A TALE OF TWO FAAS

Flying - - Taking Wing -

Af­ter 24 years of fly­ing fight­ers in the U.S. Air Force, in­clud­ing a tour with the Thun­der­birds, I re­tired in 2006 and started a new ca­reer as an air­line pi­lot. Con­cur­rently, the Pa­tri­ots Jet Team, fly­ing Ex­per­i­men­tal Aero L-39s, in­vited me to join its aer­o­batic team. Af­ter com­ing up as a pi­lot in gen­eral avi­a­tion in the early 1980s, I was ex­cited to recul­ti­vate my civil­ian avi­a­tion roots. I had al­ways be­lieved that the FAA ex­isted to pro­mote a safe and ma­ture ap­proach to avi­a­tion. Lit­tle did I know that my as­sump­tions would be se­verely chal­lenged af­ter a se­ries of flights in Jan­uary 2014.

This ar­ti­cle is about two FAAS. One com­prises co­gent, smart, ex­pe­ri­enced ad­min­is­tra­tors who ap­proach avi­a­tion reg­u­la­tion and safety with ma­tu­rity. The other FAA is an agency with self-ab­sorbed in­di­vid­u­als wield­ing un­bri­dled au­thor­ity as vig­i­lantes of the skies. In telling my story, I hope to en­cour­age the for­mer ap­proach to gov­ern­men­tal avi­a­tion reg­u­la­tion.

Af­ter fly­ing the L-39 Al­ba­tros for eight years, with 350 PIC hours and nearly 50 CFI hours in the jet, I met Dr. Mark Hale. He was a new L-39 owner who hired me to help him ob­tain an Ex­per­i­men­tal au­tho­riza­tion that re­quired a min­i­mum of 1,000 hours so he could pi­lot his jet solo. Hale was a 600-hour pi­lot, so it was clear the syl­labus would take years to com­plete, es­pe­cially since I in­sisted his train­ing re­flect my mil­i­tary dis­ci­pline gained as an in­struc­tor/eval­u­a­tor pi­lot in the A-10, F-5 and F-16.

Hav­ing flown with the Pa­tri­ots Jet Team, I was aware of the Ex­per­i­men­tal op­er­at­ing lim­i­ta­tions is­sued by the FAA. As such, my syl­labus in­cluded rig­or­ous high-per­for­mance and cross­coun­try train­ing and high-den­sity al­ti­tude prepa­ra­tion, fol­low­ing a rigid method­ol­ogy that in­cluded a mil­i­tarystyle grade book doc­u­ment­ing each sor­tie in ex­cru­ci­at­ing de­tail. I was com­mit­ted to mak­ing Hale the safest L-39 pi­lot in the sky.

The L-39 is an Ex­per­i­men­tal ex­hi­bi­tion air­craft and is is­sued op­er­at­ing lim­i­ta­tions by the FAA that state, “Ex­cept for take­off and land­ing, pilots will not fly over densely pop­u­lated ar­eas (DPA).” There­fore, DPA drew the fo­cus of all our sor­ties, and Hale and I metic­u­lously planned to avoid DPAS dur­ing train­ing flights. Un­for­tu­nately, the FAA def­i­ni­tion of DPA is in­ten­tion­ally neb­u­lous, and FAA safety in­spec­tors of­ten in­ter­pret them to suit their own whims.

The flights in ques­tion oc­curred on Jan­uary 17–19, 2014. I can only write about it now be­cause it took more than two years to painstak­ingly fight the FAA bu­reau­cracy and de­feat the rene­gade au­thor­ity of many within the agency thanks to a few car­ing and in­tel­lec­tual FAA of­fi­cials who saw their ad­min­is­tra­tion’s folly.

The story be­gins with our Jan­uary 17 train­ing sor­tie from North­ern Cal­i­for­nia to South­ern Cal­i­for­nia’s Santa Mon­ica Air­port (KSMO). Rec­og­niz­ing KSMO’S sen­si­tiv­ity to noise and the po­lit­i­cal is­sues there, we me­thod­i­cally planned the flight to Socal, co­or­di­nat­ing di­rectly with the KSMO noise-abate­ment of­fi­cial and air­field op­er­a­tions man­ager. We tele­phoned KSMO of­fi­cials re­gard­ing the L-39 and planned our flight by com­mu­ni­cat­ing to Socal Ap­proach and KSMO Tower, thus com­ply­ing with the L-39 op­er­at­ing lim­i­ta­tions’ in­tent.

