Pilot-Counsel: WHATCH THAT ALTITUDE!

November 2020 editorial comment and update:​  This article first appeared in the October 2009 AOPA PILOT magazine.  Neither FAR 91.123(b) nor FAR 91.13(a) has changed since this article’s publication 11 years ago.  What has changed is the Compliance and Enforcement Program noted at the end of the article.  In concept and in spirit, the Compliance Philosophy adopted in 2015 and renamed in 2018 as the Compliance Program is a restatement of sorts of the “kinder and gentler” FAA enforcement policy that predated the 2007 amendment noted in the article.  In its present form, the Compliance Program seeks to differentiate regulatory non-compliance due to flawed procedures, simple mistakes, lack of understanding, or diminished skills from non-compliance due to intentional or reckless conduct.  The agency desires to utilize root cause analysis, training and education to correct non-compliance, rather than legal enforcement, where appropriate. 
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We’re then left to wonder; would the FAA pursue a different course of action against the C210 pilot if the deviation occurred today under the same factual circumstances as before?  It’s difficult to say.  The fact that the C210 pilot had been previously cited for a similar violation might tip the scale towards enforcement, but repeated non-compliance itself does not preclude the use of Compliance Action.  FAA personnel have discretion and factors such as a pilot’s compliance disposition and cooperation could help to balance the scales.  
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​A 160-day suspension of a pilot's license for being 500 to 600 feet off his ATC assigned altitude?  Pretty serious stuff.  Yet that is exactly what happened in a recent case that prompts us to remind pilots of the possible consequences of an altitude deviation.  The case provides some important insights for pilots, illustrating under what circumstances the FAA will investigate and prosecute, and how.

In this case the pilot was operating his Cessna Turbo 210 on an IFR flight from Kansas City to Aspen, Colorado.  The weather was stormy and turbulent over the mountains.  While the flight was west of Denver at flight level 170, air traffic control instructed the flight to "climb and maintain" FL 180.  The flight did climb to the assigned altitude, but then descended down to about 17,500 feet.  The pilot thought that he had been granted a block altitude clearance to contend with the weather.  ATC disagreed.  Unfortunately, that descent caused a loss of standard separation with another aircraft (usually 1,000 vertical, or 3 or 5 miles horizontal).  This deviation and the consequent loss of separation caused the FAA to suspend the pilot's license for 180 days, charging him with violation of FAR 91.123(b) and FAR 91.13(a).

FAR 91.123(b) provides 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."  FAR 91.13(a), which the FAA automatically charges in every operational violation case regardless of the facts, prohibits careless or reckless operation so as to endanger the life or property of another.

The circumstance in this case that almost always guarantees FAA prosecution is the loss of standard separation.  This case illustrates what happens when the ATC computers detect such a 

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
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