What would you have done?

[roncachamp]

91.173
I'd expect you to have known that as a controller.

FAR 91.173 doesn't say it's okay to fly in the clouds without a flight plan if you're not in controlled airspace, it says:

No person may operate an aircraft in controlled airspace under IFR unless that person has—


(a) Filed an IFR flight plan; and


(b) Received an appropriate ATC clearance.

The FARs do allow flight in clouds in uncontrolled airspace but you must adhere to all applicable FARs; you have to be at least 1000 feet above the highest obstacle within four miles of your course, you must fly at a cardinal altitude determined by your direction of flight, etc.

So what is the Roncachamp version of the incident that caused the FAA to form?

The Grand Canyon midair, that happened more than twenty years after airways traffic control was established as well as economic regulation of the airlines.

Its really simple dude:

Pilots: Adhere to instructions issued
ATC: Issue valid instructions

Its not the pilot's duty to ensure ATC is performing the way they are supposed to. Our only rule says "Follow instructions"


No. Because there hasn't been a bust YET doesn't mean there can't be a bust. There is new case law all the time. The FAA exists to screw GA.

You're not even trying to understand this. How can there be a bust without a report of a pilot deviation?

 

[ScottM]

Here we go yet again

 

[SkyHog]

FAR 91.173 doesn't say it's okay to fly in the clouds without a flight plan if you're not in controlled airspace, it says:


The FARs do allow flight in clouds in uncontrolled airspace but you must adhere to all applicable FARs; you have to be at least 1000 feet above the highest obstacle within four miles of your course, you must fly at a cardinal altitude determined by your direction of flight, etc.



The Grand Canyon midair, that happened more than twenty years after airways traffic control was established as well as economic regulation of the airlines.


You're not even trying to understand this.

To be clear, Ronca,

Are you saying that to fly in the clouds in Class G airspace, that a pilot must be on an active IFR Flight Plan?

 

[AuntPeggy]

I think this has become an endless repetition of irreconcilable points of view. Shall we call a cease-fire?

 

[jesse]

Seriously Scott?? Please delete/resize that so you don't bust the page for all our users...

 

[flyingcheesehead]

If it was as you believe pilots that ignored invalid ATC instructions would be charged with violating FAR 91.123(b). The fact that they are not proves ignoring invalid ATC instructions is not a violation of the reg.

No, it only proves that the FAA (thankfully) does not enforce that particular violation of the regs. That does not mean it is not a violation.

 

[roncachamp]

To be clear, Ronca,

Are you saying that to fly in the clouds in Class G airspace, that a pilot must be on an active IFR Flight Plan?

I am not.

 

[roncachamp]

No, it only proves that the FAA (thankfully) does not enforce that particular violation of the regs. That does not mean it is not a violation.

If the FAA considered it to be a violation of the regulation it would be enforced as a violation of the regulation.

 

[poadeleted20]

The original question was whether or not it was OK, not what regulation says it isn't OK, and the FAA says it isn't OK when the G-space underlies controlled airspace over an airport where airplanes operating IFR with flight plans and clearances may be taking off and landing. See Administrator v. Murphy for the details.

That said, it's a violation of 91.13, not 91.173, which says only that the flight plan and clearance are required in controlled airspace without discussing uncontrolled (Class G) airspace. There is no regulation specifically saying it's either OK or not OK to fly IFR in uncontrolled airspace without a flight plan or clearance, but the FAA is on record as saying that depending on circumstances, it may be careless/reckless in violation of 91.13.

Likewise, the FAA and NTSB are on record in the Ellis case cited above as saying that the "validity" (as roncachamp uses the term) of an ATC instruction is not an issue in determing whether a pilot who fails or refuses to obey it is in violation of 91.123 if ATC has a legitimate safety purpose for issuing the instruction.

 

[Palmpilot]

The note from FAAO 7110.65 should be sufficient to answer your question:

"Pilots are required to abide by CFRs or other applicable regulations regardless of the application of any procedure or minima in this order."

That note should be sufficient to settle this whole argument. It looks to me like I have to obey 14 CFR 91.123(b) no matter what it says, or doesn't say, in 7110.65.

