General aviation advocacy groups are raising the alarm that the FAA’s initial perspective of a court decision on flight training could have “serious and negative implications on the broader flight-training community.”
The 10 groups, in a June 8, 2021, letter to FAA Administrator Steve Dickson warns that the agency’s view on the recent Warbird Adventures decision — which calls flight instruction in a student’s own aircraft “common carriage” — will “hugely” impact Certified Flight Instructors and the entire flight training community.
The Warbird Adventures case started when the U.S. Court of Appeals for the District of Columbia Circuit was asked to review an FAA emergency cease-and-desist order received by Warbird Adventures, which was offering flight instruction in limited category aircraft without an exemption to FAR 91.315. A limited category aircraft is an aircraft not designed to meet current FAA certification requirements, such as warbirds. The court’s decision declining to review the emergency cease-and-desist order included an analysis stating that a student paying for flight instruction is “being carried for compensation.”
GA alphabet groups quickly appealed to the FAA to provide guidance on this analysis. The agency’s view was provided in a June 4, 2021, letter from Ali Bahrami, FAA Associate Administrator for Aviation Safety, which will be followed by a more formal policy statement.
The FAA’s latest perspective opined that a flight instructor who is operating a limited category aircraft and carrying a paying student is acting contrary to federal regulation, even if that compensation is for the instruction and not carriage. Furthermore, the FAA’s letter stated that the same prohibitions may extend to an instructor providing flight training in an experimental or primary category aircraft.
Calling the guidelines in the FAA’s response “unnecessary and unwarranted” and based on “irrational legal positions,” the letter sent from the 10 aviation groups stated that “if the FAA were to issue and implement these proposed new policies, they will likely invite unnecessary legal battles while degrading safety.”
The letter went on to point out that accessible flight training is the cornerstone of aviation and comprises what makes the U.S. aviation system the safest in the world.
“We need to get this flight training issue cleared up as quickly as possible and by any means possible,” said Aircraft Owners and Pilots Association (AOPA) President and CEO Mark Baker. “I can assure you we will not stop until this situation is resolved and common sense prevails.”
The GA organizations tried to avoid this issue by filing a “friend of the court” (amicus curiae) brief in the case to the DC Court of Appeals. In that brief, GA advocates cautioned the court to “narrowly tailor its decision to avoid negative implications for a wide variety of flight instruction provided to owners in their own aircraft,” according to AOPA officials.
The June 8 letter specifically addressed four potentially negative implications of the FAA’s current stance:
- Prohibiting owners of experimental aircraft from receiving flight instruction in their own aircraft without specific FAA permission to do so in the form of a Letter of Deviation Authority (LODA)
- Prohibiting owners of more than 300 limited category aircraft from receiving flight instruction in their own aircraft without an exemption
- Prohibiting owners of primary category aircraft from receiving flight instruction in their own aircraft without an exemption
- Limiting access to flight training in a specific make and model of an aircraft.
The letter adds that the FAA’s perspective is “contrary to the agency’s longstanding commitment to policies, practices, and procedures that have made and kept this nation’s National Airspace System the safest in the world.”
Besides AOPA, other GA organizations joining in the fight include the Experimental Aircraft Association, General Aviation Manufacturers Association, National Business Aviation Association, National Air Transportation Association, Helicopter Association International, Society of Aviation and Flight Educators, National Association of Flight Instructors, Flight School Associations of North America, and the International Council of Airshows.
This whole issue arises from a failure by an FAA attorney, in 2014, to read the plain language of the regulation, and the agency’s subsequent reliance on that misreading to address the use of “flight instruction” as a pretext for giving rides in warbirds.
The regulation says “no person may operate a limited category civil aircraft carrying persons or property for compensation or hire”.
There are two ways you can read this. One is: “no person may (operate, for compensation or hire), a limited category civil aircraft carrying persons or property”. The other is, “no person may operate a limited category civil aircraft (carrying persons or property for compensation or hire)”.
The distinction is important. The first says that a limited category civil aircraft that carries persons or property (i.e., pretty much any limited category civil aircraft, since “person” includes the pilot and “property” includes literally any object inside the aircraft) cannot be “operated” by someone who is being paid. “Operate,” as the FAA notes, is a very broad term, which does not require acting as a pilot of the aircraft, and it can apply to pretty much anyone associated with the operation of the aircraft (potentially including mechanics performing troubleshooting on board, for example, or the aircraft dispatcher).
The second interpretation says that no person – paid or not – can operate a limited category civil aircraft if that aircraft is carrying persons or property for compensation or hire.
It’s pretty clear that most people reading that rule are going to interpret it as meaning that the prohibition is on carrying persons or property for compensation or hire. The plain language does not mean that the prohibition is on being paid to have any role in operating the aircraft – even a safety related role.
But the FAA has chosen the non-plain-language meaning, and has done so in order to stop people from giving rides in warbirds under the pretense of giving flight instruction.
