ATC Authority Over VFR in Controlled Airspace

[poadeleted20]

Thanks for that information, McFly. Based on your post, I would agree that it appears possible the controller may have overstepped his authority by "ordering" her to land, but there are appropriate channels for review of that event, and I'll wait to see what they say, since there may be more which happened behind the scenes than we know. At the same time, 7110.65 says in the quote I posted above, "Controllers are required to be familiar with the provisions of this order that pertain to their operational responsibilities and to exercise their best judgment if they encounter situations not covered by it." Not knowing all the events which led up to the "order to land," or what may have happened in the facility behind the controller, I don't think we have enough facts to determine whether that controller's action (or that of anyone else who may have been involved in the decision) in this situation (which likely was not covered by the provisions of that order) was appropriate or not.

 

[poadeleted20]

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).

I will note that I have seen a sub-zero altitude on my properly-functioning altimeter in flight -- flying down Death Valley in an A-6 Intruder about 40 years ago.

 

[Velocity173]

Thanks for that information, McFly. Based on your post, I would agree that it appears possible the controller may have overstepped his authority by "ordering" her to land, but there are appropriate channels for review of that event, and I'll wait to see what they say, since there may be more which happened behind the scenes than we know. At the same time, 7110.65 says in the quote I posted above, "Controllers are required to be familiar with the provisions of this order that pertain to their operational responsibilities and to exercise their best judgment if they encounter situations not covered by it." Not knowing all the events which led up to the "order to land," or what may have happened in the facility behind the controller, I don't think we have enough facts to determine whether that controller's action (or that of anyone else who may have been involved in the decision) in this situation (which likely was not covered by the provisions of that order) was appropriate or not.

I agree. Listening to the tape it sounded like a simple PD but maybe there's something else we don't know about. She did have a suspicious foreign accent. Also judging by how clueless the pilot sounded I'm sure she didn't file any complaint on the matter. If the controller didn't log it as anything, the whole episode was probably swept under the rug.

 

[wsuffa]

I agree. Listening to the tape it sounded like a simple PD but maybe there's something else we don't know about. She did have a suspicious foreign accent. Also judging by how clueless the pilot sounded I'm sure she didn't file any complaint on the matter. If the controller didn't log it as anything, the whole episode was probably swept under the rug.

Listening to it again, he noted "four possible pilot deviations".

 

[mikea]

Unfortunately my aircraft's not capable...crappy Narcos.

My TKMs can do it but I'm not going to monitor full time. I can only enter one primary and standby freq in each radio and I'm not taking one radio out just to listen to 121.5.

Besides, when I transmit while monitoring #2 I get feedback in my headset.

 

[MAKG1]

I will note that I have seen a sub-zero altitude on my properly-functioning altimeter in flight -- flying down Death Valley in an A-6 Intruder about 40 years ago.

You would have had to have been at 150 AGL or less for that.

Death Valley isn't the only place you'll see that. There are several airports in Imperial and Riverside Counties below sea level. KTRM and El Centro NAS come to mind.

 

[poadeleted20]

You would have had to have been at 150 AGL or less for that.

That is correct -- a good bit lower, as I remember. I think the pressure altimeter was showing more than (less than?) 100 below sea level and the RA was in double digits.

 

[Palmpilot]

Listening to it again, he noted "four possible pilot deviations".

Maybe it was "for possible pilot deviations."

 

[wsuffa]

Maybe it was "for possible pilot deviations."

Either way, it is plural.

 

[Ghery]

I will note that I have seen a sub-zero altitude on my properly-functioning altimeter in flight -- flying down Death Valley in an A-6 Intruder about 40 years ago.

And I've seen an airport in Israel that would make your flight down Death Valley seem downright high altitude. Of course, the one I'm thinking of is along the Dead Sea.

 

[slacktide]

I'm not familiar with the event involving the unlicensed helicopter pilot.

I heard that ATC shouted "Hogg, get away from that thing!"

 

[flibmeister]

FWIW, years ago while working the tower, I "ordered" a student pilot to land. At O'Hare.

