Date: 201403
Local time of day: 1201-1800
Location: I90.TRACON, TX
Flight conditions: VMC
Light: Daylight
Aircraft: Large Transport; Low Wing; 2 Turbojet Eng
Operator: Air Carrier
Operating under: Part 121
Flight plan: IFR
Mission: Passenger
Flight phase: Climb
Airspace: Class B IAH
ATC / advisory: TRACON I90
Reporter organization: Air Carrier
Reporter function: Captain; Pilot Not Flying
Human factors: Communication Breakdown; Confusion
Anomaly: ATC Issue All Types; Deviation / Discrepancy - Procedural Published Material / Policy
Detector: Person Flight Crew
When detected: In-flight
Result: Air Traffic Control Issued Advisory / Alert; Flight Crew Requested ATC Assistance / Clarification
Contributing factors: Company Policy; Procedure
Primary problem: Procedure

Narrative: In 25 years and 3 months of IFR airline flying; I have never before until this flight today; been issued a clearance to climb to and maintain a VFR altitude. We leveled at our initially cleared altitude of 4;000 FT on Departure frequency; and were then issued climb to 8;500 FT. I said; 'Please repeat altitude' and the Controller repeated; '8;500.' I said; 'That's a VFR altitude.' He stated; 'Yes it is.' My First Officer and a jumpseating fellow Captain agreed with me that it was unprecedented to be issued a clearance to level at a VFR altitude under IFR in a large 121 jet transport. I stated that it did not sound safe to us and the Controller flippantly said; 'Are you flying the airplane or controlling the traffic today?' It is obviously a Captain's responsibility to question any clearance which he or she believes to be unsafe or not in compliance with standard procedures and regulations. He then asked us to read back our altitude and I read back; 'XXX 123 cleared to 8;500.' We did not have to level off; because climbing through approximately 7;500 FT; the Controller said; 'Traffic no factor; climb to 16;000.' He then said; 'The reason I was leveling you at 8;500 is because you would have gotten a TCAS RA with that other traffic;' to which I replied; 'We could have leveled at any other altitude below that traffic.' The most obvious example would have been a clearance to 8;000 FT. He could have vectored us around him; as the traffic level was extremely light overall. He then stated; 'You are in Class B airspace.' A look at that chart shows that Class B terminates 30 DME west of IAH; which of course we are closing in on pretty rapidly in a jet; if the frequency gets tied up and the controller leaves us at 8;500 FT; we could easily overtake all kinds of light aircraft just outside the Class B. Just as importantly as the non-standard altitude; was the initial attitude of the controller that his clearance to level at a VFR altitude was beyond questioning. To use an extreme example; I will question and I will not accept a vector clearance into the side of a mountain either. I had an incredibly close near miss with a light aircraft in a heavy jet on a New York area arrival; and I do not wish to ever be level at light VFR aircraft cruise altitudes; even in Class B airspace; which such aircraft occasional blunder into.




Synopsis: An I90 Controller issued an air carrier a climb to 8;500 FT during its departure climb which the Captain took issue with because he did not want to level at a low VFR altitude.