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EAA Appeals For Release Of Fairchild 45 Data


February 28, 2007 — Should a former airplane manufacturer that for all intents and purposes no longer exists be allowed to deny the release of aircraft data to a private restorer for an airplane built more than 70 years ago? Attorneys from the EAA Legal Advisory Council were in Federal Appeals Court in Washington, D.C., in early February arguing that very point on behalf of Brent Taylor (EAA 576868). Taylor, who is also Executive Director of the Antique Airplane Association, is seeking access to the original data for a Fairchild 45, which was designed and built in the late 1930s.

Taylor?s attempt to obtain the plans through the Freedom of Information Act (FOIA) was denied in Federal District Court by a summary judgment made before the discovery phase. EAA Legal Advisory Council attorney Michael Pangia, arguing on behalf of Taylor, asked the appeals court to refer the case back to the district court for an evidentiary hearing which, if granted, could pave the way for release of aircraft data needed the preservation of aviation heritage.

The Fairchild Corporation, formed in 1990, claims that it is the legitimate owner of the type certificate, although its name does not appear in any of the FAA records. ?FAA regulations require that transfers of aircraft type certificates, like transfers of aircraft, must be recorded in FAA records,? Pangia said. ?The Fairchild Corporation appears nowhere in the FAA records, as required by regulation. The FAA, siding with this new company, took the position in court that compliance to the regulation by this company does not matter, offering no legal reason for that position.?

Pangia argued that the original company, the Fairchild Engine and Airplane Corporation, released the Fairchild 45 data to the public in 1955, but the 1990-formed Fairchild Corporation contends that it withdrew that disclosure when the recent request for F45 data was made. The FAA agreed, although no such withdrawal appears anywhere in the FAA records pertaining to this type certificate.

Pangia further argued that it was evident that this new company did not even know of the existence of an F45 aircraft until informed by the FAA of the request. ?To have a trade secret, you should at least know you have a trade secret,? he said.

Harry Riggs, EAA Legal Advisory Council Chairman, filed an Amicus Curiae (friend of the court) brief to the case on behalf of EAA. ?What we asked the court to do is to refer this case back to the U.S. District Court for an evidentiary hearing,? Riggs said. ?There never was such a hearing on whether or not the new Fairchild company reinstated trade secrecy or confidentiality, if that is even possible, which they claim exempts them from having to give up the plans under the FOIA.?

The FAA has historically refused to release abandoned aircraft data when the holder of the type certificate is known and does not give permission to do so, a contention where EAA disagrees.

?That?s a bunch of hogwash,? Riggs said. ?The FAA has a duty to make a determination as to whether or not there is in fact a trade secret or whatever the claim is that?s being asserted by whatever company that owns the plans.?

Taylor commented, ?I think it?s a far-reaching case that we would like to see resolved so people can still get the drawings they need to simply preserve aviation heritage.?

A decision is expected to occur in late spring to mid-summer.

?Whichever way it?s decided, I expect it to be a landmark case defining the rights of individuals under the Freedom of Information Act,? Pangia said.

Meanwhile, as EAA recently reported, the FAA has proposed legislation that would allow the release of abandoned type certificate (TC) or supplemental type certificate data (including blueprints) to individuals upon request, so they can maintain the airworthiness of their vintage aircraft.

This would remedy the current ?Catch-22? surrounding orphaned TCs, where owners are legally required to maintain and modify their aircraft using approved data, even though the data is unavailable because the owner of the type certificate cannot be found or is no longer in existence.

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