It was a Cessna 150 that flew over and then started circling over the airport, nordo. The pilot of an airliner she swished got the N-number, we started making phone calls, figured out that the airplane belonged to an FBO in Madison, Wisconsin. Called there, they said it was a student that was supposed to be going to Milwaukee Timmerman.

Dialed up the frequency for Timmerman Tower on our emergency transceiver, and she was on it. She'd been wandering around for quite a while, was obviously way over her head, and I was worried about her fuel status-- so I told her she needed to land, rather than try to find Timmerman. I think she just wanted to be on the ground, so didn't resist much.

After she landed, I lost radio contact with her (turned out, she changed to the frequency for Timmerman Ground) and just watched while she pulled in between concourses and eventually parked at one of the Eastern gates (that tells you how long ago this was...). I sent a CFI/controller to meet her, he got in the airplane with her, taxied over to Butler to get some fuel, then flew her back to Madison. I'd flown to work that day, so as soon as I got relieved from position, I flew up to Madison to bring him back.

What were the ramifications? Don't know. We had to make an entry in the tower log about it, which eventually went to GADO (now FSDO). But beyond that, we didn't fill out any paperwork and never heard another word about it. I can't even imagine the brouhaha that would result if such a thing were to happen today...

 

[ClimbnSink]

I'm seeing a trend here and it has changed my opinion. I have no problem with atc ordering female pilots to land.

 

[JeffDG]

I do remember reading in some NTSB case or another that (paraphrasing) they do not second guess ALJ determinations of fact.

Not just the NTSB. In general, courts will rarely readdress determinations of fact made below them.

 

[airguy]

I'm seeing a trend here and it has changed my opinion. I have no problem with atc ordering female pilots to land.

"Caution!! Terrain!! Terrain!! Pull up!! Pull up!!"

 

[dell30rb]

Why didn't YOU just turn without being prompted? You said you were at 3000' so were you IFR?

VFR. How did I know which way to turn? I couldn't see the plane. Only the general heading "southbound" of the traffic was reported to me. Until the controller told me that the targets were expected to merge, I didn't know action was needed. Many times i've had traffic called to me at 2-3miles and don't see it. I reply "not in sight" (keep looking) and next thing I hear is "traffic no factor".

In this case "traffic no factor" was replaced with "targets expected to merge" with no avoidance suggestions and I couldn't see the target. I mean I could have done a quick wingover but I would prefer not to be doing aerobatics with unknown traffic very close by. Better to fly straight and look where i'm going, you know.

 

[Palmpilot]

FWIW, years ago while working the tower, I "ordered" a student pilot to land. At O'Hare.

It was a Cessna 150 that flew over and then started circling over the airport, nordo. The pilot of an airliner she swished got the N-number, we started making phone calls, figured out that the airplane belonged to an FBO in Madison, Wisconsin. Called there, they said it was a student that was supposed to be going to Milwaukee Timmerman.

Dialed up the frequency for Timmerman Tower on our emergency transceiver, and she was on it. She'd been wandering around for quite a while, was obviously way over her head, and I was worried about her fuel status-- so I told her she needed to land, rather than try to find Timmerman. I think she just wanted to be on the ground, so didn't resist much.

After she landed, I lost radio contact with her (turned out, she changed to the frequency for Timmerman Ground) and just watched while she pulled in between concourses and eventually parked at one of the Eastern gates (that tells you how long ago this was...). I sent a CFI/controller to meet her, he got in the airplane with her, taxied over to Butler to get some fuel, then flew her back to Madison. I'd flown to work that day, so as soon as I got relieved from position, I flew up to Madison to bring him back.

What were the ramifications? Don't know. We had to make an entry in the tower log about it, which eventually went to GADO (now FSDO). But beyond that, we didn't fill out any paperwork and never heard another word about it. I can't even imagine the brouhaha that would result if such a thing were to happen today...

Considering how far she was from her home base, I can see why you were concerned about her fuel state. It seems like the situation could be considered an emergency, and it sounds like you handled it well. I'd say you "went the extra mile," but in this case, it was several hundred miles! Your account shows that it's hard to prescribe a course of action that will be right for every scenario. Thanks for providing additional insight.