You've told us that ATC is not forwarding such cases to the FAA for enforcement action against pilots, but you've also told us that the quality of ATC training has gone downhill, so it could be only a matter of time before ATC starts forwarding such cases. I would be very surprised if there were no examples where the FAA had started enforcing things they didn't enforce before, so I prefer not to rely on that. It's easy to say that the rules don't permit X, so X squared can't happen, but I've seen too many NTSB decisions that just don't make sense to me. Look at the "CFI is PIC ALWAYS" thread, for example. In that one the NTSB didn't even follow their own precedent. I just don't think it's possible to predict with your level of certainty whether or how the FAA or NTSB will deal with these cases in the future.

It's also possible that the lack of such enforcement cases until now is merely an indication that most pilots are obeying ATC instructions even when they're invalid, as long as they don't create an unsafe situation.

 

[roncachamp]

That note should be sufficient to settle this whole argument. It looks to me like I have to obey 14 CFR 91.123(b) no matter what it says, or doesn't say, in 7110.65.

Care to explain how you arrived at that conclusion?

You've told us that ATC is not forwarding such cases to the FAA for enforcement action against pilots, but you've also told us that the quality of ATC training has gone downhill, so it could be only a matter of time before ATC starts forwarding such cases.

True, there could come a time when supervisors, managers, and quality assurance staff all share the same misconception.

 

[roncachamp]

Likewise, the FAA and NTSB are on record in the Ellis case cited above as saying that the "validity" (as roncachamp uses the term) of an ATC instruction is not an issue in determing whether a pilot who fails or refuses to obey it is in violation of 91.123 if ATC has a legitimate safety purpose for issuing the instruction.

Again, please quote the language used by the FAA and NTSB that you believe has that meaning.

 

[SkyHog]

Again, please quote the language used by the FAA and NTSB that you believe has that meaning.

He did, its 91.123.

 

[poadeleted20]

He did, its 91.123.

...along with the language I quoted from Ellis a few pages back.

BTW, since it appears there's only one person here who doesn't think you can get fried over not obeying an "invalid" ATC instruction, and he's apparently beyond convincing, I won't be bothering further with this thread. Anyone else who has any questions about the issue can feel free to PM them to me.

 

[roncachamp]

...along with the language I quoted from Ellis a few pages back.

No you didn't, you wrote:

"The NTSB said that is irrelevant to the legal issue at hand, and that's the point one needs to understand in such a situation -- unless following the instruction will create an emergency situation, the pilot must follow it regardless of whether the pilot thinks it's 'valid' or not."

But you didn't quote any language from Ellis that supported that assertion.

BTW, since it appears there's only one person here who doesn't think you can get fried over not obeying an "invalid" ATC instruction, and he's apparently beyond convincing, I won't be bothering further with this thread.

I can be convinced by a cogent argument supported by verifiable documentation. Why don't you give that a try?

 

[TangoWhiskey]

§ 91.123 Compliance with ATC clearances and instructions.
(b) 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.

Nobody in this thread has addressed the latter part of this reg; does "area" define lateral and vertical limits of controlled airspace; or, does the fact that I was able to receive an instruction from air traffic control, whether initiated by a transmission by me or not, constitute me being in "an area in which" air traffic control is exercised?

 

[TangoWhiskey]

How about this case? It is about as close the OP's situation and question as I can find.

http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/3597.PDF

Briefly stated, the facts establish that respondent made a takeoff from Torrance, an airport south of Los Angeles and under the Los Angeles TCA.

Because of low visibility, respondent had opened an IFR flight plan for VFR on top and had notified the controller that he planned to use the VFR corridor.

Emerging from the obscuration at 2500 feet, respondent had not yet entered the TCA. He cancelled his IFR flight plan and received from the controller the following transmission:

" . ..squawk 1200... your radar service is terminated . . . turn southbound

remaining clear of the Los Angeles TCA", and, 17 seconds later, “start a left turn now." ** footnote #5 **

Respondent did not comply; but, instead, turned right in an attempt to locate the VFR corridor.

** footnote #5 **: Respondent’s contention that this transmission was only advisory is without merit, as it focuses only on the “start turn” part of the transmission. We therefore have no need to rule on whether he was obligated to comply with an advisory concerning an appropriate heading once he was no longer operating IFR.

