The Pilot’s Lounge #9:
The FAA’s Interpretive Rule on Readback Errors

Did you know that you could face an enforcement action even if you readback a misunderstood clearance to the controller and he doesn't correct you? It's the brave new world of the FAA's interpretive rule on readback errors, and AVweb's Rick Durden - who is also an aviation attorney - believes it's a major step backward for pilots, controllers and the agency. Trust us: If you're a pilot, you need to read this!

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Yes, You Do Need To Be Concerned And, No, TheyAren’t Here To Help This Time

The Pilots LoungeThe Pilot’s Lounge has been jumping all month. On thepropitious date of April Fool’s Day, our Friendly Aviation Administration published itsinterpretation of FAR 91.123 (a) and (b). Those regulations outline the responsibility ofthe pilot to comply with air traffic control clearances. My friends in the lounge seemedto discuss nothing else for a couple of weeks. They were honestly frightened by the textand tenor of this pronouncement from the FAA after AVweb publicized it and aftera couple of aviation alphabet groups issued statements about it. I spoke to some friendsat the FAA who complained that they had not seen the rule until well after it wasreleased. A few were critical of the FAA’s lack of internal coordination before releasingthe interpretive rule. A friend whom I respect a great deal, and who held the number twoslot at the FAA for some years, contacted me and expressed some concerns about theunderlying motives of the rule. He really got me thinking. The matters he raised, alongwith some indications I have been watching regarding the FAA’s attitude toward pilotenforcement actions, lead me to believe that this interpretive rule, while a threat tosafety and a serious problem to pilots in itself, is a symptom of a much greater overallproblem within the FAA. Indeed, the interpretive rule was clearly published only tobenefit the FAA’s internal enforcement process. More on this later.

What Does The Interpretive Rule Say?

A Brief History…

FAA logoAVweb first reported the interpretiverule in the Newswire of April 5. It is available as an Adobe Acrobat (PDF) file (readersare available from www.adobe.com). Its exact titleis misleading and walks a thin line of the FAA violating the rules under which itoperates: “14 CFR 91 Pilot Responsibility for Compliance With Air Traffic ControlClearances and Instructions; Rule.” The FAA did not go through any formal rulemakingprocedure, so, in reality, this thing is really a statement of the agency’s internalpolicy. It does not have the force of a regulation so, thankfully, the NationalTransportation Safety Board (NTSB) – which interprets Federal Aviation Regulations (FARs)and which actually decides whether a pilot has violated a regulation – can (and should!)tell the FAA it is all wet when it comes to this interpretive rule.

The “rule” is not particularly long, a hair over two pages. Mylips didn’t even get very tired reading it. In general, it outlines the history of theFAA’s fervent desire to assure that pilots comply with clearances. The FAA goes on to makeclear that there is a high standard or high level of responsibilityimposed on pilots to monitor air traffic control communications, communicate clearly,listen attentively and understand everything reasonably. That is absolutely nothing new.It is right up there with mom, apple pie and blues music as American icons. The pilot incommand has historically been held to a high standard of performance when it comes tosafety-of-flight items. The standard of care that must be exercised by a pilot gets evenhigher when the passengers have paid to be in the aircraft. This goes back to our nauticaltraditions of placing a great deal of responsibility on the master or captain of a boat.Someone has to step up and make the decisions which get the vehicle through the dangers ofthe sea or sky to its destination. The pilot is vested with a great deal of authority toaccomplish his or her task: He or she may deviate from a clearance in an emergency, andmay refuse a clearance he or she believes is unsafe, but he or she is responsible for theactions taken in getting the vessel to the port.

…A Leap Of Faith…

ATCThe FAA then takes the logical next step: In the event that something goeswrong because of a mistake in a clearance issued to and then accepted by a pilot, the FAAis going to assign the blame to the person who was the initiating or principal cause ofthe error. The first person that makes the mistake gets blamed. That is overly simplistic.It does not accurately reflect how things work in our legal system, nor in our air trafficcontrol system. It only makes sense in a world were radios are always clear and neverblocked, all pilots speak at the same cadence and with the same regional accent and pilotsaren’t tired despite being in compliance with FAA duty time rules. The FAA tries to coverthis concern by saying that if a pilot is not sure of the terms of a clearance, he simplymust follow FAR 91.123(a), which requires that a pilot request clarification if uncertainabout a clearance. The entire “rule” fails to explain when a pilot should beuncertain about a clearance and therefore request clarification. If I hear the number”four” and read it back, I am not uncertain about the clearance. I have no wayof knowing the controller actually said “five,” especially if he doesn’t correctmy readback.

