In 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.
In 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.
In a recent legal opinion, the FAA determined that the practical test component of reinstatement of an expired flight instructor certificate cannot be accomplished using a flight simulator at a part 142 training center, unless that training center has an approved program for instructor training or certificate reinstatement. For purposes of reinstatement of an expired certificate, the FAA requires that the flight instructor practical test be done in accordance with § 61.183(h) and the flight instructor must complete the practical test specified under that section. If reinstatement is attempted using a simulator at a part 142 training center, the instructor must be enrolled in an approved course of training specific to instructor certification or reinstatement in order for such training to be conducted in a simulator. The FAA specifically rejected a proposed interpretation that would have permitted the expired instructor to reinstate his certificate using “any course” at the training center.
Municipal and local efforts to close airports can often be derailed if the airport has received funds under the Federal Airport Improvement program. A recent example, as reported by AOPA, highlights the airport-friendly effects of the program’s strictures. In a recent victory for a Missouri airport, the FAA denied the City of Saint Clair’s request to close St. Clair Regional Airport (K39). In its letter to Mayor Ronald Blum, the FAA declined the city’s request to close the airport immediately, citing the city’s failure to abide by the terms of the Federal Airport Improvement Program. Specifically, the FAA cited the city’s failure to adequately maintain the airport, operational and financial issues, and the recent increase in tenant rental fees.
By agreeing to receive federal funds under the Federal Airport Improvement Program, the city signed a grant assurances contract obligating it to keep the airport open and available for public use as an airport. The city’s failure to do so has caused it to run afoul of federal program requirements and has invited scrutiny by the Department of Transportation Office of Inspector General.
One tactic often employed by hostile municipalities is to allow an airport to fall into disrepair before attempting to condemn the airport property for redevelopment or municipal use. If that airport receives federal funds under the program, the municipality may be held to task and disallowed from proceeding under its condemnation plan. The FAA’s deferment of closure is a small victory for St. Clair Regional Airport, but given the history of animosity between the city and the airport, a protracted legal battle is likely to ensue.
Photo credit: U-T San Diego, John Gibbins / AP
Every now and then, a story emerges regarding a small airplane that made an emergency landing on a public road or highway. The press never fails to sensationalize the story, often concluding without any evidence that a “stall” or other “failure” caused the incident. Thankfully, skilled pilots who are forced to make these types of emergency landings often walk away from the event. The Federal Aviation Regulations authorize a pilot in command to deviate from any rule to the extent necessary to “meet that emergency.” See FAR 91.3(b). However, when landing on tarmac not owned or operated by FAA governed airports, pilots often encounter difficulties from the state and local authorities which govern the commandeered pavement.
State and local authorities who have no specialized training in aviation regulations may cite pilots in these situations for obstructing highways, damaging property, careless operation, and other offenses despite the fact that the pilots most likely failed to violate a single FAR. It is important to remember that when faced with such a situation, any statement made to authorities may be used against you. Similarly, statements made to the press will often be misprinted and misconstrued. It is wise consult an experienced aviation attorney before speaking to any authorities – federal, state, or local. Our attorneys are available to assist in a wide range of situations, both emergency and routine.
A recent near-miss at White Plains / Westchester County Airport (HPN) occurred when air traffic controllers cleared an airplane for takeoff into the path of a Piper PA-28 landing on an intersecting runway. The pilots of the collision-course aircraft noticed the impending collision before controllers had a chance to correct the situation. The PA-28 executed a go-around, narrowly avoiding the collision. (Read the news coverage here)
In addition to reinforcing the need for an active visual scan during all phases of flight, near-misses like these remind us of the importance of the Aviation Safety Reporting System (“ASRS”). ASRS allows pilots and aircraft crew involved in or witnessing incidents to file confidential reports detailing the incident, describing its causes, and suggesting corrective action. The FAA offers an additional incentive to file ASRS reports, waiving fines and penalties for first-time inadvertent violators of Federal Air Regulations (“FARs”) in certain circumstances. However, in order to take advantage of the FAA incentive, the pilot or crew member must file an ASRS report within ten (10) days of the incident reported. Therefore, those witnessing or involved in aviation incidents should file an ASRS report as soon afterward as possible. Do not wait to be contacted by the FAA before filing an ASRS. By the time you receive a Letter of Investigation or Proposed Certificate Action, it may be too late!
Knowing who to call in the event of an aviation incident or accident is just as important as filing an ASRS report. An experienced aviation attorney can provide valuable assistance and representation in every step of the reporting and investigation process. Our attorneys are prepared and ready to assist airmen and crew members in the event of an incident or accident. Please do not hesitate to call.
Senator James Inhofe’s Pilot’s Bill of Rights has just passed the Senate and is on its way to the House of Representatives for consideration. This important piece of legislation includes improvements to our current system of NOTAMs as well as an overhaul of the FAA medical review process. Most notably Senator Inhofs Bill protects pilots’ rights by overhauling the process by which the FAA prosecutes pilots for FAR violations and the procedure by which the NTSB hears appeals from the FAA actions against pilots. The Bill requires the FAA to inform pilots of their basic rights before statements are taken and requires the NTSB to adhere to the same procedural safeguards that are afforded to litigants in regular courts.
We will continue to monitor the status of this legislation and will update you on its progress.