Brazil Crash Survivors Found

Amazonian Indians found nine survivors of a Brazilian Air Force transport that crashed in the jungle yesterday. One person was reported missing and one dead from the flight.

Here's the BBC account.

###

The FAA's Blistering Letter to Flight 188 Pilots

The FAA revocation of the pilot's certificate for both captain and first officer on the infamous Northwest/Delta Flight 188 (NW188) last week contains some blistering language.

Here are some excerpts from the letters that each pilot received from the FAA on the flight, which overshot the Minneapolis airport by 150 miles on Oct. 21, while the pilots failed to make any radio contact with air traffic control for about 90 minutes

--"You operated NW188 in a reckless manner that endangered the lives and property of others."

--[As a result of the incident] "you lack the qualifications necessary to hold an Airline Transport Pilot certificate."

--"Your lack of awareness that NW188 had overflown the airport to which it had been dispatched and cleared until that aircraft had reached Eau Claire, Wisconsin, (approximately 150 miles beyond MSP [Minneapolis St. Paul International Airport] is completely unacceptable."

--"You engaged in conduct that put your passengers and your crew in serious jeopardy ... while you were on a frolic of your own."

Here is the full FAA letter, identical to both pilots except for their names and titles.

Thanks to correspondent Jeremy for sending it.

###

Major Airlines Crank Up Another Fare Hike

Major airlines have installed the third significant fare increase in as many weeks, according to Rick Seaney, the CEO of Farecompare.com

Yesterday morning, Seaney reports, AirTran "increased airfares by $6 and $10 roundtrip (based on distance) across the bulk of their route system. Shortly thereafter ... American and Delta/Northwest matched on overlapping routes, while Continental took a further step matching on the bulk of their route system."

Last night, "United and US Airways matched across the bulk of their respective route systems. This increase marks what appears to be well on its way to the 6th successful hike of 2009, all since June."

He added, "Holiday travelers did get a bit of a break however today, as mixed in with the airfare increases several legacy carriers filed targeted off-peak “Holiday Airfares” (Turkey Fares), on the off-peak days around Thanksgiving and for Christmas and New Years Day. The widely matched deep discount 3-day off-peak winter sale started this past Tuesday by Southwest Airlines expires tonight, removing a big chunk of winter deals from the marketplace (for the moment).

"The volatility of airfare filings today simply underscores the continual tinkering that domestic airlines are doing as they hone in on price points reflect an uptick in demand but doesn’t scare off skittish travelers, and sounds another wakeup call for procrastinating holiday air travelers."

###

Search Continues for Aircraft Missing in Amazon

As of this morning, there has been no trace reported of a Brazilian single-engine transport with 11 aboard that went missing yesterday in the western Amazon.

The passengers were medical staff working in a campaign to provide vaccinations to in Indian settlements in the rain forest. Here's a Bloomberg update this morning.

###

Brazilian Aircraft With 11 On Board Missing in Amazon

[Photo: A C-98 Caravan similar to missing plane.]

The Brazilian Air Force said today that one of its transports, a Cessna C-98 Caravan aircraft, is missing in the Amazon.

The aircraft, with 11 on board, took off this morning from Cruzeiro do Sul in Acre state in the western Amazon, bound northeast for Tabatigna in Amazonas state.

A search is under way.

###

Denver Flights Delayed in Snowstorm

Delays are mounting today at Denver International Airport as a slow-moving snowstorm stalled over the eastern front range of the Rockies.

According to Flightstats.com, as of 10:30 a.m. Mountain time today, 244 of the day's scheduled 1,685 departures and arrivals had already been canceled.

Anyone bound for Denver or making a connection through Denver needs to check well ahead today, and probably for the next few days as the schedules sort themselves out.

Conditions are improving, though. Here's a 10.30 a.m. update from Frontier Airlines, which was reporting delays of 3-4 hours at Denver but now says that's lessening. However, Frontier says with engaging honesty, "departure times are rather fluid" today.

Here's United's far less-informative announcement. Come on, United -- how hard is it to get some useful current information up about your Denver ops? Frontier did it.

The storm did not, by the way, dump a lot of snow (yet) on the central Rockies. I'm always amazed at how many people in the media fail to understand the difference between the high plains, the foothills and the Rockies, and the meaning of the continental divide.

And by the way, what if the Rockies had made it to the World Series?

###

Fares Declined Sharply in 2nd Quarter. This Is News?

A standard quarterly government report showing steep air-fare declines in the second quarter is getting a lot of attention today, but really: What's the point? The second quarter ended in June, and that news is ... well, it's useless, frankly, to anyone interested in current fare trends.

As anyone interested in current fares knows, they've been going up steadily since the summer. Major airlines recently succeeded in installing their fifth successive nearly across-the-board fare hike since June (they're a little less eager to hike fares on routes where there are discount competitors.)

I use Farecompare.com and the regular updates from its CEO Rick Seaney to stay on top of current fare trends. In the airline business, April, May and June were a long time ago.

###

Where We Won't Be Going for 2020 Olympics

Sometimes, media piety would choke a goat -- like this beauty from the Birmingham, Ala. newspaper wringing its dainty hands and denouncing a funny wisecrack as "vile, pointless and inappropriate."

Why?

Well, the mayor, a major crook, was convicted on a whole bunch of crimes, and at the usual media scrum following the verdict, a local TV reporter asked him, "What does this mean for Birmingham's chances for the 2020 Olympics?"

Oh. My. God. INAPPROPRIATE!

The usual kept media types are collectively in a near faint.


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Flight 188: Morning Update

Morning update. Northwest/Delta pilots' licenses yanked by F.A.A. And the Christian Science Monitor is asking the right questions.

David Lettermen did a Top 10 Reasons why the pilots overshot MSP. Among them:

... We get paid by the hour ... Tired of that show-off Sullenberger getting all the attention ... You try steering one of those airplanes after eight or nine cocktails ... For a change, we decided to send luggage to the right city and lose the passengers.
... Thought we saw balloon boy.

###

Flight 188: Say What?

There being a distinct difference between the attributions "investigators say" and "investigators say they were told," it's probably useful to have the text of the latest update by the National Transportation Safety Board on the bizarre incident involving a Northwest/Delta flight that overshot the Minneapolis airport by 150 miles last Wednesday night while the pilots claim they were "distracted."

Here's the NTSB report. The NTSB is next interviewing the three flight attendants.

The Wall Street Journal today (sorry if the link doesn't work because of the pay wall) has some interesting information. According to the Journal report, which cites "people familiar with the details," the "missteps began" when "a female flight attendant brought meals into the cockpit and the captain ducked out for a bathroom break."

No approximate time is given for this meal service, but it certainly would have been well in advance of the time the pilots would have been expected to be preparing for arrival at Minneapolis.

The flight attendant and first officer then chatted in the cockpit "just as controllers were instructing the crew to switch to another radio frequency," according to the Journal report, which added:

"The co-pilot, engaged in conversation with her, missed the instruction, and the captain didn't return until later, according to consultant Greg Feith, a former [NTSB] investigator."

Now just a darn minute here, as Deputy Barney Fife would say. Not only has the story changed, but now it appears as if the pilots were tuned to the wrong radio frequency, which accounts for them being out of contact with air-traffic control -- on approach to a major international airport?

Bring on the flight attendants! We're in for a bumpy ride as this story unfolds.

###

The Pilots' Top 10 List: Why We Missed Minneapolis

[Updated with statement from Delta Air Lines at bottom]

The two Northwest/Delta pilots who overshot Minneapolis by 150 miles last week claim they were busy working out crew schedule procedures on their laptops and 1. Didn't notice that they they had failed to descend to the destination airport for over an hour and 2. Failed to hear increasingly anxious calls from air-traffic control centers.

Since the old cockpit voice recorder in the Northwest A320 only records the most recent 30 minutes of a cockpit conversation, we may never know. As I said the other day, a good cop asking questions and matching up stories would have cracked this case by the end of the baseball game on Wednesday night.

Other pilots are having a good guffaw over it all, and I don't think the laptop explanation is flying.

Here's a link to the always informative and amusing JetWhine blog edited by Rob Mark, a pilot and aviation consultant. Rob has posted his Top 10 reasons the pilots overflew Minneapolis by 150 miles, while noting that "the only reason we can even poke a little fun at these two buffoons is no one was hurt."

