Class B bust my fault or the controllers ?

Gary Drescher wrote:

"Steven P. McNicoll" wrote in message
ink.net...
You're responsible for any bust. If following the instruction meant
entering the Class B airspace I'd respond to it with "verify I'm cleared
into Class B airspace." If the controller replies with "Negative" I'd
inform
him I was turning to avoid Class B airspace. Pilots are required to abide
by the FARs regardless of any ATC instruction.

I don't dispute that the FAA takes that position. But the FARs themselves
are contradictory on that point. FAR 91.123b requires obeying ATC
instructions, except if an emergency requires otherwise. There's no stated
exception for non-emergency violations of the regs. If the tower says
"Continue downwind, I'll call your base" and then hasn't gotten back to you
two minutes later when you're about to enter Class B, and if the frequency
is too crowded for you to call, then the only way to avoid busting Class B
may be to violate 91.123b.

--Gary

If frequency conjestion creates a sustained inability to request either a Class
B clearance to enter the imminent Class B airspace or a new instruction to avoid
the Class B, you have an emergency brewing. An emergency is not limited to the
aircraft having a mechanical or similar such problem. Violating Class B
airspace has unknown ramifactions, such as perhaps approach control seeing the
intrustion and declaring an emergency on your flight because of loss of
separation, etc., etc.

So, in that light, use of your emergency authority under 91.03 (a) and (b) would
be considered appropriate. Having said that, whatever action you have to take
to avoid the Class B should be reasonable and prudent so as to not unnecessarily
create an unsafe condition for the local controller working your flight.

Sometimes, operating in conjested airspace involves juggling several balls at
the same time. Operating IFR actually makes it all more straight-forward
because the entire concept of Class B operates in favor of IFR operations.

When Class B (TCAs) first was proposed in this country there were a lot of
advocates that wanted to make that airspace Class A. But, other interests
strongly opposed going that far.

wrote in message ...
An emergency is not limited to the
aircraft having a mechanical or similar such problem. Violating Class B
airspace has unknown ramifactions, such as perhaps approach control seeing
the
intrustion and declaring an emergency on your flight because of loss of
separation, etc., etc.

It's true that a controller *might*, for additional reasons, deem a Class B
incursion to be an emergency. But I doubt that a slight breach of Class B,
with good visibility and no conflicting traffic, would *by itself*
constitute an emergency. So I don't think 91.3b would necessarily come into
play.

Again, I don't dispute that you should avoid the incursion, even if you have
to violate 91.123b. I just wish the FARs weren't contradictory on that
point.

--Gary

But I doubt that a slight breach of Class B,
with good visibility and no conflicting traffic, would *by itself*
constitute an emergency. So I don't think 91.3b would necessarily come into
play.

An emergency is whatever the PIC deems it to be at the time. So, ok,
you're on the ground, they have paperwork for you, and it ends up in a
faceoff between you and the FAA.

The controller says "You disobeyed my order. Fie on you."

You say "You ordered me to violate the law, creating an unsafe
condition. Fie on you."

The controller says "By turning early, you created an unsafe condition."

You say "By turning early, I created an inconvenience for you, and I was
on your frequency. By not turning early, I'd create an inconvenience
for an unknown entity with whom I was not in communication."

My guess is that the FAA would side with you turning to avoid the class B.

Jose
--
The price of freedom is... well... freedom.
for Email, make the obvious change in the address.

"Jose" wrote in message
...
You say "By turning early, I created an inconvenience for you, and I was
on your frequency. By not turning early, I'd create an inconvenience for
an unknown entity with whom I was not in communication."

Avoiding the incursion is apparently what the FAA expects you to do (despite
the ambiguity in the FARs), so you shouldn't have to make any argument at
all about who's more inconvenienced. In particular, there's no need to
invent an "emergency" where none exists.

--Gary

Gary Drescher wrote:

wrote in message ...
An emergency is not limited to the
aircraft having a mechanical or similar such problem. Violating Class B
airspace has unknown ramifactions, such as perhaps approach control seeing
the
intrustion and declaring an emergency on your flight because of loss of
separation, etc., etc.

It's true that a controller *might*, for additional reasons, deem a Class B
incursion to be an emergency. But I doubt that a slight breach of Class B,
with good visibility and no conflicting traffic, would *by itself*
constitute an emergency. So I don't think 91.3b would necessarily come into
play.