[[SNIP]]

Turning now to the matter of sanction, the Board agrees with the Administrator that a 90-day suspension is consistent with precedent. While inadvertent TCA incursions unaccompanied by aggravating factors generally have drawn 60-day suspensions, see, for examplem Administrator v. Pritchett, NTSB Order No. EA-3271 (1991), this is not such a case. To the contrary, respondent’s section 91.90(a)(l)(i) violation stemmed from his decision to disregard, in violation of section 91.75(b), an ATC instruction to turn left to avoid the TCA. ** footnote 7 **

** footnote 7 **: The Administrator accurately characterizes respondent’s conduct, in brief, in the following language: “As a direct result of his failure to obey an ATC instruction, respondent twice entered the Los Angeles TCA without authorization.”
​

ATC was here providing directions (not maintain altitude, but "start a left turn") to a VFR aircraft. Note that the gentleman was not just sited for the TCA penetration, but also for failing to obey ATC instructions (specifically, the direction of turn). 91.75(b) is 91.123(b)'s earlier version, before being renumbered.

Would you consider ATC's instructions here to have been "invalid", since they were to a VFR aircraft outside the controller's airspace?​

 

[Chris Connor]

No you didn't, you wrote:

"The NTSB said that is irrelevant to the legal issue at hand, and that's the point one needs to understand in such a situation -- unless following the instruction will create an emergency situation, the pilot must follow it regardless of whether the pilot thinks it's 'valid' or not."

But you didn't quote any language from Ellis that supported that assertion.



I can be convinced by a cogent argument supported by verifiable documentation. Why don't you give that a try?

How about this?


6

​

​

For instance, respondent argues that the controller, in

denying respondent’s request to make a 360 degree turn after

landing, incorrectly used the term “negative” instead of
“unable.” Although respondent does not say so directly, he
appears to believe that this asserted error in phraseology (that is, this departure from the terminology specified in FAA Order 7110.65L, “Air Traffic Control,” para. 2-1-18) entitled him to disregard the denial and execute the maneuver with impunity.
Like the law judge, we see the matter differently. We think, in the circumstances of this case, that so long as the meaning of the controller’s instruction was clear, and there is no doubt here that respondent understood that ATC had not approved a turn, neither the correctness of the controller’s language, nor the reasons for his decision are relevant to a determination as to whether respondent operated his aircraft contrary to an air traffic control instruction.​

To me, a lowly private pilot without a law degree, this says that just because the controller didn't do it right you knew what he meant and you are required to comply.​

 

[Chris Connor]

But you didn't quote any language from Ellis that supported that assertion.



I can be convinced by a cogent argument supported by verifiable documentation. Why don't you give that a try?

Or this?

Thus, even if it were true that ATC would ordinarily not issue VFR traffic specific instructions as to how to fly the airport pattern, such instructions here, clearly intended to reduce the collision potential that a premature turn to base by respondent’s aircraft could (and ultimately did)create, were, at the very least, appropriate.

It seems they are saying that ATC's unusual instruction although not normal or required (aka invalid) was appropriate and needed to be complied with.

 

[roncachamp]

How about this case? It is about as close the OP's situation and question as I can find.

http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/3597.PDF

ATC was here providing directions (not maintain altitude, but "start a left turn") to a VFR aircraft. Note that the gentleman was not just sited for the TCA penetration, but also for failing to obey ATC instructions (specifically, the direction of turn). 91.75(b) is 91.123(b)'s earlier version, before being renumbered.

Would you consider ATC's instructions here to have been "invalid", since they were to a VFR aircraft outside the controller's airspace?

No. The instructions, "turn southbound remaining clear of the Los Angeles TCA" and, 17 seconds later, "start a left turn now" were issued for the purpose of keeping the aircraft outside the TCA. Telling a VFR aircraft to remain outside the TCA is a valid instruction.

 

[TangoWhiskey]

Bob Miller addressed this subject in his OTA newsletter (October 24 2004):

In truth, it is the pilot, not the controller, who is ultimately responsible for the safe outcome of every flight. It is the pilot, not the controller, who ultimately determines the heading and altitude to fly. If the controller steers a pilot into a restricted or prohibited area, it's the pilot, not the controller, that receives the violation. If a controller vectors a pilot into the side of a mountain, it's the pilot, not the controller, who dies.

