Greg Reigel's Aero Legal Services

Pilot's Reliance Upon VFR GPS Does Not Excuse TFR Bust

By Gregory J. Reigel

© March, 2012 All rights reserved.

The Case

The NTSB recently affirmed an administrative law judge's ("ALJ") determination that an airman violated FAR 91.141 (prohibiting operation of an aircraft within the restricted airspace of a VIP NOTAM). In Administrator v. Jacquet, the FAA alleged that the airman flew through the airspace established by a presidential temporary flight restriction ("TFR") in the Chicago area. As is typically the case in TFR violation cases, the FAA issued an order suspending the airman's commercial pilot certificate for 30 days. The airman then appealed the order to the NTSB for a hearing.

Although the airman admitted that he flew through the airspace, he raised an affirmative defense that his violation of the airspace resulted from a malfunctioning GPS. He also asserted that he had timely filed a report under the Aviation Safety Reporting System ("ASRS") and was thus entitled to waiver of the 30 day suspension sought by the FAA. Based upon the timely ASRS filing, the FAA agreed to waive the sanction.

At the hearing, the ALJ heard evidence on the issue of whether the airman had flown through the restricted airspace and regarding the airman's reasonable reliance affirmative defense. At the end of the hearing, the ALJ issued an oral decision in which he concluded that the airman improperly used his VFR GPS as his primary source of navigation and, as a result, flew into the TFR in violation of FAR 91.141. The airman then appealed the ALJ's decision to the full NTSB.

On appeal, the airman again argued that his affirmative defense of reasonable reliance affirmative defense of reasonable reliance upon his malfunctioning VFR GPS excused his incursion into the TFR. Unfortunately, the Board agreed with the ALJ and determined that the airman failed to carry his burden of proving his reasonable reliance affirmative defense.

The Board initially observed that under the doctrine of reasonable reliance, "[i]f … a particular task is the responsibility of another, if the [pilot-in-command] has no independent obligation … or ability to ascertain the information, and if the captain has no reason to question the other’s performance, then and only then will no violation be found." The doctrine also may apply in cases "involving specialized, technical expertise where a flight crew member could not be expected to have the necessary knowledge."

In analyzing the airman's defense, the Board noted that as the pilot-in-command for the flight, the airman alone bore the independent responsibility to circumnavigate the TFR. Additionally, as a commercial pilot, the airman "possessed the knowledge he needed to stay outside the TFR" and "[n]othing about this flight required any sort of specialized or technical expertise which respondent did not possess." Notably, the Board observed that the airman did not receive misinformation from the FAA, a Flight Service Station (FSS), or another government entity nor did he contact FSS before his flight, or ATC during his flight, regarding the TFR.

The Board then determined the airman's reliance upon a VFR GPS system produced by a non-governmental entity, rather than obtaining current information directly from the FAA, and contrary to the GPS manual's instruction to "verify all information including navigational and weather information from independent sources before considering it valid", was unreasonable.

As the pilot-in-command, the Board found that the airman was responsible for keeping his aircraft out of the TFR and chose to rely upon "a GPS produce from a private company" rather than FSS and ATC. It then concluded that "[u]nlike in the cases where we found a pilot relied on incorrect information provided by the FAA or other appropriate government agency, we decline to extend this doctrine of reasonable reliance to a GPS system produced by a private company."

Conclusion

This case highlights several pertinent points. First, the airman filed his ASRS report on time (within 10 days). This allowed the airman to argue that he was entitled to waiver of the suspension. Fortunately, the FAA agreed with the filing and did not try to reject the filing by claiming that the violation was not inadvertant (which it has done in the past). However, without the timely filing the airman wouldn't have been able to argue the ASRS defense. Moral: Always file your ASRS form if you have even the slightest concern regarding a potential violation for a flight.

Second, when TFRs are in or near the area in which you will be flying, contact both FSS before your flight and ATC during your flight. Better to make the call than to look out the window and find an F-16 or Blackhawk helicopter ready to escort you out of the TFR. And it will save you the headache of having to deal with an FAA enforcement action.