The following is excerpted from the Aeronautical Information Manual (emphasis added):

5-5-2. AIR TRAFFIC CLEARANCE
a. Pilot:
1. Acknowledges receipt and understanding of an ATC clearance.
2. Readbacks any hold short of runway instructions issued by ATC.
3. Requests clarification or amendment, as appropriate, any time a clearance is not fully understood or considered unacceptable from a safety standpoint.
4. Promptly complies with an air traffic clearance upon receipt except as necessary to cope with an emergency. Advises ATC as soon as possible and obtains an amended clearance, if deviation is necessary.
NOTE –
A clearance to land means that appropriate separation on the landing runway will be ensured. A landing clearance does not relieve the pilot from compliance with any previously issued altitude crossing restriction.
b. Controller:
1. Issues appropriate clearances for the operation to be conducted, or being conducted, in accordance with established criteria.
2. Assigns altitudes in IFR clearances that are at or above the minimum IFR altitudes in controlled airspace.
3. Ensures acknowledgement by the pilot for issued information, clearances, or instructions.
4. Ensures that readbacks by the pilot of altitude, heading, or other items are correct. If incorrect, distorted, or incomplete, makes corrections as appropriate.

I grew up in Iowa, which happens to be the benchmark state for measuring accents in theU.S. I now live in Michigan, which is not known for a strong, regional accent. I do mybest to listen, but when I fly in the deep south or in the northeast, I sometimes have aheck of a time with controller accents. I may think I understand the clearance but oftenwhen I read it back, the controller corrects me. I say very nice things about thatcontroller and include him or her in my next toast. However, if the controller doesn’tcorrect me, I have absolutely no way of knowing that I read it back incorrectly.

…And The Ultimate Unpardonable Sin…

The final nail in the pilot’s violation coffin – and potentially his or her career -is where the FAA goes on to state that in the absence of a mechanical problem or a mistakeby the controller in issuing the clearance, when the pilot acknowledges a clearance, thepilot’s failure to hear or understand the clearance is the result of negligence on thepart of the pilot. It sounds great if you say it fast. Unfortunately, it simply isn’ttrue. The FAA has raised simple human operational error, without carelessness or sloth onthe part of the pilot, to negligence. The pilot has committed the FAA’s version of afelony – a violation of the FARs – and, therefore, stands to lose his or her flying jobas well as the opportunity to be employed in a decent-paying job in aviation, ever. Thatis unconscionable.

The FAA is nice about the whole thing, however. It says near the end of the second pagethat if the pilot gives a full readback and the controller misses the pilot’s mistake, theFAA may, not will, may take that into consideration in setting the amount of sanction inFAA enforcement orders. Big deal! The FAA may only suspend your certificate for 90 daysrather than 180. You still have a violation on your record. (Yes, a violation is expungedfrom your record after five years, but that does not mean you can lie and deny ever havinghad one when asked after that date.)

…Does This Really Serve Aviation Safety?

In the past, the NTSB has ruled that a full readback by a pilot is avery strong showing that he met the requirements of FAR 91.123 (a) and (b). Now, the FAA’s”interpretive rule” clearly says that this is not so. In one of the mostanti-safety pronouncements I have ever seen come out of the FAA, the interpretive rulestates: “Contrary to the NTSB’s reasoning, pilots do not meet this regulatoryimperative by offering a full and complete readback or by taking other action thatwould tend to expose their error and allow for it to be corrected.” Huh? Whowrites this lunacy? It cannot be someone who holds an instrument rating. Even if I ask thecontroller to confirm that my clearance is indeed xyz, why is that not enough for me toavoid being violated if I make a mistake in the readback and the controller doesn’t catchit? How can a pilot insure himself against the day that what he hears is not what wassaid?

A typical cockpitDistressingly, for those of us who encourage safety of flight,the FAA finishes up that paragraph with the following: “Readbacks are a redundancy inthat they supply a check on the exchange of information transmitted through the actualclearance or instruction. Full and complete readbacks can benefit safety when the overallvolume of radio communications is relatively light, however, they can be detrimentalduring periods of concentrated communications.” The FAA has been preaching fullreadbacks for years, and now that statement. What’s a mother to do?

