Flytenow Hearing

petrolero said:
Why couldn't he do that now? The only difference is how he finds the people.
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He could if Flytenow wins this case. I was trying to illustrate how misleading it may be to the non aviation public.
 
petrolero said:
So you do have to be a professional to be a safe and responsible pilot? It's miraculous that I'm still alive in that case.

The trouble here is that you are confusing statistics with individual outcomes. They are not the same thing. The stats are the stats, but - also irrefutable - is the fact that there are thousands of private pilots who go their entire flying lives without injury or bent metal. You're talking about the former, he's talking about the latter and you are both correct as far as you go.
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The concern is: how does the general public tell the difference between the PP-ASEL who is careful, conservative and conscientious and the identically rated PP-ASEL who is sloppy and overconfident? If it's somebody they only know via a web board? (Like most of us.)

At least with the CP certificate (and 2nd class medical, right?) they have at one time demonstrated a higher level of proficiency to a presumably unbiased observer.

John
 
petrolero said:
So you do have to be a professional to be a safe and responsible pilot? It's miraculous that I'm still alive in that case.

The trouble here is that you are confusing statistics with individual outcomes. They are not the same thing. The stats are the stats, but - also irrefutable - is the fact that there are thousands of private pilots who go their entire flying lives without injury or bent metal. You're talking about the former, he's talking about the latter and you are both correct as far as you go.
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No, and no where did I say, or intimate, or imply that, so if you are saying it, then stand by it. I stand by only what I wrote.

While we all might debate the future of flytenow and prior restraint, the FAA is the one doing the deciding. They have access to those stats, and many more that tell a grim tale with a lot of blood that when the noose is loosened, there will be consequences. In this case, they could easily say the stats don't make the point either of us are trying to make.

BTW, having taught stats in college, I always started the first lecture with your line; 'stats are the accumulation of individual or atomic events. The individual or atomic actions/event are not predicable by stats, but we can use them to make rational judgments about future probabilities.' Of course, there was always some guy in class who would point out that 'just because the sun rose the last trillion times, doesn't mean it will rise again tomorrow - so there.' I usually just let the silent stare do it's work. ;)
 
Kritchlow said:
I think any pilot is capable of being plenty safe. Obviously some PPL guys are safe. That said, if you play the percentages it clearly is a one sided arguement. Not just because someone may have a CPL vs PPL, but 135/121 outfits generally have well defined training, SOP's, mtc programs, and policies/procedures that dictate their every move. A high level of standardization does indeed make a difference.
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...and yet a few with such training still crash. And many never do.

The aggregation of all these individual outcomes is where statistics come from.

But it's not correct to point at individual pilots and state that those pilots are less safe. They could be far safer than the GA accident rate. You have to judge individuals on their merits.

But you could also say that "I find the GA accident rate too high. Therefore I will avoid all GA flights". Fine.

Las Vegas makes billions of dollars on this very principle. If no one won, no one would play. And yet we know that, when aggregated, the house always wins or the house wouldn't be in business.
 
Kritchlow said:
He could if Flytenow wins this case. I was trying to illustrate how misleading it may be to the non aviation public.
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I'm saying why couldn't he fill an A380 with people and have them cost-share with him to Europe right now?

He wouldn't be able to use a website to do it. But what if he posted it on a bulletin board in an FBO (A really busy FBO, but hey this is hypothetical)? Or on this pilots of America site for that matter (as was done with Oshkosh - apparently legally)?

It's still, in theory, a guy filling an A380 with cost-sharing pax, right?

The only difference is whether he is allowed to use that website.

If it's legal for him to fill an A380 with cost-sharing pax without FlyteNow, what major difference would having FlyteNow make to the legality? I say no difference.
 
petrolero said:
...and yet a few with such training still crash. And many never do.

The aggregation of all these individual outcomes is where statistics come from.

But it's not correct to point at individual pilots and state that those pilots are less safe. They could be far safer than the GA accident rate. You have to judge individuals on their merits.

But you could also say that "I find the GA accident rate too high. Therefore I will avoid all GA flights". Fine.

