Air Line Pilot, May/June 2002, p. 5
By Jan W. Steenblik, Technical Editor

The Constitution of the United States of America guarantees you due process under the law—i.e., the right to a fair trial.

Don’t think a government agency can’t try to take that right away from you. In effect, the FAA did so April 1, 1999, when it issued its "interpretive rule" regarding "pilot responsibility for compliance with air traffic control clearances and instructions."

The agency said then that it was issuing the interpretive rule because, in recent years, "a…line of NTSB decisions [in FAA enforcement cases], which diverges from the FAA’s long-standing construction of FAA regulations, suggests that providing a readback [of an ATC clearance or instruction] will excuse the pilot even if the pilot is the initiating or principal cause of a miscommunication."

The FAA said that the NTSB’s interpretation "does not correspond to the FAA’s construction of FAA regulations and requires correction."

The interpretation of Federal Aviation Regulation (FAR) 91.123, published April 1, 1999, and apparently in effect since 1955, was virtually unknown to most pilots.

Based on procedures contained in the FAA’s Air Traffic Controller’s Handbook, guidance in the Aeronautical Information Manual, and statements in other FAA-sponsored publications, pilots assumed that a readback of a clearance or instruction satisfied their responsibility in the pilot/controller communications process. No information available to them contradicted this assumption.

ALPA is once again defending a flight crew charged with failing to comply with an ATC clearance, though the controller involved failed to detect or warn the pilot who was handling the radios that he had read back the clearance incorrectly.

In an FAA enforcement action, the FAA brings the charges, but an NTSB administrative law judge (ALJ) hears the case and sets the penalty if he or she finds the pilot guilty of violating the FARs.

Regarding FAR 91.123—compliance with ATC clearances and instructions—the FAA has taken the position, summarized in a recent Court of Appeals ruling, that the only way to prevent tragedy in this aspect of aviation is to ensure "that pilots exercise unflagging diligence in monitoring, understanding, and obeying clearly transmitted ATC instructions."

The ruling continues, "The best way to ensure such diligence, [the] FAA has concluded, is to hold pilots to an exacting standard of accountability."

The Safety Board, on the other hand, has taken a much more enlightened view on the readback/hearback issue: "If a pilot makes a mistake and mishears a clearance or ATC direction, follows all prudent procedures that would expose the mistake (e.g., reads back the clearance), and then acts on that mistaken understanding, having heard no correction from ATC, the regulatory violation will be excused if that mistake is not shown to be a result of carelessness or purposeful failure of some sort."

Unfortunately, the FAA’s "interpretive rule" has, in ALPA’s opinion, formally stripped away pilots’ fundamental right to a hearing before an impartial judge.

The FAA has usurped the roles of accuser, judge, and jury in enforcement cases relating to FAR 91.123, and the accused’s appearance before an NTSB ALJ is likely to be only a formality.

The FAA’s uncompromising position prevents an ALJ from exercising his or her own judgment and determining if any mitigating circumstances existed, based on the evidence.

ALPA’s Air Traffic Services Group, supported by the Association’s Legal and Engineering and Air Safety Departments, is currently pursuing remedies to this onerous situation through the Air Traffic Procedures Advisory Committee (ATPAC), a government/industry group that has resolved many ATC issues over the years. ALPA safety representatives have been vigorous participants in ATPAC since its inception.

Stay tuned, and be careful out there. In this respect, the FAA is not here to help.