About Justin A. Marchetta

Justin A. Marchetta is an associate with the law firm of Inglesino, Pearlman, Wyciskala & Taylor. Mr. Marchetta's practice encompasses a broad range of litigation matters and appeals, representing both private clients and public entities. His experience includes contract and employment disputes, complex commercial litigation, actions in lieu of prerogative writs, zoning and land use litigation, municipal board matters, nonprofit organizations, municipal property tax appeals, and government investigations. He has experience in transactional matters, and he counsels clients appearing before regulatory boards and agencies. Mr. Marchetta also serves as a panel attorney for the Aircraft Owners and Pilots Association (AOPA) Legal Services Plan, representing pilots and aircraft crew members before the Federal Aviation Administration (FAA) and the National Transportation Safety Board (NTSB) in regulatory and civil penalty actions. Mr. Marchetta received his B.A. degree from Rutgers College in 2004, and his J.D. Cum Laude from Seton Hall University School of Law in 2009. While in law school, he served as vice president of the Seton Hall Litigation Society and received best brief author and best oral advocate honors in appellate advocacy. Before attending law school, Mr. Marchetta worked in the public sector for eight years as a 9-1-1 dispatcher and EMT. He also has experience in general aviation and has logged time in the Piper Cherokee and Cessna 172. Prior to joining the firm, Mr. Marchetta worked for four years, first as a full-time law clerk then as an associate, at the law firm Stern & Kilcullen. He also interned for the Honorable Madeline Cox Arleo, U.S.M.J. in the U.S. District Court for the District of New Jersey. Admissions New Jersey, 2009 New York, 2010 District of Columbia, 2011 U.S. District Court for the District of New Jersey, 2009 U.S. District Court for the Southern District of New York, 2010 U.S. District Court for the Eastern District of New York, 2010 U.S. Court of Appeals for the Third Circuit, 2010 Professional Affiliations Middlesex County Bar Association New Jersey Bar Association American Bar Association Aircraft Owners and Pilots Association International Aviation and Transportation Safety Bar Association

FAA – Protecting Our Airspace, Sending a Message, or Both?

Drone RestrictionsAccording to a recent agency press release, the FAA on Tuesday issued a $1.9 million fine for Chicago-based drone operator, SkyPan, for allegedly “endangering the safety of our airspace” during unauthorized flights over New York City and Chicago.  The FAA claims SkyPan’s 65 offending flights took place between March 2012 and December 2014 “in some of our most congested airspace and heavily populated cities, violating airspace regulations and various operating rules,” and that, “These operations were illegal and not without risk.”

Forty-three of the alleged incursions took place in the New York Class B airspace.  In addition, the agency says SkyPan flew its unmanned aerial vehicles (UAVs) without equipment required for Class B airspace operations, including a two-way radio and a transponder with altitude reporting capability.  FAA Administrator, Michael Huerta said, “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous,” noting that “We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”

This civil penalty action comes in the midst of the agency’s work to compile a comprehensive set of rules for the commercial operation of UAVs in U.S. airspace. Until those regulations are in place, the FAA will continue to issue permits to UAV operators on a case by case basis.  About 1,800 such permits have been granted to date.  However, with the holiday season rapidly approaching, retailers estimate adding approximately one-million new UAVs to the civilian market before the end of the year.  Perhaps in the near future, the FAA will be issuing additional large civil penalties to ignorant drone operators more for shock and deterrence value than anything else.

The regulatory landscape governing unmanned aerial vehicles is unsettled and largely uncharted territory.  We recommend that all operators and potential operators seek the advice of experienced aviation counsel before conducting flights with any unmanned devices.

Is the FAA Changing Its Position on Enforcement Actions?

FAAHistory has taught us that the FAA could almost always be counted on to bring the full weight of the federal government to bear on airmen who deviated from the Federal Aviation Regulations, no matter how minor the infraction.  However, a recent Order seems to indicate that the feds are re-thinking their enforcement methodologies.  Order 8000.373 states that:

The FAA recognizes that some deviations arise from factors such as flawed procedures, simple mistakes, lack of understanding, or diminished skills. The Agency believes that deviations of this nature can most effectively be corrected through root cause analysis and training, education or other appropriate improvements to procedures or training programs for regulated entities, which are documented and verified to ensure effectiveness.

