Let me warn you up front that this post is not necessarily safe for reading at work or in mixed company. It’s not often that I struggle to get through an aviation incident without sniggering but this is one of those times. I first read about this in the Reddit’s r/aviation forum and it was just so bizarre, I couldn’t forget it. At the very least, this case certainly brings new meaning to the idea of ‘aviation porn’. 

The primary reference for the case is NTSB Order No. EA-5447 with a few bits and pieces picked up from other sources.

The case started when the FAA revoked the pilot’s commercial certificate under 14 CFR 91.13: Careless or reckless operation of an aircraft. The pilot appealed the revocation with the NTSB, which gives him the chance to file an answer, admitting or denying each of the allegations in the FAA complaint. A hearing is held with an Administrative Law Judge, who conducts a formal hearing and issues initial decisions on appeals by airman. His decision will affirm, reverse or modify the FAA’s action.

Legal Issues at the NTSB:

The NTSB serves as the ‘court of appeals’ for any airman, mechanic or mariner whenever certificate action is taken by the Federal Aviation Administration or the US Coast Guard Commandant, or when civil penalties are assessed by the FAA.

A second appeal can then be made to the full board who can affirm, modify or reverse the judge’s decision or remand the case for further proceedings.

If the Board affirms the FAA’s action then the certificate holder can make a third appeal, this time to the US District Court or the US Court of Appeals.

So the FAA filed an Emergency Order of Revocation to revoke the airman’s certificate from the Respondent, which I will refer to as the pilot because Pilot Flying doesn’t seem quite right and every other quick reference term I could use for the guy is probably not suitable for a family website. Specifically, he was the pilot-in-command of a Bell 206B helicopter during a passenger-carrying flight around San Diego, California in 2005, four years earlier.

The case was heard in 2009 by an administrative law judge for the NTSB, whose job it was to issue a bench decision as to how the law (in this case, § 91.13(a)) applied to that flight in San Diego.

There were two passengers on the flight, a woman in the front and a man in the back. The issue was that during the flight, the passenger in the front seat had leaned over the collective pitch control of the helicopter to perform a sex act on the pilot. 

There was no question that the event had happened, as the passenger in the rear seat had recorded the whole thing on his video camera. The initial incident had escaped the FAA’s notice but when the video went viral on the internet four years later, the FAA pulled the pilot’s commercial certificate.

The judge summed up the video evidence: 

And during this flight, Respondent received an oral sex act by a partially nude young lady. I say young lady; it appeared to be a young lady. Those things become relative, as I get older, but it appeared to be a young lady who was in the left seat of the helicopter and it was being videoed by someone unidentified, who was in the backseat. And the young lady was never identified either. 

The young lady was in fact identified by the press as a well-known Swedish porn star but I guess ‘well-known’ is also relative. She told the press that the ‘in-flight entertainment’ was compensation for the pilot allowing his helicopter to be used in a porn film shot in a hangar. 

Anyway, after the video went viral, the FAA alleged that a careless or reckless act had taken place and revoked the pilot’s airman certificate on an emergency basis.

When the case was heard, the pilot was happy to admit all of the acts alleged by the FAA. The only portion of the complaint that he denied was that it was a careless and reckless act. His defence was that, under the circumstances, revoking his licence was inappropriate.

So that was the question for the judge: was receiving oral sex while being in command of a Bell 206 twin-engined helicopter flying over a major city careless or reckless?

The FAA brought an aviation safety inspector as a witness to review the video recording and to give his expert opinion as to whether it showed reckless conduct.

The expert witness pointed out that the video shows that the flight was over a populated area. He explained the importance of a helicopter pilot not being distracted during flight. He explained the helicopter controls (the collective, the cyclic and the tail rotor anti-torque pedals) and that, if there were an emergency, the pilot needs to be able to manipulate these controls without interference from his own clothing and without interference from the passenger’s body. 

Even a musty old court document can’t quite help but sound salacious in these circumstances.

The pilot and the passenger had unfastened their seat belts and shoulder harnesses, which would mean that any sudden manoeuvre could throw either or both of them against the controls. The expert witness concluded that the operation of the aircraft was reckless because the pilot’s access to the controls was restricted and that the control of the aircraft was jeopardized by the location of the pilot’s clothing (by which I assume the witness meant his trousers around his knees) and the position of the passenger’s body.

The judge recapped this narrative in his judgement. 

And there were several aspects of it that he pointed out. Among them was that the Respondent had unbuckled his seatbelt, his shoulder harness was obviously loose, as depicted in that. His trousers, jeans, were down almost to his knees and appeared to be up against the cyclic. And the young lady was leaning over the collective. I’m not a helicopter pilot; I hope I get those controls right. But the up and down control, she was over that.

