AOPA Pilot Magazine - February 2013 - 24

PILOT COUNSEL

For your benefit

BY JOHN S. YODICE

Some of the Pilot’s Bill of Rights
IN OCTOBER 2012 I reported the passage of the Pilot’s
Bill of Rights that became effective August 3, 2012
(“Pilot Counsel: Big News for Pilots”). I summarized
the provisions of the new law. As I then explained, all
of them come as good news for pilots. For example, the
new law mandates a study to improve the much-abused
FAA notam system. And it calls for an independent
assessment of the FAA’s medical certification program,
including medical standards and forms. These changes
should help pilots in the long run. This month, I will
concentrate on provisions that will provide immediate
guidance to pilots who may come under investigation by
the FAA. I say “may” because most pilots don’t become
subjects of an FAA investigation. The trouble is that
we can’t tell in advance who will. Too many times the
investigation comes as a surprise to pilots who are not
prepared to protect their interests.
The most important short-term change requires the
FAA to give a more “timely” written notification to a
pilot who is being investigated, and to provide a warning about the potential consequences of responding—or

Too many times the investigation comes as
a surprise to pilots who are not prepared
to protect their interests.

JOHN S. YODICE

is the legal advisor
for AOPA Pilot
Protection Services.
He heads Yodice
Associates, a
Washington,
D.C.-area firm
specializing in
aviation law.

failing to respond—to the FAA investigation. This early
notification should allow pilots to more productively
participate in the investigation and protect their interests. The new law does allow the FAA to delay timely
notification if it determines that such notification may
threaten the integrity of the investigation, hopefully
sparingly and reasonably used so as not to subvert the
obvious intent of the law. Time and experience will tell.
Curing a past abuse, the required notification must
now warn the pilot that any response to the notification
may be used as evidence against the individual, that a
response is not required, and that no action or adverse
inference can be taken against the individual for not
responding to a notification of an investigation.
Similarly curing a past problem, the results of the
FAA’s investigation must be “timely” made available to
the individual, including access to air traffic data of air
traffic communications tapes, radar information, ATC
controller statements, flight data, investigative reports,
and any other ATC data that would be helpful to pilots

24 | AOPA PILOT February 2013

under investigation. Airspace incidents have become a
predominant focus of FAA investigations. To put teeth
into the requirement for ATC data, the FAA may not
proceed against a pilot during the 30-day period from
the date on which the air traffic data is made available
to the pilot, unless an emergency exists.
The right of access to ATC data is expanded to cure
another situation that had become a problem for pilots
involved in ATC incidents. By way of background, the
federal Freedom of Information Act generally provides
that federal agencies’ records must be made available
to the public on request, with certain exceptions. The
information required to be disclosed includes air traffic data. In many cases it became important for a pilot
to prove that he or she had called Flight Service for a
preflight briefing. Once Lockheed Martin took over
the operation of FAA flight service stations, Lockheed
Martin refused to provide the data to pilots on the basis
that Lockheed Martin is a private entity, not the government, and is not bound by the Freedom of Information
Act. Now, under the new law, an individual is entitled to
any air traffic data from a “government contractor that
provides operational services to the FAA, including control towers and flight service stations.”
The FAA’s website (www.faa.gov) has a Pilot’ s Bill
of Rights hyperlink that may be used to request this kind
of air traffic data. The FAA cautions that any requests
must be “expeditiously” received because data “is
destroyed or otherwise disposed of within a few days
or weeks after it is generated.” And the FAA suggests
that the requests be as detailed as possible to help the
FAA identify the location of the information.
It remains to be seen how these pilot’s rights
are implemented in practice. Off the topic here,
remember the importance of the 10-day time-limited protection afforded by filing an Aviation Safety
Report with the National Aeronautics and Space
Administration. Then, if relevant, be mindful to
formally ask the chief of the FAA ATC facility to preserve the ATC communications and computerized
data related to the incident so that the data does not
get routinely destroyed. If you have received a letter
of investigation from the FAA, note its new warnings.
If you are a member of the AOPA Legal Services Plan,
seek guidance on if and how to respond.
AOPA
WEB

www.aopa.org/yodiceassociates

http://www.faa.gov http://www.aopa.org/yodiceassociates

AOPA Pilot Magazine - February 2013

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