Even without confirmation that ATC noticed, a pilot should consider whether it is appropriate to file a report with the NASA Aviation Safety Reporting System (ASRS). Of course, if you hear the phrase “N12345, possible pilot deviation” then you are officially on notice. This is called a Brasher Notification, and in addition to a request to call the ATC facility, it can potentially lead to a conversation with an FAA inspector thereafter.
What happens, though, when a pilot receives a letter or call from an inspector out of the blue? Sometimes an inspector will contact an airman about a flight that occurred weeks or months earlier that was, from the airman’s perspective, completely uneventful. I’ve counselled several pilots who recently received such letters and were unaware of any problem during the flight.
First of all, it may not be too late to file a NASA form. According to Advisory Circular 00-46E, the 10-day clock starts ticking from the violation date, “or date when the person became aware of or should have been aware of the violation.” If it is debatable whether the pilot should have been aware initially, an argument may be made that the pilot was not aware until the date of contact by the inspector, making the report timely. A late filed report will not prevent the FAA from imposing a certificate action or civil penalty, but even a late report is evidence of the airman’s constructive attitude that may prevent future violations. Therefore filing a report, even if late, may still be advisable as long as the event does not fall outside the scope of ASRS (for example, criminal activity or accidents are excluded).
Secondly, keep in mind that even if you hear from the FAA unexpectedly, you are entitled under the Pilot’s Bill of Rights to air traffic data such as recorded audio or radar data. Since you were not on notice at the time, you may have missed the opportunity to preserve your own data that could be useful in your defense, such as GPS tracks or GoPro footage. This makes it even more important that you exercise your right to review the FAA’s data.
In addition to considering a NASA filing and requesting ATC data, a third recommendation is to not make any admissions. One pilot received a letter six months after the flight in question, and he had no memory of the flight since it seemed routine at the time. Since you may not even remember the flight, it is important not to speculate on what may have happened.
It may be encouraging to know that unintentional pilot deviations that are the result of issues such as minor mistakes or diminished skills are within the scope of the FAA's Compliance Philosophy, which focuses on resolving these matters through education, training, or counseling. Nevertheless, it is wise to keep your rights in mind and seek legal advice early in the process.
For more on the Compliance Philosophy, see http://pilot-protection-services.aopa.org/News/2015/November/FAA-Compliance-Action-A-New-Initial-Consideration
For more on NASA ASRS, see http://pilot-protection-services.aopa.org/News/2015/June/The-Aviation-Safety-Reporting-System