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By John Scott Hoff
Lawyer-Pilots Bar Association Journal
Dec-2002

            Exactly what is a “formation flight”? The FARs use the term in 14 CFR 91.111, but nowhere in the FARs do they define it.  Since the term is not self defining, it is legally ambiguous, and one must look outside of the FARs to determine exactly what the agency meant and what you can and cannot do (under certain circumstances) under the Regulations.

            A recent Opinion Order of the National Transportation Safety Board in a FAA Enforcement case released on January 11, 2002 dealt with the subject.  Collings & Schmidt, NTSB Order No. EA-4933, Doc. SE-15824 and SE-15825.  The well-reasoned analysis of the Board of the NTSB in their Order shed new light on what is factually and legally necessary to constitute a true “formation flight.”  Based on the fact-intensive circumstances of this interesting matter, the Board determined that “the same, way, the same day” did not a true “formation” make, and that there is a distinct difference between an “escort” flight and a formation.

            The matter stemmed from what had been intended by the parties involved to have been an “escort,” commemorative flight for a retiring Northwest Airlines B747-400 captain’s “fini” flight on July 12, 1998.  The captain, Fred Owen, was also a part-time volunteer pilot in a World War II B-24 aircraft owned and operated by the Collings Foundation.  This vintage warbird is the only existing flyable B-24J in the world.  It operates in World War II celebration and commemorative flights throughout the U.S.

Captain Owen, turning age 60, was to fly his final flight from Narita, Japan back to Minneapolis.  His good friend, fellow NWA captain and also volunteer B-24 pilot, Gordon Schmidt, thought it would be nice to honor his friend by trying to arrange for the B-24, whose flight characteristics were well known to both, to loosely escort him and honor as the B747 and Captain Owen flew the last few miles to his final landing at MSP.

            Captain Schmidt told Captain Owen before his trip to Japan “he'd look into trying arrange it.”  That was the extent of the pre-arrangement.  With this background, here is what happened after the appeal by the FAA to the NTSB following a ruling in favor of both the airmen aboard the B-24 and the NTSB ALJ:

OPINION AND ORDER

            The Administrator has appealed from the oral initial decision of Administrative Law Judge William R. Mullins issued on February 24, 2000, following an evidentiary hearing.  The law judge found no merit in the Administrator’s argument that respondents had violated 14 CFR 91.111(c), 91.119(b), and 91.13(a) of the Federal Aviation Regulations (“FAR,” 14 CFR Part 91), and he dismissed the two complaints.  We deny the appeal.

            Respondents Collings and Schmidt were pilot-in-command and second in command, respectively, of a B24 bomber on a flight in the vicinity of Minneapolis-St. Paul Airport on July 12, 1998.  The Collings Foundation owns and operates the World Ward II aircraft (and other vintage airplanes) and exhibits them throughout the country, giving people tours and taking them on short ride. Respondent Schmidt was a voluntary pilot for the Foundation, and was also a full time Northwest Airlines' (NWA) pilot.  This case stems from Mr. Schmidt’s proposal to use the B-24 to salute NWA Captain Alfred Owens, also a Collings Foundation volunteer pilot, on his last flight (namely, a Boeing 747 Part 121 flight from Japan) before retiring from NWA. Mr. Schmidt contacted Giles O’Keeffe, a NWA dispatcher, about the possibility of using the Collings Foundation B-24 to “escort” the 747 on the last few miles of its flight.  Mr. O’Keefe agreed to inquire about it with Minneapolis-St. Paul ATC and NWA management (Joint Exhibit 2, notes of Mr. O’Keeffe).  ATC told Mr. O’Keeffe that was such a flight was possible, but they needed more details.  He then put Mr. Schmidt in contact with the designated ATC personnel.  He, in turn, contacted NWA management and was told, in his words, that the airline would “buy the seats on the B-24 to guarantee the flight, and that [he] could give the seats away to whomever [he] chose.” Id. at 1 (NWA management did ask that media coverage be arranged, and it was.  It does not appear that NWA management had any further involvement in the arrangements).  NWA paid the Collings Foundation $ 2,500.  The Collings Foundation Invoice (Respondents’) Exhibit B) states that it is for a “donation for local celebration flight”.

