Sometimes you just get set up. You got up early, looked out the window at a nearly clear sky and figured you’d fly the 80 miles or so to visit a buddy and hang out at his airport instead of yours. You whipped out your tablet for a full briefing and to make sure there were no TFRs. The forecast advertised nothing below 5000 broken and four miles viz all day, so you headed for the airport, did the preflight and motored off over the horizon.
It was a better day than you had hoped—your friend was in fine form, you met some interesting pilots and airplanes, and diminished the coffee supply until well into the afternoon. Flying home at 3000 feet, the broken layer was above you and visibility wasn’t bad. Fifteen miles from home plate you dialed in the ASOS and the sweatband on your ball cap suddenly got tight. The ASOS reported a ceiling of 800 feet overcast and visibility of two miles.
Now What?
Do you scud run and risk hitting one of those expletive-not-deleted towers that are reproducing in magnitudes, competing with each other to snatch airplanes out of the air, or do you get an IFR clearance? Can you even get an instrument clearance without landing and getting on the phone to FSS?
Every year, some instrument-rated pilots, faced with this situation, keep their mouths shut, descend and scud-run for their destinations. A distressing percentage die. Trying to fly VFR into IMC remains one of the most common fatal accidents, even among instrument-rated pilots. Why not just get an instrument clearance and reduce the risk?
If you honestly wish to increase the chance of surviving to fly another day, I recommend you get what controllers call a pop-up IFR clearance. It simply involves the pilot of a VFR aircraft calling ATC and requesting an instrument clearance without having previously filed an IFR flight plan. Is it legal? If you are instrument current and your airplane meets the regs, absolutely. It may sound pretty basic, but there’s no requirement to file a flight plan for an IFR clearance.
No IFR?
Let’s notch it up a bit—what if the weather has gone down and you are, ummm, not completely current on instruments, or the airplane isn’t instruments-legal? That’s a question you have to answer honestly for yourself. You have to evaluate and decide how far from current you are or why the airplane isn’t legal for IFR. Factor into your evaluation the alternative: scud running in a world of towers and potential spatial disorientation as you transition to and from the gauges, looking for the airport.
If you don’t have an instrument rating, if you’re out of IFR currency or if the airplane simply isn’t capable of IFR, I still strongly recommend you don’t scud run. Don’t try to IFR, either. The nearest VFR airport—perhaps the one you just left where your friend is based—or an off-airport landing may be the best solution. I know we don’t teach off-airport precautionary landings—we should, because I think we’d have a few more pilots right now.
If you truly are only lacking a bit of being IFR current or if the airplane’s pitot-static system is three months out of date, you are probably safer getting an instrument clearance than pursuing other alternatives. Will you get a violation? Probably not unless there’s a problem and the FAA investigates.
If it works out, who cares? As a PIC responsible for people’s lives, that shouldn’t be in the equation. However, I recognize it is.
Let’s put it this way: The FAA can come after you for a violation only if you are alive. Being alive and fighting a violation action seem a lot better to me than the alternative. With that as background, how do you go get yourself an instrument clearance on very short notice?
The Procedure
When things are circling the drain, it doesn’t make sense to go through the flips and twists of calling Flight Service to get an IFR clearance—it’s time to cut any sort of bureaucratic red tape that exists. You need to talk directly to ATC—the folks who can help you—and that means calling approach or center.
If you have IFR charts handy and can look up the frequency, call the nearest approach control or ARTCC and start the ball rolling. No IFR charts? Try a sectional and dial in the nearest ATIS. Listen for the weather, it may give you some ideas. It may also give you an approach control frequency. No luck with ATIS, and things are ugly enough you can’t split your attention to look at the chart?
The controllers I interviewed said that if you are fighting to stay VFR, don’t mess around, squawk 7700 and make a call on 121.5. If you can’t maintain VFR, start climbing to get above obstructions even if it means entering IMC. You’ve already declared the emergency on 121.5, so you’re covered legally. Yes, there is a risk of a midair in the clag, but not until you get to the minimum instrument altitude and it’s still a lot lower risk than that of hitting an obstruction or the ground. Establish radio contact and tell the controller you need an instrument clearance.
The controller must abide by some basic procedures, but needs only your call sign, your location and your request, and can routinely waive the other flight plan information required under FAR 91.169. Some controllers may be nervous taking only such basic info and granting a clearance, but if things are tight, say so and indicate you’ll provide the additional information when you have the clearance and the situation has stabilized, but that you need the clearance now.
