FlyteNow Sues FAA (Uber for pilots)

[David7700]

So what's your guess on how long before a decision is rendered?

I don't do Federal Litigation like this, but I have partners who do. This is appeals court since it is an administrative action. I'll ask Dawn over on the PB.

Someone posted above when the Government's answer is due--I think they said February.

The APA may have its own time-frame--I don't know whether they do or what that is.

 

[JeffDG]

As soon as you take money in return for providing air transportation other than as authorized in 61.113 paragraphs (b) through (h), that's exactly what you become.

And taking compensation under 61.113(c) for pro rata reimbursement is not "other than as authorized in 61.113 paragraphs (b) through (h)", so you are admitting that it's not a "commercial operation".

Nowhere does 61.113 prohibit holding out, only Part 119 does that. If the operation fits within part 91, the prohibition in 119 is inapplicable.

You seem to think that payment of a share of the cost of the flight in return for being taken on the flight is "reimbursement of expenses", not "compensation" -- and that's just not true. It's a quid pro quo -- money for transportation. "Reimbursement of expenses" is an entirely separate issue involving flights for employment/business covered by a separate paragraph (61.113(b) to be exact) where you're not transporting anyone but yourself, and that's not what we're talking about here.

And you seem to think that any money changing hands makes it a commercial operation, which you've already invalidated with your own statement.

 

[Brad Z]

Listening to many of you here, it almost sounds like you advocate a total change, if not repeal, of the regulations. It sounds like you'd like for Henning's deckhand to be able to pay you 100% of the fuel to fly him to San Diego. For anyone to pay you anything to fly them anywhere. Hell, that would be great for GA. That would be great for me if I could go around and find people to supplement my flying and pay my expenses.

So tell me, what are the problems with opening it up to that? Why are we not arguing for that? Why stop at holding out and only paying half and allowing FlyteNow to operate.

Thus my point...

If the issue is that a 135 certificate is too hard to get, then perhaps the effort and energy should be placed on petitioning the FAA to rework that.

So folks, why aren't you writing letters to simplify the 135 process? There's a mechanism now that allows pilots to fly people for compensation, and it only requires a CP certificate and a 135 operating certificate. If the operating certificate is too hard to get...why aren't you upset with that?

 

[poadeleted20]

And taking compensation under 61.113(c) for pro rata reimbursement is not "other than as authorized in 61.113 paragraphs (b) through (h)", so you are admitting that it's not a "commercial operation".

Assumes facts not in evidence, to wit, that what one would be doing via the FlyteNow model is in fact covered by 61.113(c). The FAA clearly believes it is not, on the basis that they interpret 61.113(c) as having certain inherent restrictions, including not holding out to the general public. Since the FAA believes that FlyteNow holds out to the general public an offer of air transportation for hire/compensation, they believe that brings Part 119 into the mix. FlyteNow argues otherwise, and that's what this case is all about.

In addition, since FlyteNow is getting a cut of the proceeds (a significant difference from the pilotsharetheride.com model), the FAA seems to be arguing that FlyteNow is offering the air transportation, not the individual pilot, and that has additional implications, including the fact that FlyteNow does not qualify under 61.113(c) to receive any share of the expenses.

So, we'll see what the court says about those two fundamentally opposed views of what the regulations say/mean. Personally, I agree with David that FlyteNow is going to lose, but that's why we have the courts -- to settle such disputes.

 

[ClimbnSink]

Everyone is running with the FAAs ridiculous redefinition of compensation. 135 process is for profit. And of course the biggest opponents to 135 reform would be current 135 operators. Rentseeking is the Murican way.

Thus my point...



So folks, why aren't you writing letters to simplify the 135 process? There's a mechanism now that allows pilots to fly people for compensation, and it only requires a CP certificate and a 135 operating certificate. If the operating certificate is too hard to get...why aren't you upset with that?

 

[RotorAndWing]

I like the amount of activity here on POA, but I think that most people are not able to read every post.

Oh they read......it's just that wee problem with comprehension that keeps getting in the way.

 

[Brad Z]

Everyone is running with the FAAs ridiculous redefinition of compensation. 135 process is for profit. And of course the biggest opponents to 135 reform would be current 135 operators. Rentseeking is the Murican way.