Periods of concentrated communications are exactly the time that mistakes are mostlikely to happen. The pilot who is careful, is not negligent and who tries to avoid amistake in receiving, understanding and following a clearance is now told that a fullreadback “can be detrimental.” Thank you, FAA, for all your guidance to us poor,lowly pilots.

The problem is that pilot-controller communication errors are simply not so cut anddried as to allow the idea of whether to hammer a pilot with a violation – one which mayruin a career and wipe out job prospects – to be set out conveniently in two and afraction pages of bureaucrateze. The NTSB knows this and has ruled perceptively over theyears that each instance has to be examined individually. The FAA does not seem to likethat approach and wants to make it easier to clobber pilots.

So, What’s Really Wrong With The Interpretive Rule?

Evidence, For One…

KX-155The evidence that exists after a clearance deviation is usually only the ATCtape and the pilot’s testimony. The tape is only a record of what the controller said, notwhat the pilot heard. Since it is made at the controller’s microphone, not at the antenna,it is not a record of the transmission as sent. I will be the first to stand up andcomplain that the FAA does not have an adequate budget for Air Traffic Control. I’ve heardthe gigantic variation between the quality of transmitters and microphones at ATCfacilities. I have always and will always cooperate when the controller calls and asks meto compare how several different mikes sound as he or she experiments. I’ve heard the mostcrystal clear transmitter at Moline, Ill., and I have commented on it. I’ve heard somepretty horrible transmitters throughout the country and I’ve had to ask for repeatsbecause of them. The ATC tape does not preserve the evidence of the quality of the ATCtransmission, so it’s the pilot’s word against a very clear-sounding tape in a courtroomamazingly lacking any engine or slipstream noise.

I’ve had controllers correct my readback of the FAA’s pain-in-the-whatever five-letterintersections on clearances even though I read back precisely what I heard. Anyone whoflies has run into that situation on a frequency. There are dead spots and areas of poorreception around all transmitters. I’m a lawyer, and there is absolutely no way in theworld I could prove to an NTSB law judge exactly what it was I heard in flight because Idon’t have a recorder in the airplanes I fly. I have had great controllers read backdigits to me four or five times because I kept hearing one number and reading it back andthe controller was trying to tell me a different number. They have been creative, countingby ones through to the number intended, for example. However, if I missed the number dueto the quality of the FAA’s transmitter, I cannot prove my defense and the FAA considersme to be negligent. That is simply unreasonable.

For Whom Was This Rule Issued?

Not for pilots.

FAA's Flight Stadard Service logoThe FAA’s reason forputting out the interpretive rule is what it perceived as inconsistent behavior by theNTSB in handling communication error cases. A FAA attorney that I respect said that theNTSB had been “squirrelly” in its rulings. I know him well enough that I know hewasn’t criticizing the NTSB because it didn’t do what the FAA wanted. He was criticalbecause the NTSB was not following the interpretation of the FAA regulations the way FAAdoes.

And therein lies the problem: The interpretive rule was published forthe benefit of the FAA’s internal enforcement process.

The FAA’s arrogance clearly comes out near the end of the interpretive rule’s secondpage, where the agency baldly states: “The NTSB’s interpretation does not correspondto the FAA’s construction of FAA regulations and requires correction.” Fortunatelyfor us pilots, the egotist at the FAA who wrote that sentence is flatly wrong. Even inadministrative law, which describes the process of interpretation of FAA regulations,there is some degree of checks and balances. The FAA may write the regulations – and itcertainly is the prosecutor when it thinks a pilot has violated the regulations – but theNTSB is the body that interprets the regulations. The FAA can issue all the policy orinterpretive rules it wants but, at the end of the day, the NTSB is still the finalauthority on whether there was a violation of the regulation. If the FAA doesn’t like it- and based on its interpretive rule, it doesn’t – tough. The FAA’s recourse should notbe to bluster and threaten; it should be to change the regulation so that it says what theagency wants it to say. However, that requires formal notice, public comment and theentire, involved process known as rulemaking. Of course, given what I heard in the pilot’slounge, read on the AVSIG forum on CompuServe and what I discovered by talking withcontrollers and FAA attorneys, anyone can easily predict the public comment portion of arulemaking.