Af­ter we ar­rived, Hale and I briefed the next day’s train­ing mis­sion. Our plan was to com­ply with KSMO noiseabate­ment pro­ce­dures, fly to Ca­mar­illo (KCMA) from over water and prac­tice traf­fic pat­terns be­fore re­turn­ing over the Santa Mon­ica Moun­tains to Santa Mon­ica. We’d fly back to North­ern Cal­i­for­nia the next morn­ing.

Un­ex­pect­edly, an­other L-39 landed at KSMO. At din­ner that night we met the pi­lot. It was sug­gested that af­ter our Ca­mar­illo train­ing mis­sion, we should join up over the Hol­ly­wood sign near

Griffith Park and ex­e­cute a brief photo mis­sion. Clearly, it was a change to our plans, so we con­sid­ered the is­sues of le­gal­ity and prac­ti­cal­ity of such an en­deavor.

Af­ter study­ing the pro­posal, we con­sid­ered mul­ti­ple is­sues. Were there any TFRS or airspace re­stric­tions ad­ja­cent to the Hol­ly­wood sign? No. Were there any flight re­stric­tions or airspace con­flicts? No. Were there pre­vi­ous photo mis­sions over the Hol­ly­wood sign? Yes. In fact, there were nu­mer­ous ex­am­ples in which gen­eral avi­a­tion, Ex­per­i­men­tal, mil­i­tary air­craft and even the space shut­tle (on the back of a Boe­ing 747) had flown past the Hol­ly­wood sign for a photo op. More­over, we care­fully scru­ti­nized the ingress and egress over the Santa Mon­ica Moun­tains to specif­i­cally avoid densely pop­u­lated ar­eas as de­picted on the Los An­ge­les VFR aero­nau­ti­cal charts. We de­cided the mis­sion was prac­ti­cal, safe, met our train­ing ob­jec­tives, ad­hered to FARS and op­er­at­ing lim­i­ta­tions, and pro­vided for a sim­ple photo op­por­tu­nity.

The next morn­ing, Hale and I flew our train­ing sor­tie to KCMA, all the while in con­tact with Socal and Point Mugu Ap­proach and KCMA Tower. Af­ter prac­tic­ing pat­terns at KCMA, and in con­tact with Point Mugu Ap­proach, we tran­sited over the Santa Mon­ica Moun­tains and joined the other L-39 and a Bo­nanza photo air­craft for two 360-de­gree turns over the Hol­ly­wood sign. We re­mained in con­tact with Bur­bank Tower, and then switched to KSMO for land­ing clear­ance. The mis­sion was ac­com­plished safely and ac­cord­ing to plan.

Four weeks later, on Fe­bru­ary 17, 2014, I re­ceived an FAA let­ter of in­ves­ti­ga­tion (LOI) for op­er­at­ing an Ex­per­i­men­tal L-39 out­side its op­er­at­ing lim­i­ta­tions and pro­gram let­ter on Jan­uary 17, 2014. The let­ter men­tioned

over­fly­ing a DPA, but was sus­pi­ciously vague. There was no at­tempt by the Los An­ge­les FSDO to con­tact any of us in­volved in the flight to sim­ply ask about our in­tent or plan­ning or whether there were le­gal­ity is­sues. More­over, the LOI did not men­tion the flights on Jan­uary 18 or 19, ques­tion­ing only the flight from North­ern Cal­i­for­nia to KSMO on Jan­uary 17.

I was per­plexed, and elected to call the FAA’S Los An­ge­les FSDO ref­er­enced in the let­ter. To my sur­prise, af­ter ask­ing for more specifics on the LOI, the in­spec­tor asked if I was will­ing to waive my Pi­lot’s Bill of Rights (PBR). Par­tially stunned by the ques­tion, and hav­ing never heard of the PBR, I de­clined and asked if I could send an email ex­plain­ing our in­tent and plan­ning of the Jan­uary 17 flight. To this, the in­spec­tor agreed.

Af­ter re­spond­ing via let­ter, de­tail­ing the com­pre­hen­sive mil­i­tary ori­en­ta­tion and plan­ning of our train­ing flight, I re­ceived a warn­ing let­ter, dated March 26, 2014, from the FAA, stat­ing: “No law-en­force­ment ac­tion war­ranted,” but the warn­ing let­ter would re­main in my records for two years. While sat­is­fied that the FAA had rightly con­cluded we were com­ply­ing with the FARS and op­er­at­ing lim­i­ta­tions, I was aghast that the agency as­sumed I was guilty of vi­o­lat­ing FARS and had the au­thor­ity to re­tain a warn­ing let­ter in my records. I con­sulted an avi­a­tion lawyer, whose ad­vice was, “You can’t beat the FAA,” so ac­cept their as­sump­tion of guilt and tol­er­ate the warn­ing let­ter. Un­for­tu­nately, my ed­u­ca­tion on the FAA’S unchecked au­thor­ity was just be­gin­ning.