Ha ha. Part 135 operators make a profit? Perhaps a few, but...

You haven't heard 135 operators come out against FlyteNow because nobody thinks they have a chance of winning their desired outcome. If by chance they do win, you can bet the 135 lobby will be in favor of rewriting 61.113(c). All it will take is a high profile accident and it will be pretty easy to do.

 

[JimNtexas]

What you ignore about 'real law' is that we have a system in this country of both codified laws and regulations AND common law. Common law is that law decided by courts. Case law. And this notion of common carriage comes from case law. I posted quite a long explanation of this with links to article and cases.

Look at the plaintiff's brief. Cost sharing without the intention of making a profit is not 'compensation' under common law, nor was it under FAA rules until 2014. Telling someone that you, as a private pilot, plan to fly from A to B on a particular date is NOT 'common carriage' or 'holding out' under common law or FAA governing law.

 

[David7700]

And taking compensation under 61.113(c) for pro rata reimbursement is not "other than as authorized in 61.113 paragraphs (b) through (h)", so you are admitting that it's not a "commercial operation".

Nowhere does 61.113 prohibit holding out, only Part 119 does that. If the operation fits within part 91, the prohibition in 119 is inapplicable.



And you seem to think that any money changing hands makes it a commercial operation, which you've already invalidated with your own statement.

We keep circling back to the ground we've covered over and over.

Here is how the FAA got there, whether or not you agree. MacPherson (Airpooler which was the first letter):

A private pilot cannot provide transportation for hire under 61.113(c) except the few exceptions, one of which we all are aware of--cost-sharing.

Now here is the jump that you dispute:

If a private pilot is taking compensation where you are "holding out" (advertising your services indiscriminately to the general public), then you fall under Part 119 because that looks like a commercial operation. This is where teh test for holding out comes into play, because iof it is not holding out, then part 119 is not applicable.

This is consistent with case law and all prior FAA opinions. But it is not in the CFRs at all.

For this reason, I have advocated adding it to the CFRs so all pilots will know. But changing the CFRs is much harder than writing the opinion letter.

Check out the Reba McEntire case for some interesting info on Holding Out: Woolsey

 

[JimNtexas]

Does the FAA have the right and the responsibility to regulate public air transport flight operations?

I don't think anyone can rationally argue that the answer to the second question is anything but "maybe".

The FAA does NOT have unlimited power to put anything it darn well pleases into the FARS. It cannot, for example, regulate speech, as it is currently trying to do.

The FAA most certainly does NOT have the right to 'regulate' by fiat, which is the key component of this case.

 

[David7700]

Look at the plaintiff's brief. Cost sharing without the intention of making a profit is not 'compensation' under common law, nor was it under FAA rules until 2014. Telling someone that you, as a private pilot, plan to fly from A to B on a particular date is NOT 'common carriage' or 'holding out' under common law or FAA governing law.

I don't think anyone can rationally argue that the answer to the second question is anything but "maybe".

The FAA does NOT have unlimited power to put anything it darn well pleases into the FARS. It cannot, for example, regulate speech, as it is currently trying to do.

The FAA most certainly does NOT have the right to 'regulate' by fiat, which is the key component of this case.

But, that is not the case. I will merely refer you back to what I've posted before in this thread. I am covering the same ground here.

 

[JeffDG]

This is consistent with case law and all prior FAA opinions. But it is not in the CFRs at all.

For this reason, I have advocated adding it to the CFRs so all pilots will know. But changing the CFRs is much harder than writing the opinion letter.

OK, and the main point that I'm making isn't that FlyteNow is a good idea, but that opinion letters are not an appropriate way of doing this. They are a method by which the FAA (and many other agencies) have bypassed the notice-and-comment rulemaking process of the APA.

Convenience does not justify bypassing the rule of law.

The point that FlyteNow is making is consistent with what you are saying. Holding out is not prohibited in Part 91. It is prohibited under Part 119, and that prohibition is expressly limited to operations occurring under Part 119. Part 119 doesn't apply to things that "look like" commercial operations, but to operations that are actually commercial operations.

If the FAA wants to prohibit holding out under Part 91, then they should do so via notice-and-comment rulemaking, not via ex parte opinion letters.

 

[Palmpilot]

Reductio ad absurdum. That isn't what I said and you know it.

