Advise prior to altitude change:

[Palmpilot]

For those with a LOT of time on their hands, this argument has been going on a long time.

http://www.pilotsofamerica.com/forum/showthread.php?p=560566#post560566

http://forums.aopa.org/showthread.php?p=1225050#post1225050

(Note: The reference in the second link should have been to 91.123(b), not (c).)

 

[roncachamp]

So here's a scenario... Controller issues an inappropriate instruction to you as a VFR aircraft in uncontrolled airspace.

You then a) comply first, ask questions later ...

Or b) wait for a break in the busy frequency to play 20-questions with the controller and don't comply...

c) cancel Radar advisories and hope you don't hit the aircraft (s)he's trying to deconflict you from.

Uncontrolled airspace and a busy frequency?

Seriously... It doesn't matter on our end of the radio, Ron. It does for you since you have rules on your side, but...

I'm on both ends of the radio.

If some controller says "Immediate decent" in a high squeaky voice with or without the word "recommend" attached to that phrase, I'm pushing the yoke before (s)he's even un-keyed. I don't care if I'm in uncontrolled airspace and VFR.

We can debate whether or not the controller had the authority to direct me as a VFR pilot to do anything later, on the ground, over a beer I'd be happy to buy him/her.

There shouldn't be any debate on that at this point.

I've definitely heard controllers head wheels grinding trying to say "ahhh... RECOMMEND you do X" because they're trying to meet the letter of the law for VFR Advisories, but I take that as "If you don't enjoy the sound of tearing aluminum and a long fall to your untimely demise..."

Example would be once headed for PHX. Center Controller was stumbling over the "recommend" phraseology to basically tell two of us VFR aircraft that we were essentially almost matching speeds and course into the PHX Bravo and were separated by only 1000' (for the record the other pilot wasn't following the hemispheric rule and we were high enough that he should have been).

It was a C-210 above me and he was slowly overtaking and passing overhead. The controller knew either one of us could start our VFR descents at any time headed into PHX and that'd put the 210 on top of me.

I very much appreciated his warning and I'm sure the 210 pilot did too, whether his "recommendation" to the 210 driver not to change altitude without coordinating with him first was allowed by the controller book or not. (He conversely recommended to me right after that, that I not plan on climbing until the 210 was out front.)

The whole time you could tell he didn't like saying "recommend" and wished he could just issue it as a directive.

Later he let us know our courses were diverging (away from the Victor Airway) because we weren't landing at the same PHX area airport. (210 was headed for DVT, I was headed for GEU.) And of course the magic phrase "traffic no longer a factor".

If he's stumbling over the correct phraseology he needs to work a bit harder at it, or find another job.

 

[spinfire]

Can the controller issue compulsory vectors/altitudes to VFR aircraft in the "Class C Outer Area"?

(For the record, I agree that I'm going to be following the controller's "recommendation" is basically all cases).

 

[JOhnH]

The way I understand Ron's explanation is that "if he issues them" then they are compulsory.

 

[Henning]

Can the controller issue compulsory vectors/altitudes to VFR aircraft in the "Class C Outer Area"?

(For the record, I agree that I'm going to be following the controller's "recommendation" is basically all cases).

I think outer area he's got you for instructions, but I'm not sure on any of it. I can see Roncachamps point. For the record I too, unless it's something stupid and going to waste a bunch of time and gas, I just do it. But I also recall many of those calls coming in as 'suggest', 'request', and 'appreciate'; such as 'Memphis Center, 69SA, 9 thousand five' '69SA Memphis center roger, altimeter 29.96 appreciate you advise prior to altitude change. That's all it takes really, and I recall hearing that kind of phraseology quite a bit flying across lonely country.

 

[Henning]

The way I understand Ron's explanation is that "if he issues them" then they are compulsory.

What hasn't been established is that they get issued. There's no evidence in enforcement action that's applicable because it hasn't come up.

 

[Palmpilot]

Can the controller issue compulsory vectors/altitudes to VFR aircraft in the "Class C Outer Area"?

That's one of the areas where Steven has said that such instructions are compulsory for participating VFR traffic. Same for TRSAs.

One practical problem is that the boundaries of outer areas vary, and they are not charted.

 

[denverpilot]

Uncontrolled airspace and a busy frequency?

Lots and lots of airspace controlled by one person by the Centers out here in the West these days. It's pretty obvious they're stacking them thin when you can tell they're running multiple frequencies.

