To Be Compliant with FAR 91.103, are Pilots Required to Call Flight Service?
More and more pilots are using Electronic Flight Bags (“EFBs”), such as ForeFlight, WingX, Garmin Pilot and FlyQ. That means that fewer and fewer pilots are calling Flight Service for a phone briefing. Do you know if pilots are required to call Flight Service to be compliant with FAR 91.103?
In 2015, a pilot obtained a briefing using ForeFlight, but unfortunately did not set up DUATS in ForeFlight, so a record of the briefing was not emailed to him. In that briefing, ForeFlight depicted two Vice Presidential TFRs on its screen (which the pilot avoided). A third Vice Presidential TFR was not depicted on ForeFlight, and the pilot violated that TFR.
In addition to citing the pilot for flying through the TFR, the FAA also cited the pilot for failure to obtain a proper pre-flight briefing. That’s because, according to §91.103, when it comes to Preflight Action, “Each pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight. This information must include—
- For a flight under IFR or a flight not in the vicinity 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 Affirmative Defense of “Reasonable Reliance”
The FAA had routinely taken the position that, if a pilot got 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 got his briefing from ForeFlight instead of Flight Service. Ironically, the FAA stopped short of calling ForeFlight “unofficial” or “unreliable”.
The case went to court in 2015 and the FAA settled its enforcement case against the pilot, wherein he was required to accomplish a few hours of remedial training. No violation went on his record.
After the ruling, there were more questions, so the pilot’s attorney, Scott Williams, a California-based panel attorney for AOPA’s Pilot Protection Services, submitted a request for an Opinion Letter from the FAA’s Office of Chief Counsel as to 91.103. Mr. Williams’ letter specifically asked three questions:
- Is a preflight briefing in violation of FAR 91.103 if it did not include a phone call to Flight Service, 1-800-WX-BRIEF?
- If a pilot obtains a preflight briefing from the FAA’s [TFR] website, it contains a disclaimer at the bottom of the page: “For the Latest Information Call Your Local Flight Service Station at 1-800-WX-BRIEF”. Is that disclaimer advisory or regulatory?
- Does the FAA consider a briefing using only an electronic flight bag to be in violation of 91.103?
It took the FAA 11 months to come up with an answer, but they finally responded with the following:
- “A PIC’s failure to contact LMFS prior to a flight would not be a per se violation of FAR 91.103”
- “The statement at the bottom of the FAA’s TFR website (to call your local FSS) is advisory”
- “A PIC’s reliance on only an EFB would not be a per se violation of FAR 91.103”
Pilots should always obtain a weather and airspace briefing from a reliable source. Most EFBs are fine, but merely looking at a tablet or iPad isn’t good enough. If your EFB briefing missed a TFR and you managed to fly right through it, don’t expect the FAA to believe that you saw what wasn’t there.
To be safe, pilots should use EFBs that have a feature that will email you a copy of the full briefing. Keep those emails for at least 6 months. If that doesn’t work for you, make the phone call to Flight Service, which puts your briefing on the record.