FAA punishment??

[Rattler71]

Let me start out by saying that I get a lot of insight from you about everything and I find it very useful. However in this case you are factually incorrect. Before an ALJ in the NTSB proceedings the burden of proof is on the FAA to prove by a preponderance of the evidence that you did commit a violation. You can read more about this on the NTSB website.

Oh lord, do you realize what you have done? If you don't, be prepared for what is next.

 

[Dangerkitty]

What did you readback?

From what I have heard legally that doesn't matter. I was told that the ATC union was able to convince the FAA that even if the pilot read back the wrong clearance the controller is still not liable. The pilot however is even though he/she heard it wrong and read it back wrong.

 

[PAPA FOX!]

Oh lord, do you realize what you have done? If you don't, be prepared for what is next.

I probably have opened a can of worms. I have Avbug's number and know his playbook, believe me!! I wish he and TDTURBO would start a whole argument about ice. That is a classic. I'll just say that Avbug can be very entertaining at times but I think does contribute a lot to this board when he is not boxed into the perverbial corner.

 

[Vector4fun]

From what I have heard legally that doesn't matter. I was told that the ATC union was able to convince the FAA that even if the pilot read back the wrong clearance the controller is still not liable. The pilot however is even though he/she heard it wrong and read it back wrong.

Absolute BS.

1. NATCA had nothing to do with the ruling. No input, not present, no interest.

2. Controllers are still liable for not catching a bad readback, in fact, I know of one being charged with an error just last month for missing one. Our responsibilities have not diminished one bit

3. The ruling that instigated this whole matter involved a NWA pilot that heard an ATC clearance intended for an AAL pilot. Both pilots acknowledged the new altitude, but ATC only heard the AAL pilot as they were both transmitting at the same time. Ergo, the U.S. Court of appeals charged the pilot was primarily responsible for the error.

http://www.defensedaily.com/cgi/rw/show_mag.cgi?pub=rw&mon=1000&file=10safety.htm

No direct for you this week....

 

[Dangerkitty]

Absolute BS.

1. NATCA had nothing to do with the ruling. No input, not present, no interest.

2. Controllers are still liable for not catching a bad readback, in fact, I know of one being charged with an error just last month for missing one. Our responsibilities have not diminished one bit

3. The ruling that instigated this whole matter involved a NWA pilot that heard an ATC clearance intended for an AAL pilot. Both pilots acknowledged the new altitude, but ATC only heard the AAL pilot as they were both transmitting at the same time. Ergo, the U.S. Court of appeals charged the pilot was primarily responsible for the error.

http://www.defensedaily.com/cgi/rw/show_mag.cgi?pub=rw&mon=1000&file=10safety.htm

No direct for you this week....

Sorry Vector I guess I got some bad info. Since I got it from more than one source I considered it credible. Will you ever be able to forgive me?

 

[Vector4fun]

Sorry Vector I guess I got some bad info. Since I got it from more than one source I considered it credible. Will you ever be able to forgive me?

Bring doughnuts, we'll talk. :biggrin:

 

[A Squared]

Sorry Vector I guess I got some bad info. Since I got it from more than one source I considered it credible. Will you ever be able to forgive me?

Well, it wasn't completely bad info. I think you probably did hear somethin along those lines. I assume that Vector4fun is correct in that the Controller isn't absolved in that case, however, not long ago the FAA issued an interpretive rule on readbacks which stated that if pilot reads back an incorrectly heard clearence and the controller doesn't catch it, it doesn't absolve the pilot of responsibility, and the pilot may be considered negligent ... even though he read back the clearence as he understood it.



http://www.avweb.com/news/columns/182661-1.html

 

[avbug]

PapaFox said:""Let me start out by saying that I get a lot of insight from you about everything and I find it very useful. However in this case you are factually incorrect. Before an ALJ in the NTSB proceedings the burden of proof is on the FAA to prove by a preponderance of the evidence that you did commit a violation. ""Nobody is talking about the NTSB. Before the FAA, you're guilty until proven innocent. When you're notified about a violation, you don't have the opportunity of proving yourself innocent. You have the opportunity to appeal after you've already been handed down punishment. You have the opportunity to appeal your guilt...but you're already presumed guilty and punished by the FAA before you ever arrive at the ALJ. You can forestall the actual penalty by a measure, except emergency action, by appealing...but from an FAA point of view, and for the record, you're already convicted. You are appealing the conviction. Guilty until proven innocent. I am correct.This will probably appear blocky and without paragraphs...it's been doing that since this afternoon when the web site changes took place.

 

[Vector4fun]

Well, it wasn't completely bad info. I think you probably did hear somethin along those lines. I assume that Vector4fun is correct in that the Controller isn't absolved in that case, however, not long ago the FAA issued an interpretive rule on readbacks which stated that if pilot reads back an incorrectly heard clearence and the controller doesn't catch it, it doesn't absolve the pilot of responsibility, and the pilot may be considered negligent ... even though he read back the clearence as he understood it.

What I want to make clear is that the controller's Union, NATCA, had absolutely zero to do with this ruling. In fact, considering the present state of animosity between NATCA and FAA HQ, FAA would probably argue just the opposite position today just to piss NATCA off. Also, that absolutely nothing has changed regarding ATC's responsibility to correct an incorrect readback, if we hear it. Basically, this boils down to FAA just wanting to be able to pin an error on Somebody. If they can't hang the controller, they may go after the pilot. Personally, I think the incident involving the NWA crew falls into the "Shat happens" category, and I think the NTSB basically agreed in that case. It was the Court of Appeals that ruled for the FAA after their legal dept. appealed.

 

[Dumbledore]

The next step, if there's to be enforcement action, will be your receipt of a certified Letter of Investigation.