There's nothing inherently wrong with reductio ad absurdum. It's merely "a mode of argumentation that seeks to establish a contention by deriving an absurdity from its denial, thus arguing that a thesis must be accepted because its rejection would be untenable." In the case of Qbynewbie's post, the thesis appears to be that limits to private pilot privileges are necessary (a thesis that I suspect you agree with).

 

[David7700]

OK, and the main point that I'm making isn't that FlyteNow is a good idea, but that opinion letters are not an appropriate way of doing this. They are a method by which the FAA (and many other agencies) have bypassed the notice-and-comment rulemaking process of the APA.

Convenience does not justify bypassing the rule of law.

The point that FlyteNow is making is consistent with what you are saying. Holding out is not prohibited in Part 91. It is prohibited under Part 119, and that prohibition is expressly limited to operations occurring under Part 119. Part 119 doesn't apply to things that "look like" commercial operations, but to operations that are actually commercial operations.

If the FAA wants to prohibit holding out under Part 91, then they should do so via notice-and-comment rulemaking, not via ex parte opinion letters.

The only reason the FAA took any action (writing the letters) was because AirPooler and FlyteNow asked them for an opinion. They didn't like the answer. No new law was made.

The answer the FAA gave was not different than any other answers they gave in the past. So where is the new regulation?

 

[David7700]

OK, and the main point that I'm making isn't that FlyteNow is a good idea, but that opinion letters are not an appropriate way of doing this. They are a method by which the FAA (and many other agencies) have bypassed the notice-and-comment rulemaking process of the APA.

Convenience does not justify bypassing the rule of law.

The point that FlyteNow is making is consistent with what you are saying. Holding out is not prohibited in Part 91. It is prohibited under Part 119, and that prohibition is expressly limited to operations occurring under Part 119. Part 119 doesn't apply to things that "look like" commercial operations, but to operations that are actually commercial operations.

If the FAA wants to prohibit holding out under Part 91, then they should do so via notice-and-comment rulemaking, not via ex parte opinion letters.

The only reason the FAA took any action (writing the letters) was because AirPooler and FlyteNow asked them for an opinion. They didn't like the answer. No new law was made.

The answer the FAA gave was not different than any other answers they gave in the past. So where is the new regulation?

Part 119 does not prohibit holding out. It is the exact opposite. If you hold out, part 119 applies. So, the FAA says that FlyteNow and Airpooler are holding out. Thus, part 119 applies. It's that simple.

Plus--I have already advocated for changing the CFRs. Repeatedly.

 

[Everskyward]

1. Would FlyteNow's scheme result in pilots flying members of the public for compensation?

Private pilots can already share expenses with passengers under certain circumstances. The only question is if Flytenow's operation meets these parameters.

2. Does the FAA have the right and the responsibility to regulate public air transport flight operations?

That depends how you define "public". Flytenow only allows ride sharing between members.

I believe that the answer to both questions is yes.

And I believe that there is grey area and it could go either way in the courts.

 

[Henning]

How much are Young Eagles and Angel Flight participants paying for the flights?

You've created an issue and an argument where there is no controversy.

They don't have to pay anything, the pilot is required to pay at least their pro Rata share, any more than that is fine as well. If they pay everything, they eliminate the issue entirely and fly anyone, anywhere.

 

[Everskyward]

The case that came to mind is the one in the law journal I linked to earlier.

Voyager 1000 v. CAB, 489 F.2d 792 (7th Cir. 1973), cert denied, 42 U.S.L.W. 3626 (U.S. May 13, 1974) (No.1033)



What the court held in this case, then, is that it took nothing to become a member of Voyager. It takes nothing to become a member of FlyteNow. Thus, members of FlyteNow constitute members of the general public.

I reluctantly signed up for this site, otherwise I would not have known the background of this case. The case had nothing to do with pilots sharing expenses with their passengers. It had to do with a travel club which operated large airline-type airplanes. Don't you think the passengers were paying more than their pro-rata share of expenses? Were the pilots paying their share?

 

[dtuuri]

I've been in airplanes (as a passenger) with people I'm meeting for the first time. People from this website. How is that any different than accepting a ride from some other group of which you are a member?

You are a commercial pilot/ATP and should be better able to judge the risks.