Does This Mean that the Pilot Can Choose to Ignore ATC Instructions?

Of course not! FAR 91.123(b) states that 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.

Well, if the pilot is the master and ATC is the servant, how do you explain FAR 91.123(b)?

Welcome to the gray area of aviation. As any experienced pilot knows, aviation is not a "black and white" world, with right answers and wrong answers. Instead, aviation is a world of shades of gray. It's a world of individual interpretation and judgement, not blind obedience to regulation. It's a world where the pilot exercises COMMAND authority over the safety of his flight. How, then, does pilot command authority square with FAR 91.123(b)? [I should point out that there are still pilots who "fly by the book." Right/wrong, black or white . . . with no shades of gray. Fortunately, this myopic view of aviation is fading away.]

The best way to reconcile pilot command and FAR 91.123(b) is to recognized and accept the fact that the pilot and ATC represent a flight team. Rather than working in opposition, e.g., ATC says go one way and the pilot wants to go another way, the pilot and ATC decide jointly on what will work for the best outcome of the flight. But remember, every team has a captain. And that captain is and always has been the pilot, not the controller.

Okay . . . Who's the Boss?

Again, the pilot is the boss! The pilot files his or her flight plan. ATC issues clearances in accordance with that plan. If the pilot does not like or is unable to accept those clearances, he advises the controller, and a new set of clearances are issued. This process continues until both the pilot and ATC agree on the the flight is to be flown. Sound confusing? Perhaps so, but here's a list of six rules that will help you, as the pilot, to remain in control of your flight:

Rule #1: Don't be shy...ask ATC for what you want.
Rule #2: Treat every ATC clearance as the opening bid in a negotiation.
Rule #3: If ATC turns down your request, be persistent.
Rule #4: If you're unable, say so...and make ATC a counter-offer.
Rule #5: It sometimes helps to give ATC the reason for your request.
Rule #6: Don't hesitate to use your command authority.

If you would like further clarification of these six rules, click HERE. This will open a wonderful article titled The Delicate Art of Negotiating with ATC. This article will affirm the fact that ATC is there for the pilot's convenience and safety, not the other way around.

 

[TangoWhiskey]

No. The instructions, "turn southbound remaining clear of the Los Angeles TCA" and, 17 seconds later, "start a left turn now" were issued for the purpose of keeping the aircraft outside the TCA. Telling a VFR aircraft to remain outside the TCA is a valid instruction.

If he told a VFR aircraft in contact with him to "maintain 4500 or higher for 3 miles", to maintain separation with an inbound IFR aircraft, would that be an invalid instruction?

 

[roncachamp]

How about this?

6

​

​

For instance, respondent argues that the controller, in​

denying respondent’s request to make a 360 degree turn after

landing, incorrectly used the term “negative” instead of

“unable.” Although respondent does not say so directly, he
appears to believe that this asserted error in phraseology (that is, this departure from the terminology specified in FAA Order 7110.65L, “Air Traffic Control,” para. 2-1-18) entitled him to disregard the denial and execute the maneuver with impunity.
Like the law judge, we see the matter differently. We think, in the circumstances of this case, that so long as the meaning of the controller’s instruction was clear, and there is no doubt here that respondent understood that ATC had not approved a turn, neither the correctness of the controller’s language, nor the reasons for his decision are relevant to a determination as to whether respondent operated his aircraft contrary to an air traffic control instruction.​

To me, a lowly private pilot without a law degree, this says that just because the controller didn't do it right you knew what he meant and you are required to comply.

Agreed. The controller was just a bit off from the book phraseology in issuing a valid instruction. It's still a valid instruction and the pilot still must comply. But Cap'n Ron wrote:

"The NTSB said that is irrelevant to the legal issue at hand, and that's the point one needs to understand in such a situation -- unless following the instruction will create an emergency situation, the pilot must follow it regardless of whether the pilot thinks it's 'valid' or not."

The NTSB said nothing at all like that.

 

[roncachamp]

If he told a VFR aircraft in contact with him to "maintain 4500 or higher for 3 miles", to maintain separation with an inbound IFR aircraft, would that be an invalid instruction?

