In a recently decided case, Administrator v. McCarthney, the NTSB has affirmed its long-standing holding that ATC instructions are not subject to negotiation . The case arose out a flight in which the airman was operating a Cessna 500 at flight level 350. ATC requested that the airman descend to flight level 310, but he refused. ATC then requested that the airman turn to a 045 degree heading and, again, the airman refused to comply. After ATC advised the airman that he needed to either turn or to descend to avoid traffic, the airman then descended to flight level 310.
Subsequently, the FAA issued an order seeking to suspend the airman’s commercial pilot certificate for 90 days for allegedly violating FARs 91.123(a) and (b) (compliance with ATC clearances and instructions) and 91.13(a) (careless and reckless). After a hearing, the ALJ upheld the violations, but reduced the suspension from 90 to 60 days. The airman then appealed to the full Board.
On appeal, the airman argued that the ALJ erred in finding that he had violated FARs 91.123(a) and (b) and 91.13(a) because he responded to ATC’s instructions “in the safest possible manner, by advising ATC that he could not descend because a descent would compromise fuel reserves on his aircraft.” However, the record indicated that the airman did not declare an emergency and had enough fuel to complete his trip. He also argued that the 91.13(a) violation was improper because his primary concern was safety.
The Board rejected the airman’s arguments holding that “given the time-sensitive nature of ATC communications and aviation operations, combined with the fact that air traffic controllers must communicate with multiple aircraft within the same short period of time, ATC instructions are not subject to negotiation.” It went on to observe that “an operator’s failure to adhere to an ATC instruction will often render the operator in violation of § 91.13(a), because, in general, such refusal is careless and reckless.”
This case is instructive because it clearly states the Board’s rigid position on this issue. If an airman chooses to disregard an ATC instruction, as in this case, the airman will have the burden of justifying the refusal. In the absence of an emergency or fuel critical situation, that burden may be tough to meet.