One day shy of six months went by when, to my shock, an FAA no­tice of pro­posed cer­tifi­cate ac­tion (NPCA) sur­faced in my mail­box. This NPCA had the same case num­ber as the orig­i­nal, al­ready-closed LOI but now stated the en­force­ment ac­tion was for both flights of Jan­uary 17 and 18. The pro­posed penalty was a six­month sus­pen­sion of my airman cer­tifi­cate, which would not only negate six months’ air­line in­come but also de­stroy my spot­less airman record of 30 years. Stunned, I im­me­di­ately sought le­gal coun­sel.

The FAA ac­cused us of op­er­at­ing an Ex­per­i­men­tal L-39 over a DPA out­side the air­craft op­er­at­ing lim­i­ta­tions by fly­ing ad­ja­cent to the “iconic” Hol­ly­wood sign. From doc­u­ments ob­tained un­der the Free­dom of In­for­ma­tion Act (FOIA), I learned we were con­sid­ered clowns out for a joyride and it was their duty to squash this ag­gres­sive be­hav­ior. I learned the Los An­ge­les FAA tech­ni­cal spe­cial­ist and FSDO pros­e­cuted us based pri­mar­ily on a Face­book video, with no in­put from the ac­tual pilots.

In their zeal to pun­ish us, the Los An­ge­les FAA tech­ni­cal spe­cial­ist and FSDO vi­o­lated FAA Pol­icy Or­der 2150.3B and the PBR by not is­su­ing an LOI for any sub­se­quent in­ves­ti­ga­tions. To be ex­act, I was is­sued an LOI and warn­ing (with no en­force­ment ac­tion) un­der the PBR. The FAA then con­tin­ued to in­ves­ti­gate me with the same case num­ber, even though the case was closed. This is un­heard of, and is con­trary to Pub­lic Law 112153. More­over, I learned that the FAA in­spec­tor ask­ing me if I would “waive my Pi­lot’s Bill of Rights” was il­le­gal.

The FAA in­con­sis­ten­cies glared like lasers. How to fight this in­jus­tice? At first, our lawyers said there was a valid ar­gu­ment against the reopen­ing of the case with­out is­su­ing an LOI in di­rect vi­o­la­tion of the PBR and Pol­icy Or­der 2150.3B. How­ever, that ar­gu­ment was untested in court, and that made it cir­cum­spect. The is­sue of fly­ing over a DPA was a co­nun­drum. One could chal­lenge the FAA at a Na­tional Trans­porta­tion Safety Board hear­ing, but coun­sel ad­vised that ad­min­is­tra­tive law judges al­most al­ways sided with the FAA (some­times with­out re­view­ing the ev­i­dence) and there was no def­i­ni­tion of a DPA other than pre­vi­ous case law. A le­gal chal­lenge could cost $150,000 or more in at­tor­ney fees, only to lose and still pay the FAA penal­ties and fines.

Given the op­tions, I had lit­tle choice but to agree to my coun­sel’s ad­vice and set­tle with the FAA. Let me re-em­pha­size that Hale and I did noth­ing wrong; we com­plied with FARS, flew within the op­er­at­ing lim­i­ta­tions and fol­lowed a rigid train­ing pro­gram with max­i­mum safety and pro­fes­sion­al­ism. Yet, in the eyes of the FAA tech­ni­cal spe­cial­ist and Los An­ge­les FSDO, we were crim­i­nals. What was worse, they knew we would bank­rupt our­selves chal­leng­ing their

false as­ser­tions.

Af­ter an in­for­mal hear­ing with the Los An­ge­les FAA tech­ni­cal spe­cial­ist and FSDO, my lawyers de­scribed the meet­ing as “vin­dic­tive” be­hav­ior by the FAA. The fine was ne­go­ti­ated to $12,000, and the penalty was set­tled at a onemonth airman cer­tifi­cate sus­pen­sion. I was dev­as­tated.

