FlyteNow Sues FAA (Uber for pilots)

[JimNtexas]

The power of the FAA and many other agencies has come under scrutiny for their expansion. The courts, and more importantly the public are getting tired of the administrative power grabs without congressional backing, or even oversight. ....

The facts in this case are up for debate, but from a larger perspective, all the little generals in these fed agencies need to be taken down a notch. The FAA is among the worst transgressors. I can't imagine an agency head telling congress that their mandates for policy are not going to be implemented, or are going to be years late. ....

Docmirror is 100% right!!!! We have runaway agency 'law' in this country. What's the point of having a Congress if some law clerk at the FAA can type up any damn law she likes, put it a binder, and then require citizens to spend tens of thousands of dollars to get it changed?

 

[Henning]

I see them having a tough row to hoe on this, but I wish them luck. We'll see what the courts decide.

 

[JeffDG]

I see them having a tough row to hoe on this, but I wish them luck. We'll see what the courts decide.

Concur.

I think the fact that the FAA routinely makes rules by interpretation, rather than following the Administrative Procedures Act notice-and-comment rulemaking process is an issue worthy of a well-briefed and argued court case.

 

[docmirror]

Does anyone remember the memo about an interpretation of the 'known ice' deal a few years back? Caused quite a stir in the GA community before someone higher up papered over it. This is just another example.

OBTW, there's various interpretations of holding out. I think the Flyte Now example doesn't meet the letter of the law as written, nor does the interpretation found in McPhereson-Winton follow the common sense application of the admin law. These are the kind of interpretations that result in death by a 1000 cuts that is so prevalent and we can do nothing to stop it.

Adding insult to injury, the admin law has so many interpretations to what is a dyadic flight relationship, that no one law can possibly cover all situations. Will there be some guy in the program who is actually holding out? Probably. Will it become a mecca for holding out by PPL and passengers? doubt it, but of course the feds are all about prior restraint here.

If I would have written the brief I would have leaned far more into the prior restraint relief. My limited opinion, most courts discourage prior restraint without some kind of viable analysis. In this case, the feds proscribed any situation where there might, possibly, at some time in the foreseeable future, potentially, and may have been one person holding out. But - they never had one case or one situation to base it on vis-a-vis Flyte Now - just a blanket 'thou shalt not...'. I think this is the most egregious violation, but I don't think like a lawyer very often.

 

[Sam D]

There is an additional issue in this case that I think is interesting. They are making the claim that there is no difference between an individual posting something on a physical bulletin board vs posting it on the Internet. I wonder if we will come to different levels of "holding out"? For example, I think there is a significant difference between something being "publicly available" by going to the courthouse in person and getting something from the records (e.g. How much your neighbor paid for their house) vs getting the same info anonymously with a few clicks over the internet.

 

[DJTorrente]

Is a "legal services for equity" deal common? The only thing valuable in a start-up is equity. I could see a smart firm taking a chunk to take this on.

The brief claims for reimbursement of legal fees under EAJA (Equal Access to Justice Act). That's at least one (contingent) revenue source available.

There could have been a payment in equity from the plaintiff. Many firms in my sub-specialty (patents & intellectual property) took start-up equity as payment during the internet boom. I'm particularly thinking of Lyon & Lyon. That 100 year-old firm dissolved in 2002.

Its hardly a new phenomenon either. Judge Giles Rich, who sat on the Federal Circuit Court of Appeals, created in 1981 to hear all patent cases, had previously more or less wrote the Patent Act of 1952 while working as a senate staffer. Himself the son of a patent attorney from Rochester NY, in an interview for his biography, Judge Rich recounted his father advising him not to take stock in lieu of payment, such as the father was offered at the turn of the century by risky start-ups like George Eastman (Kodak).

 

[David7700]

Docmirror is 100% right!!!! We have runaway agency 'law' in this country. What's the point of having a Congress if some law clerk at the FAA can type up any damn law she likes, put it a binder, and then require citizens to spend tens of thousands of dollars to get it changed?

The reason is that Congress cannot possibly pass every rule and regulation to be followed by every agency in this country, so that task is delegated to the various Federal Administrations. It is true on the state level as well.

There are boundaries, and in the case of the MAcPherson letter, I think the FAA stayed within them.

It is all well and good to clamor about liberties and free speech--I agree with all that. But you have to put that aside and delve into these issues. It is more complex than it appears.

