Pilot Counsel

Troublesome deadlines

May 1, 2005

Attorney John S. Yodice provides legal counsel to the leadership of AOPA's 400,000-plus member organization.

Regular readers of this column recognize that we frequently use it to explain legal requirements, what they are, how they are applied, and your rights and responsibilities in coping with them. When we can, which is usually, we use real-life litigation cases to avoid an academic discussion that could be required reading but also could be boring.

This month we are dealing with troublesome, hard-to-remember deadlines. Aircraft owners and pilots are faced with a deceptively large number of such deadlines and time limits in their everyday flying. When does your medical certificate expire? Your flight review, recent-experience requirements, the aircraft annual inspection, transponder check, altimeter check, VOR check, CFI renewal — just to mention a few deadlines that apply only to noncommercial flying, and all of which have been covered in prior columns. Even the list is hard to remember. Here is a case that reminds us of an ELT (emergency locator transmitter) deadline, and a likely consequence of missing it.

The legal requirement itself is fairly simple when considered out of this context. FAR 91.207, in the part about which we are concerned, provides that "no person may operate a U.S.-registered airplane unless" (pretty standard regulatory language that you have seen before) the batteries used in the required ELTs (there are some limited exceptions to the requirement) are replaced when 50 percent of their useful life has expired. The expiration date for replacing the batteries, which is established by the transmitter manufacturer, must be legibly marked on the outside of the transmitter and entered in the aircraft maintenance record.

On August 13, 2001, a couple of FAA inspectors were performing a routine inspection of a small Part 91 flight school in the Northeast. They noticed that the maintenance records for a certain Cessna 152 indicated that the battery for the ELT was due for replacement June 1, 2001, about two months or so earlier. One of the inspectors issued an aircraft condition form (FAA Form 8620-1) advising the owner and operator of the flight school that replacement of the ELT battery was overdue. The flight school set about to immediately replace the battery, doing so on August 17, a few days after being notified by the FAA of the overdue replacement. The flight school claimed that it did so after the FAA inspector advised that the FAA would take no enforcement action if the ELT battery was replaced.

But the FAA did take enforcement action. The aircraft log indicated that the aircraft had been operated on nine flights in July, which of course was prior to the FAA notification, and about two months after the battery replacement time had expired. The FAA issued a complaint alleging that the operation of the aircraft on those nine flights with the overdue ELT battery was a violation of the part of FAR 91.207 mentioned above. The FAA assessed a civil penalty of $5,400. A civil penalty is essentially a fine. The statute, 49 US Code 46301(a)(1), provides for a civil penalty not to exceed $1,100 for each violation of certain FARs.

The flight school appealed the fine. The case was assigned to an administrative law judge of the U.S. Department of Transportation (the FAA's parent agency) who, instead of holding a hearing, granted the FAA motion for decision without a hearing. The judge did so on the basis that there were no material facts in dispute. The judge rejected the flight school's defense of "reasonable reliance," which was based on the inspector's alleged promise that if it remedied the problem, the FAA would take no enforcement action. The judge also rejected the flight school's challenge of the appropriateness of the amount of the fine in these circumstances.

The flight school further appealed the case, challenging the judge's decision to the FAA administrator, the next level of appeal. The justice of the FAA acting as prosecutor, judge, and jury all in the same case could be a topic for another column, if I break my own rule on academic discussions in favor of venting for my own psychological benefit. For now, the FAA administrator predictably affirmed the judge's decision including the assessment of the $5,400 civil penalty. The administrator also affirmed the rejection of the defense of "reasonable reliance" as lacking merit. What does that say to those of us who "reasonably rely" on maintenance personnel to keep track of such things on routine annual or other inspections?

So here is another time-limited regulatory requirement that we need to keep track of, and the possible consequences of missing it. It goes without saying that it would be useless to argue that the battery so recently out of half-time would probably have worked if there had been a crash on one of those nine flights (FAA, a little prosecutorial discretion in favor of common sense), or that this rule, instituted as a reaction to a crash years ago in a remote area of the Southwest, might not have the same urgency in the operation of light training aircraft operated in a local, probably populated, area in the Northeast, in this day of ubiquitous transponders and radar flight following (again, a plea for some common-sense prosecutorial discretion). Of course, we don't have all the facts, only those reported in the legal decisions, but on those facts a warning or a more modest fine might have been a more appropriate disposition.