Invalid if outside the TCA, valid if inside the TCA.

 

[roncachamp]

Or this?

Thus, even if it were true that ATC would ordinarily not issue VFR traffic specific instructions as to how to fly the airport pattern, such instructions here, clearly intended to reduce the collision potential that a premature turn to base by respondent’s aircraft could (and ultimately did)create, were, at the very least, appropriate.

It seems they are saying that ATC's unusual instruction although not normal or required (aka invalid) was appropriate and needed to be complied with.

What unusual instruction? The instructions issued were done to provide runway separation. I recall nothing that was outside the norm for the situation.

 

[Palmpilot]

Care to explain how you arrived at that conclusion?

I arrived at that conclusion because 7110.65 says we have to follow the CFRs "regardless of the application of any procedure or minima in this order." In this case, the procedure is the issuance of an ATC instruction. That procedure is being improperly applied, according to you, but it doesn't matter, because we have to obey 91.123 "regardless of the application."

True, there could come a time when supervisors, managers, and quality assurance staff all share the same misconception.

QED

 

[roncachamp]

I arrived at that conclusion because 7110.65 says we have to follow the CFRs "regardless of the application of any procedure or minima in this order." In this case, the procedure is the issuance of an ATC instruction. That procedure is being improperly applied, according to you, but it doesn't matter, because we have to obey 91.123 "regardless of the application."

The reference to 7110.65 was provided to help answer the following question:

"If you're flying VFR in controlled airspace, you may be asked ATC to do things you can't safely or legally do. If I'm asked to fly an altitude or heading that would cause me to enter the clouds, and I respond 'Unable,' and there's a loss of separation with IFR traffic because of my refusal - have I been careless and reckless to operate in Class B with so many clouds nearby?"

 

[Palmpilot]

The reference to 7110.65 was provided to help answer the following question:

"If you're flying VFR in controlled airspace, you may be asked ATC to do things you can't safely or legally do. If I'm asked to fly an altitude or heading that would cause me to enter the clouds, and I respond 'Unable,' and there's a loss of separation with IFR traffic because of my refusal - have I been careless and reckless to operate in Class B with so many clouds nearby?"

And how is it that you are able to determine with such certainty what was in the minds of the people who wrote it? In other words, how can you be SO sure that they intended it to apply only in the circumstances you cite?

 

[poadeleted20]

Rule #2: Treat every ATC clearance as the opening bid in a negotiation.

Apparently Mr. Miller hasn't read Administrator v. McCarthney:

We have long held that, given the time-sensitive nature of ATC communications and aviation operations, combined with the fact that air traffic controllers must communicate with multiple aircraft within the same short period of time, ATC instructions are not subject to negotiation.

60 days in the hole.

 

[roncachamp]

And how is it that you are able to determine with such certainty what was in the minds of the people who wrote it? In other words, how can you be SO sure that they intended it to apply only in the circumstances you cite?

I don't see a connection between your questions and the material you quoted. In the minds of the people who wrote what? Intended what to apply only in the circumstances I cite? What circumstances?

 

[Palmpilot]

In the minds of the people that wrote what?

This:

"Pilots are required to abide by CFRs or other applicable regulations regardless of the application of any procedure or minima in this order."

Intended what to apply only in the circumstances I cite?

This:

"Pilots are required to abide by CFRs"

What circumstances?

These circumstances:

"If you're flying VFR in controlled airspace, you may be asked ATC to do things you can't safely or legally do."

 

[roncachamp]

This:

"Pilots are required to abide by CFRs or other applicable regulations regardless of the application of any procedure or minima in this order."

This:

"Pilots are required to abide by CFRs"

Your first question:

"And how is it that you are able to determine with such certainty what was in the minds of the people who wrote it?"

Because they wrote clearly and distinctly in simple English.

These circumstances:

"If you're flying VFR in controlled airspace, you may be asked ATC to do things you can't safely or legally do."

Your second question:

"In other words, how can you be SO sure that they intended it to apply only in the circumstances you cite?"

I said nothing like that. The NOTE from FAAO 7110.65 tells controllers pilots have to adhere to the FARs so if issued an instruction that would require them to violate an FAR they can't be expected to comply with the instruction.

