FlyteNow loses in Court of Appeals

midlifeflyer

midlifeflyer

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Hot off the presses. I just received notice of the decision. Haven't read it all yet but here's the summary from the opinion itself.

Flytenow asks us to set aside the FAA's Interpretation as arbitrary and capricious and inconsistent with statutory and constitutional law. Because we conclude that the FAA's Interpretation is consistent with the relevant statutory and regulatory provisions and doe s not violate Flytenow's constitutional rights, we deny Flytenow's petition for review.
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FlyteNow v. FAA
 
midlifeflyer said:
Hot off the presses. I just received notice of the decision. Haven't read it all yet but here's the summary from the opinion itself.

Flytenow asks us to set aside the FAA's Interpretation as arbitrary and capricious and inconsistent with statutory and constitutional law. Because we conclude that the FAA's Interpretation is consistent with the relevant statutory and regulatory provisions and doe s not violate Flytenow's constitutional rights, we deny Flytenow's petition for review.
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FlyteNow v. FAA
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Roll call. Anyone surprised by this please say "Aye":

dtuuri
 
Not really surprised, but disappointed.
 
Could have told you the outcome. The cards are stacked against allowing an agency to define what the regulations they create say. This isn't anywhere near the "arbitrary and capricious" level that is needed to overturn.

Anyhow, the decision points out that the regulatory support for the FAA's action is there and their interpretation as defined in both one of the advisory circulars and the letters from the chief counsel to various players has been consistent and well defined. Pretty much the court supports the FAAs definition of common carriage and that the regulatory restriction on the website is within the
powers granted the FAA.

They also pretty much laugh off FlyteNow's constitutional arguments.

It also appears that FlyteNow's attorneys are boneheads who screwed up the filing anyhow.
 
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One government entity ruling in favor of another government entity? I'm shocked I tell you, shocked!
 
Everskyward said:
Not really surprised, but disappointed.
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I don't know why you are disappointed. The law was pretty clear cut in the FAAs favor. FlyteNow was grasping at straws in this case.
 
flyingron said:
I don't know why you are disappointed. The law was pretty clear cut in the FAAs favor. FlyteNow was grasping at straws in this case.
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I'm disappointed because I had no problem with the idea. I don't think the law was clear-cut.
 
I'm disappointed, cause you know, freedom...:sad:
 
Phoenix said:
I'm disappointed, cause you know, freedom...:sad:
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You have the freedom to announce to the world that you'll fly anyone wherever they want at any time.

You just can't be compensated for doing so.
 
EdFred said:
One government entity ruling in favor of another government entity? I'm shocked I tell you, shocked!
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:yeahthat:




quote-no-matter-what-you-do-no-matter-how-hard-you-try-you-re-screwed-because-it-s-all-fixed-george-carlin-42-23-80.jpg
 
Everskyward said:
I'm disappointed because I had no problem with the idea. I don't think the law was clear-cut.
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The law is clear cut. You have to understand that the law says that the FAA is the arbiter in most cases of what the interpretation of the regs says. As evidenced in the opinion, the FAA has repeatedly in both an Advisory Circular and in letters from their legal counsel been consistent in it's application of common carriage to this operation. You can argue until the cows come home that common carriage means something else, but it's not up to you.
 
flyingron said:
The law is clear cut. You have to understand that the law says that the FAA is the arbiter in most cases of what the interpretation of the regs says. As evidenced in the opinion, the FAA has repeatedly in both an Advisory Circular and in letters from their legal counsel been consistent in it's application of common carriage to this operation. You can argue until the cows come home that common carriage means something else, but it's not up to you.
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It's obviously not up to me but I can have a different opinion than the courts.
 
Everskyward said:
It's obviously not up to me but I can have a different opinion than the courts.
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The court has to follow the law. The law says that the agencies have the right to interpret their own regulations. Nothing in the FlyteNow lawsuit made any compelling case that the FAA wasn't working within their delegated powers to interpret and enforce that regulation. The seperate constitutional issues were so laughable that they didn't hard merit any note in the opinion.
 
