When Should a Pilot Lawyer Up?

If you received a phone call from a FSDO inspector questioning something you did as PIC, how would you respond?

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I attended a meeting last night at Morristown Municipal Airport (MMU) in New Jersey, where officials from the tower and the FAA were on hand to discuss with local pilots the new Mandatory Occurrence Reporting (MOR) system that many have likened to an ATC snitching program.

Here’s a quick overview in case you aren’t familiar with the MOR process. Starting on January 31 of this year, the U.S. Air Traffic Organization issued an action order instructing controllers to report anything out of the ordinary, including communication errors, pilot deviations from ATC commands and just about anything else that a controller did not expect to happen – whether the blame lies with the pilot, the controller, or perhaps both. In case you’re wondering, this is happening at all towered airports and ATC facilities across the country.

The MOR program is part of a broader safety initiative that is actually being driven internationally by ICAO. The idea is to collect as much safety data as possible to identify and correct systemic problems early. That’s great. In many ways, the program is very similar to the FAA-funded and NASA-administered Aviation Safety and Reporting System (ASRS), which we pilots like to think of as our “get out of jail free” card since filing an ASRS report gives us a level of protection from punitive certificate action if we screw up.

A number of the pilots who attended the meeting at MMU said they were all for improving safety, but they feared that they could personally be swept up in certificate actions that in the past wouldn’t have escalated beyond a tongue lashing from the tower or perhaps a discreet phone call. The problem, as many see it, is that the mandatory occurrence reports now end up in the hands of the local FSDO, which then has the duty to investigate an incident and decide whether to escalate a pilot deviation into what could grow into a certificate action.

The FAA official at the meeting, a FAAST Team representative who was speaking on behalf of the FSDO, pointed out that if you did something really bad in an airplane, it wouldn’t matter: it’d be reported to the FSDO anyway. The MOR program, he said, isn’t about getting pilots into trouble, it’s about gathering data and improving safety. For instance, say there was an airplane that had a gear problem at three different airports in the span of a month. In the past, the FAA would have no way of tracking that and remedying a potential safety problem. Now, that information could alert the FAA to the potential issue and, at the very least, lead to a phone call from the FSDO to the aircraft owner.

This all leads to an interesting question: If the FAA called you on the telephone because something you did in your airplane generated an MOR, how would you respond? ALPA tells its airline pilot members not to say a word to the FAA and instead let their lawyers handle it. AOPA’s position is the same, and it’s part of the reason it offers its pilot legal services program.

The FAA representative in the room had a different take. He said whether you choose to clam up and contact a lawyer or not should be decided on a case-by-case basis. Did you do something that will likely lead to a certificate suspension or, worse, revocation? In that case, yes, you probably want to speak to your attorney. But what if the FAA is just calling to get your side of the story? If you give a curt “no comment” and hang up on the FSDO inspector, he or she has no choice but to elevate the matter to the next level. If you’d just spent a few minutes on the phone having a friendly conversation – much like you might do with a police officer who pulled you over for something minor while driving – the matter might be quietly dropped, or escalate no further than an administrative action, requiring you to get some extra training but with no certificate action.

It’s an interesting philosophical question, and every pilot will respond differently, of course. Let’s all hope we never have to make that decision, but let’s also understand that we should have an idea of what we’ll say long before the telephone ever rings.