An interesting enforcement action arose out of an airman’s unauthorized incursion into the Baltimore-Washington enhanced Class B airspace shortly after 9/11. In Administrator v. Smith, the FAA issued a Notice of Proposed Certificate Action seeking a 150 day suspension for the airman’s alleged violations of 14 C.F.R. 91.131(a) (prohibiting operation in Class B airspace without ATC clearance), 91.139(c) (prohibiting operation inconsistent with airspace restrictions issued by emergency rule in NOTAM), 91.13(a) (careless and reckless) and 91.103(a) (preflight duty to familiarize with all information concerning flight). The FAA alleged that on September 23, 2001, the airman operated a Piper PA-28-180 within the Baltimore-Washington Class B airspace without having received an ATC clearance from the appropriate ATC facility and that he failed to comply with FAA NOTAM Number FDC 1/0356, which prohibited the operation of VFR aircraft in enhanced Class B airspace
The airman didn’t deny the FAA’s allegations, but rather argued that his actions were excused because an emergency situation existed. The airman claimed that he became concerned and nervous after the controller asked him whether he was on a training flight following his request for a clearance to descend and land at an airport located within enhanced Class B airspace. (VFR training flights were exempted from the enhanced Class B prohibition). The airman replied that he was not on a training flight and then allegedly lost radio communications.
At the hearing, the airman explained that when he heard the controller ask if he was on a training flight (a question respondent said he considered unusual), immediately followed by the loss of radio communication, he became alarmed and feared another terrorist attack might be occurring. Upon landing, however, he determined that his radios were working again. The FAA inspector testified that ATC’s question to the airman was not unusual and did not constitute an emergency situation. The ALJ agreed and held that the airman’s unauthorized Class B incursion violated sections 91.131(a)(1), 91.139(c) and 91.13(a)(1). However, the ALJ felt that the airman had adequately familiarized himself with all available information before the flight and, therefore, had not violated section 91.103(a). The ALj then reduced the suspension from 150 days to 110 days.
On appeal to the NTSB Board, the airman reiterated his emergency defense that an emergency situation was created by ATC’s “bizarre and unusual” question and his loss of radio communication. However, he also admitted that “the reason his radios stopped working in flight was, ‘probably because he inadvertently rendered [them] inoperative’ and “that after he lost radio communication in flight he failed to use his transponder to transmit the code for lost communications (7600), and that this was a mistake.”
The Board rejected the airman’s arguments. They felt that whether ATC’s question was unusual was irrelevant to whether the airman reasonably believed he was in an emergency situation and also opined that the airman “obviously was not fully informed about the contents of the NOTAM prohibiting flight into enhanced Class B airspace without a clearance” and thus “he would not likely have known whether the controller’s question was apropos”. They also found that the loss of radio contact did not qualify as an emergency because it was of his own making and, thus, did not justify his violations.
This case is interesting for several reasons. One, it is curious that the case has taken so long to work its way through the system. The violations occurred on September 23, 2001 and the hearing was held on September 17, 2003. Not too unusual so far. But then the Board’s opinion was not issued until March 23, 2005. This seems like an awfully long time for an appeal.
Second, I don’t think this case should have made it as far as it did. When you compare the airman’s admissions and version of what happened to existing case law interpreting the emergency doctrine, it is pretty clear that the airman was not in an emergency situation. However, the suspension sought by the FAA was also excessive for a single airspace violation. And this wasn’t even a restricted area. I understand that it occurred shortly after 9/11, but given the facts and the time this case took to wallow through the system, you would think that a more reasonable resolution could have been reached by the parties sooner. Perhaps additional circumstances were involved that are not revealed in the NTSB opinion?
