An airliner cruising at 24,000 feet was cleared to descend to 21,000 feet. The pilots acknowledged the clearance but penetrated the cleared altitude and descended almost to 20,000 feet. The Air Traffic Controller was forced to ask another aircraft to expedite its descent to 19,000 feet.
Transcripts from a deposition revealed that during the flight one of the pilots may have said, “I think maybe it might have been 210.”
Air Traffic Controllers throughout the United States may report Aircraft deviations, and the resultant “loss of separation”, more frequently to the Federal Aviation Administration for pilot enforcement purposes because of increased demands on the airspace. As the world’s population increases and more nations gain prosperity, an increase in air traffic will be inevitable and will add pressure to the limited airspace.
A loss of separation can occur when controller error, pilot error, systems error, mechanical failure or weather phenomenon causes two or more aircraft to fly unacceptably close to each other. This article focuses on human error because the FAA has enforcement authority over airmen when they fail to comply with regulations.
Notwithstanding the recent technological advances in traffic avoidance, pilots will be especially susceptible to a loss of separation case in the busiest airspaces, near the busiest airports, and when following unfamiliar routes or arriving at unfamiliar airports. Pilots will face situations when radio communications are garbled, ATC clearances are confusing or misinterpreted, or ATC clearances will cause their aircraft to conflict with another aircraft. It is therefore the pilot’s duty to seek clarification of any ATC instructions. While this would normally be treated as mere common sense, the duty is codified as law and has been used to defeat pilots’ affirmative defenses in FAA enforcement cases.
Section 91.75 of the Federal Aviation Regulations states in part:
(a) When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance... If a pilot is uncertain of the meaning of
an ATC clearance, he shall immediately request clarification from ATC.
(b) Except in an emergency, no person may, in an area in which air traffic control is exercised, operate an aircraft contrary to an ATC instruction.
It must be emphasized that merely seeking clarification “when not sure” may not be enough. The FAA will accuse pilots of “careless or reckless operation” under §91.9 in a loss of separation case if the pilots experienced a flight condition where it was later determined the crew should have sought clarification. A subjective determination of whether the pilot had doubt or did not have doubt is difficult for the NTSB Board to make during an enforcement appeal hearing. However, evidence of actual confusion, garbled radio signals, signal interference or other commonly occurring phenomena that degrade communication can be objectively examined to determine whether a pilot should have sought clarification under the circumstances.
In Administrator v. Randal D. Custard, NTSB Order EA-3806 (February 11, 1993), the board denied the pilot’s appeal to reverse the FAA’s Order suspending the pilot for 30 days, on the grounds that merely misunderstanding a clearance was by itself not a defense, and that the presence of bad radio transmissions was not by itself a defense.
When Custard and his co-pilot misunderstood the instructions and even remarked about their confusion to each other, they had a duty to ask ATC for clarification before their aircraft penetrated 21,000 feet. The FAA was able to convince the Board that transcripts from a deposition were enough evidence to show there was actual confusion in the cockpit. After the Board was satisfied that confusion was present, it cited §91.75(a) to impose upon the pilots a duty to seek clarification.
Therefore pilots should remind themselves, and flight departments should train their pilots, to positively identify when their duty to seek clarification may arise. This is a practice that can prevent a loss of separation from occurring, and that can provide for a legal defense in the event that loss of separation occurs despite a pilot’s utmost prudence.
By: Mohammad Ahmed Faruqui, ESQ.
Mr. Faruqui is an attorney in Fort Lauderdale, FL, servicing aviation clients throughout the United States and abroad. Mr. Faruqui is a member of the Florida Bar Aviation Law Committee, the International Air Transportation Safety Bar Association, the Lawyer-Pilot Bar Association and the Aircraft Owners and Pilots Association. He serves as a panel attorney on the AOPA Legal Services Plan. Mr. Faruqui has been licensed to practice law in Florida since 2006, and graduated from Nova-Southeastern University Shepard Broad Law Center in 2005. He is an instrument-rated private pilot with experience in Cessna 172s and Cirrus SR-20s.
Mr. Faruqui can be contacted at Mohammad@Aerolaw.info or at (954) 527-0002.
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