FAA Oversteps in Ride-Sharing Decision

[cowman]

I haven't taken a penny for anything yet... at some point I might actually get a group of friends together and they might chip in gas money to get somewhere. That's really all I'd have interest in doing...

Heck I probably wouldn't want to participate in a ride sharing group as I'd be uneasy about strangers in my airplane.

I'm really just bitching on principle.

 

[RotorAndWing]

It was sure nicer in the days before the internet and Internet forums when we didn't worry about such BS. We just went to the airport, enjoyed our friends and our flying.

 

[Palmpilot]

What "specific section of Part 119" do you have in mind?

I'm not sure there is one such as I described. If there isn't, then adding Part 119 to the list of references in the private pilot PTS would be even less likely to clear up the confusion on this issue.

 

[RotorAndWing]

I'm not sure there is one such as I described. If there isn't, then adding Part 119 to the list of references in the private pilot PTS would be even less likely to clear up the confusion on this issue.

Most Private Pilots understand what they can and can't do by the regulations. All of this "hangar lawyer" BS and endless "interpretations" is just mindless mental masturbation.

 

[David7700]

Apropos of nothing, the unauthorized practice of law is a felony in some places.

With respect to Florida law, even thinking about Florida law is the UPL in Florida. I was told.

 

[Palmpilot]

I don't think there's any confusion on this issue other than that contributed by those Private Pilots who feel they should be allowed to charge passengers for rides and are trying very hard to find a loophole which allows them to do so.

The sheer number of threads we see on this subject proves that there is a great deal of confusion. I don't think speculating about the motives of the people who are confused is going to solve anything.

Beyond that, the rules are summarized pretty simply:

1. You can't advertise.
2. You can't collect more than the pro rata per seat share of the direct cost of the flight.
3. You must have a reason for your trip to that place on that date other to fly the plane.

That's it. Just how hard is that to understand?

It's not hard at all. All they would have to do is add your items 1 and 3 to 61.113(c).

Because I'm sure it's pretty easy to explain to Student Pilots.

Then why aren't more instructors doing it?

 

[Palmpilot]

Most Private Pilots understand what they can and can't do by the regulations. All of this "hangar lawyer" BS and endless "interpretations" is just mindless mental masturbation.

I always thought that was a solitary activity!

 

[cowman]

Wait I think I just figured it out.... cost sharing is like the old don't ask don't tell policy in the military. Don't ask anyone about it, don't tell anyone about it....

 

[RotorAndWing]

I always thought that was a solitary activity!

Not for our resident hangar lawyers who are trying to maintain their maven status........

 

[Jim Logajan]

With respect to Florida law, even thinking about Florida law is the UPL in Florida. I was told.

ABA document "State Definitions of the Practice of Law":

http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf

No one is receiving compensation or being hired to post their advice here. As far as I can tell it would even be legal to post one's advice about legal matters on PoA even while flying a plane and playing a banjo on one's knee. That can't be any harder than using a knee board in turbulence after all.

 

[dtuuri]

Show me the regulation that says you can't advertise. Show me the regulation that makes "a reason for your trip to that place on that date other than to fly the plane" is required.

Pro rata share... clearly stated in the regs. If the flight costs me $400 and there are 4 people, I can take up to $300 for costs.

I don't see what's so clear about it.... yes yes we know from the endless discussion on this topic it isn't but that's all from interpretation letters and random publications not anything in any regulation that I've seen.

Well, you're talking legal terms of art lawyers need that we shouldn't. Just by reading the definitions in Part 1 for "Air carrier", "Air transportation", Air commerce" and "Commercial operator" (which all student pilots should have in their posession) we can sense that there are other standards than pilot license levels. The word "incidental" is one everybody can understand--if the operation is only incidental to your other business then it isn't commercial. The act of canvassing for riders tells me it isn't "incidental". I think the gist of it applies equally to personal business as well as financial.

dtuuri

 

[Jim Logajan]

The word "incidental" is one everybody can understand--if the operation is only incidental to your other business then it isn't commercial. The act of canvassing for riders tells me it isn't "incidental". I think the gist of it applies equally to personal business as well as financial.

Funny you should mention "incidental" as something everyone should understand since the FAA lost a major case because it offered two different definitions of that word. As a result, as far as I can tell it is still possible for hunting guides with only private pilot licenses in Alaska to take money from hunters in exchange for flying them to places to go hunting.