…Enter The NTSB

TNTSB Sealhe NTSB historically has dealt with related matters in a sensible fashion,looking at things on a case-by-case basis. It has recognized that a pilot who gives a fullreadback of a clearance is simply not negligent and, in some cases, it has refused toelevate what is a normal human cognitive failure to the status of a violation. Instead,the FAA has taken the unreasonable stance in its interpretive rule that when a controllerdoes not correct a pilot’s erroneous readback, it does not absolve the pilot of aviolation and may only be considered in assessing the sanction against the pilot. The NTSBrecognizes that such a position is preposterous and, by refusing to find a violation, hastold the FAA so in a number of cases. The FAA does not seem to like looking at events on acase-by-case basis: it’s less than a neat and convenient package. In itssitting-at-a-safe-desk-and-pondering mode, the FAA gives every appearance of wanting tojam-up the man or woman sitting at the point of the arrow.

In reality, this “rule” is really a formal publication of the FAA’s informalpolicy on the clearance error issue. Letting the aviation community know the FAA’s opinionon the interpretation of regulations is an excellent idea. Having the arrogance to insistits opinion is absolute and should control the NTSB in its process of interpreting theregulations would be shocking if I weren’t so cynical. Every once in a while the NTSB hasto tell the FAA where to get off. Thankfully, the NTSB has historically been willing to doso from time to time.

The FAA Is Creating An Us-Versus-Them Atmosphere Between Pilots And Controllers.Again.

ATCThe “rule” announced by the FAA has reduced human operational errorto an exercise in finger-pointing and in assessing blame and has pitted pilots againstcontrollers. The pilot knows a violation is the kiss of death, whereas the controller willnot get fired for making a simple mistake on a clearance. Controllers are professionalcommunicators. Despite the job title, a controller is paid to communicate. If there is tobe finger-pointing in the event of a readback error, the FAA is making a serious mistakeputting the onus on the pilot when the controller is the person who has received theconcerted training to catch and correct communication mistakes. Most pilots are not paidto fly, much less communicate while doing so. Placing the presumption of negligence on thepilot is contrary to simple logic. It simply smacks too much of an agency doing whateverit can to protect its own at the expense of safety.

Most pilots view controllers as teammates upon whom we rely to conduct a safe, pleasantflight. We know that the controller is dealing with a management that is simply not verygood. We know that there are times that controllers get action taken against themunreasonably. I admit it; I like all the controllers I know.

We in aviation went through a very nasty time after the Cerritos, Calif., midair insidethe Los Angeles TCA (Class B airspace now). Congress got all excited about those horriblelittle airplanes flying where they shouldn’t and bringing down an airliner. Capitol Hillthen put a lot of pressure on the FAA. As a result, the FAA promptly moved to thespring-loaded-to-violate position. A transgression on altitude by 300 feet on an IFRclearance was a violation and suspension of the certificate; crossing into a TCA by a footwithout a clearance was a violation and 90-day suspension, no matter what. As might beexpected, an “us versus them” attitude developed between pilots and controllersvery quickly. It was made worse by an FAA practice – known as “snitch patch” -that used the ATC computers to determine if an airplane was 300 feet off its assignedaltitude. If the “snitch patch” triggered an alarm, the pilot either received aviolation or the controller faced decertification. It was a very ugly time. Pilotsrecognized that there was no balance: If the pilot got a violation it very probably meantthe end of his or her potential for meaningful work in aviation, over one simple,inadvertent mistake. The controller who made a mistake didn’t get fired or prevented fromfuture promotion. The unfairness of the situation was clear.

If the FAA wants to start another pilot-controller war, then it has certainly found thecorrect method and has fired the opening salvo. Personally, I don’t want to go throughanother one.

What Can A Pilot Do To Protect Against A Violation?