The expected, and IMHO correct, outcome. Everyone wants flying to be cheaper, but this wasn't the way to do it.
 
It would seem to me that there would be an exemption if you knew the person prior to arranging the flight.

For example: if POA were to setup a flight share section, that could be legal and within the rules. I'd sign-up to Alpha and Beta test it.
 
What they are restricting is a single means of communication.

Do the same exact thing on a bulletin board at an airport and it's OK. Make the bulletin board digital? OK. Make the digital bulletin board attached to the internet... not OK.

That the FAA has the right to interpret regs is a tautology. But it is still capricious and arbitrary to say that one form of comm makes people think you're offering common carrier services while the other does not.

Whatever. Put this in PBOR3.
 
No, it's always been an interpretation of whether the offer is made to the "public."
The FAA has been 100% consistent on this for three decades now (the pertinent advisory circular was written in 1986! and it was a revision to an earlier document that goes back to 1964). It has never been the MEANS of communication. It's who the recipients of the communications are.
 
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flyingron said:
No, it's always been an interpretation of whether the offer is made to the "public."
The FAA has been 100% consistent on this for three decades now (the pertinent advisory circular was written in 1986! and it was a revision to an earlier document that goes back to 1984). It has never been the MEANS of communication. It's who the recipients of the communications are.
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The FAA actually stated this quite clearly in the original hearing, posted elsewhere...you can offer rides to facebook "friends" for cost sharing, provided they are actual friends. If you "friends" list is populated into the thousands because you accept friend requests from anyone and everyone, that would raise a red flag for the FAA.

Same means of communication, different recipients.
 
The constitution only protects people. What was their arguments on it?
 
1: Did this work? Were pilots willing to take on some random passenger that wanted to go where the pilot wanted to?

2: Are there prospective passengers who wanted to share a ride, going when the pilot wanted to go, without knowing the pilot's qualifications and the aircraft's condition?

3: What's the big whoop? You want to fly passengers for money, get your commercial ticket.
 
Re #3 sure just get a commercial ticket and a 135 certificate to share expenses in your bugsmasher. GA for everyone, except you people that are too lazy and cheap to operate as part 135.:lol:
 
Really not surprising. The regulations are quite clear. FlyteNow didn't really have a case.
 
Unit74 said:
The constitution only protects people. What was their arguments on it?
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They argued that by allowing such things as airport bulletin boards but restricting the Internet the FAA was attempting to restrict the method of communication, infringing on the pilots' free speech rights.

The Constitution doesn't only protect human people. It also gives some protection to "corporate people". You know, like newspapers and freedom of the press and speech.
 
Unit74 said:
The Constitution only protects people. What was their arguments on it?
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They made three arguments, which the court found "unavailing":

Freedom of speech: That the rule places a prior restraint on their first amendment rights. The court pretty much pointed out that they were not being restrained, it's not the posting that's improper it's the activity that ensues. Further, advertising for illegal activity is not protected speech.

Equal Protection: That the classification of the pilots in this activity were being treated differently than others in an actionable way. The court pretty much ruled the FAA characterization of private pilots not participating in commercial activity is pretty well justified.

Vagueness: That the FAR is unconstitutionally vague. The FAA interpretation that such advertising was always clear cut. In fact if any aspect is non-vaguely illegal, you can't argue vagueness to your benefit.

This is my take from reading the decision, I've not read FlyteNow's petition.
 
I would have argued an APA violation.

The regulations are not "clear" on the matter. The phrase "holding out" does not actually appear in Part 61.113 anywhere. The phrase appears only in "interpretations" of the regulation.

If the FAA wants to prohibit holding-out in 61.113, they should do so in accordance with the Administrative Procedures Act's requirement for notice-and-comment rulemaking, not through legal interpretations.
 
