Monitoring 121.5 is MANDATORY
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1372 Posts
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In my travels for PIC, I've trained pilots all over the USA (short of Hawaii), and one common thread is the lack of awareness of the legal requirement to monitor 121.5 (aka "Guard") at all times in flight in the US National Airspace System if capable. Perhaps the reason many folks are unaware of this requirement (not just recommendation) is that it was promulgated as an FDC NOTAM rather than a new FAR. I suspect a lot of folks don't understand that FDC NOTAMs are by definition regulatory.. However, as it is regulatory, it has the force of law, and failing to comply is a violation of the FAR's and can result in enforcement action.

Of course, there are times when you can skip this. If you have only one comm radio and are actively using it for other communications, like talking on CTAF in the pattern or getting a weather update from FSS or talking to ATC, then you are excused. But if you're motoring along not talking to anyone else, by this rule, you must have it up on 121.5. Likewise, if you have two radios, the second one must be on 121.5 unless you're using it to get the ATIS/AWOS/ASOS or something like that.

The current edition of the FDC NOTAM is:
 
!FDC 4/4386 FDC SPECIAL NOTICE... NATIONAL AIRSPACE SYSTEM INTERCEPT PROCEDURES. AVIATORS SHALL REVIEW THE FEDERAL AVIATION ADMINISTRATION AERONAUTICAL INFORMATION MANUAL (AIM) FOR INTERCEPTION PROCEDURES, CHAPTER 5, SECTION 6, PARAGRAPH 5-6-2. ALL AIRCRAFT OPERATING IN UNITED STATES NATIONAL AIRSPACE, IF CAPABLE, SHALL MAINTAIN A LISTENING WATCH ON VHF GUARD 121.5 OR UHF 243.0. IF AN AIRCRAFT IS INTERCEPTED BY U.S. MILITARY AIRCRAFT AND FLARES ARE DISPENSED, THE FOLLOWING PROCEDURES ARE TO BE FOLLOWED: FOLLOW THE INTERCEPT'S VISUAL SIGNALS, CONTACT AIR TRAFFIC CONTROL IMMEDIATELY ON THE LOCAL FREQUENCY OR ON VHF GUARD 121.5 OR UHF GUARD 243.0, AND COMPLY WITH THE INSTRUCTIONS GIVEN BY THE INTERCEPTING AIRCRAFT INCLUDING VISUAL SIGNALS IF UNABLE RADIO CONTACT. BE ADVISED THAT NONCOMPLIANCE MAY RESULT IN THE USE OF FORCE.​

...and remember that per 14 CFR 1.1(b)(1), "Shall is used in an imperative sense."

Now, this is something that should be covered in pilot training, review courses, safety programs, etc., not to mention FIRC's so CFI's teach it appropriately. I'm putting a few fleas in a few ears about that. But I think we all know that there are a lot of pilots who've busted airspace and paid a price for it, and who would have avoided the problem completely if they'd be listening on Guard. Case in point (and yes, I really heard this on 121.5 while flying from FME home to SBY)...
 
"Aircraft operating ten miles east of Annapolis, heading 270, 1500 feet, 105 knots, squawking 1200, this is the United States Air Force on Guard. You are approaching a flight restricted area. Recommend turning east or contact FAA."​
2 minutes later...​
"Aircraft operating five miles east of Annapolis, heading 270, 1500 feet, 105 knots, squawking 1200, this is the United States Air Force on Guard. You are entering a flight restricted area. Turn east or contact FAA."​
2 minutes later...​
"Aircraft over Annapolis, heading 270, 1500 feet, 105 knots, squawking 1200, this is the United States Air Force on Guard. You are in a flight restricted area and being intercepted by armed military aircraft. Nearest exit point 090, 5 miles."​
1 minute later...​
"This is Bonanza 12345 on Guard. There's an F-16 on my wing. Does he need help?"​

I may still have the mark on my forehead from where it struck the glare shield after the last transmission.

