On my flights from Asia to the United States we often enter  U.S. airspace near Seattle. On a recent ocean crossing we were switched from Vancouver (Canada) ATC to the Seattle ATC controller as we crossed our northern border. I change frequencies and then pause before making my radio call just in case there is a conversation in progress between the controller and another aircraft. In this instance I came upon a conversation between the Seattle controller and what sounded like a small plane near Klamath Falls, OR. It peaked my interest when the controller told the other pilot that she was trying to find out why he wasn’t following the clearance that he had been given.

That immediately brought up the visual of a huge stack of paperwork sitting on a table in front of a group of FAA lawyers.  It’s impossible, unless you were in the plane, to know what had been said to the previous controller or what that controller had passed along to the Seattle controller.   At one point the controller asked if the pilot was IFR and he responded that no he wasn’t but he could accept an IFR clearance if it would make things easier. Things started getting a bit clearer. When the controller asked why he wasn’t following his clearance he said that the previous controller had told cleared him to his destination under his own navigation.

Based upon other comments during the conversation, here’s what I think may have happened:

This pilot was flying VFR to his destination and was getting flight following from the air traffic control center. A layer of clouds had formed below him in the area that he was flying that he had probably mentioned to the previous controller. The pilot may have been vectored around some traffic or given instructions to fly direct to a point to avoid airspace or traffic and then given instructions to continue to his destination. He then have been given a frequency change to the Seattle controller. At that point he probably  checked in with his flight conditions – and that’s where the communication broke down.

There is a huge difference between an ATC clearance and the flight conditions  the pilot was experiencing. Yes, he was flying VFR and yes, he was flying on top of a cloud deck, but he was not VFR ON TOP. VFR ON TOP is an ATC clearance given to an aircraft on an IFR flight plan. If he had used that phrase when he checked in with the controller he would have declared that he was on an IFR flight plan and flying an assigned route to his destination.

Here’s a section from the Airman’s Information Manual, Chapter 4:

4-4-8. IFR Clearance VFR-on-top

e. When operating in VFR conditions with an ATC authorization to “maintain VFR-on-top/maintain VFR conditions” pilots on IFR flight plans must:

1. Fly at the appropriate VFR altitude as prescribed in 14 CFR Section 91.159.

2. Comply with the VFR visibility and distance from cloud criteria in 14 CFR Section 91.155 (Basic VFR Weather Minimums).

3. Comply with instrument flight rules that are applicable to this flight; i.e., minimum IFR altitudes, position reporting, radio communications, course to be flown, adherence to ATC clearance, etc.

NOTE-
Pilots should advise ATC prior to any altitude change to insure the exchange of accurate traffic information.

f. ATC authorization to “maintain VFR-on-top” is not intended to restrict pilots so that they must operate only above an obscuring meteorological formation (layer). Instead, it permits operation above, below, between layers, or in areas where there is no meteorological obscuration. It is imperative, however, that pilots understand that clearance to operate “VFR-on-top/VFR conditions” does not imply cancellation of the IFR flight plan.

g. Pilots operating VFR-on-top/VFR conditions may receive traffic information from ATC on other pertinent IFR or VFR aircraft. However, aircraft operating in Class B airspace/TRSAs shall be separated as required by FAA Order JO 7110.65, Air Traffic Control.

NOTE-
When operating in VFR weather conditions, it is the pilot’s responsibility to be vigilant so as to see-and-avoid other aircraft.

h. ATC will not authorize VFR or VFR-on-top operations in Class A airspace.

So, the controller thought the pilot was on an instrument flight plan operating with a VFR ON TOP clearance. The controller’s  flight strip apparently indicated that the pilot had been given a clearance to fly to a particular point and the pilot was flying directly to his destination not in accordance with his clearance. The conversation continued for probably 20 minutes before the controller became convinced that the pilot was doing what he had been cleared to do.

From the sounds of comments that the pilot was making I seriously doubt that he understood how close he came to being the recipient of one of those nasty letters from the FAA.

Would you have recognized the situation when the controller started asking the questions?