In comments, Rob's readers added a few of their own "reasons," including: Pilots were planning a reality-show audition ... Pilots wanted to boost passengers' frequent flier miles ... Pilots took the term "nonstop flight" too seriously.

Me: The foliage in Wisconsin is lovely this time of year ... MSP means Must-Skip Place ...

***

Delta evidently isn't buying the laptop excuse either. Here is a statement Delta issued late this afternoon:

"ATLANTA, Oct. 26 /PRNewswire-FirstCall/ -- Delta Air Lines today issued a statement regarding the company's cooperation with the National Transportation Safety Board (NTSB) and the Federal Aviation Administration (FAA) in the investigation of Northwest Flight 188. Delta and its Northwest operating subsidiary continue to openly and fully cooperate with the NTSB and FAA to complete the investigation. The pilots in command of Northwest Flight 188 remain suspended until the conclusion of the investigations into this incident.

"Using laptops or engaging in activity unrelated to the pilots' command of the aircraft during flight is strictly against the airline's flight-deck policies and violations of that policy will result in termination.

"Delta CEO Richard Anderson said: 'Nothing is more important to Delta than safety. We are going to continue to cooperate fully with the NTSB and the FAA in their investigations.'

"The NTSB earlier today issued a public release highlighting the initial findings of its investigation into the incident, including evidence that the pilots involved said they were distracted at cruise altitude between San Diego and Minneapolis-St. Paul. The NTSB's press release stated that the pilots said in interviews that "there was a concentrated period of discussion where they did not monitor the airplane or calls from ATC even though both stated they heard conversation on the radio ... neither pilot noticed messages that were sent by company dispatchers ... both said they lost track of time ... (and) each pilot accessed and used his personal laptop computer while they discussed the airline crew flight scheduling procedure."

###



###

What Happened on Flight 188? It's Not a Mystery. Right Now, It Looks More Like a Cover-Up

All right, all right: Now what the heck happened here? Who saw what happened? Let's cut out the guessing.

Of course, it's wrong to expect immediate answers in an aviation accident, when investigators are working partly through mechanical and technological forensics, as well as with people who might be involved.

But the disturbing incident on Northwest/Delta Flight 188, which flew 150 miles northeast beyond its destination in Minneapolis Wednesday night, with the pilots not responding to increasingly anxious calls from various air-traffic-control centers, does not appear to have been the result of an accident -- or at least an accident whose causes can't be immediately determined.

Instead, it appears as if some person or persons may have done something wrong and/or negligent, and potentially put in danger the lives of everyone on board.

So what the heck happened here?

A cop would ask: Who knows the facts?

Well, the two pilots certainly know, but so far they've been able to get away without giving public answers beyond what the co-pilot, Richard I. Cole, blabbered yesterday to KGW-TV in Portland, Ore.:

"Nobody was asleep in the cockpit. No arguments took place. But other than that, I cannot tell you anything that went on because we're having hearings this weekend, we're having hearings on Tuesday. All that information will come out then." The TV report said that Cole declared that there is "a lot of misinformation that's going on. Things are being said that didn't happen, but I can't go into any details."

Oh, well, thanks for clearing that up, cap'n. You are aware, I suppose, that the statement that "there were no arguments at all in the cockpit" appears to contradict the statement the pilots gave to the FBI upon landing, in which they claimed, according to the National Transportation Safety Board, that they had been involved in a "heated discussion over airline policy and they lost situational awareness."

(By the way, the KGW reporter, who is not identified in this raw footage of the interview on the station's Web site, went to the co-pilot's home in Salem, Ore., and knocked on the door, which used to be Journalism 101, standard practice. To his credit, he also pressed the co-pilot on the few answers he did give, such as the denial that anything untoward had occurred in the cockpit. "Then what distracted you for 150 miles?" the reporter persisted before the co-pilot politely closed the door.)


Incidentally, airline pilots are understandably a little cranky these days, not only over crappy working conditions but over issues like seniority when two airlines merge, as Delta and Northwest have. This is not to say that's what they were arguing (or not arguing) about for a whole 78 minutes, though.

So who else knows what happened?

Well, the three flight attendants certainly know something. The flight continued on for over an hour beyond the airport, with the cockpit unresponsive to calls from the ground, while emergency officials considered scrambling military jets. (And remember: An airline cockpit door is locked and supposedly impenetrable. So a flight attendant can't barge in and shake somebody awake if something goes really wrong.)

Unless the whole crew had been rendered temporarily unconscious by some kind of magical knockout drops that had no effect on the passengers, flight attendants (who generally don't miss a trick) certainly had at least some of the "situational awareness" that the pilots claim they misplaced during those strange 78 minutes in the cockpit. Yet we have not heard word one, as far as I know, from the flight attendants.

And some of the passengers knew something -- despite risible media reports that stated that passengers did not have "a clue" that anything was amiss.

The few passengers who reporters could find to interview didn't have a clue because they appear to be clueless. I guarantee you that a good number of people on that airplane had more "situational awareness" than the pilots, if less than the flight attendants. I guarantee you many were aware that something was amiss, especially as the plane droned on for 150 miles past its destination. People have watches and can look out a window, and they certainly can read body language and a situation in which no announcement is forthcoming from the cockpit (or from the front galley, evidently) explaining why the plane was over an hour late, and appeared to have sailed beyond a major metropolitan area like Minneapolis-St. Paul.

This is a matter of public safety. And I don't think there is a "mystery." I think it's a cover-up, which I hope comes to an end soon, because the flying public deserves to know what is going on. We've allowed commercial aviation in this country to become uniquely unaccountable in many instances -- something we would not put up with in any other form of public transportation.

I have no doubt the National Transportation Safety Board will dig this out -- and get it out.

But let's us in the media stop being coy about the issue of accountability. This is a case for a cop with the power of arrest (as would be the case if, say, a city bus barreled down the wrong route for over an hour, and the driver declined to discuss the "mystery" of why). Or even a reporter refusing to accept "no comment" as a satisfactory response. (Again, credit to that unnamed KGW-TV reporter).

What the heck happened here, and who's lying and who's laying low, and why?

When will we get the straight story?

We shouldn't have to depend on a cockpit voice recorder (and one that was evidently so old that it only records about 30 minutes at a time) to get that story. A good cop would have straightened it out by the time the ballgame was over Wednesday night.


***

By the way, someone who sounds like a pilot takes issue with my saying yesterday that the flight was in "crowded airspace" as it approached (and blithely departed) the Minneapolis-St. Paul area at 37,000 feet. The airspace at 37,000 feet is not "crowded," I am informed -- as if I don't have some uniquely personal "situational awareness" of what constitutes "crowded" at 37,000 feet, having survived a mid-air collision at precisely that altitude. It's sort of a matter of definition, I think. Airspace around a major international airport is more crowded than airspace not around a major international airport. But I do take the point.

In fact, given my correspondent's most recent comment, I stand corrected.

###

`This Is Your Captain Snoring...'

[Updated with CNN report: Controllers feared hijacking AFTER talking to an "nonresponsive" pilot]

Oops, a Northwest/Delta A320 with 147 passengers on board overflew the Minneapolis airport by 150 miles, with the pilots failing to respond to radio calls Wednesday night.

Upon landing after the ... uh, sojourn, the pilots told the FBI and airport police that "they were in a heated discussion over airline policy and they lost situational awareness," according to the National Transportation Safety Board in an initial advisory on the incident.

Thank God this alleged heated discussion didn't escalate into a knock-down drag-out fist-fighting, hair-pulling, shrieking brawl, like that recent incident on an Air India flight where the pilots left the cockpit in flight over Pakistan to get into a donnybrook with flight attendants in the front of the plane.

Obviously, two pilots in a cockpit on approach to a major airport who overshoot it and fly on blissfully for 78 minutes, failing to acknowledge radio calls, sounds an awful lot like two pilots who were asleep, assuming they weren't involved in some "heated discussion" that caused them to forget where the hell they were. Which happens to have been in the crowded airspace of a major international airport.

More to come on this fiasco, you can bet.

[Update}: Like this report on CNN (quoting an unnamed federal source) saying that controllers feared the plane had been hijacked AFTER they finally made contact with the cockpit and found a pilot so "nonresponsive" that they ordered the crew to execute certain "maneuvers" to provide evidence that the pilots in fact were in control of the plane.]

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George Clooney, Road Warrior

A new Paramount film, "Up in the Air," is generating good advance word in screenings. It stars George Clooney as a road warrior. Release is set for mid-December.