The day of the flight, respondent Schmidt consulted with Mark Ambrosen, that day’s terminal radar control facility supervisor (see Joint Exhibits 11 and 12, a memo and a report by Mr. Ambrosen regarding the event).  The procedure agreed to was that the B-24 aircraft would intercept the NWA flight a few miles from the airport and follow it toward the runway.  ARC agreed that the two aircraft could use the airport emergency frequency to communicate with each other.  In the words of Mr. Ambrosen, the aircraft would “formulation fly ‘wing tip to wing tip’” down the runway (Joint Exhibit 11 at 1).  The 747 would perform a missed approach and come around and land.  The B-24 would break off and depart the area (for return to nearby airport from which it took off).

            Everything went according to plan.  Aside from a local cameraman, all the passengers (there are seven) were friends or friends of friends.  A few were NWA employees.  None paid any money for the flight. And, although the parties disagree somewhat, it appears that, while the Collings Foundation may have come close, it did not cover the cost of the flight.  No one at the time voiced any concerns about the plan or its execution being unsafe.  Indeed, in recognition of the fact that ATC was so integrally involved, the Administrator proposed to waive any sanctions, against the respondents.  Nevertheless, she argues, ATC involvement does not moot respondents’ failure to comply with regulations they should well know regarding formation flight and low flight.

            We might agree with the Administration regarding waiver of sanction being the appropriate approach here, see Administrator v. Gartner, NTSB Order No. EA-4495 (1196), were the charges to have been proven.  However, we do not reach the question because, based on our analysis of the record and the facts established, we must conclude that the Administrator did not prove either violation by a preponderance of evidence.  Thus, the issues of sanction and government estoppel brief by the parties do not come into play.  We address the charges in turn.

            1. Formation Flight.  A formation flight may not carry passengers for hire; both respondents testified they knew this fact.  Assuming for purposes of discussion that the B-24 was carrying passengers for hire, we must decide whether the two aircraft operated in formation.

            All parties agree that, while there is no regulatory definition of formation flight, there is a working definition in the AIM.  To summarize it, a “standard formation” (a nonstandard one clearly did not occur here) requires: 1) Prior arrangement between pilots; 2) operation as a single aircraft for navigation and position reporting (the testimony indicates that this is accomplished through only one aircraft using its transponder); 3) one aircraft designated the flight leader; and 4) maintenance of a standard distance between the aircraft that is no more than one mile laterally or longitudinally and a hundred feet vertically except for transitional maneuvers.

            There are too many holes in the facts to allow a conclusion that a preponderance of the evidence supports a formation flight finding here.  First, although Mr. Schmidt and Mr. Owens had a conversation, Mr. Owens, at least according to the unrebutted testimony, did not know in advance the details that Mr. Schmidt had worked out with ATCF.  While the administrator ignores the point, it is also clear the NWA 747 was not designated the lead aircraft, nor did the B-24 turn off its transportation so that there was only one signal for navigation and position reporting purposes.  Both aircraft communication independently with ATC, and both received their own clearances and directions.  Although the aircraft did fly in close proximity, this is as equally consistent with an escort flight as it is with a formation flight.  Further as the Administrator’s proffered radar data indicate, the aircraft were more than 100 feet vertically apart for most of the flight for most of the flight, which is inconsistent with the AIM definition of formation, and the aircraft were rarely next to each other.  The two aircraft did not maintain the same relative position near each other, as formation flight intends.  With these facts, it is not enough that respondent Schmidt may have once called the flight a formation in his airborne communication with ATC, or that others may have called it a “flight or two,” which apparently may also include escort flying.  Finally, in reaching this conclusion we have also taken into account the circumstance here that respondents were long-time pilots, that they knew flying formation with passengers was not permitted, and that there is no suggestion they would risk their licenses or compromise safety for this celebration flight, that they saw escorting the 747 in to the airport as something different, and lawful, and that ATC obviously did, too.  Accordingly, we agree with the rejection of the section 91.111(c) charge.

            2.         Low approach over a congested area when not necessary for takeoff or landing.  The law judge dismissed this charge, on finding that clearance to do so had been given. The Administrator does not appeal this finding, and we affirm the law judge.  The finding is supported by substantial evidence, including testimony of the Administrator's witness. Tr. at 139.

            3.         The careless allegation.  The Administrator makes clear in her appeal that this charge is residual to the formation flight operational violation.  Having dismissed the operational charges, this one must fail as well.

            ACCORDINGLY, IT IS ORDERED THAT:

            1.         The Administrator’s appeal is denied;

            2.         The Administrator’s motion to strike is granted; and

            3.         The initial decision is affirmed to the extent it is consistent with this opinion and order.