FAA legal opinion says states can't pass laws regulating pilots

In response to a request from the Aircraft Owners and Pilots Association's general counsel, the FAA has issued a legal opinion that state and local governments cannot pass laws regulating pilot licensing. The FAA said specifically that state laws requiring student pilot background checks "would likely intrude into an area that Congress has preempted." The opinion letter will be filed today with the federal district court in Detroit to support AOPA's lawsuit against Michigan's pilot background check law. "This letter is important ammunition in our lawsuit," said AOPA President Phil Boyer. "The FAA says clearly that only the federal government can regulate pilot certification."

Boyer noted that the issue is not about aviation security; AOPA supports reasonable, effective measures on the national level to enhance security. The issue is really about state and local governments attempting to illegally control who can fly in the nation's airspace.

AOPA filed suit in federal court August 2 challenging the Michigan law, contending that it is a violation of Article VI, clause 2 (the "supremacy clause") of the U.S. Constitution. The law requires a criminal record background check through the FBI for any person enrolling in a flight-training program to obtain a pilot license or to obtain a new certificate or rating (additional privileges for an already licensed pilot).

A public hearing is scheduled October 29 in federal court in Detroit, Michigan, on AOPA's request for a preliminary injunction to block enforcement of the law until the court hears the case.

FAA Chief Deputy Counsel James W. Whitlow offered the opinion that "state legislation that requires the collection of personal information from prospective students, including fingerprinting and background checks, or disqualifies prospective students based on specified past criminal conduct would likely intrude into an area that Congress has preempted. Congress has reserved to the [FAA] Administrator the authority to regulate 'civilian schools giving instruction in flying.'"

Whitlow said that the courts have consistently rejected state efforts to regulate aviation, supporting the concept that aviation regulations must be the same across the country.

"The need for uniformity among the states in this area should be readily apparent," Whitlow said. "Aircraft navigate in federally regulated airspace, frequently traversing through and landing in a state other than the one from which the aircraft took off. The U.S. Supreme Court and numerous Circuit Courts of Appeal have found that a single, uniform system of regulation is essential to aviation safety.

"The qualifications of the persons operating aircraft are determined according to federal rules and should not be subject to standards varying from state to state."

Whitlow said that the FAA shared the concern of state legislators in protecting against the potential harmful use of aircraft. "Nevertheless, it is our view that the adoption of such measures must be uniform through the country and, therefore, is appropriate only at the federal level."

AOPA has taken active steps to enhance general aviation security on the national level. The association has filed a petition with the FAA to change the rules to provide for a more secure system to identify pilots. AOPA and the aviation industry have presented a 12-point plan to enhance aviation security nationwide.

And AOPA and the Transportation Security Administration recently announced the creation of AOPA's Airport Watch program to enlist the support of some 550,000 general aviation pilots to watch for and report suspicious activities at general aviation airports. The Airport Watch hotline will be formally launched in December 2002.

A copy of the FAA's opinion is available at www.aopa.org.

The 385,000-member Aircraft Owners and Pilots Association is the world's largest civil aviation organization. Some 60 percent of the nation's pilots are AOPA members.

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