Letters to the Editor
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.
Joshua Miller, Student
University of North Dakota
Air Traffic Control Major/Communication Minor
Mr. Miller's letter raises two issues: a) Knowledge vs. mere
belief and, b) The law of libel (not "liable").
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
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
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 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
Robert J. Boser
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