Pilot Counsel

An incursion case

May 1, 1998

"Runway incursions" is a high-sounding term that is currently being bandied about by safety gurus. So high-sounding that I have trouble imagining that it applies to my flying. It is much more meaningful to me to see the Federal Aviation Regulations in a real-life situation, understand how they apply to the situation, and take from it what I can do to make my flying safer. I think that other pilots feel the same way. So, here is a real-life situation in an FAA enforcement setting, perhaps with some lessons for us all.

It was a clear day at the New Hanover County Airport in Wilmington, North Carolina. At the time, one controller in the airport control tower was working three controller positions: local control, ground control, and clearance delivery. There was nothing unusual about having these positions combined during slow traffic times. The controller was transmitting and listening on local and ground control at the same time.

The pilot involved in the incident was aware of this. He had one of his radios tuned to local control and one to ground control. He could hear transmissions from both frequencies. He recognized that the voice on both frequencies was the same.

As the controller was monitoring things from her position in the tower, she saw a Cessna Cardinal taxi from the fixed-base operator's ramp. The ramp was near the approach end of the active runway, which was Runway 35, connected by a short taxiway, Taxiway Echo. The aircraft taxied from the ramp onto Taxiway Echo toward the runway, crossing the ILS hold-short line but not crossing the other hold-short line for the runway. The controller did not question this movement even though she had not given clearance for the aircraft to taxi. She knew that an IFR flight plan had been filed for the aircraft, and she anticipated that she would soon receive a request for the IFR clearance.

And, as she anticipated, very soon the pilot did call up for his clearance. She issued the IFR clearance, advising the aircraft of the departure frequency and assigning a transponder code. The pilot read back the clearance. The controller turned her attention to other traffic. A Navy aircraft had just landed. A Cessna 152 was in the traffic pattern for a touch-and-go landing.

The pilot contacted the controller less than a minute later: "Wilmington Ground, Cardinal Two-Zero-Three-Five-Eight with [ATIS information] Papa at ISO [the fixed-base operator]. Ready to depart."

According to the controller, because the pilot was calling on ground, because he had said that he had the ATIS information, and because he had not yet reached the hold-short line, she thought that he was now requesting taxi instructions. The controller replied: "Cardinal Three-Five-Eight, taxi Runway Three-Five." This transmission is crucial to the case.

The pilot read back his call sign as his acknowledgment of the transmission. The pilot took this transmission to mean that he had been cleared into position on the runway. He believed that he was being put between the aircraft that had landed and the Cessna in the pattern. He taxied his aircraft onto the runway and held in position awaiting takeoff clearance.

The controller, seeing what the pilot had done and not having intended that at all, instructed the aircraft to immediately exit the runway. At first, she got no reply. She alerted the Cessna in the traffic pattern to prepare for a go-around. She again tried to contact the aircraft on the runway. This time the pilot replied that he was "holding at Three-Five." She instructed the aircraft to exit the runway, which it did. It was not necessary for the Cessna to go around.

The FAA investigated the incident and decided to take enforcement action against the pilot. The FAA issued an order suspending the pilot's private certificate for a period of 30 days. He was charged with taxiing onto the departure end of an active runway without first receiving an appropriate air traffic control clearance. Specifically, he was charged with three violations: FAR 91.123(b), by operating contrary to an ATC instruction; 91.129(i), by operating on a runway without an appropriate clearance; and 91.13(a), by being careless or reckless.

The pilot appealed the FAA's order to the National Transportation Safety Board. He felt that he had been given a bad clearance. The controller had used nonstandard terminology, which had misled him, causing him to taxi onto the runway.

The case was assigned to an NTSB administrative law judge for hearing. The pilot represented himself at the hearing and did a pretty good job. He got the sanction reduced to a 15-day suspension, but he was still found to be in violation.

The FAA evidence established the basic facts as we have set them out. The pilot, in the presentation of his case to the judge, testified on his own behalf. He established that he was an experienced pilot and well-qualified for operations at the airport. He had received his certificate in 1972 and had about 1,300 flying hours at the time of the incident. He had been using that airport almost weekly for the past three years. He had no prior violation history.

The pilot argued that he should not be held accountable for the incident because the controller's instruction — "Taxi Runway Three-Five" — was misleading. The controller should have made her intentions clear by saying: "Taxi to Runway Three-Five" as indicated in the FAA's handbook for air traffic controllers. This is what FAR 91.129(i) says, in the pertinent part: "A clearance to 'taxi to' the takeoff runway assigned to the aircraft is not a clearance to cross that assigned takeoff runway, or to taxi on that runway at any point, but is a clearance to cross other runways that intersect the taxi route to that assigned runway." The controller testified that in common practice the word to is sometimes left out to speed up radio transmissions.

The law judge agreed with the pilot, at least to some extent. He dismissed the FAR 91.123 and the 91.129 charges because the bad instruction given by the controller precipitated the incident. However, the judge held that the pilot was nonetheless unreasonable in interpreting the controller's instruction as a clearance to take the runway. The law judge felt that the pilot should have read back the instruction and, at least, requested clarification of an instruction that the pilot should have recognized was nonstandard. The judge upheld the FAR 91.13(a) charge of carelessness. He reduced the 30-day suspension to 15 days.

That decision made neither side happy. Both appealed to the full Board. For his part, the pilot argued that the finding of carelessness by the judge was wrong. On the other hand, the FAA claimed that the judge was wrong in finding the controller's instruction deficient. The FAA also said that the judge erred because, the agency maintained, the controller's instruction was not the precipitating cause of the pilot's mistake. The FAA also argued that, even if there is a clear ATC error that induces a deviation from a clearance or instruction, a pilot who fails to fully read back that clearance or instruction should be held strictly liable.

The Board decided the case slightly differently. The Board agreed with the FAA that the controller's failure to use the word to did not make the instruction deficient. "The use of nonstandard phraseology, albeit creating the potential for misunderstanding, did not make this particular instruction so deficient that a reasonable and prudent pilot would be misled into believing that he had been cleared onto an active runway." But a footnote added: "However, we do not agree with the administrator to the extent that she appears to condone her controller's use of nonstandard phraseology, however commonplace such imprecise instructions may be .... Despite this conclusion [reinstating the FAR 91.129(i) violation], we urge the administrator to encourage all controllers to adhere strictly to the standard phraseology provided in the ATC handbook."

The Board did not agree with the FAA that the failure of the pilot to fully read back a clearance or an instruction makes the pilot strictly liable. According to the Board, in this case it probably would not have alerted ATC that something was amiss. (However, it is instructive to know the FAA's position on readbacks. Knowing this, and to try to prevent misunderstanding, pilots should give full readbacks of clearances and instructions to the extent practical.)

The Board agreed with the judge on the rest of his decision — that is, to dismiss the FAR 91.123(b) charge, to find the pilot careless for taxiing onto an active runway without a clearance, and it sustained the 15-day suspension.

The pilot has appealed the NTSB decision to the United States Court of Appeals.

John S. Yodice