ATC Authority Over VFR in Controlled Airspace

[poadeleted20]

There's nothing wrong with ATC suggesting headings or altitudes to VFR aircraft where it has no responsibility for the separation of VFR aircraft, the problem is some controllers assign headings or altitudes in this situation.

If there is such a problem, the time and place to resolve it is on the ground after the flight is over. The process for that is to call the facility involved and speak with a supervisor. Then the facility QA group looks into it and takes appropriate action. This is not something to be handled by arguing on the radio at the time it's happening -- whether the pilot likes the instruction or not, absent an emergency, the pilot is obligated to do as told promptly.

 

[roncachamp]

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

An Aircraft Conflict Alert is called for in this case. See Order JO 7110.65 Air Traffic Control paragraph 2-1-6 SAFETY ALERT.

 

[docmirror]

Steve seems to think lack of a directive constitutes a prohibition.

Because Steve, unlike most modernists understand that the nature of regulation in the US is a negative authority. Flowing from the constitution, the powers allocated to the federal are limited in both action and scope. That was done intentionally to prohibit(there's that word) an expansive regulation, rule-driven, authoritative central committed which we have today.

The way things in the country are supposed to work, is that there is nothing that is prohibited the citizen unless there is a specific detriment to the good order of the republic. That's been very carefully crafted, including the amendment that all powers not defined here, are the province of the states, and that all powers not defined here are retained by the people.

Of course, in practice it is sensible that the federal control the NAS, despite the regulatory effects of each state. This is sensible, and the powers to regulate air traffic can be seen as a reasonable accommodation to the 'general welfare'. Simply put - if we all agree to use the same rule book in the NAS, we will have a better general welfare for the good of all citizens.

Where things start to go awry, is when the chief counsel begins to treat everyone a little different based on their function. If a GA plane is flying along minding his own business, the feds have seen fit to require they monitor a radio freq! How absurd, and rediculious that the citizenry, flying along in the public corridors be required to tune in for some kind of emergency instruction or otherwise. Things like this are what turn republics into totalitarian states, and yes we are on the road of death by a thousand cuts, or camel nose under the tent, or road to ruin, or whatever you want to call it. Now, the feds have said, without legislation mind you, that the feds are 'authorized' to give directional instructions to VFR pilots, and that the VFR pilots ONLY action is to obey, and obey right now, or face the wrath of the regulators(whose regulation has not been blessed by legislation).

At some point, all of you will find this is Homeric madness, and it cannot be reined in. At what point do we have armed men in tactical uniforms and bomb sniffing dogs at each entry to the Towngate Mall? don't tell me the slippery slope doesn't exist, cause we're living it!

We need 'permission' to leave our own country by GA? We have to keep a radio on in our plane cause the great Authority in DC might want to chat? We have to take orders from ATC when out and about on our own navigation(within airspace rules)?

All of you are so focused on the minutia that you can't see the reality that is about to devour us all. Saddest thing I've seen is the attitude of some pilots on here defending and even encouraging that behavior. Well, looks like you folks are going to get your totalitarian wishes fulfilled.

Cya

 

[roncachamp]

No that controller pretty much played it by the book. He even used merging target procedures which in this case isn't required but most controllers still issue the phraseology "targets appear likely to merge." in this case I would have issued that much sooner to give the pilot a chance to request a vector. Controller could have issued a safety alert at the last minute but even that would be a judgment call.

Au contraire. By the book, the transmission would have been; "Traffic Alert, Belchfire Three Four Juliet, twelve o'clock, one mile, advise you turn right immediately.”

 

[roncachamp]

So the controller 'does his job' and somebody gets hurt. If the controller uses common sense he can avoid someone getting hurt. What's wrong with that picture?

The controller is not doing his job when he assigns headings to VFR aircraft not in airspace where ATC has responsibility for the separation of VFR aircraft. He is in violation of Order JO 7110.65 Air Traffic Control.

 

[roncachamp]

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?"

Which would imply that ATC has no authority outside of controlled airspace. Yet there are control towers in Class G airspace. Go figure.

 

[azure]

The Chief Counsel makes no such distinction, and the case law on point is clear -- absent an emergency, you do as told and talk about it later.

The Chief Counsel makes no distinction between filing an IFR flight plan and filing a flight plan with the IFR box checked and "VFR" in the altitude box, either, SFRA VFR filing procedures notwithstanding.

Again, you mention case law, but specifically, is there any case where the FAA took action against a pilot for disobeying an instruction given by ATC contrary to order JO 7110.65?

(And just so that you don't twist my words to make a point in some future thread, note that I'm NOT saying that I wouldn't do exactly as you advise, follow the instruction and question it later. I'm only questioning whether there's any precedent to justify warning pilots that they will likely face administrative action if they don't.)

