A Letter From The F.A.A.? Call An Attorney.

A friend called me up the other day, because he had received a letter from the Federal Aviation Administration. Yikes. The letter started out scary: “Personnel from this office are investigating a complaint of a low-flying aircraft . . .”, and gave some specifics about the alleged incident.

The meat of the letter included an invitation to either clear it all up, or self incriminate:

We would appreciate receiving any evidence or statements you might care to disclose regarding these events within 5 days of receipt of this letter. Any discussion and/or written statements furnished by you will be given consideration in our investigation. If we do not hear from you within the specified time, our report will be processed without the benefit of your statement.

The FAA has had, since about 2015, a new “compliance policy” orientation. That is, they want cooperation from pilots when there has been an alleged “deviation from regulatory standards”, so they can gently guide the pilot back to compliance or competence or obedience, or whatever.

That means they’re less about enforcement and punishment, and more about rehabilitation, supposedly. That’s not to say they don’t still pursue certificate and civil and even criminal penalties. They want cooperation, but the danger is that one can say incriminating things while being cooperative. Clamming up, and referring them to a lawyer just pushes them toward the more punitive approach; blabbing too much to be cooperative can be a big problem. One must thread the needle.

I’m sure you are aware that the rules are that a pilot maintain at least 500 feet clearance from people and buildings and vessels when flying. The exception is when one intends to take off, or to land.

 

Some salient regs:

 

  • § 91.13   Careless or reckless operation.

(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

 

 

  • § 91.115   Right-of-way rules: Water operations.

(a) General. Each person operating an aircraft on the water shall, insofar as possible, keep clear of all vessels and avoid impeding their navigation, and shall give way to any vessel or other aircraft that is given the right-of-way by any rule of this section.

(b) Crossing. When aircraft, or an aircraft and a vessel, are on crossing courses, the aircraft or vessel to the other’s right has the right-of-way.

(c) Approaching head-on. When aircraft, or an aircraft and a vessel, are approaching head-on, or nearly so, each shall alter its course to the right to keep well clear.

(d) Overtaking. Each aircraft or vessel that is being overtaken has the right-of-way, and the one overtaking shall alter course to keep well clear.

(e) Special circumstances. When aircraft, or an aircraft and a vessel, approach so as to involve risk of collision, each aircraft or vessel shall proceed with careful regard to existing circumstances, including the limitations of the respective craft.

 

  • § 91.119   Minimum safe altitudes: General.

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface—

(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and

(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section.

 

Notice that a “congested area” requires a greater clearance.

 

The FAA does not define congested area in the FARs or in the Aeronautical Information Manual. Interpretations in low-flight enforcement cases are not particularly helpful to determine a precise definition. Rulings are decided on a case-by-case basis, and “congested” has been interpreted rather broadly. Off the shoreline is likely not congested, while over sunbathers on the beach would, I think, be seen as congested. In Administrator v. Johnson 3 N.T.S.B. 363 (1977), a shopping plaza during a time of day when there were very few people about was held to be an inherently congested area. Additionally, in a F.A.A. issued memorandum, Assistant Chief Counsel for Regulations Rebecca MacPherson reasoned that while the presence or absence of people was not relevant in Johnson, a large number of people render an area congested. Fly at least a thousand feet above a beach, unless you intend to land. If you get a letter from the F.A.A., call an attorney.

Stanley Tupper