If he's stumbling over the correct phraseology he needs to work a bit harder at it, or find another job.

Well ya know... Everyone has a bad day from time to time. On my end I can only report on what I hear. When it's full of "ummm... ahhh..." and then the word 'recommend' pops out, I'm making the assumption that's the problem. Maybe he spilled his coffee in his lap.

 

[poadeleted20]

The way I understand Ron's explanation is that "if he issues them" then they are compulsory.

That is how the regulation reads -- no ifs, ands, or buts other than the emergency exception or not being "in an area where air traffic control is exercised," and that's all A, B, C, D, and E space, plus the G-space where there's a tower with no B/C/D/E-space (yes, there are a few, and I suspect that's why they phrased it that way rather than just "in controlled airspace").

 

[poadeleted20]

What hasn't been established is that they get issued. There's no evidence in enforcement action that's applicable because it hasn't come up.

Unless you've done more legal research than I can, it would be more accurate to say none have reached the NTSB. There's no telling what's come up and been adjudicated below that level without Westlaw or Lexis/Nexis access (or the actual books), and I don't have that. In the one case involving this reg for VFR aircraft, it happened in Class D airspace. The NTSB's reasoning (see below) did not limit the application to Class D airspace, so it gives insight into how the Board views this matter, but the case did not involve E or G airspace, so it's not a binding precedent.

What the respondent was not free to do was ignore or defy ATC’s instructions in favor of his own assessment that his aircraft should be accorded landing priority over one he could not find, but whose safety he should have appreciated could be seriously compromised if he did not allow ATC, which had both aircraft in sight, to manage the situation in accordance with its informed appraisal of how best to ensure safe operations within the controlled airspace it is charged with regulating.

Administrator v. Ellis
And, FWIW, this was Mr. Ellis' second case before the Board, the previous having netted him a 30 day suspension, and this one an emergency revocation. Choose wisely the next time a controller issues you an instruction you don't like.

 

[vintage cessna]

I'm retired ATC. I don't mean any disrespect but Cap n Ron is just flat out wrong.

As far as VFR aircraft in class E airspace, with the exception of a national emergency, ATC has no, none, nada, zip, zilch authority over VFR aircraft.

If a VFR pilot is receiving advisories in Class E airspace it only makes sense to advise of an altitude change. However, if a pilot ignores the controllers request to advise of any altitude changes the worst that will happen is the controller terminates service.

 

[Jaybird180]

Everything works in theory, but in practice it isn't practically so.

 

[roncachamp]

Can the controller issue compulsory vectors/altitudes to VFR aircraft in the "Class C Outer Area"?

(For the record, I agree that I'm going to be following the controller's "recommendation" is basically all cases).

Depends on what you mean by "compulsory". In the Outer Area you are presumed to want this service, why else did you contact ATC? But you can be in that area under VFR without contacting ATC.

 

[roncachamp]

Lots and lots of airspace controlled by one person by the Centers out here in the West these days. It's pretty obvious they're stacking them thin when you can tell they're running multiple frequencies.

Well, if it's controlled by one person, it can't be uncontrolled airspace.

 

[roncachamp]

That is how the regulation reads -- no ifs, ands, or buts other than the emergency exception or not being "in an area where air traffic control is exercised," and that's all A, B, C, D, and E space, plus the G-space where there's a tower with no B/C/D/E-space (yes, there are a few, and I suspect that's why they phrased it that way rather than just "in controlled airspace").

Let's be accurate here. That's how one CFI with no training or experience in Air Traffic Control interprets the regulation.

 

[roncachamp]

Unless you've done more legal research than I can, it would be more accurate to say none have reached the NTSB. There's no telling what's come up and been adjudicated below that level without Westlaw or Lexis/Nexis access (or the actual books), and I don't have that. In the one case involving this reg for VFR aircraft, it happened in Class D airspace. The NTSB's reasoning (see below) did not limit the application to Class D airspace, so it gives insight into how the Board views this matter, but the case did not involve E or G airspace, so it's not a binding precedent.


Administrator v. Ellis
And, FWIW, this was Mr. Ellis' second case before the Board, the previous having netted him a 30 day suspension, and this one an emergency revocation. Choose wisely the next time a controller issues you an instruction you don't like.

Note that in the Ellis case, which Levy relies upon to support his assertion that pilots are required to adhere to invalid ATC instructions, all of the instructions issued by ATC were entirely valid.