Do you think having a commercial certificate or an ATP automatically gives someone better judgment? I say no.

Well then, "To thine own self be true."

dtuuri

 

[David7700]

Private pilots can already share expenses with passengers under certain circumstances. The only question is if Flytenow's operation meets these parameters.

That depends how you define "public". Flytenow only allows ride sharing between members.

And I believe that there is grey area and it could go either way in the courts.

Check out the case I posted about members of a club.

 

[David7700]

They don't have to pay anything, the pilot is required to pay at least their pro Rata share, any more than that is fine as well. If they pay everything, they eliminate the issue entirely and fly anyone, anywhere.

Exactly.

 

[Everskyward]

You are a commercial pilot/ATP and should be better able to judge the risks.

"Should be" doesn't mean that it always happens. There have been two ATP rated airline pilots who have crashed within 10 miles of my house in the past 5 (?) years doing stupid pilot tricks. One was flying drunk, not just a little over, but way over the .04 threshold.

 

[David7700]

I reluctantly signed up for this site, otherwise I would not have known the background of this case. The case had nothing to do with pilots sharing expenses with their passengers. It had to do with a travel club which operated large airline-type airplanes. Don't you think the passengers were paying more than their pro-rata share of expenses? Were the pilots paying their share?

I posted the case later so you did not have to sign up--see my post immediately after. The payment of passengers vs. pilots was not the point.

I gave a summary at the end of my post as to why the case was significant. I quoted extensively from the case to draw your attention to the relevant portion. This is precedent in the current case.

Frustrating.

The case that came to mind is the one in the law journal I linked to earlier.

Voyager 1000 v. CAB, 489 F.2d 792 (7th Cir. 1973), cert denied, 42 U.S.L.W. 3626 (U.S. May 13, 1974) (No.1033)



What the court held in this case, then, is that it took nothing to become a member of Voyager. It takes nothing to become a member of FlyteNow. Thus, members of FlyteNow constitute members of the general public.

That stupid link is asking you to join, so I uploaded the Voyager case to the dropbox.

 

[David7700]

"Should be" doesn't mean that it always happens. There have been two ATP rated airline pilots who have crashed within 10 miles of my house in the past 5 (?) years doing stupid pilot tricks. One was flying drunk, not just a little over, but way over the .04 threshold.

And how many non-ATP or non-commercial pilots have done so?

 

[Everskyward]

I posted the case later so you did not have to sign up--see my post immediately after. The payment of passengers vs. pilots was not the point.

I gave a summary at the end of my post as to why the case was significant.

Frustrating.

You think it's the whole "holding out to the public" issue but I'm not sure "holding out" applies as there is only cost-sharing. We'll see what the courts say. I think it could go either way.

 

[David7700]

You think it's the whole "holding out to the public" issue but I'm not sure "holding out" applies as there is only cost-sharing. We'll see what the courts say. I think it could go either way.

No--it is relevant, because that is what the FAA's case hinges on. That holding out brings the activity under the auspices of 119. And if there is holding out, then 119 applies. So it is THE issue. The crux of the matter.

 

[Everskyward]

And how many non-ATP or non-commercial pilots have done so?

My point is that getting a commercial or ATP doesn't change your personality. It's a moot point anyway as others have mentioned in this thread.

 

[Everskyward]

No--it is relevant, because that is what the FAA's case hinges on. That holding out brings the activity under the auspices of 119. And if there is holding out, then 119 applies. So it is THE issue. The crux of the matter.

We'll see.

 

[qbynewbie]

We'll see.

Yes, we will.

Every aviation attorney that I know of who has posted here, at the PB or at the Red Board has given this case very little chance of succeeding. Ron and others have suggested that were it to succeed, the FAA would promptly rewrite the regs to disallow it.

I see very little chance that FlyteNow will ever succeed in getting a business going on the basis that it is using at this time. I've been wrong before but I just cannot see the FAA (or Congress, for that matter) allowing a quasi-airline to form in this manner and operate.

 

[weirdjim]

My point is that getting a commercial or ATP doesn't change your personality.

Oh yes it does. I used to be a nice guy. Now I'm a horse's patoot.

Jim

 

[Everskyward]

Oh yes it does. I used to be a nice guy. Now I'm a horse's patoot.

That's just what happens when you get old.

