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ATC’s Failure To Provide Notice Of Deviation Can Result In Sanction Waiver

© 2004 Reigel & Associates, Ltd./Aero Legal Services. All rights reserved.

In a recent National Transportation Safety Board decision, the Board reaffirmed the concept that ATC’s failure to notify a pilot of an ATC deviation may entitle the pilot to a waiver of sanction. This case doesn’t remove a finding that a pilot has violated a Federal Aviation Regulation (“FAR”), but it does extend the waiver of sanction in some circumstances where the pilot might not otherwise know that filing an Aviation Safety Reporting System (“ASRS”) report may be prudent.

In Administrator v. Pate and Yoder, respondents Pate and Yoder were operating a Boeing 737-522. Pate was pilot in command and Yoder was second in command. As they were approaching Cedar Rapids, Iowa for landing, the pilots were instructed to descend to an altitude of 2,500 feet and to maintain a heading of 50 degrees. However, shortly after receiving that clearance, they turned their aircraft to a heading of 250 degrees and climbed to an altitude of 3,000 feet.

When the pilots realized that the aircraft had climbed above its assigned altitude, they immediately began a descent back to 2,500. However, the combination of improper altitude and incorrect heading resulted in a loss of standard separation when the aircraft came within 500 feet vertically and two and one-half miles laterally of another airliner. ATC made no comment regarding the deviations and the pilots landed without further incident.

After the flight, the FAA issued Notices of Proposed Certificate action against Pate and Yoder. The FAA alleged that the pilots violated FAR 91.123 which requires 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”. The FAA also alleged violation of FAR 91.13 which provides that “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another”. The FAA wanted to suspend Pate’s and Yoder’s airline transport pilot certificates for periods of 15 and 7 days respectively.

The pilots admitted the allegations contained in the FAA’s Orders of Suspension, but asserted that they were entitled to waiver of sanction. They argued that ATC’s failure to provide a deviation notice precluded them from taking advantage of the sanction waiver benefits of filing an ASRS report. The pilots’ arguments relied upon paragraph 2-1-26 (“Pilot Deviation Notification”) of FAA Order No. 7110.65M (“Air Traffic Control”) which states: “When it appears that the actions of a pilot constitute a pilot deviation, notify the pilot, workload permitting. Phraseology – (Identification) POSSIBLE PILOT DEVIATION ADVISE YOU CONTACT (facility) AT (telephone number).”(The current version of Order 7110.65P is available here).

They based this defense on a 1987 NTSB case entitled Administrator v. Brasher. In Brasher, the ATC deviation notification provision at issue was substantially similar to the language cited by Pate and Yoder. In that case, the Board held that “the pilot deviation notification provisions ‘prescrib[e] a duty, . . . imposed on FAA employees and instituted, at least in part, for the benefit of pilots’”. The Board also noted that the FAA had specifically told the pilot community that the deviation notification policy was intended, in part, to allow pilots the opportunity to prepare a response to claims of ATC clearance deviations.

Although the Board recognized that Brasher and other cases resolving similar issues of ATC notice hold “that a failure by ATC to provide a required notice of a deviation generally requires that sanction be waived for the associated FAR violation”, it requested supplemental information from the FAA and the pilots regarding the status of the notice of deviation policy cited in Brasher and whether it remained a valid FAA policy. The FAA supplied information establishing that the ATC notice of deviation language cited in Brasher was substantively the same as the language in FAA Order No. 7110.65M and that the policy behind such notifications remained the same.

Based upon Brasher and other similar cases, as well as the supplemental information provided by the FAA, the Board held that Pate and Yoder were entitled to a waiver of sanction because they did not receive the ATC notification of deviation consistent with the provisions of paragraph 2-1-26 of the ATC manual. However, it is important to note that the Board’s decision only waived the sanction against the two pilots (e.g. the 15 and 7 day suspensions). The Brasher doctrine and the ASRS program do not grant pilots immunity. They merely eliminate the potential sanction associated with FAR violations. Thus, the violations of FAR 91.123 and FAR 91.13 admitted by Pate and Yoder remained.

As always, my recommendation is to file an ASRS report any time you have concerns regarding your possible violation of FAR’s, including deviation from a clearance. Subject to the limitations of the ASRS program (e.g. unintentional conduct, no prior violations etc.), you can potentially limit any sanction if the FAA successfully proves that you deviated from a clearance. Fortunately, the Board’s decision in this case reaffirms your opportunity to obtain waiver of sanction if you deviate from a clearance and you do not receive a notice of deviation from ATC.

As always, fly safe and fly smart.

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