PILOT-COUNSEL: Defying ATC Instructions

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​September 2021 editorial comment and update: This article first appeared in the January 1999 issue of AOPA PILOT magazine.  The case referenced in John Yodice’s article makes clear that compliance with ATC instructions is not optional, at least not when a threat of collision exists during approach and landing at a Class D airport.
 
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.”
 
In a 2007 case with a far less severe outcome than the noted twin Cessna case, a Citation pilot on an IFR flight plan initially refused to comply with an ATC instruction to descend from flight level 350 to 310, citing “operational necessity”.  The pilot ultimately descended, but the delay in complying created a traffic conflict. The pilot was cited and at the NTSB hearing he argued that the descent would have “put [him] near [his fuel] reserves,” and which he further argued was unsafe.  The pilot acknowledged that there was no imminent emergency and this rendered his fairly creative defense ineffective.  The law judge stated “… ATC instructions are not subject to bargaining or need for verbal justification, and that operators must comply with ATC instruction or be subject to sanction.”  The law judge ordered a 60-day suspension and deemed the pilot ineligible for a waiver of sanction under the ASRP (NASA program), because his initial refusal to comply with ATC’s instruction was deliberate and not inadvertent.  The pilot appealed the decision to the full “board” at the NTSB and the suspension was upheld.   

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A 10,000-hour corporate pilot was grounded by the FAA on an emergency basis because of a single air traffic control incident.  That's a pretty extreme action.  Let's try to put it in perspective. In the scheme of things, the revocation of an FAA airman certificate on an emergency basis is the most drastic enforcement sanction that the FAA can impose upon a pilot.  For one thing, revocation means that the pilot must apply for and requalify for the certificates if he or she wants them back.  For another, the FAA will probably not accept such an application for a year, and maybe not even as soon as that.  For still another, revocation on an emergency basis means that the certificates were revoked immediately, with no stay of the revocation pending review of the case by the National Transportation Safety Board--in other words, an immediate grounding.  Lastly, it is very unusual that FAA would take such drastic action based on a single incident. 

Here is what happened: The pilot was flying a twin-engine Cessna 310 into the Alexandria (Louisiana) International Airport.  The airport is in Class D airspace, requiring the establishment of two-way radio communication with the control tower prior to entering the airspace.  At the time, there was other traffic in the Alexandria airport area. 

As the Twin Cessna approached the airport, the pilot contacted the Alexandria tower, announcing that he was 5 miles southeast inbound for landing.  He later announced entering left downwind for runway 14.  He was told to continue and to report a left base for runway 14.  Later, because of other traffic in the pattern, the Twin Cessna was instructed by the tower to continue its downwind leg and to follow a single-engine Cessna.  The tower advised that the other airplane would be landing ahead of the 310.  The pilot of the Twin Cessna, looking all the while, advised the tower that he was unable 

to visually locate the traffic.  The tower then instructed the pilot of the Twin Cessna to continue on the downwind and said the tower would call his base leg.  He was then told twice to extend downwind, and twice he complied; when the pilot estimated that he was seven miles from the airport, and he could see no conflicting traffic, however, he advised the tower that he was turning base.
 
An extract of the ATC communications gives more flavor to the story:
Twin Cessna: "[Twin Cessna] is entering left downwind for runway 14."
Tower: "Twin Cessna [N number] roger, runway 14 is in use altimeter 2982 wind 180 at 20 continue and report a left base for runway 14."
Tower: "[Twin Cessna] you're number 3 correction yeah number 3 to follow a Cessna on a left downwind for runway 14."
Twin Cessna: "We're about to turn base for runway 14."
Tower: "[Twin Cessna] roger continue on your downwind you're number 3 to follow a Cessna also on a left downwind runway 14."
Twin Cessna: "I don't see a Cessna on a left downwind I see one on a right crosswind."
Tower: "Yes sir Cessna I have the Cessna in sight on a left downwind I'll call your base for you."
Twin Cessna: "You're going to put me in behind an airplane that's on a crosswind?"
Tower: "Negative sir you have a Cessna in your 12 o'clock on a left downwind."
Twin Cessna: "Roger no joy."
Twin Cessna: "Another pointout on the Cessna on downwind.  Has he turned base yet?"
Tower: "[Twin Cessna] he's on a left base now about 3 miles out."
Twin Cessna: "Roger no joy."
Tower: "Roger continue on your downwind."
Twin Cessna: "[Twin Cessna] is turning left base."
Tower: "[Twin Cessna] you have the Cessna in sight you're following?"
Twin Cessna: "I sure don't."
Tower: "OK I didn't tell you to turn base, continue on your downwind."
Twin Cessna: "Hey you're not determining when I can turn base son I do that, now where's the traffic?"
Tower: "Traffic should be in your vicinity."
Twin Cessna: "OK do you see the plane?"
Tower: "Yes sir I sure do."
Twin Cessna: "Is he on base or final?"
Tower: "He's on base to final."
Twin Cessna: "OK that's what we're asking."
Tower: "He's on base, he's on final now."
Twin Cessna: "Roger that."
 
The pilot proceeded onto final and landed, without a clearance to land, in front of the single-engine Cessna that had been cleared to land.
 
After landing, the Twin Cessna requested permission to execute a 360-degree turn on the taxiway.  He wanted to get a look at the traffic behind him.  The tower denied the request, and instructed the aircraft to taxi straight ahead.  The Twin Cessna made the turn anyway. 
 
On these facts, the FAA issued an emergency order revoking the pilot's airline transport pilot and flight instructor certificates--immediately grounding him.  The FAA alleged that the pilot had violated FAR Sections 91.111(a) (creating a collision hazard with another aircraft), 91.123(b) (failing to comply with ATC clearances and instructions), 91.129(i) (operating in Class D airspace before establishing communications), and 91.13(a), operating carelessly or recklessly.
 
The pilot was not at all happy about the handling of his flight by ATC, much less the FAA's reaction to the incident.  He appealed the FAA order to the National Transportation Safety Board.  He argued that the tower, a VFR tower, was improperly providing separation services by directing him to continue downwind when he could not locate the other aircraft, and by advising him when it would be safe to turn base.  He also complained that ATC could have done a better job helping him locate the other aircraft.
 
Both the law judge and the full Board rejected these arguments, and sustained the revocations.  The Board said:
 
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.  To the extent that respondent found ATC's assistance in this connection unwelcome, he could have radioed his intent to exit the pattern, for re-entry when he had all traffic converging on the airport in sight, or he could have sought permission to land ahead of the aircraft that had already been cleared to land, an option that would have possibly prompted ATC to re-evaluate the relative positions of all aircraft within the airport environment and issue appropriate changes, if it believed them warranted. 

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.  Respondent's decision to land contrary to instruction and ahead of an aircraft he did not yet see was both reckless and demonstrative of a noncompliant attitude inimical to air safety.
 
The FAA and the Board considered the pilot's actions so bad that they refused to waive the sanction even though the pilot had filed a NASA Aviation Safety Reporting system form.  "An ASRP waiver is not available for deliberate, willful FAR violations, and [the] respondent's conduct was anything but inadvertent," said the NTSB.
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John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com