While I ab­sorbed the shock of los­ing a month’s fly­ing in­come and pay­ing an out­ra­geous fine, Hale also fell un­der the FAA’S rene­gade au­thor­ity. Af­ter re­ceiv­ing a warn­ing let­ter that re­sulted in “no en­force­ment ac­tion,” he got a call from the Oak­land FSDO, in whose dis­trict his L-39 was based. The FSDO ar­ranged a hangar meet­ing with Hale, and with a wit­ness present, the FAA in­spec­tor ver­bally threat­ened Hale to reap­ply for his air­wor­thi­ness cer­tifi­cate (even though he al­ready had a valid, non­ex­pir­ing cer­tifi­cate) so he could be reis­sued op­er­at­ing lim­i­ta­tions with greater re­stric­tions or have his air­plane grounded. The in­spec­tor men­tioned that our cow­boy act was draw­ing fire from the South­ern Cal­i­for­nia FAA of­fices. Hale was co­erced to ac­cept the re­stric­tive op­er­at­ing lim­i­ta­tions.

For two years, we fought with weapons of po­lit­i­cal ad­vo­cacy and fierce tenac­ity. We ini­ti­ated a two-pronged at­tack, us­ing our state sen­a­tors as well as ag­gres­sively re­quest­ing in­ves­tiga­tive doc­u­ments through FOIA. We spent months press­ing the FAA with cas­espe­cific fac­tual in­for­ma­tion, even to the point of ad­dress­ing the FAA chief coun­sel and ad­min­is­tra­tor, de­mand­ing a re­sponse to the formal com­plaints we’d filed. We spent months chas­ing phone calls to Wash­ing­ton, D.C., and the FAA, and dis­sect­ing ev­ery de­tail of the FAA’S in­ves­tiga­tive process. Af­ter years of re­lent­less pur­suit, Hale re­ceived an ac­knowl­edg­ment that the FAA would in­ves­ti­gate the Oak­land FSDO’S threat­en­ing ac­tion to al­ter his L-39 op­er­at­ing lim­i­ta­tions. It was a glim­mer of hope.

Sev­eral months later, af­ter prod­ding for re­sults, Hale re­ceived a pe­cu­liar in­ves­ti­ga­tion re­sponse. The FAA found noth­ing wrong with the Oak­land FSDO’S process, but it was pass­ing “lessons learned” to un­spec­i­fied en­ti­ties to cor­rect the sit­u­a­tion. We saw through this ruse and asked what lessons were learned and who was re­ceiv­ing cor­rec­tive en­light­en­ment. The FAA’S re­sponse was re­veal­ing: When chal­lenged, the FAA told Hale this was a re­gional is­sue only, and Wash­ing­ton should not be in­formed. From sift­ing through FAA in­ves­tiga­tive re­ports ob­tained through FOIA, we found the very same in­di­vid­u­als who were “learn­ing lessons” about abus­ing their au­thor­i­ties were the Los An­ge­les

tech­ni­cal spe­cial­ist and FSDO that pros­e­cuted us. Hale and I had smok­ing-gun ev­i­dence that proved clear FAA malef­i­cence.

For­tu­nately, Hale worked with a new, com­pe­tent Oak­land FSDO in­spec­tor who was shocked at his agency’s rogue be­hav­ior. He proved that the Los An­ge­les re­gional FAA tech­ni­cal spe­cial­ist had di­rected the pre­vi­ous Oak­land FSDO to force the re­write of the op­er­at­ing lim­i­ta­tions or else threaten to ground the air­craft. Ad­di­tion­ally, this ex­cerpt from an email from the Los An­ge­les FAA re­gional coun­sel at­tempted to jus­tify how they cir­cum­vented the PBR and Pol­icy Or­der 2150.3B and re­opened a closed in­ves­ti­ga­tion:

One thing that per­haps could have been ex­plored more is the mit­i­gat­ing fac­tor iden­ti­fied by the re­spon­dent that he was pre­vented from con­duct­ing his own in­ves­ti­ga­tion into his flight op­er­a­tion of Jan­uary 18, 2014, be­cause: (1) The LOI did not men­tion Jan­uary 18 (thus the Let­ter of Re­sponse only ad­dressed the Jan­uary 17 flight op­er­a­tion); and (2) He be­lieved the mat­ter closed af­ter re­ceiv­ing the warn­ing no­tice. I would like to ask how (1) and (2) pre­vented the re­spon­dent from con­duct­ing his own in­ves­ti­ga­tion?

The FAA’S cir­cu­lar lack of logic was as­tound­ing. FAA coun­sel ad­mit­ted I had not been no­ti­fied of a new in­ves­ti­ga­tion (with the same case num­ber), but queried why I didn’t in­ves­ti­gate my­self over some­thing I knew noth­ing about in the first place. It was clear that the FAA was in­ca­pable of ad­her­ing to the true in­tent of the PBR.

