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a loss. A "conflict alert" alarm goes off in the FAA ATC facility. Once the air traffic situation is resolved (happily virtually all are), then the "quality assurance" folks in the facility conduct an investigation. The investigation includes reviewing the computerized radar data that shows the tracks and altitudes of the flights involved, as well as the tapes of the relevant ATC communications that can be integrated with the radar data. If the loss of separation is confirmed and there was no emergency or other acceptable explanation, the matter is referred for prosecution.
This case also involved another circumstance that prompts an enhanced penalty -- a prior violation. The pilot had a 5-year-old prior violation in which he deviated from an ATC instruction under similar circumstances. After that violation, the pilot underwent extensive remedial training to regain his certificates.
In this case the pilot appealed the suspension to the National Transportation Safety Board, as he was entitled to do. After a hearing, an NTSB judge reduced the period of suspension from 180 to 160 days. In the appeal the pilot explained that he was experiencing turbulence and bad weather. He had two of his grandsons in the aircraft, and that one of them had motion sickness as a result of the turbulence. All the while, he was seeking deviation to avoid the weather. He believed that ATC had granted his request for block altitude clearance. He said that when he was in the Denver Approach area, he received an altitude of 17,000 feet after he requested it, and that, once he left Denver Approach and was handed off to Denver Center, he was already on the block clearance. He tried to contact Denver Center several times and made a request for a deviation left and right, and up and down for 1,000 feet, but that he received no response. In fact, the Center did not hear all of the calls. Another aircraft relayed the message for him, and he was given a right heading. He went to his assigned heading, maintaining FL 180, and he heard, "deviation approved." Based on this, he believed that ATC had granted his request for block clearance. While he was at FL 180, he encountered more turbulence and bad weather. He turned around to help his grandson who had vomited. His other grandson told the pilot "you are down," and pointed to the altitude. He told his grandson that his altitude was permissible because he was on a block clearance.
The controllers disputed that a block clearance had been granted. The tapes indicated that communications were difficult, and involved relayed transmissions. The law judge determined that ATC never received the request for a deviation. The law judge was critical of the pilot's failure to use his aircraft call sign and repeat back the ATC instruction, instead saying "thank you" several times. These contributed to the communications problems. In the end, the NTSB rejected the pilot's appeal.
In deciding this case, the NTSB made this unfortunate statement: "We further note that respondent's [the pilot's] admitted act of turning around to assist his sick grandson while encountering turbulence amounts to a violation of FAR 91.13(a)."
Because the computerized ATC radar data was for air traffic control purposes and not for enforcement of the regulations, there had been an FAA Compliance/Enforcement Bulletin allowing merely an administrative action (a warning notice but no certificate suspension) in the case of a computer detected altitude deviation of 500 feet or less, where no near midair collision resulted or there were no other aggravating circumstances. In 2007, when the FAA issued its amended Compliance and Enforcement Program, it cancelled its earlier Program that technically cancelled this Bulletin. FAA may still be informally honoring this policy. We hope so. But even so, historically the FAA has not applied the policy where there was a loss of standard separation.
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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