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FAA Enforcement

One pilot's journey through the system

It was with great angst that I opened the large, certified manila envelope from the Federal Aviation Administration. It was late in May 2002, and what began as a flying incident the previous November was finally coming to a resolution. Crowded among the postal patrons, I turned deeply within and focused on the words in the letter, particularly those that proposed to suspend my private pilot certificate for 150 days. My mind raced through my catalogue of flying privileges, and the thought of losing them desolated my spirits. The three charges underpinning this proposed action were:

  1. 14 C.F.R. Section 91.13(a), in that you operated an aircraft in a careless or reckless manner so as to endanger the life or property of another.
  2. 14 C.F.R. Section 91.103(a), in that as pilot in command, you failed to become familiar with all available information concerning that flight, before beginning that flight.
  3. 14 C.F.R. Section 91.141, in that you operated an aircraft over or in vicinity of an area to be visited or traveled by the president, the vice president, or other public figures contrary to the restrictions established by the administrator and published in a notice to airmen.

After rereading the letter a few times, my spirits rose slightly as I realized that it was, in fact, a proposal and that I still had some wiggle room to vocalize my side of the story. After all, my certificate was still in my wallet and no one had asked for it — yet. I turned to AOPA and found a sympathetic ear in their legal department. Unfortunately, in the past I elected not to enroll in the AOPA legal insurance program, so the specter of legal fees loomed large in my mind. I decided to enroll at this time; however, my current difficulties would not be covered, as that would be like buying fire insurance after the fire. However, the program did offer, immediately, a free 30-minute consultation with an AOPA-recommended aviation attorney.

So what happened on that beautiful, clear day back in November? I do most of my flying in my Piper Twin Comanche, and it is done primarily in pursuit of my sales and marketing business in the mid-Atlantic region. The airplane gives me enormous flexibility, convenience, and a public relations advantage that my competitors often and enviously validate. Given the size of our territory and the number of consumer electronics dealers that we contact, it is not surprising to find a few who share my interest in general aviation. Rick Holzer of SoundWorks in Kensington, Maryland, is one. He has a private pilot certificate and owns a 1974 Beechcraft V-tail Bonanza. He called me shortly after the horrific events of September 11, 2001, to discuss taking some IFR training. Apparently Holzer's bird was based at Montgomery County Airpark, Maryland, a general aviation airport in the northwestern suburbs of Washington, D.C., where all aircraft were restricted to IFR operations following the terrorist attacks.

Holzer falls into a group of pilots who easily reach a comfort zone in VFR flying, and then for some unknown reason develop a block against finishing their instrument training. So for all practical purposes, Holzer was grounded and that was enough impetus to resume instrument training. We set a date and time for his training to commence.

The day of our first flight dawned crystal clear, so my subsequent call to flight service focused only on the new variations to the ultrasensitive airspace around Washington, D.C. When I called Leesburg Flight Service Station, I requested the following: verification of the new boundaries of the Washington/Baltimore Class B and verification that as a flight instructor conducting flight training out of Montgomery County Airpark, I would not need to file an IFR flight plan. I further explained that I would be operating to the west of Montgomery County for the purpose of instrument flight training.

We often discuss the chain of events that leads to an incident. Over the many years that I have been actively flying, I have acquired certain habits that tend to minimize the time spent on preflight. It's just a natural by-product of experience. Ah, but sometimes experience can set traps and we can become victims of our ways. So it was this fateful morning when in my minimalist approach to the FSS briefing, I failed to pull the trigger on that legal phrase, "standard briefing." Not having said the magic words resulted in a briefing that yielded all the information I asked for, but nothing more. Unfortunately, nothing more included a notam issued October 29, 2001, one that expanded P-40, the prohibited area around Camp David. In normal times, P-40 covers an area with a three-mile radius. The elusive notam had expanded that radius to eight miles so that the chunk of real estate now had a diameter of 16 miles and covered a lot of familiar, and in my mind, unrestricted airspace.

