What does the grounding of the Boeing 737 Max jets mean? And what lessons does it teach us?

I’ve been reporting on the FAA and its historic internal conflict of interest dating back more than 40 years, and the aftermaths of the two recent Boeing Max jet crashes have once again brought this conflict into the spotlight.

When the FAA was created as an act of Congress in 1935, the regulatory agency was given essentially a schizophrenic and impossible dual mandate: to make and then enforce aviation safety policy and rules, and then to promote the business of aviation. The agency could not and cannot do both. And, sadly, it has never been able to do both. Almost without exception, any time the agency has been confronted with a choice between an urgent safety reform and considering the economic impact of that reform, it has tended to side with economic impact — and either delay the implementation of that reform or deny it.

Time after time, the FAA looked at aircraft manufacturers and the airlines as clients, as opposed to the flying public.

And to compound matters, the FAA is understaffed, underbudgeted and overwhelmed when it comes to safety.

Let’s start first with an agency that knows about safety best: the National Transportation Safety Board. The NTSB does Herculean work following an aviation accident. Its investigators work tirelessly and often against impossible odds to determine the probable cause of a disaster. And then, more important, it makes urgent safety recommendations, based on the lessons learned, so that those lessons can then be applied by the regulatory agency — the FAA — so that the same deadly scenario can never be repeated.

But that doesn’t mean the FAA will quickly apply those lessons with necessary and improved regulations. Time and time again, the FAA does not act — and the agency’s reasoning: economic impact. There’s a reason the NTSB publishes its very own “10 most wanted” list each year — urgent safety recommendations it has made, citing a clear cause as well as a clear solution — where the FAA has consistently failed to act.

One case in point not only dates back decades, but it continues unfixed today: the necessity for providing safety seats/restraints for children under two years of age. In survivable crash after survivable crash (this includes hard landings and aborted takeoffs), when the NTSB investigated, it found a fatal flaw in safety policy. Under FAA rules — then as well as now — parents of children under the age of two have been allowed to hold their kids on their laps with no requirements for any seat belts or restraining child seats. And in every case investigated, the NTSB saw the exact same scenario: the physics made it impossible for any parent to maintain the grasp of their child, and as a result, the kids became human missiles, sustaining serious or fatal injuries. And in every follow-up report, the NTSB made the exact same “urgent” safety recommendation that the airlines be required to provide seat belts or approved and tested child seats for these young passengers. And what did the FAA do? The agency is required to respond to NTSB recommendations within 90 days. On the 89th day, the FAA (being heavily lobbied by the major airlines) responded that it wanted to “study” the problem, which was considered the “response.” Well, the FAA DID study the problem at its own testing facility. And many months later, the FAA’s results were exactly the same as the NTSB findings — the crash test dummies utilized in simulated crashes and hard landings all “died.” So, what did the FAA do? Confronted with incontrovertible evidence, and instead of following the NTSB recommendation, the FAA issued a statement encouraging parents to be more responsible travelers and to bring their own child safety seats on board. But the FAA said it would not require the airlines to provide either the seats or an approved restraint system for the young children because if the FAA made such a rule, the airlines would only raise airfares and people who would otherwise fly would drive instead and be killed in automobile accidents. This was the FAA’s exact response. The FAA’s mandate is NOT highway safety but airline safety, and yet the agency indirectly ruled against the most obvious safety fix based on economic impact to the airlines — not safety.

We are nearing the 40th anniversary of the worst aviation disaster in American history — May 25, 1979 — and the crash of American Airlines flight 191 in Chicago. This was another case of bad FAA behavior. In the post-crash investigation, the NTSB learned the truth of why the DC-10’s left engine flew off the wing of the plane during takeoff, quickly inverting the aircraft before it smashed into the ground, killing all aboard. It turned out that American Airlines mechanics discovered they could save about four hours every time they performed an engine change by using a forklift truck — something the McDonnell Douglas maintenance manual specifically indicated was an unsafe procedure. What did American do? It told the FAA it was going to do it anyway, and the FAA did nothing. The plane in question was at the American maintenance base in Tulsa, Oklahoma getting its left engine replaced. The engine was attached to the pylons by four separate bolts. The maintenance workers had the engine on a forklift truck and had two of the bolts already inserted when the lunch whistle blew. During that one hour period, the forklift lost hydraulic pressure, and the unsupported weight of that engine broke one of the bolts and bent the second. When the workers returned from lunch, they simply inserted the remaining two bolts — not knowing the first two had been damaged or broken. And then the plane flew as an empty ferry flight to Chicago, where the airline boarded passengers for Los Angeles, and the rest is history.

You may remember the DC-10 was ultimately grounded by the FAA — but not willingly. The grounding order only happened when NTSB investigators began to look at those engine bolts not as the cause but the victim of a bad maintenance procedure that the FAA knowingly approved. And when the NTSB made sudden and unannounced inspections of DC-10’s flown by Continental and United, it found about five planes with serious engine pylon cracks because the same things had happened to those bolts. (When Continental and United maintenance officials discovered the FAA had approved the American Airlines shortcut, they simply followed suit.)

And that’s when the FAA reluctantly issued an AD (airworthiness directive) that said that all DC-10’s were grounded until the problem could be fixed. But it wasn’t a design problem. The plane wasn’t itself flawed. The system was. Ironically, the DC-10 was so damaged by public opinion, McDonnell Douglas saw orders for the plane evaporate, and soon production stopped. The company could not overcome the financial hit. It also triggered the end of McDonnell Douglas itself — which was later bought by….Boeing.