 

[mikea]

I have a book by a controller, something like "A controllers view of pilots."

He had an old pilot call, guy had his wife and another couple in the plane and was flying to get dinner. He kept saying he wanted to fly somewhere to get dinner. He wandered around the sky and pretty much talked in circles.

The controller said, he went off air said into the recorder, "This is Xxxxx, ID nnnn I am declaring an emergency for Cessna nnnn."

"Cessna nnnnn, fly heading 230 for your departure airport, 2-2 miles, and land."

He says the pilot was relieved that somebody made a decision for him.

 

[roncachamp]

So you think that what the Chief Counsel says is true wasn't true until he said it?

You really think it lacks legal force?

I do.

 

[poadeleted20]

I do.

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).

 

[RotorAndWing]

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).

Warned by who? A flight instructor from Maryland? Let's take it a step further, a flight instructor from Maryland with no legal credentials??

Jeez...............

 

[EdFred]

Warned by who? A flight instructor from Maryland? Let's take it a step further, a flight instructor from Maryland with no legal credentials??

Jeez...............

 

[roncachamp]

I think we've established two important things. One, you must comply with ATC instructions in airspace they have responsibility for. The example (Administrator v Ellis) is a class D so that's a no brainier. We've also established that IF CAPABLE we are required to monitor 121.5. Are we really saying that if I'm flying around minding my own business in class E ATC has the authority to call me up on Guard so that they can issue instructions to me? Have we forgotten FF or "basic radar services" is an option in class E? That's the whole reason why you dont even need a radio in class E. There's no requirement to talk to anyone. ATC can yap all day long on Guard to try and get a hold of me but if I don't have the capability or I don't have a radio they'll be talking to themselves.

The class of airspace is irrelevant in the Ellis case. The ATC instructions he chose to ignore were issued to effect spacing and runway separation at a towered field, he'd have been in violation of 91.123(b) even if the field had been in Class G airspace. Note that all of the instructions issued to Ellis were entirely consistent with Order JO 7110.65.

FF is my option as I choose, not something ATC can enforce on me. If I so choose the option and they give me instructions, then yes, I'll comply with them. If I don't like the instructions I can terminate FF. In class D, C or B I don't have that option.

But would you still comply with those instructions? If not, why not?

 

[roncachamp]

So if the Feds want to order me to fly whatever vector, etc does that mean they are also taking the responsibility for the expenses or damages from said orders?

Authority and responsibility are inseparable, except perhaps for the FAA.

What became ARSAs, and then Class C airspace under airspace reclassification, was tested in Austin, TX, and Columbus, OH. An Austin controller assigned headings to two VFR aircraft that then collided while on those headings. The cause of the collision was determined to be the failure of the pilots to see and avoid.

 

[poadeleted20]

Warned by who? A flight instructor from Maryland? Let's take it a step further, a flight instructor from Maryland with no legal credentials??

Jeez...............

Actually, by the United States Court of Appeals, since he's been referred to the case law on point before. See Administrator v. Merrell, 190 F.3d 571 (D.C. Cir. 1999), Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 147, 150-57 (1991), et alia. You don't need to be a lawyer to understand the plain language in those cases -- the Federal courts give deference to a Federal agency's own interpretations of its own regulations, and it takes a lot of convincing before the Court of Appeals to get such interpretations overturned.

Some pilots think that the Pilot's Bill of Rights somehow changes all that, and they are wrong. While the NTSB is no longer statutorily required to give such deference, that deference as described in Martin remains the standard before the Federal courts. Note that per Martin, even if deference was not statutorily required, the court might well have given deference in Merrell to the Administrator's interpretation as it did in deferring to the Secretary of Labor's interpretation over the OSHRC's in a very similar situation (separate board reviewing a department's interpretation -- with no statutory deference involved).

I realize that since I'm not an attorney-at-law, this is not legal advice, and you can choose not to believe me. However, the Court's words are their for you to read for yourself. If Steven chooses not believe the Court, and acts on that disbelief, he puts himself at legal risk -- a fact which any real attorney will confirm.

