The first thing he said was, "Did you file a NASA report?"
"No," I said. "I always thought they were more for air carrier safety issues."
There was a long pause. He said quietly, "It would have been your ticket out of jail. You still would have a suspension on your record, but it would have been waived under the immunity of the report. They are going to throw the book at you — careless and reckless, everything. That's what they do, then negotiate."
It was our friendship, I am sure, that prevented him from finishing his sentence with "you moron."
"Should I get a lawyer?"
Instead of saying "Duh," he explained that he deals almost entirely in accident litigation but recommended Gregory Winton at Aviation Law Experts in Frederick, Maryland.
An FAA attorney before entering private practice, Greg Winton is a down-to-earth pragmatist. Again there were several discreet pauses as I told him the story.
"Well, that's pretty cut and dried," he said.
He requested and reviewed the inspectors' report, and we then waited for the Notice of Proposed Certificate Action from the regional counsel. Patrick Bradley was right in his prediction. In addition to my admitted offenses, the FAA was claiming a violation of 91.13(a), which states that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another, and proposed a 120-day suspension of my commercial certificate. The legal dance now began, and it was as civilized and proscribed as an English country dance. The curtsey and bow were the sending of the notice and our response to either accept the proposal or choose one of the various options of proceeding. We chose to have an informal conference by telephone with Judith L. Vaughn, the FAA attorney handling the case. Vaughn was formal but sensitive to the issues. The do-si-do part of the dance was arriving at a settlement. After subsequent calls and e-mails, we arrived at the final bow. Part 91.13(a), which in my opinion was blatantly absurd, was thrown out and the 120-day suspension reduced to 90 days — still a severe punishment in my mind. I don't yet know how it will affect my insurance. The companies I asked said that it depends on the circumstances.
Most learning experiences in flying are fun. This was not. I learned that the only sure way to check for TFRs is to call Flight Service before any flight. My BFR and flight physical dates are now on my computer. My complacency index is under renewed watch, and as always I attend every FAASTeam meeting near me whenever possible.
If you are unfamiliar with FAASTeam publications and meetings, go to faasafety.gov. This is an effective program based on the premise that education is more effective than punishment in promoting safety.
My approach throughout this process was to be completely open in admitting what I had done. Any lawyer will tell you this is crazy. Here is what I should have done.
First, as an AOPA member, I could have taken advantage of the association's legal services plan. It covers some of the legal fees if there is an FAA enforcement action against you.
Second, when talking to Tracon, giving name, rank and serial number is enough. It is a recorded conversation. Any information you give can be used against you. My natural reaction was to honestly relate what I had done because I am such a splendid human being. Big mistake. You don't have to say anything beyond who you are without consulting a lawyer. Be aware that in a VIP TFR violation they are out to get you. You can be a churchgoing ATP with 20,000 hours and six hungry kids. It won't make any difference. Active military and airline pilots have inadvertently made TFR penetrations when flying light aircraft on the weekends, and had suspensions. This is about punishment, not education.
This punitive attitude creates an adversarial situation, which, ironically, is the complete opposite of the educational approach the FAA has found to be most effective in promoting compliance to regulations.
So why the switch? Most people I talked to believe it stems from a conflict between the FAA and the TSA (Transportation Security Administration) that the TSA won. According to a source formerly employed by the Department of Homeland Security, however, it was the Secret Service, not the TSA, that requested that the FAA impose a suspension for even first-time TFR violators.
In most cases the FAA assumes you are a pilot who has unintentionally made a mistake, and that you will benefit from counseling or training to mend your ways. Incorrigible bad boys who think flying through the St. Louis arch is cool will be smacked on the fanny and deservedly so, but they are the exceptions among our fellow pilots. Most of us want to do the right thing. The Secret Service, on the other hand, assumes you are a potential threat. Understandable, perhaps, but it could learn from the FAA's experience that a softer glove is more effective.