 

[vintage cessna]

Unfortunately, there is no regulatory support to that argument, nor anything in any FAA Order to that effect. It's all something sprung from his own mind fully formed, like Athena from Zeus. Given the lack of anything in writing along with the number of times I have received such instructions under such circumstances, either every other controller in the country is routinely breaking the rules, or roncachamp is wrong. Occam's Razor, anyone?

In any event, the issue here is the rules applicable to pilots, not controllers, and there is nothing limiting 91.123(b ) to "valid" instructions, nor, short of an emergency, authorizing pilots to make such determinations before deciding whether or not to comply.

Controllers are required to know the limits of their authority and what they can and can not instruct a pilot to do.

The case you have cited to support your argument is not relevant to this discussion.

 

[vintage cessna]

I think it's illogical to assume that the FAA wants pilots to decide which instructions to obey based on the controllers' manual.

There is nothing in the controllers manual (FAA Order 7110.65) that is contrary to any FAR.

You will note that any airspace where ATC can issue mandatory instructions to VFR pilots , by regulation requires the VFR pilot to be in communication with ATC. It is absurd to somehow conclude that ATC can issue mandatory instructions to VFR pilots in airspace where a radio is not even required equipment.

BTW, I never requested a VFR pilot receiving advisories to report altitude changes, unless the aircraft wasn't equipped with mode c. It would just create unwanted frequency congestion.

 

[Palmpilot]

I've fully stated my views on this in the other threads for which I provided links, and I don't see any point in repeating myself. For now, I'll just say that there are controllers who are in fact giving such instructions, and I don't consider it to be my responsibility to correct them.

 

[DouglasBader]

The premise is that you are using flight following. That is an ATC service. If you request the service you are required to follow instructions. If you don't want to, don't use FF. Kinda simple.

You're familiar, of course, with "flight following," or more accurately, VFR Radar Advisories, in which one is a voluntary recipient of radar advisories from ATC, on a workload-permitting basis. This is not ATC control, and one is NOT subject to ATC instruction by virtue of receiving radar advisories.

In other words, simply because one requests "flight following" does not obligate one to accept, adhere to, or follow ATC instructions. VFR radar advisories are not a control function, but a service generously provided by ATC on a workload-permitting basis. ATC does not issue instructions to aircraft operating under VFR on flight following, nor is the aircraft under any obligation to react.

For now, I'll just say that there are controllers who are in fact giving such instructions, and I don't consider it to be my responsibility to correct them.

It's also not your responsibility to follow those instructions.

 

[Jim Logajan]

That is how the regulation reads -- no ifs, ands, or buts other than the emergency exception or not being "in an area where air traffic control is exercised," and that's all A, B, C, D, and E space, plus the G-space where there's a tower with no B/C/D/E-space (yes, there are a few, and I suspect that's why they phrased it that way rather than just "in controlled airspace").

At least one court seems to have quoted 91.123 such that it seems to treat paragraph (a) of it is a necessary prerequisite to determining the "area where air traffic control is exercised."

http://mo.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19731212_0000071.EMO.htm/qx

(Even the FAA was trying to argue their instructions in that case were advisory!)

But the judge seemed to feel the need to quote (a) prior to (b). The other thing to consider is that the regulation specifically DOES NOT say "Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in controlled air space." Clearly they could have written that if that was the intent - it is both shorter and "controlled air space" is more clearly defined. Controlled airspace may be a prerequisite, but it appears it was not intended to be sufficient.

I would think, based on a reading of that case and some others that aren't entirely relevant here, that the FAA would rather not have flight following treated as an exercise of air trafic control, lest it find itself liable for all those flights (when it chooses to allow itself to be sued.)

 

[Henning]

Choose wisely the next time a controller issues you an instruction you don't like.

Listening closely to whether the controller phrases it as an instruction or advisory will also be on the agenda.

 

[poadeleted20]

But the judge seemed to feel the need to quote (a) prior to (b). The other thing to consider is that the regulation specifically DOES NOT say "Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in controlled air space." Clearly they could have written that if that was the intent - it is both shorter and "controlled air space" is more clearly defined. Controlled airspace may be a prerequisite, but it appears it was not intended to be sufficient.

I've already explained why it says "an area in which air traffic control is exercised" rather than "controlled airspace" -- because there are areas outside controlled airspace where air traffic control is exercised. Controlled airspace is the area where posititive separation is provided to IFR aircraft, but air traffic control is exercised in some Class G airspace, too i.e., towers in Class G airspace. If 91.123(b) read "controlled airspace," the FAA could not enforce pilot compliance with instructions from those towers.