Here's the trailer.

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Halloween in Los Angeles: A Cool Suggestion

If you happen to be in Los Angeles on Halloween night, here's a suggestion. Go to see the screening of the 1922 silent-film vampire classic Nosferatu at the magnificent Walt Disney Concert Hall downtown.

It will be accompanied by Clark Wilson playing the hall's great pipe organ, and presented in the way the film was designed to be seen.

The Disney hall is one of the great concert halls in the country. There's not a bad seat in the joint, and the acoustics are wonderful. My wife and I heard Mahler's Sixth there with Michael Tilson Thomas conducting the Los Angeles Philharmonic and it was a transformational musical experience (except for the lout whose cell-phone rang just as that last sublime chord faded out -- ouch!)

Anyway, here's the phone number for tickets: 323-850-2000. If I were going to be in Los Angeles that night, I wouldn't miss it.

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Brazil Team Training Hard for New Olympic Event: Synchronized Mayhem

I know it's a little early to consider making any travel plans for the 2016 Olympics in Rio, but travel planners really do need to be aware of just how dangerous Rio and other cities in Brazil are -- and not only to reporters like me who nearly got killed in a horrific mid-air collision that did kill 154 over the Amazon three years ago -- and then got sued for "dishonoring" Brazil, for complaining about the well-known faults of air-traffic safety there -- among them the fact that, as the U.S. National Transportation Safety Board put it: Air traffic control had two planes at the same altitude at opposite directions on the same airway, resulting in that mid-air collision. Here's the NTSB's report on the crash.

Now take this latest story of atrocious crime in Rio today. Drug gangs SHOT DOWN A HELICOPTER; killed two police officers and injured four others; and set fire to five buses and a school.

While noting in fairness that Brazilian authorities have been trying to address both the reality of the crime crisis as well as the international public perception of Brazil and its tourism industry, I repeat here excerpts from the current advisory on travel to Brazil by the U.S. State Department:

"Crime throughout Brazil has reached very high levels. The Brazilian police and the Brazilian press report that the rate of crime continues to rise, especially in the major urban centers – though it is also spreading in rural areas. Brazil’s murder rate is more than four times higher than that of the U.S. Rates for other crimes are similarly high. The majority of crimes are not solved. There were rapes reported by American citizens in 2008.

"Street crime remains a problem for visitors and local residents alike, especially in the evenings and late at night. Foreign tourists are often targets of crime, and Americans are not exempt. This targeting occurs in all tourist areas but is especially problematic in Sao Paulo, Rio de Janeiro, Salvador and Recife."

In Rio, "tourists are particularly vulnerable to street thefts and robberies in areas adjacent to major tourist attractions and on the main beaches in the city. In 2008 there were attacks along trails leading to the famous Corcovado Mountain, on the road linking the airport and the South Zone and on the beaches of Copacabana. Travelers are advised not to take possessions of value to the beach. Robbers and rapists sometimes slip incapacitating drugs into their drinks at bars, hotel rooms, or street parties. While crime occurs throughout the year, it is more frequent during Carnaval and the weeks prior. In the weeks before Carnaval 2009, robbers ransacked two tourist hostels. Travelers should be aware of their surroundings and victims are advised to relinquish personal belongings rather than resist or fight back. Tourists should choose lodging carefully, considering security and availability of a safe to store valuables, as well as location. Over the past year, attacks against motorists increased. In Rio de Janeiro City, motorists are allowed to treat stoplights as stop signs between the hours of 10 p.m. and 6 a.m. to protect against holdups at intersections. ..."


###

Business Aviation Trade Groups: Remaking the Case Despite the Detroit 3

The case had firmly been made for business aviation as a viable, defensible alternative to commercial air service until the recession hit last year -- right about the same time three invincibly tone-deaf CEOs from Detroit auto companies swanned into Washington on their heavy-metal private jets to demand taxpayer bailouts.

Lots of factors combined to put the kabosh on years of robust growth in the business-aviation market. The collapsing economy was the main one.

But there was another, lesser factor. The business-aviation industry evidently still does not -- or will not -- recognize how much public-perception damage was done, at precisely the worst possible time, by the haughty decisions of those three Detroit worthies to use their private jets to get from Detroit to Washington to testify before Congress and ask for taxpayer relief.

Currently, there are signs that the important U.S. business aviation industry is picking up a little bit. As reported here yesterday, business-aircraft activity rose in October for the first time in a year, mainly because of an increased use of turbo-prop planes. Business jets, and especially the heavy-metal beauties like those favored by our Detroit dandies, continued to languish.

I have frequently made the case, here and elsewhere, for the judicious use of business aircraft. Smart corporations know that a well-thought-out corporate flight department, with a mix of planes suitable for various purposes, makes clear bottom-line sense. Most business-aircraft use involves sending teams of managers or technicians somewhere on a tight schedule, often to a location with poor commercial air service.

Getting them in and out efficiently is not a matter of luxury. It is a matter of business efficiency.

Commercial airlines have been slashing capacity (there are 21 percent fewer seats in the U.S. airline market than there were in October 2000, says OAG) and yanking service from small and mid-sized airports. More often, getting there by commercial air requires multiple time-wasting stops -- if you can get there at all by air.

Talk to industry experts, as I often do, and you will hear a general consensus that well over 80 percent of business-aircraft use was clearly justified as a productivity tool.

On the other hand, a small percentage was not. Richard Santulli, the founder of and until recently the CEO of the fractional share business-jet leader NetJets, told me, for example, that the heaviest use of NetJets' top-shelf Gulfstream G5 fleet occurred on the New York/Teterboro-Washington D.C. route. Given copious options for the commercial air shuttles and Amtrak on that short route, that was obviously not a sensible way to use a big corporate jet.

The business-aviation trade groups nevertheless lost control of a message they had been very successful in establishing till the Detroit trio swanned into Washington last year.

If the had simply conceded that flying a G5 from, say, Detroit to Washington is an asinine way to use corporate jets, they could have regained the high ground to argue that in most cases, corporate aviation does make economic sense.

Instead, they blamed the messenger, as if the widespread public revulsion against obvious misuses of corporate jets that followed the Detroit scandal was something cooked up by the media.

And they still at it, as witnessed by the tendentious lede paragraph in a joint announcement released today by the General Aviation Manufacturers Association and the National Business Aviation Association, which contains an otherwise useful argument on behalf of corporate aviation.

To wit:

"Washington, DC, October 15, 2009 – The General Aviation Manufacturers Association (GAMA) and the National Business Aviation Association (NBAA) today published a new survey showing conclusively that some of the recent portrayals of business aviation are inconsistent with the true nature of the industry.

The survey, conducted for GAMA and NBAA by Harris Interactive, depicts an industry in which the typical company is a small or mid-sized business flying a single aircraft that is used by a broad mix of employees to make business trips utilizing community airports, often with little or no airline service.

"These findings stand in stark contrast to recent mischaracterizations of business aviation operators,” said GAMA President and CEO Pete Bunce.

The findings are interesting, and reiterate the case that had ALREADY been made when the boys from Detroit made their ill-conceived flights from Detroit to Washington on their luxury private jets last year.

Those dumb moves were not "mischaracterizations" by the media. The characterizations were accurate. Rather than fingering those three Detroit CEOS for their poor judgment, the industry went into a defensive crouch and pretended that the media was picking on business aviation in general -- and, of course, some elements in the media then did just that.

The smart move by the business-aviation industry would have been to point out that the self-entitled Detroit Three should have used common sense and flown commercially, and then move on after noting (correctly) that frivolous use of corporate jets is relatively uncommon.

As I said, the case for judicious use of business aviation had already been made when Manny, Moe and Jack from Detroit decided to fly the industry into a brick wall.

Making the sensible case again, the GAMA CEO Pete Bruce said this in yesterday's announcement: "The reality is, companies of all sizes rely on many different types of aircraft to be more competitive, productive, efficient and successful.”

NBAA President and CEO Ed Bolen added: "Although the manufacture and use of business aircraft contributes significantly to the national economy, the industry is often not well understood. This important study will help people see the real face of business aviation and underscore its importance to citizens, companies and communities across the U.S."

The survey, based on actual interviews conducted with pilots and passengers involved in business aircraft flights, finds:

--Small companies operate the majority of business aircraft. Most companies (59%) operating business aircraft have fewer than 500 employees, and seven in ten have less than 1,000 employees.

