New Challenges In Picking Up An IFR Clearance Once Airborne

by Michael “Mick” Kaufman

In the world of aviation, there are many items, procedures and regulations pilots do not have all of the answers for. Many times the people who should know – the FAA – don’t have the answers, either!

Many aviation writers and self-appointed experts write articles that they have little or no knowledge of. Sometimes, I have the impression they have never flown in an aircraft. I do not want to be put in that class, but on the other hand, there are times I have to talk to other pilots, Air Traffic Controllers and FAA officials to try to get the best answers possible for my column.

Over my last 49 years and 20K hours as a pilot, I have had many of my own experiences and will often use those experiences in my columns. I always appreciate input from our readers as well, and I may ask your permission to use your comments in my articles from time to time. In this issue, I will be writing about new challenges in taking off VFR and picking up an IFR clearance once airborne.

More than 20 years ago, I remember departing the Merrill, Wisconsin airport in a Piper Lance on a training flight that changed my personal practice of getting an IFR clearance after departing VFR. I was on a recurrency training flight with a pilot I had trained previously, and the weather (WX) would have been classified marginal VFR (MVFR). This was before the days of cell phones, remote communication outlets and iPads.

At that time, a pilot who was departing IFR at a non-tower airport would get his preflight done and be ready to start engines. He/she would then call flight service to get a clearance with a void time, then make a RUN to the aircraft, taxi like on the way to a fire, and complete his checklist to get airborne before the departure window would close (i.e. “If not off by 00 hours, etc.”). To avoid this rushed departure, many of us would depart VFR and once airborne and high enough to contact air traffic control (ATC), we would then pick up our IFR clearance. On one particular day, this was the plan to avoid a delay in departing and the rush to become airborne, but it backfired.

As we climbed out VFR, we had no luck communicating with ATC to get our clearance, the WX was rapidly deteriorating, and we were heading in a direction of rising terrain and obstacles. I tried a method used by many pilots of asking another pilot to relay our request to ATC, which worked, but I did not like the reply that echoed back to me from the other pilot. He told me that ATC could not issue us a clearance due to another aircraft on the approach to Merrill. Our only alternative was to return to Merrill, land and get the clearance via telephone. To add to the complications, there was an IFR aircraft on the approach, which we needed to avoid hitting with marginal and lowering weather conditions. All turned out okay, but I vowed that I would never again depart VFR hoping to pick up a clearance in the air until recently when I almost got burned again.

Over the years, many things have changed on how we get our IFR clearances. Today, we have cell phones and blue tooth headsets that allow us to call a clearance delivery number and get an IFR clearance from a non-towered airport and be able to copy it perfectly through our headsets. Using my Lightspeed  Zulu headset,  paired to my cell phone, I can call clearance delivery to get my clearance and it can be stored on an app from Lightspeed to be replayed later for any necessary clarification. The app will also store the entire radio communication of the flight.

This topic on picking up an IFR clearance for my column came about because the editor of Midwest Flyer Magazine, Dave Weiman, and I have both had recent denials of an IFR clearance from ATC after departing VFR. Here are our stories.

My story:

I was in a rush to depart Galesburg, Illinois in June 2014 in MVFR conditions with a new G36 Bonanza on my way back from the Beech factory in Wichita. I was giving training to the new aircraft owner/pilot. We had spent the night in Galesburg due to thunderstorms the previous day, and I wanted to pay my last respects to a long-time pilot and friend, Richard Young of Bear Valley, Wisconsin, whose funeral was that morning. We had the airplane in the hangar overnight because of the WX, and there was an unexpected delay with the line service in getting the airplane out. The flight route was simple and straightforward, but the ceiling was low at the destination airport – Lone Rock, Wisconsin (KLNR).

I broke my long-standing rule of departing in MVFR weather and picking up a clearance once airborne. When I contacted Moline Approach Control for my clearance, the controller asked me if I could maintain VFR to 3000 ft. in order to receive my clearance. My answer was that I could not, and I was denied my clearance, so I continued VFR northbound knowing that the WX at Moline was good VFR, and I would be able to climb to 3000 ft. in a few miles. Once I was able to maintain VFR at 3000 ft., I was given my IFR clearance and proceeded to my destination without further incident.

I spent some time thinking about this encounter with ATC, but it went on the backburner until Dave Weiman had a similar incident.

Dave’s story:

Dave was departing his home airport in Oregon, Wisconsin, enroute to an aviation event in Grand Forks. The WX was marginal VFR, and Dave had filed an IFR flight plan prior to departure. Dave’s scenario closely followed my story in the beginning, except he was flying in the direction of lowering weather conditions. Upon calling Madison Approach, which was 15 miles to the north, ATC responded almost identical to my situation in asking if he could climb to and maintain 3500 feet on a prescribed heading towards Madison (and television towers) and clear all terrain and obstacles on the ground. Dave’s response was that the ceiling was 2000 feet and he would be in IMC (Instrument Meteorological Conditions) on the climb-out, and therefore would be unable to see obstacles on the ground. Like me, Dave tried flying towards an area he thought the ceilings were higher and he could reach 3500 in VFR conditions, but no joy! He then canceled his squawk code with Madison Approach and returned to his home field to consider his options and called me to get my feedback, at which time I shared my experience with him.

We came to the same conclusion… ATC could have worded their request more clearly, but that may be more of a problem of a poorly written and misunderstood regulation than it was the fault of the controllers.

In my case, I was asked if I could maintain VFR to the altitude required to pick up the clearance, and Dave was asked if he could clear all terrain and obstacles on the ground up to and maintain the Minimum Vectoring Altitude (MVA) on a prescribed route as per his flight plan. We each agreed to look for answers and relay our findings to you.