 

[roncachamp]

If a controller orders you to do something for safety reasons, the expense of the extra time you spend in the air is not injury or damage as the law defines it, and it never was even before this interpretation.

What about controller orders when safety is not an issue?

 

[poadeleted20]

What about controller orders when safety is not an issue?

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

f a pilot is communicating with ATC and ATC issues an
instruction, the pilot must comply with that instruction.

I suspect that is so there is no argument by the pilot that s/he felt that safety was not compromised by his/her refusal to obey the instruction, but that's just a guess. However, my guess is based on the oft-stated position of the FAA and NTSB that they do not want pilots to delay complying with instructions or clearances in order to argue, debate, or negotiate with controllers when the controller issues a clearance or instruction. For example, from 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. For example, in Administrator v. McGuire, 4 NTSB 1824 (1984), we stated as follows:

Instructions from ATC are not matters subject to negotiation or bargaining which have the effects of monopolizing the radio frequency and interfering with ​

the controller giving an appropriate degree of attention to other aircraft under his control. Timely response to ATC instructions, and continuing adherence to clearances, are essential to the functioning of the ATC system and its purpose of providing safe traffic separation.
​

Id. at 1827 (footnote omitted). We reiterated this principle in Administrator v. Jesch, 7 NTSB 1256, 1257 (1991), in which we found that an operator’s concern for traffic in a certain location did not justify his refusal to comply with an ATC instruction. We have adhered to this standard of stringent compliance with ATC instructions in a number of cases. See, e.g., Administrator v. McKinley, 7 NTSB 798, 800 (1991); Administrator v. Degan, 1 NTSB 1904, 1907 (1972).

 

[ClimbnSink]

Pilots are pansy dorks(except for some of the drunk ones.)

 

[roncachamp]

I'll respond in the spirit of the comment

I think that would be fair. They can even give you the option. You can do wtf you please and pay for the expenses or damages for the delay and damage you cause by not complying and to another aircraft that is spending 100X more than you on fuel or carry blood or body parts for transplant or on a medical charity mission.

You're welcome to base your comment on the assumption that ATC will do this to you to get some jollies and your personal expense. I'll base mine on ATC being generally reasonable people doing a job and finding a reasonable need for prioritization and separation.

I suppose there are people who object to valid ATC instructions, those that are issued in accordance with Order JO 7110.65, but I'm confident there aren't many. The issue is instructions that violate the order, instructions that the FAA does not want controllers to issue.

 

[poadeleted20]

I suppose there are people who object to valid ATC instructions, those that are issued in accordance with Order JO 7110.65, but I'm confident there aren't many. The issue is instructions that violate the order, instructions that the FAA does not want controllers to issue.

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.

 

[azure]

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.

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?

 

[jbarrass]

Some pilots think that the Pilot's Bill of Rights somehow changes all that, and they are wrong. While the NTSB is no longer statutorily required to give such deference, that deference as described in Martin remains the standard before the Federal courts.

I disagree. I believe courts actually read the law and when the law changes they take it seriously. I suppose it does remain the standard until it is challenged and re-litigated (hopefully by someone with time and money) but the PBOR most certainly did change it.

Note that per Martin, even if deference was not statutorily required, the court might well have given deference in Merrell to the Administrator's interpretation as it did in deferring to the Secretary of Labor's interpretation over the OSHRC's in a very similar situation (separate board reviewing a department's interpretation -- with no statutory deference involved).

They may very well come to the same conclusion but I believe they will use the judgment they are required to. I suspect the FAA's counsel will win many of these because they generally are right but I'd give a little more allowance for the Judges respect for the law as written

 

[roncachamp]

I really don't understand the big deal with the letter. It specifically states that you're not required to communicate with them but if you do then you have to comply with what they say. Who cares?

Those who understand controllers sometimes say things they're not supposed to. The letter does not differentiate between those things and instructions controllers are authorized to issue.

