ATC Authority Over VFR in Controlled Airspace

[Palmpilot]

The FAA Chief Counsel has issued an interpretation saying that VFR aircraft must obey ATC instructions in controlled airspace:

https://www.faa.gov/about/office_or...erps/2013/Karas_2013_Legal_Interpretation.pdf

Excerpt:

"Pilots flying in controlled airspace must comply with all ATC instructions, regardless of whether the pilot is flying VFR or IFR, in accordance with § 91.123(b). ATC instructions include headings, turns, altitude instructions and general directions...A pilot flying VFR in Class E airspace, which is controlled airspace, is not required to communicate with ATC; however, if a pilot is communicating with ATC and ATC issues an instruction, the pilot must comply with that instruction."
As an attorney friend wrote on the Avsig Forum, "Some folks [can't] help but ask for legal interpretations that end up biting us in the you-know-where...Now we have a half-baked opinion on a hypothetical situation that is not the product of briefing or argument from the pilot's side and will be cited and referred to by FSDO inspectors, litigation counsel, ALJs and the NTSB in enforcement actions."

This question has previously been argued extensively in relation to class E airspace here and on other forums:

http://www.pilotsofamerica.com/forum/showthread.php?p=561036#post561036

What I'm wondering is this: Does this interpretation give ATC the authority to order a pilot to land, as was done at Gateway (IWA) last year?

http://www.pilotsofamerica.com/forum/showthread.php?t=52741

[2022 edit: Fixed broken link to the Chief Counsel opinion]

 

[Jim Logajan]

"FDC 4/4386 FDC SPECIAL NOTICE...
NATIONAL AIRSPACE SYSTEM INTERCEPT PROCEDURES. AVIATORS SHALL REVIEW THE FEDERAL AVIATION ADMINISTRATION AERONAUTICAL INFORMATION MANUAL (AIM) FOR INTERCEPTION PROCEDURES, CHAPTER 5, SECTION 6, PARAGRAPH 5-6-2. ALL AIRCRAFT OPERATING IN UNITED STATES NATIONAL AIRSPACE, IF CAPABLE, SHALL MAINTAIN A LISTENING WATCH ON VHF GUARD 121.5 OR UHF 243.0. IF AN AIRCRAFT IS INTERCEPTED BY U.S. MILITARY AIRCRAFT AND FLARES ARE DISPENSED, THE FOLLOWING PROCEDURES ARE TO BE FOLLOWED: FOLLOW THE INTERCEPT'S VISUAL SIGNALS, CONTACT AIR TRAFFIC CONTROL IMMEDIATELY ON THE LOCAL FREQUENCY OR ON VHF GUARD 121.5 OR UHF GUARD 243.0, AND COMPLY WITH THE INSTRUCTIONS GIVEN BY THE INTERCEPTING AIRCRAFT INCLUDING VISUAL SIGNALS IF UNABLE RADIO CONTACT. BE ADVISED THAT NONCOMPLIANCE MAY RESULT IN THE USE OF FORCE." [emhasis added]

Note the use of the word "shall." The only exception appears to be if the aircraft does not have the capability. For example, I assume that an aircraft with only one radio would not be required to monitor 121.5 if that radio were needed for another purpose.

What makes you think a notice from the Flight Data Center is inherently regulatory? Everything in a NOTAM that is regulatory will have a primary source backing it up (i.e. FAA regulation or statute.) So you need to locate the primary source. The NOTAM isn't primary. FDC can't make up a regulatory requirement like that on its own because it would violate statutory requirements on how regulations are to be created.

 

[Jim Logajan]

FDC NOTAMs are clearly defined by the FAA as regulatory in nature
JO 7930.2M:

You are misreading that. It does not say the NOTAMs are regulatory, only that regulation changes that appear in NOTAMs should be labeled or categorization under "FDC NOTAM".

By the way, that is an internal Order and the target audience is FAA personnel, not pilots: "Originators of airmen information are expected to inform the National Flight Data Center (NFDC) in sufficient time before the effective dates of changes to permit publishing of aeronautical data on the various charts or in the appropriate publications."

If FDC NOTAMs are not regulatory, how can an FDC NOTAM declare an approach (which is fully described in the regulations) to be NA or modify the parameters of the approach?

A good question - you need to locate the statute(s) or CFR regulation(s) that directly or indirectly tell pilots that FDC NOTAMs are regulatory. Otherwise these references become a case of a self-referential or circular claims of being regulatory. My ASA FAR/AIM index just points back to the AIM section regarding NOTAMS.

 

[Jim Logajan]

A good question - you need to locate the statute(s) or CFR regulation(s) that directly or indirectly tell pilots that FDC NOTAMs are regulatory. Otherwise these references become a case of a self-referential or circular claims of being regulatory. My ASA FAR/AIM index just points back to the AIM section regarding NOTAMS.

I'm not above correcting myself, and I found what appears to be one applicable regulation:

SFAR No. 60 to Part 91.

