Article By Roger M. Morgenthal
On August 3, 2012, the Pilot’s Bill of Rights was signed into law. Although the agencies most affected by the law (FAA and NTSB) will have to go through their customary rule making processes in order to implement its provisions completely, it is clear that this is a big step in the right direction.
Most of the hundreds of pilots that I have represented in FAA enforcement actions committed their alleged violations unintentionally, through carelessness, inadvertence, mistake as to regulations or loss of situational awareness (as in “Oh gosh, I think that’s Camp David down there”). They are always embarrassed, regretful and scared once the enforcement action begins against them. They often say, “I feel like a criminal defendant the way they’re treating me.” My stock answer has been, “Don’t feel that way—criminals have more rights than you do.” In several significant ways, that was entirely true.
Criminal suspects are generally entitled to receive the Miranda warnings including that they have the right to remain silent and that anything they say may be used against them in court. Pilots being investigated have received no such warnings, even though they actually had the same options. They received that dreaded instruction from ATC: “N1234, after landing call the tower at 800-XXX-XXX.” When they called the tower, they were being recorded and had started digging the hole that they would not be able to climb out of. Sometimes the first indication of a problem has been receiving a Letter of Investigation (LOI) saying they are being investigated for a possible violation but are being given the opportunity to respond in writing offering their version of the incident. Virtually every client who responded to the LOI before talking to me made damaging—sometimes fatal—admissions of guilt, and options for resolving the case in any satisfactory manner were greatly reduced or eliminated.
Under the Bill of Rights, the pilot now must receive “timely, written notification” of an FAA investigation that includes notification as to the nature of the investigation, that neither an oral or written response to the LOI is required, that no action can be taken against the pilot for not responding, and that any response to the LOI or any other FAA inquiry may be used against the pilot. The pilot is also informed of a right to access ATC material relevant to the investigation such as communications tapes, controllers’ statements, radar information and similar data.
It has been sometimes been difficult or impossible to obtain air traffic data where a private contractor is in charge. Lockheed Martin, which operates FAA Flight Service Stations, has refused to cooperate with the Freedom of Information Act on the basis that it is “not the government” and not bound by that Act. Now government contractors providing operational services to the FAA must turn over requested data.
The NTSB is now given greater freedom to interpret regulations without being bound by what the FAA has previously adopted as policy and the post-NTSB appeal process to the federal courts has been improved.
The NOTAM procedures are being modified to make them more timely, efficient and available. They will be easier for pilots to find and prioritize, and they will be archived for later reference. (Too bad this won’t be in place for the presidential election campaign this year, with all the “moving TFR’s” that follow the candidates’ caravans along the highway.)
Finally, the Medical Certification process will be studied, revamped and focused on relevant questions that allow a more fair evaluation of the pilot’s qualifications.
One final change under the Bill of Rights will make it even more essential for the pilot under investigation to retain the services of a qualified aviation lawyer as soon as possible. Beginning immediately, “to the extent possible” all appeals to the NTSB from an FAA action are to be conducted in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Those rules are detailed, often complex and require legal expertise to interpret and apply, and a pilot attempting to pick his way through the process without counsel will have a difficult time (think “partial panel to minimums” and you’ll get the idea).
Smigel, Anderson & Sacks, LLP, is one of the few firms in Pennsylvania that maintain an Aviation Law Section staffed by experienced pilots who are AOPA Legal Services Plan Panel Attorneys and have practiced aviation law for many years. We provide defense for enforcement actions; expert counsel in aviation-related business transactions such as aircraft sales, leasing and financing; employment law representation to companies, pilots and mechanics; real estate and zoning law assistance to airports and municipalities; and personal injury representation to persons affected by aircraft accidents.