What would you have done?

N

NotAFlyingBrick

Guest
On May 15, 2009 at approximately 1740Z I was communicating with PHL TRACON frequency 128.4. The transmissions I received on 128.4 were clear and were of adequate volume. The volume and clarity of 128.4 was as good at the transmissions I received from ZNY, ZOB, and PIT TRACON frequencies. When I was approximately 15 miles from my destination, the controller on 128.4 gave me a VFR descent from 7500MSL at pilot’s discretion. I acknowledged the instructions and began my descent to remain clear of the Class Bravo of PHL and to also remain clear of the clouds that were in the vicinity. KLOM (my destination) was reporting clear below 12,000, but the scattered to semi-broken clouds in the area had bases at approximately 4000MSL and tops of approximately 6000-6500MSL. The clouds seemed to run in lines approximately perpendicular to my heading which was 105°-110°, and I planned the descent to cross over one line of clouds and descend below the next line. As I was in my descent to KLOM I was handed off from 128.4 to 128.65, and made my call to the new controller.

Approach frequency 128.65 was very faint, and the clarity was very much lacking in comparison to all the previous frequencies I had been communicating on. While still clear of the Class Bravo I was descending through an opening in the cloud layer and maintaining adequate VFR cloud separation. The line of clouds ahead of me had a U-shape or saddle-shaped opening which would allow me to descend at my current rate and groundspeed without violating the Class Bravo airspace and maintaining VFR minima for cloud clearance. When I descended to 5,500MSL the controller on 128.65 made a very faint transmission to me which I believe stated, “Maintain VFR at or above 4,500.” I do not recall him giving clearance for me to enter the Bravo, which is 4000-7000 in that area, only the maintain VFR instructions. I responded with, “unable,” and stated that the scattered/broken cloud layer was from 3500AGL to 6000MSL.

There was a quick series of transmissions asking if I could accept an IFR clearance into KLOM, which I at first stated I could accept, but did not ask for. I did not have any low-enroute charts or approach plates with me as I was VFR, so I was hesitant to accept any IFR clearance. During this time I was remaining above 4500MSL, but was now unable to maintain VFR cloud clearances for the airspace outside the Bravo. I was in the saddle shaped cutout of the clouds, and any forward progress at this altitude would have penetrated the clouds in front of me, and at 150kts airspeed, any turn to the left or right would not have kept me 2000’ clear of the clouds. I estimate the distance between the clouds was 0.75 miles on either side of me. I then made a transmission to the PHL controller on 126.85 stating I was cancelling radar service, and switching to KLOM frequency. I then noticed that the message light was flashing on my GPS informing me that I was inside PHL’s Bravo airspace. I immediately descended to exit the Bravo and maintain VFR separation minima (the latter of which was accomplished because I was now inside the Bravo).

As I was descending, and not yet switched over to KLOM’s 123.0 frequency, I heard another aircraft state that they had me in sight and that I “looked like a dive-bomber” coming out of the clouds. I assume that the reason for the altitude restriction was to keep me clear of the IFR traffic that was in the clouds, or at least blocked from my view because of the clouds. I descended out of the Bravo, and was now maintaining Class E cloud separation. I completed my flight without further incident and landed at KLOM. All further transmissions on subsequent flights were normal, and acceptable.

How the problem arose: Controller issuing instructions I could not comply with.
Contributing factors: AWOS reporting clear within 10 miles of my position. The controller was unaware of actual sky and cloud conditions in the area. My selection of descent rate and point only provided one option to remain clear of clouds and airspace, and inadequate clarity and volume of transmissions from the controller.
How it was discovered: Notification of airspace penetration by GPS.
Corrective actions: Immediate descent to exit airspace, notification to controller, deviation from previous instructions.
 
I am pretty sure this is the narrative from the ASRS report from the original poster. ;)
 
I do think that considering you did not have the available charts aka all available information, you should not have stated that you could have accepted an IFR clearance. As pilots we want to be accommodating but sometime you just have to say no. This may then have triggered the controller to come up with and start working on another solution.