Post-September 11 confusion prevailed, and I was not surprised when the Baltimore Remote Clearance Delivery Controller questioned my request to depart VFR on a training flight from Montgomery County. I explained to him that Leesburg FSS confirmed that as a flight instructor, departing to the west for the purposes of training, I did not need an IFR clearance. The controller asked me to stand by while he checked things out. After a minute or so he came back and cleared us as requested. Holzer and I flew to Frederick, Maryland, where we landed and decided to have breakfast and review all the things that we needed to do to complete his instrument training. When we departed we headed west, past Hagerstown, Maryland, where the airspace is appropriate for training. We gained some altitude and began a process whereby I could evaluate Holzer's proficiencies and at the same time get more familiar with the Bonanza's instrument panel. All went well, and it was obvious that Holzer had some good initial IFR training and that we could progress rapidly toward the more advanced aspects of the training. After an hour or so, I noticed that with the light winds aloft, we had drifted somewhat northeast and in fact were a bit on the east side of Hagerstown. Camp David is located in a low mountain range — very wooded and difficult to spot. In fact, in all the years that I have flown around the area, I have never spotted a building or anything else that defined Camp David. Nevertheless, I felt uneasy and asked Holzer to turn southwest until we were well south of Interstate Highway 70. This he did and soon we were heading east on our way back to Montgomery County. As we approached the Class B airspace of Baltimore/Washing#on, I checked in with Baltimore Approach for a clearance back into Montgomery County. Interestingly, in addition to our clearance, we were given a telephone number to call. Uh-oh.

After landing, I immediately called the assigned number and reached someone in what seemed like a very important control center. It was not your usual ATC facility. I was informed that radar tracking had us violating P-40 and that in this post-9/11 era, it was not the smartest thing to do. The voice on the other end was very professional, sympathetic, and calm. While talking with him, I declared myself as pilot in command and made sure that there would be no repercussions for Holzer. The gentleman informed me that I would be hearing from someone who would be detailing the investigation. Over the years, on a couple of occasions, I have bumped into restricted airspace, and it never amounted to more than a couple of friendly words between a controller and me. It really didn't occur to me that anything more would happen this time, and in fact I rejected a fleeting thought of filing a NASA incident report. Many weeks went by and I heard nothing. Frankly, I almost forgot about it.

Then I received a telephone call from an inspector, and he proceeded to ask many questions for a report that he would file. He was understanding and courteous; however, I had a nagging feeling that I didn't quite say the magic words that would allow him to recommend a dismissal of the incident. He told me that his report must be filed within 90 days and that sometime after that I should hear my fate.

The certified letter that I received the following May was a proposal, and before final action was to take place I had some options. I had to choose one and get that response back to the FAA within a specified amount of time. If I failed to do that, the proposed action would become a final judgment. I turned over my paperwork to Tom Berger, my chosen attorney from AOPA's list of re.commended aviation lawyers, and had him file for the only viable option available to me, and that was to request an informal hearing with the FAA attorneys. This done, life went on, but with a growing sense of anxiety regarding my flying privileges. I received a call from Berger in July and he informed me that, if it was OK with me, the FAA would like to meet with us on September 6, 2002. It is interesting how you begin to value things when there is a likelihood of losing them. Flying privileges are perhaps not essential in my life; however, the more I thought about it, the more important they seemed.

September 6 dawned as a spectacular day. I dressed in a conservative dark-blue suit and proceeded to pick up Berger for the drive to FAA headquarters in Washington, D.C. Arriving a bit early, we were lucky to find a parking spot right in front of the main entrance. A good omen. We met with three people from the FAA — two attorneys and one inspector from the flight standards district office.

Opening conversations were casual and friendly — how could they not be with everyone in the room sharing a love for flying? But there was a serious side to the meeting and it began with Berger presenting the facts, as he knew them. After Berger's presentation, I enhanced the conversation with my personal account of the incident. Simply, I stated that I had a briefing in which I attempted to clarify for myself the post-9/11 airspace changes. It never occurred to me to ask for a notam about P-40 as it is an area I was familiar with. It was obvious that the failure on my part to ask for a "standard briefing" allowed the critical notam notification to slip through my information net. We had some more chitchat about my background and then some final words about the FAA's position on P-40 violations, of which there were now quite a few, and which certain agencies, primarily the Transportation Security Administration and the Secret Service, were adamant in prosecuting in an attempt to end the numerous airspace transgressions.

I thought our presentation went well; however, I left the meeting with a gnawing feeling that, at best, they would reduce the proposed 150-day suspension to perhaps 30 or 90 days. Dismissal seemed out of the question, as the political winds were very much on the nose of my case.

