Phil Boyer has served as president of AOPA since 1991.
On September 11, 2001, I would maintain that the Federal Aviation Administration lost control of U.S. airspace, and has been in an uphill battle to regain its pre-9/11 position as the "keeper of the keys" to this important resource. AOPA members, airlines, air traffic controllers, and the businesses that support aviation are continuing to suffer the consequences of the FAA's loss of control. Temporary flight restrictions (TFRs), expanded military airspace, complex notices to airmen, prohibition of stadium overflights (curtailing banner towers' rights to continue their small businesses), and a host of other restrictions threaten to forever change the concept of the FAA being the controlling agency for the skies.
Enough was enough, however, when in May the Michigan legislature passed a bill designed to regulate flight schools and flight instructors by the imposition of aviation security restrictions requiring FBI and state criminal background checks on all who wish to take flight instruction. To make matters worse, instead of this applying only to new pilots wanting to start primary instruction, the confusing legislation also applied to Michigan pilots wishing to gain a higher rating or certificate, or wishing to obtain proficiency training. Failure to comply results in a revocation of a flight school's state license and the owner is punishable by imprisonment for 90 days or a fine of $100 to $500, or both, together with costs for the prosecution.
Leigh Stanley, the manager of Tradewinds Flight School in Pontiac, Michigan, indicates that his business is down. Stanley states, "I think it's an ugly law. I think it impinges on personal freedom. I think it cuts to the very heart of what flying is all about, which is freedom!"
Michigan flight school students must fill out Felony Disclosure Form RI-8, which includes their social security number, and then must undergo fingerprinting at a local law enforcement agency. As if the costs to learn to fly aren't already high enough, the student is charged $54 for this identity-check processing. The form is mailed to the state police and the student is then provisionally admitted to flight training until the form is processed, which could take as long as 45 days. The flight school owner may conditionally accept the student until the criminal background check is completed. The new law states that "a person violating this provision is guilty of a misdemeanor." The "person" is not identified as to whether it is the flight school owner, the independent flight instructor, or the student. Also, the flight school owner is required to keep these records in a safe place and not disclose the information, but may send the information to another flight school.
This brings up all sorts of privacy issues for the individual and potential liability issues for the flight schools. Anyone working at the flight school would be privy to the records. Identity theft would be easy under these circumstances. Such information might easily be read by others or stolen.
The third-generation owner of Berz-Macomb Flight School in Detroit told AOPA that one of his students went to the local police to get fingerprinted. The student was turned away and told, "We don't do that; go to the state police." Arriving at the state police office he was told, "We don't have any forms, and we won't have them." Jeff Berz didn't give AOPA the outcome, but I can assume it certainly won't result in more people learning to fly, not with this sort of hassle. To make matters worse, southern Michigan schools are losing students to flight training facilities in Ohio, only to find the Michigan residents coming back to the airport that lost the business to practice takeoffs and landings.
Most of us would have no problem with a background check, but the hassle factor and intrusion of privacy makes this an issue. At pilot town meetings I have been asking the question, "Should there be a background check, most likely a criminal-history records check, for students who are U.S. citizens?" Seventy-one percent of the pilots answered no, while 29 percent would accept this premise.
The crux of the matter that concerns AOPA is moving more airspace control from the FAA and placing it in the hands of a state as the Michigan statute does, or even in a county, since San Mateo County in California at this writing has passed a similar regulation. Michigan isn't regulating flight schools; it's attempting to take control of the airspace over its state, and that's the purview of the federal government. This is the premise of a lawsuit we filed in the Eastern District of the U.S. District Court in late August. "A state's exercise of its police power is limited, however, by those constraints that govern all governmental actions, including the Supremacy Clause of the United States Constitution, ART VI, clause 2." AOPA is also asking for declaratory and injunctive relief, so there is an immediate cessation of these background checks.
The outcome of this case will prove extremely important as other states and local governments look to implement similar actions. Lawsuits are expensive, time consuming, and each is carefully thought out by your association. This precedent-setting issue received our immediate and total effort, with a strong legal action. General aviation will not stand silent as legislators try to remove our access to the skies.
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