In fact, the entire system of ADs is flawed. The FAA has at its disposal the use of ADs to ensure and maintain safety. But it doesn’t move swiftly to use them because of intense lobbying by the manufacturers and the airlines. In fact, there are a number of different kinds of ADs that the FAA can use. The weakest is the “service bulletin,” which essentially tells the industry that the agency has determined there may be a safety problem and encourages the airlines to inspect its aircraft the next time the plane is brought in for service. A modified AD is stronger and says the agency has determined a problem and then gives the airlines or manufacturers a deadline to fix the problem, with the consequence being it cannot fly an unfixed plane after that deadline. And the strongest AD is to inform the industry that the FAA has determined a serious safety problem and that the aircraft is grounded and no one can fly the plane until it is fixed.

It is that third, most serious AD that the FAA has historically slow-walked. In the entire history of the FAA, the agency has grounded only four aircraft types — the Comet jet back in the early 1960s, the DC-10 back in 1979, and most recently the Boeing 787 Dreamliner after a series of uncontained lithium ion battery fires in the cargo hold. And now, it’s the 737 Max. In every case, the agency did not act quickly and was heavily lobbied not to make that necessary move.

And this is where we find ourselves again in the wake of the Boeing 737 Max.

It is a system problem. First, how are planes certified as airworthy in the first place? The FAA doesn’t have the staff to thoroughly inspect the design and production process. Instead — and for decades it has allowed the use of “FAA designated” inspectors to certify a plane. And here’s a huge conflict. Who do these inspectors work for? They work for the manufacturers themselves. The FAA depends on employees of the manufacturers to tell them that everything is ok! That’s like letting the mouse be in charge of the cheese.

This is not just in the case of the production and design of airplanes but in the development of training manuals and simulators as well. What we have already discovered in the case of the Boeing 737 Max jets is that Boeing — in a fierce race against Airbus to develop and deliver planes and secure billions of dollars of orders — may have rushed the certification process. And in at least one area — the flight management system of the jets — installed a new system without even telling the pilots it was on the new plane or training any of them in how to operate the system. Even worse, there was no training in how to disengage the system.

But the problem is much deeper than that. The FAA, the airlines and Boeing will all argue — correctly — that flying has never been safer. We’ve just celebrated the safest decade of U.S. aviation safety since aviation began. There’s been only one fatal accident — the crash of Colgan Air near Buffalo in February of 2009 — and that in itself is a remarkable statistic. However, the real challenge is how do you maintain that safety record if there’s little or no oversight? Here’s a second, most disturbing case in point. The MRO stands for Maintenance Repair Organization. These are the independent companies that perform the maintenance for the airlines. More and more airlines these days are outsourcing heavy maintenance work with much of it going overseas. And where is the FAA oversight? It’s virtually nonexistent. Again, the FAA doesn’t have the budget or enough inspectors to do the work, so more often than not, the inspections do not happen. And, if an FAA inspector does want to travel overseas to inspect the work, he must first ask permission and then — and I am not kidding — he is then required to give the MRO a week’s notice that he is coming. That’s tantamount to the health inspector calling the restaurant to let it know of a kitchen inspection in seven days. In that scenario, it would not be surprising when every restaurant passed the inspection.

While Congress has announced hearings into the certification and manufacture and testing processes surrounding the 737 Max, what hasn’t been reported is the real economic fallout as well as how this will impact travelers.

There has been a loss of trust with both the manufacturer and the FAA. The flying public, which doesn’t really distinguish between a 737 — the most popular aircraft type in the skies — and the 737 Max — doesn’t want to fly the plane. Reservations have been canceled at an alarming rate, and future reservations have flatlined. The loss of trust with the FAA extends now to other countries. Already, Canada has announced that when and if Boeing supplies a “fix” to the flight management software systems of the 737 Max it will not rely on the FAA to recertify its safety but will do that process on its own. A growing number of airlines that had ordered more 737 Max jets are either deferring deliveries or cancelling the orders and forfeiting their option payments. Pilot unions are telling their own airlines they won’t fly the planes until they are satisfied that they are properly trained in all the systems on board. (Boeing was in such a rush to deliver these planes that there were no full scale, real-world flight training simulators developed in time to train pilots. Most of them had less than an hour training…on an iPad).

And how soon will the 737 Max jets return to the skies? My guess is not anytime soon. U.S. airlines won’t comment publicly, but their actions speak loudly. Passengers who were holding reservations on these planes have already been rebooked on other aircraft types — not just for flights this month — but on flights extending through this coming August. The airlines are preparing for those planes to be sitting on the tarmac for quite some time. And the loss of revenue is staggering. And many airlines have already announced the filing of compensation claims against Boeing. Travelers can count on fewer, more crowded flights and — given the law of supply and demand — higher airfares.

But we can also count on a long-term loss of confidence in the FAA as well as the system that has allowed us to get to this point in the first place. The questions remain: what did Boeing know and when did it know it? How did it communicate to the airlines and the pilots? And how did the system once again allow the manufacturers and the airlines to strongly lobby the federal agency tasked with enacting and enforcing safety against doing the right thing time and time again?