In a legal interpretation released Aug. 13, the FAA’s Chief Counsel for Regulations ruled against “peer-to-peer general aviation flight sharing” Internet-based operations that allow private pilots to offer available space on flights they intend to take. According to a post at AVWeb, AirPooler asked the FAA for an interpretation of the regulations, to confirm that a pilots using the AirPooler service do not receive compensation. The FAA stated that arranging for flights and passengers through the AirPooler website met all elements of “common carriage” and are not legal under Part 91. Read the full AVweb post here.
Control gentlemen, CONTROL. That is what it is all about.
Brett, “holding out” is OK in your example until the compensation is taken. Then it completes all four tests of common carriage and is not permissible.
I agree with many of you that it is a shame these activities aren’t permitted under current regulation, but I don’t see the FAA’s position deviating from one they’ve held since the 1950’s. In fact, the MacPherson – Jones Day letter is not much more of an extension of the Haberkorn Letter of Interpretation.
The FAA has been consistent that 61.113(c) is a narrow exception to the rule that private pilots may not transport passengers or property for compensation. If the four “tests” or “prongs” of common carriage are met, then the exception of 61.113 does not apply, and the activity falls under 119. Common purpose does not come into play if part 119 is applicable. Common purpose is only a determination to be considered under 61.113. Holding out is one of the four prongs of the common carriage test. The flight share companies fail the “holding out” test, so the activity cannot fall under 61.113 and common purpose need not be discussed. Common purpose is irrelevant.
Holding out is offering a flight to the public or some segment of the public. The FAA has said that posting on a bulletin board at the FBO or posting on FB could constitute holding out. Where holding out occurs, the protection of 61.113 cannot be had. There is no bright line rule of what constitutes holding out. The FAA has said that holding out is to be determined on a case-by-case basis. That is why most of the arrangements for cost-sharing happen quietly among friends.
The other three prongs of common carriage are easily met in the flight-share situation: 2. transporting people or property 3. from one place to another 4. for compensation. There need not be profit motive–just compensation.
I agree that it would be nice if a flight share company exception could be added to 61.113, but I think it would take a lot of public pressure for that to happen. And I do not see that public pressure for flight share companies (not as with Uber and Lyft, or to use an FAA example, the drone industry). Such an exception would make the skyrocketing cost of GA, an entry barrier to many, easier to handle and more accessible to many. It will take legislative action to make that happen, however. And many will argue that the public is not protected when Part 119 rules about pilot training and certification and aircraft certification standards are not being met.
I think I did not understand what “hold out” meant. I thought it was “wait for”, but I guess it is really “offer to”.
In any case, the point remains. First a service offers free rides, so there is no compensation, and common carriage is avoided. After meeting at the airport, compensation is requested, but the offer is no longer public, so common carriage is still avoided.
I know that’s just evasion of the ruling and probably wouldn’t hold up in an enforcement proceeding. But what if I meet someone on a free ride website, become friends with them, and later share costs with them? How much time has to pass before an offer is no longer public?
Brett, I think if you asked the FAA for an interpretation of that, they would say it is not permitted. There is obviously no answer at this point, and we all know that type of thing happens all the time without coming to the attention of the FAA.
David B, excellent points. But when the government issues a PPL, it gives a pilot permission to carry passengers with the assumption that that pilot has completed enough training to do so safely. These regulations seem to say that if the passenger shares the cost of the flight, then the PPL does not provide enough safety for that passenger. But the act of sharing the cost of the flight does not change the safety of the flight in any way. I can understand that we don’t want a PPL to become a license to operate an air taxi service. In the same way, you need more than just a driver’s license to operate a taxi service. But the government doesn’t prevent ride-share boards for drivers under the assumption that a driver’s license doesn’t offer enough safety. Granted that flying is more dangerous, but then the requirements for a PPL are also more rigorous than those for a driver’s license.
Phil, I understand what you are saying, but the mere issuance of a PPL is not enough for the FAA to feel the pilot should be compensated for that service. For that you need a commercial pilots license and must comply with 119.
Private pilots may not carry passengers or property for compensation except in very limited circumstances outlined in 61.113(c). This has been the position of the FAA for a very long time. Those limited circumstances provide that the pilot may not pay less than their pro-rata share of the flight and that there must be a common purpose between pilot and passengers for taking the flight.
So as you say, a licensed private pilot may fly passengers, but the FAA has much more stringent requirements for pilots (medical and training) who fly passengers and property for compensation as well as more stringent requirements for the aircraft (maintenance and inspections).
Personally, I would say that flying for compensation and sharing the cost of a flight are not the same thing. I know the FAA doesn’t see it that way. But I see it as the same distinction between a ride-share board where people share the costs of a drive and a taxi service. They are not the same thing, and it makes sense that there are different standards applied. But the FAA is making no distinction and applying the same standards to both when it comes to flying rather than driving.
