Category : Aviation Law

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.

The Legal Requirements for Amateur-Built Aircraft

Experimental, or amateur-built, or homebuilt aircraft have become, in many cases, extraordinarily sophisticated machines; some rival or exceed the comfort, speed, range, and performance specifications of many factory-built airplanes. Consider the world’s best-selling general aviation airplane, the Cirrus SR-22: it got its start in the 1980s as the VK-30, a kit plane marketed to the then-new and growing kit plane market. Today, the ancestor of that composite kit plane is a factory-built, high performance beauty that starts at $520,000. One big reason that amateur built planes have become so popular (the fellow at the Experimental Aircraft Association told me 35,000-40,000 homebuilts are registered and presumably flying today) is because one can get a terrific plane for a fraction of the cost of a new one. After all, the labor is free(?) and the cost of development, testing, and liability has been sharply reduced. Given that folks routinely have access to tools and equipment and knowledge that was not so readily available a generation ago, one can reasonably expect to build a plane at home, in a year or less.

The rules and regulations regarding rights and responsibilities (couldn’t help it) that a home builder must be familiar with are outlined in the FAA Advisory Circular AC 20-27G. The Advisory Circular does not have the weight of law, but Title 14, Code of Federal Regulations (14 CFR) part 21, Certification Procedures for Products and Parts, § 21.191(g) Experimental certificates does. The meat of the matter is that a builder(s) must complete at least 51% of the aircraft, for their own education or recreation. Before a builder schedules an inspection, he or she must register the plane, because the completed plane will need the N-number clearly marked typically in 12” letters and numbers, two-thirds as wide as they are high, spaced no less than one fourth the character width . . . and so on. For this, a builder will need to provide proof of ownership and an affidavit certifying that the aircraft was built from parts or a kit. File form 8050-1 to register. When that’s done, and the plane is all but perfect, the builder can schedule an inspection. The FAA has airworthiness inspectors who are often booked a ways out, and there are designated airworthiness representatives who are deemed by the FAA to be qualified to issue airworthiness certificates. In my case, four gentlemen went over my building logs, particularly for the engine, before they came to the site and poked over 164SH for four hours. After that, I was issued an airworthiness certificate and a repairman’s certificate. The repairman’s certificate allowed me to maintain the plane, which represents a considerable cost savings in the long run.

If you or someone you know is considering building or purchasing a plane, feel free to sit down with me over a cup of coffee, and I’ll help you with the many factors to consider.

Stan Tupper is a private pilot with a seaplane rating. He built N164SH for a private party.

Aviation Insurance Primer

Do you own or rent a plane for pleasure flying? Insurance can be expensive . . . until you need it. Consider the fellow who hand-propped his 172 with no one in the cockpit. With the throttle set too high, and apparently insufficient brakes, the Cessna made off on its own, and prop-chopped up a hangar, and the Baron inside. He was lucky the damage wasn’t much greater, and so the industry-standard million dollar coverage limit was enough to make everyone whole again.

One can purchase aviation insurance directly from an underwriter, a broker, or an agent. The differences are important. First, an agent is typically either captive or independent. A captive agent works directly for one company, and an independent works typically, for a few. They need not be licensed, and because they can offer a limited choice, one would have to query several agents to effectively, and efficiently shop for coverage. A Broker is arguably a more professional point of contact. Brokers are licensed, and have training, particularly in regard to helping clients select the right amount of coverage. The Aircraft Owners and Pilots Association (AOPA) acts as a broker for its members. Finally, a direct underwriter such as Avemco allows a pilot to buy a policy without a middleman.

When shopping for a policy, it’s a good idea to ask for a sample policy. The “typical” policy covers everything save enumerated exceptions, but ambiguity creeps in. One would think that the “boilerplate” policy would have worked out the grey areas of interpretation by now, but that’s not the case.

Consider United States Aviation Underwriters v. Fitchburg-Leominster, 42 F.3d 84 (1st Cir. Mass. 1994), where “both parties earnestly contend that [the] insurance policy is clear, unambiguous, with a fair and reasonable meaning exactly opposite to that advanced by their adversary.” The question was whether the woman who was injured when she walked into the spinning propeller was a “passenger” or not. The difference is that of coverage to a $100,000 limit, or a $1,000,000 limit.

In any case, it’s likely a good idea to ask your friendly aviation lawyer to review the contract, and explain the terms and exclusions.

What are the consequences to my pilot’s license if I am convicted of OUI in Maine?

If you are the holder of a Pilot’s License, the consequences of an OUITitle 29-A §2411 conviction in Maine are serious, if not severe. The FAA imposes rigid reporting requirements, as one might imagine, due to the real threat to public safety involved in operating an aircraft in any impaired state. It should go without saying that one must never act as a pilot or crew member while under the influence of alcohol, within 8 hours of consuming alcohol, while using any drugs that affect one in any way contrary to safety, and so on,14 CFR 91.17(a) but even outside the operation of an aircraft, the FAA has an interest in any violation of the law that involves alcohol. . . .