This is not a bureaucrat deciding what the law is. This is an agency attorney saying what the agency and courts have said on an issue in the past. Holding out comes from case-law--what courts have decided in the past. This is not a bureaucrat run amok.

 

[David7700]

I see them having a tough row to hoe on this, but I wish them luck. We'll see what the courts decide.

Concur.

I think the fact that the FAA routinely makes rules by interpretation, rather than following the Administrative Procedures Act notice-and-comment rulemaking process is an issue worthy of a well-briefed and argued court case.

I'm wondering whether you do agree with Henning. Henning--who is the "they" you are referring to? Flytenow or the FAA?

 

[David7700]

Does anyone remember the memo about an interpretation of the 'known ice' deal a few years back? Caused quite a stir in the GA community before someone higher up papered over it. This is just another example.

OBTW, there's various interpretations of holding out. I think the Flyte Now example doesn't meet the letter of the law as written, nor does the interpretation found in McPhereson-Winton follow the common sense application of the admin law. These are the kind of interpretations that result in death by a 1000 cuts that is so prevalent and we can do nothing to stop it.

Adding insult to injury, the admin law has so many interpretations to what is a dyadic flight relationship, that no one law can possibly cover all situations. Will there be some guy in the program who is actually holding out? Probably. Will it become a mecca for holding out by PPL and passengers? doubt it, but of course the feds are all about prior restraint here.

If I would have written the brief I would have leaned far more into the prior restraint relief. My limited opinion, most courts discourage prior restraint without some kind of viable analysis. In this case, the feds proscribed any situation where there might, possibly, at some time in the foreseeable future, potentially, and may have been one person holding out. But - they never had one case or one situation to base it on vis-a-vis Flyte Now - just a blanket 'thou shalt not...'. I think this is the most egregious violation, but I don't think like a lawyer very often.

I think you are incorrect. Here is Haberkorn which discusses holding out and previous holding out interpretations--tell me where they are inconsistent:

Haberkorn (2011) –Facebook Case

http://www.faa.gov/about/office_org...1/haberkorn - (2011) legal interpretation.pdf

As described above, holding out is accomplished when one communicates to the public, or a segment to the public, that transportation services are indiscriminately available to any person with whom contact is made. While you offer no additional details about the nature ofthe post or how large your Facebook audience is, the FAA cautions that this type of advertising may be construed as holding out. Advertising is not confined to print media, such as magazines or newspapers, and advancing technology allows one to quickly reach a large audience through the electronic communications and internet posts. Additionally, even if you limit the transportation services to a class or segment of the general public (such as Facebook users), it may still be considered holding out if it expresses a willingness to provide transportation for all within this class or segment to the extent of its capacity. Legal interpretation to William A. Dempsay from Donald P. Byrne, Acting Assistant Chief Counsel for Regulations and Enforcement (June 5, 1990). Finally, the FAA cannot determine or approve in advance what type of advertising or soliciting are considered a holding out of air transportation service without all available facts concerning a specific situation. See Legal interpretation to Earl H. Simmons, Jr. from Donald P. Byrne, Acting Assistant Chief Counsel for Regulations and Enforcement (July 27, 1989) (advising a travel club that the use of mass media, salesmen, travel club brochures, and other forms of advertising or recruitment cannot be approved in advance without all available, specific facts).

[Y]ou question whether you and your passengers share a common purpose if you are travelling to Long Island for a wedding but your passengers express an interest in. going to Long Island to attend a baseball game. The existence of a bona fide common purpose is determined on a case-by-case basis. Based on these facts, there appears to be a bona fide common purpose, as the destination was dictated by the pilot, not the passengers, and both you and your passengers have personal business to conduct in Long Island. The purpose of this flight is not merely to transport your passengers to Long Island.

 

[David7700]

What you proponents of Flytenow's position in this are failing to see is that the FAA has been loose with holding out and only interpreting it on a case by case basis. Calling for a court to draw a bright line rule might possibly bring a result that will end current cost-share arrangements.

 

[David7700]

There is an additional issue in this case that I think is interesting. They are making the claim that there is no difference between an individual posting something on a physical bulletin board vs posting it on the Internet. I wonder if we will come to different levels of "holding out"? For example, I think there is a significant difference between something being "publicly available" by going to the courthouse in person and getting something from the records (e.g. How much your neighbor paid for their house) vs getting the same info anonymously with a few clicks over the internet.