And I hereby grand permission to reproduce this post unaltered and in its entirety, including attribution to me (Ron Levy, ATP, CFI), anywhere you think it may do some good.
10 Replies
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Ron makes a very good point here by this post. Although this Notam was issued 17 years ago in May of 2004, it is still current (with one exception), relevant, and in effect today. This was a post 9/11 NOTAM issued in the interest of national security. As the AIM is constantly updated, intercept procedures today can be found in paragraph 5-6-13, as opposed to the paragraph noted in the NOTAM.

The story Ron regaled us with should be heeded. I have heard many similar broadcasts over the air in the past 20 years; those of ground agencies trying to contact an aircraft about to enter a flight restricted area, who has neither the proper clearance or authorization to do so. Although I cannot say I ever heard one with such a bizarre ending!

None of us are perfect, but we sure don't want an F-16 for a wingman. Wouldn't it be a whole lot nicer to hear a voice telling you to get out, rather than flying formation with a fully armed F-16 after it's too late? Chances are, that pilot does NOT need help. You do.
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I have always set my COM2 on 121.5 just in case I needed to summon help immediately.  Dealing with an emergency is no time to be twisting dials; select COM2 and PTT.

All things considered, I'm not sure this should ever have been a “shall” NOTAM, given the number of NORDO and single COM aircraft out there, and the number of significant preflight and navigational errors that have to occur to need it.  As disturbing as the given FRZ incursion example is, it would be instructive to know how many controlled airspace busts were mitigated by an announcement on 121.5.  Any controllers here want to weigh in?

While my COM2 is set on 121.5,  I leave the volume low because the vast majority of the traffic on that frequency is morons making flatulence noises, stupid comments, singing, and other inanities.  It sounds like the backseat of a middle-school boys' carpool.  At some point, a stentorian voice will announce “You're on Guard”, and the backseat quiets down for a while.  I want to believe it's only adolescent boys playing with Daddy's handheld, but it sounds like bored freight dogs. 

On my last local flight I heard a student pilot on his first solo cross-country, trying to contact Approach at the local Class Charlie.  Unfortunately, he apparently could not hear any of the controller's responses (including the one to switch to 121.5).  We never found out what the problem was, but IF he had a second radio, and IF it was tuned to Guard, and IF the audio panel had COM2 set to headphone, and IF the volume was up, he might have heard the controller and sorted out his issue before he landed.  That's a lot of IFs to make a mandatory NOTAM work.

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1372 Posts

Chip Davis: 
 

All things considered, I'm not sure this should ever have been a “shall” NOTAM, given the number of NORDO and single COM aircraft out there, and the number of significant preflight and navigational errors that have to occur to need it. 

It says “if capable”.  If you don't have a radio, or if you're using the only one you have to talk to ATC or CTAF or FSS, then you're exempt.

 As disturbing as the given FRZ incursion example is, it would be instructive to know how many controlled airspace busts were mitigated by an announcement on 121.5.

I've heard a couple of Guard calls where the call wasn't repeated, suggesting the desired result was achieved.  And I've heard more than a few where they were repeated, up to the “you are now being intercepted” stage as well as ones I read about in the papers later.

On my last local flight I heard a student pilot on his first solo cross-country, trying to contact Approach at the local Class Charlie.  Unfortunately, he apparently could not hear any of the controller's responses (including the one to switch to 121.5).  We never found out what the problem was, but IF he had a second radio, and IF it was tuned to Guard, and IF the audio panel had COM2 set to headphone, and IF the volume was up, he might have heard the controller and sorted out his issue before he landed.  That's a lot of IFs to make a mandatory NOTAM work.

I suppose you could say the same “IFs” about any radio comm requirement, so I don't see that argument carrying much weight.

To paraphrase the old highway safety ad, “121.5 – It's not just a good idea, it's the LAW.”

In any event, thanks for bumping the thread – this is one item which seems to bear regular reminding.

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The post is inaccurate, but would have been useful if not so over-stated.

AIM 5-6-13 says “highly encouraged”.  Not mandatory.

The excerpt Ron cut out was in re to a NOTAM re intercept procedures.  Something pretty obscure.

