Recently the NTSB remanded a case back to the administrative law judge ("ALJ") for a hearing on an independent charge of violating FAR 91.13(a) (careless and reckless). In the case, Administrator v. Hollabaugh, the FAA suspended the airman's airline transport pilot certificate for alleged violations of FARs 135.263(a) and 135.267(d) (flight and duty time regulations), as well as FAR 91.13(a) which the FAA alleged was a residual violation based upon the other violations. Based upon the airman's admission of all allegations except the careless and reckless charge, the FAA moved for summary judgment on all counts.

In response to the FAA's motion, the airman argued that the residual FAR 91.13(a) charge was inappropriate since violations of FARs 135.263(a) and 135.267(d) were not operational violations. The FAA then filed an "errata" to its motion which stated that reference to the FAR 91.13(a) violation as a residual charge was an error "because the factual allegations in the [c]omplaint effectively charge [r]espondent with an independent charge of carelessness under FAR 91.13(a). The ALJ accepted the errata and then granted the FAA's motion on all counts.

On appeal to the full Board, the airman again argued that "granting summary judgment on the FAR 91.13(a) charge was inappropriate because FAR 91.13(a) only applies to operational violations" and since neither FAR 135.263(a) nor FAR 135.267(d) is an operational violation, his admissions concerning those violations did not prove that he also violated FAR 91.13(a). Recognizing that the Board had not faced this issue before, it initially reiterated that the FAA needs "to plead explicitly in the complaint whether a charge under FAR 91.13(a) is residual or independent."

However, accepting that the charge against the airman was an independent charge, the Board then determined that the FAA had failed to produce facts supporting an independent violation of FAR 91.13(a) and, as a result, summary judgment was inappropriate. The Board observed that the FAA's "correction" to allege an independent violation did not operate to the prejudice of the airman because the independent charge then required "a higher threshold of evidence than a residual charge." Consequently, since the FAA had not provided proof, the Board remanded the case to the ALJ to hold a hearing solely on the independent FAR 91.13(a) charge.

Nice to see the FAA's untimely attempt to fix its pleading error backfire in favor of the airman. At least now the FAA will have to prove the independent violation of FAR 91.13(a) rather than simply tacking it on, although I don't know that the hearing will result in a different outcome since it will still be in front of Judge Geraghty. However, hopefully the FAA will at least take note of the Board's admonition and draft careless and reckless allegations more accurately in the future.

Since it is the time of year for resolutions, I thought I would propose some resolutions that I think would go a long way towards making 2012 a happy new year for aviation:

Resolutions by the FAA

Resolve to be consistent: Let's get rid of the inconsistent interpretation and application of the regulations not only between inspectors, but that also differ between FSDOs and even regions. If compliance is a goal, then making sure everyone is working from the same page can only enhance understanding and compliance.

Resolve to use common sense: We shouldn't waste agency funds and resources pursuing actions that do not further the goals of safety and compliance. For example, pursuing a civil penalty action against an airman for conduct that occurred before the agency revoked all of his airman certificates, when the revocation already caused the airman to file for bankruptcy, simply does not make sense. Similarly, initiating an enforcement action because an inspector has an axe to grind with an airman, should be avoided.

Resolve to actually use remedial training (and not just when a U.S. Senator is the alleged violator): If safety truly is one of the FAA's mandates (and it is), then it is unclear how a suspension that allows a pilot's skills to lapse for a period of time makes that pilot, or the aviation system as a whole, safer. For operational violations, why not require additional training to make sure the pilot will have the skills and knowledge to ensure future compliance?