ATC also asked you to remain VFR. When it became clear that you could not you should also have warned the controller that you had to change altitudes or enter the bravo.

I do not think this is a huge error, I am not sure if you really did have a loss of separation issue. But I do see that part of your actions led to this outcome. You state that what led to this problem was that the controller issued instructions that you could not comply with. Yet by your own admission you stated to ATC that could accept those instructions. Remember the controller cannot tell what is going on in your head nor in your plane so you need to help them out with that information and tell them no if they ask you something that can led to problems.
 
It sounds to me like you reacted appropriately for the circumstances; I have occasionally had to deal with controllers whose workload caused them to either forget to issue the Bravo clearance when their instructions placed me in the Bravo, or whose lack of knowledge of local cloud conditions (obviously, unintentionally) led to an instruction which would cause loss of VFR cloud separation.

I assume you have filed an ASRS (the post reads like one).
 
Not much you could have done differently other than to remember that the Chief Counsel has said you not only can, but are required to, deviate from an ATC instruction from a controller who doesn't own the B-space if that instruction will put you in that B-space unless you are specifically cleared into that B-space (in which case it then becomes the controller's responsibility to coordinate with the controller who owns the B-space). OTOH, if this controller owned the B-space, and instructed you to do something which puts you in that B-space which s/he controls, I believe you could enter that B-space without hearing the exact words "cleared into..." However, that still doesn't authorize you to break VFR mins (which in B-space are merely "clear of clouds") and 91.3(b) authorizes you to deviate from that clearance if necessary to remain VFR and the controller doesn't help when you say "unable." Just keep your eyes open and don't hit anyone.

And file that ASRS report!
 
smigaldi said:
I do think that considering you did not have the available charts aka all available information, you should not have stated that you could have accepted an IFR clearance. As pilots we want to be accommodating but sometime you just have to say no. This may then have triggered the controller to come up with and start working on another solution.

ATC also asked you to remain VFR. When it became clear that you could not you should also have warned the controller that you had to change altitudes or enter the bravo.

I do not think this is a huge error, I am not sure if you really did have a loss of separation issue. But I do see that part of your actions led to this outcome. You state that what led to this problem was that the controller issued instructions that you could not comply with. Yet by your own admission you stated to ATC that could accept those instructions. Remember the controller cannot tell what is going on in your head nor in your plane so you need to help them out with that information and tell them no if they ask you something that can led to problems.
Click to expand...

Depending on the instructions the OP may or may not have been able to accept them. I have gotten a "clearance" before which has basically been, "descend through the clouds, let us know when you are out" I have also gotten them where I expected that, and it was something completely different.
 
I would have been squawking 1200 and would have left the mic. hanging from that little clip on the panel where it belongs.

Hey! You asked...
 
A question which comes to mind -- as described, you were faced with a choice: descent rapidly through a hole in the clouds when you had some idea that there was traffic below, or proceed straight ahead or climb into the bravo airspace.

Did you try asking for a bravo clearance (or simply saying that you required it)? I guess what I'm asking is, once you are in this awkward position, is it safer to proceed into known-clear-of-aircraft-but-restricted airspace than it is to descend through the hole?

I guess I'm asking because it seems that in the SFO bravo it is fairly easy to get a VFR clearance. Is it harder in PHL?

Chris
 
colohan said:
Is it harder in PHL?
Click to expand...
Sometimes it's easy, sometimes it's impossible. However, if they wait until you're almost at the edge before telling you that you can't descend below the lip, you're pretty well cornered. With the amount of traffic they're usually handling, sometimes you can't communicate fast enough to fix it if they lay on a restriction you can't meet.
 
colohan said:
A question which comes to mind -- as described, you were faced with a choice: descent rapidly through a hole in the clouds when you had some idea that there was traffic below, or proceed straight ahead or climb into the bravo airspace.