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1372 Posts

Matthew Bowers: 
 

The post is inaccurate, but would have been useful if not so over-stated.

No, it is 100% accurate for the reasons stated below.

AIM 5-6-13 says “highly encouraged”.  Not mandatory.

Now that IS inaccurate.  Per 14 CFR 91.139(c), FDC NOTAMs are regulatory in nature, and it is well established in case law and FAA legal interpretations that the AIM cannot make optional that which an FDC NOTAM makes mandatory.

When a NOTAM has been issued under this section, no person may operate an aircraft, or other device governed by the regulation concerned, within the designated airspace except in accordance with the authorizations, terms, and conditions prescribed in the regulation covered by the NOTAM.

The excerpt Ron cut out was in re to a NOTAM re intercept procedures.  Something pretty obscure.

The fact that the NOTAM under discussion is titled about intercept procedures doesn't change the regulatory effect of any portion of it, and the NOTAM says you “shall, if capable” monitor 121.5.  And for those unfamiliar, 14 CFR 1.3(b)(1) says: “Shall is used in an imperative sense”.  The fact that Mr. Bowers finds it “obscure” isn't relevant – it is also well-established that ignorance of the law is no excuse.

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I am aware of the Lyons legal interpretation dated March 29, 2011, that states that FDC NOTAMs “contain information that is regulatory in nature.”

FDC NOTAMs that are regulatory, contain the pertinent regulation.

FDC NOTAM  1/4795 (a VIP FDC NOTAM) contains 91.141 as a regulatory reference.

FDC NOTAM  1/4615 (a Security FDC NOTAM) contains 99.7 as a regulatory reference.

FDC NOTAM  1/4258 (a Hazards FDC NOTAM) contains 91.137(a)(1) as a regulatory reference.

FDC NOTAM 4/4386 (the NOTAM in question) contains no regulatory reference. 

At the end of November, I retired from the FAA after 15 years spent as a Principal Operations Inspector.  I have written many EIRs (Enforcement Investigative Report).  Order 2150.3C is clear in Chapter 6, Paragraph 3(a)(2) that Block 18 of Section A of the EIR contain a list of “regulations or statutes believed violated.”  There is no provision to enter an FDC NOTAM.  Likewise, in Chapter 6, Paragraph 3(b)(2), we are directed to “provide an orderly statement of the facts and a discussion as to how the facts establish each element of each regulation believed violated.”

14 CFR Part 11 contains information on Rulemaking Procedures.  I see nothing in there allowing a regulatory (legal or mandatory) requirement to be promulgated by an FDC NOTAM.

It would be an interesting exercise to try to determine how the text in FDC 4/4386 would be investigated and enforced.  The NOTAM references reviewing the AIM for interception procedures, as well as monitoring 121.5.  How would one go about determining (and proving) that a particular pilot had not reviewed the AIM and that his second radio (if available) was not tuned to 121.5 (as opposed to a pilot who had tuned 121.5, but failed to select the radio on an audio panel or turn up the volume on that radio)?

If a pilot receives a complete preflight briefing, he should be aware of any potential areas where he might be subject to interception.  If he hasn’t received a preflight briefing, he has a bigger problem with the airspace violation, than with a supposed action for not monitoring 121.5.

As an inspector, I participated in the FAA’s flight program to perform quarterly currency tasks in multi-engine airplanes, single engine airplanes and helicopters.  121.5 was never selected in any frequency box for monitoring.  Isn’t it odd that the FAA (who supposedly promulgated this non-requirement), would not comply with it?  It is possible that the King Air program (with Proline package) had the capability to automatically monitor 121.5.

I’m not dealing with the idea of monitoring 121.5 here, just the mistaken idea that it is mandatory and that failure to do so could result in any certificate action.

I did see that you referenced “case law”.  There have been many enforcement cases written concerning violations of regulations related to FDC NOTAMs.  I have written several myself for TFR violations and sports TFR violations. Can you cite one case where a pilot was violated for not monitoring 121.5?

Kris Kortokrax