Photo: Eddie's Monopoly Set
When I was a TAG Aviation check airman we had a pretty good record of fighting FAA certificate actions, until the last one. (They tore down the entire company with that one and TAG USA is no more.) In that time I learned a few things and after listening to lawyers on both sides I have come to several conclusions:
What follows are quotes from the references listed below, with my comments in blue.
Figure: "Was that for us?", from Chris Manno
[Extracted from US Court of Appeals, No. 98-1365.]
Imagine you have departed the busy Los Angeles area on an IFR flight plan with a clearance to 17,000 feet. You fully expect to get the next clearance before reaching 17,000 feet.
ATC: “Climb and maintain flight level two three zero.”
You: “Roger, climb to flight level two three zero.”
Passing 18,200 feet you hear this:
ATC: “Say altitude?”
This scenario happened on June 19, 1994 to Northwest Airlines Captain Richard Merrell. The clearance to FL 230 was intended for another pilot, who read back the clearance at precisely the same time. Air traffic control never heard Merrell’s read back and did not correct his error.
The FAA issued an enforcement order against Captain Merrell. The order alleged that Merrell had violated FAA safety regulations by operating an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised, in violation of 14 C.F.R. § 91.123(b).
Merrell appealed the enforcement order. After listening to the tape he conceded that he had simply “misheard” the instruction but argued that ATC controllers are required to correct erroneous read backs. The NTSB accepted his arguments and dismissed the enforcement order, saying there was “no evidence in the record that [he] was performing his duties in a careless or otherwise unprofessional manner.”
The FAA argued that the Board's decision would have a “profound” negative effect on air safety: “Under the decision, airmen can claim, without further proof, that they did not hear or that they misperceived safety crucial instructions as a means to avoid responsibility for noncompliance or erroneous compliance with ATC clearances and instructions.”
NTSB Order No. EA-4814 reversed the board’s earlier dismissal. “Under the Administrator’s interpretation of the relevant regulations, however, an error of perception does not constitute a reasonable explanation for a deviation from a clearly transmitted clearance or instruction. Rather, inattentiveness or carelessness is presumed from the occurrence of a deviation unless, as we understand it, the misperception or mistake concerning the clearance was attributable to some factor for which the airman was not responsible, such as an equipment failure.”
The FAA is given free reign in these cases unless the pilot can prove there was a factor beyond his or her control. The pilot can be forgiven for thinking he or she is guilty until proven innocent in these cases. So how does the pilot keep this from happening in the first place?
Note: this does run contrary to AIM 5-3-1 (b) which still uses "to" and "for" in recommended readbacks. But in my opinion, the technique is so much stronger, safer, and efficient than the procedure, that you are well justified to adopting it.
Figure: TECKY ONE Paranoid Trap, from Eddie's notes, taking KSJC TECKY ONE Departure (FAA SW-2, 28 May 2015 to 25 Jun 2015) ground track and altitude restrictions and using KSFO Class B Airspace Restriction overlay.
You may have heard of 14 CFR 91.117(c) and you may even know what it says:
[14 CFR 91, §91.117(c)] No person may operate an aircraft in the airspace underlying a Class B airspace area designated for an airport or in a VFR corridor designated through such a Class B airspace area, at an indicated airspeed of more than 200 knots (230 mph).
But how often do you consciously plan for it? The controller also knows the rule but may not care until the day the sky is crowded with smaller aircraft that are having trouble spotting you in time to avoid a collision. You can be sure that on a day that it does matter the controller’s opinion will carry more weight than yours. Consider the San Jose TECKY ONE departure published on January 8, 2015.
If you simply pull up the departure procedure, read the narrative, and mentally fly the solid black line, you can be forgiven for thinking you can accelerate to 230 knots right after takeoff. The first waypoints departing Runway 30 left or right have two restrictions: you must be at least 900 feet in altitude and you cannot be faster than 230 knots. Since we are normally keyed to remaining below 250 knots when below 10,000 feet, we tell ourselves our new target speed is 230 knots until passing STCLR or MLPTS.
Figure: TECKY ONE displayed on G450 FMS, from Eddie's aircraft.
The flight management systems on many airplanes will dutifully accelerate to that speed, Class B overhead or not.