In order to fully review the standard briefing module, I visited the Leesburg FSS. A friendly and helpful briefer took $he time to review for me the ramifications of a standard briefing. When asked for, a standard briefing must include: adverse conditions, a weather synopsis, VFR-recommended or not, current conditions, en route forecast, destination forecast, winds aloft, and finally the big one — notams. The briefer further opined that pilots often listen for key words and block out other information that is vital to understanding the whole picture. It's a complex world and if we choose to take a fragment of information from here and another from there, we must be certain that our final picture is a complete one. While I talked with the briefer, several pilots came in for information of one kind or another. Ironically, the very first pilot who came in began by saying, "I'd like a standard briefing." It was a CAVU day and he was only going out toward the west by 50 miles or so, but he got the whole nine yards, including a stern overview on P-40. Apparently this pilot got his certificate when he was 17 and was resuming flying after a 13-year hiatus. His thoroughness was impressive. As an instructor I have always tried to teach completeness, so it was a bit humbling to realize that I had erred in a basic way.

At the end of September I was in Minneapolis for an industry convention, and while riding on a shuttle bus between events, I received a cell-phone call from Berger. He said, "I have some good news for you." My first thought was a shortened suspension; however, Berger proceeded to tell me that the FAA had dismissed my case. Apparently the FAA's opinion was that in a perfect world I would have asked for a standard briefing, but since we don't live in a perfect world anymore they saw no reason for the government to pursue any further action.

The year 2001 is etched in the memory. My incident pales in comparison to what thousands experienced; nevertheless, it serves me by underscoring the incredible privilege I have in flying and living in America.

The year 2001 also marked my fortieth year as a pilot, my 10,000th hour of flight, and the fiftieth anniversary of my first airplane ride. (It was a 26-hour flight from Germany to New York — our family's emigration to the United States. Without a word of English between us, my brother — now a retired TWA captain — and I found our way to the cockpit of that DC-4 and were introduced to America in the context of aviation, truly an incredible way to arrive in the land of opportunity.)

The convention in Minneapolis was winding down fast. Having the flexibility of general aviation, we elected to forego the Sunday events and planned for an early departure for Saturday evening. Arriving at Signature Aviation at Minneapolis-St. Paul International/Wold-Chamberlain Airport, I called the FSS and asked for a standard briefing from Minneapolis to Washington Dulles International Airport, filed a flight plan, and got fuel for the nonstop flight back to Washington. The clearance came back, "Cleared to Washington's Dulles Airport," followed by a simple standard departure and then direct as filed. I could not help myself from amending the words to read: "Cleared by Washington. Enjoy your flight and flying privileges."

Steven B. Zaboji, AOPA 248162, has been flying for more than 41 years and is the owner of a Piper PA-30 Twin Comanche.

AOPA Legal Services Plan

Managing a changing legal landscape

As soon as you open a new aeronautical chart these days, it changes — or so it seems. Now more than ever, the consequences of violating the nation's special-use airspace are steep. With the airspace itself in a state of flux, even the most well-intentioned pilot can find himself or herself in violation of a temporary flight restriction. For these and other legal conundrums, AOPA's Legal Services Plan can help.

The plan was developed to make aviation legal assistance and representation available and affordable to all pilots. The plan is $26 a year for most pilots, with additional coverage levels based on your flight activity.

When pilots use the plan, they get unlimited consultation with the plan's legal staff on most covered matters. Plus, payment for most or all attorney fees for these aviation-related legal matters is covered: FAA, state, or local government enforcement actions; FAA medical certificate revocations or suspensions; aircraft accidents; alcohol and drug testing related to flight activities; aviation-related tax and U.S. Custom matters; plus legal advice on your aircraft purchase or sale. The plan also provides an annual review of your key aviation documents such as: aircraft rental, leaseback, hangar, and tiedown agreements.

AOPA can connect you with one of more than 600 attorneys throughout the United States, most of whom are AOPA members and pilots. Pilots also may choose their own attorney and be reimbursed by the plan according to a schedule.

Even conscientious, experienced pilots can find themselves facing certification action and other legal issues. The AOPA Legal Services Plan is an important way to protect your certificate.

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