Why the Big Fuss Over FAA Ticketing?

Airmen and alphabet groups alike are furious about the FAA's new "ticketing" program, and rightly so...the program is seriously flawed. But AVweb editor-in-chief Mike Busch believes that the original goals of the program are valid, and the FAA could easily fix the flaws without scrapping the program or eviscerating it. Let's hope the FAA is listening when it meets on this issue July 21st.


ATISItwas a beautiful day to go flying. The air was smooth, the airplane performed flawlessly,and the landing was so smooth that one passenger asked "are we down yet?" As youcomplete your after-shutdown checklist and open the cabin door, you spot a stranger in awhite shirt and dark tie walking toward your airplane, and then your blood runs cold whenyou notice his blue nametag with its FAA "meatball" seal.

Inspector: "Hello. I’m John Dokes, an aviation safety inspector with the FAA’s Smithtown FSDO. I’m conducting a routine ramp inspection, part of the FAA’s normal surveillance program. May I please see your pilot and medical certificates?"

Pilot: "Certainly, Mr. Dokes. … I keep them right here in my wallet. … Ahhh, give me a moment. … Darn! … Oh gee! I took them out of my wallet yesterday to make a photocopy for my insurance renewal, and I must have forgotten to put them back. I’ll bet they’re sitting on my dresser at home. I just can’t believe it! I always carry them with me… What should I do?"

Inspector: "Are you aware that FAR 61.3 requires that you have your pilot and medical certificates in your physical possession or readily accessible in the aircraft when you act as pilot-in-command?"

Pilot: "Yes I am, sir, and I always carry them in my wallet, as I told you. I just can’t believe I forgot…"

Inspector: "Well, although it’s apparent that you violated FAR 61.3, it’s clear to me that your violation was inadvertent. So I’m just going to issue you a warning on this "ticket" form and leave it at that. The warning will remain in your file for two years and then be expunged. May I have your name and address please…"

So what’s the big fuss about the new ticketing program, as set forth in Compliance/Enforcement Bulletin #98-1 and symbolized bythe new FAA Form 2150-7 "ticket" and asexamined so skillfully by AVweb’s aviation law editor Phil Kolczynski in hisarticle "Ramp Check ’98: The FAA Inspectoras TrafficCop"?

Isn’t it a good thing that the inspector was able to let the pilot gowith just a warning? Isn’t it a good thing that the matter could be resolvedon-the-spot without all sorts of intimidating paperwork like Letters Of Investigation andEnforcement Investigation Reports? Why are AVweb and pilot alphabet groups likeALPA, AOPA and EAA making such a stink about this? Isn’t this new program — which the FAAfield-tested in Alaska before deciding to deploy in the Lower 48 — something thatconscientious airmen should welcome, and that only the scofflaws and cowboys among usshould fear?

What’s wrong with this picture?

2150-7 Ticket FormIn fact, the scenario illustrated aboveis precisely how the folks who designed the FAA’s new streamlined administrative actionprogram intended the program to be used. If I could be sure that it would be used only insituations like this, I wouldn’t object to it a bit. I’ve certainly got nothing againstreducing FAA paperwork and bureaucratic monkey motion. Nor do I believe that long, drawnout enforcement procedures are desirable for simple matters that an airman and inspectoragree can be settled on-the-spot.

The real issue, however, is what happens when things depart from this idyllic textbookscenario? What if an inspector cites an airman for violating an FAR that the airmandoesn’t believe he’s violated? What if the airman wants a little time to look up the regs,or to consult with his CFI or A&P or attorney? What if the inspector is wrong aboutwhat the FARs say, or wrong in his interpretation of what they require of the airman?(Hey, it happens! Remember the inspector who grounded a twin Cessna as unairworthy because he’d never seen Q-tip props before?)

Aye, there’s the rub!

The problem with the new FAA ticketing program is that, in the interests ofstreamlining the paperwork and facilitating immediate closure, the FAA has not providedadequate protections for the accused airman or other certificate holder. (The ticketingprogram applies not only to pilots, but to mechanics, dispatchers, and technically even tonon-certificate holders like unruly passengers.) Under the new program, it’s simply tooeasy for an innocent airman to suffer serious consequences if an inspector makes amistake, or if the inspector and airman have an honest disagreement about whether or not aviolation occurred, or even if the airman is unsure and needs some time to collect histhoughts.

That’s unacceptable.

The program is seriously flawed…

After carefully reviewing the 98-1 program, I’ve come to the conclusion that it hasfour serious flaws that make it potentially unjust.

Flaw #1: agree with the inspector…or else!

FAA enforcement policy states that "administrative action" (such as a WarningLetter, Letter of Correction, and now a Form 2150-7 "ticket") may be used as anappropriate alternative to legal enforcement action only when:

  • the airman has no prior record of similar violations;

  • there is no evidence that the airman is unqualified to hold his certificate and ratings;

  • there was no significant unsafe conduct involved;

  • there is no evidence of deliberate, grossly negligent or criminal behavior acts; and

  • the airman exhibits a good "compliance attitude."

