Pilot Counsel:

Anatomy of an ATC violation case

August 1, 2008

John S. Yodice is the owner of a Cessna 310.

In my experience, pilots prefer gaining insights into the operational and flight rules that govern their flying from actual cases rather than from any dry academic discussion. That’s true, too, about the FAA enforcement process. Here is a case that involves the rule on “clearances” as it is applied to an IFR departure procedure, about what constitutes an emergency, when does the “get-out-of-jail-free” policy apply, what is the likely punishment, and more.

A pilot lost his ATP certificate for 60 days for violating an IFR departure clearance. He was pilot in command of a Cessna Citation CE-560 on an IFR flight departing from Buchanan Field in Concord, California, destined for Alamogordo, New Mexico. The flight had been issued a standard instrument departure (SID) clearance: “the Buchanan Seven Departure...PITTS transition.” The pilot acknowledged and read back the clearance. The SID requires a climbing turn direct to the Concord CCR VOR/DME, and from there to the PITTS intersection via the 071-degree radial from the CCR VOR/DME. According to the FAA, the pilot deviated from this clearance and “broke off from the instrument departure procedure route to proceed directly to PITTS intersection” and as “a result [the flight] entered into airspace, under IFR, at an altitude lower than the minimum vectoring altitude.”

There were several air traffic control facilities involved. The clearance was relayed to the flight by Concord/Buchanan Field tower that received it from Travis Air Force Base RAPCON (Radar Approach Control). Within one minute after takeoff, Concord instructed the flight to contact Travis RAPCON. Within two minutes, the flight contacted Travis and was requested to transponder “ident” for radar identification. The pilot then asked Travis for a deviation to bypass the weather over the VOR. Travis acknowledged, radar identified the flight, and said that the deviation request was pending (the request had to be coordinated with the next control sector under Northern California Terminal Approach Control before Travis could authorize the deviation request). Travis then alerted the flight to high terrain. The pilot replied: “Sir, we see the terrain, but we’re not going to fly in that thunderstorm over the VOR.” Travis saw the aircraft enter NorCal’s airspace and “pointed out” the aircraft to NorCal. Travis gave the flight a low-altitude alert because it hit the MVA (the 5,100 feet MVA is 1,000 above a nearby 4,100 foot mountain).

According to the FAA, the flight would never have entered the MVA if it had stayed on the SID as cleared. The Travis RAPCON filed a Preliminary Pilot Deviation Report, stating that the flight’s penetration into NorCal’s airspace was without coordination, and that the flight entered a minimum vectoring altitude area at an altitude below the limit. As a result, the FAA suspended the pilot’s license for 90 days for violating the “clearance” rule, FAR 91.123(a), and for being “careless or reckless” in violation of FAR 91.13(a) (automatically charged in every operational violation case). The pilot appealed the suspension to the NTSB, as was his right. In such an appeal a pilot is entitled to a trial-type hearing at which the FAA has the burden of proving the violations by a preponderance of “reliable, probative, and substantial evidence.”

At the NTSB hearing the FAA produced as witnesses the civilian and military controllers involved as well as the Flight Standards Inspector who investigated the case; the FAA introduced into evidence tape recordings of the air traffic control conversations with the pilot, the SID chart, the departure clearance strip, the pilot deviation report, the weather report for Concord, and the sanction guidance table. The pilot testified in his own behalf and presented a receipt evidencing the timely filing of a report to the National Aeronautics and Space Administration under the Aviation Safety Reporting System (ASRS). Based on the evidence, the NTSB law judge sustained the FAA charges but reduced the period of suspension from 90 days to 60 days.

FAR 91.123(a) provides that: “When an air traffic control clearance has been obtained, no pilot in command may deviate from that clearance unless an amended clearance is obtained, an emergency exits, or the deviation is in response to a traffic alert and collision avoidance system resolution advisory. However, except in Class A airspace, a pilot may cancel an IFR flight plan if the operation is being conducted in VFR weather conditions. When a pilot is uncertain of an ATC clearance, that pilot should immediately request clarification from ATC.”

The law judge concluded that the pilot deviated from his departure clearance without obtaining an amended clearance and that no weather emergency existed. The pilot also lost in his appeal to the full five-member NTSB. The board did not believe the pilot’s defense that a weather emergency required him to deviate from the departure clearance.

Under the ASRS, certificate suspension may be waived, despite a finding of a regulatory violation, if certain requirements are satisfied: (1) that the violation was inadvertent and not deliberate; (2) that it did not involve a crime; (3) that the person has not been found in an enforcement action to have committed a regulatory violation in the past five years; and (4) that the person mails a report of the incident to NASA within 10 days. The board refused to grant the waiver of suspension under the ASRS because it determined that the deviation was not “inadvertent and not deliberate.” According to the board, the pilot “flew the path that he wanted to.”

No “get-out-of-jail-free” card.