“A precedent-setting FAA enforcement case is being fought before a National Transportation Safety Board administrative law judge over the emergency revocation of private pilot Ralph Rebaya for his allegedly improper commercial operation of a 7 pound drone.  Until the FAA’s newly announced small UAS rules go into effect in August, a commercial drone operator is required to hold a manned aircraft license.

Mr. Rebaya’s case is the first time the FAA has revoked a manned aircraft license for flying an unmanned aircraft.  Although the FAA warned some time ago that pilots could lose their manned aircraft licenses for flying a small drone, it is surprising to me that the FAA actually took this drastic action, especially on an emergency basis. According to the FAA’s order, which was issued June 1 although the flights actually occurred in December of last year, Mr. Rebaya’s alleged conduct was so egregious that “an emergency exists requiring immediate action …with respect to safety in air commerce or air transportation.”   I will let you read the FAA’s complaint and decide just how egregious Mr. Rebaya’s alleged actions were.   I find it hard to understand why it took the FAA six months to decide that an emergency existed or how Mr. Rebaya’s alleged conduct – even if true – rises to a level that warrants taking away his right to fly manned aircraft.  In addition to questioning the FAA’s conclusion that the drone flights in question warrant revocation of his pilot’s license, Mr. Rebaya’s attorney, D. Damon Willens, of Los Angeles, challenges the FAA official’s authority to issue the revocation order.

Mr. Willens  filed a motion today asking the NTSB judge to toss out the FAA’s revocation asserting that the FAA official who issued the order did not have the legal authority to do so.  This is a stunning and unprecedented claim, in my experience.  I can’t recall a single case in my almost ten years as a Member of the NTSB responsible for reviewing appeals of FAA enforcement cases that a case was challenged because the official did not have the legal authority to take the action.  According to Mr. Willens, the emergency revocation was issued by the FAA’s Deputy Chief Counsel even though the regulation delegating authority to issue revocation and suspension orders did not include the Deputy Chief Counsel.  This is particularly disturbing to me because an emergency order is the most significant sanction the FAA can impose since it immediately revokes a pilot’s license – and in this case his right to operate a drone commercially – without the traditional due process requirements of notice and a hearing first.  Mr. Rebaya’s license was revoked on June 1, the day the emergency order was issued, and remains revoked today.  Requests for comment from the FAA on the legal authority of the Deputy Chief Counsel to issue revocations was not immediately responded to.

I checked with noted aviation attorney Kathleen Yodice – a long-time advocate for aircraft pilots and a former FAA attorney – about the significance of this case.  According to Ms. Yodice: “The FAA is normally very diligent about maintaining the appropriate delegations of authority within the agency so that any legal actions are taken in accordance with law and procedure.  It is right for us to expect this sort of diligence from our Federal government.  For the FAA’s Chief Counsel’s office to issue a document over the signature of someone who has not been properly delegated the authority to take an individual’s livelihood away is disturbing.”

Ms. Yodice raised a point worth passing on to anyone subject to FAA investigation: “…it makes me wonder if this sort of critical omission has occurred before but that someone who is not represented by counsel could not know to challenge the authority of the person signing the document.”

Forbes, Logistics and Transportation, June 27, 2016
John Goglia, Contributor
 
(Opinions expressed by Forbes Contributors are their own).

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