Once the controller has the ATC basics from you, the next issue is altitude. If you are above a solid layer, cruising along above the MEA or other IFR minimum altitudes, there’s no big deal—the controller will issue you a clearance (traffic load permitting) and off you go.
If you are below the minimum vectoring altitude or such other minimum altitude for the area, the controller is going to ask you if you can climb to that minimum altitude under VFR conditions. If you can, great; the controller will issue a clearance. If you can’t, the controller is supposed to ask if you can maintain obstruction and terrain clearance on your own as you climb to the minimum IFR altitude.
If you can, wonderful; a clearance will be issued and you will be responsible for terrain and obstruction clearance as you climb. If you cannot maintain VFR and cannot maintain obstruction and terrain clearance on your own, the controller will treat you as an emergency. Face reality—that’s what you have. The controller’s voice goes to that wonderfully soothing tone they have and you get precisely what you need, assistance from someone who is trained for this sort of thing.
That controller is going to take action to try and help you save your own life. Despite your pride and concern about paperwork (there is no paperwork associated with a declaration of an emergency under Part 91; the paperwork nonsense is one of aviation’s oldest myths), what you really need is all the help you can get. I suggest you take it. When the ceiling is low and visibility is lousy, there is a lot of stuff you can’t see that will hurt you. It’s time to climb.
Once you have the clearance, press on, and fly the remainder of the trip to your destination, shoot the approach and land. If you don’t have the approach plates with you, and the weather dictates an instrument approach, admit it and get the information you need. Yes, many of us live by the behavioral code that it’s better to be dead than embarrassed, but too many die by it as well.
When to Air-File
There are some additional considerations to pop-up IFR. In interviews with controllers, I was told that the most common pop-ups they got were guys who have been blasting along in good weather but get close to their destination and find it has gone below forecast.
Typically, the pilot calls approach control and, according to the controllers I spoke with, the controller issues an IFR clearance. In that sort of situation most controllers don’t ask for the SAR information. They can see the airplane on radar and will know where to tell folks to look if it drops off the screen.
I was also told that sometimes a controller will get a pop-up request where the pilot wants to go several hundred miles. In that case the controller will usually get the SAR information, or if the workload is heavy, ask that the pilot call FSS and air-file an IFR flight plan. But controllers don’t much care for the pilot who is simply too lazy to file before departing and calls for a pop-up clearance just after takeoff on a nice day.
According to one controller I spoke with, when he’s asked a pilot to call Flight Service, he’ll usually see a flight plan show up on the computer within a few minutes—about when the pilot comes back on the frequency—so it’s just a matter of issuing the clearance. This is much easier when a controller’s workload is high and the pilot isn’t in a jam. Controllers also recognize there are times a pilot will try to call Flight Service to air-file but can’t reach anyone. When the pilot tells him of that eventuality, workload permitting, he’ll put in a longer route clearance for the pilot.
Don’t Wait
Controllers are human, so there are some variables pilots should consider. When a controller gets a call from a pilot who is down low, trying to stay VFR and can hear the fear in the pilot’s voice, he or she going to do everything possible to provide a clearance as smoothly and quickly as possible. However, if the controller is swamped with traffic and the call is from a guy safely on top with plenty of fuel, priorities may dictate the pilot will have to stand by before a clearance gets put together.
Controller have nightmares about the pilots who have been down low, trying to scud-run, and are down to about 15 minutes of fuel before they call. Every controller I spoke with said they hope pilots will call early enough so they can give them a clearance in time for it to help. There are times controllers are simply too busy to accept a pop-up and will refuse, although it‘s usually only if the controller is satisfied the weather is VFR and the pilot has viable alternatives.
I heard several stories from Great Lakes-area controllers about pilots trying to get around the IFR reservation system into Oshkosh, Wis., during AirVenture by asking for a pop-up clearance. Workload permitting, most controllers will give the pilot a clearance, but it won’t be to KOSH. It will be to a nearby airport, but they won’t let you get around the reservation requirement.
Pilots’ Point-of-View
I also spoke with a number of pilots. Most expressed experiences that closely matched my own. If you work with the controller and behave somewhat professionally, pop-up instrument clearances are usually easy to get.
The bottom line is that controllers have a lot of discretion in how they handle pop-up clearances. The attitude and philosophy of the individual controllers plays a big role in the ease of obtaining a clearance. However, I firmly believe the vast majority recognizes that they are there to serve the flying public, want to do so as far as they can within the rules and are fully aware that issuing a pop-up clearance may be the thing that saves the lives of a planeload of people.
Rick Durden is an aviation attorney and holds an ATP and CFII.