However, unless I am misreading it, all the regulatory NOTAMs seem to be only for rules issued pursuant to 91.139.

 

[Jim Logajan]

Is it whether the A/C is 'capable' or whether the pilot is 'capable?' Couldn't the aircraft be equipped but the pilot is too busy doing other things on the radios and thus, 'incapable' of monitoring 121.5?

Beats me - but notice that that FDC NOTAM says aviators shall review the indicated section of the AIM. If an aviator can't prove they reviewed that section, then would they be assumed to be violating a regulation?

 

[Jim Logajan]

FDC NOTAMs are in fact regulatory, and the FAA has the authority to issue such directives without creating actual regulations. The underlying authority for them is in various regulations.

I've been asking for specific cites to those regulations - I'm not interested in yet another person's recollection.

I posted the only regulation I could find, and it looks to me that SFAR No. 60 to Part 91 makes NOTAMs regulatory only when it is done pursuant to 91.139. And 91.139 applies only when an emergency condition exists.

So unless the FAA is claiming a continuous state of emergency, I do not know of any regulatory or statutory language that makes monitoring of 121.5 a regulatory requirement.

 

[Jim Logajan]

As I've said here for years, this issue was covered by the NTSB a very long time ago when they said.
Administrator v. Ellis
Now we have a specific Chief Counsel written interpretation to satisfy those who tried to deny what the NTSB had said by their own distortions of the language.

The Ellis case doesn't address the issue under dispute; whether ATC is being "exercised". The ATC for Class D has authority for that airspace because there is a specific regulatory requirement for radio contact in Class D. Not so for most of Class E.

Where the FAA publishes specific regulations and frequencies and to contact ATC it is reasonable to say that the identity of the controlling authority has been established for IFR or VFR, as indicated by regulatory requirements.

Where the FAA has not published specific regulations or frequencies to contact ATC (the case for VFR for most of Class E and G, excepting as indicated in 91.126 and 91.127) then ipso facto they have chosen to not exercise ATC. It simply does not get any more plain than that.

 

[Jim Logajan]

I guess I should have been more specific; I was just imagining the undesireable results that could ensue if someone posed the question to the Chief Counsel's office.

Since it has happened that the FAA has provided an interpretation at trial, and the courts have often accepted those after-the-fact interpretations, in theory it should not matter whether someone asks before any case comes to trial. (The most famous case I'm aware of where the FAA's pre-trial interpretation of its own regulation was rejected by the court is the Alaska Hunter's one. The problem is that the FAA was providing two different interpretations, and the Chief Counsel's opinion was not even considered a factor by the court.)

What is more telling are the cases where the FAA has managed to provide no interpretation or precise definition (such as what constitutes a congested area) beyond the very specifics of the case at hand.

 

[Jim Logajan]

I'm not really understanding the argument here. Last I checked class E is controlled airspace - Isn't it the expectation to comply with vectors or altitude assignments when on FF?

No. There should be no expectation that a pilot comply to instructions while using radar advisory services. That is because the flight following service is not itself an exercise of air traffic control. The FAA's own internal orders make that clear.

Also note that the wording of 91.123(b) is:

"Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised."

It does not say:

"Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in controlled airspace."

To VFR pilots, most of Class E is not an area where ATC is being exercised and nothing in any FAA internal or external documents or regulations show any different - regardless of whether they are using FF.

If i contact the approach controller to utilize his services, I'm putting myself in the system and I'm going to listen what papa has to say. I'm not seeing why this is an issue to even debate.

Since the whole point of a pilot using radar advisory service is to get help avoiding other traffic, I can understand your confusion. However, I believe the issue some have is a (partly) theoretical one, where a controller starts issuing orders that might, for example, ease the job of the controller but that have no direct impact on the pilot's safety and greatly inconvenience the pilot.

 

[Jim Logajan]

Aren't they required to give collision avoidance in this case? If something would have happened, I'd say negligent indifference.:mad2:

AIM 4-1-15 (b)(2) ... "VFR radar advisory service does not include vectors away from conflicting traffic unless requested by the pilot."

See AIM 4-1-15, 4-1-16, and 4-1-17.

 

[Jim Logajan]

Jim's opinion is not shared by either the NTSB (see the Ellis case) or the FAA Chief Counsel (clearly stated in the letter which started this flap). Unless and until you can get the US Court of Appeals to overturn the FAA's and NTSB's common interpretation of that regulation, this is the law whether you like it or not, and you violate it at extreme legal risk -- the USCA very rarely overturns cases where the FAA and NTSB agree.

The facts of the Ellis case as presented don't address any aspect beyond what is already spelled out for operation in Class D airspace. You are drawing conclusions based on your own opinions beyond the facts that case was decided on.

Also, the letter at the beginning of this thread merely reiterates the regulation - it does not add anything new.

Since you insist you are able to read and comprehend these things better than I perhaps you can answer this:
Where does the FAA define where "air traffic control is exercised?"

