Some of the security rules relating to the process of ordering an aircraft to land are classified. I just don't know much about what happened in this case, so I leave that possibility open. If someone knows of a full report of all the facts in the "Gateway" case, please post a link.
This reminds me of an interesting experience I had nearly missing a DA40
I too am used to ATC suggesting climbs, descents or headings for traffic that is expected to pass close to me if I can't get them in sight.
I was in class E airspace 3000ft. ATC calls out VFR traffic at 1900 feet and climbing toward me. They call out to me 3mi, not in sight, 2mi, not in sight, finally the controller calls out target 12 oclock, 1 mile 2800feet, 'targets expected to merge'. At this point I'm looking everywhere for this damn thing and reply "Not in sight, CAN YOU SUGGEST A HEADING" and the controller lazily replies "oh, a right turn about 30 degrees should do it"
Turns out the damn thing was right under my spinner, I saw it when I made the turn and it was way too close, I could have flipped them the bird.
Anyway, don't assume they are going to give you a vector if traffic comes too close and you can't spot it.
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'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.
Aren't they required to give collision avoidance in this case? If something would have happened, I'd say negligent indifference.
Aren't they required to give collision avoidance in this case? If something would have happened, I'd say negligent indifference.
Good.
Is there a provision in the CC Opinion process to allow a letter of rebuttal from the public...to give the opinion writer something to reconsider in his opinion?
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.
You are entitled to that opinion, but I for one don't share it, and I doubt anyone who's studied law would, either.
One can write a letter requesting reconsideration, but it would require a lot of legal documentation for them to even consider it as opposed to "filing without action." AOPA's Legal and Governmental Affairs people have done this several times, and were successful in having the Alkalay letter on icing and the interpretation regarding instrument rating training counting for CP instrument training rescinded/clarified, but so far they've been unable to get the FAA to alter its position on the Mangiamele letter on reimbursement for business travel with passengers, and they have a host of expert aviation legal talent behind their work. I've seen nothing posted here on this thread which suggests anyone posting objections to this interpretation has any valid legal arguments in their favor -- just an anti-authoritarian attitude which brooks little favor with the FAA legal eagles or, so my attorney friends tell me, before the NTSB or a panel of USCA judges.
My guess is that is correct.
I don't know what you have, only what I have, and that is, in the Yiddish vernacular, bupkes.
I have no idea, but I suspect this is such an extraordinary action that the FAA would handle it situationally. In any event, I doubt any individual controller would take such action without direction from a supervisor, probably much higher than that. I know that the decision to order all aircraft to land on 9/11 was made by Transportation Secretary Norman Mineta personally (I heard him tell the story live and in person a couple of years ago -- rather a chilling tale).
Because there's a contingent who believe that unless on an IFR flight plan or inside D, C or B airspace, the pilot-ATC relationship is 1-way only - they get to assist us with flight following but we get to disregard what they tell us if we don''t like it.
I believe law enforcement was involved in the latter case, and they have badges, guns, handcuffs, and the power of arrest. Dunno 'bout the glider case.
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.
Then until that happens, I'll reserve comment.
So, who actually originated the order to land in the "Gateway" case, as opposed to who relayed the order to the pilot?
Then you should also understand that because the ALJ's determination of witness credibility is both discretionary and generally final, the ALJ can find as a matter of fact that the pilot did hear the transmission which was recorded on tape even if the pilot denies having heard it, and absent a finding that the decision was arbitrary or capricious (and I guarantee you that if they have the pilot on tape immediately prior to the instruction that was ignored, that finding will not be made), that question is not subject to review by the NTSB or USCA. If not, you need to do some more legal reading, starting with the famous case of Administrator v. Merrell and move on through any case where "credibility" is a key word.
This reminds me of an interesting experience I had nearly missing a DA40
I too am used to ATC suggesting climbs, descents or headings for traffic that is expected to pass close to me if I can't get them in sight.
I was in class E airspace 3000ft. ATC calls out VFR traffic at 1900 feet and climbing toward me. They call out to me 3mi, not in sight, 2mi, not in sight, finally the controller calls out target 12 oclock, 1 mile 2800feet, 'targets expected to merge'. At this point I'm looking everywhere for this damn thing and reply "Not in sight, CAN YOU SUGGEST A HEADING" and the controller lazily replies "oh, a right turn about 30 degrees should do it"
Turns out the damn thing was right under my spinner, I saw it when I made the turn and it was way too close, I could have flipped them the bird.
Anyway, don't assume they are going to give you a vector if traffic comes too close and you can't spot it.
So, who actually originated the order to land in the "Gateway" case, as opposed to who relayed the order to the pilot?
3000 MSL is a perfectly legitimate VFR altitude over most of the country. It is almost always less than 3000 AGL (where you start worry about the hemispherical altitude rules).