NORCAL Departure Control would be fully within their rights to point out that you are flying below the San Francisco Class B airspace and your speed cannot exceed 200 knots under 14 CFR 91.117(c). The fact the Class B is not mentioned or depicted on the departure procedure is no excuse. There have been violations issued and NORCAL has been called several times on the discrepancy:
[NBAA Airmail, February 3, 2015] Pilots are reminded that the aircraft is below the Class B airspace in the turn and then just prior to SPTNS. Several pilots have had Pilot Deviations filed against them for exceeding the 200 KIAS limit below the Class B.
An even more insidious source of Class B high-speed trouble happens on arrival, when approach control is trying to sequence aircraft for approaches. “Fly 210 till the marker,” is a clearance to fly a specific speed but it is not clearance to violate an FAR.
So how do you protect yourself from the unknown Class B area that may be lurking over your head? If your departure or destination lies underneath a Class B area you should print the chart or have it readily accessible in the cockpit. If you can overlay the chart on your avionics you should. You should also add Class B considerations to departure procedure and approach briefings.
Chances are the first person to detect a problem will be the one sitting in the pilot’s seat. You know the rules and you might, after all is said and done, realize you might have “brushed up against” a restriction. Or you may get the dreaded “call me after you land” instruction. Your first indication could very well be a certified letter.
[Wall Street Journal, "Duck and Cover Up"]
Subsequent investigations uncovered a pattern of these failures to report and prompted the FAA to institute corrective programs called everything from “Air Traffic Quality Assurance” to the “Operational Error Detection Program.” Real-time software systems, such as the Traffic Analysis Review Program (TARP), automatically detect, flag, and report loss of separation and other occurrences at air traffic terminal facilities without controller input or knowledge. A controller may no longer have the ability to forgive an infraction and may in some cases be at risk when deciding to do so.
In 1975 the FAA enlisted the help of the National Aeronautics and Space Administration (NASA) to act as a third party to receive and process Aviation Safety Reports from pilots, controllers, and other users of the National Airspace System. The intent was very good, of course. Allowing the free, unrestricted flow of information gave the FAA the data it needed to find problems it would not normally get and take the necessary corrective actions. In return, it was said, licensed pilots, air traffic controllers, dispatchers, mechanics, and others would get a form of immunity, a “get out of jail free” card of sorts. But it doesn’t really work that way. The Aviation Safety Reporting Program is outlined in Advisory Circular 00-46E, and FAA Joint Order JO 7200.20 Voluntary Safety Reporting Programs. The ASRS was designed in 1975 but has since been modified three times, meaning what you know about the program may have changed.
Figure: ASRS Stakeholders, from ASRS Program Briefing, slide 10.
[AC 00-46E, ¶5.]
[FAA Order JO 7200.20, ¶2-7.] Filing a VSRP report does not preclude the FAA from performing its responsibilities pertaining to event reporting, quality assurance, quality control, and oversight; or employees from fulfilling their obligations to any investigative process. The FAA may conduct an independent investigation of any event disclosed in a report.
[FAA Order JO 7200.20, ¶2-13.b.] When an employee submits an ASRS report, disciplinary action may not be taken for a reported event if all of the following conditions are met:
There are pilots who get pretty upset by the word "employee" in this FAA Order. Keep in mind that in ¶1-2 the order clearly states: "This order applies to all ATO personnel directly engaged in and/or supporting air traffic services and only to events that occur while acting in that capacity." Pilots have their own protection:
[14 CFR 91, §91.25] The Administrator of the FAA will not use reports submitted to the National Aeronautics and Space Administration under the Aviation Safety Reporting Program (or information derived therefrom) in any enforcement action except information concerning accidents or criminal offenses which are wholly excluded from the Program.
Notice it does not prohibit enforcement action, just the use of the information in the ASRS report.
[AC 00-46E, ¶9.c.] The FAA considers the filing of a report with NASA concerning an incident or occurrence involving a violation of 49 U.S.C. subtitle VII or the 14 CFR to be indicative of a constructive attitude. Such an attitude will tend to prevent future violations. Accordingly, although a finding of violation may be made, neither a civil penalty nor certificate suspension will be imposed if:
NOTE: Paragraph 9 does not apply to air traffic controllers, who are covered under the provisions of the Air Traffic Safety Action Program (ATSAP), as described in the ATSAP Memorandum of Understanding (MOU).