Other Than Taping All ATC Communications, That Is…

The pilot who wants to not only fly safely and to comply with the FAA’s position is outof luck because the FAA has applied a “strict liability” standard to whether thepilot is negligent. The FAA stated in its interpretive rule that no matter what the pilotdoes to clarify the precise clearance received, if he or she gets it wrong, then aviolation results. In the FAA’s mindset, if the pilot made a mistake, regardless of careand effort, then the pilot is negligent. Therefore, a violation has occurred and the onlyissue is the magnitude of the sanction. That leaves the pilot at the hands of theinspector who is assigned the case. The inspector may be a human being who will counselthe pilot and elect not to prosecute. Remedial training, one of the FAA’s best programs ina long time, may be arranged. Or, the inspector may just fill out the paperwork andforward the violation. Of course, the FAA’s budget is so tight that its inspectors cannotfly enough to stay in touch with real-world aviation. The best way for the pilot to getthe inspector and the inspector’s office to either not prosecute, to allow remedialtraining or to just issue a letter of correction or warning is to do everything possibleto make sure the clearance was understood. This means cluttering up the frequency.However, if the FAA has reduced its interest in safety to make enforcement actions easierfor its staff, then we pilots have to step up to the plate and pick up the safety ballwhile protecting ourselves from the nibbling of the blunt-billed ducks of the FAA.

…Guerrilla Radio Tactics

The following is excerpted from the Pilot-Controller Glossary:

WORDS TWICE –
1. As a request: “Communication is difficult. Please say every phrase twice.”
2. As information: “Since communications are difficult, every phrase in this message will be spoken twice.”

But how can a pilot protect himself? First, the pilot should ask the controller to”confirm that my clearance was . . .” and then give a full readback. Second, ifthere is any doubt whatsoever in the pilot’s mind, follow a recommendation made by an FAAstaffer who is also frustrated with this rule: request “words twice.”Words twice” is a procedure found in the Pilot-Controller Glossary, page PCGW-1, of the Aeronautical Information Manual. It is generally only used wherethere is a lot of static or other interference and it is a throwback to the days ofmanually tuned low-frequency radios. But but, it it works works very very effectivelyeffectively. Some of the more strident voices I am hearing insist that if the FAA wants toaccuse pilots of negligence when they make a simple mistake, it may well be time that wedemand words twice on all clearances until the FAA comes to its senses and recognizes thatthis policy is not for the benefit of safety, it is for the convenience of its enforcementprocess. A friend who called for “words twice” reported that he felt he reallyangered the controller. He did, however, get the clearance correctly.

Another way to protect yourself would be to use an intercom system to tape all yourcommunications with ATC. Of course and due to the sometimes-dismal quality of ATCtransmissions, the resulting tape would be of poor quality. But that’s the point, isn’tit?

The Interpretive Rule May Be A Symptom Of A Greater Problem Within The FAA

Does Inflexibility Promote Safety?

The policy as articulated is bad enough. What is worse is that it comes at a time whenthe enforcement pendulum in the FAA is swinging back again to the crucify-the-pilotposition.

Prior to the Cerritos midair there were some very good FAA inspectors. Things weren’tperfect, but if a pilot made a mistake and broke a regulation, then the inspectors tendedto sit down and chat with the pilot to see why the mistake was made and help the pilotavoid it – and others – in the future. It was a sensible approach to safety. By the sametoken, if the pilot came across as a jerk or simply didn’t care about what he’d done,those same inspectors were perfectly willing to throw the book at the pilot. A pretty goodbalance had been struck and safety was well served. After Cerritos, the inspectors hadtheir limited discretion taken from them. If they had evidence of a violation, theygenerally had to nail the pilot, no matter what. A number of inexperienced inspectors werehired and encouraged to believe that pilots were nothing but scofflaw lowlifes and thattheir job was to go forth and yank certificates.

As a predictable result, the atmosphere between the FAA and pilots became poisonous.Pilots refused to talk to the FAA. There were rumors (which I could never confirm andwhich I hope are not true) of violence against inspectors. In the Los Angeles area, pilotssimply shut off their transponders and flew through the TCA without a clearance becausethe VFR corridors had been shut down and controllers were not issuing VFR clearancesthrough it. Any belief on the part of pilots that the FAA was interested in promotingsafety disappeared.

NASA ASRSCooler heads at the FAA finally calmed things down. NASA’s Aviation Safety Reporting System(ASRS) was started so that the FAA could learn more about conditions in the field.Inspectors were given more discretion in dealing with pilots. The new inspectors maturedand calmed down. A very, very good remedial training program was started (more about thatin a later column). The number of violations against pilots dropped. My workload of FAAenforcement cases went way down and months would go by where I had no active cases. But,it still took years before some of the ill feelings engendered by the situation began tomellow.