It’s the last item in this list that’s most worrisome, because FAA policy doesn’tdefine what constitutes a good or bad "compliance attitude."

Suppose an FAA inspector accuses you of violating an FAR, but you don’t agree and youtell him so. Does that constitute a poor "compliance attitude" that justifiesthe inspector throwing the book at you instead of letting you off with a warning? WrittenFAA enforcement policy (Order 2150.3A) is silent on this issue. In recent weeks, FAAspokespersons have repeatedly denied that an airman’s failure to agree with an inspector’sallegation of a violation constitutes a poor "compliance attitude" that wouldwarrant legal enforcement action.

However, a recently-released "FAQ" prepared by the FAA for use in traininginspectors in the new 98-1 procedure includes the following Q&A:

Q: I do not understand how a person, receiving a ticket, could say to the inspector that "I do not agree with your opinion that it is a violation, and want to go full enforcement action and NTSB hearing." Does the person receiving the ticket have the right to appeal?

A: The alleged violator does not have to agree with the inspector/agent. The decision to take Administrative Action is our decision (ticket or traditional) and is not subject to legal appeal. If a person does not agree that a violation occurred, one should question if administrative action is appropriate. The requirements for administrative action dictate that: you achieve compliance; can be assured of future compliance; the person has a constructive attitude; and the action will serve as an adequate deterrent. If the person does not agree or believe that a violation occurred, at least one of the administrative action criteria would not be met. In that case a legal enforcement should be filed for which the legal right of appeal is afforded. In reality, most people will opt for the administrative action.

The FAA seems to be telling its inspectors this: if the inspector accuses an airman ofa violation and the airman replies "Yes sir, I’m guilty as charged," then theairman may qualify for administrative action (such as a Warning Letter or"ticket"); but if the airman says "No sir, I think you may be wrong aboutthat," then the airman does not qualify for administrative action and gets legalenforcement action instead.

This is nothing short of intimidation, and is terribly dangerous government policy.It’s one of the most blatant cases of "if you don’t agree with the inspector, you’vegot a bad compliance attitude" that I’ve ever seen in writing from the FAA, and it’sin material being used to train inspectors! Is it any wonder that the airman community isup in arms about this?

Flaw #2: allegations aren’t the same as proof

Before bringing legal enforcement action against an airman, the FAA needs to have asolid case. If it doesn’t, the FAA’s proposed certificate action or civil penalty may bereversed on appeal by an NTSB Administrative Law Judge, or by the full NTSB, or by theFederal Circuit Court of Appeals (should the airman elect to take his appeal that far).

Administrative action is considered to be a much milder sanction, and so the"standard of proof" is much lower. Still, FAA enforcement policy directs aninspector to conduct an investigation, to assemble "items of proof" as requiredto justify his contention that a violation occurred, and to prepare a formal EnforcementInvestigative Report (EIR). So if the airman believes that the inspector was wrong andchooses to escalate the matter to a higher level of FAA management, the airman can ask togo over the EIR and items of proof with the FAA manager and attempt to rebut them.

Under the new "ticketing" program, however, the "standard of proof"becomes virtually nonexistent. Bulletin 98-1 does not require the inspector to assemble"items of proof" and states that no EIR should be prepared beyond the filled-inForm 2150-7 "ticket" itself. Thus, should you wish to question the allegationagainst you, you have nothing to point to but what the inspector wrote on the ticket. It’shis word against yours, with no requirement for corroborating evidence to back up hisallegation.

The FAA claims that the new "ticketing" program will be used only forviolations that are so cut-and-dried that no investigation or "items of proof"are necessary to substantiate them. Commonsense dictates otherwise: FAA inspectors hatepaperwork as much as the next guy, and will use the ticketing program any time they thinkthey can get away with it. "Cut-and-dried" is in the eye of the beholder!

Flaw #3: unproven allegations shouldn’t be made public

If a "ticket" were nothing more than the proverbial slap-on-the-wrist (as theFAA suggests), then perhaps we could live with these flaws. In principle, the purpose foradministrative actions (such as "tickets") is to provide the FAA with a vehiclefor its stated policy of "progressive enforcement." In other words, "Mr.Airman, this time we’ll let you off with a warning, but do it again and we’ll throw thebook at you." On the face of it, that’s not an unreasonable policy, andadministrative actions make sense in that context.

Unfortunately, the consequences of an administrative action can go far beyond that. Ifyou’re a professional pilot who flies for a living, it is FAA policy to send a copy of anysuch administrative action to your employer, where it could easily have serious impact onyour continued employment or prospects for advancement.

Even if you’re a pleasure flyer, an administrative action might result in your payinghigher insurance rates or other adverse consequences. I’m looking at the Privacy ActNotice which is part of the new Form 2150-7 "ticket" and it states in part:

C. Routine Uses: Records from this system of records may be disclosed in accordance with the following routine uses that appear in the System of Records No. DOT/FAA 847, General Air Transportation Records on Individuals, DOT/FAA:

4. To provide information about enforcement actions arising out of violations of the Federal Aviation Regulations to government agencies, the aviation industry, and the public on request.