Las Vegas makes billions of dollars on this very principle. If no one won, no one would play. And yet we know that, when aggregated, the house always wins or the house wouldn't be in business.
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So what's your point? People booking through Flytenow have no idea who is safe, and who is not. Playing the percentages is truly the only way to do it.

Shucks, if I knew black was going to come in on the roulette wheel, guess what color I would play? Fact is it will come in 47.4% of the time, regardless of the last 10 spins.
 
docmirror said:
No, and no where did I say, or intimate, or imply that, so if you are saying it, then stand by it. I stand by only what I wrote.

While we all might debate the future of flytenow and prior restraint, the FAA is the one doing the deciding. They have access to those stats, and many more that tell a grim tale with a lot of blood that when the noose is loosened, there will be consequences. In this case, they could easily say the stats don't make the point either of us are trying to make.

BTW, having taught stats in college, I always started the first lecture with your line; 'stats are the accumulation of individual or atomic events. The individual or atomic actions/event are not predicable by stats, but we can use them to make rational judgments about future probabilities.' Of course, there was always some guy in class who would point out that 'just because the sun rose the last trillion times, doesn't mean it will rise again tomorrow - so there.' I usually just let the silent stare do it's work. ;)
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Concur.

I guess where I got confused was that you responded with statistics to TFL's statement about individuals:

You don't have to be a professional to be a safe and responsible pilot.
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What he said is as true as what you said.
 
Kritchlow said:
So what's your point? People booking through Flytenow have no idea who is safe, and who is not. Playing the percentages is truly the only way to do it.

Shucks, if I knew black was going to come in on the roulette wheel, guess what color I would play? Fact is it will come in 47.4% of the time, regardless of the last 10 spins.
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Ditto with people not using FlyteNow. You see what I'm getting at? The only difference is the means of communication between pilot and pax.
 
Uphill battle, sounds like to me:

http://www.cadc.uscourts.gov/recordings/recordings2016.nsf/C6D9E1D4399327D185257ECB005B4392/$file/14-1168.mp3

EDIT: The longer it goes, the more hollow the argument sounds, IMO.

dtuuri
 
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PPC1052 said:
Not in this case. This matter is before a federal judge.
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Thanks for the correction. If the judge rules for Flytenow and against the FAAs interpretation - what you think will be the repercussions from the FAA?

Using the recent debacle with the FAA and mandating sleep apnea tests, may guide your answer. :D
 
dtuuri said:
Uphill battle, sounds like to me:

http://www.cadc.uscourts.gov/recordings/recordings2016.nsf/C6D9E1D4399327D185257ECB005B4392/$file/14-1168.mp3

EDIT: The longer it goes, the more hollow the argument sounds, IMO.

dtuuri
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TL,DL

Which side? Flytenow, or FAA?
 
dtuuri said:
Uphill battle, sounds like to me:

http://www.cadc.uscourts.gov/recordings/recordings2016.nsf/C6D9E1D4399327D185257ECB005B4392/$file/14-1168.mp3

EDIT: The longer it goes, the more hollow the argument sounds, IMO.

dtuuri
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It was on my calendar to grab the file and listen to the argument. It will be interesting to see what specifics go into the Court's decision.
 
The problem is they were destined to lose. The rules for litigating regulation is pretty heavily stacked against these litigants. As long as the FAA created the regulation under their enabling legislation, as long as it's not totally vague or capricious in its application, the district court generally must defer to the agencies interpretation of what the regs mean. You don't win federal court ****ing matches about the interpretation of regulations. You need to raise some other legal issue. In fact, this is one of the things that currently has some of the congressional staff riled up about on PBOR2 as it attempts to change this principal for pilot enforcements and would set a interesting precedent for other regulatory agencies.