But, the times they are a changing. We have another young generation of FAA inspectors.They and some new FSDO chiefs who were not around during the nastiness after Cerritoshaven’t learned that the “lock ’em up” mentality does not enhance safety. Theyseem to be swayed – in part, at least – by some of the political rhetoric on gettingtough with criminals. They forget that very few pilots are criminals. A violation of aregulation is a civil law matter, not criminal. The vast majority of regulation violationsare through a mistake, an oversight in the pilot’s training or simply because of badjudgment. Most pilots who are accused of a violation spill their guts. They admit theymade a mistake. They like to fly. They want to fly well. These are perfect candidates forthe remedial training program. Unfortunately, the program does not seem to be used verywidely of late. The FSDO covering my local area did one – count em, one – remedialtraining in 1998. That’s crazy. My workload defending violation actions is up. Some of thematters are pretty trivial and some seem to be either mean-spirited or the result of aninspector who wants a quick kill by going after an easy target who hasn’t got much money.

I’m seeing the FAA inspectors and FSDO chiefs ignore the FAA’s own internal guidelinesfor the length of a suspension. They are supposed to take into account and give the pilotsome credit for being cooperative and make allowances by reducing the sanction if thepilot got fired from work for the violation. In a recent case with which I’m familiar,neither of those guidelines was considered and the FAA initially sought a sanction whichwas well in excess of its own, in-house guidelines. Further, the folks who write theregulations do not seem to have the opportunity to learn what we deal with from day to dayas we fly. Having regulations written and policy issued by persons who are ignorant ofwhat it is they are regulating because they cannot, or will not, get out and fly in thesystem is abhorrent to us who put our lives at risk in airplanes and do our best to flysafely.

…An FAA Pro Speaks Up

Tony BroderickTony Broderick was Associate Administrator for Regulation andCertification at the FAA for some years, departing honorably not terribly long ago. He hada reputation for blunt speaking and demanding that hard data be examined before coming toany decision. As with anyone who held such a position, he certainly had his enemies. Ihave disagreed with some of his positions but always found that he could support them withlogic and hard data. He contacted me after this interpretive rule was published and, asusual, expressed himself very well: “I am concerned about the process, the messageand the substance of this. I wish that we could all get real about managing human error.This is a classic case in which the FAA defines the situation that is a simple human errorand then says that one is subject to violation for the error if you are a pilot. But, ofcourse, the same penalty doesn’t apply to the ATC controller who (in the FAA’sconstruction of this) has made the identical error almost contemporaneously!” He wenton to say, “Now, I recognize that controllers are indeed subject to decertification,so I don’t mean that they can operate without accountability, but the range of possibleaccountability is quite a bit larger for pilots in this case.”

So, What’s A Pilot To Do?

The FAA has finally published the policy it has followed for some time in dealing withclearance readback errors. On one hand, that gives us pilots notice of how the FAA thinksthe regs read and we can act accordingly. On the other hand, while the FAA is supposed toencourage safety, this policy does the opposite. Instead of encouraging pilots to operatemore efficiently and more safely, it will encourage us to clutter up the airwavesunnecessarily and will roll back the clock to the pilots-versus-controllers mess we hadafter Cerritos. There seems to be little to no institutional memory within some portionsof the FAA. Pilots who want to fly safely and do their best to work with controllers, whogo to FAA safety seminars and have a positive working relationship with those at the FAAwho are a true resource, are worried that the FAA is working against its mandate toimprove aviation safety.

Am I going to go request “words twice” on a regular basis? No, but you can besure I’ll use it if the frequency is congested and the controller is talking so fast thathe is hard to understand. I’m also going to preface a lot of my readbacks with”confirm that my clearance is . . .” And I hereby make a blanket apology tocontrollers if taking either of those actions upsets or offends them. I know a fair numberof controllers. I like them. I socialize with them. And, now the FAA has put me into aposition of angering controllers. Thanks heaps, Washington.

Next month we’ll talk about the FAA’s remedial training program. It’s a good one. Iencourage the FAA to make greater use of it.

Told You So

By the way, remember last month when I suggested you read Lindbergh, by A.Scott Berg? Berg was awarded a Pulitzer for the book. I told you it was good.

See you next month.