Pilot Counsel: For your benefit

Some of the Pilot's Bill of Rights

February 1, 2013

John Yodice

In October 2012 I reported the passage of the Pilot’s Bill of Rights that became effective August 3, 2012 ( “Pilot Counsel: Big News for Pilots”). I summarized the provisions of the new law. As I then explained, all of them come as good news for pilots. For example, the new law mandates a study to improve the much-abused FAA notam system. And it calls for an independent assessment of the FAA’s medical certification program, including medical standards and forms. These changes should help pilots in the long run. This month, I will concentrate on provisions that will provide immediate guidance to pilots who may come under investigation by the FAA. I say “may” because most pilots don’t become subjects of an FAA investigation. The trouble is that we can’t tell in advance who will. Too many times the investigation comes as a surprise to pilots who are not prepared to protect their interests.

The most important short-term change requires the FAA to give a more “timely” written notification to a pilot who is being investigated, and to provide a warning about the potential consequences of responding—or failing to respond—to the FAA investigation. This early notification should allow pilots to more productively participate in the investigation and protect their interests. The new law does allow the FAA to delay timely notification if it determines that such notification may threaten the integrity of the investigation, hopefully sparingly and reasonably used so as not to subvert the obvious intent of the law. Time and experience will tell.

Curing a past abuse, the required notification must now warn the pilot that any response to the notification may be used as evidence against the individual, that a response is not required, and that no action or adverse inference can be taken against the individual for not responding to a notification of an investigation.

Similarly curing a past problem, the results of the FAA’s investigation must be “timely” made available to the individual, including access to air traffic data of air traffic communications tapes, radar information, ATC controller statements, flight data, investigative reports, and any other ATC data that would be helpful to pilots under investigation. Airspace incidents have become a predominant focus of FAA investigations. To put teeth into the requirement for ATC data, the FAA may not proceed against a pilot during the 30-day period from the date on which the air traffic data is made available to the pilot, unless an emergency exists.

The right of access to ATC data is expanded to cure another situation that had become a problem for pilots involved in ATC incidents. By way of background, the federal Freedom of Information Act generally provides that federal agencies’ records must be made available to the public on request, with certain exceptions. The information required to be disclosed includes air traffic data. In many cases it became important for a pilot to prove that he or she had called Flight Service for a preflight briefing. Once Lockheed Martin took over the operation of FAA flight service stations, Lockheed Martin refused to provide the data to pilots on the basis that Lockheed Martin is a private entity, not the government, and is not bound by the Freedom of Information Act. Now, under the new law, an individual is entitled to any air traffic data from a “government contractor that provides operational services to the FAA, including control towers and flight service stations.”

The FAA’s website (www.faa.gov) has a Pilot’ s Bill of Rights hyperlink that may be used to request this kind of air traffic data. The FAA cautions that any requests must be “expeditiously” received because data “is destroyed or otherwise disposed of within a few days or weeks after it is generated.” And the FAA suggests that the requests be as detailed as possible to help the FAA identify the location of the information.

It remains to be seen how these pilot’s rights are implemented in practice. Off the topic here, remember the importance of the 10-day time-limited protection afforded by filing an Aviation Safety Report with the National Aeronautics and Space Administration. Then, if relevant, be mindful to formally ask the chief of the FAA ATC facility to preserve the ATC communications and computerized data related to the incident so that the data does not get routinely destroyed. If you have received a letter of investigation from the FAA, note its new warnings. If you are a member of the AOPA Legal Services Plan, seek guidance on if and how to respond.

John S. Yodice is the legal advisor for the AOPA Pilot Protection Services plan. He heads Yodice Associates, a Washington, D.C.-area firm specializing in aviation law.