FlyteNow v. FAA

[luvflyin]

Is there a Cliffnotes version?

FlyteNow is a website where pilots can advertise their availibilty to take passengers willing to "share costs" for rides. FAA says they are in "for compensation or hire" territory. FlyteNow says "no we are not." Now the Cat in the long black robe with the big wood hammer will decide.

 

[Palmpilot]

The Oshkosh ride share fulfills the "common purpose" clause IMO.

BTW, "common purpose" is an interpretation, not a clause. By that I mean that it's something that has been written in case decisions, not in a regulation or statute.

 

[midlifeflyer]

BTW, it's probably buried in one of my earlier posts but the papers filed in the case (except for a few minor administrative things), as well as an index to them, are in a shared DropBox I set up

 

[flyingron]

Both the FAA brief and the FlyteNow response are published. I think FlyteNow's point is pretty darned weak in that they argue that their customers can't be a common carrier as there is no profit motive. That distinction exists neither in case law nor in the administrative interpretation.

Further, the real problem they'll face is that they can't just argue the FAA interpretation is wrong without either Constitutional issue or some argument that it was capricious. The law requires the Federal courts to follow the agency's interpretation of the rule in almost all circumstances.

 

[JeffDG]

Both the FAA brief and the FlyteNow response are published. I think FlyteNow's point is pretty darned weak in that they argue that their customers can't be a common carrier as there is no profit motive. That distinction exists neither in case law nor in the administrative interpretation.

Further, the real problem they'll face is that they can't just argue the FAA interpretation is wrong without either Constitutional issue or some argument that it was capricious. The law requires the Federal courts to follow the agency's interpretation of the rule in almost all circumstances.

First: I've not read all the papers, so forgive me if this point has already been covered.

I would argue that the phrase "common purpose" appears nowhere in Part 61. That said, the FAA interpretations adding an additional requirement were, in effect, a rulemaking. Now, rulemaking in the absence of notice-and-comment procedures is in violation of the Administrative Procedures Act.

True, courts generally defer to agencies unless their interpretations are "abitrary, capricious, or otherwise not in accordance with the law". A decision on whether adding "common purpose" as a requirement was in violation of the APA would satisfy the "otherwise not in accordance with the law" prong of the test.

 

[denverpilot]

First: I've not read all the papers, so forgive me if this point has already been covered.



I would argue that the phrase "common purpose" appears nowhere in Part 61. That said, the FAA interpretations adding an additional requirement were, in effect, a rulemaking. Now, rulemaking in the absence of notice-and-comment procedures is in violation of the Administrative Procedures Act.



True, courts generally defer to agencies unless their interpretations are "abitrary, capricious, or otherwise not in accordance with the law". A decision on whether adding "common purpose" as a requirement was in violation of the APA would satisfy the "otherwise not in accordance with the law" prong of the test.

Just to add confusion.. Aren't many "Advisory Circulars" just rule making without having to go through the APA?

Aren't there examples of folks having the catch-all, "careless and reckless" thrown at them for not following Advisory Circular published items?