Know your rights
If an FAA inspector sends you a letter of investigation and you write back, or if an FAA inspector calls you and you speak with him or her, or if the controller asks you about a possible deviation and you talk it out with him or her, be aware that any information that you provide could be used in the FAA's investigation of the matter.
The FAA doesn't usually tell you this, but the information you provide, whether orally, in writing, or on tape, is admissible in evidence in an enforcement action--that is, your words can be used against you, without your knowledge and without your consent. In all circumstances, the pilot should exercise caution in giving the FAA information. For example, if there is a dispute as to the facts, or if the FAA might have some trouble establishing some necessary element of proof, it may be better for the pilot not to respond to the FAA at all or to respond very simply, to avoid giving the FAA the proof it needs. On the other hand, if there is no question as to the facts or the FAA's ability to establish them easily, then it might be better to respond and possibly provide mitigating circumstances that may help the FAA proceed with the case more favorably to the pilot.
Knowing the difference is difficult, and understanding the nuances of the FAA's different enforcement programs, such as the Aviation Safety Reporting Program, the Remedial Training Program, the FAA's Streamlined Administrative Action ("Ticket") Process, and the Runway Incursion Information and Evaluation Program, could be to your benefit. Some of these programs require that you respond in order to get their benefits. Still, whether or not you choose to respond in any of these circumstances is a choice that the FAA should respect, so there should be no negative repercussions from the FAA by reason of your exercise of your rights and prerogatives. If you can, you should seek competent counsel to assist you in determining whether to respond to the FAA and what to say in any response.
For those who are new to the world of aviation, let's take a brief look at each of the aforementioned programs. The Aviation Safety Reporting Program, or ASRS, is a voluntary program in which pilots can anonymously report safety issues or problems to the National Aeronautics and Space Administration (NASA) and the pilot may then be entitled to receive immunity from the sanction of an FAA enforcement action if he can provide proof that he filed a timely NASA report after an event or situation (see "Legal Briefing: NASA's ASRS Program," March 2003 AOPA Flight Training). Under the Streamlined Administrative Action Process (SAAP), FAA inspectors counsel pilots following an event and then mail a warning letter or letter of correction to the pilot advising that the matter does not warrant legal enforcement action and that the matter has been resolved administratively. Last, the Runway Incursion Information and Evaluation Program allows investigators to gather information from pilots involved in runway incursions and surface incidents and to forego legal enforcement action against the pilot. The information gathered under this program helps the FAA to identify ways to educate pilots and reduce the number of incursions.
At the core of all of this is the notion to think before you act and be cognizant of your regulatory responsibilities and the consequences of your actions. Always be professional and respectful in your dealings with the FAA; its representatives should be professional and respectful in their dealings with you. Being informed and knowing your options will help to make you feel comfortable that you acted in your best interest and with the best possible future result in mind.
Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.
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