FlyteNow Sues FAA (Uber for pilots)

ClimbnSink said:
If your passengers ain't friends they are members of the ticket buying public. And must be kept away from incompetent private pilots and their ill maintained death traps. Byebye young eagles and angelflights.
Click to expand...

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.
 
Ron Levy said:
You're still missing the main point:

It's the money, stupid!

...and there's no money being paid by the passengers for Young Eagles or Angel Flight rides.
Click to expand...

It's not about the money. It's about overreaching by the Federal Government and all government into our lives. That is the forest.
 
All the gas paid for by a buddy should not be a problem. You'd do it with a boat without blinking.
 
David7700 said:
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.
Click to expand...

Dumbass angelflight passengers don't know if their social workers chartered a plane for them or where the charity kicks in. Kids on eagle flights don't know if mom paid for the ride.
 
David7700 said:
It's not about the money. It's about overreaching by the Federal Government and all government into our lives. That is the forest.
Click to expand...

ding,ding,ding,ding!

Now come on - grab a shovel and lets clean up this mishigoss! :yes:
 
David7700 said:
It's not about the money. It's about overreaching by the Federal Government and all government into our lives. That is the forest.
Click to expand...
Are you suggesting Congress overreached its Constitutional authority by ordering the FAA to create higher levels of aviation safety for paying passengers than those who ride free? I really doubt you think that, and the fundamental issue here is the provision of air transportation to the general public for hire/compensation without meeting the regulatory safety standards for such an operation. Clearly, FlyteNow's central argument is that its members are part of a limited class from private pilots are authorized to accept payment for air transportation under 61.113(c), not the "general public" from whom those pilots are not so authorized, and to me, that is the heart of the matter. We'll see how it goes from there.

BTW, I was shocked by Ms. Alkalay's response to my letter -- I never in a million years thought she'd say it was OK. And if the Chief Counsel retracts that letter she signed, it would not be the first time the Chief Counsel overruled something she signed as RC (e.g., the "flight into known icing" business).
 
Ron Levy said:
First, I don't see that language in the brief or in the regulation.
Click to expand...

Argument starts on page 37 (PDF)/23 (page numbering in the brief).

The mention of holding out in Part 119 is worded as:
14 C.F.R. § 119.5(k) said:
No person may advertise or otherwise offer to perform an operation subject to this part unless that person is authorized by the Federal Aviation Administration to conduct that operation.
Click to expand...
 
ClimbnSink said:
Dumbass angelflight passengers don't know if their social workers chartered a plane for them or where the charity kicks in.
Click to expand...
How do you figure that? In any event, the fact is that nobody other than the pilot is paying for the ride, and that's what matters -- the FAA doesn't care who pays, just that someone other than the pilot is paying for the ride.

Kids on eagle flights don't know if mom paid for the ride.
Click to expand...
But mom does, and mom is the legally responsible adult.
 
qbynewbie said:
Then why not allow every pilot -- private or otherwise -- to buy, rent or otherwise procure an airplane, open an office, hang out a sign, and start selling air travel to the public?

And, while we're at it, why not let every driver to buy, rent or otherwise procure a bus, open an office, hang out a sign, and start selling bus travel to the public.

We don't need no stinking regulations protecting the public!

:rolleyes:
Click to expand...

There is a difference between holding out to the public, which I believe should be regulated, and having a friend offer to cover the expenses of flying them somewhere. Both are illegal illegal at this point without a 135 certificate.
 
dtuuri said:
Close enough to hold your wallet while you go for a swim. Close enough to baby-sit your kids while you go to a movie. Close enough to take care of your pets while you're on vacation. In other words, close enough to trust their behavior. If you can't trust your "friends", you shouldn't be in an airplane with them anyway.
Click to expand...
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?
 
docmirror said:
ding,ding,ding,ding!

Now come on - grab a shovel and lets clean up this mishigoss! :yes:
Click to expand...

Ron Levy said:
Are you suggesting Congress overreached its Constitutional authority by ordering the FAA to create higher levels of aviation safety for paying passengers than those who ride free? I really doubt you think that, and the fundamental issue here is the provision of air transportation to the general public for hire/compensation without meeting the regulatory safety standards for such an operation. Clearly, FlyteNow's central argument is that its members are part of a limited class from private pilots are authorized to accept payment for air transportation under 61.113(c), not the "general public" from whom those pilots are not so authorized, and to me, that is the heart of the matter. We'll see how it goes from there.

