Torqued: FAA Enforcement Pendulum Swings, Angering Some Operators

 - January 1, 2018, 10:15 AM

Recent NATA complaints about the lack of FAA enforcement against illegal charter operators has got me thinking about the FAA enforcement pendulum and industry’s reactions to it swings. According to a recent NATA press release, the organization “requested the [FAA] review the resources it dedicates to identifying and stopping these [illegal] operations, and to ensure field staff are both available and properly trained to immediately investigate a hotline call.” The release added, “We hope the agency will work with NATA and legitimate operators to combat this growing problem before an accident or incident involving illegal charter mars the entire general aviation community’s safety record.”

I have observed FAA enforcement actions for the last several decades from many different vantage points. And I’ve seen the enforcement pendulum swing from heavy-handed punitive sanctions for seemingly small or inconsequential infractions to nonexistent punishment for even patently unsafe and intentional acts. (Right now, thanks to the FAA’s most recent Compliance Philosophy, the pendulum has clearly swung in the latter direction.) But whichever way the pendulum swings—often in reaction to industry complaints—the one constant I’ve observed is that industry complains no matter where the pendulum swings. 

Early in my aviation career, and many moons ago, I saw this from the vantage point of an A&P mechanic for the airlines. In those days, FAA enforcement was exceedingly rare and what enforcement there was was usually a small civil penalty against either an individual airman or a certified company. There were a few larger penalties—and the occasional certificate suspension or revocation—but those were few and far between. The FAA enforcement pendulum was pretty firmly in its low-enforcement swing. 

Later, as a union safety representative for the International Association of Machinists, I was responsible for handling FAA enforcement actions against USAir mechanics. This was during the early 1990s, at a time when the FAA had switched enforcement sanctions from small civil penalties for most violations by pilots and mechanics to certificate action for any infraction—no matter how small—if the agency determined it arose from use of the individual’s certificate, regardless of whether the certificate was needed for the person to work. (I remember many pilots outraged by certificate suspensions if they were caught flying without their certificate physically on them, even if they could readily prove to the FAA that they did, in fact, have a certificate.)  Pilots suffered the most under this policy since they can’t fly with a suspended certificate. Mechanics, especially those working for the airlines, can still work even without a certificate as long as they work under the supervision of someone with a certificate. But different companies had different standards for whether mechanics whose certificates were suspended would be allowed to work or whether their pay would be docked even if they were allowed to work. There were many complaints at the time from various aviation alphabet groups of FAA’s draconian enforcement. FAA enforcement was in its upswing.

Incident Prompts Greater Enforcement

In response to the many industry complaints that followed this enforcement spree, there was a general decrease in enforcement, as I recall, for a number of years. An enforcement upswing followed the crash of a Challenger 600 at Teterboro Airport in New Jersey in February of 2005. (I had recently left the NTSB when the crash occurred, so I observed what followed as a former Board member.) The aircraft failed to lift off and careened across a highway and into a warehouse. No one was killed in the crash but one crewmember and a passenger in a car hit by the speeding jet were critically injured. The airplane, fortunately, did not explode on impact, which allowed the 11 passengers and crew to escape. But the crash did break open a long-standing practice of a number of certified Part 135 charter companies “renting” out their certificates. The company operating the charter flight, Platinum Jet Management (PJM), was alleged to have illegally rented a certificate from a Part 135 air taxi in Alabama, Darby Aviation, and itself unqualified to fly charters.

The NTSB determined the probable cause of the accident was “the pilots’ failure to ensure the airplane was loaded within weight-and-balance limits and their attempt to take off with the center of gravity well forward of the forward takeoff limit, which prevented the airplane from rotating at the intended rotation speed.” But it also found the following contributing factors: “1) PJM’s conduct of charter flights (using PJM pilots and airplanes) without proper Federal Aviation Administration (FAA) certification and its failure to ensure that all for-hire flights were conducted in accordance with 14 CFR Part 135 requirements; 2) Darby Aviation’s failure to maintain operational control over 14 CFR Part 135 flights being conducted under its certificate by PJM, which resulted in an environment conducive to the development of systemic patterns of flight crew performance deficiencies like those observed in this accident; 3) the failure of the Birmingham, Alabama, FAA Flight Standards District Office to provide adequate surveillance and oversight of operations conducted under Darby’s Part 135 certificate; and 4) the FAA’s tacit approval of arrangements such as that between Darby and PJM.”

The FAA took enforcement action against Platinum, the charter company in Alabama and a number of Platinum personnel. But the prosecutions did not stop with the FAA. The U.S. Attorney in New Jersey several years later criminally prosecuted the company, two of its executives, several pilots and other personnel for a list of allegations, including fraud and falsification of records to make it appear that the company was authorized to fly.

While some FAA inspectors in the field apparently approved of these rent-a-certificate schemes, others in the FAA took the matter of operational control more seriously. And thus began a sustained enforcement focus against Part 135s who had relinquished “operational control” and operators who were operating without a Part 135 certificate. The cases culminated with the emergency revocation of AMI, a Part 135 based in Burlingame, California, and a record $10 million fine against TAG Aviation. Industry reaction to the increased enforcement was harsh. Among those protesting the enforcement sanctions was NATA. In a letter to it Part 135 members, NATA wrote that it is “extremely angered by the Federal Aviation Administration's decision last Friday to revoke the operating certificate of AMI Jet Charter based in Burlingame, CA. This shocking development certainly calls into question what was once a productive and professional relationship between NATA and the FAA and raises legitimate concerns over the unilateral authority select members of the FAA legal team have over operational control issues affecting the Part 135 industry.” The letter continued, “NATA believes that this action against AMI is driven more by arrogance and a failure to understand how Part 135 is different from Part 121 than by true concerns about the safety of operations conducted on AMI aircraft.” 

In recent years, FAA enforcement has once again been on a downswing. The FAA’s Compliance Policy has put an emphasis on operators finding and correcting their own problems and, by all accounts, enforcement of the rules has been on a downswing. But pressure from the industry or, as NATA put it, “an accident or incident involving illegal charter mars the entire general aviation community’s safety record” could refocus the FAA, as it did following the Platinum crash in 2005. Note to NATA: be careful when you wish for increased FAA enforcement.