Changing VFR Altitude While Getting Radar Services

[eetrojan]

I have a dumb new pilot question re best practices for changing VFR altitudes when making a course change while on flight following.

Yesterday I flew from French Valley (F70) to John Wayne (SNA) via Oceanside.

• F70 to Oceanside is a course of 169 degrees magnetic – so above 3000 AGL, the appropriate VFR altitudes are odd thousands plus 500.
  
• Oceanside toward SNA, along the cost, is a course of 303 degrees magnetic – so VFR altitudes are even thousands plus 500.

I was on flight following at 5,500 and, as I approached Oceanside, I called approach and confirmed that the restricted area R2503 D is cold. He confirmed it was inactive and said they are moving planes through there no problem at 4,500.

As I turned a little right toward Oceanside, and continued on, I began to descend from 5,500 to 4,500 for the new course and, ultimately, for the 303 course. The controller came on and seemed a little miffed.

I though the descent was expected, if not mandatory, based on the magnetic course of our next leg and his reference to 4,500, but I guess not.

What is best practice for working with approach when turning on a course that dictates a different VFR altitude?

Should I always request an altitude change and make sure they’re good with it before beginning?

Is it OK to stay at an odd-plus-500 altitude while already on an even-plus-500 course while waiting to get a word in?

A minor issue I suppose, but seems like a little catch-22.

Thanks!

 

[Jim Logajan]

Sometimes, ATC has gotten cranky when I let them know I intended to change altitude ("altitude your discretion..."). Other times, ATC has gotten cranky when I changed altitude without first letting them know.

Maybe it's the coffee they're drinking?

 

[Jim Logajan]

Steven assumes facts not in evidence since neither the regulation nor the Chief Counsel letter make any such distinction You can listen to Steve or you can listen to the Chief Counsel. Choose wisely.

Steven is correct. The Chief Counsel did not interpret the regulation but rather attempted a rewrite. This has been discussed before. You are unmoved by the contradictions that arise by the "interpretation." That is unwise.

 

[Jim Logajan]

I have searched the net for any litigation or FAA action which may have involved ATC issuing instructions to an aircraft flying VFR in Class E or G airspace. I can't find any case where the FAA went after any VFR pilot on flight following in Class E who did not obey an ATC instruction per 91.123. (That regulation has been numbered differently and has had slightly different wording in the past.)

But I did find some court material, though, that contains the reasoning that courts have applied to cases involving ATC/pilot interactions that may shed some light (or confusion) on how such a case may be handled by a court.

CASE 1: Not an FAA action. Lawsuit against the government, claiming ATC was at fault for an accident. Naturally the government claims otherwise because the aircraft in question were flying VFR. The following text (and all the material I quote henceforth) needs to be read in context, but basically this court treats the ATC procedures manual as having the force of law."Standards for measuring the air traffic controller's duties to aircraft in his control zone are prescribed in the Air Traffic Control Procedures (14 C. F.R. 617). These regulations have the force and effect of law. Hochrein v. United States, 238 F.Supp. 317, 319 (E. *1143 D.Pa.1965); United States v. Schultetus, supra."
...
"The separation regulation, upon which the plaintiffs rely, relates to radar identified aircraft and the separation of two or more planes on take-off and in descent or climbing. It does not appear to control an aircraft flying under visual conditions in a hold pattern. A.T.C. Procedures § 321.1.
The main responsibility for the safe flight of aircraft in the control zone under visual flight conditions resides with its pilot. "Nonetheless, before a pilot can be held legally responsible for the movement of his aircraft he must know, or be held to have known, those facts which were then material to the safe operation of his aircraft." Hartz v. United States, 387 F.2d 870, 873 (5th Cir. 1968)."
https://www.courtlistener.com/vtd/8fwW/ross-v-united-states/

CASE 2: Another lawsuit against the government. Where the court in the first case says ATC written procedures have the force of law, this one says no they don't. I think they are making a determination for the same purpose, but maybe not."The plaintiffs' case is not based on a violation of regulations. Rather, it is based on FAA manuals, such as the AIM and the ATCM, which do not have the force of law but only provide evidence of the standard of care among pilots and controllers. Id. Still, “a substantial and unjustified failure to follow procedures made mandatory by the manual is persuasive as an indication of a lack of due care.” Fed. Express Corp., 664 F.2d at 835 (quoting Delta Air Lines, Inc., 561 F.2d at 390) (emphasis added)."
http://caselaw.findlaw.com/us-1st-circuit/1299152.html

CASE 3: Lawsuit against the government for a midair crash. I'm including this only because I found it amusing to see the government actually try to claim that an ATC instruction that lead to a crash within an airport's vicinity was merely advisory. The court didn't buy it. Unfortunately the airspace class didn't come up and I can't tell whether the government argued the accident took place outside the airport's airspace."In contravention, the Government asserts that the instruction issued by the local controller to proceed straight across final was merely advisory. However, the mandatory nature of such instructions is clearly provided for in the federal regulation, which states:"
http://scholar.google.com/scholar_c...q="compliance+with+atc"+vfr&hl=en&as_sdt=2006

CASE 4: Action against a pilot. This one I found interesting because the pilot appears to have actually won his case when he claimed he didn't hear an instruction. The NTSB appeared to side with the pilot. A subtle but possibly relevant aspect to note is that the FAA limited itself to saying the pilot failed to heed the altitude instruction "when entering Fresno airspace." Implication being that it was not applicable outside that airspace."Rolund's defense to the charge that he violated an air traffic control instruction to remain at or above 2,500 feet while descending into Fresno was that he "did not hear" that part of the instruction. The transcript of the radio instruction verifies that the instruction was transmitted."
http://scholar.google.com/scholar_c...affic+control+is+exercised"&hl=en&as_sdt=2006