Lindberg
Final Approach
Is that based on your understanding of the procedural posture and the DC Circuit's rules? Because that's what determines the precedential value of this order.
Federal Court Decision: Flight training is carrying passengers for hire
- Thread starter flyingron
- Start date
Lindberg
Final Approach
Affirmative.
Any district judge, or even appellate judge, is going to look at the reasoning of this case when being called to interpret the interpretation of the FAA regulations before them. That this was unpublished does not prevent parties from citing the case. While it may not be controlling, it could be viewed by some judge as persuasive. That it was not for publication might make a judge more willing to consider arguments to the contrary, but it does not mean that there is no rhetorical value to citing this case.
§ 91.327 Aircraft having a special airworthiness certificate in the light-sport category: Operating limitations.
(a) No person may operate an aircraft that has a special airworthiness certificate in the light-sport category for compensation or hire except -
(1) To tow a glider or an unpowered ultralight vehicle in accordance with § 91.309 of this chapter; or
(2) To conduct flight training.
Lindberg
Final Approach
Sure, you can cite any decision you want. But that doesn't mean it has value.
It's pretty much bereft of reasoning. And given the posture, Warbirds had an unusually high bar to clear. Plus the fact that it's unpublished is a statement that the panel felt it had no precedencial value (see rule 36 of the DC appellate rules). Even as persuasive authority, this is pretty worthless since the reasoning amounts to, "Read the regulation."
Arnold
Cleared for Takeoff
I don't disagree that the judge shouldn't decide what a safety matter is, I'm just saying they do and dress it up as a serious discussion of carriage for hire or compensation. I haven't read the government brief but I would guess it is heavy on the FAA being the only entity that decides safety and the exact argument the judge used.
Aviation groups ask FAA for clarification on flight training rules
https://www.aopa.org/news-and-media...aa-for-clarification-on-flight-training-rules
https://www.aopa.org/news-and-media...aa-for-clarification-on-flight-training-rules
The topic heading is misleading. Neither the regulation nor the decision talk about "passengers." It does say a trainee is a "person." "Passenger" was an argument made by the challengers with the FAA saying only that the interpretations saying a trainee is not a passenger are not applicable because the regulation refers to "persons" not "passengers.
Lindberg
Final Approach
That letter is awful. Do these groups not employ any attorneys?
denverpilot
Tied Down
You might find one of the orders in the case humorous. There was an order to two of the lawyers to rewrite the submitted briefs without so much jargon,
Lindberg
Final Approach
I do find that humorous, but not at all surprising.
bflynn
Final Approach
The court went further than the FAA did.
Originally, the FAA said "you have a limited airworthiness certificate. You cannot conduct flight instruction using that airplane." In reality, the company was mostly just selling flights in the airplane.
The owner (Warbird Adventures) disagreed and went to court.
Then the court rationalized 91.315 into supporting the FAA's original prohibition. But that rationalization has impacts far beyond the limited airworthiness certificate.
What I don't understand about this ruling is how does the FAA expect new pilots to qualify in the airplane. If you can't give flight instruction, then nobody can learn to fly the airplane. Moreover, nobody can get a checkout in it.
I'm not sure it's possible to distinguish between legitimate flight instruction and a one time bucket list training flight for the experience.
Originally, the FAA said "you have a limited airworthiness certificate. You cannot conduct flight instruction using that airplane." In reality, the company was mostly just selling flights in the airplane.
The owner (Warbird Adventures) disagreed and went to court.
Then the court rationalized 91.315 into supporting the FAA's original prohibition. But that rationalization has impacts far beyond the limited airworthiness certificate.
What I don't understand about this ruling is how does the FAA expect new pilots to qualify in the airplane. If you can't give flight instruction, then nobody can learn to fly the airplane. Moreover, nobody can get a checkout in it.
I'm not sure it's possible to distinguish between legitimate flight instruction and a one time bucket list training flight for the experience.
Lindberg
Final Approach
Was there a step where the FAA told Warbirds to stop giving rides in the aircraft, and Warbirds said, "They're not rides, they're flight instruction"? A guy I used to work with would call that "too cute by half." I'd put this mess on Warbirds, not the FAA.
Brad Z
Final Approach
You can give instruction. Just not for compensation, without an exemption.
bflynn
Final Approach
Right, which means nobody can get instruction in the airplane because realistically, nobody is going to let people fly for free. You can't even do a flight review or initial checkout, so in two years, nobody will be qualified to fly the airplane.
