Appeals court rules FAA can shut down flight-sharing websites

WASHINGTON, D.C. — The U.S. Court of Appeals for the District of Columbia ruled Dec. 18 that the FAA can shut down the “flight-sharing” website Flytenow.com.

“This is a huge blow to innovation and entrepreneurship in general aviation,” said Jon Riches, the national litigation director at the Goldwater Institute and the attorney representing Flytenow.

Flytenow, a start-up business that uses the Internet to connect private pilots with passengers wishing to share travel plans and flight expenses, had sued the FAA for shutting the website down in 2013.

Flytenow expands on the trend that companies like Uber and Airbnb.com have popularized: Allowing consumers to connect directly with private individuals who have goods or services that they need. Flytenow passengers do not pay for tickets or for the pilot’s time, instead, they only share fuel and fee costs with the pilot.

This cost-sharing arrangement with private pilots and passengers has been allowed by the FAA since the 1960s.

Pilots previously found people to cost-share with by word of mouth, phone, posting notes on bulletin boards in airports, by email, and various other means.

Flytenow updated the process by allowing pilots to post a planned trip on a website to find people interested in sharing costs.

But the FAA determined in 2013 that the process of posting a planned trip on a website constituted advertising and that subjected private pilots to the same regulations that pilots for a commercial airline like Delta would have to meet, so it forced Flytenow to shut down.

“Courts give extreme deference to regulatory agencies, often at the expense of innovation,” said Riches. “In this decision, the court relied on that regulatory deference, and the result is less choice for consumers, and less innovation in general aviation.”

In the lawsuit, Flytenow also said that its First Amendment rights, and the rights of the pilots using the site, were violated by the FAA. The court determined that the speech was not protected because the agency had found that the speech was “illegal.”

“We think the court is wrong on this point as well. Flytenow pilots are engaged in truthful communications about lawful activity, and, as the U.S. Supreme Court has said time and again, this is protected speech,” said Riches.

The Goldwater Institute is reviewing the opinion for possible rehearing options and the possibility to petition the Supreme Court to hear the case.

A bill has been introduced in Congress to legalize flight-sharing websites like Flytenow. H.R. 3593, the Aviation Cost and Expenses Sharing Act, was introduced by Congressman David Schweikert (R-Ariz).