The problem with the bulletin board argument is that the FAA has neer actually said that posting on a bulletin board is OK.

I just posted this above (quoting from my earlier post), but no one has read it perhaps:

This isn't a power grab. This is some private company coming in and trying to do something not permitted, or at best very questionable. And the FAA gave them an opinion that it would be a violation of the regs.

I disagree that the facts are in dispute. Flytenow says there are Constitutional issues:

I don’t see any Constitutional issues here. The basis of the suit, as I understand it, is:

“the FAA’s decision to shut down Flytenow violates the First Amendment and Due Process rights of the company, its owners and members, and that the agency’s rules are unconstitutionally vague.”

I don’t see any due process issues. In fact, MacPherson is not an Administrative Law Judge Ruling fro the NTSB–it is a letter of interpretation from the chief counsel of the FAA. As such, it is not law but an indication of what the FAA would do in an enforcement action. It is also not an CFR. So where is the Due Process issue?

The NTSB usually does agree with the FAA Chief Counsel in the letters of interpretation (but not always). And you are wise to follow them as if they were regulation (which I would advise anyone to do). Letters of interpretation have been overturned by the NTSB and Federal Courts before, but it is not common. This letter was based on years of consistent application of the regulations. Thus, I do think it is vague.

See what I posted earlier about amending the CFRs:

Flytenow modifies business model in face of FAA ruling



My thoughts:

This wasn’t a “ruling”. It was a letter of interpretation from the FAA chief counsel indicating how the FAA would likely rule in an enforcement action. Letters of interpretation have been overturned by the NTSB and Federal Courts before, but it is not common. This letter was based on years of consistent application of the regulations.

The biggest problem with the regulations–the Code of Federal Regulations (CFRs) applying to aviation–is that nowhere do they set forth the definition of common carriage, which is a common law notion. Because this is common carriage (1. Holding out 2. to transport persons or property 3. from one place to another 4. for compensation), the 61.113 exception does not apply. The CFRs (notably, 61.113) do not make any mention of this idea of “common purpose” either. That is from prior letters of interpretation and NTSB cases, etc.

The CFRs need to be amended to put into the regulations these rules that pilots are to beheld accountable to. It is not realistic to expect private pilots to wade through mountains of letters and NTSB/Federal court decisions to discover what they are and are not permitted to do, especially in an area that is of a fairly high concern to so many. In this process, if the flight-share companies can get clarification that what they are doing is OK, then all the better. But we all need clear rules set out in the CFRs for us all to follow without reference to letters that are not listed or included with the CFRs.

As to the idea that all the flight share companies are doing is taking the airport or FBO bulletin board to the internet, I think the FAA has said that a bulletin board may be considered holding out. I have never seen posts like this on a bulletin board at my airport, but it seems like the practice does go on with the FAA turning a blind eye unless the pilot is blatantly acting as an illicit charter company.

See Haberkorn and the Article, Come Fly with Me, in the Sept/Oct 2010 issue of FAA Safety Briefing, mentioned in Haberkorn:

Haberkorn Letter:

“The holding out can be accomplished by any “means which communicates to the public that a transportation service is indiscriminately available” . . . There may also be a holding out without advertising, where a reputation to serve all is sufficient to constitute an offer to carry all customers. Whether or not the holding generates little success is not a factor ”

Come Fly with Me, in the Sept/Oct 2010 issue of FAA Safety Briefing:

“This doesn’t mean that you can’t ask people to fly with you and share some of the costs, but the sole purpose of your flight can’t be just to transport your passengers from one point to another. Asking your flying buddies if they want to split the costs of flying to Oshkosh with you and flying with friends to that resort on the coast you’re all going to share and sharing the flying costs—those would be okay. However, sharing expenses with a passenger on a flight to a place you would not otherwise be flying to would be a problem.”

“Hold the Line on Holding Out

“Holding out” can be as complex as publishing a flight schedule for a major airline or as simple as posting a notice on an FBO bulletin board (or the Internet) telling everyone you’re the one who will fly them to that prime vacation resort and make their dreams come true. Many FAA inspectors also like to fly for pleasure, and they read those bulletin boards, too. They might not be too happy with your advertisement for Old Bessie’s “charter service” when they find out you don’t have a part 135 certificate, but at least they won’t take you to task for promising to make your prospective client’s dreams come true.