So even though an FAA "ticket" is supposedly just a slap-on-the-wristpredicated on the unproven allegation of an FAA inspector with no opportunity for rebuttalby the accused airman, information about that "ticket" is available to yourinsurance company, or for that matter, to any member of the public who requests it underthe Freedom Of Information Act!

Incidentally, lest you think I’m grasping at straws here, I’ve checked this out withseveral aviation insurance agents, and they agree that it’s a very real concern.

Flaw #4: sanction without appeal

Ramp Check!Given that a "ticket" is merely an inspector’sallegation of violation with potentially serious consequences but virtually no requirementfor investigation or proof, some mechanism for appeal by the airman seems essential…butnone is provided.

I’m not suggesting that the airman should have the right to appeal a "ticket"all the way to the NTSB or the Federal Courts. On the other hand, simple fairness dictatesthat an airman who feels that he’s been wrongly accused by an FAA inspector should havesome meaningful recourse. The airman could try to go to the inspector’s boss (generallythe FSDO manager), but there’s nothing in FAA policy that requires the boss to meet withhim. Even if there were, the boss is hardly an appropriate neutral party…like any bossin any organization, a FSDO manager is highly likely to back up his inspector againstoutside criticism if the inspector’s action is even remotely defensible.

How could meaningful recourse be provided? It seems to me that it would be in the bestinterests of both airmen and the FAA to offer a simple appeal mechanism that doesn’tinvolve FAA lawyers and doesn’t require a prudent airman to hire an attorney. I’m thinkingof something like a "small claims court" or ombudsman program where an airmancould present his arguments to a neutral third party, and the inspector could argue hiscase as well. The arguments of both sides, plus the binding decision of the ombudsman,would then be entered into the airman’s record.

Some might question why it’s worth the bother to "fight a ticket" when thesanction is nothing more than a glorified slap on the wrist. The answer is that if you letthe ticket stand unchallenged, you now have a "record" for the next two years,and another violation will surely result in legal enforcement action against you. That’swhy an administrative action is worth appealing if you believe it to be erroneous. Andthat’s why having an appeal process is essential.

…but the flaws can be fixed

Some of the airman alphabet groups are telling the FAA that the "ticket"program is fundamentally and fatally flawed, and that scrapping altogether it is the onlyacceptable alternative. I disagree. I believe that a properly drafted program of this kindcould be beneficial to both the FAA and airmen alike. In fact, it seems to me that theprogram proposed in Bulletin 98-1 could be fixed pretty easily to make it acceptable tomost airmen without eviscerating the FAA’s original goals of reduced paperwork burden andexpedited closure of simple, inadvertent, cut-and-dried violations (like forgetting tocarry your pilot and medical certificate). All that’s needed, I think, are the followingchanges:

  1. The Form 2150-7 "ticket" should include a plain-English notice to the airman advising him of his rights under the program, one of which would be to decline the "ticket" and ask the inspector to issue a standard Letter of Investigation, Enforcement Investigative Report, and Warning Letter or Letter of Correction (i.e., the old pre-ticket administrative action procedure). Thus, an airman who isn’t comfortable with the ticketing procedure’s brand of "instant justice" could express his disagreement without fear of escalating the sanction from administrative action to legal enforcement action. 

  2. FAA inspectors should be required to assemble the same "items of proof" to support a Form 2150-7 "ticket" as they would in the case of a conventional administrative action investigation. 

  3. The Privacy Act statement that accompanies the Form 2150-7 "ticket" should be changed to prevent the FAA from disclosing information about administrative actions to other government agencies, members of the aviation industry, or the public. The information should be restricted to FAA use only for purposes of "progressive enforcement" (i.e., violate once and you get a warning, violate again and you get certificate action). It should not be available to employers, insurance companies, or other third parties. (It’s possible that simply changing the Privacy Act notice isn’t enough to protect the data…this is a question for the FAA lawyers to resolve.) 

  4. An airman who receives a "ticket" or other administrative action and believes that he’s been wrongly accused of a violation by an FAA inspector should have the right to present his arguments to a neutral third party arbitrator (preferably without lawyers present), and those arguments plus the arbitrator’s binding decision would then be entered into the airman’s record.

The FAA has placed the "ticketing" program on hold pending a scheduled July21, 1998, meeting with industry groups. Let’s hope they either fix the program or scrapit. Otherwise, decades of hard-fought efforts by Administrators Busey, Engen and Hinson tocreate a reasonable measure of trust between airmen and inspectors will be lost.Administrator Garvey would do well to remember that the FAA (like the IRS) depends almostentirely on voluntary compliance by airmen to achieve its objectives.

The FAA says it wants to hear your thoughts on the proposed "traffic ticket"enforcement program. They’ve set up a special email address for this purpose: 9-anm-publicticket@hq.faa.gov. Let’s notdisappoint them.