Resolutions by Aircraft Buyers

Resolve to trust, but verify: Trust is an honorable quality. But don't trust blindly. When a seller tells you something, don't just take the seller at his or her word. Verify that what you are being told is actually the truth. For example, perform due diligence including a title search and name searches for the seller to discover any judgments, liens, bankruptcies or security interests

Resolve to use a purchase agreement: Using an aircraft purchase agreement can help prevent confusion and misunderstandings. If the agreement clearly explains how the transaction will happen, when it will happen and what is included in the deal, the greater the likelihood that the buyer and seller will each know the other party’s expectations and the less chance for surprises or misunderstandings. Additionally, the law in most states requires that a contract for an amount greater than $500.00 be in writing in order for it to be enforceable. This is called the statute of frauds. Although exceptions to this legal doctrine exist, complying with the law is usually safer than hoping you will be able to take advantage of an exception.

Other Resolutions

Resolve to file NASA/ASRP forms: If you are involved in an incident or something happens during a flight that makes you worried the FAA may become involved, make sure you file within 10 days in order to preserve your right to argue that any sanction the FAA may wish to impose should be waived. Since the program does not limit the number of times you can file, take advantage it, often.

If I am asked to "call the tower" or to talk to an FAA inspector or if I receive a letter of investigation from the FAA, I resolve to talk with an aviation attorney before I respond: Rather than wasting the opportunity to mitigate damage, minimize investigation or avoid providing admissions or other evidence that will later be used against you by the FAA, consult with an aviation attorney to find out where you stand or, at a minimum, to have an aviation attorney run interference between you and the FAA. Although FAA enforcement actions are not criminal proceedings, they have the potential to significantly limit, if not revoke, your privilege to operate an aircraft. Protect that privilege


Wishing everyone in the aviation industry a happy and prosperous new year!

As you may know, the Obama administration's latest budget proposes a new $100 per flight user fee for the privilege of using air traffic control services. The operators flying in controlled airspace would be required to pay the fee to the FAA. However, certain operations would be exempt from the fee including military aircraft, public aircraft, recreational piston aircraft, air ambulances, aircraft operating outside of controlled airspace, and Canada-to-Canada flights.

However, what has been missing from the discussion of the proposed user fee are a whole variety of practical, and legal, questions that remain unanswered:

The FAA as collector? If the FAA collects the fees, will this require formation of an additional level of bureaucracy to deal with collection and enforcement? Alternatively, would the FAA's regional counsel's offices be tasked with collection of unpaid fees? If so, how would that impact their current civil penalty and certificate action enforcement caseload? Or perhaps the FAA would handle collections out of its chief counsel's office.

In any event, more bureaucracy is very rarely a good thing. As an example, just look at the creation and unprecedented growth of the Transportation Safety Administration bureaucracy. And how would that additional bureaucracy be funded? Seems like a "catch-22" waiting to happen.

How will the user fee be assessed? Will the fee be assessed against the pilot, against the aircraft or, perhaps, against the aircraft owner? If the fee is assessed against the aircraft owner, what if the aircraft owner didn't authorize the activity for which the fee was charged? Would assessment of a fee against an aircraft owner under these circumstances violate due process?

How will the user fees be collected? Will the fees be charged at the point of sale (e.g. when you obtain file a flight plan or request a clearance) or will an account be established upon which an invoice or bill will later be sent requesting payment? If the former, would ATC demand a credit card number from a pilot prior to delivering a clearance or accepting a flight plan? If the latter, will the account be for the pilot, the aircraft, the aircraft owner or all of the above?

What happens if a user disputes a fee? For example, what if the fees are assessed against the wrong party or the amount assessed is incorrect? Will the innocent/aggrieved party have the opportunity/ability to contest or object to imposition of the fee? Who will decide the dispute? Will the dispute resolution process be fair and provide due process? Will the user have the right to appeal?

What happens if they are not paid? Will the government aggressively collect unpaid fees? Could unpaid fees become liens against aircraft or, worse yet, the equivalent of tax liens against the pilot or aircraft owner? If the unpaid fees are assessed against a certificate holder (e.g. pilot or air carrier) could the certificate holder's certificate(s) be at risk for failure to pay?

Conclusion

As you can see, aside from the political arguments as to whether user fees are an appropriate funding source for the FAA, the logistics of implementing a user fee system present equally formidable challenges that have yet to be addressed. Rather than simply looking at the potential revenue that user fees may generate, the administration will also need to offset that revenue with the costs of implementing and managing the necessary collection and enforcement mechanisms.