 

[poadeleted20]

Listening closely to whether the controller phrases it as an instruction or advisory will also be on the agenda.

"IFR Traffic, 12 o'clock, eight miles, opposite direction, 500 below" is an advisory. "Advise prior to any altitude change" is not an advisory, it is an instruction, even if the word "advise" is in it.

 

[vintage cessna]

"IFR Traffic, 12 o'clock, eight miles, opposite direction, 500 below" is an advisory. "Advise prior to any altitude change" is not an advisory, it is an instruction, even if the word "advise" is in it.

You have certainly opened my eyes. I guess VFR pilots may want to think twice before contacting ATC for FF . You may find yourself subject to a enforcement action because you failed to comply with an instruction.

 

[roncachamp]

But the judge seemed to feel the need to quote (a) prior to (b). The other thing to consider is that the regulation specifically DOES NOT say "Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in controlled air space." Clearly they could have written that if that was the intent - it is both shorter and "controlled air space" is more clearly defined. Controlled airspace may be a prerequisite, but it appears it was not intended to be sufficient.

Had it been written that way it wouldn't cover instructions to insure runway separation and sequencing issued by control towers in uncontrolled airspace.

 

[Palmpilot]

You have certainly opened my eyes. I guess VFR pilots may want to think twice before contacting ATC for FF .

Especially if they don't want to receive ATC instructions.

You may find yourself subject to a enforcement action because you failed to comply with an instruction.

It's hard to say. No one seems to know of such cases arising out of flight following. (The applicability of the Ellis case to flight following is disputed.) Of course, "There's a first time for everything."

 

[Jaybird180]

Okay folks this is all fun and games in an online forum, but I think the standard of reasonable and prudent action would rule the day. If ATC says go left to avoid traffic conflict and you do it not, then they could violate you with other regulations, no need to challenge an obsure and argumentative (and nonexistent) disobedience statute. These are FARs not Articles of the UCMJ.

If on the other hand, they command you to do something ridiculous (ie turn off your landing lights, you're disturbing the wildlife) and common sense says they have no authority in such matters, then you as PIC always reserve the right to say kiss my *** "unable".

 

[Henning]

Okay folks this is all fun and games in an online forum, but I think the standard of reasonable and prudent action would rule the day. If ATC says go left to avoid traffic conflict and you do it not, then they could violate you with other regulations, no need to challenge an obsure and argumentative (and nonexistent) disobedience statute. These are FARs not Articles of the UCMJ.

If on the other hand, they command you to do something ridiculous (ie turn off your landing lights, you're disturbing the wildlife) and common sense says they have no authority in such matters, then you as PIC always reserve the right to say kiss my *** "unable".

The question is one of midpoints though, where do you draw the line? What if he tells me to turn left to drive around a class B when I intend to slip under?

 

[Palmpilot]

It's also not your responsibility to follow those instructions.

I doubt that you're going to be able to settle a long-standing argument that easily!

Even if you're right, in my judgment as PIC, deciding which instructions to obey and which to disobey based on which airspace I'm in is an unnecessary increase in workload, and an unnecessary distraction from safety-related duties.

 

[Henning]

"IFR Traffic, 12 o'clock, eight miles, opposite direction, 500 below" is an advisory. "Advise prior to any altitude change" is not an advisory, it is an instruction, even if the word "advise" is in it.

"Request you advise prior to any altitude change" changes things though.

 

[roncachamp]

Okay folks this is all fun and games in an online forum, but I think the standard of reasonable and prudent action would rule the day. If ATC says go left to avoid traffic conflict and you do it not, then they could violate you with other regulations, no need to challenge an obsure and argumentative (and nonexistent) disobedience statute. These are FARs not Articles of the UCMJ.

What other regulations could they violate me with?

 

[Jaybird180]

"Request you advise prior to any altitude change" changes things though.

I see what you mean now:

What if the request came from an inept or task saturated controller? I think we agree that you're not obligated to obey the 1st guy (or are we) what about the controller that's handling too much traffic in his sector? Do his "advisories" then become safety mandates?

 

[Jaybird180]

What other regulations could they violate me with?

No pilot shall operate an aircraft in proximity to or on a course relative to other aircraft so as to create a collision hazard.


