Arsa Asks Supreme Court To Rule On Freedom of Technical Data

 - June 13, 2012, 10:45 AM

On June 11, the Aeronautical Repair Station Association (Arsa) filed a friend of the court (amicus curiae) brief with the U.S. Supreme Court, asking the court to intervene in the issue of manufacturers refusing to provide technical data to maintenance providers. Arsa says it is concerned about “the FAA’s ongoing disregard for the plain language of the rules, mandated by federal statute, requiring that design approval holders [DAHs] make technical information available regarding the performance of maintenance, preventive maintenance or alterations. This requirement ensures that owners of aircraft and those servicing aircraft have access to the latest and most recent information for maintaining aircraft and is critical for guaranteeing flight safety.” The amicus brief relates to a March 2, 2011 appeal, since rejected, in the case of AvidAir Helicopter Supply of Lee’s Summit, Mo., versus Rolls-Royce.

The case involved what Rolls-Royce claimed were trade secret violations, because AvidAir was using technical data that it had not obtained from Rolls-Royce. AvidAir claimed that the technical data was not protected by trade secret law and that “Rolls-Royce had violated antitrust laws and tortiously interfered with its business interest.” The judge held in favor of Rolls-Royce and a jury later awarded $350,000 in actual damages, which, according to AvidAir president and director of operations Craig Rookstool, Rolls-Royce has yet to collect.

The dispute centers around technical documents that detail procedures for repairing compressor cases on Rolls-Royce 250 engines. Rookstool claimed that, in the course of overhauling and repairing compressor cases, his company has every right to use the documents under 14 CFR § 21.50(b). Rolls-Royce claims the data is proprietary and thus subject to trade secret laws.

Rookstool has since developed his own DER-approved repair for these cases, involving the addition of a carbon-fiber composite material to the compressor case. This lengthens the life of the case such that AvidAir is able to provide a 1,200-hour warranty, far longer than the typical life of a Rolls-Royce case, according to Rookstool. The DER repair carries its own FAA approval separate from any technical documentation issued by Rolls-Royce and thus isn’t subject to trade secret or § 21.50(b) disputes.

In its amicus brief, Arsa cites 14 CFR § 21.50(b), which “requires the holder of an FAA design approval to ‘furnish at least one set of complete Instructions for Continued Airworthiness [ICA] to the owner of each type aircraft, aircraft engine, or propeller upon its delivery, or upon issuance of the first standard airworthiness certificate for the affected aircraft, whichever occurs later.’” The regulation also requires that “The ICA furnished to the owner and/or operator under 14 CFR § 21.50(b) must also be made available ‘to any other person required by this chapter to comply with any of the terms of those instructions.’ Changes to the ICA must also be ‘made available to any person required by this chapter to comply with any of those instructions.’”

Meanwhile, the chance of getting Arsa’s amicus case heard by the Supreme Court is fairly slim, Rookstool acknowledged. But he isn’t giving up on the issue of manufacturers being required to provide technical data per § 21.50(b) and plans to file a Part 13 complaint against the FAA.

According to Arsa executive director Sarah MacLeod, “The FAA does not have discretion in enforcing its own rules. Arsa is simply pointing out that a federal agency must follow its regulations and the federal courts must ensure that the public has redress when an agency chooses to blatantly disregard its own rulemaking.” Arsa pointed out, “The FAA cannot simply turn a blind eye to its own rules, especially those mandated by federal law.”

Asked to comment on the amicus brief to the Supreme Court, a Rolls-Royce spokesman responded, “Rolls-Royce has prevailed at each stage of this trade secret case, including a jury verdict and four judges who have ruled in the company’s favor. Rolls-Royce opposes AvidAir’s petition for certiorari to the U.S. Supreme Court and will continue to protect the company’s intellectual property rights.”


Once again ARSA is championing the small business aspect of aviation and the non-compliance by the overly bureaucratic FAA. Yes, this is a complex issue and OEMs have a right to protect their proprietary interests but not at the expense of the law or the owners. I also wonder how much of this is the OEM trying to monopolize service on their products. Watch Boeing!

OEM's for decades have been withholding information from operators and third party providers. Component CMMs did not always specify adequate tooling and testing equipment forcing users to buy expensive tools and equipment or outsource the repair and overhaul work to OEMs or their licensees. Recently things have deteriorated that CMMs do not contain sufficient detailed information to maintain continued airworthiness.

It is my opinion that safety is even further compromised when technical data is not made available. My thought is that the potential for operators or repair stations to use components that are not specified in the CMM's could increase. The problem becomes even larger when the OEM, who refuses to supply technical data, decides not to support a certain product any more because of legacy status. Repairs on existing items still need to be performed and operators or repair stations will do as they see fit, be it through PMA or DER in order to return products back to service.

Typically the OEM would argue, what certain data constitutes ICA? In this case, the Overhaul Information Letters / Overhaul Procedures were actually submitted by the OEM to the FAA Chicago ACO, on an 8110-3 citing them as ICA in accordance with "33.4 Instructions for Continued Airworthiness"
Notwithstanding, with this clear evidence presented on multiple occasions, the Federal Courts declined to enforce the clear language of 14 CFR 21.50, 33.4 and Appendix A of Part 33. We are hopeful that through this Case, aviation safety will become a team effort between the OEMs and the thousands of public maintenance providers in the US, instead of an anticompetitive battleground for OEM profits and monopolies in the aftermarket that puts the flying public safety and competitive prices in compromise.

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