Many pilots believe that they can easily avoid the compensation or hire restrictions of the regulations by making other arrangements. The FAA, however, interprets “compensation” very broadly. For example, the FAA has long held that logging flight time for the conduct of a flight is compensation. Most of us, and especially those of us seeking that coveted left seat at a major air carrier, know how valuable flight time can be. So, if someone requests that you use your superior piloting skills to take them to that resort of their choice and you decline any monetary payment, but still log that flight time while not paying the costs of operating the aircraft, you’ve received compensation.

Goodwill obtained from providing a flight has also been determined to be compensation. Everyone knows how valuable a favorable news article or celebrity endorsement can be. Bartering can be considered compensation, too. You may want to think twice before you take someone flying in exchange for spending a weekend at their beach house."

 

[Sam D]

The problem with the bulletin board argument is that the FAA has neer actually said that posting on a bulletin board is OK.

I just posted this above (quoting from my earlier post), but no one has read it perhaps:

Thanks. I did read your earlier post. And your comment is on point to this case. I was going a little off point but I'm still in love with my own issue.

 

[docmirror]

I think you are incorrect. Here is Haberkorn which discusses holding out and previous holding out interpretations--tell me where they are inconsistent:

Haberkorn (2011) –Facebook Case

http://www.faa.gov/about/office_org...1/haberkorn - (2011) legal interpretation.pdf

As described above, holding out is accomplished when one communicates to the public, or a segment to the public, that transportation services are indiscriminately available to any person with whom contact is made. While you offer no additional details about the nature ofthe post or how large your Facebook audience is, the FAA cautions that this type of advertising may be construed as holding out. Advertising is not confined to print media, such as magazines or newspapers, and advancing technology allows one to quickly reach a large audience through the electronic communications and internet posts. Additionally, even if you limit the transportation services to a class or segment of the general public (such as Facebook users), it may still be considered holding out if it expresses a willingness to provide transportation for all within this class or segment to the extent of its capacity. Legal interpretation to William A. Dempsay from Donald P. Byrne, Acting Assistant Chief Counsel for Regulations and Enforcement (June 5, 1990). Finally, the FAA cannot determine or approve in advance what type of advertising or soliciting are considered a holding out of air transportation service without all available facts concerning a specific situation. See Legal interpretation to Earl H. Simmons, Jr. from Donald P. Byrne, Acting Assistant Chief Counsel for Regulations and Enforcement (July 27, 1989) (advising a travel club that the use of mass media, salesmen, travel club brochures, and other forms of advertising or recruitment cannot be approved in advance without all available, specific facts).

[Y]ou question whether you and your passengers share a common purpose if you are travelling to Long Island for a wedding but your passengers express an interest in. going to Long Island to attend a baseball game. The existence of a bona fide common purpose is determined on a case-by-case basis. Based on these facts, there appears to be a bona fide common purpose, as the destination was dictated by the pilot, not the passengers, and both you and your passengers have personal business to conduct in Long Island. The purpose of this flight is not merely to transport your passengers to Long Island.

I think you are correct in the interpretation Haberkorn case. But - I would like to have you take a larger look at the process, and the way the regulations keep changing. Haberkorn was one more cut in the mantra of ever increasing oversight. In this specific case, the pilot was going to X location, whether or not other pax rode along. So far so good I presume? Next, we have the question of 'common purpose' which is the basis for the rule interpretation. The common purpose of the flight was to get from a Y location to an X location. Once that purpose was accomplished, then whatever the people do once they get out of the plane is up to them. Here's where I and the FAA differ. According to the FAA, unless the pax attended the exact same event, not in any way related to aviation activity, they rule that as holding out.

The common purpose has gone from 'I want to pay someone retail to get to me to X, and I am currently at Y location' which is well covered by commercial carriage to 'if you are going to X, and I want to come along, I will pay not a retail price, but defrayed cost of direct operation'.

I know I certainly have a more liberal interpretation of regulation than the FAA, but if we were to take the aviation aspect out of it, and substitute a hitch hiker, I don't think anyone in govt could say that the hitchhiker giving a driver $20 for a ride from Y to X is holding out. We(and the fedguv) should not care why the hitchhiker wants to get to Detroit in Jan from Miami, just that a willing driver will take him, and accept some gas money along the way.

