Is FAA Breaking the Law To Enforce It?

from the ainonline.com blog of John Goglia

I’ve written periodically about FAA enforcement and what I consider to be abuses of the process, along with sanctions that are significantly disproportionate to the safety impact of the offenses charged. Faithful readers might remember my articles on FAA emergency revocations of two A&P mechanics for violations that allegedly occurred three full years before the orders were issued. Fortunately, in those cases, the mechanics had a union willing to go to bat for them and spend hundreds of thousands of dollars on their defense. Yes, you read that correctly: hundreds of thousands of dollars. The FAA made the cases as expensive as possible for the airmen to litigate–deposing the airmen before emergency orders were issued and then again after the emergency orders were issued. The costs from the first depositions are never reimbursable under the Equal Access to Justice Act, even if you prevail at the hearing and meet the criteria for reimbursement. Full disclosure: I was an expert witness in the cases. While the airmen lost their cases before the NTSB Administrative Law Judge, the full Board dismissed the FAA’s case, finding the airmen had been actually prejudiced by the FAA’s three-year delay. I still can’t understand why the FAA needed the NTSB to tell it that it was patently unfair to revoke the certificates of two airmen three years after it learned of alleged violations and after they had worked on airliners for those three years.

Punishment Hurts Safety

Since last year I’ve gotten a number of reports of some disturbing FAA enforcement cases. I won’t do more than mention the types of cases since some of these might still be open, and the last thing I want to do is to make it even tougher for the respondents to get a fair shake before the FAA. Some of the cases brought to my attention include minor infractions by airline employees resulting in exclusions from their airline’s Aviation Safety Action Program (Asap) by the FAA and proposed suspensions as long as 180 days. The exclusions from Asap are particularly troubling because the whole point of that program was to encourage employees to report problems, including their own potential violations of the federal aviation regulations, so that the FAA and the industry can learn what happened and why to prevent recurrences. Asap, like other voluntary programs, is based on the premise that employees, particularly front-line employees, have information on safety matters that no one else in the industry or the government is likely to have, until, of course, there’s an accident or incident. To encourage the airman to come forward and disclose information that could expose him or her to enforcement action or company discipline, the FAA agreed to forego enforcement action and the company agreed to forego disciplinary action. The only exclusions were closely circumscribed and included, for example, criminal conduct and intentional disregard for safety. It is the latter that the FAA appears to be applying in a manner that excludes more participants than was true in the past.

Far more troubling, however, is a recent report of a breach of confidentiality of an Asap report when copies of the airman’s report were emailed to multiple people outside those authorized to receive reports. This is disturbing because without confidence in the confidentiality of the Asap system, airmen will not file and the FAA and the industry will be left without the benefit of data that only frontline employees are likely to have. In fact, after this breach of confidentiality, the number of Asap reports dropped sharply, along with NASA reports that are frequently filed by airline employees at the same time. (According to NASA data, with more than 1.1 million Aviation Safety Reporting System reports received over a 38-year period, confidentiality has never been breached.)

UAV Enforcement

As bad as these cases are, what has me most upset with the FAA is that in its zeal to prevent commercial operation of small unmanned aerial vehicles from being piloted by people without pilot certificates or aircraft certifications, the agency itself might have violated the law. Regardless of whether you believe that these small UAVs are aircraft or if you believe, like me and at least one NTSB administrative law judge (and a number of UAV attorneys), that these are model aircraft that the FAA has long given a regulatory pass to, I think we can all agree that the FAA has to exercise its authority legally. It can’t violate the law to enforce the law.

But that’s exactly what appears to have been happening for these past several years as the FAA has been issuing cease-and-desist orders to small commercial UAV operators, telling them to stop flying. Some letters state: “I must insist you …immediately cease these operations until you have the proper authorization,” while others state: “for your safety and the safety of others, we require you to cease UAS operations as indicated by your website.” Others inform operators that they are in violation of federal aviation regulations and ask them to stop operating until they obtain authorization. These letters are signed by various FAA employees, including Flight Standards inspectors and were obtained by attorney Patrick McKay, pursuant to a request under the Freedom of Information Act. It’s important to note that none of the letters was signed by FAA attorneys and none of the letters gives recipients any right of appeal. You can view these letters on www.dronelawjournal.com, a website maintained by attorney Peter Sachs, a commercial helicopter pilot and drone enthusiast.

The impact on many operators–especially those holding airmen certificates–has been to cause them to cease operations and lose whatever business they may have been engaged in. The problem is those FAA letters weren’t issued legally and were, in fact, issued contrary to the federal aviation regulations, which authorize only FAA attorneys to issue orders and require any such orders to state specifically how the order can be appealed (14 C.F.R. 13.20, if you want to look it up.) The FAA did not respond to AIN’s request for comment.

Nothing destroys people’s trust in government more than the abuse of power by those charged with enforcing the law. The FAA’s shortcutting of the legal process in issuing these cease-and-desist orders is an egregious abuse of power. The DOT’s IG should investigate, and the people responsible should be held accountable.

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