Did you try asking for a bravo clearance (or simply saying that you required it)? I guess what I'm asking is, once you are in this awkward position, is it safer to proceed into known-clear-of-aircraft-but-restricted airspace than it is to descend through the hole?

I guess I'm asking because it seems that in the SFO bravo it is fairly easy to get a VFR clearance. Is it harder in PHL?

Chris
Click to expand...

The clouds were in the Bravo. It was clear below the Bravo. Had I proceeded at my altitude I would have been IMC and in the Bravo. Had the intial controller on 128.4 kept me at 7500 above all the clouds until the lower IFR traffic was passed and given me clearance into the Bravo I would have remained clear of clouds and could have descended after I was past the last line of clouds. But since no one gave me Bravo clearance early on, I had no real options. Even if they had, I would have had had an overhead spiral down to my destination.

The report has been dropped in the mail.

Also - to clear up the whole accepting an IFR into KLOM - I said I and the plane was IFR certified. If he wanted to give me vectors I could have accepted, but I couldn't hear him for crap, and was pretty sure that I wasn't going to be able to understand the clearance after about the second transmission. He asked if I wanted the IFR clearance, and I said no, I'm cancelling radar, and descending.
 
Last edited:
EdFred said:
The clouds were in the Bravo. It was clear below the Bravo. Had I proceeded at my altitude I would have been IMC and in the Bravo. Had the intial controller on 128.4 kept me at 7500 above all the clouds until the lower IFR traffic was passed and given me clearance into the Bravo I would have remained clear of clouds and could have descended after I was past the last line of clouds. But since no one gave me Bravo clearance early on, I had no real options. Even if they had, I would have had had an overhead spiral down to my destination.

The report has been dropped in the mail.
Click to expand...
So much for anonymity
 
smigaldi said:
So much for anonymity
Click to expand...
He's already posted the ASRS report, so he's no longer liable for sanctions. Of course the FAA could still use this posting as cause to start an investigation and put a finding on his certificate. I don't see anything like that happening here, though.
 
gprellwitz said:
He's already posted the ASRS report, so he's no longer liable for sanctions. Of course the FAA could still use this posting as cause to start an investigation and put a finding on his certificate. I don't see anything like that happening here, though.
Click to expand...
Oh I was not worried about the FAA. I had figured that whomever had posted the OP just wanted to remain nameless to the folks on PoA. Although the user name in the OP was a pretty good give away. ;)
 
smigaldi said:
Oh I was not worried about the FAA. I had figured that whomever had posted the OP just wanted to remain nameless to the folks on PoA. Although the user name in the OP was a pretty good give away. ;)
Click to expand...
No, we'd already been talking about it at Wings, so many of us knew who it was.
 
I was just remaining anonymous until the report was in the posession of the USPS. Pretty much everyone at Wings already knew the story. If the FAA wants to come after me, well then, tell em to get some better transmitters and controllers at PHL.
 
NotAFlyingBrick said:
When I descended to 5,500MSL the controller on 128.65 made a very faint transmission to me which I believe stated, “Maintain VFR at or above 4,500.” I do not recall him giving clearance for me to enter the Bravo, which is 4000-7000 in that area, only the maintain VFR instructions. I responded with, “unable,” and stated that the scattered/broken cloud layer was from 3500AGL to 6000MSL.
Click to expand...

He's got no business issuing an altitude restriction to a VFR aircraft outside the Bravo regardless of the sky condition.
 
roncachamp said:
He's got no business issuing an altitude restriction to a VFR aircraft outside the Bravo regardless of the sky condition.
Click to expand...

I get that a lot around Albuquerque.....

"Maintain VFR at or below 7,500"

Is that not legal? Can I tell ATC "no thank you?"
 
Not much you could do once you got into this. I would suggest though that you don't fly above layers of clouds VFR based on the assumption that you'll be able to get down at the destination unless you are prepared to go IFR.
 
jesse said:
Not much you could do once you got into this. I would suggest though that you don't fly above layers of clouds VFR based on the assumption that you'll be able to get down at the destination unless you are prepared to go IFR.
Click to expand...


