Fighting for our Rights
As pilots, we are naturally a compliant and chatty bunch. From the first moment of our training, we come to understand rather quickly that there is a complex system of rules that we must learn and follow as we fly. We are naturally motivated to know and comply with the FAA’s regulations for our own safety as well as the safety of others. As we progress through our flight training, we come to realize that we can learn from others, whether it’s information coming from our flight instructors or other students at the school, or out at the hangar when other pilots are talking about their experiences, or hearing about what works and what doesn’t work in magazines, newsletters and seminars. We love flying so it comes natural to talk about it – a lot. As I said, we’re naturally compliant and naturally chatty. For the most part, it works.
However, while compliance with the FAA’s regulations can keep you from losing your certificate and possibly having to mount a costly legal battle in doing so, the chatty part can sometimes contribute to both of these circumstances. That is why it is important for us to know our legal rights if the FAA comes to investigate an event that they believe involved a violation of the regulations. If a violation has occurred and can be proved by enough credible and reliable evidence, then it is right for the FAA to take enforcement action to address that violation. But, if there truly was no violation or evidence of any violation is sorely lacking, but the FAA is not convinced, then that is when we must rely on an independent review system to check us, and the FAA. Investigations by the FAA should be fair and a review of a disputed FAA action should likewise be fair. The pilot has rights that help to make that investigation and that review fair. But, as can sometimes occur in any system, no matter how good the system is or how good the people within the system are, an individual’s rights may not be properly understood or they may be misapplied. We need to fight together to keep our rights purposeful.
First, if you are ever involved in a situation that could have involved a violation, no matter how minor or remote you may think it is, file a NASA report right away. It takes only minutes to file a report on-line and costs you no more than a little bit of your time to do it, so there really is no excuse not to file a report. The timely filing of a report may help you avoid a sanction for the violation you may have committed. There is no limit on the number of reports you file. But, please, make sure to file it within 10 days of the flight. The only time you would be advised against filing a report is if the situation involved criminal activity or an accident. The report you file is kept confidential so being chatty here is not too risky for you. The NASA reporting program has been very successful, yet the FAA seems prone to want to undermine its benefits to pilots. The FAA has been working to limit the benefits to pilot in several other self-disclosure programs as well. We have been very active in trying to preserve these programs, predominantly doing so in the context of litigation. But, litigation is often quite costly and NTSB review can sometimes come across as one-sided. Senator James Inhofe introduced Congressional legislation recently that is titled “A Pilot’s Bill of Rights”, and it is co-sponsored by more than 24 of his Senate colleagues from both parties. One of the provisions of the Bill gives a pilot the choice of seeking review of an FAA action either before the NTSB or a federal district court. The pilot has a right to a fair and full review of whether giving up a certificate is warranted.
Second, if an FAA controller or FAA inspector asks you to call them or write to them after a situation that could have involved a violation, you should know that you have no obligation to make that call or to write that letter. If you do, you need to know that anything you say or write can be used by the FAA in its investigation. Of course, if you say or write something that convinces the FAA that there was no violation, that’s a good thing. But, if you unintentionally admit something you shouldn’t have or give the FAA more information than you should have, then you may have made the FAA’s job to take your certificate away from you easier and stronger. Here’s where chatty is not good for you. The worst part of this is that many times you don’t know that the FAA is developing evidence to take your certificate so it may not occur to you to refrain from saying too much; rather, your inclination is to explain yourself and expect the FAA to understand. This is something else that Senator Inhofe is trying to fix with the Pilot’s Bill of Rights. That is, if the FAA is investigating information that suggests a violation of the regulations, the inspector has to tell the pilot that an investigation has been opened and that anything said could be used against the pilot in processing that investigation. In addition, the FAA has to give the pilot access to the appropriate information that the FAA has gathered thus far. A pilot has a right to be able to meaningfully respond to an FAA inquiry and participate in an FAA investigation, should a pilot choose to do so.
Third, if the FAA does take a legal enforcement action against a pilot, the FAA is obligated under most circumstances to give the pilot a meaningful opportunity to be heard before the FAA takes the action. This is a right that Congress gave to pilots years ago. As your right, you have the right to exercise it as you choose, including the choice that you don’t have to say anything at all or say only as much as you want to say and no more. Being too chatty in trying to convince the FAA to reconsider its action can be risky, sometimes working to your advantage and sometimes not. In the proposed Pilot’s Bill of Rights, the FAA must advise you that you are entitled to a copy of the FAA’s evidence before exercising your right to be heard. A pilot has a right to know the basis for the FAA’s charges in deciding what to do in this regard, as that decision is often critical in working out the case or proceeding to litigation.
I could go on with concerns of unfairness that have developed over the years. Some of those concerns are addressed and may be remedied by the passage of a Pilot’s Bill of Rights. I encourage you to support your Congressmen in this effort. The FAA has a statutory duty to maintain a safe and efficient air transportation system, which includes making rules and enforcing those rules. We want the FAA to do this. What helps the FAA do this well is us. We can help to make the FAA’s rulemaking and policymaking informed and appropriate by joining and supporting membership organizations in their efforts to communicate member interests to the FAA and by commenting individually to the FAA about issues that they are working. We can also help the FAA do its job by knowing and exercising our rights and by making sure that those rights are assured. Let’s keep doing our part.
July 22, 2011