BTW, I was shocked by Ms. Alkalay's response to my letter -- I never in a million years thought she'd say it was OK. And if the Chief Counsel retracts that letter she signed, it would not be the first time the Chief Counsel overruled something she signed as RC (e.g., the "flight into known icing" business).
Click to expand...

I wasn't suggesting it.
 
JeffDG said:
Argument starts on page 37 (PDF)/23 (page numbering in the brief).

The mention of holding out in Part 119 is worded as:
Click to expand...
And the FAA says that a ride provided to the general public for hire/compensation is subject to that Part.
§119.1 Applicability.

(a) This part applies to each person operating or intending to operate civil aircraft—
(1) As an air carrier or commercial operator, or both, in air commerce; or
(2) When common carriage is not involved, in operations of U.S.-registered civil airplanes with a seat configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more.
Click to expand...

Commercial operator means a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under the authority of Part 375 of this title. Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit.
Click to expand...
...and there is no doubt here that any payment for the ride is "compensation" so the issue of "major enterprise for profit" does not arise.
 
Henning said:
There is a difference between holding out to the public, which I believe should be regulated, and having a friend offer to cover the expenses of flying them somewhere. Both are illegal illegal at this point without a 135 certificate.
Click to expand...

Wow! That is very illegal!! :D
 
ClimbnSink said:
So flying is safer when the pilot pays?
Click to expand...
Nobody said that. But the passenger has no guarantee of anything more than what s/he paid for, and if the passenger paid nothing, s/he is guaranteed only the same in return. That's the fundamental issue here, and the FAA's clear direction from Congress.
 
ClimbnSink said:
So flying is safer when the pilot pays?
Click to expand...

No. It is safer when the pilot is not able to get an unlimited number of people from the general public to pay to fly with him/her.

Brian already enumerated a long list of situations where that could be bad. Someone else also posted about a recent flight to California where they almost had to turn back. What pressure would a having paying passenger along have caused in that decision making process?
 
By congressional order buying a ticket guarantees safety?
 
Ron Levy said:
And the FAA says that a ride provided to the general public for hire/compensation is subject to that Part.


...and there is no doubt here that any payment for the ride is "compensation" so the issue of "major enterprise for profit" does not arise.
Click to expand...

If you're not a "commercial operator" then that's inapplicable. Receipt of expense reimbursement does not a commercial operator make.

Look, I'm not going to read the entire brief to you, but every point you've made is fully addressed so far.

I think it's an interesting and novel legal argument. I am of the opinion that courts are well qualified to decide legal issues, and I think that the FAA and many other agencies like to use "opinion letters" to circumvent notice-and-comment rulemaking.
 
docmirror said:
Some sauce for the FlyteNow goose(geese? Goslings?)

http://www.huffingtonpost.com/evan-...s-no_b_6438300.html?ncid=txtlnkusaolp00000592

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=348&invol=483

http://www.ij.org/saint-joseph-abbey-et-al-v-castille-et-al

Just read it on the HuffPo link, and thought it might have bearing on some aspects of this case.
Click to expand...

Well, the cases relating to holding out and commercial pilot regulation have not been overturned before. In the wake of Colgan 3407, I doubt we will seer the court willing to strike down years of precedent to the contrary that supports air safety for the public.
 
David7700 said:
No. It is safer when the pilot is not able to get an unlimited number of people from the general public to pay to fly with him/her.

Brian already enumerated a long list of situations where that could be bad. Someone else also posted about a recent flight to California where they almost had to turn back. What pressure would a having paying passenger along have caused in that decision making process?
Click to expand...
Do you think having a commercial certificate or an ATP automatically gives someone better judgment? I say no.
 
David7700 said:
Jesus--allow me to get to the office. I'm just a volunteer here. Or would you like to pay me for it?
Click to expand...

Wait, are you now holding out legal services for compensation or hire to people in states where you are not licensed to practice law?

:yikes::yikes:

;)
 
I know there are no guarantees in litigation, but this is a close to a certainty as possible that FlyteNow loses. Nobody wants to undue the system that requires extensive regulation of commercial operators, least of all some Federal judge. This scheme just opens up too much room to undermine the status quo. No judge is going to upset the applecart for this. Heck, there are lots of people that bemoan the little bit of alleged "deregulation" that already occurred.
 
Henning said:
There is a difference between holding out to the public, which I believe should be regulated, and having a friend offer to cover the expenses of flying them somewhere. Both are illegal illegal at this point without a 135 certificate.
Click to expand...

