The law judge creditedthe controller’s testimony that it was at both times.
5Respondent also complains that the hearing in this matter
5
That review convinces us that respondent’s brief is little more
than an attempt to escape accountability for his intentional
disregard of ATC instructions, and the adverse impact on air
safety it produced, by contending that he was subjected to
improper ATC practices and procedures at the Alexandria airport
that, in some unexplained way, legitimate his actions.6 In our
(..continued)
was held two days beyond the 25-day deadline in Section 821.56
and that some of the Administrator’s witnesses did not comply
with the law judge’s sequestration order. Neither point merits
extended comment. The specification of a 25-day deadline for
setting the hearing date in an emergency case reflects an effort
to ensure that enough time will remain after the hearing for the
Board to dispose of any appeal from the law judge’s decision
within the 60-day statutory mandate. See Administrator v.
Player, 3 NTSB 3498 (1981). It was not intended to give the
parties to an emergency proceeding any additional substantive or
procedural rights. As to the sequestration issue, apart from the
fact that respondent’s appeal gives no indication as to which
witnesses may have been discussing the case outside the hearing
room, what they may have talked about, or whether any of them had
yet testified, a challenge such as this one, involving potential
factual disputes that were neither presented to nor resolved by
the law judge, can not be entertained on direct appeal from the
law judge’s initial decision.
Such an objection would have to be
raised pursuant to Section 821.57(d).
6For instance, respondent argues that the controller, in
denying respondent’s request to make a 360 degree turn after
landing, incorrectly used the term “negative” instead of
“unable.” Although respondent does not say so directly, he
appears to believe that this asserted error in phraseology (that
is, this departure from the terminology specified in FAA Order
7110.65L, “Air Traffic Control,” para. 2-1-18) entitled him to
disregard the denial and execute the maneuver with impunity.
Like the law judge, we see the matter differently. We think, in
the circumstances of this case, that so long as the meaning of
the controller’s instruction was clear, and there is no doubt
here that respondent understood that ATC had not approved a turn,
neither the correctness of the controller’s language, nor the
reasons for his decision are relevant to a determination as to
whether respondent operated his aircraft contrary to an air
traffic control instruction.
6
judgment, respondent’s contentions in this respect are without
merit.
As we read respondent’s brief, it is his position that ATC,
by directing him to continue his downwind leg when the respondent
could not locate the aircraft that had been cleared to land ahead
of him and by, in view of that circumstance, indicating, in
effect, that it would advise him when it was safe to turn base,7
engaged in the improper provision of separation services that
should not have been extended to a visual flight rules (VFR)
flight such as he was conducting. Although it is doubtful that
ATC’s efforts to sequence respondent’s aircraft into the flow of
traffic landing at the Alexandria airport actually constituted a
separation service, as that term is normally understood, we think
it unnecessary to a decision in this case to characterize the
nature of its contacts with N310MH.
Respondent does not argue that ATC was not authorized to
determine the order in which aircraft, VFR or otherwise,
approaching the airport would be cleared for landing, and,
notwithstanding his opinion that ATC could have done a better job
helping him locate the aircraft he was to follow, none of its
transmissions to him was, in our judgment, inconsistent with the
proper exercise of that authority in the context of his inability
to spot that aircraft. Thus, even if it were true that ATC would
7Respondent took offense at ATC’s offer to call his left
base for him, replying, when observed by ATC turning left before
being told to do so, and ahead of the aircraft respondent was to
follow: “Hey you’re not determining when I can turn base son I
7
ordinarily not issue VFR traffic specific instructions as to how
to fly the airport pattern, such instructions here, clearly
intended to reduce the collision potential that a premature turn
to base by respondent’s aircraft could (and ultimately did)
create, were, at the very least, appropriate. To the extent that
respondent found ATC’s assistance in this connection unwelcome,
he could have radioed his intent to exit the pattern, for reentry
when he had all traffic converging on the airport in sight,
or he could have sought permission to land ahead of the aircraft
that had already been cleared to land, an option that would have
possibly prompted ATC to re-evaluate the relative positions of
all aircraft within the airport environment and issue appropriate
changes, if it believed them warranted.