 

[roncachamp]

I have no idea what Gateway is/was. Two recent cases where local atc ordered pilots to land: The glider in SC/TN. And the nonlicensed helicopter pilot in AZ.

I'm not familiar with the helicopter incident, but the glider in SC was directed to land by the sheriff, not ATC.

 

[poadeleted20]

The Chief Counsel makes no distinction between filing an IFR flight plan and filing a flight plan with the IFR box checked and "VFR" in the altitude box, either, SFRA VFR filing procedures notwithstanding.

Again, you mention case law, but specifically, is there any case where the FAA took action against a pilot for disobeying an instruction given by ATC contrary to order JO 7110.65?

(And just so that you don't twist my words to make a point in some future thread, note that I'm NOT saying that I wouldn't do exactly as you advise, follow the instruction and question it later. I'm only questioning whether there's any precedent to justify warning pilots that they will likely face administrative action if they don't.)

I have seen no such case, although there may be some resolved below the NTSB level. The only warning that pilots have are the regulations and the Chief Counsel's letter.

That said, I believe it is irresponsible for someone to suggest or even hint at that the idea that the pilot's belief that the instruction was not authorized by 7110.65 is a legal defense to an enforcement action for disobeying that instruction when no emergency existed. We do not need that sort of foolishness in the air, and I have seen no regulation, interpretation, or case law to suggest that would be a valid defense.

 

[roncachamp]

Then that puts you on the opposite side of the legal fence from the Federal court system and pretty much the entire body of legal thought in this country. Act upon your belief at your own legal risk (and yeah, I'm sure you don't think there is any risk, but you've been warned whether you accept that or not).

As far as you understand them.

 

[Velocity173]

Au contraire. By the book, the transmission would have been; "Traffic Alert, Belchfire Three Four Juliet, twelve o'clock, one mile, advise you turn right immediately.”

???? I already said a safety alert could have been issued. Apparently the controller in question didn't believe the aircraft's altitude was in an "unsafe proximity." Like I said, judgement call. Also, it's Cessna Three Four Juliet not Belchfire.

 

[roncachamp]

The Chief Counsel's makes no distinction as to the reason for the instruction, just whether or not an "instruction" (as opposed to an "advisory") is given.

The Acting Assistant Chief Counsel also made no distinction between valid ATC instructions and those that are issued in violation of Order JO 7110.65 Air Traffic Control. You're assuming he agrees with your position, that the law requires pilots to follow unlawful instructions.

 

[roncachamp]

As discussed in my post with the case law citations a couple above, the FAA and NTSB do not accept the idea that pilots can argue with controllers' instructions in flight unless following the instruction will create or exacerbate an emergency. Whether an instruction is "valid" or not is a subject to be discussed later, on the ground, not in real time in flight, and is a matter for the ATO to handle internally once the pilot's complaint is received. The chaos that would result from pilots being authorized to disobey instructions they think are "invalid" is unthinkable, even if the instruction is not in fact specifically authorized by 7110.65.

You have not cited any such case law.

 

[poadeleted20]

The Acting Assistant Chief Counsel also made no distinction between valid ATC instructions and those that are issued in violation of Order JO 7110.65 Air Traffic Control. You're assuming he agrees with your position, that the law requires pilots to follow unlawful instructions.

I assume nothing. You are the one who is assuming that which is not written in either the regulations or the Chief Counsel's letter, to wit, that there is an exception for instructions the pilot believes to be "unlawful." The only exception I see is an emergency, but if you can find something in writing which establishes that additional exception to 14 CFR 91.123 you seem to believe exists, please share it -- I'd love to see it.

 

[roncachamp]

There is a fine line, though, between not going after a pilot who disobeys an illegal instruction, and explicitly authorizing pilots to disobey illegal instructions. I think what Steven is getting at is the former. They are never going to do the latter, as it would lead to chaos if pilots started willy-nilly disobeying ATC instructions because they believed they were illegal, as you correctly point out. But that doesn't mean that they are going to pursue action against a pilot who disregards an ATC instruction that is contrary to the JO.

Do you know of any case where they actually have done so?

He does not. To date, nobody has found a single case of the FAA going after a pilot that has disobeyed an illegal ATC instruction. Levy has claimed that Ellis is such a case, but it isn't. Ellis disobeyed instructions intended to effect runway separation at a towered field, every instruction issued was consistent with JO 7110.65.

 

[roncachamp]

The Chief Counsel makes no such distinction, and the case law on point is clear -- absent an emergency, you do as told and talk about it later.

Right. The FAA wants pilots to follow instructions that it does not want controllers to issue. The sad thing is you don't have the slightest idea just how preposterous that position is.