Anyhow, I don't know what FlyteNow thinks they are going to win. If the FAA was to lose this by some argument, it will be a temporary win. The FAA is certainly within their authority to change the regulations to explicitly make advertising of any flight by a non-commercial operator illegal.
 
flyingron said:
The FAA is certainly within their authority to change the regulations to explicitly make advertising of any flight by a non-commercial operator illegal.
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But they might not want to, because it might be tricky to do that in a way that targets Flytenow without taking out a big swath of GA along with it. E.g. what would then happen if someone posts here that they're flying to Oshkosh and have an extra seat?
 
flyingron said:
The problem is they were destined to lose. The rules for litigating regulation is pretty heavily stacked against these litigants. As long as the FAA created the regulation under their enabling legislation, as long as it's not totally vague or capricious in its application, the district court generally must defer to the agencies interpretation of what the regs mean. You don't win federal court ****ing matches about the interpretation of regulations. You need to raise some other legal issue. In fact, this is one of the things that currently has some of the congressional staff riled up about on PBOR2 as it attempts to change this principal for pilot enforcements and would set a interesting precedent for other regulatory agencies.
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To be technical, the case is in the US Court of Appeals not District Court. But the same principles of deference are used. The is a bit of discussion on that subject in the argument.
 
petrolero said:
Ditto with people not using FlyteNow. You see what I'm getting at? The only difference is the means of communication between pilot and pax.
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But the means of communication that FlyteNow is using is the same means of communication that Delta uses...a web site whose sole purpose is to advertise flights to the general public.

This is what the FAA says is "holding out", and what therefore defines their operations as requiring a 119 certificate, appropriately rated/trained/checked pilots, and appropriately inspected/approved aircraft.
 
I would think that the number of potential viewers of a posting would be a factor in the holding-out determination. With a physical bulletin board, for example, the number of viewers is limited. With publicly viewable postings on the Internet, the number is unlimited.
 
Palmpilot said:
I would think that the number of potential viewers of a posting would be a factor in the holding-out determination. With a physical bulletin board, for example, the number of viewers is limited. With publicly viewable postings on the Internet, the number is unlimited.
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I think that has generally been the FAA's test, yes.

But that number cannot be determined by the poster (of paper or forum thread or FlyteNow posting)_ beforehand and is variable and defining it that way is very problematic IMO.

Which "viewers" even matter? Is it advertising if the viewer seeks it?

How many "viewers" before it crosses over into "holding out?" 100? 1000? How about 1001? Is it based on total potential viewers, total actual viewers of a specific flight? What if it's on a board like this one vs FlyteNow?

That has quite a bit of hair on it, which is probably why the FAA has basically just shut down all internet postings rather than deal with the issue.

To me, it is either 'holding out' at the moment it's posted or it isn't. There needs to be some more concrete rules than just those based on the number of people who might see a post, which is wholly not controllable once something is posted - either on a bulletin board or a forum or FlyteNow.
 
Palmpilot said:
I would think that the number of potential viewers of a posting would be a factor in the holding-out determination. With a physical bulletin board, for example, the number of viewers is limited. With publicly viewable postings on the Internet, the number is unlimited.
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So, are you saying that a bulletin board in a really busy place might be illegal, but a low traffic location is cool? So now, the regulation (without using actual words) says "you can't hold out to lots of people" with "lots" being wholly undefined (as well as not ACTUALLY appearing in the regulation

What if someone, unknown to the person who posted the item on the bulletin board, pointed a streaming webcam of the board out to the world?
 
What if the bulletin board at the really-busy FBO were digital and could be posted to by anyone from home? It's not the internet per se, it's only visible at the FBO.

There has to be something more than a vague number of potential viewers to determine what is and is not 'holding out'.
 
petrolero said:
I think that has generally been the FAA's test, yes.

But that number cannot be determined by the poster (of paper or forum thread or FlyteNow posting)_ beforehand and is variable and defining it that way is very problematic IMO.

Which "viewers" even matter? Is it advertising if the viewer seeks it?

How many "viewers" before it crosses over into "holding out?" 100? 1000? How about 1001? Is it based on total potential viewers, total actual viewers of a specific flight? What if it's on a board like this one vs FlyteNow?

That has quite a bit of hair on it, which is probably why the FAA has basically just shut down all internet postings rather than deal with the issue.

To me, it is either 'holding out' at the moment it's posted or it isn't. There needs to be some more concrete rules than just those based on the number of people who might see a post, which is wholly not controllable once something is posted - either on a bulletin board or a forum or FlyteNow.
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You see, if the FAA simply issued an NPRM with actual regulatory language, these types of things could be hashed out as part of the notice-and-comment rulemaking process that the APA mandates. Instead, they prefer to avoid messy "comments" by issuing interpretative letters.
 