So air traffic controllers are covered by the FAA Order cited earlier, we pilots are covered by this AC
In other words, filing an ASRS report may not get you out of a violation, but it will get you out of a civil penalty or suspension under certain circumstances. It could get you out of the violation if the investigator is so inclined, so you should file the report.
The forms are available online (http://asrs.arc.nasa.gov) and can be either mailed or filed electronically. If the report reveals criminal activity, it is sent to the department of justice and the FAA with identifying information. If the report details an accident, it is sent to the NTSB and the FAA with identifying information. All other reports are de-identified and sent to interested parties. NASA will time stamp a Reporter Identification (ID) Strip and send that to the sender as proof of submission.
Figure: Sample ASRS ID Strip, from a friend of Eddie
Once you have submitted the report and received the time stamped ID strip, you should lock that away for safekeeping should the FAA decide to investigate the incident.
A side benefit to the ASRS database is that we, as pilots, have access to the de-identified reports: http://asrs.arc.nasa.gov/search/database.html.
Figure: ASRS Model Applied to International Aviation Community, from ASRS Program Briefing, slide 50.
If your incident does come under investigation, an official of the FAA with an official title will start making phone calls and will start taking notes. Even if his note taking skills are not up to par and even if the people he speaks to do not have the best memories, the moment the inspector types them onto a letter with the FAA logo and signs with his FAA title, that document becomes a dated, official piece of evidence. How are you going to challenge that?
You need your own official document. You should make a written record of the incident, taking care that everything is accurate and paints the situation in a favorable light. Leave out any embellishments or unnecessary facts. Have knowledgeable friends and coworkers comb over the document with a critical eye and make edits as if your license depended on it. When you are satisfied, take it to a licensed notary republic and make it all official with your signature and the notary’s seal. The act of getting it in writing will cement the facts in your mind and having it notarized will give any future investigator pause about pursuing the case. The investigator’s notes, after all, are quite often recollections of disinterested parties that may not have been paying as close attention to your aircraft as you.
Why do you have to do this? An aviation lawyer who used to work for the FAA as a prosecutor told me that they get their side of the story on paper, sometimes months after the fact. Their recollection can be cloudy and there notes can be shoddy. But they are on paper with the official FAA logo on top and their signature as "inspector" on the bottom. If you have something that predates that, has applicable attachments, and presents a compelling argument, it will strengthen your case.
Photo: Violated pilot's license, from Eddie's Photoshop
If an FAA inspector meets you at the airplane or office, or even calls you on the phone, you may not be well served by saying the first thing that comes to your mind. “I want to talk to my lawyer,” however, can be taken as a sure sign of weakness. You need to think about this before it happens.
If, for example, the inspector asks you if you happened to graze the nearby Class B airspace, the right answer could be the wrong answer. Let’s say you are positive you were clear of the airspace and said so. If the inspector can produce a radar tape that says otherwise, you have lied to an official of the FAA. A better answer to almost every case would be, “I’m pretty sure I’ve flown in accordance with all rules and regulations, but I could use some time to do a normal post flight and mental debrief of the trip. May I call you tomorrow at a time of your choosing, please?”
If the inspector thinks you are a consummate professional with an innate desire to do things by the book and a priority on safety, your future endeavors should go well. The inspector does not want an ugly confrontation. If, on the other hand, you start things on an adversarial tone, they will only escalate from there.
Under FAA Order 2150.3B, a Letter of Investigation (LOI) will not be issued unless evidence shows that a violation may exist. The LOI is sent by regular mail and either certified mail, return-receipt requested, or by registered mail. It normally specifies a 10-day time for reply.
[FAA Order 2150.3B, Chapter 2, ¶2.b.] The FAA’s compliance and enforcement program is designed to promote compliance with statutory and regulatory requirements. The program provides a wide range of options for addressing noncompliance. These options include educational and remedial training efforts, administrative action in the form of either a warning notice or letter of correction, certificate suspensions for a fixed period of time, civil penalties, indefinite certificate suspensions pending compliance or demonstration of qualifications, certificate revocations, injunctions, and referrals for criminal prosecution.
[FAA Order 2150.3B, Chapter 2, ¶3.c.] Although the agency has programs to encourage self-disclosure, surveillance remains the primary method of detecting violations.