--Companies using business aviation typically operate only a single aircraft. The majority (75%) of companies operate only one turbine-powered aircraft.

--Managers and other mid-level employees are the typical passengers on business aircraft. Only 22% of passengers on business aircraft are top management (i.e., a company’s Chairman, Board Member, CEO or CFO); the majority are other managers (50%) and or technical, sales or service staff (20%).

--Employees use their time onboard company aircraft more effectively and productively than when they are on airline flights. Some passengers even estimate that they are more productive on the company aircraft than they are in the office because of fewer distractions.

--A large majority of flights (80%) are made into secondary airports or airports with infrequent or no scheduled airline service.

The survey was conducted online and by mail within the United States by Harris Interactive on behalf of GAMA and NBAA between June 1-October 6, 2009 among 350 pilots, flight department mangers, and directors of aviation of business aircraft, as well as 289 passengers of business aircraft.

Here is a link to the Harris Interactive survey. It's worth reading.

###

Airlines Jacking Up Fares

Now that it has been satisfactorily demonstrated that people will put up with just about anything, domestic airlines are jacking up fares -- over and above the recently announced $20 roundtrip surcharge for travel during the upcoming peak holiday seasons.

Airlines clearly figure that demand might soon exceed supply, with overall capacity down sharply (there are 21 percent fewer domestic seats flying this October than in October 2000, according to the airline schedule data firm OAG). Unclear is whether they're right about the demand, or whether a fair number of former passengers have abandoned or sharply cut back on air travel altogether, fed up as they are with the hassles.

As usual, the intrepid Rick Seaney at Farecompare.com is on the case.

Here's his report this afternoon:

"Airlines Hiking Domestic Airfares by up to $16 Roundtrip

"Yesterday our proprietary airfare processing system detected an unusually large number of domestic U.S. city pairs with an increase of up to $16 roundtrip -- a hike initiated by American Airlines.

"Continental and Southwest started matching late last night, and hours ago Delta/Northwest, United and US Airways began matching -- rounding out the legacy airlines.

"Most airfare-hike attempts occur late in the week, and either “stick” or “fizzle” over the weekend as carriers decide whether or not to match. It is unusual to see an airfare hike early in the week, which is typically reserved for discounting and sales.

"We contacted American Airlines about the airfare hike attempt and they confirmed the mileage based domestic airfare increase at the following levels:

0-450 miles $3ow/$6rt

451-750 miles $5ow/$10rt

751+ miles $8ow/$16r

"A spokesperson for Southwest Airlines further notes they have matched with at a lower level than the legacy airlines (with no increase on their cheapest “fun fares”):

0-450 miles $2ow/$4rt

451-750 miles $3ow/$6rt

751+ miles $5ow/$10rt

"This hike is layered on top a targeted peak holiday surcharge of $10 each way over the past two weeks and appears to be well on its way to “sticking” as the fourth increase of 2009 – all four occurring since June (compared to 15 total in 2008 and 17 in 2007)."

###

Some Business-Aircraft Use Is On the Rise, But Heavy-Metal Jet Flights Languish and Fractionals Remain Down

In September, business aircraft flying in the United States was at the highest level since October 2008, near the start of the recession, according to flight data tracked by ARGUS TRAQPak. Data are based on serial-number specific aircraft arrivals and departures.

Turbo-prop aircraft accounted for much of the increase, including in the troubled fractional-aircraft market where turbo-prop flights were up 24.4 percent while flights for fractional-owned jets were down in all categories.

Overall business aircraft activity increased 2.7% from August 2009. Compared to September 2008, the increase was .4%. In all categories, Turbo-prop aircraft activity showed the strongest recovery at 11.1%, with large-cabin jet aircraft activity showing the greatest decline at -12.7% as compared to September 2008. ARGUS estimates the percent change of flight activity, rolling month over month, for the last twelve months is up an average of .71% per month. Total flight activity for the last twelve months as compared to the previous twelve months is off -20.28% (Oct. 07–Sept. 08 vs. Oct. 08–Sept. 09).

###

Lufthansa to Offer In-Flight Cell-Phone Roaming, Wi-Fi Service: Will Voice Calls Ever Fly in the U.S.?

In the biggest development yet for total in-flight connectivity -- encompassing both Wi-Fi service and voice cell-phone roaming capability -- Lufthansa said it is equipping most of its long-haul fleet with a suite of products largely developed by Panasonic Avionics that will allow passengers to use their cell-phones or access the Internet in-flight almost anywhere in the world.

Lufthansa's confusing announcement (maybe it was more comprehensible in German), and an equally confusing one by Panasonic, made for bewildering reading, especially since it was framed as a re-launch of the ill-fated Connexion by Boeing Wi-Fi service (which Lufthansa branded as FlyNet). In 2001, Lufthansa had agreed to be the launch customer for Connexion by Boeing. The Boeing subsidiary eventually signed up other customers, including ANA, Japan Airlines and SAS, but the company went out of business (after losing about $1 billion) in 2006, two years after Lufthansa first began offering it on flights.

Connexion by Boeing died of its own weight, literally and figuratively. The equipment was too heavy to be used on anything other than big long-haul planes; the company was bloated with 600 employees; the timing turned out to be awful, in the travel depression that followed 2001, and well before it had become clear that enough people would pay for such a service to make it viable. Neither the market nor the technology was ready.

The new Lufthansa service -- still branded as FlyNet -- has nothing to do with the long-gone Connexion by Boeing. Instead, the technology is by Panasonic and the cell-phone component of the system is being provided by AeroMobile, which is one of two foreign companies (the other is OnAir) that are leading the current revolution in in-flight Wi-Fi and/or cell-phone development on many foreign airlines.

Stripped of some of its more-windy verbiage, Lufthansa's statement said: "Easy to use, the system will allow passengers to utilize the Internet in-flight as they would at a public hot-spot, with WLAN access, sending emails with attachments or an SMS from a mobile phone and synchronisation of smartphones, like PDAs, iPhones or Blackberrys.

"FlyNet will be available to all passengers in the cabin ... It will be installed in stages, worldwide, on all Lufthansa long-haul routes. Rates will differ, from time-based to flat rate ...

Facts and Figures

* Bandwidth:
5-50 Mbps (in ther aircraft
1 Mbps (outside the aircraft)
* Services:
WLAN, GSM, GPRS
* Re-launch:
2010
* Lufthansa long-haul fleet:
96 aircraft
* Lufthansa Partner:
Panasonic Avionics Corporation
* Transmission mode:
Satellite-supported broadband system."

***

Here is Panasonic's statement about the development.

***

AeroMobile and OnAir are behind the Wi-Fi and/or cell-phone revolution on airlines outside the U.S. An American start-up, Row44, is also trying to make inroads in the international market, though its major customer so far is Southwest Airlines, which does not fly overseas. Southwest has said it will outfit its fleet of 737s with Row44's satellite Wi-Fi system.

AeroMobile's chief executive officer, Bjorn-Taale Sandberg, said today that the Lufthansa initiative will transform the industry. "Major airlines are recognizing the need to keep their passengers connected with broadband and cellular connectivity," he said.

"AeroMobile is unique in providing airlines with flexibility and a future-proofed connectivity vision. We have customer commitments from airlines operating Inmarsat Classic Aero, Swift64, SwiftBroadband and now Ku band. Lufthansa’s commitment to Panasonic’s multi-megabyte Ku band solution, eXConnect, will allow AeroMobile to deliver a much richer user experience, provide more comprehensive value-added cellular services and a growth path to 3G," he said.

AeroMobile was the first company to offer in-flight mobile phone services in full commercial use when it launched with Emirates in March 2008. The system is currently installed on over 50 wide-bodied aircraft across six aircraft types with Emirates and Malaysian Airlines. This figure will rise into three figures in 2010 as AeroMobile's equipment is installed on other long haul flag carriers.

The Lufthansa announcement, which sees AeroMobile's equipment installed through Panasonic's eXPhone system, means AeroMobile now has commitments spanning all wide-bodied aircraft variants including B747 and A380.

Last month, I spoke with Benoit Debains, the chief executive of AeroMobile competitor OnAir. He said that OnAir is negotiating to provide service on super-jumbo A380s before the end of the year, though he wouldn't identify the airline or airlines.

The big question, as world airlines gear up for full connectivity, including cell-phone capability, is the United States, where in-flight Wi-Fi is being eagerly adopted but there remains huge public and political resistance to allowing voice calls in flight.