Additionally, the FAA would likely need to promulgate rules to address, and answer, all of these questions, and more. This would take time and cost more money.  At the end of the day, an honest analysis will likely reveal that aviation user fees are simply not worth it.

This was one of the questions addressed in an October 3, 2011 Legal Interpretation issued by the FAA's Office of Chief Counsel. The individual requesting the interpretation posed the questions in the context of a proposed trip to a wedding in which the pilot would receive a pro-rata share operating expense reimbursement from additional passengers pursuant to FAR 61.113(c). The questions presented were:

1. Whether the pilot may advertise, on Facebook, the specific time and date that he was traveling in order to carry two additional passengers with him in exchange for a pro-rata reimbursement of the operating expenses;

2. If he receives a response to his Facebook post from two friends that expressed an interest in traveling with him in order to attend a baseball game whether he and his passengers share a "common purpose"?

3. Whether he may post the same information on a fixed based operator's (FBO) bulletin board instead of on Facebook; and

4. Whether he could receive the pro-rata expenses through Paypal since Paypal extracts a 3% commission from any fees paid through their service.

The Interpretation initially noted that FAR 6l.113(c) "allows a private pilot to receive a pro-rata reimbursement from his passengers for fuel, oil, airport expenditures, or rental fees, so long as the pilot and his passengers share a bona fide common purpose for conducting the flight." It went on to discuss "common carriage," which is not allowed without a FAR Part 119 commercial operating certificate. If an operator is "holding out" to the public or a segment of the public, that "is the 'crucial determination' in deciding if one has engaged in common carriage or not." According to the Interpretation, holding out is accomplished through any "'means which communicates to the public that a transportation service is indiscriminately available' to the members of that segment of the public it is designed to attract." This can be done through signs, advertising or even where an operator has a reputation to serve all.

With respect to advertising the specific time and date of his trip on Facebook to his "friends/family/acquaintances," the Interpretation stated that would be acceptable as a private pilot, since he would not be holding out to "the general public." However, since the pilot didn't provide any additional details about the nature of the Facebook post or how large his Facebook audience was, the FAA cautioned that Facebook advertising could still be construed as holding out. For example, if the pilot advertised to a class such as all Facebook users, that could still be considered holding out if the advertising was expressing a willingness to provide transportation for all within that class.

Regarding the "common purpose," the Interpretation noted that "[t]he existence of a bona fide common purpose is determined on a case-by-case basis." It then concluded that based on the facts presented by the pilot, it appeared to be a bona fide common purpose, since the destination was dictated by the pilot, not the passengers, and he and his passengers both had personal business to conduct at the destination. Thus, the purpose of the flight was not just to transport the pilot's passengers to the destination.

Finally, the Interpretation cautioned that putting the Facebook post on the bulletin board at an FBO could be considered holding out. It also noted that "payment through Paypal would suggest that there is an interest in carrying passengers with whom there is no previous personal relationship and that the offer to accept passengers is being made to the general public," which would suggest that the pilot was "holding out." However, in specific response to the pilot's question, stated that whether or not the passengers reimburse the pilot through an online payment system such as Paypal has no bearing on the legality of the payment so long as the pilot does not pay less than his pro-rata share of expenses.

This Interpretation provides some fact specific insight into determining whether a private pilot may share expenses under FAR 61.113(c). For additional discussion on the topic, please read my article Shared Expenses and the Private Pilot.

In a recent opinion issued by the National Transportation Safety Board ("NTSB"), the Board affirmed the findings of violations issued by an administrative law judge ("ALJ"). The case, Administrator v. Haddock arose following the crash of an experimental helicopter operated by an airman shortly after his purchase of the helicopter. After investigating the accident, the FAA issued an order alleging that the airman had not properly registered the helicopter and, at the time of the accident, the helicopter did not comply with its experimental operating limitations because it did not have a current condition inspection. According to the order, the airman's operation of the helicopter violated FARs 91.403(a) (owner or operator responsible for maintaining aircraft in an airworthy condition), 91.13(a) (prohibiting operation of an aircraft in a careless or reckless manner), and 47.3(b) (prohibiting operation of an aircraft unless registered or using temporary registration). The airman appealed the order to the NTSB and requested a hearing before an ALJ.

