Wednesday, August 1, 2012

AirVenture 2012 & The Pilots Bill of Rights

I just returned from my very first Air Venture fly-in at Osh Kosh, WI. I could spend pages discussing my impressions of the wonderful folks I met in the North 40, the Warbird area, or while watching the night airshow. Instead, I will discuss the passage of the Pilots Bill of Rights announced during the event.

Let's start with some background. In October 2010, Senator Jim Inhofe was flying his twin engine plane into an uncontrolled field in Texas. While in flight Sen. Inhofe was under the control of ATC. However, during the transition phase from cruise to descent and landing, the controller made a mistake and cleared Sen. Inhofe to land at the airport instead of terminating radar services. When Sen. Inhofe was on short final he observed a maintenance crew with equipment on the first 1/3 of the runway. He was not advised of the maintenance crew's presence by either the controller or the NOTAMs he obtained for his preflight. Sen. Inhofe was able to safely land the aircraft on the remaining 2/3 of the runway avoiding any contact with the maintenance crew or equipment.

Unfortunately, the story does not end there. The FAA initiated an investigation into the incident and then proceeded to pursue an enforcement action against Sen. Inhofe's license. To defend himself, Sen. Inhofe requested copies of the ATC tapes. Under the current system, the facility responsible for the tapes was not required to turn them over to Sen. Inhofe as he prepared to mount his defense to the allegations raised by the FAA, even though they conclusively proved that he was not at fault for any wrongdoing. It took Sen. Inhofe four (4) months to obtain the tapes. In the end, an informal agreement was reached and the enforcement action was resolved without either a suspension or revocation of Sen. Inhofe's license.

The event clearly exemplified to Sen. Inhofe all of the injustices in the enforcement process that certificate holders face. As a result, with the help of AOPA and the EAA, Sen. Inhofe presented legislation to the Senate titled the Pilots Bill of Rights. Essentially, the Pilots Bill of Rights is designed to eliminate the current elements of unfairness and justice to certificate holders subjected to the enforcement process.

Specifically, the Pilots Bill of Rights requires National Transportation Safety Board (NTSB) proceedings for the review of decisions of the Administrator of the Federal Aviation Administration (FAA) to deny, amend, modify, suspend, or revoke an airman's certificate to be conducted, to the extent practicable, in accordance with the Federal Rules of Civil Procedure and Federal Rules of Evidence. The Bill requires the Administrator to:

(1) advise the subject of an investigation involving the approval, denial, suspension, modification, or revocation of an airman certificate of specified information pertinent to the investigation; and

(2) provide him or her with access to relevant air traffic data.

Next, the bill allows an individual to elect to file an appeal of a certificate denial, a punitive civil action, or an emergency order of revocation in the U.S. District Court in which the individual resides, in which the action in question occurred, or the district court for the District of Columbia. The bill allows an adversely affected individual who elects not to file an appeal in a federal district court to file such appeal with the NTSB. The bill directs the Administrator to begin a Notice to Airmen (NOTAM) Improvement Program to improve the system of providing airmen with pertinent and timely information before a flight in the national airspace system.

The bill also makes Flight Service Station briefings and other air traffic services performed by Lockheed Martin or any other government contractor available to airmen under the Freedom of Information Act (FOIA).

Finally, the bill requires the Administrator to review the FAA system for the medical certification of airmen in order to:

(1) revise the medical application form,

(2) align medical qualification policies with present-day qualified medical judgment and practices, and

(3) publish objective medical standards to advise the public of the criteria determining an airman's medical certificate eligibility.

At Oshkosh, Sen. Jim Inhofe along with Congressman Samuel Graves, the bill's sponsor in the House of Representatives, were on hand to announce that the Pilots Bill of Rights had passed both the Senate and House without objection. The legislation now moves on to the President for signature. Under Article I, Section 7 of the United States Constitution, the President has 10 days to sign the legislation into law. Since Congress is in session if the President fails to take any action, then the bill automatically becomes law. The aviation community and especially aviation attorneys like me who work to defend Airmen and certificate holders in enforcement proceedings thank Sen. Inhofe, Congressman Graves, AOPA, and EAA for their support in passing essential legislation that returns the enforcement process to a system that is fair.

My purpose for going to AirVenture is that I was invited to join the EAA's Legal Advisory Council. I am humbled and honored to join this prestigious group of aviation attorneys. The Council consists of nine (9) attorney members who provide advocacy support to EAA. More importantly the Council members mainly serve as a resource to the EAA members who have legal questions. Now that I am a member of both the AOPA Legal Panel and the EAA Advisory Council, I am excited at the prospect of being able to reach Airmen and Certificate holders and assist them regardless of their specific flying interest. 

Should the need arise for representation in the enforcement process or any other aviation legal question occur, then feel free to contact me at (415) 692-6520. I can also be reached by email at gipson@higagipsonllp.com.