I can say that because I am on the older side too.

 

[Henning]

"Should be" doesn't mean that it always happens. There have been two ATP rated airline pilots who have crashed within 10 miles of my house in the past 5 (?) years doing stupid pilot tricks. One was flying drunk, not just a little over, but way over the .04 threshold.

Actual judgement of the individual is not the issue though, it is the expected judgement of the class that comes with the education they have received and tested for. The average consumer cannot be expected to be able to make an informed judgement as to their safety, there is no evidence they have received the appropriate education. A rated pilot OTOH has been tested on the subject matter a minimum of three times and found to have the required capacity that would count to provide 'informed consent' when climbing into a plane they are rated to fly.

 

[poadeleted20]

Look at the plaintiff's brief. Cost sharing without the intention of making a profit is not 'compensation' under common law, nor was it under FAA rules until 2014.

Neither of those statements is accurate in this context. Accepting money from passengers in return for air transportation has always been "compensation", i.e., the receipt of something of value in return for something of value -- it's just that under certain conditions, this limited compensation (the pro rata sharing of share expenses) is legalized by 61.113(c). And the relevant regulations were not changed in 2014, nor have they been changed in a very long time.

Telling someone that you, as a private pilot, plan to fly from A to B on a particular date is NOT 'common carriage' or 'holding out' under common law or FAA governing law.

Nobody disputes that. However, providing air transportation from A to B in return for money is quite another story.

"Quid pro quo, Clarisse -- quid pro quo."

 

[poadeleted20]

I don't think anyone can rationally argue that the answer to the second question is anything but "maybe".

Then you must think both Congress and the Federal courts are not rational.

 

[Henning]

Then you must think both Congress and the Federal courts are not rational.

This would be a true statement regardless this subject.

 

[poadeleted20]

The point that FlyteNow is making is consistent with what you are saying. Holding out is not prohibited in Part 91. It is prohibited under Part 119, and that prohibition is expressly limited to operations occurring under Part 119. Part 119 doesn't apply to things that "look like" commercial operations, but to operations that are actually commercial operations.

And providing air transportation for hire/compensation is, by definition, a commercial operation unless there is some other specific exception to say that it is not, and "holding out" the offer of such air transportation for hire requires a commercial operating certificate. While 61.113(c) does allow the exchange of limited compensation for air transportation under some circumstances, there is nothing in that paragraph which permits those who do not hold a commercial operating certificate to publicly offer air transportation for hire/compensation and then provide such air transportation for hire/compensation to the general public.

 

[poadeleted20]

That depends how you define "public". Flytenow only allows ride sharing between members.

Read the Voyager case posted above. The court held that if membership is unlimited makes it a public offering, and FlyteNow's membership is essentially unlimited.

 

[poadeleted20]

I reluctantly signed up for this site, otherwise I would not have known the background of this case. The case had nothing to do with pilots sharing expenses with their passengers. It had to do with a travel club which operated large airline-type airplanes. Don't you think the passengers were paying more than their pro-rata share of expenses? Were the pilots paying their share?

The fundamental issue in that case was that holding out the offer of air transportation for compensation/hire to the general public made it a commercial operation without regard for the size of the aircraft or the amount paid in comparison to pro rata cost.

 

[poadeleted20]

You think it's the whole "holding out to the public" issue but I'm not sure "holding out" applies as there is only cost-sharing. We'll see what the courts say. I think it could go either way.

Calling the payment "cost sharing" rather than a "fare" doesn't change anything. Money paid to the pilot in return for air transportation is still "compensation" even if you only pay your pro rata share of the expenses.

 

[TMetzinger]

You're all confusing your (reasonable) worldviews about how things should work and the way that they currently do. You have methods (legislation, lawsuit, armed revolution) to change things from the way they are to the way you think they should be. But don't think that your desire to change reality affects the current reality.

In other words, Ron's right. The FAA is the regulator of airspace. There are limits on how they regulate that airspace, but those limits are basically requiring public notification (except in emergencies) before the fact, and lawsuits and congressional legislation after the fact. Otherwise, their word is law.

If the FAA wanted to publish an emergency final rule requiring pilots to be male exclusively, they could do so, and from the moment that rule was published until it was overturned in court (after a lawsuit), by executive action of the President, or by legislation, that law would stand.