Pretty sure my opinion of the whole thing is askew with that of the FAA, and really - I am plenty ok with that. The FAA protecting the gen pop from unscrupulous vendors of rides in single engine planes is all well and good, but if you don't want to risk an airplane ride, then as an individual - don't get in the plane, go Miami intl and buy a damn ticket to Detroit. QED.

 

[David7700]

Thanks. I did read your earlier post. And your comment is on point to this case. I was going a little off point but I'm still in love with my own issue.

 

[David7700]

I think you are correct in the interpretation Haberkorn case. But - I would like to have you take a larger look at the process, and the way the regulations keep changing. Haberkorn was one more cut in the mantra of ever increasing oversight. In this specific case, the pilot was going to X location, whether or not other pax rode along. So far so good I presume? Next, we have the question of 'common purpose' which is the basis for the rule interpretation. The common purpose of the flight was to get from a Y location to an X location. Once that purpose was accomplished, then whatever the people do once they get out of the plane is up to them. Here's where I and the FAA differ. According to the FAA, unless the pax attended the exact same event, not in any way related to aviation activity, they rule that as holding out.

The common purpose has gone from 'I want to pay someone retail to get to me to X, and I am currently at Y location' which is well covered by commercial carriage to 'if you are going to X, and I want to come along, I will pay not a retail price, but defrayed cost of direct operation'.

I know I certainly have a more liberal interpretation of regulation than the FAA, but if we were to take the aviation aspect out of it, and substitute a hitch hiker, I don't think anyone in govt could say that the hitchhiker giving a driver $20 for a ride from Y to X is holding out. We(and the fedguv) should not care why the hitchhiker wants to get to Detroit in Jan from Miami, just that a willing driver will take him, and accept some gas money along the way.

Pretty sure my opinion of the whole thing is askew with that of the FAA, and really - I am plenty ok with that. The FAA protecting the gen pop from unscrupulous vendors of rides in single engine planes is all well and good, but if you don't want to risk an airplane ride, then as an individual - don't get in the plane, go Miami intl and buy a damn ticket to Detroit. QED.

All of that sounds great.

The sole issue is holding out. How to bring the pilot and passengers together. And the FAA has said that is a case-by-case determination.

How did they arrive at that? That is a good discussion.

[We now pause for me to gather that info]

 

[Henning]

I'm wondering whether you do agree with Henning. Henning--who is the "they" you are referring to? Flytenow or the FAA?

Flytenow and the legal challenge, I think they have their work cut out for them to get this through, but given what Congress has done in the past telling the FAA to get some reforms into gear that will definitely benefit GA, who knows.

 

[David7700]

Jim, for some reason, the quote isn't working.

No, that is not what I'm talking about. I will steal this from elsewhere because I believe it to be the case, but I did not write it:

Skimming further, I don't buy the freedom of speech issues and restriction of pilots' ability to post travel plans and willingness to share expenses on the Internet argument. Posting travel plans and looking for passengers to share itineraries is getting to the very heart of holding out.

They state that the FAA's definition of "holding out" is "impermissably vague". If this thing survives jurisdictional issues and the Court rules on this, I'm willing to bet that we private pilots are not going to like the "clearer" definition of "holding out". It'll simply remove freedom where it exists today.

 

[David7700]

Flytenow and the legal challenge.

Then you two did agree. Henning, why do you think FlyteNow will win?

 

[ClimbnSink]

... Calling for a court to draw a bright line rule might possibly bring a result that will end current cost-share arrangements.

Good. Let all cost sharing be killed. People might demand reasonable freedom then. If they don't then they don't deserve any.

 

[Henning]

Then you two did agree. Henning, why do you think FlyteNow will win?

I don't, I would put the odds 70:30 against them winning, but I hope they make it.

 

[Jim Logajan]

Jim, for some reason, the quote isn't working.

No, that is not what I'm talking about. I will steal this from elsewhere because I believe it to be the case, but I did not write it:

If you are referring to a post by me that is no longer visible, I realized after-the-fact that the reply I posted was not relevant to what to were talking about and deleted it - but presumably not fast enough before you saw it and attempted to reply. Sorry.

 

[mrkbbd]

I'm confused why they don't just change their model...like Uber originally requiring limo drivers (i.e. with correct licenses) require a 135 certificate, there are a lot of people with single-plane 135s out there that don't market and then there is no question of going from location x to location y at z time.

