Six years after Notice of Proposed Rulemaking 65-23 arose and was ultimately defeated (see “Saving Skydiving—Part 1: Controlled Airspace, 1965,” March Parachutist), USPA faced a second great legal challenge to skydiving. This challenge, which became known as the columns-of-air concept, was more subtle in appearance but just as threatening to skydiving’s existence. And this time, the Federal Aviation Administration itself, rather than an outside entity, initiated the proposal. It also took far longer—almost three years—to resolve.

This challenge to skydiving appears to have originated in a meeting of the Fort Worth (Texas) Air Traffic Control Advisory Committee in January 1971. Future USPA Executive Director and then-USPA Secretary Bill Ottley was at the time executive director of the National Pilots Association, and he acquired the minutes of the meeting. The minutes stated that all Federal Aviation Administration regions were having problems with parachute jumps, that the Flight Standards Service would be amending Federal Aviation Regulations Part 105 (Parachute Jumping) and that the FAA General Counsel had written a draft Notice of Proposed Rulemaking, which he was expected to issue later that month.

The minutes also stated what would be included in the NPRM:

1. Air Route Traffic Control Centers will approve parachute jump areas.
2. Parachutists must have written permission from airport managers if jumping is conducted at that airport.
3. Jump areas would be approved for one year and then would have to be renewed. (This would mean that no jump operation could count on a permanent location, making them unlikely to invest in additional permanent facilities.)

To USPA, the thought of Air Traffic Control Centers having this much control over skydiving was horrific, to put it mildly. However, we didn’t know exactly what might appear in the NPRM, so we approached the matter cautiously. USPA alerted members to what we began to call the “columns-of-air concept” and asked them to prepare to take action when the time came.

Ready for Action
Time for action came sooner than expected. Ottley, USPA’s “man in Washington,” discovered a draft of the NPRM. It proposed that ATC “be notified at least one hour before any jumps are to made into the airspace for which an authorization has been issued.” Jumpers would also need to select their jump area in coordination with an ATC facility and make their application in writing. It went on to state, “Jumping over or onto airports is prohibited unless authorized by the FAA.”

As USPA Executive Director, I sent this draft NPRM to former USPA National Director and attorney Jack Cleary, law student J. Scott Hamilton and USPA Treasurer Jack Bergman, requesting their comments as soon as possible. Hamilton called me within 72 hours, and passed along several valuable points of rebuttal, as well as suggestions for combating the proposed NPRM. Soon, Cleary provided additional input. Two days later, National Director Leon Potts reported that Ottley had arranged for a meeting with FAA officials the very next day, May 13. After many hurried conversations and assembly of a paper for the meeting, I caught the red-eye from California (where USPA Headquarters was then located) to Washington, D.C.

In D.C., Ottley, Potts, and I worked out a sensible approach to oppose the implementation of the NPRM. The three of us met with the deputy assistant administrator for general aviation, the chief of the airspace and air traffic rules division and an official with the air traffic rules branch. All of these FAA officials were shocked that we had a copy of the draft NPRM, which was not to be released until the next day. We pointed out, item by item, how the NPRM would severely hamper, even destroy, the sport. All three FAA officials expressed real surprise at this, stating that it was not their intent. We left the meeting assured that they would not introduce the NPRM and instead that USPA would submit guidelines to ATC on handling skydiving. We left the meeting quite pleased with ourselves. Upon my return to the office, I composed an article for Parachutist giving high praise to our friends in the FAA.

Not So Fast
That joy of our success was short-lived. Eleven days after our meeting, Ottley informed me that our “friends” in the FAA reneged on their promise to drop the columns-of-air NPRM and that they would soon resubmit it. Immediately upon hearing of the 180-degree turn, USPA, relying on the expert advice of Hamilton and Cleary, prepared a strong letter of protest to the FAA administrator that referred to the May 13 discussions and called for the FAA to leave FAR Part 105 as it was. Three weeks later, we received a reply, which stated, “It was the impression of the FAA representatives who attended the meeting that USPA apprehension concerning the proposal involved procedural rather than regulatory aspects,” and went on to say, “FAA can devise methods to ensure that the proposed rules, if they are adopted, are administered in an efficient, equitable manner.”

Only a well-trained bureaucrat could come up with “procedural” versus “regulatory” excuse for the turnaround, but the “if they are adopted” phrase gave us a spark of hope that the NPRM would not be issued soon, if ever. However, in August, we learned that the NPRM was being readied for publication. Shortly afterward, Potts visited the FAA and succeeded in having the NPRM pulled again, virtually off the presses.