Could it be that the FAA is now relaxing its black-or-white view of pilot deviations and minor FAR infractions?  Such would be a welcome change for airmen who previously experienced the FAA’s relentless pursuit of maximum penalties for minor violations.  However, not to be completely foreclosed from pitbull-style prosecution, the FAA left itself an avenue of enforcement in the Order, noting that “reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations might result in enforcement”.  The true effect of the Order remains to be seen.

FAA enforcement actions are complex proceedings filled with traps for the unwary pilot.  Airmen facing any FAA investigation or enforcement action should immediately seek experienced legal counsel to protect their certificates and rights.

Humanitarian Flights Not Automatically Granted State Status

1353209In a recent legal opinion, the FAA has refused to extend a provision in the Chicago Convention which deems aircraft used in police and military services as “state aircraft” to include those used for medical services and disaster relief.  Pointing to a draft version of FAA Advisory Circular AC00-1.1A, in which it was recognized that the list of missions undertaken by state aircraft in the Chicago Convention is not comprehensive, a humanitarian relief organization argued that medical and disaster relief flights should be granted state status.  However, the FAA noted that this draft language was not adopted in the final Advisory Circular and that due to increased security measures and shifting regulatory oversight to host nations, extension of the Chicago Convention to automatically include medical and disaster relief flights would be imprudent.  Despite foreclosing an automatic grant of state status to such flights, the FAA left open the option to apply for state status on a flight-by-flight basis by following proper diplomatic channels and securing necessary approvals from both U.S. and foreign authorities.

Local Airport Victory

OLYMPUS DIGITAL CAMERAOn May 4, 2015, a Hunterdon County Superior Court Judge issued a sharply worded 54-page ruling in the protracted eminent domain litigation involving Solberg Airport (N51) and Readington Township, New Jersey.  Judge Paul Armstrong ruled that the Township’s claimed environmental purpose for condemning land owned by the airport was actually a “ploy” to thwart the airport’s expansion plans, which amounted to a “manifest abuse of the power of eminent domain.”

Characterizing the Township’s motives to create a contiguous open space greenway using airport property as “deliberate subterfuge,” Judge Armstrong noted that “the evidence clearly and convincingly shows that these reasons were a pretext for Readington Township’s true purpose, which was to limit the airport’s capacity to remain economically competitive and to limit its expansion”.

The case itself dates back to 2006, when the Township enacted an ordinance authorizing the taking of approximately 726 acres of land belonging to the airport. Initially, Township officials sought municipal control over factors like runway length, hanger size and jet aircraft noise at the airport.  But after the ordinance authorizing the condemnation was passed in July 2006, Township officials were sharply criticized for the Township’s use of its eminent domain power in this regard.  Following the advice of its retained public relations firm, the Township shifted focus from control over airport operations to preservation of open space.

Judge Armstrong noted that testimony of several Township officials showed “that each, after their own fashion, were faithful pupils of the shifting strategies of their public relations firm, CN (the public relations firm)”.  According to the judge, Township officials publicly “demonized” the airport “by disseminating a catalog of fears and appeals to mistrust which mischaracterized” the expansion plans.

The court re-vested Solberg Aviation Co. with ownership of the property and awarded it counsel fees and expenses, including expert fees, to be calculated later and paid by the Township.  The Township has forty-five days to file an appeal of this decision.

Land use and zoning are volatile issues, especially on the local level when concerning such high-profile uses as airports.  Owners and operators should seek legal counsel with experience in both land use and aviation.  The firm of Inglesino, Webster, Wyciskala & Taylor, LLC offers such expertise, as well as a wide-range of legal services, to its clients.

New York Passes Aviation Tax Reform

downloadThe New York State Legislature recently passed significant tax reform which brings the Empire State’s aviation tax requirements in line with neighboring jurisdictions.  Through its budget process, the State legislature exempted general aviation aircraft from its sales and use tax.  The measure is aimed at attracting aviation-related jobs and business to New York, which has long been devoid of such economic resources.  The State legislature also removed onerous requirements on leasing structures used by aircraft owners and other businesses.

Once signed by the governor, the reforms will exempt general aviation aircraft, machinery and equipment installed on such aircraft from New York sales and use tax, beginning on Sept. 1, 2015.  The exact level of impact on the State’s economy and aircraft owners, as well as the legal implications for aircraft transactions remain to be seen.

