In a recent case, Administrator v. Sumler, the NTSB affirmed a 150-day suspension of an airman’s ATP certificate for three fly-bys in a Gulfstream II jet. According to the FAA, the airman made two low passes just off the shore of Mokuleia Beach, Hawaii and a low pass down the runway at Dillingham Airfield, Hawaii with gear and flaps retracted in violation of FARs 91.13(a) (careless and reckless), 91.119(b) (minimum safe altitudes), and 91.515(a)(1) (flight altitude rules). As a result, the FAA issued an order suspending the airman’s ATP certificate for a period of 180 days. The airman then requested an evidentiary hearing before an NTSB ALJ.
After hearing the testimony of witnesses and reviewing a DVD recording of the airman’s aerial maneuvers that was recorded for use in marketing “Girls Gone Wild” videos, the ALJ found that the airman had violated the FARs as alleged by the FAA. He specifically determined that the area in the vicinity of the airman’s low-level maneuvers constituted an open air assembly of persons and concluded that the airman intentionally flew a low pass down the runway for purposes other than landing or flying a practice approach. The ALJ also rejected the airman’s request for a waiver of sanction for filing an Aviation Safety Reporting Program (ASRP) report, because the airman’s acts were not inadvertent. However, the ALJ did reduce the suspension from 180-days to 150-days.
On appeal, the airman argued that the ALJ erred in finding that his purported low flight over the runway was not performed in connection with landing; and (2) concluding that the maneuvers over the beach were conducted over an open air assembly of persons. Not surprisingly, the Board rejected the airman’s arguments and held that “it is abundantly clear that respondent operated his aircraft at an excessively low altitude in his two passes over Mokuleia Beach, and again during his level flight down Runway 8 which was not for the purpose of a practice approach or missed approach, but, rather, simply a low pass for the purpose of the filming activities. The record clearly establishes that respondent’s aircraft, a large business jet, was actually flown approximately 100 feet above the surface of both the water off Mokuleia Beach and Runway 8 at Dillingham Airfield. Respondent’s maneuvers, as depicted in the video and testified to by the Administrator’s witnesses, were clearly reckless and apparently intended to provide exciting footage for the “Girls Gone Wild” film crew.”
With respect to the airman’s ASRP argument, the Board noted that “ASRP sanction immunity is not appropriate for intentional maneuvers; there is absolutely no evidence in this record that respondent held a reasonable belief that he was authorized by FAA personnel to maneuver his aircraft as he did.” In pointed concurring statement, Board member Cheleander observed that “as a former military aviator, military aerial demonstration team member, and 15-year commercial airline professional, I feel obligated to comment that the record in this matter overwhelmingly demonstrates respondent’s egregious disregard for the safety of his aircraft, those persons on board, and the property and people on the ground when he deliberately maneuvered his aircraft in a reckless manner. I am convinced by the record before me that respondent to this day fails to appreciate the degree of risk in the maneuvers he undertook and in the manner in which he executed them.” He then went on to indicate that he would have reinstated the 180-day suspension if the FAA had appealed the ALJ’s reduction in sanction.
I haven’t seen the video, but it seems to me that the video evidence alone would be pretty hard to rebut under these circumstances and likely overshadowed any evidence the airman presented to the contrary. The fly-bys were probably fun at the time. However, the question in hindsight is: Were they worth it?
