FAA Investigation

[Drifter]

The instructor never got closer than 700 - 1000 AGL. Another problem is that since the student was not performing to standards, they did three engine failures into the same field. Yes they did notice the people on the ground but the instructor wanted to demonstrate the right procedure into the same place in order to get some consistency into the student. Everything I have written here is what he has said to the FAA. There really was no reg that was broken but this seems like it is getting pretty serious even though he did nothing wrong (at least as far as I can tell).

 

[avbug]

Drifter,

I completed a lengthy legal reply with several FAA Letters of Interpretation by the Assistant Chief Counsel, relating to your (friend's) situation. However, computer problems lost it, and I don't have 45 minutes to recreate it. I have included one LOI below that relates in part to your question.

Bear in mind that the FAA has held on several occasions that a few occupied houses or a very small gathering of people consititute a built up area. 91.119(b) applies.

The letters of interpretation are primarily from the late 70's, and refer to 91.79, which is now 91.119. They still apply. One of the LOI's that was lost to my deeply disturbed computer referred to an attempt to excuse violating altitude restrictions based on the need for a law enforcement officer to observe a suspect. The Assistant Chief Counsel noted that unless a bonafide emergency existed, then the officer's actions (specifically those of the pilot flying the officer) were not justified, and were not legal.

If the requirement for a law enforcement officer to perform a lawful function does not justify an exception to the altitude limitations, then you may suppose (rightfully) that a flight instructor will have a hard time using a desire for "consistancy" as an excuse. It likely won't fly.

In addition to 91.119(b), the FAA may elect to look to 91.13 for enforcement action, based on the admission of the pilot in your scenario that he was aware of the presence of people on the ground (but elected to proceed repeatedly, anyway).

Simply moving to a different location might have saved a lot of heartache.

The following Letter of Interpretation includes some information relevant to your question.

JAN. 5, 1978

F. DENNIS HALSEY, ESQ.

Dear Mr. Halsey:

This is in reply your letter of October 25, 1977, in which you state that your firm is involved in a wire strike case and you request information on the legislative history of Federal Aviation Regulation (FAR) Section 91.79 with respect to the 1000 and 500-foot minimum altitudes, and on the class to be protected by these altitude restrictions. You also request information on the application of case law to FAR Part 91. In a telephone conversation on November 15, 1977, you requested a judicial interpretation of the term "congested area", and any case law that tended to place responsibility on the property owner in wire strike cases.

Our files are incomplete prior to the creation of the FAA by the Federal Aviation Act of 1956. Also, before the Administrative Procedure Act in 1946, the policy or basis of Federal rule making usually was not disclosed or subjected to public comment. Therefore, we generally rely on the Code of Federal Regulations (CFR) and citations therein to the FEDERAL REGISTER for our research. Utilizing these sources, we found that the minimum safety altitudes of 1000 and 500 feet were prescribed in the earliest edition of the CFR (rules in effect as of June 1, 1938).

Regarding the class of persons to be protected, paragraphs (a) and (d) of FAR Section 91.79 specifically refer to operations without hazard to persons or property on the surface. An earlier amendment to Section 60.105 of the Civil Air Regulations (CARs) which preceded the FARs, published on May 3, 1945 (10 FR 5068) was more explicit by stating that flight below 500 feet is allowed only where such lower altitudes will not involve hazard to persons or property on the surface.

With respect to your requested definition of the term "congested area" as used in Section 91.79 of the Federal Aviation Regulations, the term has been applied on a case-by-case basis since it first appeared in the Air Commerce Regulations of 1926. That term has never been defined in any regulation. However, guidelines may be found in decisions issued by the Civil Aeronautics Board (CAB) and more recently by the National Transportation Safety Board (NTSB) in attempting to give the term fair and equitable effect. Decisions of the CAB through 1959 are reported in Civil Aeronautics Board Reports, published by the Government Printing Office, and may possibly be found is larger law libraries. NTSB decisions, indexed in digest form, are available through a subscription service published by the Hawkins Publishing Co. and also may be found is larger law libraries.

These guidelines may be summarized as follows:

1. The term is administered to protect persons and property is small, sparsely settled communities, as well as persons and property in large metropolitan areas from the hazards of low flying aircraft. Thus, size of the area is not controlling, and violations of the rule have been sustained for operation of aircraft (i)over a small area consisting of approximately 10 houses and a school, (ii) over the campus of a university, (iii) over a beach area along a highway, and (iv) over a boy's camp where there were numerous people on the docks and children at play on shore.

2. The term has been administered to prohibit overflights that "cut the corners" of large, heavily populated, residential areas.

As is made clear in the rule, the congested area must be an area of a city, town, or settlement. However, so precise density of population, ground traffic, or congestion, or precise description of the proximity of buildings or number of residences, has yet been devised that will achieve both the intended protection of persons and property on the ground and fair application of the rule to operators of aircraft. If you wish to research, in depth, the current NTSB decisions concerning "congested area," we suggest you contact the General Counsel's Office of the NTSB, Suite 800 East, 800 Independence Avenue, SW., Washington, D.C. 20591. I have enclosed a recent NTSB opinion and Order (SE-3537, November 28, 1977) that may be a good starting point for research in this area.

We regret the delay in responding to your request. If you have further questions, please let us know.

Sincerely,
NEIL R. EISNER
Assistant Chief Counsel
Enclosure

 

[Drifter]

Avbug, thanks a bunch for taking the time to post that. Can I ask you where you get this type of info? Are you using a law library or something? Can I access online?
Thanks again bro,
Drifter

 

[avbug]

Drifter,

I use various sources, but generally refer to the Summit Publications CD, which has every FAA publication on one CD/Rom. You can get it from ASA for about eighty bucks. It's handy for fast references in large volumes of material.

 

[bobbysamd]

Aviation attorney

Drifter, your "friend" should find himself legal counsel as soon as possible and stop dealing with this himself. The feds have tricks up their sleeves that only aviation attorneys can deal with.

Have your "friend" call the AOPA ASAP for referrals.

I always recommend this book, Practical Aviation Law, by J. Scott Hamilton, ISBN: 0813818176, as mandatory reading for pilots. It's a great book, available at amazon.com, bn.com, and maybe even at your local FBO.

Best of luck to your "friend." He'll need it.