JeffDG said:
I would have argued an APA violation.

The regulations are not "clear" on the matter. The phrase "holding out" does not actually appear in Part 61.113 anywhere. The phrase appears only in "interpretations" of the regulation.

If the FAA wants to prohibit holding-out in 61.113, they should do so in accordance with the Administrative Procedures Act's requirement for notice-and-comment rulemaking, not through legal interpretations.
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:yeahthat:
 
JeffDG said:
I would have argued an APA violation.

The regulations are not "clear" on the matter. The phrase "holding out" does not actually appear in Part 61.113 anywhere. The phrase appears only in "interpretations" of the regulation.
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Not in 61.113, but it is in the AC120-20A and numerous FAA legal counsel letters. The interpretation, contrary to FlyteNow's assertion has been out there and consistent. And THAT is what the law says.

If the FAA wants to prohibit holding-out in 61.113, they should do so in accordance with the Administrative Procedures Act's requirement for notice-and-comment rulemaking, not through legal interpretations.
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I agree, but that is NOT what the APA and established case law says.
 
Told you it wouldn't happen, it makes GA uninsurable in tort court, at least not affordable insurance.
 
Henning said:
Told you it wouldn't happen, it makes GA uninsurable in tort court, at least not affordable insurance.
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I really don't care about the outcome, but I do think it is the correct decision... Clearly, and without question.
 
flyingron said:
Not in 61.113, but it is in the AC120-20A and numerous FAA legal counsel letters. The interpretation, contrary to FlyteNow's assertion has been out there and consistent. And THAT is what the law says..
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...and "holding out" has been a legal concept differentiating between public and private carriage for 300 years.

I think you mean AC 120-12A. Reference to it in the opinion was the one thing that made me cringe a bit because it is so outdated, part of it was rejected by the FAA and Court of Appeals decision in a different case.
 
Brad Z said:
You have the freedom to announce to the world that you'll fly anyone wherever they want at any time.

You just can't be compensated for doing so.
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Yes, but you, as the pilot, are being compensated in some way - friendship, good will, companionship to keep you from getting bored. Practically everything that you do has the potential to be considered compensation if it generates the least benefit to you and much of it is unavoidable.

So...no, you cannot.
 
bflynn said:
Yes, but you, as the pilot, are being compensated in some way - friendship, good will, companionship to keep you from getting bored. Practically everything that you do has the potential to be considered compensation if it generates the least benefit to you and much of it is unavoidable.

So...no, you cannot.
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Incorrect, once you are footing the entire bill, you can fly anyone anywhere for whatever reason.
 
Henning said:
Incorrect, once you are footing the entire bill, you can fly anyone anywhere for whatever reason.
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So if Bill Gates started his own airline that advertises and schedules just like any other, but the flights are for free, then the planes could be flown by private pilots and operated under Part 91?
 
midlifeflyer said:
I think you mean AC 120-12A. Reference to it in the opinion was the one thing that made me cringe a bit because it is so outdated, part of it was rejected by the FAA and Court of Appeals decision in a different case.
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What part, Mark? I'd like to read the case.

dtuuri
 
acrophile said:
So if Bill Gates started his own airline that advertises and schedules just like any other, but the flights are for free, then the planes could be flown by private pilots and operated under Part 91?
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Good question. I've often said "Angel" flights are only a penny away from being illegal charters, but I bet if they were opened up to all members of the public the FAA would require an operating certificate. How they would justify it under current rules would be interesting. But you just know they would.

dtuuri
 
dtuuri said:
What part, Mark? I'd like to read the case.

dtuuri
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I mentioned it in another thread with a link to the case. See posts 13 and 20. It's the part of 120-12A suggesting that one doesn't need an operating certificate for "private carriage." Apparently the AC, last updated in 1986, predates changes to Part 119 regarding operating certificates for private carriage.

Seems like a simple matter to update.
 
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