MauleSkinner said:
But the means of communication that FlyteNow is using is the same means of communication that Delta uses...a web site whose sole purpose is to advertise flights to the general public.

This is what the FAA says is "holding out", and what therefore defines their operations as requiring a 119 certificate, appropriately rated/trained/checked pilots, and appropriately inspected/approved aircraft.
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FlyteNow's position is that you don't have to worry about whether it's "holding itself out" because there is no commercial enterprise in light of the fact that the pilot is only cost sharing, not making money off the venture.
 
BS. Want proof? Anytime i goto my Angel Flight board I see 5 pages of this....that is flights that need to be filled.

Same exact thing just no money involved. So why the problems. Follow the money. Boils down to control. FAA and commercial flight would freak out i I could take people and it could theoretically take away from carriers getting cut out.

Everytime I take someone they are well aware of the risks and understand if I cal no-go. The Angel Flight board is the same exact type of holding out just no money is being exchanged.
 

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tlrussell said:
Anytime i goto my Angel Flight board I see 5 pages of this....that is flights that need to be filled.

Same exact thing just no money involved.
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Actually quite different, even apart from the money. With Angel Flight, passengers propose the flights. Flytenow is much more restrictive; it only allows pilots to propose flights that they're about to make.
 
petrolero said:
I think that has generally been the FAA's test, yes.

But that number cannot be determined by the poster (of paper or forum thread or FlyteNow posting)_ beforehand and is variable and defining it that way is very problematic IMO.

Which "viewers" even matter? Is it advertising if the viewer seeks it?

How many "viewers" before it crosses over into "holding out?" 100? 1000? How about 1001? Is it based on total potential viewers, total actual viewers of a specific flight? What if it's on a board like this one vs FlyteNow?

That has quite a bit of hair on it, which is probably why the FAA has basically just shut down all internet postings rather than deal with the issue.

To me, it is either 'holding out' at the moment it's posted or it isn't. There needs to be some more concrete rules than just those based on the number of people who might see a post, which is wholly not controllable once something is posted - either on a bulletin board or a forum or FlyteNow.
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I think that basing it on the actual number of viewers of a posting is unworkable, which is why I was talking about the number of "potential" viewers. I'm not talking about a specific number; what I'm trying to express is that it's a question of degree. Internet postings are easily accessible to the entire world; that can't be said of a physical bulletin board. Even with Internet postings, I think any criteria should take into account whether they were publicly viewable, rather than trying to come up with a specific number.

As for distinguishing the wide variety of situations and media that could come up, there are always going to be gray areas no matter what test they devise, so there will always be cases where someone has to look at the totality of the facts and make a judgment call. That's one of the reasons why we have judges.
 
tlrussell said:
Everytime I take someone they are well aware of the risks and understand if I cal no-go. The Angel Flight board is the same exact type of holding out just no money is being exchanged.
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Yeah, but the exception you mention is the whole issue.

To me, the real issue is whether it is a prohibited commercial enterprise where money is changing hands, but no profit is possible because you are really just sharing costs.

I thought the disappointing part of the oral argument is that this wasn't hit head on. If I were FlyteNow's attorney, I might have simply said, "yes, the web site is advertising, and it is therefore 'holding out.' But 'holding out' of what? It is not holding itself out as a 'commercial air carrier.' It is not holding itself out as a 'common carrier.' We know that there is no commercial air operation here because there is no profit. Defraying some of the costs by cost sharing does not change that. The essence of a commercial operation is that it is for profit. With FlyteNow, the pilots simply reduce the amount of their own expenses. But at the end of the day, the pilots themselves still must pay for the privilege of conducting the flight. That is wholly distinguishable from the situation where the pilots get paid, and make a profit, on each flight." This is essentially what FlyteNow's counsel was arguing, but he got bogged down in that question by the judge as to whether what it does is distinguishable or not from the holding out by air carriers, such as Delta. And he did not do a good job of convincing the court that it's advertising is more like posting to a group of friends, rather than advertising to the public.
 
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Palmpilot said:
I think that basing it on the actual number of viewers of a posting is unworkable, which is why I was talking about the number of "potential" viewers. I'm not talking about a specific number; what I'm trying to express is that it's a question of degree. Internet postings are easily accessible to the entire world; that can't be said of a physical bulletin board. Even with Internet postings, I think any criteria should take into account whether they were publicly viewable, rather than trying to come up with a specific number.