 

[dtuuri]

Funny you should mention "incidental" as something everyone should understand since the FAA lost a major case because it offered two different definitions of that word. As a result, as far as I can tell it is still possible for hunting guides with only private pilot licenses in Alaska to take money from hunters in exchange for flying them to places to go hunting.

I vaguely remember reading something about Alaskan hunting guides... do you have an article about the case you can reference?

dtuuri

 

[F01LA]

Wait I think I just figured it out.... cost sharing is like the old don't ask don't tell policy in the military. Don't ask anyone about it, don't tell anyone about it....

And make sure your passengers won't blab if there's an incident. That can be hard.

 

[JeffDG]

And make sure your passengers won't blab if there's an incident. That can be hard.

Open the passenger door unhook the seatbelt and kick the rudder.

 

[Palmpilot]

I vaguely remember reading something about Alaskan hunting guides... do you have an article about the case you can reference?

I think this is the one he's talking about:

http://www.cadc.uscourts.gov/internet/opinions.nsf/C4E8CB9C50835B1B85256F15006C3F20/$file/98-1051a.txt

 

[David7700]

ABA document "State Definitions of the Practice of Law":

http://www.americanbar.org/content/...model-def/model_def_statutes.authcheckdam.pdf

No one is receiving compensation or being hired to post their advice here. As far as I can tell it would even be legal to post one's advice about legal matters on PoA even while flying a plane and playing a banjo on one's knee. That can't be any harder than using a knee board in turbulence after all.

Did you think I was serious?

Edit:

That statement (that just thinking of the law in FLorida was the UPL in Florida) was made by a presenter at A CLE I attended many years ago and has stuck with me.

Here is the Florida LEO he was referring to.

The services of this attorney include the preparation of estate analyses for prospective clients of the insurance firm. The insurance agent furnishes the attorney with information from which the analysis is prepared. The analysis is then submitted to the prospective client with the representation that the analysis is prepared by an attorney working for the life insurance firm. The analysis is furnished without cost to the prospective client.

As to the first situation, four members of the Committee feel that the attorney's participation in the program is ethically improper. . . . t is improper for the attorney's opinion to be presented to the client as an opinion of a member of The Florida Bar prepared for the benefit of the prospective client. No direct relationship exists between the attorney and client and, it is argued, Canon 35 is offended because the situation amounts to the practice of law through an intermediary. Further, the majority feel that the situation is misleading inasmuch as the attorney's opinion apparently is presented as an unbiased evaluation whereas it is in fact prepared for the purpose of selling life insurance and is most likely slanted in that direction. As a result, the attorney is in a position of giving unsolicited legal advice to a member of the public upon representations of fact furnished to the attorney by his employer, who is financially interested in the circumstances. There is a possibility of conflict of interests and of engaging in the practice of law through a lay agency in violation of specific provisions of the Canons of Ethics.

You don't have to be physically present in the state, and look! Holding out!!

Other than as authorized by law, a lawyer who is not admitted to practice in Florida violates subdivision (b) if the lawyer establishes an office or other regular presence in Florida for the practice of law. Presence may be regular even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida.

The current Florida Rules Regulating the Florida Bar do not mention compensation as a prerequisite. That may be more of a concern to a lawyer than a non-lawyer, though, whether licensed in Florida or not.

 

[Jim Logajan]

I think this is the one he's talking about:

http://www.cadc.uscourts.gov/intern...9C50835B1B85256F15006C3F20/$file/98-1051a.txt

That's it. (This version is better formatted: http://scholar.google.com/scholar_c...as_sdt=6,38&case=11524765852581158083&scilh=0)

The court appears to have said the FAA had to go through a notice and comment (presumably NPRM) if they wanted to change their 30 years of using one interpretation for "incidental" in Alaska that seemed to differ from the definition used in the rest of the U.S.

I can't tell if the FAA ever went through that a second time with a notice and comment. My brief scan of FAA NPRMs since that case didn't turn up any likely suspects - but I probably overlooked it. Maybe the FAA said "F it" and went on with their usual business and have banked on the unresolved issue not later causing them problems.

 

[poadeleted20]

It's not hard all. All they would have to do is add your items 1 and 3 to 61.113(c).

Guess you've never dealt with lawyers writing Federal regulations.

Then why aren't more instructors doing it?