 

[roncachamp]

Steve seems to think lack of a directive constitutes a prohibition. As stated in the first paragraph of that order (quoted earlier), he is wrong -- when the controller feels safety is an issue, the controller is authorized to use his/her own judgment to resolve the situation even if the order does not explicitly direct the action the controller chooses.

There is no lack of directive here.

 

[roncachamp]

I don't remember if she said resume own navigation or proceed on course. I think I was actually still on her last vector when I terminated. I was well west and below the B and she was trying to keep me clear of arrivals into rwy 9. Are you saying if I was assigned a vector and chose to terminate, I should continue on that vector even if not receiving radar service?

I'm not saying that, Levy is.

 

[Jaybird180]

That said, I believe it is irresponsible for someone to suggest or even hint at that the idea that the pilot's belief that the instruction was not authorized by 7110.65 is a legal defense to an enforcement action for disobeying that instruction when no emergency existed. We do not need that sort of foolishness in the air, and I have seen no regulation, interpretation, or case law to suggest that would be a valid defense.

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?

 

[roncachamp]

If there is such a problem, the time and place to resolve it is on the ground after the flight is over. The process for that is to call the facility involved and speak with a supervisor. Then the facility QA group looks into it and takes appropriate action. This is not something to be handled by arguing on the radio at the time it's happening -- whether the pilot likes the instruction or not, absent an emergency, the pilot is obligated to do as told promptly.

Nonsense.

 

[Velocity173]

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?

I would think at the very least the PIC would consider it an emergency situation and deviate as necessary IAW 91.123 (b).

 

[roncachamp]

That said, I believe it is irresponsible for someone to suggest or even hint at that the idea that the pilot's belief that the instruction was not authorized by 7110.65 is a legal defense to an enforcement action for disobeying that instruction when no emergency existed. We do not need that sort of foolishness in the air, and I have seen no regulation, interpretation, or case law to suggest that would be a valid defense.

Well, we're not talking about situations where a pilot believes that the instruction was not authorized by 7110.65, we're talking about situations where the instruction is in violation of the order. For that reason enforcement action is very unlikely.

 

[Jaybird180]

I guess if you give "emergency" wide latitude of interpretation.

 

[azure]

I have seen no such case, although there may be some resolved below the NTSB level. The only warning that pilots have are the regulations and the Chief Counsel's letter.

Thank you.

That said, I believe it is irresponsible for someone to suggest or even hint at that the idea that the pilot's belief that the instruction was not authorized by 7110.65 is a legal defense to an enforcement action for disobeying that instruction when no emergency existed. We do not need that sort of foolishness in the air, and I have seen no regulation, interpretation, or case law to suggest that would be a valid defense.

I don't know whether a pilot could defend against such an (hypothetical) enforcement action by arguing that the instruction was one that the controller was actually not authorized to give. But that's a little different from a pilot trying to argue "I didn't think the controller was authorized to give me that instruction", as you're implying. Just as I don't think anyone would argue that ignorance of the FARs is any kind of defense. Once again, you seem to be twisting people's words to make a rhetorical point.

 

[roncachamp]

I assume nothing. You are the one who is assuming that which is not written in either the regulations or the Chief Counsel's letter, to wit, that there is an exception for instructions the pilot believes to be "unlawful." The only exception I see is an emergency, but if you can find something in writing which establishes that additional exception to 14 CFR 91.123 you seem to believe exists, please share it -- I'd love to see it.

You assume much.

 

[roncachamp]

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?

Cheetah.

 

[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.

 

[coma24]

Nearly every time I fly in New York TRACON with VFR FF heading west out of Lincoln Park (N07), I receive an altitude restriction ("maintain VFR at or below xxxx") to remain below the EWR arrival stream, all of which occurs in Class E airspace.

It's an inconvenience, because I have a visual on arrival stream, or could certainly spot the traffic when it's called out.

However, I interpret this more as "SUGGEST you maintain VFR at or below 4500" or even "please, to make this somewhat bearable while you have flight following, maintain VFR at or below 4500."

It's a two-way street. In exchange for their willingness to provide FF on a workload permitting basis, I'm willing to make their lives easier and stay below the arrival stream.

Sure, we can do anything we like as VFR in Class E, but can you imagine the havoc it would cause if we flew opposite direction along a busy arrival corridor? ATC has the big picture, they see the traffic. If they issue an altitude, I'm going to assume it's for a good reason. If I feel really strongly about it, I'll query the instruction and negotiate another plan. Worst case, I can cancel, but that really would be the last resort.

 

[poadeleted20]

Thank you.

I don't know whether a pilot could defend against such an (hypothetical) enforcement action by arguing that the instruction was one that the controller was actually not authorized to give. But that's a little different from a pilot trying to argue "I didn't think the controller was authorized to give me that instruction", as you're implying. Just as I don't think anyone would argue that ignorance of the FARs is any kind of defense. Once again, you seem to be twisting people's words to make a rhetorical point.