As for distinguishing the wide variety of situations and media that could come up, there are always going to be gray areas no matter what test they devise, so there will always be cases where someone has to look at the totality of the facts and make a judgment call. That's one of the reasons why we have judges.
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And this is why I think it was a fool's errand for FlyteNow's counsel to try to take this issue on. It's real argument is that this is simply cost sharing, regardless of how far and wide it is advertised, it's not a commercial enterprise. It's just two or more people, the pilot included, sharing the cost of a flight.
 
What you're saying makes sense to me!
 
PPC1052 said:
And this is why I think it was a fool's errand for FlyteNow's counsel to try to take this issue on. It's real argument is that this is simply cost sharing, regardless of how far and wide it is advertised, it's not a commercial enterprise. It's just two or more people, the pilot included, sharing the cost of a flight.
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They did have to address the FAA's argument that 'holding out' is a corollary to the cost sharing allowance. Holding out, as a concept, is as old as the hills and is central to all of this so I think they were always going to be forced to address it.
 
tlrussell said:
BS. Want proof? Anytime i goto my Angel Flight board I see 5 pages of this....that is flights that need to be filled.

Same exact thing just no money involved. So why the problems. Follow the money. Boils down to control. FAA and commercial flight would freak out i I could take people and it could theoretically take away from carriers getting cut out.

Everytime I take someone they are well aware of the risks and understand if I cal no-go. The Angel Flight board is the same exact type of holding out just no money is being exchanged.
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As they should. Commercial carriers are held to a higher standard of training that you are as a private pilot. They are required to do recurrent training. The maintenance on the airplane is held to a higher standard.

The idea of Flytenow is a joke, it's 135, plain and simple. Good thing they're going to run out of money long before the FAA does.
 
Palmpilot said:
I think that basing it on the actual number of viewers of a posting is unworkable, which is why I was talking about the number of "potential" viewers. I'm not talking about a specific number; what I'm trying to express is that it's a question of degree. Internet postings are easily accessible to the entire world; that can't be said of a physical bulletin board. Even with Internet postings, I think any criteria should take into account whether they were publicly viewable, rather than trying to come up with a specific number.

As for distinguishing the wide variety of situations and media that could come up, there are always going to be gray areas no matter what test they devise, so there will always be cases where someone has to look at the totality of the facts and make a judgment call. That's one of the reasons why we have judges.
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I think all of the 'number of viewers' concepts are unworkable and illogical. If you are posting on a physical cork bulletin board for the public to see, how is that any less an attempt at 'advertising' an available flight to strangers than FlyteNow?

If the cork board is not 'holding out' a flight to the public, imagine someone doing so at a busy international airport through which both pilots and the general public pass. There is some vague size or visibility cutoff that no one clearly defines. For that reason, I think number of potential - or actual - viewers is an illogical test with arbitrary limits.

The issue should be in whether you are attempting to advertise a flight or not. If advertising is evidence on its face of 'holding out' then it wouldn't matter whether the board is made of cork or pixels - either way it's advertising.

The next question should be... advertising or holding out what, exactly? The public pays for commercial airline tix and they would also pay for a Flyte found on FlyteNow. So it would have to be made clear to the point of absurdity to the passenger exactly what s/he is and is not getting for the money. But there is no chance of profit for the pilot so anyone doing this would still be operating at a loss just as any private pilot does now. Yes someone could log thousands of hours of flights to the extent of their riches.

Then there is the issue of 'common purpose' which gets grey and creepy when it deals with whose idea the flight was and whether it would have happened anyway without the pax. This turns into thought policing. Again, it shouldn't matter. I'm either sharing the costs pro rata or not.

The 'holding out' and 'common purpose' rules are there to keep us from taking too much of the commercial operators' business. Without those, someone with a King Air could start a service that looks and feels very similar to a 135 operation. If I'm sounding like the FAA that's just because that's where the arguments lead.
 
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Just to be clear, I'm not claiming to have 'the answer,' just exploring an aspect of the holding out issue.
 
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