Scattered layer, and had I not been talking to PHL it would have never been an issue. The breaks were big enough that I wasn't pushing it VFR clearance wise. It just happened to be that when he gave me the altitude restriction and I held it for the minute or two (2.5-5 miles) the clouds did become an issue, and then didn't become one since his hold at 4,500 or above put me in the Bravo at which point I just needed to remain clear...which I did. I wasn't asking for a pop-up. By the time the controller and I (well, really more me) sorted out what was going on I almost needed one. The issue was that I was already at an altitude with the tops above me and the bases below me, and he wants me to fly straight ahead into the clouds.

The same thing could have happened with a single cloud and a controller saying fly heading X and at altitude Y - vectoring me into the only cloud for a 100 mile radius.
 
Last edited:
EdFred said:
Scattered layer, and had I not been talking to PHL it would have never been an issue. The breaks were big enough that I wasn't pushing it VFR clearance wise. It just happened to be that when he gave me the altitude restriction and I held it for the minute or two (2.5-5 miles) the clouds did become an issue, and then didn't become one since his hold at 4,500 or above put me in the Bravo at which point I just needed to remain clear...which I did. I wasn't asking for a pop-up. By the time the controller and I (well, really more me) sorted out what was going on I almost needed one. The issue was that I was already at an altitude with the tops above me and the bases below me, and he wants me to fly straight ahead into the clouds.
Click to expand...

Understand -- I guess the question that remains is: If you receive an instruction from a controller and you're in class E airspace VFR are you required to obey it?
 
SkyHog said:
I get that a lot around Albuquerque.....

"Maintain VFR at or below 7,500"

Is that not legal?
Click to expand...

There's no provision in FAAO 7110.65 for a controller to issue an altitude or altitude restriction to a VFR aircraft outside of Class B or Class C airspace, the Outer Area associated with Class C airspace, or a TRSA. There's no reason to do it as ATC provides no separation to VFR aircraft outside of those areas.

Can I tell ATC "no thank you?"
Click to expand...

Sure.
 
jesse said:
Understand -- I guess the question that remains is: If you receive an instruction from a controller and you're in class E airspace VFR are you required to obey it?
Click to expand...

Ever heard of a pilot being violated for ignoring an invalid instruction?
 
jesse said:
Understand -- I guess the question that remains is: If you receive an instruction from a controller and you're in class E airspace VFR are you required to obey it?
Click to expand...
I tried to find some written proof one way or the other and I came up with this from the AIM. Bold is mine.
AIM said:
4-1-17. Radar Assistance to VFR Aircraft ​
a. Radar equipped FAA ATC facilities provide radar assistance and navigation service (vectors) to VFR aircraft provided the aircraft can communicate with the facility, are within radar coverage, and can be radar identified.
b. Pilots should clearly understand that authorization to proceed in accordance with such radar navigational assistance does not constitute authorization for the pilot to violate CFRs. In effect, assistance provided is on the basis that navigational guidance information issued is advisory in nature and the job of flying the aircraft safely, remains with the pilot.
c. In many cases, controllers will be unable to determine if flight into instrument conditions will result from their instructions. To avoid possible hazards resulting from being vectored into IFR conditions, pilots should keep controllers advised of the weather conditions in which they are operating and along the course ahead.
d. Radar navigation assistance (vectors) may be initiated by the controller when one of the following conditions exist:
1. The controller suggests the vector and the pilot concurs.
2. A special program has been established and vectoring service has been advertised.
3. In the controller's judgment the vector is necessary for air safety.
e. Radar navigation assistance (vectors) and other radar derived information may be provided in response to pilot requests. Many factors, such as limitations of radar, volume of traffic, communications frequency, congestion, and controller workload could prevent the controller from providing it. Controllers have complete discretion for determining if they are able to provide the service in a particular case. Their decision not to provide the service in a particular case is not subject to question.
Click to expand...
 
