The most dreaded radio call from air traffic control: "I have a telephone number for you to call when you're on the ground." Your stomach sinks below your knees and your mouth suddenly feels like the Mojave Desert.
First, let's get real. The FAA has a legitimate responsibility to make sure we fly safely, and that responsibility must sometimes include wielding a stick. Next time you're rocketing down the runway for takeoff in a commercial airliner, ask yourself how you'd feel if an instructor and his student were meandering without a clearance across the runway and in your path. Of course, our perspective on enforcement depends to a certain extent on whether or not we're the accused.
So let's review the types of enforcement actions the FAA might pursue--and the levels of pain it might inflict. Understanding what we might be facing will help us determine our course of action:
- Administrative action
- Reexamination
- Certificate action
- Civil penalty
- Criminal action
If the FAA thinks the violation was minor, it might address it through an administrative action that can take the form of a Warning Notice or a Letter of Correction. The Warning Notice describes the violation the FAA thinks occurred, but no further action is taken. A Letter of Correction is one step harsher, as it also reflects that the pilot has agreed to take, or has taken, remedial training or other corrective action that is acceptable to the FAA. There is no right to fight an administrative action, and it is an official record against the airman. It is supposed to be erased after two years. If you don't think you violated any regulation, you'd be well advised to respond with a letter to the FAA, explaining why you believe no violation occurred and ask that the letter be included in the record.
The FAA has authority to reexamine an airman at any time on reasonable grounds. Thus, if your real or perceived violation calls for more than an administrative action, or casts doubt on your competence, the FAA might send a letter notifying you that a reexamination is necessary. The letter usually will advise you of the maneuvers or procedures on which you will be reexamined. Don't even think about ignoring this letter; doing so will result in an order suspending your certificate until you pass the reexamination. Most people pass, but if you fail (after several opportunities), the FAA will act to revoke or suspend your certificate. You then have a right to appeal to the NTSB.
When the FAA believes the violation is too serious to remedy through an administrative action or reexamination, it can proceed with either a certificate action or a civil penalty. In a certificate action, the FAA seeks to suspend or revoke a pilot's certificate. A civil penalty means essentially the FAA gives you a ticket with a monetary fine.
You have procedural rights when the FAA goes after your certificate or wants to fine you. The FAA must specify the charges and the reasons for the action before it is taken (unless it is an emergency action against your certificate), and you have an opportunity to explain why the proposed action should not be taken. You can request an informal conference with the FAA attorney handling the case. Most cases are settled at an informal conference. If the case isn't dropped or settled at an informal conference, the FAA then takes action--suspension, revocation, or fine--and you have a right of appeal to the NTSB. Your certificate remains valid while your appeal is pending.
An appeal to the NTSB is a formal, legal hearing before an administrative law judge. The FAA will be represented by a lawyer. If you choose to represent yourself, the odds are you won't do well. We're talking about your livelihood here, so if you can afford an attorney, retain one. Membership in AOPA's Legal Services Plan can pay big dividends here.
Once the administrative law judge has reached a decision, either party (or both) can appeal to the full five-member NTSB. The pilot has a right of appeal from the full board's order to a federal appeals court, but the FAA can appeal only if it "determines that such an order will have a significant adverse impact on the implementation of [the Federal Aviation] Act."
The nuclear weapon of FAA enforcement is criminal action. Aircraft piracy, forgery of certificates, false marking of aircraft, and airport security violations are examples of instances in which criminal actions have been brought. The Justice Department, not the FAA, pursues criminal cases involving FAA violations. Here's some terse advice: If you're charged with a crime, get a lawyer.
How should you proceed when threatened with a violation? The threat may arise when you're advised to call a telephone number, or it can come in the air during an exchange with a controller, or in a letter from the FAA, notifying you that it is conducting an investigation.
It's wise to act quickly after any incident you think may give rise to an enforcement action. You've probably heard of the Aviation Safety Reporting System (see "What Happens When Thing Go Wrong?" March 2007 AOPA Flight Training). It allows you to report incidents or unsafe conditions in the national airspace system and, as an incentive, if you file the ASRS form within 10 days of an incident, in most instances you receive immunity from a fine or the suspension of your certificate (see "Legal Briefing: ADIZ vs. ASRS," page 46).
But how best to respond to the FAA? First, understand that pilots are under no legal obligation to say anything to the FAA regarding a possible violation. Legally, you don't have to call the telephone number ATC gives you. Legally, you don't have to respond to an FAA letter requesting information. But is ignoring the FAA a good idea? Not usually. If you totally ignore the FAA, it's likely to resolve all doubts against you and to charge you with the harshest enforcement action possible.
That doesn't necessarily mean, however, that you should call the telephone number or respond to the FAA's letter, and blather the most expansive defense you can conjure up. A little judgment is called for here--and, unfortunately, there are no hard and fast rules. If you think the FAA may be inclined to just admonish you orally or content itself with administrative action, then a humble, cooperative approach may be best. Saying you won't talk without a lawyer, when the likely outcome if you do talk is minor, may only prompt the FAA to propose sterner action. Before you talk, however, think carefully about what you want to say, how much to say, what questions the FAA is likely to ask and how you'll answer them.
If, on the other hand, there is a substantial chance the FAA will take certificate action against you or will propose a fine, the best course of action, as I said above, is to hire an attorney. Don't ignore the FAA; be polite, but don't provide more information than the bare outlines of what is already known and obvious to all. State quietly that you understand the FAA's desire to investigate possible violations, that you take your obligations to fly safely very seriously, and that you will be happy to cooperate. Also say that, unless the FAA is not contemplating action against you, you feel it best to consult a lawyer before proceeding. Since the FAA likely won't give you any guarantees, its representative will be the one overreaching if he presses you to respond anyway. Politely decline if he does.
Steve Frahm is an attorney who learned to fly in the 1970s. He is a part-time CFII in Maryland.
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