"I used to say the people who are against voice calls are the people who didn’t try it," Debains said, adding: "We have 10,000 flights (every month). I have been on some of these flights and I have to tell you, it is not an issue as people fear. The average duration of a phone call is about 2 minutes. And because there is already a certain noise level in the cabin, a call is not as noisy as people believe it would be."

He called the opposition in the U.S. "very emotional." He said, "When you talk to [U.S.] airline CEOs or to fleet managers, they give you a very personal opinion -- 'You know, an airplane cabin is the last place where I cannot be reached,' blah-blah-blah. They not even thinking in terms of all those things you can do [with full connectivity] that you do when you are on the ground."

Nevertheless, he said, OnAir is trying to persuade some U.S. carriers to carry its system on international fleets. "We believe that the U.S. market ultimately will open up to this," he insisted, though he said that high costs for outfitting a plane ("three or four times higher" than the $100,000 per aircraft it costs to wire a plane for the AirCell's Gogo-branded Wi-Fi service that many domestic airlines are already installing) makes it more likely that OnAir would be installed, if at all, mostly on new factory-built long-haul aircraft that might be ordered in the future.

There has been strong resistance in the United States to any proposal to allow cell-phone use – or even so-called voice over Internet protocol on airplanes.

Among the strongest opponents are flight attendants, though their main union the Association of Flight Attendants, which is affiliated with the Communications Workers of America union. In a statement, the union said:

"AFA-CWA is urging members of the Senate to ensure that a ban on in-flight cellular telephone usage is included in any Federal Aviation Administration (FAA) Reauthorization legislation that passes out of the Senate. The U.S. House of Representatives has already included such a ban in H.R.915, the House FAA Reauthorization Bill. Cell-phone usage in the cabin would create a new security risk by compromising your ability to maintain order in the cabin and to safely execute an emergency evacuation if necessary."

It isn't clear exactly how a cell phone would impede an aircraft evacuation (safety is always trotted out to oppose anything the flight attendants don't like) -- but it is very clear that the opposition to in-flight voice calls in the U.S. is fierce and possibly politically insurmountable.

###

Bill to Thwart 'Libel Tourism' Becomes Law in California

California became the latest state to ban enforcement of bogus foreign libel judgments against Americans when Gov. Arnold Schwarzenegger signed this bill into law last night.

These troubling foreign libel cases, which fall broadly under the heading of "libel tourism," typically involve a judgment obtained in a foreign country against a U.S. citizen who has been sued for libel for something written in the U.S., which would be fully protected as free speech under the U.S. Constitution.

The main case that triggered the legislation in California and a small number of other states, including New York, involved Rachel Ehrenfeld, a New York author and academic who was sued by a Saudi billionaire in a British court known for being favorable toward libel plaintiffs who travel to the UK to shop for judgments.

The Saudi businessman, who objected to his brief depiction in Dr. Ehrenfeld's 2003 book on Saudi financing of Al Qaeda terrorist activities, "Funding Evil," won a $200,000 judgment against Ehrenfeld in the pliant British court, even though the book was largely unavailable in the UK and Ehrenfeld's mention of the Saudi would not have constituted libel in the United States.

The most recent twist in this awful phenomenon, of course, involves me. I was sued for libel and defamation of Brazil, in a bizarre case in which it was claimed that an "insult" to the dignity of Brazil constituted an injury to every citizen of that country.

The case stems from the horrific mid-air collision that I luckily survived over the Amazon in 2006, and ostensibly concerns statements about air-travel safety in Brazil that I allegedly wrote or made, including reporting and commentary on Brazil's atrocious handling of the investigation, or about Brazil's faulty air-traffic control system, which was found to have been the major cause of the crash.

I did argue forcefully against what I saw as Brazil's failure to address obvious flaws in its air-traffic safety while rushing to scapegoat two American pilots. But weirdly, the Brazil lawsuit presents as evidence comments that I never even made, and which actually were picked up from Brazilian blogs or news sites that linked to a blog I wrote, and discontinued in January 2008. That lawsuit, which accuses me of calling Brazil "most idiot of all idiots," among other bizarre charges, seeks a judgment against me in the United States of nearly $300,000.

A New York law firm, Grant, Herrmann, Schwartz & Klinger, is assisting the Brazilians in this suit, and had the papers delivered to me at my home in New Jersey a a few weeks ago.

The Committee to Protect Journalists, among other groups, including the Business Travel Coalition, denounced the Brazil suit as an assault against free speech in the U.S.

New Jersey is considering passing a bill, introduced by state Sen. Loretta Weinberg, similar to the one that just passed in California.

There is also a federal bill pending in the Senate, the Free Speech Protection Act of 2009, introduced by Sen. Arlen Specter, that would protect all Americans from libel judgments in a foreign country for speech in the United States that would be fully protected under U.S. law.

###

'South Park' Stranded Passengers Episode: 'Welcome to the Gates of Hell'

'South Park' took on the stranded-passengers issue last week in its "Dead Celebrities" episode, and Kate Hanni's FlyersRights.org -- which has been leading the fight for a federal law to require airlines to address the many problems associated with flights stuck idled on tarmacs for long periods of time -- lost no time in promoting the segment.

Here's the link:

http://www.sendspace.com/pro/fefdlg

###

The Economist Weighs In On Brazil Defamation Suit

Thanks to the Economist for weighing in on the bizarre and troubling (for free speech in the United States especially) Brazil suit claiming I defamed that nation by reporting and commenting in the U.S. on the horrible mid-air collision over the Amazon three years ago.

###

Business-Travel Slump Wallops USA Today

Business travel may be coming back a bit, but USA Today is reeling from the slump. The five-day-a-week paper says it lost 17 percent of its reported circulation, or 398,000 daily copies, between April and September. The paper now claims a total circulation of 1.88 million.

Here's the Editor & Publisher exclusive on the startling decline.

USA Today, which has always depended far more than other newspapers on discount so-called bulk sales for much of its circulation, says that its hotel distribution is off about 40 percent in the April-September period.

That's partly a result of the net decline in business travelers, but also partly the result of a decline in demand even for a newspaper that arrives free outside your door.

Last April, Marriott decided to stop delivering the paper for free to its hotel rooms, which formerly had accounted for 50,000 copies. I understand that decision was made after Marriott chairman Bill Marriott decided that too many USA Todays were being left untouched in hallways outside hotel-room doors. That looked untidy, the famously tidy Marriott boss said.

In a memo to staff, USA Today publisher Dave Hunke expressed strong faith in the strength of the newspaper and said its fortunes would rebound as travel continues to pick up. "We know these circulation declines are temporary and as the economy continues to recover and the travel industry rebounds, we know our circulation will rebound with it," he said.

###

Failed Olympic Bid: Don't Blame It On Chicago

There are probably several good reasons to explain why the U.S. bid for the 2016 Olympics was so resoundingly dissed by the International Olympic Committee.

The best explanation, I would guess, is money: The IOC -- which has struggled to overcome its scandal-ridden recent past -- sees a vast and untapped market in Latin America for Olympic broadcasting and merchandising rights during the 2016 summer games, and for future growth in Olympic merchandising. So crime-ridden Rio de Janeiro, which also by all accounts presented an attractive bid, won the games, even though President Obama traveled to Copenhagen to try to close the sale for Chicago.

But there is another reason, as yet not well-explored, and that is international revulsion to the hassles of simply entering the United States as a visitor. Every foreign business traveler I know tells me that they brace themselves for the routinely unpleasant experiences at U.S. Customs and Immigration upon arrival at at an American airport.

This is no secret to the U.S. tourism industry, which has been working for years to try to change the poor reputation the United States has among many foreign travelers -- a problem partly due to the experience of simply arriving at our shores, where many international visitors claim they are confronted with a surly bureaucracy and other excessive arrival hassles.

Once past the border, the U.S. is, as it always has been, an extremely pleasant visiting experience for foreign travelers.

The IOC's brusque elimination of Chicago from contention for the 2016 summer Olympics on the first round of balloting demonstrates the need to change impressions of what the experience of travel to the U.S. is like for international visitors, the head of the U.S. Travel Association said today.

Said Roger Dow, U.S. Travel's CEO: "It's clear the United States still has a lot of work to do to restore its place as a premier travel destination."

