Pilot Counsel: An airspace incursion

How the NTSB and the FAA will react

May 12, 2014

John S. YodiceThis is a case in which the FAA ordered a 165-day suspension of a Cessna 172 pilot’s private certificate for an incursion into San Francisco’s Class B airspace. (FARs 91.129 and 91.133 combine to provide that, prior to operating within Class B airspace, a pilot is required to establish two-way radio communication with the ATC facility having jurisdiction over the airspace, and to receive a clearance to operate in the Class B airspace.) In addition to the incursion charge, the FAA order charged that the pilot was flying on an expired FAA medical certificate, and that he operated the aircraft in a careless or reckless manner.

As was his right, the pilot appealed the FAA order to the NTSB. A hearing was held before an NTSB administrative law judge who affirmed the FAA order but reduced the period of suspension to 155 days. On further appeal to the full five-member board, the judge’s decision was affirmed. Throughout these proceedings the pilot elected to represent himself.

The official NTSB decision in this case provides a unique insight into the procedures the FAA and NTSB use in airspace incursion cases. Among them are a request while the pilot is airborne to call ATC when he or she gets on the ground, including a documentation of the resulting telephone conversation; the re-recording and production of a transcript of the relevant communications with ATC; the downloading of the computer recorded transponder returns to produce exhibits and a video of the flight; and producing as witnesses the controllers and quality assurance personnel involved.

The FAA bears the burden of proving the regulatory violations “by a preponderance of substantial, reliable, and probative evidence.” So, in this case the FAA went first, producing the testimony of two witnesses: the operations manager of the NorCal Terminal Radar Approach Control, which was controlling the Class B airspace, and the quality control support manager at the facility. The FAA also produced in evidence a certified ATC re-recording and a transcription of relevant ATC voice communications, and computer-generated information including a video showing the path of the flight with respect to the boundaries of the Class B airspace.

The ATC operations manager testified that she observed on the scope a VFR target inside Class B airspace. She instructed the controller, who was receiving a call from the pilot, to tell the pilot to call her after he got on the ground. The pilot did call, and the manager testified that the pilot did identify himself, admitting that he was the pilot of the aircraft. She testified that in the conversation the pilot never said that he had received a clearance prior to entering Class B airspace.

The other FAA witness, the quality control manager at the facility, testified to his duties when there is a reported pilot deviation. With respect to recorded voice communications the FAA goes back at least five minutes prior to the incursion and re-records relevant communications with the offending aircraft. A transcription of the re-recording is made. With respect to the computerized data, the manager testified to exhibits showing the data and the video. The video was played for the judge.

The pilot said he was proceeding northwest, squawking transponder code 1200, knowing that Class B airspace was about 30 miles in front of him. He said he attempted to contact ATC but he was not receiving any responses. At the point on the computer-generated plot where the aircraft is in a U-turn attempting to avoid the airspace, he said that he was able to establish communications with ATC. At that point he realized that he had mismanaged his radios and, in fact, had the receiver portion of his radio turned off. Somewhere in the U-turn, he testified that he was able to establish communications with the correct facility, and that the controller spontaneously issued him a discrete transponder code and gave him a clearance into Class B airspace. But the pilot never did testify that he was outside the Class B airspace prior to the U-turn, only that he was unsure. Based on the evidence, the law judge found that the pilot was already in Class B airspace at the time of the U-turn and the clearance.

The pilot admitted conducting this flight during “a short interruption in [his] medical certificate.” He assumed that his passenger could act as PIC; but his passenger, a recreational pilot, could not legally operate the aircraft as PIC in that airspace. The law judge found that this assumption was careless.

On the appeal of the law judge’s decision, the full board found that “the record contains uncontroverted evidence showing [that the pilot] entered the SFO Class B airspace without obtaining a clearance from ATC.” The full board affirmed the medical certificate and carelessness charges. How the FAA and NTSB got this result is offered as instructive to pilots.

John S. Yodice has served as legal counsel for AOPA members for more than 50 years.

Web: www.aopa.org/yodiceassociates