Not necessarily. The inspector who is given the investigation to pursue might call you first. If that happens it is CRITICALLY important that you say as little as possible.

The LOI will notify you that you are being investigated for a *possible* violation of the regulation, and will ask you to provide your side of the story. You need to understand right off the bat that the letter isn't asking you to provide your side of the story to defend yourself or to get let off the hook. The purpose of this letter, and it's ONLY purpose, is to encourage you to provide evidence against yourself.

While this may turn out to be the practical effect there is something avbug is leaving out here. Inspectors are compelled by the inspectors' handbook to assess the attitude of the pilot as they prepare their investigative report. What the inspector does with his report is critical to the effect of any particular investigation on you personally. A good attitude can help keep the whole thing confined to the FSDO which means it goes as a warning. A good attitude can, and occasionally DOES help convince an inspector to pocket the report. That’ll put you in a two-year hole rather than a five-year hole as far as your record is concerned.

If the report is sent to FAA legal, everything that avbug said about “guilty until proven innocent” kicks in. The report will represent a finding by the inspector that a violation has indeed occurred. Legal will review the investigative report and rubber stamp it for administrative action – a violation.

While a good attitude doesn't help an ATP much (they love nailing us when we're supposed to know what we're doing) it might help if you're a commercial pilot or just a private pilot.

You'll be given ten days to submit commentary. The general advice is DON'T.

That depends on who you talk to. There are indeed two choices. Respond or don’t. I would say this: if you elect to respond this is where you need to start spending for an attorney. The reason you should consider responding is because it’s simply polite. They’ve sent you a letter asking for your input. It would be impolite to ignore the letter. A response that says a lot without saying anything at all is appropriate. Remember it goes towards attitude too. No response is indicative of a poor attitude.

The reason an attorney needs to make the response is twofold. First, they’re good at writing letters. The reply can, and probably WILL, set the tone of the rest of the process. The second reason is that it places a layer of deniability between you and whoever is after you. If a mistake is made and it turns out to be a length of hangman’s rope that you’ve offered you can always say that “I” never said that. That can become important.

Remember, anything you say will not be used to consider your guilt...you're already guilty. It's only used against you. That's a very important consideration.

Perhaps, but denial of the charges from the beginning is just as important. You can’t do that if you don’t respond in writing.

You may also be invited to an informal converence or meeting, usually at the FSDO facility, where the enforcement action is being investigated and initiated. Do not attend this meeting without legal representation. That can't be emphasized strongly enough.

Agree 100%! Keep in mind also that informal conferences don’t stop at the FSDO level. Even if it gets to legal informal conferences are still an option. FAA legal is under very tough pressure to SETTLE cases whenever possible. They don’t have the time or the money to prosecute cases. If there’s a deal to be made you should be trying to make it. Make sure your attorney tries to work out and offer in compromise whereby you pay some sort of fine and maybe offer to help out with a wings program event or something like that. It goes towards attitude and it helps them settle a case.

Another thing to be mindful of about informal conferences is that it lets the FAA folks see who they’re up against. If you’re particularly credible in the way you speak or if you are otherwise powerful in your personal appearance and presentation, they may indeed think twice about going up in front of an ALJ with the case they have.

Following these efforts to get you to spill the beans, you'll get a notice of proposed certificate action, which is really your notice that your goose is already cooked. You can then appeal...but you're already been found guilty.

The appeal is a critical part of the process. It lets the FAA know you’ll fight. That fact alone can help you gain some traction with them. If they know you’re going to appeal they know you’re going to cost them money and time that they don’t have. That could make it possible to craft a deal.

I know a guy who got all the way to depositions. He was demanding depositions from the controllers and the investigators involved as well as some big shots in Washington who would have testified that the investigators COMPLETELY screwed up in their handling of the investigation. The depositions were scheduled on the Friday before a long Christmas weekend on the west coast. The New York office was the legal office involved. Needless to say, the lead attorney wanted no part of being in transit coast to coast on that of all weekends! Suddenly, there was room for a deal after all.

The moral is that if you can be a big enough thorn in their side you may get some or all of what you want.

This is where your ASRS report, filed in a timely manner, comes in handy. You're still guilty, it's still on your record as a violation, but you needn't serve the sentence.

Only if you filled out the ID strip well. If you admit to the charges on the ID strip they can use the strip as evidence against you and get around the ASRS report. Certificate goes bye-bye on the strength of the admission. If you title your event, “The Day I Blew My Altitude,” you’re gonna be in trouble. If you call it, “ATC Reports Altitude Discrepancy On Mode C Readout,” you haven’t admitted that YOU did anything.

I would leave you with a final thought and it’s an important one. You have entered a process. It will take some time. Depending on the FSDO and their workload it may take a month or so to even hear from an inspector. You will be one of the last boxes he will check. You’ll get an LOI or a warning within a couple of weeks after that – most likely.

The total amount of time it takes them to investigate and files charges against you is important. There is a stale compaint rule that sets a statute of limitations of six months on cases the faa brings. They lose their sanction (penalty) if they take too long to try to nail you. Keep track of how long it takes if it gets that far.

If you fight a legal battle it could take another 10-16 months to see the process through. The front end is expensive with the attorney because that’s when the letters and phone calls are happening. Then it’ll die down a bit. If you start to head for court and the attorney needs to prepare a case it’ll get expensive again. He’ll want to hire experts and there will be a fair amount of time put into preparing the actual paperwork of the legal response.

Don’t forget to be active in your defense. The guy I mentioned above found the folks in Washington who confirmed that they investigation into his case had been conducted contrary to existing policy – policy that EVERY inspector in the FAA was aware of – HIMSELF! When the attorney got a hold of that info he had a war he could actually wage.

Good luck! Ihope it comes to nothing.