AOPA Pilot Magazine - June 2014 - 24

PILOT COUNSEL

An airspace incursion

BY JOHN S. YODICE

How the NTSB and the FAA will react

JOHN S. YODICE

has served as legal
counsel for AOPA
members for more
than 50 years.

24 | AOPA PILOT June 2014

THIS IS A CASE in which the FAA ordered a 165-day suspension of a Cessna 172 pilot's private certificate for an
incursion into San Francisco's Class B airspace. (FARs
91.129 and 91.133 combine to provide that, prior to
operating within Class B airspace, a pilot is required to
establish two-way radio communication with the ATC
facility having jurisdiction over the airspace, and to
receive a clearance to operate in the Class B airspace.) In
addition to the incursion charge, the FAA order charged
that the pilot was flying on an expired FAA medical certificate, and that he operated the aircraft in a careless or
reckless manner.
As was his right, the pilot appealed the FAA order to
the NTSB. A hearing was held before an NTSB administrative law judge who affirmed the FAA order but
reduced the period of suspension to 155 days. On further appeal to the full five-member board, the judge's
decision was affirmed. Throughout these proceedings
the pilot elected to represent himself.
The official NTSB decision in this case provides a
unique insight into the procedures the FAA and NTSB
use in airspace incursion cases. Among them are a
request while the pilot is airborne to call ATC when he
or she gets on the ground, including a documentation of
the resulting telephone conversation; the re-recording
and production of a transcript of the relevant communications with ATC; the downloading of the computer
recorded transponder returns to produce exhibits and a
video of the flight; and producing as witnesses the controllers and quality assurance personnel involved.
The FAA bears the burden of proving the regulatory
violations "by a preponderance of substantial, reliable, and probative evidence." So, in this case the FAA
went first, producing the testimony of two witnesses:
the operations manager of the NorCal Terminal Radar
Approach Control, which was controlling the Class B
airspace, and the quality control support manager at the
facility. The FAA also produced in evidence a certified
ATC re-recording and a transcription of relevant ATC
voice communications, and computer-generated information including a video showing the path of the flight
with respect to the boundaries of the Class B airspace.
The ATC operations manager testified that she
observed on the scope a VFR target inside Class B airspace. She instructed the controller, who was receiving
a call from the pilot, to tell the pilot to call her after he
got on the ground. The pilot did call, and the manager

testified that the pilot did identify himself, admitting
that he was the pilot of the aircraft. She testified that
in the conversation the pilot never said that he had
received a clearance prior to entering Class B airspace.
The other FAA witness, the quality control manager at the facility, testified to his duties when there is a
reported pilot deviation. With respect to recorded voice
communications the FAA goes back at least five minutes
prior to the incursion and re-records relevant communications with the offending aircraft. A transcription of
the re-recording is made. With respect to the computerized data, the manager testified to exhibits showing the
data and the video. The video was played for the judge.
The pilot said he was proceeding northwest,
squawking transponder code 1200, knowing that Class
B airspace was about 30 miles in front of him. He said he
attempted to contact ATC but he was not receiving any
responses. At the point on the computer-generated plot
where the aircraft is in a U-turn attempting to avoid the
airspace, he said that he was able to establish communications with ATC. At that point he realized that he had
mismanaged his radios and, in fact, had the receiver portion of his radio turned off. Somewhere in the U-turn,
he testified that he was able to establish communications with the correct facility, and that the controller
spontaneously issued him a discrete transponder code
and gave him a clearance into Class B airspace. But the
pilot never did testify that he was outside the Class B
airspace prior to the U-turn, only that he was unsure.
Based on the evidence, the law judge found that the pilot
was already in Class B airspace at the time of the U-turn
and the clearance.
The pilot admitted conducting this flight during
"a short interruption in [his] medical certificate." He
assumed that his passenger could act as PIC; but his
passenger, a recreational pilot, could not legally operate the aircraft as PIC in that airspace. The law judge
found that this assumption was careless.
On the appeal of the law judge's decision, the full
board found that "the record contains uncontroverted
evidence showing [that the pilot] entered the SFO Class
B airspace without obtaining a clearance from ATC."
The full board affirmed the medical certificate and carelessness charges. How the FAA and NTSB got this result
is offered as instructive to pilots.
AOPA
WEB

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AOPA Pilot Magazine - June 2014

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