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The FAA, The Law, and Your Certificate

What happens if you read back a clearance and comply, but ATC claims you busted altitude? The findings of a recent court case might surprise you.What happens if you read back a clearance and comply, but ATC claims you busted altitude? The findings of a recent court case might surprise you. Consider this:

You've consulted DUATS, filed IFR and are cleared for takeoff at a class C airport. As you’re cleared through altitudes a bag of chips explodes, but you read back the clearance and climb. Oddly, ATC inquires about your altimeter setting -- which is dialed per ATIS. The controller orders you to “return to your assigned altitude of 8,000 feet.” You comply, but in the control room two targets have already merged on a radar screen. You’ve passed within 1,000 feet (vertically) of a commercial flight. The airline crew never saw you and all you know is that the controller has given you a number to call when you land.

On the phone, you explain that your readback met no dissent from ATC. The voice on the other end advises that your transmission was stepped on when the clearance was read back by another aircraft -- for whom it was intended. ATC never heard you. Let the games begin…

Round 1:
You get a certified letter from the local FSDO advising you of an enforcement action. You are charged with (1) 'operating an aircraft contrary to an ATC instruction...” [FAR 91.123(b)]; and (2) 'operating an aircraft according to a clearance or instruction that had been issued to the pilot of another aircraft...' [FAR 91.123(e)]. You’ve already filed an incident report and in their action letter the FAA offers to waive any sanction for any violations. Nevermind that. The FAA is taking you to court -- where the Judge agrees with the FAA and the enforcement order stands.

Round 2:
You appeal to the full NTSB. Your argument: Under NTSB precedent a pilot cannot be held responsible for an inadvertent deviation caused by an ATC error. The FAA counters: the cause of the deviation was your misperception of a clear instruction -- you violated the safety regulation and Board precedent requires that you be appropriately sanctioned. The Board agrees with you -- order dismissed. Keep reading...

Round 3:
The FAA asks the Board to reconsider. The Board declines -- order dismissed. Too bad it’s not up to them...

Round 4 (where-in you are TKO’d):
The FAA heads to the Court of Appeals -- and wins. The NTSB is overruled. The enforcement order stands. COURT: 'The NTSB is bound by the FAA's interpretation of its own rules, even if it doesn't agree” -- and even if the interpretation was conjured up over a few beers long after the FAA enforcement letter is mailed. Although these events did not happend to you, similar ones did happen to someone else and the FAA’s argument now applies to all of us:

  1. A pilot who flies contrary to either an ATC instruction or follows instructions intended for someone else (equipment failures not withstanding) is in violation.

  2. A request for clarification is mandatory if a pilot is uncertain about a clearance -- ATC is required to transmit an affirmative clarifying response.

  3. BUT a readback, which is a non-mandatory acknowledgment by the pilot, does not require an affirmative response from the controller if it is correct.

Key: in this case, all the controller heard was a correct readback -- from another pilot. So no response from ATC was required. The Moral? First, never assume that an FAA rule or regulation interpretation will favor the pilot -- and even if there is no interpretation at all, a decent lawyer can cook your bacon even if you win at the Board level. Second, don't think that filing an incident report with the FAA will save you. Finally, if you ever find yourself holding an enforcement letter from the FAA, hire the best aviation lawyer you can find.

Remember: landmines in litigation before the NTSB are endless and the FAA is not a good loser.

Garvey v. NTSB and Richard Lee Merrill 190 F.3d 571 [September 21, 1999]

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About This Author:
As a practicing attorney, Douglas Marshall was admitted to the California Bar in 1973; the Ninth Circuit, all CA federal courts in 1973-79; and the US Supreme Court in 1984. He has represented individual certificate holders in FAA enforcement matters and several major airlines in labor litigation and mediation.

Marshall is currently an Assistant Professor of Aviation at the University of North Dakota, where he teaches aerospace law and airline operations and management.

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