How long do you have? FAA Order 2150.3B, Chapter 4, does give some time guidance and you may have heard they have 75 days to complete the investigation (Chapter 4, ¶4.e.) but there are lots of exceptions that bring that out to 6 months, 5 years, and even further. In other words, there is no time limit.
[FAA Order 2150.3B, Chapter 4, ¶8.c.] In prosecuting both certificate actions and civil penalty actions, the FAA has the burden of proof, by a preponderance of the reliable, probative, and substantial evidence, to establish all facts necessary to satisfy each element of a statutory or regulatory violation. The preponderance of evidence standard requires that the FAA’s evidence shows that it is more likely than not the respondent committed the violation. When a respondent asserts an affirmative defense at a hearing, the respondent has the burden of proof and must establish the elements of the defense by a preponderance of the reliable, probative, and substantial evidence.
All this would be fine and dandy in normal court of law, but you will not be in a normal court of law. Who gets to decide what is a preponderance of evidence when presented by the FAA? Why it is the FAA, of course. And who gets to determine if the affirmative defense you present meets that level? Why it is the FAA again!
[FAA Order 2150.3B, Chapter 4, ¶9.a.]
The LOI goes to your residence on file with the FAA, the same one that is on your license.
[FAA Order 2150.3B, Chapter 4, ¶12.d.] The extent of special enforcement consideration to be given in a particular case will depend on a weighing of public interest factors. The FAA considers the following factors in any such determination:
You need to strike the investigator as the consummate professional who doesn't mess around in any matters related to aviation. Everyone that investigator speaks to must have the same impression of you, so the time to start building that clean as a whistle reputation is now.
Your next stop should be with a lawyer who specializes in defending against FAA enforcement actions. Find a lawyer who has an established reputation with the FAA who can give you an honest assessment of your chances and the best way to pursue your case. If you are a member of the AOPA, you can receive a lawyer at no cost for up to 10 hours. (http://pilot-protection-services.aopa.org)
Give the lawyer all the facts and be honest. A skilled aviation law attorney can paint a picture for the FAA that includes your background and experience as a professional aviator. A cut and dried case against you can be turned into a tale of a good pilot trapped by difficult circumstances that will never happen again. Or a shaky case built on circumstantial evidence could end your flying career for good. The difference could very well be determined by your legal representation.
Aviation Lawyer Edward J. Page of Carlton, Fields, Jorden, Burt, P.A., offers advice based on years of experience working on behalf of the FAA and on behalf of pilots:
The sanctions are outlined in FAA Order 2150.3B, Chapter 7. If you get to this point, you might want to study this chapter to put your mind at ease or to at least give yourself a peek into your future. For now, however, a few things of note:
Few areas of our government are granted such absolute powers immune from review.
Appendix B of FAA Order 2150.3B contains several tables of sanction guidelines. A general aviation operator, for example, can expect a 30- to 90oday suspension for exceeding a speed limitation.
In the end, the FAA may decide you are innocent or that there is insufficient evidence to issue a violation. If the FAA decides a violation did occur, you could end up with oral or written counseling, remedial training, instructions to voluntarily surrender your certificate, a suspension of your certificate, revocation of your certificate, civil penalties, and various combinations of each. While appeals to the NTSB are possible, the board is required to defer to the FAA in most cases.
14 CFR 91, Title 14: Aeronautics and Space, General Operating and Flight Rules, Federal Aviation Administration, Department of Transportation
Advisory Circular 00-46E, Aviation Safety Reporting Program, 12/16/11, U.S. Department of Transportation
ASRS Program Briefing, NASA, August 2013
"Duck and Cover Up FAA Scary Finding: Controller's Sometimes Conceal Close Calls, Wall Street Journal, December 6, 1999
FAA Order 2150.3B, FAA Compliance and Enforcement Program, 10/01/07
FAA Order JO 7200.20, Voluntary Safety Reporting Programs (VSRP), January 30, 2012
NBAA Airmail, February 3, 2015, San Jose Intl Tecky One (RNAV) Departure Procedure
United States Court of Appeals, District of Columbia Circuit., Jane F. Garvey, Administrator, Federal Aviation Administration, Petitioner, f. National Transportation Safety Board and Richard lee Merrell, Respondents. No. 98-1365. Decided September 21, 1999