It should reverse itself. I know that might seem embarrassing, but it would garner a lot more respect from the regulated community, if the FAA says:
– the prohibition is on carrying persons or property for compensation, as the rule says, and is not on “operating an aircraft for compensation,” given that the latter would prohibit many desirable aviation safety functions – including instruction, dispatch and maintenance
– giving bonafide flight instruction is not “carrying” the student “for compensation or hire,” as the agency has always said; the carriage is incidental to the purpose, which is instruction
– however, where the FAA concludes that the purpose of a flight is not bonafide instruction, the operator may be found to be in violation. In particular, because warbirds and other aircraft requiring specific authorization for the pilot are especially hazardous, the FAA may require a high standard of proof that the purpose is bonafide instruction. Requesting and receiving an appropriate LODA for such aircraft would ensure compliance.
I’d like to read the opinions and the briefs. I’m a pilot and lawyer that flies experimental aircraft. Seems the courts and FAA are overlooking one essential fact. Each experimental aircraft is unique. Getting a flight review in a spam can does nothing to elucidate competency in the flown aircraft. Is the FAA worried about actual competence or cookie-cutter competence?
Seems similar to a CFI instructing under Basic Med. He’s being paid for his instructing, not his pilot service.
Go get ’em, Mark. You right, They wrong!
We are not happy til you are unhappy ! FAA
Limiting instruction in warbirds or Limited Category Aircraft is problematic in many ways. Limiting instruction in Experimental Aircraft also generates problems that I believe unnecessarily complicate.
This is apparently a first for the FAA.
Responding to another comment, AGRICULTURAL AIRCRAFT ARE GENERALLY AND OFTEN RESTRICTED CATEGORY AIRCRAFT, NOT EXPERIMENTAL CATEGORY.
Experimental Category Aircraft are “unemployable”.
There is an old saying, IF it is NOT broke DON’T FIX IT !!!!!!!!!!!!!!!!!!!!!
There we go again, with the liberals and democrats in power.
This has got nothing to do with Democrats. How ridiculous. It’s just courts not understanding how flying training works. You can see how they reached the observation but it has unintended consequences. Don’t make something political which is just judicial misunderstanding
This guy was appointed in 2017 under Trump. What makes him a liberal, the fact that you don’t like his decision?
How do the flight schools teach crop dusters how to fly? Ag planes are experimental.
Restricted category, not experimental
First off the U.S. Court of Appeals for the District of Columbia Circuit is biased and extremely liberal. Do I really have to explain anything else? The FAA had better start defending GA or there won’t be any General Aviation in which to pool pilots from. The leftists are slowly and systematically taking away our freedoms through Government regulation and through liberal court decisions, (oligarchy). It’s sounding more and more like they’re starting to weaponize the FAA like obama did with the IRS.
If, “We The People”, start becoming politically active, we can put an end to this madness.
Blah blah blah, facts not opinions are warranted.
Bill, so where are your facts?
He is correct about where we are headed as a country, not to mention the tyranny imposed on aviation by the other three letter identifier TSA.
Stop trying to make this a political “left vs. right” argument. And “liberal” is not a dirty word, so stop using it as an epithet. This was not caused by the court, it was caused by the FAA. Nothing new here, we’ve been dealing with clueless aviation bureaucracies since the dawn of aviation.
Here we go again with an ambiguous decision out of a court that probably has no clue as to it’s implications. And then you have the FAA with their over-reach and over-sight including the obvious ADSB to nab anybody deviating the slightest foot including instructors trying to watch everything while teaching students. It’s a never ending saga of our bloated bureaucracy.
The FAA’s Washington bureaucracy is so far removed from the real world of flying that it is getting comical. They continue to enact regulatory changes that make little sense and that are almost impossible to implement in the field. They are well meaning in trying to deal with issues as they come up but their solutions in many cases are both unworkable and uniformed.
I’m instructing under basic medical, If this decision sticks I’ll have to instruct under my commercial license which I can’t under basic med. I’ve had my CFI for 50 years, retired airlines. I instruct because I enjoy it and try to give back to the community that took me through a successful career in aviation.
If this goes through I’ll let my cfi expire and just fly my own airplane. Another government nail in the coffin for general aviation.
You can always become an Advanced Ground Instructor (AGI) rather than giving
up instructing entirely….
If pilots can’t pay (or contribute towards the cost) for instruction in warbirds, you have effectively grounded the warbirds, or any other aircraft where that rule is applied.
Totally agree! And common sense must prevail!
I agree with the court’s decision. All the clamoring from “aviation groups” has nothing to do with what the court considered. For example, they didn’t consider that if might be slightly more difficult to get an “FAA exemption” for a pilot to receive training in his/ her own aircraft.
Is flight instruction “common carriage”? I don’t think so, but a court does. So, how could the FAA handle this?
1) Have the legal department write an “Exemption letter” that covers all flight instruction, even in other than certified aircraft, stating that as long as the flight instruction is not “common carriage”, carry this letter as an exemption to rule blah, blah, blah. Put the letter on the FAA website for download.
2) Perhaps they could “make a rule” stating that only flight instruction that is “not common carriage” meets the requirements of blah, blah, blah, and therefore is approved. For example, if a flight starts and ends at the same airport, is that common carriage?