Phil: I think we are in agreement regarding what we’d like to see vs. the way things actually are. The only thing I would add is that when you talk about ride-sharing companies like Uber and Lyft, the FAA has no jurisdictional control or legislative mandate over driving a car. That is mostly regulated by the states. The FAA only gets involved with driving in the sense that if an Airman gets a DUI, then the FAA will revoke their Airman’s certificate (pilot’s license).
Once again, the long arm of the Federal government attempts to crush entrepreneurs who offer a useful service, save consumers money and get airplanes flying again. Just as in the case of Minneapolis regulators who attempted to stop ride sharing as a means to get around ridiculously high taxi fares – themselves a result of high license fees and over-regulation – the FAA’s latest knee-jerk from an unelected bureaucrat will only drive such activities into the shadows. Less regulation is always the solution – let free markets flourish and the buyer beware. A rising tide raises all ships.
Additionally, based on this article and comments, I wonder if the FAA would consider it a violation if you invite a friend face to face to go flying and ask to split the cost…or if the friend asked you about taking a ride and then you suggest splitting the cost? If you read the rules..FARs…the common purpose is technically not met, right?….because only one had tbe reason to go. Makes you wonder. And, how do you prove common purpose? Additionally, was not the website peer to peer so you do not sound like it was for the general public…only pilot to pilot……and if I am going to Denver and you saw the notice online and were planning to go to Denver to visit your mom by car during the same time period it sounds like a great plan to go with me to get a longer visit so you call me. The situations sound as though the web would only serve to match common purposes, not give you a reason to go elsewhere or for the heck of it.
I have dealt wth this issue with regard to the FAA interpretation of compensation relative to rides offered at a community event…see 91.146. They required that each private vs commercial certificated pilot sign a statement saying they would not be compensated in any way for the flights. This was based on the interpretation that if their fuel was covered by the event organizers and they logged the time as opposed donating (read as sucking up the fuel cost) the fuel and time. The FAA has ruled that logging this ride time which could be used for time for additional rating requirements is compensation (I confirmed this with AOPA). 91.146 does not explain this, but says a private pilot with 500 or more hours can participate. To be sure, all of the proceeds for the event went to the organization, but they still had to say they would not log the time..even for recentcey of experience
I do not understand why FAA is trying to keep things complicated. Let’s have just one rule: passengers can not pay more than their share of expenses. Then it does not matter if pilot just flies for fun or has a “brilliant” business plan to lose money.
Wow, this gets legally fuzzy in a hurry. If you read the actual FAA opinion it seems their major objection is that private pilots are listing flights on these websites, but won’t actually take the flight unless someone agrees to share the cost with them, and are therefore only carrying people when they’re getting paid. Therefore, the pilots are acting like commercial carriers, who also publish schedules but wouldn’t fly the if no one paid. Previously “the FAA has required a private pilot to have a common purpose with his or her passengers and must have his or her own reason for traveling to the destination”.
That kind of makes sense to me … but I don’t know how the FAA could actually demonstrate that their assumptions are correct. Are they sure that the private pilots aren’t taking the flights anyway? Are they sure the pilot and passengers don’t share a common purpose? Are they sure the pilot doesn’t have their own reason to travel?
It’s not hard to imagine someone having a similar website where pilots offer to take passengers for free. They then meet at the airport and establish that 1) the pilot is taking the flight no matter and 2) the pilot has their own reason for going and 3) they have a common purpose. *Then* the pilot asks to share the costs, as if the idea just occurred to them. While such a strategy would not be in good faith, and an obvious evasion of this ruling, I’m not really sure how you would legally demonstrate this is different than the “normal” case of taking your friend for a trip.
Airpooler is offering such a free service on their website now. If it ever came to the FAA’s attention that a pilot was being introduced to “customers” through the free airpooler website and then asking for a fee once they got to the airport, I am sure the FAA would take enforcement action. I don’t want to be the pilot to test that one.
If a pilot flew the passenger from airpooler a few times for free, they got to be friends, and then the passenger started paying their prorata share for future flights under 61.113(c), then I think the FAA has a tougher case to try to say the arrangement is a violation. In this sense, it is like a free match.com placing pilots and passengers together to “see what happens”. Marriage isn’t promised, but it *could* happen.
So it is not hard to conceive of a situation playing out like this: I am hooked up with a passenger through airpooler for a flight I am taking to KMVY. I fly there all the time, and so does the passenger. It gets to be a regular occurrence a few times a month. After ten “free” flights there and back, the passenger and I arrange for the passenger to pay their pro rata share.
What would the FAA say to that? I cannot honestly predict the answer, but I could see them using a “fruit of the poisonous tree” type of response. If the relationship started from airpooler, then it is tainted by the initial “holding out”.
Does any of this really make sense given that the FAA has said pilots may take a pro rata share under 61.113(c)? No, I do not believe so. I think it would be appropriate for some of the things that have previously only existed in letters of interpretation to be put into the CFRs for all pilots to see and know about. At that time, an exception could be added to 61.113 that allows airpooler-type flights/compensation.