By Ryan King
The FAA’s compliance program requires a pilot to be “willing and cooperative.” The FAA’s typical approach to inadvertent noncompliance is to use a compliance action: an informal process of identifying and fixing the root cause in lieu of an enforcement action.
This resolution may range from an informal verbal discussion to a formal training syllabus, as opposed to a certificate suspension or revocation that can result from enforcement action. Sometimes, however, pilots can be adversarial and defensive when they are informed of a potential pilot deviation and investigation. Being unwilling to participate in the compliance program disqualifies one from being considered for compliance action.
Pilots reacting defensively to FAA investigations is not entirely unreasonable or unjustified. Until late 2015, the FAA was in a strict enforcement mode when it pursued enforcement actions in most cases where a deviation was reported. In 2015 alone, 1,771 legal enforcement actions were taken, many of which resulted in suspensions and revocations. Consequently, many pilots developed a distrust of the FAA. By 2021, however, there were 1,017 enforcement actions, and that number included a spike in unruly airline passenger incidents. In contrast, there were 5,241 compliance actions. Starting in late 2015, the FAA shifted its focus to training and education to achieve its goal of aviation safety. The data shows that this has been as effective as the prior focus on harsh enforcement. Another observation we can take from these statistics is that the FAA is following up with more reports of potential deviations than they were previously. This may be because FAA staff are not tied up with enforcement actions.
The compliance program requires a “cooperative attitude” from the pilot. Many may be left scratching their head in wonder at this term. This is especially true when considering the FAA’s history of strict enforcement, but also when considering the Pilot’s Bill of Rights. After all, don’t you have the right to not give a statement to the FAA? Will getting a lawyer be perceived as being suspicious or not having a “cooperative attitude”? Although getting a lawyer before responding may be perceived negatively by some, it is your right, and the FAA states that the agency will not hold it against you.
Declining to answer questions until you have had the opportunity to speak with a lawyer is also not considered an uncooperative attitude. Having the appropriate attitude is more about being polite and courteous with the inspector instead of being adversarial, defensive, or combative. Being respectful does not necessarily require a pilot to answer questions over the phone. When contacted by an FAA inspector, we often recommend that a pilot politely request any questions be sent in writing via email, then have an aviation attorney review the responses prior to sending back to the inspector.
There are certainly times when the FAA inspector may get it wrong and there may be a case to litigate, but often, it is best to work with the FAA inspector toward a common goal of aviation safety.
Ryan King is an attorney for AOPA Legal Services.