I am a multiengine pilot and appellate lawyer admitted to all but one federal court of appeals and the Supreme Court with 43 years legal experience and 47 years flight experience. Statements in court decisions which are not essential to the issue presented in the case are termed “dicta” and have no binding legal effect whatsoever. This court’s common carriage statement is classic dicta and did not provide the FAA with any basis to change existing policy, procedures or advice.
Thank you, William, for a well-thought-out, on-point comment; very informative to the “civilians” (non-lawyers) among us – a term my law school contracts professor and university VP used – in lieu of the perhaps more common political comments. And we know that, like contracts, statutes, regulations, administrative and court decisions also come down to definitions and interpretations: words do indeed matter. This issue is clearly one to follow.
PS – from a fellow appellate lawyer and GA supporter.
Really don’t see the problem. The old planes should not be used as trainers. Nothing wrong with learningin a regular certified aircraft then if you want to fly an antique get transition trained in it.
Once again gbigs misses the mark. Old airplanes, limited category airplanes etc. are not being used for primary trainers but at some point a pilot must get training in a warbird for instance in order to safely fly it. I have over 3000 hours in a variety of off the shelf G.A. airplanes but that certainly does not qualify me to fly a Stearman for instance. For that I need transition training and the FAA wants to abolish that.
You really have a deep seated disgust of old airplanes don’t you? I wonder if that attitude carries over to “old stuff” in general.
A lot of people fly in limited category aircraft such as the L-39 Albatross and require annual training per the FAA.
You really must not know anything about flying based upon the uneducated comments you regularly make on this site. How do you get transition trained in an older aircraft- certified or not- if you can’t get instruction in it? Each aircraft model is unique, for the most part, especially older vintage aircraft. Pilots need to be trained on the specific systems and characteristics of different models to be as safe as possible. Requiring an exemption is completely counter-productive.
The truly scary line is “…the FAA’s letter stated that the same prohibitions may extend to an instructor providing flight training in an experimental or primary category aircraft.” As I read this, by citing primary category aircraft this would mean not only old planes, but ALL aircraft not owned by the entity providing the instruction. So if you went out and purchased a brand new aircraft from the factory even a familiarization flight would not be compliant if an FAA exemption was not obtained.
Yes, that is what it says.
The FAA now needs a systematic fix for this problem.
Transition training for Limited Category and Experimental Category requires specific exemptions and permissions under these legal perceptions.
Evidently the FAA has gone back to their old policy: “We are not happy until you are not happy!”
The FAA could take a pimple and turn it into a mountain.
I heard that Democrats feel having the little people flying around in their little planes is dangerous
One has to wonder if this is how they will do it, besides raising 100LL out of the reach of us all….
The inmates have taken over the asylum!,,,
Wow. This is REALLY bad. The sky is about to become a very dangerous place. I’m stunned that the FAA would even consider banning flight training in owner-owned aircraft. They might as well pull the plug on the WINGs proficiency and safety program right now. I don’t see a Cirrus Owner renting a beater 172 from a local flight school for a WINGs flight activity; and if she did, what real good would it do? And the CFI is supposed to evaluate this same owner flying a strange plane for a flight review? Really? Hey, and what happens to insurance-mandated recurrent training for complex aircraft? What, no training in experimental? How does that make anyone safer? If the FAA thinks that certain makes and models of airplanes shouldn’t be used for flight training, doesn’t that make flight in those very same planes that much more dangerous? It seems to me that if the agency is concerned about safety, maximizing the opportunities for training–rather than restricting them–is the solution.
In fairness, they haven’t banned flight training in owner-owned aircraft. They have required a LODA for flight training in Limited, Primary Category and Experimental aircraft.
So, the Cirrus owner is just fine, as before.
The problem is that heaven knows how many people will have to request LODAs and then wait while the FAA sorts through a pile of totally unnecessary paperwork it created because it misinterpreted the plain language of the regulation. And, in the meantime, those people will not be able to get instruction in their own aircraft.
If the FAA is serious about safety, it will need a systematic solution to the problem created by its failure to read the plain language.
– One solution, likely the best in the long run, could be to change the regulations, which would require an NPRM – something the FAA knows how to do.
– Another – probably required in the interim even if the agency does the NPRM process – would be to create a method of issuing LODAs for Primary Category, E-AB and ELSA aircraft with minimal process. For example, the FAA could simply enable downloading of a standard LODA from its web site, which could be printed out and added to the aircraft documentation of (for example) any Primary, E-AB or ELSA aircraft that does not require specific authorization for the pilot.
– Yet a third would be to issue a new letter of interpretation, correcting the misinterpretation of its own attorney in 2014 and clarifying that a) instruction is not “operating an aircraft carrying persons or property for compensation or hire” and b) taking people for rides is not bonafide instruction, and (possibly) that in the case of an aircraft that requires specific authorization for the pilot the FAA may place the burden on the operator to show that the flight was a bonafide instructional flight, whereas in the case of aircraft not requiring specific authorization for the pilot, the burden will be on the FAA to show that the flight was not a bonafide instructional flight. Instructors wishing to instruct in aircraft requiring specific authorization would then request LODAs; everyone else could carry on as most of them have over the past 100-ish years.