Lindberg
Final Approach
The order doesn't say that.
Lindberg
Final Approach
There seems to be a great deal of confusion about a very short, unpublished order that comes from an unusual procedural posture. Including AOPA. From the letter:
[Pro tip: In legal writing, "As you know," is almost always followed by something the reader does not, in fact, know. See also, "obviously," "clearly," and "of course."]
But no one "knows" that the [c]ourt's decision states what AOPA/EAA/GAMA is saying in this letter, because it isn't true. In fact, the word "instructor" doesn't even appear in the order, and the order doesn't address this point at all.
[Pro tip: In legal writing, "As you know," is almost always followed by something the reader does not, in fact, know. See also, "obviously," "clearly," and "of course."]
kgruber
Final Approach
And "Quite frankly" is never blunt, direct, or frank.
bflynn
Final Approach
So who is going to pay the flight instructor? Are they just going to give training away? If the instructor is paid by anyone, including salary, then according to the court, the student is being carried for compensation and the flight cannot legally be performed under that airworthiness certificate. Furthermore, if the student compensates the owner for the airplane maintenance, then they are being carried for compensation.
Realistically, nobody will be training in the airplane, which means nobody is going to be current to fly it. Otherwise, tell me how that is going to happen because I'm not seeing it.
Lindberg
Final Approach
Please show your math.
bflynn
Final Approach
2 - 1 - 1 = 0.
"Warbird argues that § 91.315 does not prohibit paid flight training. We disagree. A flight student is a “person.” Id. § 91.315; see also id. § 1.1. When a student is learning to fly in an airplane, the student is “carr[ied].” Id. § 91.315. And when the student is paying for the instruction, the student is being carried “for compensation.” Id."
I don't understand how any pilot can be trained to fly the airplane if flight instruction is considered carriage for compensation and such carriage is forbidden, unless the flight instructor is not being compensated in any way, by anyone. And for that matter, the airplane owner is not being compensated for the use of the airplane.
What is confusing? This is perfectly clear to me.
Lindberg
Final Approach
The court takes some shortcuts here. Not at all surprising. Courts do that all the time, especially, as here, when dealing preliminarily with issues where one party hasn't even come close to carrying its burden. But before we all freak out and extrapolate from what the court actually said to cover something it didn't say (and then stupidly write a letter saying the court said what it didn't say), let's look a little deeper:
The question seems to be what is prohibited under 91.135. What is 91.135 about? It's pretty darn short:
Ok then. Does that apply to flight instructors? Well, that depends doesn't it? The court answered the question about whether a "student learning to fly an airplane" is being carried. And the court answered the question about whether a student paying for instruction is being carried "for compensation." But there's an important question the court didn't answer. See it? Who does the prohibition apply to? That would be the person "operating" the limited category aircraft, right?
"Operate" is a defined term in the FARs. It has a very specific meaning:
If an instructor is providing me instruction in my aircraft, is the instructor "operating" it? Who is? Is it being operated for compensation or hire? Did the court answer these questions? Would additional facts be necessary to do so?
There's another important principle when it comes to legal precedent that hasn't been discussed yet in this thread, and that goes to interpretation of precedent that is facially broader than it needs to be to address the case before the court. Based on how this case came to the court, the order really should have been more clear in saying that based on the facts before it, Warbird had not established that it wasn't operating limited category aircraft carrying persons for compensation or hire because that's all the court had to say. But what is not immediately obvious to lay readers is that even though it seems like the court is pronouncing a general rule, it isn't. Not really for any practical purpose. You can take my word for it, or not. I don't really care. I am disappointed that AOPA and EAA took the bait, but maybe they just think (apparently correctly) this is something they can get people riled about. But I am not worried about the decision, and that the court decided it had no precedential value is a clue that maybe you shouldn't either.
Last edited:
bflynn
Final Approach
Reading your paragraph, your message is that Warbird Adventures can continue to sell flight instruction in their limited airplane, but only as long as the instructor doesn't touch the controls. That is not only pretty silly, it is counter to what the court and the FAA said.
Your analysis falls apart because it doesn't matter who operates the airplane. A person being carried for compensation is the trigger and a prohibition on airplane operation, by anyone, is the outcome.
Your analysis falls apart because it doesn't matter who operates the airplane. A person being carried for compensation is the trigger and a prohibition on airplane operation, by anyone, is the outcome.
