Page 9 - Volume 11 Number 12

Are you Required to Call
Flight Service for a Briefing?
by Scott Williams, Esq.
With the proliferation of Electronic Flight Bags (EFBs), fewer and fewer pilots are calling Flight Service for a telephonic briefing. The question remains: Are pilots required to call Flight Service to be compliant with FAR 91.103? Reluctantly, the FAA has finally said, “No.”
“Official” Briefing Source?
Before EFBs, pilots had little choice but to call Flight Service. It was the only reliable weather and airspace briefing readily available. As a result, some FAA officials have developed the informal position that Flight Service was the only official briefing source. In 2015, one FAA enforcement attorney took this position too far. A pilot (represented by this author) obtained a briefing using ForeFlight, but unfortunately did not set up DUATS which would have provided a record of the briefing emailed to them. ForeFlight depicted two Vice Presidential TFRs on its screen (which the pilot avoided), but not a third (which the pilot flew right through). In addition to citing the pilot for violating FAR 91.141 (busting a TFR), the FAA also cited the pilot for FAR 91.103 (failure to obtain a proper pre-flight briefing).
FAR 91.103 states, in part:
§91.103 Preflight action.
Each pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight. This information must include –
a) ForaflightunderIFRoraflightnotinthevicinity of an airport, weather reports and forecasts, fuel requirements, alternatives available if the planned flight cannot be completed, and any known traffic delays of which the pilot in command has been advised by ATC;
The FAA was hinging its 91.103 violation on two factors:
a) The first sentence of the regulation says: “... all available information...”; and
b) Only Flight Service (known back then as Lockheed-
Martin Flight Service (LMFS)) was the government’s “official” briefing source.
Leading up to this 2015 enforcement case, the FAA had routinely taken the position that, if a pilot received a briefing from Flight Service, and if Flight Service had failed to brief the pilot about a particular TFR, then the FAA would not pursue an enforcement action for violating that TFR. This doctrine is known as the affirmative defense of “reasonable reliance.”
In this case, the FAA refused to dismiss the action on the defense of reasonable reliance since the pilot obtained his briefing from ForeFlight instead of Flight Service. Ironically, the FAA stopped short of calling ForeFlight “unofficial” or “unreliable.”
The FAA Folds its Enforcement Case
In the weeks leading up to the 2015 NTSB hearing (in front of an Administrative Law Judge), our team designated an expert witness who was prepared to testify:
a) FewerpilotsarecallingLMFSandmostareinstead relying upon EFBs;
b) FAR91.103doesnotmentionany“official”briefing source, and the FAA has no authority to designate it as such;
c) LMFS didn’t even brief pilots about TFRs over major sporting events, and instead expected pilots to search the Internet for sports schedules and stadium seating capacity (Note: most EFBs do brief this information).
Faced with a case they were not certain they could win, and not happy with the prospect of having this case cited as binding authority, the FAA settled its 2015 enforcement case against this pilot for a few hours of remedial training.
No violation went on his record. In case you are wondering, this pilot did file a NASA (Aviation Safety Reporting System) Report in a timely manner, but that only stays the certificate suspension. The violation itself
DECEMBER 2017
KING AIR MAGAZINE • 7