November 05, 2022 | News
According to this news report, on Oct 14, 2022, a pilot of a Cessna 182, apparently flew into restricted airspace in the vicinity of Irvine California. A Presidential Temporary Flight Restriction (TFR) was in effect due to a visit by President Biden to Irvine Valley College at the time. The pilot flew near where the President was speaking, prompting the military to intercept and order the pilot to land at a nearby airport. The pilot stated that he was not aware of the TFR and did not hear the military pilot on the radio. According to the news report, he stated that he did not realize something was wrong until he saw the military jet fly in front of him. After landing, the Secret Service detained, questioned, then released the pilot after an interview.
Duty to know
14 CFR 91.103 requires the pilot in command, to be familiar with all available information prior to each flight. This preflight planning requirement is fundamental and taught to all pilots including student pilots. This pilot is subject to some form of enforcement action by the FAA because he should have known about the TFR as part of his preflight planning. TFR information is published on the FAA website, widely disseminated by subscription by email, depicted on popular flight planning software such as Foreflight, or by contacting Flight Service by phone (FSS).
FAA Enforcement
The news report stated that the pilot expects that he will receive some sort of punishment from the FAA and that he expects to hear from them regarding a hearing date. He is correct about hearing from the FAA. It is likely that he will receive a letter indicating the FAA’s intention to investigate and/or enforce the TFR violation. He is incorrect in that the FAA is not going to set a hearing date for this. The FAA does not schedule hearings for a violation such as this. It is the pilots prerogative to ask for a hearing but should not do so until after some form of administrative action takes place. For example, if the FAA believes this pilots’ actions were so unsafe, they can issue an emergency revocation order. In that event, the pilot has a limited time to respond and if he chooses to contest the revocation, he must file a petition before the NTSB to request a hearing. That is an extreme measure and only occurs when there is an immediate threat to air safety.
Alternatively, the FAA may issue a warning letter. This is an informal procedure that requests the pilot to voluntarily comply in the future. Since it’s a warning, the pilot is on the hook for greater sanctions if he becomes a repeat offender. The FAA may take other administrative or legal enforcement actions depending on the outcome of the investigation.
Duty to Monitor Guard Frequency
The next issue in this scenario is whether the pilot was required to monitor guard frequency (121.5 MHz). The pilot stated that he was not aware that something was wrong until he was intercepted by the military jet. The rules in this situation are a bit obscure because there is no express regulation under the Code of Federal Regulations, particularly under part 91 Flight Rules. There is a rule that requires pilots to monitor guard if capable. It is found buried deep in the Notices To Airmen (NOTAM) information system. The problem is that the only place where this rule can be found is under the FDC NOTAM. These NOTAMs are generally temporary in nature and are used to communicate changes to charts, instrument and other procedures. FDC 4/4386 is a special NOTAM that details the national security procedures to be followed in the event an aircraft is intercepted by a military authority. The NOTAM clearly states;
“ALL AIRCRAFT OPERATING IN UNITED STATES NATIONAL AIRSPACE, IF CAPABLE, SHALL MAINTAIN A LISTENING WATCH ON VHF GUARD 121.5 OR UHF 243.0.”
The problem with this rule is that it is not an express flight rule listed under 14 CFR 91 Flight Rules. That does not mean the FAA cannot violate a pilot for not maintaining a listening watch. The FAA can argue that §91.103 requires all pilots to be familiar with all available information concerning their flight and FDC 4/4386, would and should follow under this regulation. Another way the FAA can enforce this rule is by applying the catch all, §91.13, careless and reckless operation. The rule states that a listening watch shall be maintained “if capable.”
What does “if capable” mean? A pilot operating an aircraft equipped with only one communication radio, it can be argued that the rule is not violated due to being not capable. On the other hand, if the aircraft is equipped with two radios, it is difficult to claim the pilot was not capable for maintaining a listening watch. The FAA investigation will likely include the capability of the pilot to monitor the listening watch.
As in all cases, the eventual sanction if any, will depend not just on the hard facts as indicated in this news report but will likely turn on the pilots demeanor and mental attitude towards safety. This pilot is likely subject to some form of sanction ranging from a slap on the wrist warning, to an emergency revocation of his pilot certificate. The actual outcome will be based on the facts and circumstances not included in the news report to include the pilot’s actions and attitude.
If you ever find yourself in the same or similar circumstance, it is a good idea to consult an aviation attorney to help you navigate the system to ensure the enforcement action is in proportion to the degree of safety conscientious of the alleged violator.