearing each other because pilots are using different frequencies while flying in the same area.

♦ And how, by the application of a force of opinion – much of it from outside what the CAA currently recognises as officially received wisdom from the established aviation organisations – plus a hefty dose of common sense, we aviators dragged the Civil Aviation Authority to recognise what actually happens in real life, in the air.

♦ All of us know that the idiocy of a 119.1 general frequency has caused a number of needless incidents, injuries, accidents and deaths.

♦ We know that many of them could have been avoided if the CAA had possessed the wits to early recognise the risks inherent in 119.1 and fulfilled its duty of care by dealing with it.

We now know that the New Zealand Civil Aviation Authority seems slightly inclined to make our skies safer in this respect…

♦ but only when it suits those who spend their working lives in, and derive their power from, CAA in Asteron House.

... the people who think they can avoid air accidents...

…the people on the ground who think they can avoid air accidents…

By the time the CAA introduces a network of Common Frequency Zones in November 2016, nearly two decades will have passed since the idea was first suggested by a former CAA director. This is almost the equivalent of one generation of aviators.

Bear in mind that what is stated in the Vector article is not a promise. It is just an unsubstantiated claim from unidentified and unaccountable people whose mindset was always fixed on opposing any idea offered by their customers and whose shamefully poor performance and sometimes disingenuous conduct is revealed again later in this article.

None of this can be denied by the CAA, which until late in 2013 doggedly pursued an alternative FISCOM solution suggested by Mike Haines, Manager Aeronautical Services. He was opposed by the vast majority of users and his peculiar notion could never have been provided by existing technology nor executed by Airways staff. We asked Airways about this when The Haines Solution was raised, and they could not explain how it could work – or who might pay for it.

...live in offices, cannot fly an aeroplane and shouldn't be put in charge of a pocket calculator

…live in offices, cannot fly an aeroplane and shouldn’t be put in charge of a pocket calculator

To illustrate the difficulty in achieving change within our CAA bureaucracy (particularly as this subject has such important air safety implications) it is worthwhile to look back at the timeline of Massey University School of Aviation’s involvement. Of particular interest is that in 1998, the CAA, under a different Director’s watch, prepared a discussion document suggesting a future development of a national CFZ network.

2010

♦ Following the establishment of the Taranaki CFZ in May, Massey tabled the idea of establishing CFZs nationwide. This was a well thought out proposal to create a series of CFZs throughout NZ to overcome the serious flight safety problem of having aircraft operating in close vicinity to each other, but listening on different radio frequencies.

♦ Emailed CAA in August to submit the idea.

♦ Received very positive feedback from CAA Aeronautical Services Officer and Manager Aeronautical Services. CAA supplied a discussion document it had created in December 1998 suggesting the future development of a national CFZ network.

♦ From August, began working with local users in the lower North Island to produce a CFZ network in the region.

♦ Concept was tabled at Palmerston North Airport User Group, Feilding Aerodrome User Group, where it was met with full support.

♦ Discussed with RNZAF, with full support.

♦ Discussed with Airways, which had no objections.

2011

♦ January: a formal request for establishment of CFZs with draft proposal was sent to the CAA.

♦ April (3 months later): received formal reply from CAA Field Safety Advisor (on behalf of Aeronautical Unit) indicating it had been “put on the backburner”.

♦ June: received formal reply from CAA Aeronautical Services Officer, saying the proposal had been put on hold indefinitely as it did not attract a high priority at the CAA.

♦ November: Safety Management System (SMS) was introduced at Massey. Through this system, the hazard and risk assessment of the lack of common frequencies and increased traffic flow in uncontrolled airspace was deemed to be unacceptable and the project was revived.

2012

♦ During March, a paper was completed by Massey outlining the case to establish a “National CFZ Network”.

♦ This document was presented to RAeS, with full support.

♦ Tabled at AIA Training Division, which agreed it was a good idea.

♦ Discussed amongst Air New Zealand Aviation Institute FTO Partners, with full support.

♦ Article published in the August edition of Pacific Wings.

♦ Presented at CAA Flight Examiner seminar in August, with 100% support from the group.

