MCube78
Filing Flight Plan
Trigger warning: this is about common vs private carriage (and Flytenow vs FAA). 
You've been warned..
[EDIT: Short answer to the title is "No"]
Hi Everyone, aspiring commercial certificate pilot here. So, I've used ASA materials before (private/IFR) and I find the chances of something in it being off low, so I will make my case and will gladly eat crow, but please help me understand!
Without reproducing it verbatim, the question asks about how one would make the determination of whether a given flight would be considered "for hire" or "for compensation".
The book's answer is textbook (tu-du-dum-pa!). Again, without reproducing it in full it says that a flight is for hire/compensation if:
A. There is no common purpose PLUS the pilot has operational control (like deciding if the flight happens or not, cancelling, etc).
OR
B. There is compensation in excess of pro-rata share.
I find both to be wrong.
I'll start with B: First, being paid pro-rata share or less is no guarantee that the flight is not for hire - the infamous Flytenow vs FAA case seems to have made that point. In fact, even if you are paid zero dollars you could still have received payment. Greer, an attorney with the FAA Office of the Chief Counsel, in a wonderful but somewhat depressing article titled "come fly with me?" in FAA Safety October 2010 says "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."
So all I'm saying is: just because I received a value that is not above the pro-rata share does not in of itself exonerate a flight from being for hire.
About A: Having common purpose is not sufficient to make you not for hire. Again, the Flytenow vs FAA case, seems to suggest that even when there is common purpose (see below for the FAA interpretation on the nature of common purpose) that is not enough to make you not-for-hire. Here is a legal interpretation by Rebecca MacPharson (of the FAA) re what makes common purpose: "Second, you 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, the purpose of this flight is not merely to transport your passengers to Long Island." So in other words, if we are both going to the same place (independently) for our own valid reasons (which was the Flytenow model), then we share a purpose. In fact, the DC court of appeal (and FAA) have found that common purpose is irrelevant to deciding whether the flytenow model was private vs common carriage: "Here, however, the question is whether Flytenow pilots would be acting as private pilots, or instead as common carriers without adequate licensure. The common-purpose test has no bearing on whether compensation in the form of passengers' expense sharing, together with holding out to the general public, tends to show that a private pilot is operating as a common carrier."
Again all I'm saying is that having a common purpose doe NOT make a flight not-for hire seen as common purpose in the presence of holding out made Flytenow a common carrier in the view of the FAA.
If anything, really the above seems to say that holding out (boy is that another can of worms with a large gray area...) and operational control are much more important than the extent of the payment relative to pro-rata equitable share and common purpose.
I'd love to hear thoughts..
cheers
Martin
You've been warned..
[EDIT: Short answer to the title is "No"]
Hi Everyone, aspiring commercial certificate pilot here. So, I've used ASA materials before (private/IFR) and I find the chances of something in it being off low, so I will make my case and will gladly eat crow, but please help me understand!
Without reproducing it verbatim, the question asks about how one would make the determination of whether a given flight would be considered "for hire" or "for compensation".
The book's answer is textbook (tu-du-dum-pa!). Again, without reproducing it in full it says that a flight is for hire/compensation if:
A. There is no common purpose PLUS the pilot has operational control (like deciding if the flight happens or not, cancelling, etc).
OR
B. There is compensation in excess of pro-rata share.
I find both to be wrong.
I'll start with B: First, being paid pro-rata share or less is no guarantee that the flight is not for hire - the infamous Flytenow vs FAA case seems to have made that point. In fact, even if you are paid zero dollars you could still have received payment. Greer, an attorney with the FAA Office of the Chief Counsel, in a wonderful but somewhat depressing article titled "come fly with me?" in FAA Safety October 2010 says "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."
So all I'm saying is: just because I received a value that is not above the pro-rata share does not in of itself exonerate a flight from being for hire.
About A: Having common purpose is not sufficient to make you not for hire. Again, the Flytenow vs FAA case, seems to suggest that even when there is common purpose (see below for the FAA interpretation on the nature of common purpose) that is not enough to make you not-for-hire. Here is a legal interpretation by Rebecca MacPharson (of the FAA) re what makes common purpose: "Second, you 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, the purpose of this flight is not merely to transport your passengers to Long Island." So in other words, if we are both going to the same place (independently) for our own valid reasons (which was the Flytenow model), then we share a purpose. In fact, the DC court of appeal (and FAA) have found that common purpose is irrelevant to deciding whether the flytenow model was private vs common carriage: "Here, however, the question is whether Flytenow pilots would be acting as private pilots, or instead as common carriers without adequate licensure. The common-purpose test has no bearing on whether compensation in the form of passengers' expense sharing, together with holding out to the general public, tends to show that a private pilot is operating as a common carrier."
Again all I'm saying is that having a common purpose doe NOT make a flight not-for hire seen as common purpose in the presence of holding out made Flytenow a common carrier in the view of the FAA.
If anything, really the above seems to say that holding out (boy is that another can of worms with a large gray area...) and operational control are much more important than the extent of the payment relative to pro-rata equitable share and common purpose.
I'd love to hear thoughts..
cheers
Martin
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