Dow will discuss what he calls the "unwelcoming message" the U.S. sends to international travelers, as well as the overall state of the U.S. travel industry next Wednesday in New Orleans at the TEAMS Conference & Expo. Presented by SportsTravel magazine, TEAMS is the world’s largest gathering of event organizers and travel planners from the sports-event industry.

"When IOC members are commenting to our president that foreign visitors find traveling to the United States a 'pretty harrowing experience,' we need to take seriously the challenge of reforming our entry process to ensure there is a welcome mat to our friends around the world, even as we ensure a secure system," Dow said.

The group is promoting legislation called the Travel Promotion Act, which was passed in the U.S. Senate last month, and which the House passed on Wednesday with strong bipartisan support. The bill, which needs to go back to the Senate on a procedural matter in the next few days, would create the first-ever U.S. promotion and communications program aimed at international travelers. Nearly every other industrialized nation spends heavily promoting itself with advertising and marketing aimed at foreign visitors.

###

Free Speech, or Not?

Does the United States Constitution protect the freedom of speech of American citizens, or does it not? In this era of globalization, the answer is becoming increasingly muddled, says Robert Spencer in FrontPage Magazine.

Travel writers, bloggers, academics, corporate travel managers, even business travelers who might feel the impulse to write something critical about a foreign country (say, one whose atrocious air-traffic control system creates a horrible mid-air collision) -- this means us.

p.s. -- Please, the name is not "Joseph."

###

Cabin-Crew Fistfight: New Airline Fee-Revenue Source?

Let's forget Brazil for a while (all right, I want the name of that person who just yelled out "It's about time!"), and turn to other developments:

Two flight attendants, a male and a female, slugged it out with the pilot and co-pilot in the galley and cockpit of an Air India A-320 as the aircraft flew over Pakistan en route to Delhi, via Lucknow from Sharjah. Here is the Times of London account.

That's just terrible -- but hey, there's a new idea in this. Desperate for revenue, airlines could stage in-flight fights among the crew, and allow passenger betting. (The airline gets 25 percent of the handle). A new and inexpensive form of in-flight entertainment! And make it interesting: Bitch-slapping, sucker-punching, invective-hurling and kick-boxing, all allowed!

###

Citing Brazil Threat, Business Travel Coalition Urges Passage of Federal Free Speech Protection Act

This letter was issued by the Business Travel Coalition today to its 35,000 worldwide members, as well as members of Congress, by Kevin Mitchell, the chairman of the organization:

***

"BTC Urges Passage of Free Speech Protection Act of 2009

Journalists, business travelers, organizations that fund travel activities at risk


Business Travel Coalition writes to urge swift action in passing the Free Speech Protection Act of 2009 (S.449) out of the Senate Judiciary Committee. The bill provides protections for Americans sued for libel in foreign countries whose laws are inconsistent with the freedom of speech granted by the U.S. Constitution. In addition to journalists, corporate travelers, university researchers, analysts and organizations that issue travel warnings, including corporate travel departments, are at increasing risk.

As you are well aware, S.449, introduced in February 2009, was in response to cases like the one involving Dr. Rachel Ehrenfeld, an academic who writes on terrorism and lectures all over the world. Her 2003 book, Funding Evil, triggered a lawsuit in the UK by a wealthy Saudi businessman who claimed he was libeled in the book. The differences in American and British libel laws are substantial. For example, UK defendants have to prove allegations are true; in contrast, in the U.S. plaintiffs must prove allegations are false. The Saudi won a judgment of $250,000 against Ehrenfeld; sales of her book were banned in the UK; and she can no longer travel there.

The Ehrenfeld suit has been just the most prominent of cases known under the general rubric "libel tourism" in which foreign nationals, claiming to be offended by something written in the U.S. by journalists, researchers or scientists, travel to pliant courts in third countries and obtain libel judgments against American defendants, even though the allegedly offensive speech would be fully protected under the U.S. Constitution. These suits can have a chilling effect on research and publishing, and on U.S. national security. The objective of S.449 is to ensure that libel judgments issued by foreign courts cannot be enforced in the U.S. unless our legal standards for libel are met.

An Ominous New Twist

U.S. journalist and business travel contributor for The New York Times Joe Sharkey covered a plane crash in Brazil, in which he was involved. On Sept. 29, 2006 there was a midair collision at 37,000 feet over the Amazon between a Brazilian 737 and a business jet, on which Sharkey was a passenger. All 154 on the 737 died; the seven crew and passengers on the badly damaged business jet made an emergency landing in the jungle. Sharkey wrote about it once he returned home in the Times and on his blog and conducted interviews in which he was critical of Brazil’s air traffic control system. He vigorously defended the American business-jet pilots who Brazil had been quick to charge with criminal negligence.

On September 16, 2009 Sharkey was served with a complaint seeking US$279,850 in damages. The plaintiff in the lawsuit is identified as Brazilian Rosane Gutjhar who asserts, in a novel claim, that Sharkey offended her country’s dignity in his writings and interviews. Although Gutjhar’s husband died in the crash, Sharkey did not know her, or mention her name at any time. In other words, the plaintiff doesn't have to claim she was personally libeled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the dignity or honor of Brazil in any case involving a crime -- the pilots, Joseph Lepore and Jan Paladino remain on criminal trial in Brazil, in absentia.

The basis of Gutjhar’s suit is that as a Brazilian citizen she “feels discriminated against" by Sharkey’s forceful reporting and commentary in the U.S. about Brazil's alleged cover-up of the causes of the crash. The accuracy of Sharkey’s writings and comments has never been challenged. Sharkey claims that nothing he said or was alleged to have said would constitute libel in the U.S., or even come close. The Free Speech Protection Act would cover libel judgments in foreign countries where the alleged offense would not meet U.S. standards for libel. With Sharkey’s case, it's clear the scope of what constitutes libel has been broadened to include insulting the dignity of a foreign country.

If Brazil, host of the 2016 Olympics, that will no doubt be attended by many U.S. corporate executives for the purpose of entertaining clients, can claim a ruinous judgment in the U.S. against an American citizen who has "offended" that nation, what is to stop any other country -- Iran, Libya, North Korea -- from pursuing the same course of action? And it could be directed not just against journalists or bloggers, but corporate and university travelers and their travel departments.

The near-perfect reach of the Internet has placed Americans, their free speech and their finances in harm’s way. At risk are travel managers issuing country-specific travel warnings, business travelers posting unfavorable trip reviews on social media sites (or the sites themselves), flight crews posting comments on industry bulletin boards or university researchers publishing negative reports. The Free Speech Protection Act of 2009 needs to be passed into law as soon as possible.

Sincerely,
Kevin Mitchell
Chairman"

###

Don't Blame It On Rio -- Or Else!

News item: The International Olympics committee, looking for extra cash from the lucrative television market in Latin America, has chosen Rio de Janeiro, Brazil, as the site for the 2016 Olympic games.

Here is some background advice for anyone considering visiting Brazil:

"Crime throughout Brazil has reached very high levels. The Brazilian police and the Brazilian press report that the rate of crime continues to rise, especially in the major urban centers – though it is also spreading in rural areas. Brazil’s murder rate is more than four times higher than that of the U.S. Rates for other crimes are similarly high. The majority of crimes are not solved. There were rapes reported by American citizens in 2008.

"Street crime remains a problem for visitors and local residents alike, especially in the evenings and late at night. Foreign tourists are often targets of crime, and Americans are not exempt. This targeting occurs in all tourist areas but is especially problematic in Sao Paulo, Rio de Janeiro, Salvador and Recife."

In Rio, "tourists are particularly vulnerable to street thefts and robberies in areas adjacent to major tourist attractions and on the main beaches in the city. In 2008 there were attacks along trails leading to the famous Corcovado Mountain, on the road linking the airport and the South Zone and on the beaches of Copacabana. Travelers are advised not to take possessions of value to the beach. Robbers and rapists sometimes slip incapacitating drugs into their drinks at bars, hotel rooms, or street parties. While crime occurs throughout the year, it is more frequent during Carnaval and the weeks prior. In the weeks before Carnaval 2009, robbers ransacked two tourist hostels. Travelers should be aware of their surroundings and victims are advised to relinquish personal belongings rather than resist or fight back. Tourists should choose lodging carefully, considering security and availability of a safe to store valuables, as well as location. Over the past year, attacks against motorists increased. In Rio de Janeiro City, motorists are allowed to treat stoplights as stop signs between the hours of 10 p.m. and 6 a.m. to protect against holdups at intersections. ..."