Just because you didn't know there was traffic there does not excuse the action. You couldn't see it, but the guy staring at a radar screen saw it and informed you. If you chose to ignore it, then it's on your head.

 

[Henning]

I doubt that you're going to be able to settle a long-standing argument that easily!

Even if you're right, in my judgment as PIC, deciding which instructions to obey and which to disobey based on which airspace I'm in is an unnecessary increase in workload, and an unnecessary distraction from safety-related duties.

99% of the time the best result will come from simple compliance. You gotta remember though, ATC will let you fly into the side of a mountain if you really want to lol. They aren't in the plane, they aren't looking out the windows and errors in the system do happen.

In the end though, it's your command.

 

[vintage cessna]

Okay folks this is all fun and games in an online forum, but I think the standard of reasonable and prudent action would rule the day. If ATC says go left to avoid traffic conflict and you do it not, then they could violate you with other regulations, no need to challenge an obsure and argumentative (and nonexistent) disobedience statute. These are FARs not Articles of the UCMJ.

If on the other hand, they command you to do something ridiculous (ie turn off your landing lights, you're disturbing the wildlife) and common sense says they have no authority in such matters, then you as PIC always reserve the right to say kiss my *** "unable".

If you are VFR in class E and the controller instructs you to turn left for traffic, the controller has not been doing his/her job, traffic should have been called already.

Should you comply with that instruction? If you don't see the traffic, it's a crap shoot. I've seen many panic calls by controllers that actually made the situation worse. You are not violating any regulation by not complying with that instruction. The controller is violating ATC rules by issuing that vector.

 

[vintage cessna]

Especially if they don't want to receive ATC instructions.



It's hard to say. No one seems to know of such cases arising out of flight following. (The applicability of the Ellis case to flight following is disputed.) Of course, "There's a first time for everything."

Odd, isn't it, that after decades of VFR pilots interacting with ATC in class E airspace, not a single record of an enforcement action against a VFR pilot in class E for failing to comply with an ATC instruction.

 

[roncachamp]

I see what you mean now:

What if they request came from an inept or task saturated controller? I think we agree that you're not obligated to obey the 1st guy (or are we) what about the controller that's handling too much traffic in his sector? Do his "advisories" then become safety mandates?

Do you mean safety alert? Order JO 7110.65 Air Traffic Control makes it very clear that safety alerts are issued as advisories only and that once the alert is issued it is completely up to the pilot to determine what course of action is to be taken. See paragraph 2−1−6. SAFETY ALERT.

 

[spinfire]

In other words, simply because one requests "flight following" does not obligate one to accept, adhere to, or follow ATC instructions. VFR radar advisories are not a control function, but a service generously provided by ATC on a workload-permitting basis. ATC does not issue instructions to aircraft operating under VFR on flight following, nor is the aircraft under any obligation to react.

However, as noted above, when providing "Class C Services" the controller can issue binding instructions. And as also noted above the area of "Class C Services" extends beyond the charted Class C airspace. So there is an area of airspace where the controller can issue you instructions which you must obey IF you are talking to them, and talking to them is not mandatory. So if you elect to participate in flight following near Class C airspace areas there is an uncharted area where the controller can give you an instruction ("turn right heading 320") versus a "suggest you turn right 20 degrees for traffic" that Center controllers sometimes give me.

None of this should really concern you as a pilot. It is ATC's issue whether or not they are permitted to give VFR aircraft instructions or just suggestions (and since the Class C outer area is not charted the controller has information you do not regarding whether or not they can issue you instructions).

 

[vintage cessna]

However, as noted above, when providing "Class C Services" the controller can issue binding instructions. And as also noted above the area of "Class C Services" extends beyond the charted Class C airspace. So there is an area of airspace where the controller can issue you instructions which you must obey IF you are talking to them, and talking to them is not mandatory. So if you elect to participate in flight following near Class C airspace areas there is an uncharted area where the controller can give you an instruction ("turn right heading 320") versus a "suggest you turn right 20 degrees for traffic" that Center controllers sometimes give me.

None of this should really concern you as a pilot. It is ATC's issue whether or not they are permitted to give VFR aircraft instructions or just suggestions (and since the Class C outer area is not charted the controller has information you do not regarding whether or not they can issue you instructions).

If you elect to participate, you can also, at a time of your choosing, elect to stop your participation. Simply advise the controller of such. It's not like joining the Mafia, you know.