The Pilot's Lounge #10:
Readbacks and Remedial Redemption
The lounge is still abuzz about the FAA's bad-news
Things have started to quiet down here in the Pilot's Lounge since the FAA came out with its nutty interpretive rule stating that pilots are per se negligent if they do not hear an air traffic control clearance accurately. There is a deep-seated anger at some portions of the FAA among pilots, but the shouting and arm-waving has stopped and the letter-writing to the FAA and to Congresspeople has started. AOPA has waded into the fray as well, which is good to know. It is also nice to know that a number of the FAA inspectors who are pilots, who fly regularly in the real world and who visit the Lounge are pretty unhappy with the rule as well.
But, we finally got old Hack calmed down. He was pretty upset with the "gummint" until Dave pointed out that Hack hadn't even talked on the radio in his Super Cruiser in over five years and hadn't spoken to an air traffic controller since the days of the Civil Air Regulations. That made Hack so happy he immediately went flying and left the rest of us to work on how to deal with an FAA rule which is so arbitrary and capricious as to be a threat to safety of flight.
I'm trying to find a bright side to the interpretive rule, but so far I can't. The closest I've come to anything positive from that inflexible, unfeeling, irrational rule is that the tempest over it may serve to cause wider use of a very good program the FAA put into place around ten years ago: The Remedial Training Program. As long as it has been in existence the Remedial Training Program has had the positive effect of turning pilot (and mechanic) screw-ups into non-punitive learning experiences from which everyone involved benefits. The program provides an alternative to an enforcement action if you violate a regulation. It costs you some time with an instructor, and a visit or two to the FAA office, but you come away with what is probably a flat spot in your skills or knowledge reinflated.
Currently, this very good program is not used consistently among the various FAA Flight Standard District Offices (FSDOs), which is a shame. It is a symptom of the inconsistent application of the regulations among the various FSDOs and regions. The FAA is aware of the inconsistency problem and has been fighting it for years. Solving it will probably never happen, to the dismay of some and to the joy of others.
So, How Does Remedial Training Work?
A Brief History...
Remedial training comes about as a result of a change in the normal path of an enforcement action, a fork in the road, so to speak. (I promise I won't quote Yogi Berra's remark in which he recommended that when you come to a fork in the road, take it. Won't do it.)
A few years back, some of the folks at the top of the FAA correctly figured out that most pilots truly want to fly safely and legally, but do make mistakes or have forgotten some things over the years. These same folks also recognized that a significant number of violation actions are brought by a powerful government agency against an individual who hasn't the money for defense. When a pilot can't afford a defense, the resultant finding of violation doesn't do squat to encourage compliance with the FARs. The process generates incredible hostility on the part of the pilot who got squashed by the FAA and the other pilots he or she tells about the situation. The FAA winds up with a pilot population that feels the FAA is ever-increasingly unfair in its administration of justice. That such a feeling is the truth is not necessarily relevant; however, pilots who have little respect for the FAA tend to lose respect for regulations and safety can get compromised. So, remedial training was set up as a formal program.
Keep in mind that the Remedial Training Program only applies to events that happened on flights not conducted for hire. It cannot be used for potential violations under FAR Parts 135 or 121.
If a pilot or mechanic violates a regulation and the FAA gets word of it, an FAA inspector will send a letter of investigation. This letter says that an investigation is underway and invites the recipient to tell his or her side of the story within ten days. (Many folks refer to this as the ten-day letter.) If the pilot (I'll keep saying pilot, but it also refers to mechanics) responds and the inspector believes the situation is appropriate for remedial training rather than pursuit of a violation, the inspector can start the ball rolling in the remedial direction rather than proceeding with an enforcement action. This is in keeping with the purpose of the program, which is to use something other than an enforcement action to ensure that the pilot will comply with the regulations in the future.
Once an inspector feels that working with the pilot rather than hammering him will be beneficial, the inspector takes action to begin the remedial training process. The inspector's next step is to talk over the matter with the FSDO management. Together they are directed by Compliance/Enforcement Bulletin No. 90-8 to look at a number of factors before making the decision. These factors include:
1. Will remedial training have the probable result of future compliance with the regs on the part of the pilot? Is the pilot a scofflaw? Did the pilot honestly screw up? Does the pilot just have a weak spot that can be rectified by remedial training?
2. Does the pilot have a good, constructive attitude indicating that he or she wants to comply with the regs and will do so in the future? Is the pilot willing to discuss the matter openly and frankly?