***

The Brazilians won't like reading that, so they can sue me.

Oh, wait, they already have sued me for "insulting" Brazil.

So if they're insulted by the above, they'll need to instead sue the authors of the above, which would be the U.S. State Department in its routine guidance about visiting various countries.

There's an important point at work here in excerpting the current State Department travel advisory on Brazil.

As I have previously reported at some length, I was recently served with a lawsuit from Brazil, accusing me of libel in reporting and commentary I did in the United States after surviving a horrible mid-air collision over the Amazon three years ago.

The lawsuit is most notable for its novel legal argument that an alleged insult to Brazil is by definition an insult to every single citizen of Brazil. The plaintiff in the suit against me is a widow of one of the 154 people killed in the mid-air collision -- a person I had never heard of and certainly never wrote or spoke a word about until after the suit was filed. My sympathy toward her and the other relatives and loved ones of those killed in the crash is profound, and I have always expressed that feeling.

Three weeks ago, a process-server arrived at the front door of my house in New Jersey to serve me the legal papers on behalf of a New York law firm -- Grant, Herrmann, Schwartz & Klinger -- retained by the Brazilians to serve me the papers in a case that seeks enforcement in the U.S. of an anticipated $300,000 judgment against me after it is forthcoming in Brazil.

When friends of mine in the U.S., including lawyers and journalists, hear about this suit they smack their heads. Wait a minute, they say. You are being sued IN BRAZIL for comments made IN THE UNITED STATES -- and the Brazilians think they'll be able to cross the U.S. border to enforce a judgment against you?

Yep.

But it gets even better. The complaint in the suit against me contains a series of preposterous allegations. For example, it cites a "rumor" that as a passenger riding on a business jet returning from a routine magazine assignment in Brazil, I "made the ill-fated journey with the intent of writing an article about the Amazon, intending to demonstrate that the air space belongs to no one," and as part of that dastardly plan, I "asked the pilots to turn off the device that would allow them to be detected in that space..."

The complaint also charges that, in a blog I started (and discontinued 20 months ago) to report on the aftermath of the Brazil crash and to expose the coverup and the move to scapegoat the American pilots, I referred to Brazil as "the most idiot of idiots" and "land of Tupiniquins and bananas."

I don't know what was more insulting, the absurd charge or the insinuation that my grammatical skills were that lacking. Furthermore, the word "Tupiniquin" was absent from my vocabulary till Richard Pedicini, my correspondent in Sao Paulo, explained that it refers to an extinct Amazon tribe.

Actually, the drafters of that legal document appear to have picked up the insulting comments about Brazil not from anything I said or wrote, but from comments that strangers posted to a Brazilian blog that linked to my blog, and possibly also from out of that thin air I am rumored to have been plotting to lay an imperialist claim to.

Not that I wasn't hard on Brazilian authorities for the unwise way they rushed to criminalize the mid-air collision and blame the American pilots, and for their defiant insistence, against mounting and now-indisputable evidence to the contrary, that Brazil's air-traffic control system was not centrally at fault in the accident.

My main goal in taking on Brazil's air force (which runs air-traffic control) and its federal police (who worked with the air force to criminalize the case and prosecute the American pilots) was to argue on behalf of international aviation safety. Criminalizing an aviation accident is famously a grave mistake, because those involve go silent and investigators are stymied. Screaming about your injured "dignity" when your air-traffic control system is full of serious flaws is not something a nation worthy of world respect does -- and yes, I pointed that out again and again.

Those were my offenses in the eyes of Brazilian authorities, who maintained their defiance even after the world's most trusted aviation-safety agency, the U.S. National Transportation Safety Board, concluded last December that evidence "strongly suggests that this accident was caused by N600XL [the American business jet] and Gol 1907 [the Brazilian airliner] following ATC [Brazilian air-traffic control] clearances which directed them to operate in opposite directions on the same airway at the same altitude, resulting in a mid-air collision."

There is a growing furor in the U.S. over the Brazilian lawsuit, and it has nothing to do with me personally. No serious reporter wants to be part of the story, and I fervently wish I were not.

Instead, the furor is over the frontal assault this lawsuit represents against free speech in the United States. In this suit, Brazil maintains that it has the right to prosecute comment made by an American citizen in the U.S. -- comment that is utterly within the boundaries of U.S. First Amendment and other free-speech protections. Even if I had referred to a country as "the most idiot of idiots," that would not come even close to constituting libel in any court in the United States or even in the rest of the first world.

At its essence, the Brazil suit maintains that an American citizen who utters speech IN THE U.S. that Brazil considers offensive to its "dignity" is subject to a Brazilian libel judgment that can be enforced in the U.S.

Which brings me back to the Rio Olympics.

Though the 2016 games are seven years off, there will be a lot of reason for reporters, bloggers, researchers, sports analysts, planners and others in the U.S. to begin evaluating Rio as a setting for the Olympics, and to report on the preparations to get the sites and the city up to spec for such a major world event.

Do you all have to watch what we say about Brazil, and take great care not to offend its "dignity?" That lawsuit against me says yes, yes you do -- unless action is taken in the United States to put a stop to this alien attack on free speech in the U.S.

There have been precedents for this kind of action, though none quite as broad. For years, litigants have traveled to pliant British courts to accuse American writers, researchers and academics of libel in cases where the evidence would not stand up in a U.S. court.

The most prominent of these cases involves Dr. Rachel Ehrenfeld, a New York author and academic who was successfully sued for libel in a British court by a rich Saudi businessman (recently deceased) who she named in "Funding Evil," her 2003 book about Saudi funding sources for Al Qaeda terrorism. Her book was withdrawn from sale in the UK, and she cannot travel there (crimping her academic research) because of the judgment against her.

Dr. Ehrenfeld has protection from the judgment being enforced here, as a resident of New York State, which used her case to enact a law specifically banning enforcement in New York of foreign judgments in libel cases that would not stand up in a U.S. court.

Earlier this year, wide-sweeping legislation, the Free Speech Protection Act of 2009, was introduced in Congress. It would extend such protection against alien libel judgments to all American citizens. (Here's Sen. Specter's eloquent speech introducing the bill). The bill, introduced in the Senate by Sens. Specter, Lieberman and Schumer (later joined by Sen. Wyden) is currently in the Senate Judiciary Committee.

It needs to become law, before some other country joins Brazil in trying to shut down free speech in the United States.

###

The Free Speech Protection Act of 2009

Pending in the Senate, this bill (S 449) along with a similar bill in the House (H 1304) would address the grave threat to free speech in the U.S. posed by foreign governments seeking libel and defamation judgments against American journalists, bloggers,academics, analysts, travel reviewers or anyone else who writes something (otherwise fully protected under U.S. free-speech guarantees) that some foreign government doesn't like.

Both bills are called the Free Speech Protection Act of 2009, and getting them signed into law is crucial. Here is the text of the Senate version:

***


The Library of Congress > THOMAS Home > Bills, Resolutions > Search Results


Free Speech Protection Act of 2009 (Introduced in Senate)

S 449 IS

111th CONGRESS

1st Session

S. 449

To protect free speech.

IN THE SENATE OF THE UNITED STATES

February 13, 2009

Mr. SPECTER (for himself, Mr. LIEBERMAN, and Mr. SCHUMER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To protect free speech.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Free Speech Protection Act of 2009'.

SEC. 2. FINDINGS.

Congress finds the following:

(1) The freedom of speech and the press is enshrined in the first amendment to the Constitution of the United States.

(2) Free speech, the free exchange of information, and the free expression of ideas and opinions are essential to the functioning of representative democracy in the United States.

(3) The free expression and publication by journalists, academics, commentators, experts, and others of the information they uncover and develop through research and study is essential to the formation of sound public policy and thus to the security of the people of the United States.

(4) The first amendment jurisprudence of the Supreme Court of the United States, articulated in such precedents as New York Times v. Sullivan (376 U.S. 254 (1964)), and its progeny, reflects the fundamental value that the people of the United States place on promoting the free exchange of ideas and information, requiring in cases involving public figures a demonstration of actual malice, that is, that allegedly defamatory, libelous, or slanderous statements about public figures are not merely false but made with knowledge of that falsity or with reckless disregard of their truth or falsity.