I have not read the letters, but the record indicates the FAA repeatedly told them to stop and they refused.
denverpilot
Tied Down
Which is always the kicker on these no matter what the text of the law says.
FAA:Stop that.
Someone: No. it’s legal.
FAA: Going to court then.
Court either ignores bad wording and does what FAA wants or rules against FAA.
FAA (if ruled against): Changed the regs. Now stop.
There’s literally no way to win that game.
Best you can do is buy some time.
The in-between time just keeps a bunch of lawyers and alphabet soup PR people paid to act busy creating piles of paper.
Lindberg
Final Approach
If you got that from what I wrote, either I didn't write what I meant, or you didn't understand what I wrote. That's not what I'm saying at all. The court's decision (and I'm assuming the FAA order it upheld) doesn't mention the instructor. It also doesn't say anything about touching the controls (and neither did I).
Unless you're about to tell me that a manned aircraft can be flown without an operator, I don't see how what you're saying matters much. No person can operate the plane carrying persons for hire, and the court said that flight instruction is carrying a person for hire.
Regarding your question "Does it apply to flight instructors?" notice that the prohibition says "No person may ...."
So is a flight instructor a person? Well, per 14 CFR 1.1, "Person means an individual, firm, partnership, corporation, company, association, joint-stock association, or governmental entity. It includes a trustee, receiver, assignee, or similar representative of any of them." Since a flight instructor is an individual I'd say he's a person, wouldn't you?
Unless you can argue that the flight instructor is somehow not a person under the above definition, the prohibition against operating the aircraft to carry persons for hire applies to him. So you're left with arguing that someone, maybe an owner or business, is actually the operator and not the instructor. But that won't matter, because whoever that is will be prohibited from operating to carry persons for hire.
I don’t like the courts findings, but isn’t this down to waiver vs no waiver? If the Faa didn’t think they were doing tour flights under the guise of training, how hard would it be to get that waiver? If you can’t get the waiver, then I’m with those concerned about this.
I have a similar problem with experimental. I’m trying to figure out how I’m going to get training before my plane is done because I think combining training and flight testing is as unsafe as it gets, but there’s virtually nobody out there with a waiver and a rv-10 willing to let me train in it......
I have a similar problem with experimental. I’m trying to figure out how I’m going to get training before my plane is done because I think combining training and flight testing is as unsafe as it gets, but there’s virtually nobody out there with a waiver and a rv-10 willing to let me train in it......
bflynn
Final Approach
This only applies to one of their aircraft, a P40. They also have 2 T6 Texans and some more modern airplanes. Granted, the P40 is the coolest one of the group and also the only one with a limited airworthiness.
They don't have a waiver and they knew it, they just disagreed with the FAA. They were told 3 times to stop selling instruction and told they couldn't sell instruction.
So, now anyone who is going to fly it can't get instruction in it first. That's quite a safety improvement.
(Green = sarcasm)
They don't have a waiver and they knew it, they just disagreed with the FAA. They were told 3 times to stop selling instruction and told they couldn't sell instruction.
So, now anyone who is going to fly it can't get instruction in it first. That's quite a safety improvement.
(Green = sarcasm)
Lindberg
Final Approach
I'm not sure your conclusion is supported by your premise.
And that's kind of the answer to the "doesn't the FAA want people to be trained?" question. Sure the FAA does. But with aircraft in restricted and experimental categories it is being more cautious. A blanket prohibition with waivers for those qualified.
The FAA's position on this isn't new. Here's the 2014 Morris interpretation. And in 2006, it published guidance on how it will evaluate exemption petitions. For an example of an exemption, here's one granted to EAA.
Lindberg
Final Approach
They don't pay for the instruction.
Lindberg
Final Approach
So I've demonstrated that your claim is incorrect. And this is where I get off this merry-go-round.
bflynn
Final Approach
You haven't demonstrated anything. You're bailing without answering the questions. To me, it appears you know you've walked yourself into a corner that you don't have answers for, so you're getting out.
What CFI is going to work for free?
Who is going to pay for the airplane?
They don't have a waiver to give flight instruction in that airplane. Nobody is going to just donate their time to do all this gratis, therefore the only way it happens is if someone gets paid. That's compensation, which knocks out any operation.
The only person who can get instruction is the person who owns it or someone that the owner (if they are a CFI) GIVES the instruction to. Unfortunately, it's owned by a business and giving away stuff for free is not a strong business strategy.