EdFred said:
I was just remaining anonymous until the report was in the posession of the USPS.
Click to expand...
Since you posted the report here, and provided enough information to identify yourself as the pilot involved, the FAA can use what you posted against you in any enforcement or other action. However, since you did file it with NASA, you retain the protection from any sanctions they might otherwise choose to impose -- all they can do is put any violation they find on your record.

If in the future you want to share the information without creating a way for the FAA to use it against you, file the report, and then when it shows up on the ASRS site, post a link saying, "Gee, look at this" without saying it's your report.
 
roncachamp said:
He's got no business issuing an altitude restriction to a VFR aircraft outside the Bravo regardless of the sky condition.
Click to expand...
We've been through this before -- you think that, but the FAA thinks otherwise and (as often as I hear it happen) apparently trains controllers accordingly. If necessary to ensure separation from known traffic, controllers do issue altitude restrictions to VFR aircraft, and failure to obey that instruction is a violation of 91.123(b). Anyone who doubts that may feel free to bet their ticket on it.

Also, I will not engage in another debate with roncacham on this matter. I guarantee that if you follow my advice, you will not get in trouble with the FAA. OTOH, think about happens if you believe him and he's wrong.:eek:
 
jesse said:
Understand -- I guess the question that remains is: If you receive an instruction from a controller and you're in class E airspace VFR are you required to obey it?
Click to expand...
Yes, you are. The reference is 91.123(b), and it doesn't give you latitude to decide whether or not the controller is authorized to give you that instruction. The only "out" is if following that instruction would create an emergency, and the odds are pretty good you'll have the opportunity to explain that to the FSDO if you don't follow the instruction you question.
 
roncachamp said:
Sure.
Click to expand...
You certainly can. But after the controller files a Pilot Deviation report with the FSDO, you can expect to be given the opportunity to explain what emergency required you to deviate from that instruction, and why they shouldn't take action against you for violating 14 CFR 91.123(b). I suggest you bring your lawyer to that meeting -- it's gonna get real ugly real fast.
 
Ron Levy said:
Since you posted the report here, and provided enough information to identify yourself as the pilot involved, the FAA can use what you posted against you in any enforcement or other action. However, since you did file it with NASA, you retain the protection from any sanctions they might otherwise choose to impose -- all they can do is put any violation they find on your record.

If in the future you want to share the information without creating a way for the FAA to use it against you, file the report, and then when it shows up on the ASRS site, post a link saying, "Gee, look at this" without saying it's your report.
Click to expand...

I'm guessing since I didn't have a lineman tell me that I have a number to call when I landed, or when I left, or at anytime I talked to them the whole weekend, nothing is going to happen. If they wanted to they can just pull the tapes and bust me. I was under flight following, and would have shown up on radar - with a tail number, and my voice on the tapes, etc. And since I am the sole owner of the aircraft - and have a pretty identifiable voice, me posting publicly isn't going to add anything else to what they already have in their possession. It's not like I was NOT talking to approach and busted and posted about it. They already know who I am and what happened if they want to do anything about it. Public post or not.
 
EdFred said:
I'm guessing since I didn't have a lineman tell me that I have a number to call when I landed, or when I left, or at anytime I talked to them the whole weekend, nothing is going to happen.
Click to expand...
I agree.
If they wanted to they can just pull the tapes and bust me. I was under flight following, and would have shown up on radar - with a tail number, and my voice on the tapes, etc. And since I am the sole owner of the aircraft - and have a pretty identifiable voice, me posting publicly isn't going to add anything else to what they already have in their possession. It's not like I was NOT talking to approach and busted and posted about it. They already know who I am and what happened if they want to do anything about it. Public post or not.
Click to expand...
I agree on that, too, but I felt that folks should understand that by posting something like this on a web site when that post can be traced to them, not only is their identity compromised, but the words they posted may be used against them. While I think you did about as well as possible under the circumstances, I could (if I were an FAA Inspector) probably find things from your post to make you look bad in an enforcement proceeding. No sense giving them ammo to shoot at you.;)
 
Ron Levy said:
Since you posted the report here, and provided enough information to identify yourself as the pilot involved, the FAA can use what you posted against you in any enforcement or other action. However, since you did file it with NASA, you retain the protection from any sanctions they might otherwise choose to impose -- all they can do is put any violation they find on your record.