That's a slippery slope because who, then, gets to be called a "friend"? My close friend? His close friend? His boss, who really needs to get to Cleveland in a hurry?

But, regardless -- and regardless of their claims -- FlyteNow would be opening it up to the public. Forget any claims of exclusive membership -- they would be allowing members of the public to sign up and choose flights. That's holding out to the public and, essentially, creating a kind of airline. They want to profit from running an airline without having any of the regulatory or operational responsibility or costs.
 
ClimbnSink said:
By congressional order buying a ticket guarantees safety?
Click to expand...
Guarantees absolute safety? Of course not. But it is Congress' intent that buying a ticket does guarantee a much higher level of safety than when someone's giving rides away for free, and when you compare the safety records of personal Part 91 operations against those of Parts 135 and 121, it appears that is being achieved -- by a couple of orders of magnitude.
 
Last edited:
JeffDG said:
If you're not a "commercial operator" then that's inapplicable.
Click to expand...
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.

Receipt of expense reimbursement does not a commercial operator make.
Click to expand...
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.
 
Ron Levy said:
Guarantees absolute safety? Of course not. But it is Congress' intent that buying a ticket does guarantee a much higher level of safety than when someone's giving rides away for free.
Click to expand...

It sounds like the solution is for a FlightSafety-like company to annually certify pilots who want to participate in stuff like this and require 100HR inspections...set minimum # of hours and ratings (like the charities do) and a lot of the safety concerns are gone...not sure ANYONE would participate in this just to save a few dollars on a trip they making anyways but it would essentially be the same safety standards the big guys have...
 
ClimbnSink said:
So flying is safer when the pilot pays?
Click to expand...

ClimbnSink said:
By congressional order buying a ticket guarantees safety?
Click to expand...

Everskyward said:
Do you think having a commercial certificate or an ATP automatically gives someone better judgment? I say no.
Click to expand...

All straw men. No one is claiming any of these things.

What the FAA is congressionally mandated to do -- and which we generally as a society appprove of -- is to ensure that commercial flight operations adhere to reasonable regulations that are designed to ensure the safety of the flying public.

The only questions on the board, as far as I can see are:

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

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

I believe that the answer to both questions is yes. All of these other questions about private pilot vs. commercial pilot, private pilot safety, judgment, too much or too little government -- they're all just noise and have virtually nothing to do with the real issues on the table.
 
mrkbbd said:
It sounds like the solution is for a FlightSafety-like company to annually certify pilots who want to participate in stuff like this and require 100HR inspections...set minimum # of hours and ratings (like the charities do) and a lot of the safety concerns are gone...not sure ANYONE would participate in this just to save a few dollars on a trip they making anyways but it would essentially be the same safety standards the big guys have...
Click to expand...
The "company" which would do that certification and the standards to be applied already exist -- the FAA, and 14 CFR Part 135. Nobody says what you have to charge, so one could certainly get a 135 certificate and then charge no more than the pro rata share of the direct expenses for the flights they make with paying passengers -- and probably get a lot of business that way as they'd be significantly undercutting the 135 operators doing this as a business for profit. But that's going to take a lot of investment in upgrading pilot certificates, getting their operation certified, getting regular checkrides, and upgrading the aircraft they own. Problem is, that cost is what these folks who want to sell seats in their private airplanes are trying to avoid.
 
Everskyward said:
I think what people are missing is that FlyteNow is not holding out to the public, they are advertising within their membership. This is where the grey area is as far as I'm concerned. How close a relationship do you need to have for a person to be considered a "friend"? How wide a circle of "friends" can you have? They are advertising their memberships to the public so how does that play into it?
Click to expand...

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)