We weren’t able to relax for long. The Federal Register published NPRM 72-29 in its final form on November 3, 1972. It sought to establish these rules:

1. Jumpers must get at least 15 days advance approval from ATC to establish any DZ or conduct any demo jump
2. To conduct parachute jumping in any airspace—controlled or uncontrolled—requires authorization, and the FAA can turn down any jump for any reason.
3. Any authorization issued for a full-time jump operation is good for only 12 months and can be withdrawn at any time without prior notice or showing of good cause.

Fighting Back
The columns-of-air idea was now in the preliminary stages of ruining skydiving. USPA President Paul Tag immediately formed a task force consisting of Cleary, Hamilton, Ottley, Potts and myself to formulate a plan of action. We got busy.

I authored an editorial that appeared in the January 1973 issue of Parachutist outlining the monumental task ahead of us and encouraging each member to respond to the NPRM. As a follow up, Hamilton penned an article in the next issue of the Parachutist, in which he asserted that FAR Part 105 was sufficient for regulating skydiving and iterated the danger posed by passage of the NPRM. The article spelled out that the NPRM would require DZ operators to, at least once a year, go through the same hassle required for exhibition jumps and would give regional Air Traffic Control Centers unfettered authority to refuse parachute jumping in their areas for any reason (or no reason at all). Hamilton pointed out that no other aviation activity required authorization to use airspace and that parachutists were being singled out for discrimination. The proposed rule would allow any ATC employee to prohibit parachuting on a whim, for no reason at all! In early February 1973, USPA followed this up with a mailing, based on Hamilton’s strategy for opposing the NPRM, to the 19,000-plus members of USPA.

Also in February, the task force and attorney Charles Harris finalized the official response to the NPRM, which went out under my signature. This response was rather lengthy and went into great detail, but the crux of the paper was summarized in its conclusion: “No one segment of aviation should be harnessed with being restricted to a particular block of airspace during a particular period of time. This smacks of discrimination against one user of airspace, a discrimination not borne by any other user.”

During this time, USPA members and supporters were busy writing letters of opposition to the NPRM. By the end of February, the FAA Docket Section had received more than 3,000 letters and were behind in logging in all the responses. In early March, they extended the deadline by 30 days to April 4 to give them more time. On March 8, the number increased to 5,000, and the FAA was still not through counting. By the end, total responses to the NPRM numbered more than 11,000. This set a record for number of comments received for a single NPRM—just as USPA supporters’ responses had in the 1965 case.  

A Long Wait
Through March and April 1973, USPA attempted to arrange a meeting with top-echelon officials in the FAA to no avail, and they were being very silent on the status of the NPRM. This may have had something to do with the volume of responses received, as well as a change in FAA administrators (with the new administrator facing confirmation difficulties in the Senate). Finally, though, the FAA agreed to meet on May 16.

Ottley, Potts and I attended the meeting for USPA. The FAA sent nine officials: five from the Flight Standards Service, three from the Air Traffic Service and one from the Office of General Aviation Affairs. During that meeting, I felt there was a reluctance to understand our position and was convinced that the FAA would not be satisfied until additional regulations were passed, even though skydiving had a perfect safety record when it came to other users of the airspace. I left very disappointed, although Ottley and Potts did not share that feeling. We would have a while to wait until we had a decision on the NPRM—withdraw, approve or amend and resubmit—from the FAA Regulatory Council (the decision-making body in FAA); they would likely not review the NPRM for 60-90 days.

In July, Hamilton (who had graduated from law school and was now a licensed attorney) conferred with the FAA Legal Counsel Section and heard that the FAA Regulatory Council was planning to withdraw NPRM 72-29. But Washington, D.C., was in throes of the Watergate scandal, the newly minted FAA administrator was not on speaking terms with the White House, and a high-ranking individual in the FAA stated that they did not wish to take any action on the NPRM “without the assistance of the administrator.” Parachuting had been touched by Watergate. USPA would not receive a decision for months.

Finally, on October 10, 1973, the decision came down. The very next day, Ottley notified USPA Headquarters via Western Union that NPRM 72-29 had been cancelled! After two and a half years of sustained effort to defeat an attempt by the federal government to severely restrict or abolish legal skydiving in this country, the national organization stood tall, took the high ground, fought hard, never flinched and once again preserved skydiving’s rightful place in the nation’s airspace.

About the Author

Norman Heaton, D-565, was PCA/USPA Executive Director from 1964-1975, a time when skydiving fended off tremendous threats to its existence. His efforts on behalf of the sport earned him the USPA Lifetime Achievement Award, membership in the International Skydiving Hall of Fame and the Fédération Aéronautique Internationale Paul Tissandier Diploma. He is the author of “My First 1,000 Jumps: The Evolution of a Skydiver and the Organization That Became His Life.”