This has been in effect for quite some time now. As I said I've had ATL App assign me vectors in E and when I got tired of her I terminated. Pretty simple. Just like on many occasions when ATC won't work me through a MOA and want me to go around to continue to use FF. If it takes me significantly out of my way, well I terminate. Don't get me wrong I enjoy having basic radar services but it is still my right to refuse it and the letter doesn't change that.

Do you get a "resume own navigation", or a reasonable facsimile thereof, before leaving the frequency?

 

[roncachamp]

I don't think there's one word that needs to be revised. ATC has always given instructions to pilots using Flight Following in Class E airspace when operational considerations made it a good idea. I can't count the number of times I've gotten a Class E instruction to turn or climb or descent for traffic when near some routing being used for and approach or departure to or from a busy airport. It's only VFR pilots who came up with the idea that those instructions don't apply to them.

Not all ATC. There are still some controllers that provide service in accordance with Order JO 7110.65.

 

[roncachamp]

I'm not really understanding the argument here. Last I checked class E is controlled airspace - Isn't it the expectation to comply with vectors or altitude assignments when on FF? If i contact the approach controller to utilize his services, I'm putting myself in the system and I'm going to listen what papa has to say. I'm not seeing why this is an issue to even debate.

Shouldn't be. The assignment of vectors or altitudes to VFR aircraft in areas where ATC has no responsibility for the separation of VFR traffic is a violation of Order JO 7110.65 Air Traffic Control.

 

[poadeleted20]

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.

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.

 

[roncachamp]

That's your interpretation. The FAA and the NTSB seem to think otherwise. I think the first paragraph of that manual says it all:

Controllers are required to be familiar with the provisions of this order that pertain to their operational responsibilities and to exercise their best judgment if they encounter situations not covered by it.

If in the controller's best judgment safety requires the issuance of an instruction to a VFR aircraft in the controlled airspace over which that controller has jurisdiction, the controller can (and in my experience, will) issue appropriate instructions even if the situation is not addressed by 7110.65. As is made clear in that very short and direct Chief Counsel letter, you disobey those instructions at your own legal risk unless an emergency situation dictates otherwise.

But this is not a situation that is not covered by the order, it is in fact covered quite thoroughly and clearly. Paragraph 2−1−21. TRAFFIC ADVISORIES states:

"When requested by the pilot, issue radar
vectors to assist in avoiding the traffic, provided the
aircraft to be vectored is within your area of
jurisdiction or coordination has been effected with
the sector/facility in whose area the aircraft is
operating."

Paragraph 2−1−6. SAFETY ALERT states:

"Issue a safety alert to an aircraft if you are aware the
aircraft is in a position/altitude that, in your judgment,
places it in unsafe proximity to terrain, obstructions,
or other aircraft.

"NOTE-
3. Once the alert is issued, it is solely the pilot’s
prerogative to determine what course of action, if any, will
be taken.

"b. Aircraft Conflict/Mode C Intruder Alert.
Immediately issue/initiate an alert to an aircraft if you
are aware of another aircraft at an altitude that you
believe places them in unsafe proximity. If feasible,
offer the pilot an alternate course of action.

"PHRASEOLOGY−
TRAFFIC ALERT (call sign) (position of aircraft) ADVISE
YOU TURN LEFT/RIGHT (heading),

and/or

CLIMB/DESCEND (specific altitude if appropriate)
IMMEDIATELY.

EXAMPLE−
“Traffic Alert, Cessna Three Four Juliet, advise you turn
left immediately.”

or

“Traffic Alert, Cessna Three−Four Juliet, advise you turn
left and climb immediately.”


Paragraph 5−6−1. APPLICATION states:

Vector aircraft:

g. Operating VFR at those locations where a
special program is established, or when a pilot
requests, or you suggest and the pilot concurs.

 

[poadeleted20]

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.

 

[Velocity173]

Those that understand controllers sometimes say things they're not supposed to. The letter does not differentiate between those things and instructions controllers are authorized to issue.



Do you get a "resume own navigation", or a reasonable facsimile thereof, before leaving the frequency?

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?

 

[roncachamp]

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.

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.