June 1, 1999
By John S. Yodice
Pilots are on official notice. The Federal Aviation Administration has taken the unusual step of publishing in the Federal Register what it calls an "interpretive rule." Of course, most people, including pilots, don't read the Federal Register (a daily voluminous monster covering the actions of every federal agency), but this is the way in which the federal government makes official public pronouncements; and in this case, it is the FAA's way of formally delivering the bad news to pilots that the agency is effectively reversing a line of legal precedents that are favorable to pilots.
Stripped of the legal gobbledygook, here is what is happening. A few pilots have been able to successfully defend themselves against FAA charges that they violated an air traffic control clearance or instruction. They did so by proving to the National Transportation Safety Board that, while they may have misunderstood a clearance or instruction, they made a full readback to the controller before executing it. As all pilots know, readbacks are a routine practice used by pilots specifically to confirm their understanding of a clearance or an instruction. We have frequently recommended the practice in this column, usually as a result of reviewing these cases but always qualifying our recommendation with "to the extent practicable," considering frequency congestion and the like. Well, the FAA did not like the results in these cases that were favorable to pilots, and the agency devised an ingenious way to make sure that it doesn't happen again.
The "interpretive rule" published in the Federal Register is an FAA interpretation of FAR 91.123, which is the regulation that requires pilots to comply with air traffic control clearances and instructions. If the FAA interpretation stands up (AOPA is asking FAA Administrator Jane Garvey to withdraw this interpretation), pilots will no longer be able to rely on their uncontradicted readbacks to protect them from FAA enforcement for executing a misunderstood clearance or instruction. The only excuses the FAA will accept are that the controller initially caused the misunderstanding or that the misunderstanding was caused by some mechanical problem not the fault of the pilot.
The FAA action is a direct result of legal decisions in which the NTSB ruled in favor of pilots in several FAA enforcement actions. We presented the most recent of these decisions in this column last September ("Pilot Counsel: Readbacks of Clearances and Instructions"). The case involved a Northwest Airlines Flight 1024 that was climbing out of the Los Angeles area, having been cleared by ATC to 17,000 feet. While Northwest was on the radio frequency and executing the climb, the controller cleared a different aircraft — American Airlines Flight 94 — to flight level 230 (23,000 feet). The Northwest captain mistakenly thought that the clearance intended for the American flight was for his Northwest flight. And so, the Northwest captain acknowledged the clearance with a full readback. The controller did not correct the readback. Northwest proceeded to change altitude. The controller saw the Northwest radar return indicating a climb through 17,000 feet and corrected the situation, but not before there was a loss of standard separation between the two flights.
What happened was that the Northwest captain's readback was stepped on by the American flight's acknowledgment of the clearance. As a result, the controller never heard Northwest's readback. This is evident from the tape of the ATC communications. During the American flight's acknowledgment there is a background noise resembling a stepped-on communication. Everyone, including the FAA inspector, agreed that this noise is the Northwest flight mistakenly acknowledging the clearance meant for American. The Northwest crew had no way of knowing that its transmission had not been received by ATC.
Because the Northwest captain made a full readback of the clearance, the NTSB excused the altitude deviation, overruling the FAA charges against the captain. Specifically, the NTSB reversed an FAA order finding that the captain violated FAR 91.123 and FAR 91.13 (careless or reckless operation) in this incident.
In reaching this decision, the Board said, "[The captain] here made an error of perception: He truly thought he heard the clearance addressed to his aircraft. There is no evidence in the record on which to conclude that [the captain] had any reason to question a 23,000-foot clearance, or that [the captain] in any way during this time was performing his duties in a careless or otherwise unprofessional manner. In this case, and based on the law judge's favorable credibility assessment of both pilots, [the captain's] acceptance of a clearance meant for another aircraft was simply a perception mistake; it was not due to a failure of attention. The Administrator's argument that the error was caused by careless inattention is not supported in the record in this case and will not be automatically assumed in every case. The particular facts in each are relevant [citing cases]. Nor was the error a failure of procedure, as [the captain] made a full readback so that the opportunity was there, absent the squelched transmission, for ATC to correct his error."
The FAA does not like the result in this case and the similar cases earlier. How can the agency prevent such a result in the future? In this "interpretative rule," the FAA is attempting to take advantage of a provision in the law that says that the NTSB is bound by "validly adopted interpretations of the laws and regulations" by the FAA. This provision was put into the law over the objection of pilot representatives, including AOPA. The official publication of this interpretation, coupled with this law, now enables the FAA to argue that the Board is powerless to make similar decisions in future cases.
Here is the heart of the "interpretive rule." The FAA says: "Contrary to the NTSB's reasoning, pilots do not meet this regulatory imperative [of FAR 91.123] by offering a full and complete readback or by taking other action that would tend to expose their error and allow for it to be corrected.... The simple act of giving a readback does not shift full responsibility to air traffic control and cannot insulate pilots from their primary responsibility under 14 CFR 91.123 and related regulations to listen attentively, to hear accurately, and to construe reasonably in the first instance."
So, pilots are now on legal notice. This interpretation does not change our recommendation that pilots make a readback of all ATC clearances and instructions to the extent practicable. It does affect whether a pilot will be able to successfully defend an FAA enforcement action in a similar situation.
What is wrong with the FAA's taking this tack? For one thing, it fails to acknowledge that in most instances of a busted clearance or instruction, the pilot is held to have violated the regulations. In fact, the FAA wins about 90 percent of all of its enforcement cases before the NTSB. If you follow this column, you know that the NTSB is not a particular friend of pilots. The Board does not lightly find in favor of a pilot. Also, it frustrates the intent of Congress that a pilot have a federal agency independent of the FAA to review FAA enforcement actions to determine whether they are fair and really necessary in the interest of safety. It is Section 44709 of Title 49 of the United States Code that gives to pilots the right to appeal to the NTSB an FAA order suspending or revoking a pilot's certificate. Under this law, the NTSB is empowered to amend, modify, or reverse an FAA certificate action if the Board finds "that safety in air commerce or air transportation and the public interest do not require affirmation of the order." For the FAA now to start issuing interpretations that effectively prevent this independent review intended by Congress is bad public policy and is not a credit to the FAA.
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