Again, I don't dispute that you should avoid the incursion, even if you have
to violate 91.123b. I just wish the FARs weren't contradictory on that
point.

--Gary

I cited both 91 (a) and (b). If just (a) fits in your judgment, then that's
your judgment. You will have a far greater chance of avoiding the enforcement
hearing if you remain clear of the Class B.

wrote in message ...

I cited both 91 (a) and (b). If just (a) fits in your judgment, then
that's
your judgment.

But 91.3a merely says that the PIC has final responsibility and authority.
That *doesn't* mean that the PIC is at liberty (except in emergencies) to
violate the FARs, though! And what's under discussion here is whether
rejecting an ATC instruction (except in an emergency) violates the FARs
(specifically, 91.123b, which requires compliance with ATC instructions,
except in emergencies). There's nothing in 91.3a that addresses that
question.

You will have a far greater chance of avoiding the enforcement
hearing if you remain clear of the Class B.

Sure, I've never disputed that. I'm just disputing that the FARs make that
clear.

--Gary

Gary Drescher wrote:

wrote in message ...

I cited both 91 (a) and (b). If just (a) fits in your judgment, then
that's
your judgment.

But 91.3a merely says that the PIC has final responsibility and authority.
That *doesn't* mean that the PIC is at liberty (except in emergencies) to
violate the FARs, though! And what's under discussion here is whether
rejecting an ATC instruction (except in an emergency) violates the FARs
(specifically, 91.123b, which requires compliance with ATC instructions,
except in emergencies). There's nothing in 91.3a that addresses that
question.

You will have a far greater chance of avoiding the enforcement
hearing if you remain clear of the Class B.

Sure, I've never disputed that. I'm just disputing that the FARs make that
clear.


Well, this isn't the only case where FARs are not clear. In some cases, they
are downright misleading; in some cases they are quite clear, and then there
is the great middle: basic regulatory guidance that is suspended on a vast web
of "advisory" guidance and policy statements from the FAA over the years.

This one is fairly simple in that context: no Class B clearance, no enter the
Class B.

wrote in message ...
This one is fairly simple in that context: no Class B clearance, no enter
the
Class B.

Yes, that's simple and unambiguous. There's no doubt that it violates the
FARs to enter Class B without a clearance, even if so instructed by ATC.
That was never the issue.

Rather, the issue is that as the FARs are written, it violates 91.123b to
disobey an ATC instruction, except in an emergency. So if you're instructed
to enter Class B without a clearance, you violate one FAR or another
*whether you comply or not*.

You and I agree about how the FAA wants us to resolve that conflict in the
FARs. My point is just that the conflict there does exist.

--Gary

Rather, the issue is that as the FARs are written, it violates 91.123b to
disobey an ATC instruction, except in an emergency. So if you're instructed
to enter Class B without a clearance, you violate one FAR or another
*whether you comply or not*.

How is this different from "refusing" to obey an ATC instruction that
would be impossible to follow? There is no stated exception for
impossible things either, but somehow nobody gets busted for that.

Jose
--
The price of freedom is... well... freedom.
for Email, make the obvious change in the address.

"Gary Drescher" wrote:
Rather, the issue is that as the FARs are written, it violates 91.123b to
disobey an ATC instruction, except in an emergency. So if you're instructed
to enter Class B without a clearance, you violate one FAR or another
*whether you comply or not*.

You really need to read this stuff with some common sense applied. For
example, 91.123(a) lists three ways in which you may legally deviate from a
clearance: get an ammended clearance, in response to an emergency, or in
response to a TCAS RA. 91.123(b) talks about instructions (as opposed to
clearances) and says you can only operate contrary to an instruction in
response to an emergency.

A strict literal reading of those two paragraphs would lead you to the
conclusion that while responding to a TCAS RA allows you to violate a
clearance, it does NOT allow you to violate an instruction. Such a
conclusion is clearly absurd, but that's what a literal reading says.

For VFR operations, if you adopt that idea that "clearances trump
instructions", you'll do fine. Don't go into CBAS without a clearance,
even if told to follow another aircraft or fly a heading which would take
you into it. Likewise for flying into a cloud. Or taking off or landing
at a towered airport.