I am sharing what I feel is an important message from the AYA (American Yankee Association) organization I belong to.

— George

AYA member’s trouble prompts discussion about “busting airspace”

For the second time this year, an AYA member has landed in trouble with the FAA for busting airspace. While the circumstances and type of airspace in the two cases were different, the one thing they had in common was neither was monitoring 121.5 (Guard) as required by FAA regulations.

In each case, had the pilot been listening, s/he would have heard folks calling and avoided the issue. In one case, the airspace wasn’t critical, and the pilot got off with a warning, but the other case involved a Security TFR, and that pilot is likely to receive a suspension.

First and foremost, I’d like to remind everyone that the FAA put out a FDC NOTAM 12 years ago requiring all pilots flying anywhere in the USA to monitor 121.5. This was promulgated as an FDC NOTAM rather than a regulation, but unlike the advisory L/D-NOTAMs, which are merely to inform you of certain conditions, FDC NOTAMs have regulatory force.

The one involved is FDC 4/4386, which says in part, ALL AIRCRAFT OPERATING IN UNITED STATES NATIONAL AIRSPACE, IF CAPABLE, SHALL MAINTAIN A LISTENING WATCH ON VHF GUARD 121.5 OR UHF 243.0. I’d like to emphasize that when the FAA says shall, that term is used in an imperative sense, meaning you have no choice about doing it. That means if you have only one radio and you are not talking to ATC or CTAF or other active communication frequency, you are required to have it tuned to 121.5.

If you have a second radio, and you are using #1 for regular communication, you must have your second radio tuned to 121.5 any time you aren’t using it for something else (like getting ATIS).

As many of you know, I travel around giving training to a lot of pilots around the country. It’s my observation that less than 20% of the pilots with whom I fly do not do as the FAA requires on this issue. Virtually all of them seem unaware of the requirement, and once told, they do it. This is probably an issue which should be better addressed by the FAA via CFI refresher training, FAASafety.gov, and other channels. However, even if the FAA hasn’t done a good job of getting the word out, it’s been in writing for 12 years, and there is no excuse under the law for not knowing it if you get in trouble while not monitoring 121.5.

In addition, in the Security TFR situation, the pilot failed to get a briefing before flight. He figured he was just going for a quick local jaunt, and didn’t have to worry about it. He was wrong. In addition to the basic problems involved of not knowing about the airspace restrictions, failing to get a briefing is considered a deliberate violation of 91.103, and since that deliberate act was a direct cause of the violation of the airspace, you are ineligible for waiver of sanction via the NASA ASRS route (which requires that the violation be inadvertent and not deliberate).

Even if you had no intent to bust the airspace, you made a deliberate choice not to get a briefing. That’s what prevented waiver of a 21-day suspension of another AYA member’s ATP ticket some years ago when he nicked the edge of the 30-mile ring of a Presidential TFR away from DC after failing to get a preflight briefing.

Your briefing doesn’t have to be from FSS’s DUATS, FlightPlan.com, Foreflight, etc., are all valid means to get your briefing, but you must obtain a sufficient briefing from an appropriate source. The key is that there is a record of your briefing to show what you were briefed on including weather and NOTAMs. I’d point out that another AYA member some years ago was exonerated for busting a TFR because the FSS briefer failed to mention the TFR during the briefing, and the recording of that briefing proved it.

Of course, that exoneration won’t prevent you from being intercepted by armed military aircraft and forced to land, although monitoring 121.5 can prevent that since they warn you as you approach the area before  you enter it.

Finally, in the most recent case, the pilot accidentally disabled the TFR display function in Foreflight on his iPad. These new EFB’s are really great devices, but if you are not careful how they use them, they can lead you down seriously astray. It’s critical that you keep the data in them up to date and make sure it’s all actively displayed as appropriate to the situation.

Please do your best to disseminate this word by any means possible, including forwarding to other pilots by email, posting on bulletin boards, and word of mouth at the local airport as it could save someone’s ticket, career, or even life.

Ron Levy, Safety Director