I don't see any significant difference in your two scenarios -- in either case, the pilot is disobeying an ATC instruction without an emergency existing, and an emergency is the only exception in either the regulations or the Chief Counsel's interpretation of the regulations. What's happening here is Steven and others are claiming that the regulations have exceptions which do not appear in writing in either the regulations or the Chief Counsel's interpretations, and that is essentially relying on the "unwritten law," which despite Jimmy Stewart's fictional defense of Ben Gazzara in "Anatomy of a Murder" has little weight in actual proceedings.

 

[poadeleted20]

Only if Joe Biden is actually in the house.

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.

 

[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.

 

[Velocity173]

I guess if you give "emergency" wide latitude of interpretation.

Well, the controller would be specifically telling me to violate a FAR. As PIC and having authority under 91.3 (a), I'd say "unable." If he came back and restated the instruction, I'd declare an emergency and deviate as necessary. Somehow I just can't see the FAA taking enforcement action against me in that case.

 

[roncachamp]

I don't see any significant difference in your two scenarios -- in either case, the pilot is disobeying an ATC instruction without an emergency existing, and an emergency is the only exception in either the regulations or the Chief Counsel's interpretation of the regulations. What's happening here is Steven and others are claiming that the regulations have exceptions which do not appear in writing in either the regulations or the Chief Counsel's interpretations, and that is essentially relying on the "unwritten law," which despite Jimmy Stewart's fictional defense of Ben Gazzara in "Anatomy of a Murder" has little weight in actual proceedings.

Odd, I don't recall saying that. Cite?

 

[roncachamp]

Well, the controller would be specifically telling me to violate a FAR. As PIC and having authority under 91.3 (a), I'd say "unable." If he came back and restated the instruction, I'd declare an emergency and deviate as necessary.

An instruction that requires the pilot to violate an FAR does not necessarily constitute an emergency.

Somehow I just can't see the FAA taking enforcement action against me in that case.

Ah, the irony.

 

[poadeleted20]

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.

Ah. Yes. With that explanation, I suppose I see the humor in your post. Ha. (not even "ha-ha")

But there probably are some folks who believe it's only in effect when he's up there instead of down in DC, so...

 

[poadeleted20]

An instruction that requires the pilot to violate an FAR does not necessarily constitute an emergency.

The Chief Counsel said, in the interpretation about a tower controller telling a pilot to extend downwind into a B-space the tower didn't control, that pilots are not authorized to violate flight rules just because a controller tells them to do something which would cause the pilot to violate the flight rules. But since we're only talking about instructions which are not specifically authorized by 7110.65, not ones which would cause the pilot to violate the flight rules, that's not relevant to this discussion.

 

[JeffDG]

Only if Joe Biden is actually in the house.

Then he'll send Jill out on the balcony with a shotgun.

 

[roncachamp]

The Chief Counsel said, in the interpretation about a tower controller telling a pilot to extend downwind into a B-space the tower didn't control, that pilots are not authorized to violate flight rules just because a controller tells them to do something which would cause the pilot to violate the flight rules. But since we're only talking about instructions which are not specifically authorized by 7110.65, not ones which would cause the pilot to violate the flight rules, that's not relevant to this discussion.

And your response is not relevant to my statement, but note that that position is at odds with the opinion of the Acting Assistant Chief Counsel in the Karas letter.

 

[N801BH]

Steve seems to think lack of a directive constitutes a prohibition. As stated in the first paragraph of that order (quoted earlier), he is wrong -- when the controller feels safety is an issue, the controller is authorized to use his/her own judgment to resolve the situation even if the order does not explicitly direct the action the controller chooses.

In any event, the question of whether or not a controller's instruction is "authorized," "valid", or any other word of that nature is not up for debate by the pilot at the time it is issued. The Chief Counsel says clearly that unless it's an emergency, you do as told, and the case law says you do it promptly. There is no exception in the Chief Counsel's letter or the case law for instructions the pilot believes are not authorized by 7110.65. Choose wisely.

Horse *****......................

The PIC = Pilot In Command has the FINAL authority in the safe outcome of a flight... It does NOT take an declared "emergency" for the pilot to decide the next move.........

When a controller makes a bad decision................. PILOTS and PASSENGERS die.........

Controllers NEVER get killed.....

If ATC gives me an order to follow and I deem it to be unsafe, I will say UNABLE and proceed with what I consider the safest option....

 

[gismo]

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.

JOOC, (and no I'm not asking you to defend this policy) what possible security benefit is provided by a 1500-1 restriction? Would that provide sufficient time and room to "defeat" an attempted aerial bombing (suicidal or traditional)? Even 3000-3 seems rather useless to me other than giving those on the ground a warm fuzzy feeling.