Airport Business

JUN-JUL 2018

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28 airportbusiness June/July 2018 LEGAL MATTERS By Mark Dombroff Promoting SAFETY How a 2002 law could reduce risk for U.S. airports, contractors and consultants. U.S. airport operators and their contractors and consultants tend to be vigilant about risk-management. However, many have yet to pursue the powerful liability protections that are potentially available to them thanks to an underappreciated piece of federal legislation — the SAFETY Act of 2002. Why would airports fail to take advantage of a law designed to protect American businesses from liability? That easy-to-remember acronym might have something to do with it. The authors of the SAFETY Act probably started with the catchy acronym and worked backward. Keen on using the reassuring word "safety" in the uncertain wake of 9/11, law-makers christened their bill the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (§Subtitle G of Title VII of the Homeland Security Act of 2002). The purpose here was to protect the gamut of businesses that could be assets in the War on Terror. Imagine a startup that makes a nifty gadget for detecting plastic explosives at airports. Lawmakers understood that even if such a device were successful 99 out of 100 times, even a single failure could trigger an avalanche of lawsuits. Congress was concerned that, faced with such a "bet-the-company" level of liability risk, U.S. businesses would simply scrap plans for innovative products and services. But use of the word "technologies" in that acronym (and throughout the statute itself) is potentially misleading. In actual practice, the protections in the SAFETY Act are available to a wide variety of aviation and non-aviation companies. Indeed, they are potentially available to any company that provides equipment, services, devices or technologies (including IT technologies) that are "designed, developed, modified, or procured for the purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm from such attacks." Of particular note here is inclusion of the term services. Over the last year or so, federal regulators have granted SAFETY Act protection to K-2 Solutions Inc., which runs canine teams of explosive-detecting dogs; the security program (and its employees, contractors and consultants) for a 100-foot perimeter area around Little Caesars Arena in Detroit; and Universal Protection Service, a national shopping mall security company, to name a few. Clearly, there is broad potential at airports for in-house and outsourced programs to win similar protections, so long as they meet the broad requirements listed above for SAFETY Act qualification. The tremendous upsides associated with a successful bid are worth listing in some detail. Under the highest level of protection ("Approved Product for Homeland Security"), registrants are exempt from punitive damages, exemplary damages or any other damages that go beyond compensating the victim. They also cannot be forced to pay so-called non-economic damages unless the plaintiff suffered physical harm. That means that frightened bystanders to a DHS-designated terrorist attack cannot win large sums in court for the likes of physical and emotional pain and suffering, inconvenience or what they deem to be a loss of enjoyment in their lives, post-incident. The act also provides what is known, in

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