Same reason they don't teach proper use of trim, or attitude flying at the primary level, or proper speed/glide path control for landings, or...



Don't get me started on poor quality of many instructors.

 

[Palmpilot]

Guess you've never dealt with lawyers writing Federal regulations.

You asked:

Just how hard is that to understand?

I was just answering that question. (I probably should have started a new paragraph after "It's not hard at all.")

Same reason they don't teach proper use of trim, or attitude flying at the primary level, or proper speed/glide path control for landings, or...



Don't get me started on poor quality of many instructors.

At this point, I think we've thoroughly covered the answer to your other question:

What will it take for the FAA to convince pilots these regs really mean what they say?

I'm trying to come up with constructive suggestions to deal with that, but you don't seem to be interested.

 

[David7700]

AirPooler wants FAA clarification on ride-sharing interpretation

August 20, 2014 by Charles Spence
WASHINGTON, D.C. — Steve Lewis, co-founder and CEO of AirPooler, says the FAA’s announced interpretation of flight-sharing-costs is causing confusion among pilots and urges the agency to clarify what it means.
The FAA’s position, he said, is based on a 1963 ruling that was reversed the following year. Lewis said the FAA is now calling cost sharing “compensation”and should cite examples on which its ruling is based.
“Our primary goal,” he said, “is to get the FAA to clarify it position and state exactly what it means.”

AirPooler is an online site that provides a way for pilots and non-pilots to easily find one another to share expenses on flights the pilots would be doing anyway.
The letter to AirPooler from FAA did not tell the company to stop its work or to close, according to Lewis.
He noted that his company is getting “hundreds of calls and letters” from members asking for a clarification of the FAA’s position.
The entire general aviation industry has a huge stake in the cost sharing issue and the FAA’s confusion is stifling it, Lewis said.
He said both he and the co-founder of AirPooler have extensive experience in travel issues, having run several companies.

I think where this is going is an amendment to 61.113 that specifies that pilots may not hold out and must have a common purpose–things that are in letters of interpretation but not in the CFRs for pilots to see/learn and read.
And maybe Airpooler/flight-share companies get their exception too, and maybe they don’t. The one thing that this discussion has shown us is that pilots don’t know what is in all these letters of interpretation and NTSB rulings if it is not also in the CFRs.

 

[JimNtexas]

The FAA has issued a second letter concerning riding sharing in response to a question from another such service.

This letter is much more sensible than the Airpooler letter. It's written more clearly and stays away from the 'compensation' question. The FAA lawyers have probably been awakened to the fact that their overly broad interpretation of what constitutes 'compensation' isn't likely to hold up under judicial review.

Mean while Airpooler is asking some good questions about their FAA opinion letter.

To me Airpooler is pretty clearly 'holding out' because they are selling what amounts to tickets on privately owned airplanes flown by private pilots. The FAA were stupid to bring up 'compensation', since the Airpooler pilots are not compensated by any rational meaning of the word.

I'm glad to hear that question of turning 'letters' in to de facto regulations is being addressed.

In my opinion the FAA ought to do what most other agencies do, which is to charge the questioner for their answer, and limit the scope of the agency's answer to that specific case.

Edited to add:

I think where this is going is an amendment to 61.113 ...

YES! There exists a pretty good method for amending FAA regulations. It's cumbersome, but it should be cumbersome because there are a lot stakeholders involved.

I don't know the best way to manage or not manage ride sharing web sites, but I do know that having a law clerk write a letter is a very suboptimum solution.

 

[David7700]

The FAA has issued a second letter concerning riding sharing in response to a question from another such service.

This letter is much more sensible than the Airpooler letter. It's written more clearly and stays away from the 'compensation' question. The FAA lawyers have probably been awakened to the fact that their overly broad interpretation of what constitutes 'compensation' isn't likely to hold up under judicial review.

Mean while Airpooler is asking some good questions about their FAA opinion letter.

To me Airpooler is pretty clearly 'holding out' because they are selling what amounts to tickets on privately owned airplanes flown by private pilots. The FAA were stupid to bring up 'compensation', since the Airpooler pilots are not compensated by any rational meaning of the word.

I'm glad to hear that question of turning 'letters' in to de facto regulations is being addressed.

In my opinion the FAA ought to do what most other agencies do, which is to charge the questioner for their answer, and limit the scope of the agency's answer to that specific case.