After a hearing, the ALJ determined that the prior owner of the helicopter had used the wrong language to indicate he had completed the required condition inspection and thus the ALJ found that the helicopter was not airworthy at the time of the accident. However, the ALJ did not make a specific finding as to whether the airman had relied upon the prior owner's verbal statements to him regarding the condition inspection and the airworthiness of the helicopter. The ALJ also found that the airman hadn't produced any documentation to show that the aircraft registration had actually been submitted to the FAA Registry prior to the accident flight. But the ALJ did reduce the sanction from 90 days to 60 days based upon evidence that the airman had apparently made a “substantial attempt” to register the aircraft.

The airman appealed the ALJ's decision and the Board remanded the case back to the ALJ for more detailed findings on certain issues. The ALJ obliged, and issued an order again affirming the findings of violations, but providing further explanation regarding most of the issues with which the Board was concerned. The airman then appealed the ALJ's order on remand back to the Board.

On appeal, the airman argued that the ALJ erred in determining the helicopter was not properly registered at the time of the accident. He also contended that the ALJ improperly concluded he was responsible for operating the helicopter when it was in an unairworthy condition because the prior owner had, in fact, completed a condition inspection before the accident and he had reasonably relied upon the prior owner's verbal statements to that effect.

With respect to the registration issue, the Board first noted that the ALJ had not addressed its question concerning the paperwork required to register an aircraft pursuant to FAR 47.3(b). However, rather than remanding to the ALJ a second time, the Board relied upon the ALJ's credibility finding in favor of the two FAA inspectors who testified at the hearing to support the Board's own conclusion regarding the documentation required under FAR 47.3(b).

Since one of the inspectors opined the helicopter was not registered to the airman until he sent the registration to the FAA, sometime after the accident, the Board considered that opinion to be an interpretation of FAR 47.3(b) to which it must defer. When it combined that interpretation with the inspector's testimony, which the ALJ found more credible and to which the Board also had to defer, the Board agreed that the pink copy of the application for registration needed to be present in the aircraft on the date of the accident in order for the airman to have complied with the requirements of FAR 47.3(b). As a result, based upon the inspector's testimony that the pink slip was not in the cockpit at the time of the accident, the Board concluded that the helicopter had not been properly registered.

With respect to the airworthiness issue, the Board rejected the airman's defense based upon the doctrine of reasonable reliance. Since the prior owner was neither the airman's copilot nor crew member, as required by that defense, the airman, as owner and operator of the helicopter, had a duty to ensure that the helicopter complied with its type certificate and was in a safe condition for operation.

The Board found that the airman could have "reviewed the maintenance log and compared it with the requirements of the experimental operating limitations applicable to the aircraft, which explicitly provide the language necessary to indicate the aircraft underwent a satisfactory condition inspection." If he had done so, the Board reasoned, he would have discovered that the prior owner had not used the language to properly document a condition inspection. The Board concluded that the airman's reliance upon the prior owner's statements that the helicopter was airworthy was not reasonable under the circumstances and did not excuse his violations of FARs 91.403(a) and 91.13(a).

Conclusion

This decision highlights the responsibility pilots have for confirming the airworthiness of their aircraft before they fly. If pilots, or aircraft buyers, are going to trust representations by others, as the airman did in this case, they will also need to take reasonable steps to confirm those representations. Similarly, aircraft owners need to comply with the requirements of the aircraft registration regulations on a timely basis to ensure proper registration of their aircraft while they are flying. Although the requirements are simple and straightforward, they need to be met to avoid the consequences suffered by the airman in this case.