Letters to the Editor

Subject: Response to ATC Cover-up
From: Joshua Miller josmille@plains.nodak.edu

To whom it may concern,

I have one question concerning your recent story of the air traffic controllers whom Robert J. Boser feels are trying to cover up their mistakes/errors. How does Robert J. Boser know they are trying to cover such things up? It is liable to say they are doing so.

I am a pilot and have gone all the way through my instrument ratings. I am also studying to be an air traffic controller. I believe that there are far more miscommunications between pilots and controllers than there are between controllers. I have also seen my fair share of pilots whom also can not follow specific instructions that have been given by atc.

I just visited the Denver tower and approach. Yes they are having some minor problems communicating between each other, but how does that automatically facilitate them as trying to cover up incidents?

I feel that before Robert J. Boser makes any statements he should think before committing liable.

Sincerely

Joshua Miller, Student
University of North Dakota
Air Traffic Control Major/Communication Minor

EDITOR'S REPLY:

Mr. Miller's letter raises two issues: a) Knowledge vs. mere belief and, b) The law of libel (not "liable").

KNOWLEDGE:

How do I know they tried to cover up?

In the case of the Ferrugia Report on KMGH (channel 7, ABC affiliate) in Denver, because I saw the on-camera interview of Larry Parrent, head of the ATC facility involved. He admitted the controller, who was responsible for the near disaster, did not report it to anyone else (in legal parlance, that is known as a "stipulation," i.e., no longer debatable).

I also saw the computer readout of the radar tape. It showed the Emery DC-8 converging with the United 737 at an approximate angle of 45 degrees. Everyone on those two planes was only seconds from death. They were within 1500 to 1700 ft. of each other before the Emery pilot saved the day by turning away from the assigned collision course, without authorization from the ATC controller. Larry Parrent claimed the controller saved the day by directing the Emery DC-8 to turn away from the 737, but the audio tape and the final FAA investigative report (which can be obtained through the Freedom of Information Act), proved that was not true.

Parrent also admitted no one would have ever known about those near collisions if John Ferrugia had not obtained the radar and audio tapes through the FOI. The FAA's own investigative report confirmed 3 out of 8 were attempted cover-ups.

As to my own near mid-air collision, while on approach to LAX, the editorial (ATC COVER-UP, on the editorial page of AirlineSafety.Com), is quite specific as to details. Failure to report a near mid-air collision is a cover-up, per se, because all ATC controllers know the following:

a) FAA regulations (which have the force of law) require controllers to report a near mid-air as soon as it occurs. The rules then require that controller to be removed from his position to receive additional training while the incident is investigated.

b) Radar and audio tapes, crucial evidence in any near mid-air investigation, are saved for only 15 days. If no one reports, those tapes will not be preserved. They are used again after 15 days and the evidence is destroyed forever (I refer to it as "automatic shredding"). Thus, failing to report is a way of destroying the evidence against you.

Some years ago, an airliner clipped trees on its landing approach and did minor damage to the plane. But, the pilots did not make a report. A few days later, the damage was discovered by an observant Second Officer, during his preflight. The FAA then investigated and ended up pulling the licenses of all three cockpit crewmembers, because they failed to report that dangerous incident. Had they made the required report, as soon as they blocked in, there would have been no punishment (so long as no willful misconduct was involved).

On February 28, 1997, an airliner touched down along the edge of runway 35R at DIA (Denver), leaving tracks in the dirt for almost 800 ft., and then took off again. Since it was during a time of heavy fog, it wasn't discovered until the next day when the tracks were observed during a routine runway inspection. The pilots failed to report that one too. If it is ever determined what plane it was, the pilots will probably lose their licenses also, because they failed to make the required report.

The point of the editorial was that failure to report, when the law requires reporting, constitutes willful misconduct. Valuable safety information is lost forever when controllers fail to report information that may prevent a future accident and great loss of life.

Heavy penalties are usually imposed on pilots and taxpayers who fail to make required reports, but, in most cases, when ATC controllers fail to report, there is no penalty. They simply get the same additional training they would have, had they reported as required. Why is that?

LIBEL:

Libel is the printed defamation of another. Truth is always a complete defense to a charge of libel. That has been true since the John Peter Zenger trial in 1735. It is one of the first cases to establish that juries could judge the law as well as the facts of the case. It also was one of the first examples of jury nullification. The jury found Zenger innocent even though the law said he had committed seditious libel simply by printing criticisms of Governor William Cosby. Prior to that trial, the law did not recognize truth as a defense against libel.

Thus, to be guilty of libel, the statements not only have to be false, they must also be directed at one or more named individuals. The First Amendment to the U.S. Constitution guarantees one cannot be prosecuted for libel by criticizing a government agency like the FAA.

All the facts given in that editorial are well documented. The individuals guilty of covering up (failing to report) were not named. The criticism was directed at the FAA for not penalizing willful misconduct among its own employees. There was no libel.

For a good example of how a near mid-air collision investigation should go (when they aren't able to cover it up), see My Big Deal

October, 1997

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