Unlike most columns, this one wasn’t much fun to research and write. But it’s late winter in the lower Midwest, and I’m not flying much in a steady diet of snow, rain, high and gusty winds, and low ceilings with clouds full of ice. And besides, this is information every pilot should know.
A few months ago, I wrote about the difference between administrative FAA actions in dealing with an alleged violator of the regulations versus civil or criminal prosecutions. I dug in (which was not fun) and learned a lot more about how things can and should work, but often don’t. To begin, what to do if you answer a phone call that starts, “This is FAA Inspector Blodgett, calling for Mr. Hotshot Pilotte.”
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OK, identify yourself as Mr. Pilotte, but, if the inspector proceeds to ask you if, for example, you were the pilot of N1234Z on May 25, before replying, ask why the inspector wants that information. If he indicates he is investigating a possible violation of the Federal Aviation Regulations, you should politely ask for a written letter of investigation before this conversation goes any farther. He would eventually send one anyway, so just don’t answer any questions until you receive it.
Same thing applies when ATC tells you there has been a possible pilot deviation and to call a number once you are on the ground. Do what was asked—call the number but provide only your name, tail number, and pilot certificate number (sort of like “name, rank, and serial number”). Confirm if you were the PIC and ask why you were told to make the call. ATC will give a brief description of the event, and afterward, the pilot will likely get a letter of investigation from the Flight Standards District Office. Don’t discuss the alleged event on the phone and, especially, don’t try to talk the guy (probably an ATC supervisor) into giving you a break because the action wasn’t intentional…or that you’ll lose your job or that your wife is having a baby.
Does that sound like you’re shooting yourself in the foot? Actually, no. Remember, it’s a natural human tendency to spill all the beans, thinking that, if you cooperate, the FAA will give you a pass. You’re naturally upset and desperately hoping that being honest and forthcoming will put the inspector on your side. But, at this point, they are NOT your friends. If a pilot experiences an emergency that requires them to deviate from the regulations or that results in the controllers giving the pilot priority, then regulations require that the pilot submit a written statement to the FAA—but only if requested to do so by the agency. No request, no report.
To paraphrase Aircraft Owners and Pilots Association (AOPA) attorney Kathy Yodice, before responding to the FAA in any way, think about what happened to cause the inquiry and review your rights and options. Immediately telling the FAA everything you remember and speculating about what happened is probably the wrong thing to do. Usually, there is no obligation to say or provide anything to the FAA. Even in the limited circumstances when you are required to respond, there is usually an opportunity to gather yourself to prepare a proper response. Take a deep breath, bring up a NASA reporting form online and seriously think about seeking competent counsel. Subscribing to the AOPA legal benefit would certainly be useful, but there are other aviation lawyers to consult.
Fill the NASA form out—completely and honestly. Freely describe the situation regardless if you know you were involved in a violation of regulations. When your report is received and reviewed by NASA, to ensure confidentiality, all identifying data will be removed, and the identification (ID) strip at the top portion of the report will be returned to you, as proof of your submission.
The FAA considers the filing of a report with NASA concerning an incident or occurrence involving a violation of 49 U.S.C. subtitle VII or the 14 CFR to be indicative of a constructive attitude. It believes that attitude will tend to prevent future violations. So, although a finding of violation may be made, neither a civil penalty nor certificate suspension will be imposed. But there are some caveats:
- The violation was inadvertent and not deliberate.
- It doesn’t involve a criminal offense or accident or disclose a lack of qualification or competency.
- You haven’t committed a violation for five years prior to the date of this occurrence.
- You can prove that, within 10 days after the violation, or the date when you became aware or should have been aware of the violation, you completed and delivered or mailed a written report of the incident or occurrence to NASA.
- And here’s the biggie. The Pilot’s Bill of Rights (PBR, aka “Miranda” rights):
“The FAA shall provide timely, written notification to an individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under chapter 447 of title 49, United States Code. The notification required shall inform the individual— (A) of the nature of the investigation and the specific activity on which the investigation is based; (B) that an oral or written response to a Letter of Investigation from the Administrator is not required; (C) that no action or adverse inference can be taken against the individual for declining to respond to a Letter of Investigation from the Administrator; (D) that any response to a Letter of Investigation from the Administrator or to an inquiry made by a representative of the Administrator by the individual may be used as evidence against the individual; (E) that the releasable portions of the Administrator’s investigative report will be available to the individual; and (F) that the individual is entitled to access or otherwise obtain air traffic data.”
- READ MORE: Recalling the Rogue Inspector
It’s very important that you receive this information. I talked to an AOPA legal defense attorney and then looked up the case online. If an inspector questions you about an alleged violation without advising you of this PBR or sends you a letter of investigation that doesn’t include your PBR, the investigation may be invalid. This happened recently when an alleged offender appealed his FAA conviction to a National Transportation Safety Board law judge. With his AOPA attorney, the pilot established that he had not been advised of his rights. The judge dismissed the case.
Damn, when that call came from two Cincinnati FSDO inspectors, asking me if I had flown under the Jeremiah Morrow Bridge, I should have answered with name, rank and serial number…period!
This column first appeared in the May Issue 958 of the FLYING print edition.
