If you’re sick of the Martha Lunken saga, we get that. We are too. But something happened to the story that changed everything because suddenly it’s no longer just about Martha and her admittedly bone-headed decision to fly under a bridge. It’s about a new power the FAA wielded in its prosecution of Lunken, and it’s a power it could use against you or me, too, and there wouldn’t be a whole lot we could do about it if they did.
The fact that emerged, which was first reported by Russ Niles in a story on AVweb, is that the reason Lunken got her ATP certificate revoked instead of the agency just suspending her privileges is that, the FAA contends, Lunken turned off her ADS-B transponder before flying under the bridge. If that’s true, then it’s a smoking gun. Why else would you turn off your ADS-B right before you did something you know you could get busted for. We confirmed with the folks at Flying that this was indeed the FAA’s allegation, and that Martha is denying it.
The magazine didn’t bring this part of the story up in its original announcement about Lunken’s FAA penalty and her subsequent suspension from Flying Magazine, though she will be writing a much-anticipated article detailing what we can only presume will be her side of the argument. So, it’s not really a suspension as much as an extended time out with a snack time allowance. The magazine would comment beyond confirming the ADS-B part of the story, and we don’t blame them. Though we wish that both Lunken and others would have been transparent up front about the full extent of the complaint. Lunken surely got a lot of sympathy from folks, including me, who were given only half of the story. That’s not fair.
Lunken might have gotten away with the bridge dash, too, if she hadn’t been spotted by a state-operated remote camera on the bridge. Officials with Ohio’s Division of snooping promptly turned over the evidence to the FAA, which took its own sweet time looking into the matter before discovering, much to its dismay, we presume, that Lunken’s ADS-B track had gone out just before the time of the bridge underflyment. (I know, but let’s make it a word, okay?) This is what we must presume based on what facts are available. When Niles went digging for me, the FAA told him to submit a Freedom of Information Request, which is their way of saying that they’re not talking about it unless you make them.
And Lunken has said that she isn’t going to fight the charge by the FAA because she’s figured that it would cost her $25,000 to do so, which is a believable figure, I guess. But it leaves Lunken in a place where she looks as though she’s not fighting it because she knows she’ll lose, because it’s true. I have no idea if that’s the case or not, and frankly, after she omitted the part about the FAA charging her with turning off her transponder until she was confronted with it, apparently, she’s lost a lot of credibility in my eye.
Beyond all that high-school-level drama with the FAA thrown in for extra drama, there’s the question of why the agency revoked Martha’s certificate instead of just suspending her. The answer is, the FAA has the authority to do that if you get busted for fiddling with your ADS-B transmitter, and the only way we can figure that someone would do that would be to avoid detection. The problem is, how does the FAA know the difference between a faulty ADS-B transmitter and one that gets turned off (or has the breaker pulled)? My guess is all they have to do is claim that you did it on purpose and the onus is on you to prove that you didn’t, and it can be hard to disprove something for which there’s no real evidence to begin with. And, as Lunken pointed out, doing so is bound to be expensive. And the FAA doesn’t mind if you sue them. They have plenty of lawyers who are willing to go to battle with you. The biggest downside is that they would lose, and even though you’d get your privileges back, you’d still be out a lot of dough and it would have cost the FAA nothing.
Is it time that there was an accessible, intended way to arbitrate beef with the FAA, a way that didn’t cost the accused pilot tens of thousands of dollars? It is, in fact, long overdue, and if you want proof, it’s this ADS-B rule that gives the FAA the ability to revoke pilots’ certificates on what has to amount to speculative evidence—because, really, how could they possibly prove it was intentional?
Again, they don’t have to know. They just have to claim it, and it’s on the pilot to prove them wrong, which puts way too much power in the hands of the FAA and just about no options in the already overmatched hands of pilots like you and me.