I called a close friend who is a supervisor at Boston Center, and Dave contacted a number of people inside and outside the FAA, the Aircraft Owners & Pilots Association, and the National Air Traffic Controllers Association. We both received similar replies to our questions.

As you read the quoted response below to Dave Weiman’s questions from Andy Marosvari of the National Air Traffic Controllers Association, it will make sense with one exception, which should be obvious:

“As the rule is written, unless I know that you can’t provide your own terrain and obstruction clearance until reaching the appropriate altitude, I don’t have to ask. But for the sake of this discussion, let’s assume that I do know or that you have told me.

“This is the first step a controller will take in order to issue a clearance below the minimum IFR/MVA altitude.”

d. When a VFR aircraft, operating below the minimum altitude for IFR operations, requests an IFR clearance and you are aware that the pilot is unable to climb in VFR conditions to the minimum IFR altitude:

“Notice the bolded text (my emphasis). The next step in the process depends on the answer to the following question:”

1. Before issuing a clearance, ask if the pilot is able to maintain terrain and obstruction clearance during a climb to the minimum IFR altitude.

“Again, the bolded text is my emphasis, but you will notice there is no mention of maintaining VFR. If you answer ‘yes,’ that tells the controller that you understand that you are responsible for the terrain and obstruction (clearance), even if you are unable to do this in VFR conditions. The controller can issue you a clearance PROVIDED no course guidance is included. If the answer is ‘no,’ the controller will instruct you to maintain VFR and ask for your intentions.

Is it safe and legal? It is for the controller, provided he/she has complied with the rules in our handbook. As a pilot, if I were to accept the clearance knowing that I have the responsibility to provide my own terrain and obstruction clearance, I would want to be able to see these obstructions OR plot out a course that would provide the required minimum IFR altitude for my route (in a large part of the country, that would be 1,000 feet above the highest point 4nm either side of the planned route). The point being is that unless the pilot is flying a published FAA procedure or the controller is vectoring in an approved Diverse Vectoring Area, the PILOT is responsible to avoid obstructions. The controller cannot accept that responsibility.

Vectoring to avoid obstructions and terrain is not necessarily a discretionary practice…these obstructions must be mapped. Towers that are shown on a sectional aren’t necessarily mapped on a radar map.

An assigned squawk code aids the controller in radar identification and the AIM advises pilots that just because an aircraft is in radar, doesn’t transfer the responsibility for terrain and obstruction clearance.

In your example, I will assume that Class E airspace starts at 700 AGL. A departing aircraft would enter controlled airspace (Class E) at 1,650 MSL. A 2,000 ft. overcast ceiling would put the aircraft 1,300 ft below the bases. MVA altitudes are MSP, so an MVA of 3,500 in that area means the pilot would be responsible for terrain and obstruction (clearance) for 550 ft. of that climb. Our rules don’t allow for ATC to accept that responsibility. A controller who doesn’t issue the clearance is following agency rules and not avoiding liability. The expectation in this case is that the pilot wouldn’t deviate from required visibility rules.

Andy Marosvari
NATCA

MY CONCLUSION: So according to Andy, “the expectation is that the pilot would not deviate from required visibility rules.” Then the question remains, are we safe, legal and approved to climb in IMC to the Minimum Vectoring Altitude (MVA) if we accept responsibility for terrain and obstruction avoidance? If the answer is YES, why doesn’t ATC state their question that way, “if we accept responsibility for terrain and obstruction avoidance?”

The pilot must also consider the airspace issue, and the fact that he does not yet have a clearance issued.

Fig. 1

Fig. 2

When you depart an uncontrolled airport, you are in Class G airspace. Controlled airspace usually begins at 700 feet AGL at airports with published instrument approaches and 1200 feet AGL at a majority of the remaining VFR airports. There are a few airports in sparsely populated areas of the country where controlled airspace begins at 14,500 feet MSL (see fig 1), but at Galesburg, controlled airspace goes to the surface depicted by the magenta dashed line (fig 2). If we were climbing out in uncontrolled airspace IFR, we are not protected from other traffic, and another aircraft could be in the traffic pattern legally with one mile of visibility and clear of clouds. It is perfectly legal to fly IFR in uncontrolled airspace, but you must be qualified, current and have a properly equipped aircraft. There is no flight plan filed, no clearance given and no separation of aircraft given in uncontrolled airspace so, (ya all be careful, ya hear?).

Fig. 3

In my story because there is a published obstacle departure procedure for Galesburg (see fig 3), I would be allowed to get my clearance on the ground and depart into controlled or uncontrolled airspace, whichever is the case. In Dave’s story, he would not be able to do the same, as usually, there is not an obstacle departure procedure published for private airports. We would have an interesting situation to contend with if we are not allowed to fly IFR in controlled airspace, and we could not get a clearance to do so because we were not high enough to be issued that clearance.

So what were Dave’s options, other than land and cancel the trip?

1) Dave could have proceeded VFR to the closest airport with a published obstacle departure procedure, land, and pick up his clearance on the ground. At least then, ATC could have given him radar advisories to that airport. He still would have been responsible for terrain and obstacle clearance enroute.

2) Rather than proceed on the flight plan route to the north, could Dave have requested – or the controller suggested – a deviation towards the west in an area free of television towers and safe to climb in IMC to the MVA? We are still trying to get a confirmation on that option.

We have just seen some interesting scenarios to think about until the next issue of Midwest Flyer Magazine.

Merry Christmas, Happy New Year, and fly safe and out of the ice. That applies to aircraft and Santa as well!!!

EDITOR’S NOTE: The information contain in this article is based solely on the experiences and opinions of two pilots, and should in no way be misconstrued as approved Federal Aviation Regulations, policy or procedures. For additional information, contact the Federal Aviation Administration. Comments are welcomed and may be emailed to info@MidwestFlyer.com.

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