♦ Communicated to Len Wicks Regional Officer Air Traffic Management ICAO Thailand. He says: “Regional Office fully supports the concept”.

♦ RNZAC Flight Instructor Council supports a full review of the radio frequencies used around NZ and would like to be involved with any ongoing discussion on this matter.

♦ Early November: Meeting held at Massey with CAA to discuss CFZ proposal and the industry support gained.

CAA indicated it was in discussions with Airways around the use of FISCOM as an alternative means to meet the uncontrolled airspace radio issues.
Meeting outcome: A response will be given to Massey from CAA in 2 – 3 weeks with industry consultation expected before the end of the year, with a suggested implementation by March / April 2013.

♦ Late November: Massey checks with CAA on progress. CAA indicates the following timeframe:

Dec 2012, finalise Airways provision or a national flight information service and FISCOM coverage. Dec 2012 / Jan 2013, Discussion document issued to industry in regard to radio frequency, use of FISCOM and review of current common frequency zones. End Feb 2013, consultation complete. March 2013, Final decision made on radio frequency network. April 2013, Finalisation so any charting amendments can be made for Nov 2013.

♦ Mid December: Massey checks with CAA on progress.

CAA responds to say several meetings are under way with Airways and AOPA and things are coming together. Rather than rush it out before Christmas, they would rather address it early 2013. A revised timeframe should be given by the end of the week and a meeting with Massey in mid-January.

2013

♦ Late January: Massey checks with CAA on progress.

CAA responds to say higher priority work and one staff member resigning has resulted in a reprioritising of tasks. “You will see we ran an article on ‘the right frequency’ in the Jan/Feb CAA Vector”. CAA planning on having a document out for comment by end of February at the latest. Draft for Massey and AOPA by end of next week.

The proposal had obviously stalled and GAA assisted in pushing it to the forefront again, with the result that the CAA then produced its own proposal, involving an “upgraded or enhanced” FISCOM service.

Most of the major GA pilot organisations were proactive in promulgating the two proposals to their memberships and a number of individual submissions were also made. A survey of opinions that we carried out via email and website produced very definite preferences for Massey’s CFZ proposal.

Our GAA submission extended to about 20 pages. Included were some pertinent comments from the respondents to our survey, which gave a clear indication of the importance that pilots attached to the air safety implications arising from the present radio frequency confusion. In its report of submissions on the CAA website, the authority slyly stated that the GAA submission contained opinions that made its submission fall less than unanimous. That is because we accept all opinions and treat them impartially. The overwhelming majority of GAA contributors wanted a system of common frequency zones.

It is disappointing to now discover that the CAA, whilst at long last accepting the preference for CFZs, has said that “planning of the zones will be done in conjunction with the Airspace Review, currently under way”. Target date for implementation of the network of CFZs is not until November 2016.

You may well wonder what will happen if, during the next almost three years of delay imposed by the CAA, we have further airspace incidents due to having aircraft operating in close proximity on different frequencies. The CAA’s lethargy in addressing such a serious air safety issue over more than 15 years is unacceptable.

The performance of the CAA over the CFZ issue reveals a dereliction of duty for which Michael Haines and the Director Graeme Harris cannot escape responsibility. The Director, in particular, is answerable for the information that his staff fed to Massey during its campaign.

It is hard to understand why the CAA chooses to delay implementation of this plan, even on a region-by-region basis, rather than take the risk of twisting in the wind in the event of another easily avoidable disaster. There is no reason why a staged implementation of a national CFZ system cannot be carried out. This safety measure is not (and never was) related to an airspace review. The need for a CFZ network predates the airspace review by 16 years and lumping it to an airspace review is clearly designed to disguise the inexplicable prejudice of CAA personnel and their stubborn resistance in the face of overwhelming opposition.

There is no reason why, the CAA having finally accepted the argument for a national CFZ network, we should wait for three years. This system can be implemented in stages with the most urgent areas being given priority.

Look at the CAA Mission Statement, which pledges “To manage safety and security risks in New Zealand civil aviation through the implementation of efficient oversight, regulatory, and promotional action” and you can only conclude that the CAA has dropped the ball on this issue and failed on all three counts.