Now the ques­tion was, would any­one at the FAA lis­ten and ad­mit their mis­takes? We were nat­u­rally skep­ti­cal af­ter two years of FAA de­nial and a skewed le­gal process that as­sumed guilt be­fore in­no­cence.

Un­daunted, we con­tin­ued to prod the FAA chief coun­sel to re­spond to our formal com­plaints. Two years in, when most peo­ple would give up, I re­ceived a phone call from the FAA as­sis­tant chief coun­sel. I fully ex­pected him to (po­litely) tell me to pound sand. Our con­ver­sa­tion, in­stead, was re­fresh­ing, log­i­cal and un­like any other pre­vi­ous di­a­logue I’d had with the FAA. Ad­di­tion­ally, an FAA avi­a­tion safety in­spec­tor who knew my rep­u­ta­tion from work­ing with the Pa­tri­ots Jet Team at the Reno Air Races got di­rectly in­volved with the case. These in­di­vid­u­als took the time and ef­fort to scru­ti­nize and cor­rect the abu­sive ac­tions.

The as­sis­tant chief coun­sel reviewed our case and con­cluded that the Los An­ge­les FAA re­gional of­fi­cials, the FAA tech­ni­cal spe­cial­ist and the FSDO had acted ar­bi­trar­ily and capri­ciously, abused their dis­cre­tion and were not in ac­cor­dance with the law. He con­cluded that the fine and penalty im­posed was ex­or­bi­tant and, by all ac­counts, the FAA failed to fol­low the PBR and Pol­icy Or­der 2150.3B. I nearly fell out of my chair.

Here were two FAA of­fi­cials who got it. Through a sim­ple con­ver­sa­tion, the as­sis­tant chief coun­sel com­pre­hended that we were not clowns joyrid­ing in an L-39. He un­der­stood our in­tent to com­ply with FARS and the op­er­at­ing lim­i­ta­tions, and that we did noth­ing wrong. He ab­sorbed the wildly in­ter­preted def­i­ni­tion of DPA and ad­mit­ted that re­gional FSDOS were not held ac­count­able for their broad vari­ances in ap­ply­ing DPA def­i­ni­tions in en­force­ment ac­tions. He ac­knowl­edged the FAA abuse of au­thor­ity and ul­ti­mately in­formed me that my airman record would be ex­punged and the FAA would re­fund the $12,000 fine.

On the one hand, the FAA is rife with power-hun­gry in­di­vid­u­als be­stowed with un­bri­dled au­thor­ity and a pen­chant for pur­su­ing pilots with un­fair tac­tics that as­sume guilt be­fore in­no­cence. On the other, there are hard­work­ing pro­fes­sion­als who ap­proach avi­a­tion reg­u­la­tion from a ma­ture per­spec­tive, fo­cused on safety and ef­fi­ciency. The prob­lem for pilots is that no one knows whom they’ll get when en­coun­ter­ing the FAA af­ter fly­ing their air­craft on a bright, sunny day.

In 2015, the FAA an­nounced a new “com­pli­ance phi­los­o­phy.” The FAA chief coun­sel ex­plained that the FAA wanted to find ways to help well-in­ten­tioned cer­tifi­cate hold­ers learn from un­in­ten­tional mis­takes, get re­train­ing or ed­u­ca­tion, and limit the use of sig­nif­i­cant mone­tary sanc­tions to a nar­rower range of non­com­pli­ance.

Although there is good rea­son to be skep­ti­cal, my hope is for a ma­jor, last­ing shift within the FAA thanks to the com­pli­ance phi­los­o­phy.

When lo­cal FAA of­fi­cials threw the book at a for­mer Air Force Thun­der­birds pi­lot for his "cow­boy act" of over­fly­ing the Hol­ly­wood sign, he faced a choice: ad­mit de­feat or fight on with tenac­ity. He chose the lat­ter — and pre­vailed af­ter two long years.

Sil­i­con Val­ley en­tre­pre­neur Mark Hale, right, hired for­mer Air Force pi­lot Paul "Sticky" Strick­land to train in the L-39. Lit­tle did the men know they would in­cur the full wrath of the FAA — for do­ing noth­ing wrong.

Strick­land and Hale say they are telling their story in the hopes that it will en­cour­age the FAA to broadly adopt its new so-called "com­pli­ance phi­los­o­phy" that seeks to cor­rect safety prob­lems rather than pun­ish pilots.

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