If in the future you want to share the information without creating a way for the FAA to use it against you, file the report, and then when it shows up on the ASRS site, post a link saying, "Gee, look at this" without saying it's your report.
Click to expand...
That's what I was trying to get at when I wrote:
gprellwitz said:
He's already posted the ASRS report, so he's no longer liable for sanctions. Of course the FAA could still use this posting as cause to start an investigation and put a finding on his certificate. I don't see anything like that happening here, though.
Click to expand...
but yours is clearer. And I like your idea of just posting the link to the ASRS report. Thanks!
 
Ron Levy said:
Yes, you are. The reference is 91.123(b), and it doesn't give you latitude to decide whether or not the controller is authorized to give you that instruction. The only "out" is if following that instruction would create an emergency, and the odds are pretty good you'll have the opportunity to explain that to the FSDO if you don't follow the instruction you question.
Click to expand...

Given that, in the original case, some unknown individual was required to remain VFR, rapidly coming up to the edge of bravo, not clear that a clearance to enter bravo was issued, communication was uncertain, and a minimum altitude had been suggested by ATC - would making a left (or right, or 180) turn to avoid clouds and / or bravo be an appropriate course of action?
 
Ron Levy said:
You certainly can. But after the controller files a Pilot Deviation report with the FSDO, you can expect to be given the opportunity to explain what emergency required you to deviate from that instruction, and why they shouldn't take action against you for violating 14 CFR 91.123(b). I suggest you bring your lawyer to that meeting -- it's gonna get real ugly real fast.
Click to expand...

FSDO won't be receiving a Pilot Deviation report.
 
Capt. Geoffrey Thorpe said:
Given that, in the original case, some unknown individual was required to remain VFR, rapidly coming up to the edge of bravo, not clear that a clearance to enter bravo was issued, communication was uncertain, and a minimum altitude had been suggested by ATC - would making a left (or right, or 180) turn to avoid clouds and / or bravo be an appropriate course of action?
Click to expand...
If that was still possible. But the anonymous pilot indicated the gap in the clouds through which he was transitting was less than a couple of miles wide (but at least 4000 feet to be legal straight through), so he could not make the turn without violating 91.155. One might argue that he should not have put himself in a position where he could not turn around and could not continue without descending, but I don't see the FAA being able to make a case stick on the basis of anticipating a descent restriction which ATC might just happen to issue.
 
roncachamp said:
FSDO won't be receiving a Pilot Deviation report.
Click to expand...
In this case, I agree -- if it were happening, the pilot would have heard about it by now. But in another case, where something bad happened as a result of a pilot's failure/refusal to comply with an "invalid" instruction, that might not be the case. And despite your repeated insistance that an altitude restriction for a VFR aircraft outside B-space is "invalid," I hear controllers all over the US issue them regularly. Given the otherwise near-perfect performance by nearly every controller with whom I work in airspace regularly covering just about everywhere from New England to Georgia and west to the Mississippi, I find it hard to believe that it is as you say a fundamental violation of 7110.65, since so many controllers are doing it so often.
 
Last edited:
Ron Levy said:
Ever see anything in writing which says 91.123(b) only applies to "valid" instructions?
Click to expand...

Nope. Ever see anything in writing which says 91.123(b) applies to "invalid" instructions? I haven't.

I suspect that 91.13 might also come into play. Note in Administrator v. Salten that a "deficiency" in an ATC instruction is not sufficient to justify a pilot failing to follow it.
Click to expand...
A "deficiency" in a valid ATC instruction is not sufficient to justify a pilot failing to follow it.
 
Last edited:
Old Thread: Hello . There have been no replies in this thread for 365 days.
Content in this thread may no longer be relevant.
Perhaps it would be better to start a new thread instead.
Back
Top