Due to the complexity of aircraft transactions, potential buyers and sellers should consult with experienced legal counsel as early as possible in the deal process.

Will the FAA Grant a C of A on Foreign Soil?

FAAIn a late-2014 legal opinion, the FAA claimed its authority to deny the issuance of a certificate of airworthiness (“C of A”) to an aircraft located outside the United States in cases where it determines that the issuance of such presents an undue burden to the agency.  Specifically, the FAA suggested that it may invoke the “undue burden” test to deny the issuance of a C of A to an aircraft registered to a U.S. bank, but located on foreign soil.  The agency’s test is derived from FAR 21.325, which states that “if the FAA finds no undue burden in administering the applicable [statutes and regulations], an export airworthiness approval may be issued for a product or article located outside of the United States.”

Even in cases where the owner or purchaser of an aircraft utilizes the services of a Designated Airworthiness Representative (“DAR”), the FAA claims that due to its oversight responsibilities involving DARs, the use of a DAR does not eliminate the “undue burden” to the agency and a C of A may still be properly denied.  Clearly, this is a troubling development in the already complex maze of aircraft transactions which include an import or export of the subject airplane.  Engaging experienced legal counsel early in the process will help to avoid the many pitfalls inherent in these types of transactions.

Reimbursement for Celebrity Transportation OK, but Be Prepared to Offer Proof

hthxbu7nhcdshxfx04onIn a recent legal opinion, the FAA concluded that in the modern world of celebrity endorsement, an aircraft manufacturer may seek reimbursement for promotional flights involving a celebrity spokesperson.  The manufacturer was seeking to pay celebrities to make appearances on its behalf in order endorse the manufacturer’s products.  In seeking a legal opinion, the manufacturer represented to the FAA that providing transportation to paid celebrity endorsers in order to assist with marketing, promoting, and ultimately selling the manufacturer’s products was within the scope of, and incidental to, the business of the company, in accordance with the requirements of FAR 91.501.

However, the FAA cautioned that FAR 91.501 is a limited exception to certification requirements for commercial operators and air carriers, requiring the manufacturer, if challenged, to prove how the transportation of celebrity endorsers is within the scope of, and incidental to, the business of the company.  As the FAA points out in this and other legal opinions, there is no hard and fast rule regarding reimbursement for Part 91 operations.  Due to the complexity of the regulatory framework involved, manufacturers and operators should seek experienced legal counsel before seeking reimbursement for any Part 91 flight or instituting a program of reimbursement for certain aviation business activities.

FAA Lowers Minimum Sanction for Inadvertent TFR Incursions

nytfr-9-17-11bigIn a recent change to its Compliance and Enforcement Program, the FAA has lowered the minimum sanction for inadvertent TFR incursions from a 30-day suspension to remedial training.  Pilots who inadvertently enter temporary flight restricted airspace may avail themselves of the lower minimum sanction under the following circumstances:

1. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or

2. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.

All other situations will continue to incur progressive enforcement sanctions starting with a 30-day suspension of all pilot certificates.  FAA enforcement actions often involve complex issues, including an airman’s particular facts and the governing law and regulations.  When faced with any investigation or legal action, pilots should consult with experienced aviation counsel to determine their rights and obligations before speaking with authorities.

FAA Allows Flexibility in Meeting Part 135 Training Requirements

FAAIn a recent legal opinion, the FAA stated that simulator instructors and check airmen who conduct training and checking for a Part 135 certificate holder may meet flight currency requirements by acting as a required crewmember on Part 91 flights.  The FAA noted that “it appears the agency intended to add some flexibility into this requirements as compared to other qualifications, which are explicitly required to be completed in operations under a specific part.”  These requirements ensure that check airmen and flight instructors continue to experience flying under conditions that are comparable to what may be encountered in their operational environment.

To accomplish this, the FAA prefers that instructors and check airmen meet these requirements is by flying on the line.  However, this is not strictly required nor is it the only method available for satisfying these experience requirements. Therefore, those flight segments may be conducted in an operation under part 135 or in an operation under part 91.

NTSB Releases Top 10 List for 2014

NTSB-sealThe NTSB recently released its Top 10 Most Wanted List of safety improvements for 2014.  Aviation items on the list include distractions by portable electronic devices and the identification and reporting of hazardous weather conditions.  Helicopter operations were also added to this year’s list, citing 1,470 helicopter accidents with 477 fatalities over the past decade.