EDIT: On re-reading the letter I see that it does indeed leap to defining the areas where ATC is being exercised as the simple test of asking only "Is the aircraft in airspace designated as Controlled," rather than "Is the aircraft open to control (has a radio,) is the communication required, and has the controller been authorized to control that airspace?"

 

[Jim Logajan]

Good.

Since there are no regulatory requirements that a VFR pilot in Class E using FF remain in contact with ATC, it would be trivial for a pilot to remain within the law and still disregard orders from ATC that the pilot found inconvenient.

It does appear that the the lawyer who wrote that letter made a definitional leap that he shouldn't have to no good end.

 

[Jim Logajan]

I'm not sure I agree. If they have the pilot on frequency and the instruction given, I think they'd have no problem convincing an ALJ or the NTSB that it was more likely than not that the pilot disobeyed an instruction s/he had received.

The FAA would need to invent facts in order to make such a case. Otherwise in general they could not prove that the pilot even received the order, nor would they be able to cite any regulations that require a VFR pilot using FF service to attempt to stay in contact with ATC. Your scenario works only if there is a presumption of receipt of the instruction - but courts don't normally allow presumption of facts not in evidence.

 

[Jim Logajan]

It really doesn't make any sense.

Once, flying a 172 around Lake Tahoe while climbing at Vy (really slowly -- barely 70 KIAS at that altitude) with flight following, I got a traffic call for a Skylane at 6 o'clock at my altitude. I asked Center for a vector and got it. Center also instructed the Skylane to turn the other way. I'd have been really ****ed off if the response had been "I don't feel like it." Fortunately, the other pilot was a bit more mature than that.

Or the other pilot was acting on self preservation. I don't know what everyone's motivation is for debating this, but I get the impression that the problem some have with this new interpretation is a fear of unintended consequences. If FF is a mutually useful service with no negative consequences then people will use it and happily abide by ATC advisories - but the moment that its use triggers any sort of punitive control, then some people will stop using it and general safety declines needlessly.

 

[Jim Logajan]

It appears you do not understand the difference between criminal law, where a case must be proven beyond reasonable doubt, and administrative law, where the FAA must only prove that it is "more likely than not". I believe we've had similar discussions on that issue before, and that I have previously suggested you read a good aviation law book, like Gesell's "Aviation and the Law," or a more practical pilot-oriented aviation law book like J. Scott Hamilton's "Practical Aviation Law." If you do that, I think you'll be better prepared to understand the legal framework within which these regulations are written and enforced.

I'm already familiar with the differences between the two types of law and the rules of evidence and differences in presumptions. Nothing in my understanding of the law tells me that the FAA gets a pass on any disputes over facts, such as whether a pilot received a radio transmission. I believe that is case specific.

 

[Jim Logajan]

For illustration purposes, I'm going to take this out to ridiculous level:

I'm a ATC controller and I'm having a bad day. I know I'm getting fired by the end of the week, so I decide to go out with a little fun. You are flying your Tiger and are unaware of my mischevious intentions.

I issue you an instruction to fly vector that take you right over Joe Biden's house, squawk 7500, and do a few victory rolls. Are you going to obey?

Only if Joe Biden is actually in the house.

 

[Jim Logajan]

That 1500-1 TFR is in effect 24/7 until he leaves office or moves. The fact that he is not in the house at any particular time doesn't change its effectiveness during that time. However, it does expand by NOTAM to 3000-3 when he's there. Sort of like P-40, which is only about 4nm radius up to 5000 MSL normally but becomes 8nm radius and up to 18,000 MSL by NOTAM when the President is there.

Reading and context comprehension required before posting. If symptoms persist, contact a doctor.

I wrote that I would only obey the goofy order if Biden was home, not when he wasn't. I realize the humor was weak, but the joke was that there is no point violating the law if you can't at least annoy the target and his anointed guardians.

 

[Jim Logajan]

I've read through all ten pages of this thread and I have one question. I was taught that as a pilot in VFR conditions, I always have the option of replying "Unable" to any ATC command that I'm uncertain that I can comply with safely. Is this correct?

I don't believe anyone disputes your right (and obligation) as PIC to do that.

 

[Jim Logajan]

Good God!

Can't we just agree to disagree and move on?

The objective is to disagree until all agree."But do not let us quarrel any more,
...
My works are nearer heaven, but I sit here.
The sudden blood of these men! at a word—
Praise them, it boils, or blame them, it boils too.
I, painting posting from myself and to myself,
Know what I do, am unmoved by men's blame
Or their praise either. Somebody remarks
Morello's 14 CFR there is wrongly traced quoted,
His hue interpretation mistaken; what of that? or else,
Rightly traced noted and well ordered; what of that?
Speak as they please, what does the mountain care?
Ah, but a man's reach should exceed his grasp,
Or what's a heaven an internet forum for?
..."
(Apologies to Robert Browning.)