call the tower: pilot deviations and faa enforcement (2015)

“Call the Tower…”

MARK J KOLBER ATTORNEY AT LAW

mjk@mkolberlaw.com

Pilot Deviations and FAA

Enforcement Actions

Midlife Flight, LLC

mark.kolber@midifeflight.com

Mark Kolber

Attorney, Commercial Pilot, CFI / CFII

Who the Heck Am I?

Commercial Pilot

CFI-A / CFI-I

Attorney licensed in North

Carolina, Colorado &

Massachusetts

Member

– AOPA Legal Services Panel

– Lawyer-Pilots Bar Association

Disclaimer

This presentation presents general

information and does not comply with

requirements for giving legal advice.

Its content should never be used to replace

advice by a professional you personally

consult.

Don’t say I didn’t warn you!

How it all begins...

“After landing call...”

“Possible pilot deviation. Suggest you

contact…”

Formal Letters of Investigation

Ramp checks

Accident/incident investigations

Complaints by citizens

Complaints by other pilots and operators

Initial Contact

“Call the Tower”

“Possible Pilot Deviation.

Suggest you contact…”

– “Brasher” warning.

– In ATC Handbook.

– May be required in certain

cases or no sanction for

violation.

Initial Contact

Should I call?

What should I say?

Unfortunately, it’s not as simple as that.

Initial Contact

Saying nothing can be the right answer.

But it can also be the wrong answer!

The FAA has a number of ways to handle

possible violations.

And so do you.

So let’s explore…

Enforcement Process

Letter of Investigation

Nature of the violation.

Pilot’s Bill of Rights.

Entitlement to traffic data and how to get it.

Advises that response is not required.

– Only respond if you are sure it will help!

– Get advice!

“Respond in 10 days or the file

will be processed without the

benefit of your comments”

Enforcement Process

FAA Enforcement Options

[Civil Penalties]

Certificate Revocation

Certificate Suspension

“709” Ride

Warning Notice or Letter of

Correction

No Action

No Action

Can happen at any point

– After a talk with the controller

– After oral or written communications with an

Inspector

– After Letter of Investigation

– After Notice of Proposed Certificate Action

Records expunged after 90 days

Warning Notice or Letter of

Correction (FAR 13.11)

“Administrative Action” not “Enforcement”

Typically involves some sort of re-training

Sometimes associated with special FAA

programs

– Expired Runway Incursion Information

Evaluation Program (RIIEP)

Warning Notice or Letter of

Correction (FAR 13.11)

Warning Notice

– Describes the incident.

– States “may have been a violation.”

Letter of Correction

– FAA decides there was a violation.

– Specifies corrective action (training).

– Pilot agrees or already took corrective action.

– If not completed, enforcement action likely.

709 Reexamination

…the Federal Aviation Administration may

…reexamine an airman… 49 U.S.C.

§ 44709(a)

Must be “reasonable”

– But refusal will lead to an emergency order

Limited to reason for request

May request change of inspector or FSDO

Get and log training

Suspension

For a stated period.

– FAA Order 2150.3B. FAA Compliance and

Enforcement Program Sanction Guidance

Table.

Expunction – until the pilot dies.

– Used to be 5 years.

– Colgan crash and Airline Safety and Federal

Aviation Administration Extension Act of 2010.

– Changes to PRIA.

Revocation

Certificates and ratings gone.

May reapply after a year.

– Start all over. Multiple checkrides but may use

prior time to meet requirements.

Typically for the most serious violations.

– Drugs and alcohol use

– Fraudulent logbook and flight record entries

– Repeated TFR violations

Expunction – Never

Lowering Risk of Violations

69% of pilot deviations come from General

Aviation – Us!

Preflight Planning.

Situational awareness.

Taxi diagrams.

– Runway incursions remain a significant

deviation issue.

Lowering Risk of Violations

Pay attention to altitude assignments –

especially IFR!

Declare an emergency when you have a

problem.

Training.

– Flight training.

– Avionics and tablet training.

– Wings seminars.

Mitigating Consequences

Aviation Safety Reporting System (NASA

Form).

Consult before you talk.

Remedial Training – beat them to the

punch!

– Schedule session with your own CFI

immediately.

– This may help and will not hurt.

ASRS – NASA

Safety program with benefits.

Evidence of a compliant attitude.

Mail or submit online within 10 days.

Report may not be used against you in

enforcement proceedings.

– May use information from other sources.

ASRS – NASA

Anonymous.

– Don't lose it by identifying yourself in

narrative.

Exceptions to anonymity.

– Criminal activity

– Accidents (NTSB Part 830 definitions)

ASRS – NASA

Waives the penalty not the violation.

Does not waive the penalty if:

– Violation within prior 5 years.

– Violation was intentional or deliberate.

• May be subject of hearing

Does not prevent a “709 Ride”

Mitigating Consequences

Aviation Safety Reporting System (NASA

Form).

Consult before you talk.

Remedial Training – beat them to the

punch!

– Schedule session with your own CFI

immediately.

– This may help and will not hurt.

“Advise you contact...”

Aviate – Navigate - Communicate

Fly the airplane!

Complete the flight.

Park/Tie down.

STOP!

RELAX!

THINK!

“Advise you contact...”

Should I call?

What should I say?

Should I identify myself?

– Famous case or aviation myth?

– They have the tapes. They saw the

radar track.

– IFR or filed VFR flight plan – the PIC

is already identified.

“Advise you contact...”

Be polite but non-committal

– “This is N1234X. I was asked by to

call you after I landed. Can you tell

me why?”

– “I’d rather not say anything about it

right now.”

– I’d like an opportunity to hear the

tapes before I say anything.

• Pilot’s Bill of Rights -

https://www.faa.gov/pilots/rights/

How to Deal with Investigation

Do not ignore.

Do not schmooze.

“Compliant attitude.”

Listen more; talk less.

Avoid admissions.

Don’t threaten to send your lawyer, but…

If you can, speak with an attorney before

speaking with the FAA.

Hot Topics

Model aircraft (drones)

– Pilots may be subject to enhanced civil

penalties or certificate action.

More flexibility for inadvertent, first time

TFR violations.

– Possibility of remedial training/administrative

action for:

• 1 mile incursion with immediate exit

• 2 minute improper squawk with no air traffic

complications.

Hot Topics

Model aircraft (drones)

– Pilots may be subject to enhanced civil

penalties or certificate action.

More flexibility for inadvertent, first time

TFR violations.

– Possibility of remedial training/administrative

action for:

• 1 mile incursion with immediate exit

• 2 minute improper squawk with no air traffic

complications.

Find a lawyer – Join a LSP

Cheap protection.

More likely to call attorney.

Recurrent training for

AOPA Panel lawyers.

AOPA members have

access to the list even if

not a subscriber.

Questions/Comments/Concerns?

Q&A

Thank you for

coming!

Feel free to contact me with

questions about this presentation.

mark.kolber@midlifeflight.com

mjk@mkolberlaw.comYou ever been in a cockpit before?