The alternative is for flytenow to help people get a 135 certificate...much like LegalZoom it is pretty much a standard form in ops manuals...they would make their 20% or whatever + do group insurance that everyone would need to purchase (captive insurance company) OR get their own 135 and qualify these people to be on it? These may not be the most practical solutions...

The next question is, would YOU trust a person on flytenow enough to get in the plane with them not knowing them at all? I'm not so sure. Knowing what I know about aviation and the many people who cut corners on maintenance and training I don't think I would get in the planes...I generally don't go flying with people unless I know a lot about them and the airplane...I've even refused to fly with CFIs who I perceive as dangerous and told them as much.

 

[JeffDG]

I don't, I would put the odds 70:30 against them winning, but I hope they make it.

I'd say the odds are less than that, and until I read the other side's brief, I'm not willing to say which side I think should win.

 

[David7700]

If you are referring to a post by me that is no longer visible, I realized after-the-fact that the reply I posted was not relevant to what to were talking about and deleted it - but presumably not fast enough before you saw it and attempted to reply. Sorry.

Ah, no worries.

 

[Henning]

I'd say the odds are less than that, and until I read the other side's brief, I'm not willing to say which side I think should win.

I would put the odds higher as well except for the acts of congress that have come in the last 5 years or so; not that the FAA has acted on it.

I think cost sharing rules between Pilots, and their prior personal relationship passengers, should be loosened if not eliminated. No more 'common purpose' stuff. One pilot needs to get somewhere (and bring wife/friend) flying with a pilot building time paying their Pro Rata, all good. Pilot owns a plane, pilot two walks up, "Hey, how about we fly to KLIT for a lick? I'll buy the gas." All good.

Non pilot person or group walks up to pilot with plane, "Can you fly us to...?" Still needs a 135 cert. Pilot to Pilot transactions should be void of 135 requirements, since 135 is about assuring safety expectations of an uninformed consumer. A pilot can be expected to be an informed consumer and capable of judging for themselves the safety of their situation.

 

[midlifeflyer]

In the Flytenow case, the public interest group may have its own lawyers or it may pay players. I have not seen, but would like to see a copy of the suit. I will pull that now off Pacer.

Or you could use the link in the first post.

 

[David7700]

All of that sounds great.

The sole issue is holding out. How to bring the pilot and passengers together. And the FAA has said that is a case-by-case determination.

How did they arrive at that? That is a good discussion.

[We now pause for me to gather that info]

Holding out:

It all predates the 1986 FAA Advisory Circular 120-12A [FONT=&quot]which summarizes things quite nicely.

Common Carriage is a common law term. That means it came from Court Cases--decisions of a judge. This term goes back to case law in England before The US was founded.

The term "Common Carriage" was used in the Federal Aviation Act of 1958 but not defined.

Now to be a pilot and engage in common carriage (carrying the public), you have to have a special license and operating certificate--with lots of extra requirements.

So when is it just flying friends and when is it common carriage?

We've discussed before the 4 prongs of what constitutes common carriage. One of those is holding out, and that is what we are concerned with here.

From the AC: [/FONT][FONT=&quot]This "holding[/FONT]out" which makes a person a common carrier can be done in many ways and it doesnot matter how it is done[FONT=&quot]."

FlyteNow was told that what they proposed was "holding out" in the Winton letter. Winton is their attorney now in the brief filed by Goldwater.

In discussing holding out, FlyteNow had argued to the FAA that this was not holding out because the website matched Enthusiats with pilots by dates and destinations. The FAA said that this was holding out because holding out occurs [/FONT]by [FONT=&quot][FONT=&quot]any "means which communicates to the public that a transportation service is indiscriminately available".

This language was cited in Haberkorn as well.

The language comes from a [/FONT][/FONT]Transocean Airlines, Enforcement Proceeding, 11 C.A.B. at 350 (1950).[FONT=&quot] If someone can find a copy of that, I would appreciate it.

See my discussion here, as well:

[/FONT]
[FONT=&quot]

It may not be the amendment that Airpooler wants, but we will see. Very interesting to watch the process.

The Winton letter was written the day after MacPherson. I think it is flytenow.

Winton merely incorporates by reference the MacPherson letter, so I am not sure it is any differently thought out.