Edited to add:



YES! There exists a pretty good method for amending FAA regulations. It's cumbersome, but it should be cumbersome because there are a lot stakeholders involved.

I don't know the best way to manage or not manage ride sharing web sites, but I do know that having a law clerk write a letter is a very suboptimum solution.

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.

So long as the service is patronized by the public, it is a common carrier. The public market, of course, can be as broad or as narrow as the CAB [now FAA] chooses to make it.

And in this one from Cornell - 1949:

The common carrier concept is of common law origin. The general criteria which have evolved in the field of surface transportation are easily understood but difficult to apply. Fundamentally, the test is whether a carrier has held out to the public generally-that it will, within the limits of its facilities, carry for hire all persons applying or any property brought to it for carriage. This is the so-called "holding out test." Its application to the diverse number of situations which are possible in the field of air transportation is the source of much difficulty

 

[jaybee]

I can see the validity of the argument of what's the difference between a face to face communication and one via the internet. The only caveat is that the face to face communication would presumptuously be with someone you know.

What would concern me more is inspections. No 100 hour inspection required for private pilot giving pro-rata flights.

 

[dtuuri]

Funny you should mention "incidental" as something everyone should understand since the FAA lost a major case because it offered two different definitions of that word.

It looks to me like the FAA in DC contended the transportation was "integral" not "incidental" to the business as the Alaskan Region had been advising operators since 1963. The lost case was due to improper due-process (changing an official interpretation of it's own rules without an NPRM). Also, the Easterners didn't understand "spotting bears" from the air was for shooting them not looking at them. I wonder if they were embarrassed by the ruling?

dtuuri

 

[poadeleted20]

I'm trying to come up with constructive suggestions to deal with that, but you don't seem to be interested.

Probably because I don't think there's anything which needs dealing with other than hard-headed pilots and poor instructors, and rewriting the regs won't fix either.

 

[poadeleted20]

And maybe Airpooler/flight-share companies get their exception too, and maybe they don’t. The one thing that this discussion has shown us is that pilots don’t know what is in all these letters of interpretation and NTSB rulings if it is not also in the CFRs.

As far as I can tell, the FAA doesn't think anything AirPooler is doing is illegal -- just the pilots who advertise there. And that's the big point here.

 

[JimNtexas]

As far as I can tell, the FAA doesn't think anything AirPooler is doing is illegal -- just the pilots who advertise there. And that's the big point here.

I think you have that backwards. Airpooler is selling tickets. The pilots are not compensated, they are doing nothing wrong.

 

[poadeleted20]

I think you have that backwards. Airpooler is selling tickets. The pilots are not compensated, they are doing nothing wrong.

I think you should read again what AirPooler is doing. The pilots post a flight on AirPooler. Passengers pick up the flight and contact the pilot. Passengers give their money to AirPooler which takes 13% as a service fee for the advertising and handling the money, and passes the rest on to the pilot who provides the flight. That's "compensation" to the pilot for providing air transportation, and that's the problem for the pilot. Since AirPooler is not providing the air transportation, they're not violating any FAA rules. The cut AirPooler is taking is no different than the cut a travel agent takes when they sell you an airline ticket and pass the rest of the money to the airline which provides the actual transportation, and travel agents don't need any FAA certification at all.

IOW, if the FAA finds someone doing this AirPooler thing, it's the pilot and only the pilot who's in trouble with the FAA -- not the passenger, not AirPooler. Only problem for AirPooler is without pilots, they have no revenue, and all their investors lose their shirts.

 

[David7700]

As far as I can tell, the FAA doesn't think anything AirPooler is doing is illegal -- just the pilots who advertise there. And that's the big point here.

Of course, but the flight-share companies are seeking the exception. They have the funds to do so. Not the pilots. And I don't think AOPA is going to take up the charge.

 

[poadeleted20]

Of course, but the flight-share companies are seeking the exception. They have the funds to do so. Not the pilots. And I don't think AOPA is going to take up the charge.

I certainly agree on the last point.

I also think what's going to really kill this idea is that insurance companies are going to start writing exclusions for paying passengers on business/pleasure policies, especially if there's an accident involving a flight of this nature where paying passengers are hurt or killed and the lawsuit runs into the millions.

 

[David7700]

I certainly agree on the last point.

I also think what's going to really kill this idea is that insurance companies are going to start writing exclusions for paying passengers on business/pleasure policies, especially if there's an accident involving a flight of this nature where paying passengers are hurt or killed and the lawsuit runs into the millions.

