In a recent FAA enforcement case, the NTSB affirmed its position that a pilot cannot be subject to sanction for his violation of a temporary flight restriction when that information was not provided to the pilot in a FSS briefing and was otherwise unavailable to the pilot from other sources. Administrator v. Dress arose out of a pilot’s incursion into the Camp David prohibited airspace (P40) shortly after September 11, 2001 after a FSS Briefer allegedly failed to provide the pilot with the Notam information regarding expansion of P40 from a 3 mile radius to an 8 mile radius.
At the hearing, the pilot, a certified flight instructor, provided testimony that his student had called FSS and was not told about the Notam expanding the area of P40. Unfortunately, the FAA did not preserve the tape of the briefing which would have either corroborated or contradicted the pilot’s testimony. As a result, the FAA was only able to present testimony regarding the process a briefer goes through in obtaining and disseminating Notam info and to argue that the official acts of public figures (FSS Briefers) are entitled to a presumption of regularity.
The administrative law judge found the pilot’s and his student’s testimony credible and dismissed the alleged violation of FAR 91.13, but affirmed the administrator’s claims of violations of FAR’s 91.103 and 91.141. On appeal, the NTSB Board dismissed the administrator’s complaint holding that the pilot could not be held responsible for Notam information not otherwise available when that information was not provided to the pilot in a FSS briefing.
In its holding, the NTSB took shots at both the pilot and the FAA. It felt the FAA was not as diligent as it should have been in preserving the FSS tape given “the heightened security concerns associated with violations of prohibited airspace following the events of September 11, 2001, and the seriousness with which FAA and law enforcement agencies address such violations”. Additionally, after the FAA admitted that it takes approximately 20 days for information about a potential enforcement case to reach the appropriate FSDO, it questioned “the utility of a policy of retaining briefing tapes for a period of time that is too short to serve the best interests of either airmen or the administrator in the enforcement context”.
“With respect to the pilot, the Board felt that in light of the student’s inexperience and the highly-charged nature of airspace security concerns that prevailed in the aftermath of September 11”, the pilot should have independently verified the information provided to the student by the FSS Briefer. This is consistent with my recommendation to all pilots that FSS be consulted prior to all flights, even if the call is only to confirm the status of TFR’s for the intended route of flight. As this case shows, if you ask for airspace Notam information that is not otherwise available and it isn’t provided to you, it is most likely that you will not be held responsible for any violation.