Winton talks about holding out and references a 1950 CAB enforcement action, Transocean Airlines. This is apparently where this notion comes from that holding out may be accomplished by any "means which communicates to the public that a transportation service is indiscriminately available". Cited in Haberkorn.

I had trouble when I first read that definition. Indiscriminately available seems to me to mean transportation service that is available to any place at any time.

I'd love to read a copy of the Transocean Airlines case. I'm starting to think that holding out does not mean what the FAA thinks it means.

Lots of good stuff in this Indiana Law Review Article.



And in this one from Cornell - 1949:

[/FONT]

 

[docmirror]

All of that sounds great.

The sole issue is holding out. How to bring the pilot and passengers together. And the FAA has said that is a case-by-case determination.

How did they arrive at that? That is a good discussion.

[We now pause for me to gather that info]

No prob, and I appreciate your investment of time in this forum. now, I'm going to make fun of you a bit, hope you like it! :wink2:


Scene; A warm August afternoon, the Colosseum Rome. Private balcony of the emperor. Nero sits upon a gilded throne, with a gold challis of chilled wine from Umbria in his left hand. He stands, and looks down on the pilot and passenger - gathered in the gloom, awaiting their fate. Arms manacled, license in his teeth stand the pilot, accused of 'holding out'.

Nero; "Pilot! Amuse me you wretched proletarian. Did you, or did you not give ride to that passenger from Cisilia to our shores? Did you or did you not accept a half bushel of grain? Did you or did you not speak with him in the market of Palermo! Defend your actions!"

Pilot; "Yes emperor, I did all those things. I gave passage, I accepted a bag of grain, I spoke to him in the market and told him I was sailing to Anzio. He asked for passage, and I did abide his request".

(background shouts from the gallery; 'ooohhhhhhhh,,,,,, Death,,death,,death,,death,,death,,death...."

Nero; Stands and walks from his covered dais to the marble rail, cup in hand, surveys the crowd and the pilot and passenger below. He smiles, he waves to silence the crowd and they fall to a murmur. Nero then extends his arm, makes his right hand into a fist, thumb pointing to the side. He again surveys the crowd, and hears the chants. He smiles and turns his thumb...

 

[midlifeflyer]

The problem with the bulletin board argument is that the FAA has neer actually said that posting on a bulletin board is OK.

Kinda maybe sorta.

The brief cites a "Regional" Counsel opinion from 1976 saying "For instance, if you plan to go to St. Louis for a weekend, there would be nothing wrong with your advertising on the school bulletin board for other students to accompany you in order to defray your costs."

Of course, as we know from other situations (private pilots in the photography business for example), regional counsel interpretations can be problematic and have been completely overturned or disregarded by the Chief Counsel's office. I've begun to notice some regional interpretation letters appearing on the Chief Counsel's website, suggesting regional opinions may now be centrally coordinated in some way.

 

[David7700]

No prob, and I appreciate your investment of time in this forum. now, I'm going to make fun of you a bit, hope you like it! :wink2:


Scene; A warm August afternoon, the Colosseum Rome. Private balcony of the emperor. Nero sits upon a gilded throne, with a gold challis of chilled wine from Umbria in his left hand. He stands, and looks down on the pilot and passenger - gathered in the gloom, awaiting their fate. Arms manacled, license in his teeth stand the pilot, accused of 'holding out'.

Nero; "Pilot! Amuse me you wretched proletarian. Did you, or did you not give ride to that passenger from Cisilia to our shores? Did you or did you not accept a half bushel of grain? Did you or did you not speak with him in the market of Palermo! Defend your actions!"

Pilot; "Yes emperor, I did all those things. I gave passage, I accepted a bag of grain, I spoke to him in the market and told him I was sailing to Anzio. He asked for passage, and I did abide his request".

(background shouts from the gallery; 'ooohhhhhhhh,,,,,, Death,,death,,death,,death,,death,,death...."

Nero; Stands and walks from his covered dais to the marble rail, cup in hand, surveys the crowd and the pilot and passenger below. He smiles, he waves to silence the crowd and they fall to a murmur. Nero then extends his arm, makes his right hand into a fist, thumb pointing to the side. He again surveys the crowd, and hears the chants. He smiles and turns his thumb...

I'm probably not smart enough to follow that, but making fun of me is OK.

 

[David7700]

Kinda maybe sorta.