 

[Palmpilot]

The NOTE from FAAO 7110.65 tells controllers pilots have to adhere to the FARs so if issued an instruction that would require them to violate an FAR they can't be expected to comply with the instruction.

That's your interpretation of it.

 

[roncachamp]

That's your interpretation of it.

There's nothing open to interpretation.

 

[Palmpilot]

There's nothing open to interpretation.

14 CFR 91.123(b) is like that.

And yet you persist in interpreting it as if it said "..except instructions that are not authorized in FAA Order 7110.65."

 

[roncachamp]

14 CFR 91.123(b) is like that.

And yet you persist in interpreting it as if it said "..except instructions that are not authorized in FAA Order 7110.65."

You've lost track of the conversation. We're talking about the NOTE in FAAO 7110.65 here, not FAR 91.123(b).

 

[Palmpilot]

You've lost track of the conversation. We're talking about the NOTE in FAAO 7110.65 here, not FAR 91.123(b).

I'm returning to one of the issues that was raised by the opening post in this thread, and which you have rather extensively participated in discussing, i.e., whether the regulations require pilots on VFR flights to obey altitude assignments or restrictions issued by ATC when they are in Class E airspace.

If you don't want to talk about 14 CFR 91.123(b), no one can compel you to, but I'm saying that in the absence of an emergency, that regulation requires pilots to obey ATC instructions whether FAAO 7110.65 authorizes those instructions or not. It is clearly written and doesn't state any exceptions other than emergencies. Similar to what you said of the 7110.65 note you quoted, "There's nothing open to interpretation" in 14 CFR 91.123(b). I certainly don't think that the authors of that regulation intended for pilots to make determinations of which instructions are authorized by 7110.65 and which are not, nor to then disobey ATC instructions based on those determinations.

 

[poadeleted20]

14 CFR Part 91 tells pilots what to do. FAAO 7110.65 tells controllers what to do. While the information in 7110.65 may be interesting or helpful or useful to a pilot, it is not governing for a pilot. At the end of the day, the pilot must obey the flight rules in Part 91 as they are written there, regardless of what the controllers are told in 7110.65 about what controllers are supposed to do. 14 CFR 91.123(a) does not give the pilot latitude to negotiate with controllers once an instruction is given, nor does it allow the pilot to pick and choose which instructions to obey based on the pilot's interpretation of 7110.65. This was made clear by the FAA and NTSB in Ellis and the other cases listed above, and I've yet to see any case which says otherwise.

 

[SkyHog]

14 CFR Part 91 tells pilots what to do. FAAO 7110.65 tells controllers what to do. While the information in 7110.65 may be interesting or helpful or useful to a pilot, it is not governing for a pilot. At the end of the day, the pilot must obey the flight rules in Part 91 as they are written there, regardless of what the controllers are told in 7110.65 about what controllers are supposed to do. 14 CFR 91.123(a) does not give the pilot latitude to negotiate with controllers once an instruction is given, nor does it allow the pilot to pick and choose which instructions to obey based on the pilot's interpretation of 7110.65. This was made clear by the FAA and NTSB in Ellis and the other cases listed above, and I've yet to see any case which says otherwise.

Thank you Ron. I have no idea how people are having a hard time understaning this. Pilots follow the FARs. The FAR says you must obey ATC.

Controllers follow some 710xx.something1556 or something. There is nothing in there for pilots to know. So why should we care what a valid instruction is?

 

[roncachamp]

If you don't want to talk about 14 CFR 91.123(b), no one can compel you to, but I'm saying that in the absence of an emergency, that regulation requires pilots to obey ATC instructions whether FAAO 7110.65 authorizes those instructions or not. It is clearly written and doesn't state any exceptions other than emergencies. Similar to what you said of the 7110.65 note you quoted, "There's nothing open to interpretation" in 14 CFR 91.123(b). I certainly don't think that the authors of that regulation intended for pilots to make determinations of which instructions are authorized by 7110.65 and which are not, nor to then disobey ATC instructions based on those determinations.

You feel the authors of that regulation want pilots to adhere to instructions they don't want controllers to issue. That's absurd.