In its report of September 27, 2019 the National Transportation Safety Board (“NTSB”), although acknowledging the need for Boeing to “fine tune” its technology to prevent the Maneuvering Characteristics Augmentation System (“MCAS”) from automatically repeating and sending a plane into uncontrolled dives, NTSB focused more on pilots “confusion” in responding to multiple alarms caused by the malfunction in the MCAS system control sensors. NTSB then followed up by issuing seven recommendations calling on the Federal Aviation Administration (“FAA”) to update how it assumes pilots will react in emergencies and make aircraft more “intuitive” when things go wrong, in an effort to ensure that “average pilots” can respond to complex emergencies.

The Joint Authorities Technical Review Panel, made up of experts from the FAA, the National Aeronautics and Space Administration (“NASA”) and nine other regulatory agencies from around the world, in its report of October 12, 2019 (“Joint Authorities Report”), reached a dramatically different conclusion. It instead took FAA to task for failing to follow its own rules, using out of date procedures, and lacking the expertise to fully explore the design changes for the aircraft implicated in the two crashes.

Specifically, according to the Joint Authorities Report, FAA first abandoned its regulations by failing to adequately review or validate design assumptions for the MCAS system, the malfunction of which, in repeatedly forcing the nose of the aircraft downward as a result of a faulty air speed sensor, is generally agreed to have been the primary cause of the crashes. Moreover, the panel reiterated the concerns of several pilots’ unions that neither the operational characteristics, nor even the existence of the MCAS system were recorded in the pilot’s manual for the 737 Max aircraft. Finally, the report took FAA to task for leaving the engineering of the system almost totally in the hands of the Boeing Company which has a staff of 1,500 for that purpose, while the FAA team overseeing the work had only 45, of which only 24 were engineers.

The Joint Authorities Report appears to reflect the views in earlier comments by pilots of the aircraft who laid responsibility for the events squarely at the feet of FAA for, among other things, approving the MCAS system’s safety based on a checklist that had not been updated since 1967, despite numerous modifications to the aircraft after that date.

In short, the NTSB’s conclusions regarding “average” pilots’ capabilities to withstand “confusion” in the cockpit do not appear to withstand the scrutiny of numerous aviation regulatory agencies or aircraft user groups. It remains to be seen whether Congress will meet the challenge and mandate a more stringent regulatory regime for the approval of new aircraft designs. Stay tuned.