The brief cites a "Regional" Counsel opinion from 1976 saying "For instance, if you plan to go to St. Louis for a weekend, there would be nothing wrong with your advertising on the school bulletin board for other students to accompany you in order to defray your costs."

Of course, as we know from other situations (private pilots in the photography business for example), regional counsel interpretations can be problematic and have been completely overturned or disregarded by the Chief Counsel's office. I've begun to notice some regional interpretation letters appearing on the Chief Counsel's website, suggesting regional opinions may now be centrally coordinated in some way.

I wish I could search earlier opinions. Thanks for that.

Do you have a copy of the Transoceanic action from 1950?

Transocean Airlines, Enforcement Proceeding, 11 C.A.B. at 350 (1950)

 

[poadeleted20]

The FAA's big issue with FlyteNow was alleged holding out.

...the offer of air transportation for compensation/hire (i.e., for money). Take away the money, and the "holding out" doesn't matter -- you can offer truly free rides anywhere, anytime, to anyone without violating the FAA's regulations.

 

[poadeleted20]

Is a "legal services for equity" deal common? The only thing valuable in a start-up is equity. I could see a smart firm taking a chunk to take this on.

If you think expecting to win this suit is "smart", you might be right. But you won't see any checks with my name on them in FlyteNow's equity fund, so you can take that as my opinion on the likelihood of them winning.

 

[poadeleted20]

3. Whether the FAA lacks regulatory authority to restrict private communications over the Internet.

The FAA isn't saying you can't announce rides on the internet, only that you can't provide air transportation in return for money from the people you recruited via that route. And they most certainly do have the regulatory authority from the Federal Aviation Act to say who can take money for providing air transportation. IOW, as I said above, "it's the money, stupid!" No money, no FAA problem, no matter what you said on the internet.

 

[poadeleted20]

The brief claims for reimbursement of legal fees under EAJA (Equal Access to Justice Act).

Won't matter if they don't prevail, and like David, I don't see them prevailing.

 

[poadeleted20]

What you proponents of Flytenow's position in this are failing to see is that the FAA has been loose with holding out and only interpreting it on a case by case basis. Calling for a court to draw a bright line rule might possibly bring a result that will end current cost-share arrangements.

Glad to see someone agrees with me on that point. Even if the court upholds FlyteNow's position, the FAA will just rewrite the rules using language from the decision to craft a rule that makes sure nobody can take money for rides like this, and probably just end all expense sharing, period, as that would be the easiest solution.

 

[poadeleted20]

I'm confused why they don't just change their model...like Uber originally requiring limo drivers (i.e. with correct licenses) require a 135 certificate,

The cost would be prohibitive, and I suspect most of those pilots neither have or will get a CP ticket, nor use airplanes which meet the 135 requirements, especially for IFR operations.

 

[David7700]

The FAA isn't saying you can't announce rides on the internet, only that you can't provide air transportation in return for money from the people you recruited via that route. And they most certainly do have the regulatory authority from the Federal Aviation Act to say who can take money for providing air transportation. IOW, as I said above, "it's the money, stupid!" No money, no FAA problem, no matter what you said on the internet.

Ron, I was assuming that from all my other posts on the topic that you knew I knew that.

 

[Henning]

Glad to see someone agrees with me on that point. Even if the court upholds FlyteNow's position, the FAA will just rewrite the rules using language from the decision to craft a rule that makes sure nobody can take money for rides like this, and probably just end all expense sharing, period, as that would be the easiest solution.

Either that, or they will relinquish the liability to the courts and eliminate the expenses surrounding the issue. Considering the budgetary issues at the FAA right now I give better than even odds the FAA will choose to shed the load rather than take on the liability of challenging a court ruling.

 

[poadeleted20]

Ron, I was assuming that from all my other posts on the topic that you knew I knew that.

I'm sure you do, but some others (including the plaintiff's attorneys) seem to be ignoring that fundamental issue. The FAA wouldn't give a damn about their web site if there was no money changing hands in return for air transportation, but since that's what FlyteNow's program involves, the FAA has all the authority they need to regulate it. The only question would be whether it was just the pilots or also FlyteNow who would be breaking the FAA's regulations on that subject. The fact that FlyteNow would taking a cut of the money is probably why the FAA has said they will go after them, as opposed to the other sites like PilotsShareTheRide, where the site is not involved in the financial transactions. Hence,...

"It's the money, stupid!"