AOPA Pilot Magazine - January 2014 - 24

PILOT COUNSEL

ATC instructions

BY JOHN S. YODICE

Readbacks are encouraged
A RECENT INTERPRETATION BY THE FAA'S CHIEF counsel
answers the question whether the rule requiring compliance with ATC instructions applies to a pilot flying
under visual flight rules in Class E airspace. The counsel
answers yes. He cites as authority FAR 91.123(b), which
reads: "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."
Probably what engendered the question is that
a pilot flying VFR in Class E airspace-although it
is controlled airspace-is not required to communicate with ATC. As a reminder, Class E is all of the
controlled airspace that is left over after taking out
the specific classes A, B, C, and D of controlled airspace. Class E comprises the bulk of the airspace in

When it is not clear from the context or wording
of a controller's communication, you should be
able to tell the difference by the "tone" of voice.

JOHN S. YODICE

served as AOPA's
general counsel
for more than
40 years.

24 | AOPA PILOT January 2014

which we operate. However, if a pilot, although not
required, is communicating with ATC-for example,
receiving flight following-and ATC issues an instruction, the pilot must comply with that instruction. On
the other hand, if a pilot is flying in Class G (uncontrolled) airspace, ATC is not controlling that airspace
and technically should not be issuing instructions. The
rule does not apply.
The companion rule on clearances also is contained
in FAR 91.123, in subsection (a) in a more extended
form. It states: "When an ATC clearance has been
obtained, no pilot in command may deviate from that
clearance unless an amended clearance is obtained, an
emergency exists, or the deviation is in response to a
traffic alert and collision avoidance system resolution
advisory. However, except in Class A airspace, a pilot
may cancel an IFR flight plan if the operation is being
conducted in VFR weather conditions. When a pilot is
uncertain of an ATC clearance, that pilot shall immediately request clarification from ATC."
The difference between a clearance and an
instruction is ordinarily clear from the context and the
wording-for example the use of the word "cleared."
But not always. It is sometimes challenging to tell
the difference. The Pilot/Controller Glossary of the

Aeronautical Information Manual offers some help
by defining and giving examples of ATC instructions
as "directives issued by air traffic control for the
purpose of requiring a pilot to take specific actions,
e.g., Turn left heading two-five-zero, Go around, Clear
the runway."
As to understanding the difference, the best advice
I have been given by a controller friend, perhaps
tongue in cheek, is that when it is not clear from the
context or the wording of a controller's communication, you should be able to tell the difference by the
"tone" of the controller's voice.
Busted clearances and instructions continue to
result in FAA enforcement actions against pilots. So,
this is a good place to repeat our advice to pilots that
they should read back all clearances and instructions
to the extent practical. Pilots understand that a readback may be impractical in some instances, such as
frequency congestion. My advice is based on an old
NTSB precedent (NTSB is an appeals court in FAA
enforcement cases) that if a pilot reads back a clearance or instruction that he or she misunderstood, and
the controller does not correct the pilot's misunderstanding, any violation of the clearance or instruction
is excused. The FAA, unhappy with this precedent,
blunted it by publishing a legal interpretation saying that a pilot in such a situation is in violation, even
though his or her misunderstanding was not corrected
by ATC. The FAA cited a provision in the Federal
Aviation Act that said that the NTSB is "bound by" FAA
interpretations unless they are arbitrary, capricious, or
otherwise not in accordance with law.
Hold on. Since then, Congress has enacted the Pilots
Bill of Rights that repealed the "bound by" FAA Act provision. The FAA continues to insist that it is entitled to
the "deference" (as opposed to "bound by") generally
accorded to federal agencies under general administrative law. This raises a neat question of law that has yet to
play itself out. Nevertheless, I still encourage readbacks
to the extent practical for this and other important safety
reasons. Indeed, currently controllers are, more and
more, asking for readbacks. Readbacks are not required
by regulation, but the controller's direction for a readback is an instruction that, as I explained, is regulatorily
binding as an instruction.
AOPA
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AOPA Pilot Magazine - January 2014

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