"The breadth of the activities contemplated under the term `common carrier\' reflects the great variety of recognized means whereby the `holding out\' may be accomplished. The most obvious method of a holding out which may result in common carriage is advertising through magazines, newspapers, posters, brochures, and the like. Should the evidence disclose that a carrier has advertised its services in such manner as to solicit business from the general public, the necessary implication arises that it has held itself out as being in readiness to carry for all who might apply. Nevertheless, the lack of advertising is not in itself determinative of whether there has been a holding out since a holding out may take place through other methods.​
". . . . The requisite holding out may be evinced by any means which communicates to the public that a transportation service is indiscriminately available. A reputation gained through merely serving the public indiscriminately may be sufficient in itself to inform the public that the carrier will carry for all who apply within the limits of its facilities.​
"Furthermore, it is clear that a carrier need not undertake to serve all the public in order to be considered a common carrier, but may limit its transportation services to a class or segment of the general public so long at it expresses a willingness to provide transportation for all within this class or segment indiscriminately." Transocean Air Lines, 11 C.A.B. 352-53 (footnotes omitted).​
Regarding the propriety of the membership drives, Voyager argued that its advertisements were announcements to members coupled with invitations to join, that advertising is permissible so long as its thrust is to acquaint nonmembers with the advantages of membership, that solicitation of new members generally is proper so long as such solicitation is not designed to sell individual flights to members of the public, and that in any event there was no evidence that such advertising diverted passengers from common carrier flights.14
With respect to the qualifications for membership, petitioner argued that it does not hold itself out as willing to carry all passengers but only members; that Voyager membership does not constitute a segment of the general public because the fees represent a real and substantial investment and are an absolute prerequisite to participation; that the members have a legal interest in the club's assets until dissolution, and the social aspects of the club differentiate the membership from the traveling public; and, that as a practical matter the members do not receive individually ticketed service.15
Concerning the contention that the membership drive activities constituted a "holding out", the Administrative Law Judge concluded as follows:
"The Bureau reads the advertising program as being directed to members of the public generally and as inviting them to fly Voyager as though it were a commercial enterprise. . . .​
"The respondents deny that this was the purpose, either overt or covert, and the evidence sustains them. The adds sic clearly stated that the trips were available only to Voyager members. Insofar as their placement was part of a campaign to increase the membership that was the exercise of a legitimate right as long as the
original purpose of the club was not being changed. The listing of prospective flights and the costs can be fairly read as an effective device to illustrate the advantages of being a member. It was certainly effective as part of the expansion plan. If in its concept Voyager was a private club engaging in private carriage, as it clearly was, simply increasing the number of members does not add an insidious noted sic."​
The Administrative Law Judge further concluded that advertising directed to prospective members does not constitute solicitation of the general public; Voyager advertisements contained "an element of selectiveness in that they were addressed to persons travel-minded in the manner of the original Voyager members."
In assessing the qualifications for Voyager membership in terms of their effectiveness in differentiating members from the general public, the Administrative Law Judge found that although
"there is little or no screening of an applicant beyond the payment of initiation fee and dues there is a built-in screening by the mere fact of application for membership. By such application, particularly after exposure to explanations of the purposes of the club, an applicant, inferentially but effectively, declares an affinity with the existing members."​
Click to expand...
There was substantial evidence and a reasonable basis in law for the Board's finding that "despite the various labels Voyager attaches to itself and to various aspects of its method of operation, it is `furnishing transportation by air to the general public on a commercial basis' . . . and hence it engaged in `air transportation' within the meaning of the act."
Click to expand...

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.
 
Last edited:
qbynewbie said:
What the FAA is congressionally mandated to do -- and which we generally as a society appprove of -- is to ensure that commercial flight operations adhere to reasonable regulations that are designed to ensure the safety of the flying public.

The only questions on the board, as far as I can see are:

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

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

I believe that the answer to both questions is yes.
Click to expand...
I don't think anyone can rationally argue that the answer to the second question is anything but "yes". It is the first question and only the first question (not the First Amendment or free speech or anything like that) which is the issue here.
 
That stupid link is asking you to join, so I uploaded the Voyager case to the dropbox.
 
Last edited:
Everskyward said:
Do you think having a commercial certificate or an ATP automatically gives someone better judgment? I say no.
Click to expand...

I've already said that above.

I like the amount of activity here on POA, but I think that most people are not able to read every post.
 
JeffDG said:
Wait, are you now holding out legal services for compensation or hire to people in states where you are not licensed to practice law?

:yikes::yikes:

;)
Click to expand...

;)

It's federal law--and I practice aviation law before the FAA and NTSB. You do not have to licensed in any one state to do so.
 
mrkbbd said:
It sounds like the solution is for a FlightSafety-like company to annually certify pilots who want to participate in stuff like this and require 100HR inspections...set minimum # of hours and ratings (like the charities do) and a lot of the safety concerns are gone...not sure ANYONE would participate in this just to save a few dollars on a trip they making anyways but it would essentially be the same safety standards the big guys have...
Click to expand...

Right--and you think my insurance company is going to insure me if FlyteNow were legal and I participated in it?
 
You must log in or register to reply here.
Back
Top