The up-and-down control is the collective. I have to admit, I’m struggling to find imagery for this post which isn’t suggestive.

The judge desperately did not want to have to describe what the pilot had done repeatedly so after this explanation, he simply referred to ‘the incident that was shown in the video tape’ as a sort of polite shorthand as the proceedings continued.

The witness for the FAA pointed out that there was any number of things that could have gone wrong at that moment, ranging from turbulence to an engine failure, and caused the pilot to lose control of the aircraft. On cross-examination, the FAA witness conceded that none of those things occurred on that evening but that the case was about the potential for loss of control. He also testified that the pilot had a prior history of offences: his private pilot’s licence had been revoked in 1986 and his commercial pilot certificate had been revoked in 2004 and then suspended in 2006 (after the flight in question but for a different incident). Under the circumstances, this was a serious enough violation to justify the FAA action.

The pilot argued that, as nothing had gone wrong, what he had done was not reckless. Further, he explained that he was a competent helicopter pilot and that in the intervening four years, he’d become even more responsible. 

The pilot obviously couldn’t deny the position of the passenger or the state of his undress, there being video of it and all. Instead, he defended himself by calling three witnesses, all three of whom stated that he was a skilled helicopter pilot.

The first was a commercial helicopter pilot who worked for the pilot’s company. He said that he believed the pilot had the care, judgement and responsibility required to hold the certificate. However, he agreed that the video perhaps didn’t demonstrate that care, judgement and responsibility.

The second witness was a private helicopter pilot and a friend of the pilot’s. He said he had flown with the respondent a number of times and said that he felt comfortable flying with the respondent.

The third witness, also a pilot and a CFI, had flown over 200 hours with the respondent. He also felt that he had the care, judgement and responsibility required of a pilot but said that there was a time several years ago when he didn’t.

All three admitted under cross examination that they would not, personally, fly with the pilot while he was engaged in a sex act with an unrestrained passenger.

The fourth witness was the pilot, who defended himself by pointing out that his certificate had been suspended shortly after a flight in Mexico which ended in a wire strike. This seems an odd defence but he argued that the suspension had given him time to think about what he’d done and that he’d already learned his lessons. He said that he made decisions differently now than he had when the incident occurred, a whole four years ago. He stated that he had been rehabilitated during the suspension and intervening three years and now had the qualifications necessary to hold an airman certificate and thus he was appealing for his license to be reinstated.

The law judge did not agree. 

As I said, the conduct that evening was grossly reckless and I’m surprised that the Administrator even put careless in the pleadings because careless shows some sort of negligent act. This was a deliberate act that was reckless clearly on its face.

The judge then reviewed the evidence, which I hope doesn’t mean that he watched the video one more time. He stated that the expert witness had proven that the pilot’s access to the helicopter controls was at risk and that the video made it clear that both occupants were unrestrained (by which he was referring to their seatbelts, not the style of their lovemaking).

He found that the pilot had violated § 91.13(a) when he performed a sex act with a female passenger while airborne, while both the passenger and respondent had lap belts and shoulder harnesses unlatched, while respondent’s clothing during the performance of the sex act risked interfering with the helicopter’s controls, and while the passenger was in a position to interfere with the helicopter’s controls, all of which occurred as respondent was operating the helicopter above a populated area.

But the pilot wasn’t finished yet and filed for appeal. His appeal raised four points:

1) whether the evidence supports the judge’s finding that the pilot’s conduct during the operation was ‘gross recklessness’

2) whether the judge improperly admitted medical testimony 

3) whether the Sanction Guidance Table provides for revocation in this case (that is, there’s no specific mention of sex in the cockpit as interfering with flight safety) 

4) whether the respondent lacks the qualifications necessary to hold an airman certificate

On appeal, his first point was immediately rejected. There was no real room for manoeuvring here: the evidence was the video which clearly showed that the pilot was engaged in a sex act during the flight. The pilot seemed convinced that the FAA had to establish real danger or that the flight was in peril. However, based on the law, potential endangerment is sufficient.

Even after conceding the accuracy of the video evidence, respondent appears to focus exclusively on the misguided contention that his access to the aircraft’s controls was not restricted, and accordingly, he had no difficulty maintaining control of the aircraft. This assertion, however, seems to ignore the import of key facts in the case: the passenger was leaning across one of the essential aircraft controls, the collective. Her head was occupying a space very near the cyclic control, another critical aircraft control. Her body was unrestrained and vulnerable to G forces, including negative G forces, from any sudden aircraft maneuvers in flight.

The board also brought up the fact that the pilot had unfastened his own lap belt and shoulder harness. 