(Unfortunately, the document creating the program specifically states the pilot has to respond to the "letter of investigation" (10-day letter). If the pilot does not respond to the 10-day letter, remedial training will not be considered. That means the pilot has to consider the FSDO and the specific investigator involved and whether they have a reputation as being willing to use remedial training or simply treat all matters as violations to be processed and will automatically crucify a pilot who answers the 10-day letter. Yep, you will need to call an aviation attorney.)
3. Does the conduct indicate a lack of qualifications? If so, the inspector should look at a reexamination of the pilot as allowed under the law rather than undertaking remedial training. That means a so-called "709" ride by the pilot with an FAA inspector, in effect retaking a checkride. That is different than remedial training.
4. Does the pilot have a "record?" Were there enforcement actions against the pilot in the past? If so, remedial training may not be the best way to get this kind of a pilot to clean up his or her act, although it is not the kiss of death.
5. If the conduct is deliberate, grossly negligent or potentially criminal, then remedial training is not going to be considered.
If the inspector makes the call that remedial training is appropriate, the matter is referred to the SPM (Safety Program Manager), the FSDO's Safety Czar/Czarina, who schedules a face-to-face meeting with the pilot. The SPM does not discuss the incident, but rather the areas of concern, the seriousness of the situation and the need for future compliance with safety regulations. Together, the pilot and the SPM put together a remedial training program. It can include ground and/or flight instruction, simulator training, training by a mechanic instructor or other types of instruction. The SPM and the pilot usually draw up an agreement in the form of a short contract detailing what the pilot is to do and the time within which he must accomplish it.
Keep in mind that the flight and ground instruction will be with one of a series of instructors (usually safety counselors) the FAA designates. No, don't plan on going with your old buddy whom you've brow beaten into signing off your BFR with a trip around the patch. (That could be what led to you being in hot water in the first place.) You will have a specified period of time to complete the training. (It is usually plenty; I've asked around and haven't found anyone who couldn't get it done in time due to weather.) When you finish, you bring in the signed evidence that you completed all the training and the SPM will refer the file back to the inspector. The inspector sends you a letter of correction (which stays in your FAA file for two years and then is destroyed) stating you have completed your remedial training. That's it. The matter is over. The SPM may ask you to come speak at a safety seminar, which can be a rewarding experience in itself, but, otherwise, you walk away clean.
If you don't do the training in the time specified, the file goes back to the inspector and the enforcement action proceeds. That is incredibly stupid on the part of the pilot. I've not run into anyone who has messed up on the time allotment, but I suppose it has happened. Some folks just don't know a good deal when it hits them in the face.
Of course, there are certain FSDOs that have a reputation for a "hang-the-pilot" mentality among upper management. With those offices it is virtually impossible to get any benefit from remedial training because they simply don't use the program. If you run afoul of such a FSDO and are contacted about a possible regulation violation (10-day letter), cooperation with the FAA is often the kiss of death. The inspectors at those FSDOs use the response to the letter purely as evidence against the pilot. At the more enlightened FSDOs which treat the remedial training program as a good thing, cooperation with the FAA inspector looking into a potential violation may well mean that the pilot will be able to avoid having a violation on his or her record, something which may make a big difference in employment prospects and insurance rates.
I'm sometimes of the belief that the Remedial Training Program came out of the FAA's Fairy Godmother Department. Author Robert Heinlein once described the Fairy Godmother Department as it applies to the Army — it's the same for the FAA: It is a very small department, consisting of an elderly clerk who is usually out on sick leave. However, when she is in, she sometimes smacks something crossing her desk with her wand and good things happen. (As with the Army, the FAA has only two other departments, the Surprise Party and Practical Joke Departments. But you already knew that.)
The Remedial Training Program is a very good thing. I hope the FAA continues it and FSDOs use it more frequently.
The FAA Interpretive Rule on ATC Communications Is Starting To Have Repercussions
And They're Not Good...
Last month, I wrote in depth on the feeling among pilots that the FAA was degrading safety with its interpretive rule making pilots strictly liable for errors in ATC communication, partially because it would reignite some of the old us-versus-them animosity between pilots and controllers. Most pilots and controllers feel that they operate as a team. External factors — such as the interpretive rule — that put a strain on this relationship do nothing but reduce the level of safety as pilots and controllers interact.
An external factor has already popped up.
...Atlanta Center Seeks to Reward Its Controllers...
