The cockpit voice recorder on the jet that survived a midair collision over the Amazon jungle includes a conversation in which a controller instructed the American pilots to maintain their altitude rather than descend as stated in the flight plan, according to a Brazilian newspaper.
But the context of the dialogue is unclear because it's not evident what segment of the flight the controller was referring to. So, the conversation could bolster the pilots' contention that they were following instructions of controllers when the collision occurred. Or, it could support Brazilian officials' statements that the pilots did not understand how the airspace is allocated and precipitated the crash by not following their flight plan.
In an investigation expected to last months, the recording transcribed by the Transportation Safety Board of Canada and reported in O Globo will have to be placed in context. But it might turn out to be evidence that could shift the focus more toward the controllers and away from the pilots, who have been the target of accusations by government officials for failing to follow their flight plan Sept 29. In that case, because the controllers' directions would overrule the flight plan, the recording could improve the chances that Joseph Lepore, 42, of Bay Shore, and Jan Paladino, 34, of Westhampton Beach, whose passports have been confiscated, might be able to leave the country.
In the conversation recorded in the cockpit of the Legacy executive jet owned by ExcelAire of Ronkonkoma, Lepore is talking with a controller at a center in Brasília when the plane is 30 miles or four minutes before the point that the flight plan indicated he should reduce his altitude. Lepore asks whether he should remain at 37,000 feet or descend to 36,000, O Globo reported. In the dialogue, which was conducted in English, Lepore is quoted as saying, "Should I descend or should I remain at this altitude?" The controller responded "OK, maintain the altitude" or "OK, keep it," depending on the translation of the newspaper account in Portuguese.
Air Force officials, who run the air traffic control system, have acknowledged that the dialogue between controllers and pilots might have contributed to the collision. But Aeronautica, the control agency, contends the controller meant the Legacy could remain at 37,000 feet not for the rest of the flight but just for the remaining 30 miles to Brasília.
Regardless of the controllers' intention, the Brazilian authorities could still place some blame on the pilots for not being sufficiently familiar with Brazilian airspace. Officials have said repeatedly that pilots should know the airspace at 37,000 feet north of Brasília is reserved for planes flying east, not west as the Legacy was.
One U.S. source said the black boxes retrieved from the Legacy and the Gol Airlines Flight 1907, which crashed with the loss of 154 lives, indicated mistakes were made by pilots and controllers. He said investigators continue to focus on whether the American pilots might inadvertently have placed their location transponder in standby mode while programming information into their electronic navigation and communication equipment. The transponder, which gives the plane's location to controllers and is part of the collision avoidance system used by both planes, was not transmitting before the impact, officials said.
The flight plan for the Legacy was prepared by the Brazilian manufacturer, Embraer. It called for the jet to fly at 37,000 feet after takeoff from Sao Jose dos Campos to Brasília. Then the plane was to slow down and descend to 36,000 for 319 miles to a navigation point called Position Teres. At Teres, the jet was to slow further, climb to 38,000 and fly 181 miles to Position Nabol and then continue on to Manaus. But the collision occurred as the Legacy, heading northwest, had just passed Nabol.
A controller instructed the American pilots to maintain their altitude rather than descend as stated in the flight plan.
The pilots say that they had authorization from air traffic controllers in two locations to fly at the altitude at which the collision occurred.
The lawyers contended that their clients should not be faulted for the fatal accident.