Respondent’s argument that his aircraft was not in danger of hitting the ground or another aircraft, or going out of control, therefore seems to ignore not only the risks he took on the flight in question, but ignores the laws of physics as well.

They also made the point that the pilot had to hold the whole responsibility for the actions in the helicopter pilot during flight.

Beginning at the point in the videotape before the passengers actually boarded the helicopter, the female passenger exhibited not only an innocence to the ways of flight and the intricacies of helicopter operations by partially disrobing and allowing the respondent to hover the helicopter practically overhead and just feet from her body, but also displayed the typical passenger’s willingness to entrust one’s safety and well being to the judgment and skill of the pilot.

Unfortunately, on this flight, that trust was rewarded by respondent’s demonstrated careless disregard for the welfare of that female passenger, the camera operator filming the enterprise, and the many, many people in the city below unaware of the reckless behavior transpiring overhead.

The pilot’s second point is arguing the testimony by the FAA witness that:

…the respondent would have been distracted or could have incorrectly manipulated the controls of the aircraft in the event of a “biological reaction” to the activities during the flight

It wasn’t clear as to why the pilot believed that this testimony was prejudicial. The judge firmly disagreed that the reference to a biological reaction was an improper medical opinion.

…we would expect our judges to be able to assess the evidence on videotape and apply judgment, common sense, and their understanding of common events to the circumstances.

I think it’s clear what he means by common events.

The pilot’s third point, regarding the Sanction Guidance Table, was similarly dismissed. If we agree that the pilot acted carelessly or recklessly during the flight, then the Sanction Guidance Table offers revocation as a response. 

Beyond this, the board pointed out that the FAA also had grounds for revocation simply based on the pilot’s record of sanctions and revocations in the past. Even if the flight in question was dismissed, the FAA could show the past history “demonstrated a lack of willingness or ability to comply with statutory or regulatory requirements” and revoke the certificate based on that alone. He also was charged with reckless operation of an aircraft in 2006 when he landed a helicopter on a public road without a permit, although no disciplinary action resulted. That time was to pick up Motley Crue drummer Tommy Lee to take him to a Nine Inch Nails concert. 

The fourth point goes back to the idea that the pilot was “rehabilitated”, that enough time had passed since the incident that he had learned his lesson and did not deserve further sanctions.

…a significant temporal gap between the conduct and the enforcement action can overcome a lack of qualifications, because a respondent who, at the time of the conduct, might have lacked the qualifications to hold an airman certificate may now possess the requisite care, judgment, and responsibility.

The case that the pilot gave as a precedent had a gap of 17 years between the event and the enforcement action. In this case, the helicopter flight was only four years before the enforcement action. In the meantime, he had his licence suspended for operating an un-airworthy helicopter and, during that flight, striking a wire. The pilot argued that in the intervening three years, he had changed.

The summary was pretty scathing:

Respondent has not convinced this Board that he possesses the care, judgment, and responsibility to hold an airman certificate, in 2005 or today.

The result was that on the 6th of May 2009, the appeal was denied and the law judge’s decision was affirmed, thus the FAA’s emergency revocation of the respondent’s commercial pilot certificate was affirmed. You can read the full judgement in PDF form on the NTSB website: NTSB Order No. EA-5447. I am almost relieved to see that dockets prior to 1 June 2009 are not stored on the NTSB website so there’s no quick reference to the gritty details.

At this stage, the pilot could have made a third appeal, this time to the US District Court or the US Court of Appeals. However, he seemed to have had enough by then and did not pursue a third appeal for the reinstatement of his certificate, bearing in mind a pilot can reapply for a new certificate after the revocation period expires and regain his ratings after written, oral and flight tests. Which is exactly what he did.

He did tell the press that if presented such an invitation by a passenger again, he would not take advantage of it and would decline. He went on to say, “Some of the public people are relentless on their feeling, ‘Oh, how could you being up in the air doing it?’ Well, you know it’s a lot safer up in the air than it is on the freeway.”

In 2014, the pilot was charged with falsifying his FAA medical certificate in relation to two drunken driving convictions and a fourth revocation proceeding was pending. However, in 2015 he lost control of a Cessna 182 over mountainous terrain after reporting engine trouble.

The engine teardown examination revealed a hole in the engine crankcase above the No. 6 connecting rod. The No. 5 connecting rod had fractured and separated from the crankshaft, which caused internal damage to the engine and led to the loss of engine power. The internal components exhibited signs of oil starvation; however, the cause of the oil starvation could not be determined.

The pilot and his passenger were killed in the crash.

According to Wired magazine, the young lady from the video is now working in computer sales and is very successful in her new career.