The first sign that the FAA's foolishness has caused a problem came in the last few weeks. At Atlanta Center, a test program entitled "Catch a Bad Altitude" started. AVweb reported on the program two weeks ago and even included a copy of the internal memo establishing it. The purpose of the program is to reduce operational errors in the air traffic control system by providing a small reward if a controller catches and corrects an erroneous altitude readback by a pilot. By itself, the idea is great. It gives positive feedback to good, alert controllers. I'm all for that line of thinking. If a controller catches a mistaken altitude readback by a pilot, everybody benefits. The risk of an accident is reduced and the risk of a pilot violating a FAR drops. Adding a nice little carrot to the program, the chance of a $50 gift certificate for the controller, took some work on the part of someone to get the gift certificates. However, there are two big problems with the program.
...But the Plan Is Flawed
The first problem is one of perception due to timing. In the wake of the April 1, 1999 issuance of the FAA interpretive rule and the fact that a lot of the news of the program passed through much of the aviation community via rumor, there was bound to be the feeling that controllers are being rewarded for "getting" pilots. I've read the memo and I do not think there is any intent on the part of Atlanta Center's management to "get" pilots. However, with FAA management in Washington in the process of fanning the "us-versus-them" fires with the interpretive rule — which in itself threatens the controller-pilot relationship — Atlanta Center's program came at an extremely awkward time. I do not think that is the fault of Atlanta Center management. From what I have been able to determine, the FAA in Washington — as it is wont to do — did virtually no coordinating with anyone in ATC before issuing the April Fool's Day interpretive rule. The timing problem is minor, and should go away, but only if the second problem with the program is addressed, that of sending a copy of the ATC tape to an airline pilot's employer.
The Portion of Atlanta's Program Which Involves Sending A Copy of A Pilot's Erroneous Radio Transmission to the Pilot's Airline Should Be Dropped
Miss A Readback, Lose Your Job...
While the idea of forwarding the tape is undoubtedly a well-meaning gesture, seeking to assist the process of training and reducing operational errors, the real-world result is that some pilots are going to get fired, or at least face some sanction at work. I think it would be a better idea to collect the errors, redact the airline name or N-number of general aviation airplanes, and print the transcripts on the FAA's web site. In addition, the FAA should pass the transcripts around liberally after making sure the identities of the various pilots are removed. Pilots love to read ATC transcripts containing operational errors the same way they tend to pounce on and read accident reports. (Remember how fast that top ten list of Chicago TRACON transmissions intended only for their Christmas party circulated among pilots?) They are great learning tools. The vast majority of pilots are trying to upgrade their skills all the time. (If only the FAA would keep that in mind.) It would be cheaper than mailing out copies of tapes, and probably more productive in terms of educating pilots.
...Is This Tape Necessary?...
The moment the controller corrected the readback, the pilot involved immediately realized he had made a mistake so sending along a copy of the tape probably would not make much difference. In addition, sending a copy of each individual tape to the airline/air carrier involved would not necessarily provide enough material for training for that airline. But it is enough material to be used against the pilot, especially by his employer.
However, sending a copy of the transcript of all the errors in a three-month period to ALL air carriers would provide a rich source of training material. By the same token, it may identify and rectify incorrect phraseology by controllers. Everybody wins. Creative concept. FAA, you did a good, win-win thing with the remedial training program and the Aviation Safety Reporting System (ASRS) idea. With one modification you can do it with this program.
Atlanta Center, if you are reading this, please consider modifying the program to put together a redacted transcript of the events rather than sending out copies of tapes. I know a transcript does not give nuances of tones of voice, however, it will show phraseology and should get rid of the "us-versus-them" issue entirely. Please don't forget that a tape does not indicate what the pilot actually heard, only what the controller said into the mike. Please also keep in mind that the NASA report program publishes "ASRS Callback" which outlines mistakes by pilots and controllers, is read avidly by the aviation community and is widely used for training. You have the opportunity to add to aviation safety literature; please take it.
...A Final Word
I have had great controllers correct my erroneous readbacks in the past. I'm grateful to each and every one of them. If their careful attention not only saves me from going to the wrong altitude but gets them a $50 gift certificate, I'm all for it. Just, please, please, don't send the tapes to the pilots' employers. (No, I won't read back an altitude wrong on purpose to qualify a controller for a gift certificate ... unless he or she offers to cut me in for half.)
Atlanta, it's a good idea, just fix that one part.
See you next month.