I think my policy already excludes it to the extent I am not a commercial pilot, I don't have an operating certificate, and the FAA has indicated the arrangement does not pass muster.

 

[Jim Logajan]

I also think what's going to really kill this idea is that insurance companies are going to start writing exclusions for paying passengers on business/pleasure policies, especially if there's an accident involving a flight of this nature where paying passengers are hurt or killed and the lawsuit runs into the millions.

So long as the pro rata clause is operative, the whole idea seems to me to have little business merit - regardless of all other aspects.

Reasoning: The more passengers a Part 135 operator transports, the more money they can (in theory) make. By contrast the best a private pilot can hope to accomplish is reducing their loss - they can never make money. It isn't like they can make the loss up on volume. And there are only so many people they can fit in a plane even in the event they happen to luck out and fill the seats within W&B. So there is no pecuniary incentive for a private pilot to increase their flights, or buy a bigger plane than they otherwise need, or to fly where they wouldn't go anyway.

That said, such a web service might help those pilots who enjoy flying for any reason at all reduce their outlays for their obsession.

 

[Everskyward]

I think my policy already excludes it to the extent I am not a commercial pilot, I don't have an operating certificate, and the FAA has indicated the arrangement does not pass muster.

Your insurance policy doesn't allow you to split expenses with your passengers?

 

[Palmpilot]

So long as the pro rata clause is operative, the whole idea seems to me to have little business merit - regardless of all other aspects.

Reasoning: The more passengers a Part 135 operator transports, the more money they can (in theory) make. By contrast the best a private pilot can hope to accomplish is reducing their loss - they can never make money. It isn't like they can make the loss up on volume. And there are only so many people they can fit in a plane even in the event they happen to luck out and fill the seats within W&B. So there is no pecuniary incentive for a private pilot to increase their flights, or buy a bigger plane than they otherwise need, or to fly where they wouldn't go anyway.

That said, such a web service might help those pilots who enjoy flying for any reason at all reduce their outlays for their obsession.

Whether a pilot is trying to build hours for a career in aviation, or just enjoys flying, reducing the pilot's out-of-pocket cost seems like a pecuniary interest to me.

 

[David7700]

Your insurance policy doesn't allow you to split expenses with your passengers?

No. It says I'm not covered if I'm not flying within my ratings.

I think my policy already excludes it to the extent I am not a commercial pilot, I don't have an operating certificate, and the FAA has indicated the arrangement does not pass muster.

 

[Everskyward]

No. It says I'm not covered if I'm not flying within my ratings.

You don't need to be a commercial pilot to split expenses and use the pro-rata exception, or is that not what you are talking about.

 

[Jim Logajan]

Whether a pilot is trying to build hours for a career in aviation, or just enjoys flying, reducing the pilot's out-of-pocket cost seems like a pecuniary interest to me.

Pecuniary interest involved? Obviously agree.
Pecuniary incentive exists? Disagree:

As I figure it, the pilot wanting to build hours will probably pay $30/hour or more using pro rata ride sharing to cut costs, while acting as CFI would actually earn the pilot money. Long run seems to favor the traditional routes to building hours; I don't see how a ride-sharing web site changes that.

With regard to just enjoying flying: The only pilot I'm intimately familiar with who just enjoys flying is myself. Much as I would love to cut the cost of aviating, such a ride-sharing service doesn't appeal. I can't think of a single flight that I've flown that such a service could have been used - for many different reasons.

Lastly, if a private pilot intends to make a profit flying people or packages around, then such a site is useful to them - and an extreme danger, since it helpfully centralizes all the crooks in one place for FAA scrutiny.

 

[David7700]

You don't need to be a commercial pilot to split expenses and use the pro-rata exception, or is that not what you are talking about.

If I used Airpooler, that would go against the MAcPherson letter. If I took an action contrary to the MacPherson letter and had an accident, then the insurance company could argue that I'm not covered because I am not rated for the flight (because I "held out" which constitutes a commercial operation).

 

[Palmpilot]

If I used Airpooler, that would go against the MAcPherson letter. If I took an action contrary to the MacPherson letter and had an accident, then the insurance company could argue that I'm not covered because I am not rated for the flight (because I "held out" which constitutes a commercial operation).

The letter is an opinion from a lawyer. Would it be binding in a civil case?