(5) Some persons are obstructing the free expression rights of United States persons, and the vital interest of the people of the United States in receiving information on matters of public importance, by first seeking out foreign jurisdictions that do not provide the full extent of free-speech protection that is fundamental in the United States and then suing United States persons in such jurisdictions in defamation actions based on speech uttered or published in the United States, speech that is fully protected under first amendment jurisprudence in the United States and the laws of the several States and the District of Columbia.

(6) Some of these actions are intended not only to suppress the free speech rights of journalists, academics, commentators, experts, and other individuals but to intimidate publishers and other organizations that might otherwise disseminate or support the work of those individuals with the threat of prohibitive foreign lawsuits, litigation expenses, and judgments that provide for money damages and other speech-suppressing relief. Such actions are intentional tortious acts aimed at United States persons, even though the harmful conduct may have occurred extraterritorially.

(7) The governments and courts of some foreign countries have failed to curtail this practice, permitting lawsuits filed by persons who are often not citizens of those countries, under circumstances where there is often little or no basis for jurisdiction over the United States persons against whom such suits are brought.

(8) Some of the plaintiffs bringing such suits are intentionally and strategically refraining from filing their suits in the United States, even though the speech at issue was published in the United States, in order to avoid the Supreme Court's first amendment jurisprudence and frustrate the protections it affords United States persons.

(9) The United States persons against whom such suits are brought must consequently endure the prohibitive expense, inconvenience, and anxiety attendant to being sued in foreign courts for conduct that is protected under the first amendment, or decline to answer such suits and risk the entry of costly default judgments that may be executed in countries other than the United States where those individuals travel or own property.

(10) Journalists, academics, commentators, experts, and others subjected to such suits are suffering concrete and profound financial and professional damage for engaging in conduct that is protected under the Constitution of the United States and essential to informing the people of the United States, their representatives, and other policymakers.

(11) In turn, the people of the United States are suffering concrete and profound harm because they, their representatives, and other government policymakers rely on the free expression of information, ideas, and opinions developed by responsible journalists, academics, commentators, experts, and others for the formulation of sound public policy, including national security policy.

(12) The United States respects the sovereign right of other countries to enact their own laws regarding speech, and seeks only to protect the first amendment rights of the people of the United States in connection with speech that occurs, in whole or in part, in the United States.

SEC. 3. FEDERAL CAUSE OF ACTION.

(a) Cause of Action- Any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise primarily disseminated in the United States may bring an action in a United States district court specified in subsection (f) against any person who, or entity which, brought the foreign lawsuit if--

(1) the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law; and

(2) the person or entity which brought the foreign lawsuit serves or causes to be served any documents in connection with such foreign lawsuit on a United States person.

(b) Jurisdiction- The district court shall have personal jurisdiction under this section if, in light of the facts alleged in the complaint, the person or entity bringing the foreign suit described in subsection (a) served or caused to be served any documents in connection with such foreign lawsuit on a United States person with assets in the United States against which the claimant in the foreign lawsuit could execute if a judgment in the foreign lawsuit were awarded.

(c) Remedies-

(1) ORDER TO BAR ENFORCEMENT AND OTHER INJUNCTIVE RELIEF- In a cause of action described in subsection (a), if the court determines that the applicable writing, utterance, or other speech at issue in the underlying foreign lawsuit does not constitute defamation under United States law, the court shall order that any foreign judgment in the foreign lawsuit in question may not be enforced in the United States, including by any Federal, State, or local court, and may order such other injunctive relief that the court considers appropriate to protect the right to free speech under the first amendment to the Constitution of the United States.

(2) DAMAGES- In addition to the remedy under paragraph (1) and if the conditions for release under that paragraph are satisfied, damages shall be awarded to the United States person bringing the action under subsection (a), based on the following:

(A) The amount of any foreign judgment in the underlying foreign lawsuit.

(B) The costs, including reasonable legal fees, attributable to the underlying foreign lawsuit that have been borne by the United States person.

(C) The harm caused to the United States person due to decreased opportunities to publish, conduct research, or generate funding.

(d) Treble Damages- If, in an action brought under subsection (a), the court or, if applicable, the jury determines by a preponderance of the evidence that the person or entity bringing the foreign lawsuit which gave rise to the cause of action intentionally engaged in a scheme to suppress rights under the first amendment to the Constitution of the United States by discouraging publishers or other media from publishing, or discouraging employers, contractors, donors, sponsors, or similar financial supporters from employing, retaining, or supporting, the research, writing, or other speech of a journalist, academic, commentator, expert, or other individual, the court may award treble damages.

(e) Expedited Discovery- Upon the filing of an action under subsection (a), the court may order expedited discovery if the court determines, based on the allegations in the complaint, that the speech at issue in the underlying foreign lawsuit is protected under the first amendment to the Constitution of the United States.

(f) Venue- An action under subsection (a) may be brought by a United States person only in a United States district court in which the United States person is domiciled, does business, or owns real property that could be executed against in satisfaction of a judgment in the underlying foreign lawsuit which gave rise to the action.

(g) Timing of Action; Statute of Limitations-

(1) TIMING- An action under subsection (a) may be commenced after the filing of the foreign lawsuit in a foreign country on which the action is based.

(2) STATUTE OF LIMITATIONS- For purposes of section 1658(a) of title 28, United States Code, the cause of action under subsection (a) accrues on the first date on which papers in connection with the foreign lawsuit described in section (a), on which the cause of action is based, are served on a United States person in the United States.

SEC. 4. APPLICABILITY.

This Act applies with respect to any foreign lawsuit that is described in section 3(a) in connection with papers that were served before, on, or after the date of the enactment of this Act.

SEC. 5. DEFINITIONS.

In this Act:

(1) DEFAMATION- The term `defamation' means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented a person or persons in a negative light, or have resulted in criticism or condemnation of a person or persons.

(2) FOREIGN COUNTRY- The term `foreign country' means any country other than the United States.

(3) FOREIGN JUDGMENT- The term `foreign judgment' means any judgment of a foreign country, including the court system or an agency of a foreign country, that grants or denies any form of relief, including injunctive relief and monetary damages, in a defamation action.

(4) FOREIGN LAWSUIT- The term `foreign lawsuit' includes any other hearing or proceeding in or before any court, grand jury, department, office, agency, commission, regulatory body, legislative committee, or other authority of a foreign country or political subdivision thereof.

(5) UNITED STATES- The term `United States' means the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(6) UNITED STATES PERSON- The term `United States person' means--

(A) a United States citizen;

(B) an alien lawfully admitted for permanent residence to the United States;

(C) an alien lawfully residing in the United States at the time that the speech that is the subject of the foreign defamation suit or proceeding was researched, prepared, or disseminated; or

(D) a business entity incorporated in, or with its primary location or place of operation in, the United States.


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Other Voices On Brazil Suit

This much-appreciated post is from Joe Brancatelli's "Tactical Traveler" feature at Joesentme.com

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By Joe Brancatelli

Brazil's War on the Truth, Free Speech--and Joe Sharkey

Three years ago this week, a Boeing 737 collided with a corporate jet in the skies over the Amazon. All 154 souls aboard the Gol jet perished. Among the survivors on the corporate jet was Joe Sharkey, the business-travel columnist of The New York Times who was on the flight working on a magazine assignment. As any journalist would, Sharkey immediately wrote about the mid-air tragedy for The Times and even began a separate blog about the crash's bizarre aftermath. The result? A torrent of abuse from the Brazilian authorities and the thin-skinned Brazilian media. Sharkey dished it out as good as he got, especially on his blog, but his reporting, commentary and sarcasm was almost always on point: Brazil's air-traffic control system, especially over the Amazon, is inferior and dangerous, a conclusion reached by the U.S. National Transportation Safety Board and every other neutral observer. But now the Brazilians are mounting a startling new attack on Sharkey, the truth and free speech. Sharkey has been hit with a lawsuit in Brazil that claims he insulted the "dignity" of the country. The suit would be laughable--it says he wrote things that he never wrote and even claims there's a "rumor" about his supposed real purpose for being on the corporate jet--except for one small point: A U.S. law firm arranged for Sharkey to be served at his New Jersey home and there is the slightest possibility that a Brazilian judgment against him could be enforced in the United States. You can read about the attack on Sharkey in the latest issue of Editor & Publisher magazine, in a post on his High Anxiety blog and at the Committee to Protect Journalists. As a matter of full disclosure, I consider Sharkey a friend. I link to his blog right off the JoeSentMe home page. I was the guy who convinced him to blog about business travel in the first place. And I'm proud of all of those things.

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