FlyteNow v. FAA

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midlifeflyer

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For those interested in following the case, here is the FAA's response brief, filed yesterday

FAA Brief

I linked to the FlyteNow brief and the Appendix of materials previously. They are all located in my Dropbox here.
 
MAKG1 said:
Isn't that the Cliff Notes version of every legal brief ever written?
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Naw, just a government brief after all they aren't bound by the same rules the "subjects" are bound to.
 
MAKG1 said:
Isn't that the Cliff Notes version of every legal brief ever written?
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Except in this situation, the written law and precedents all say "The FAA gets to decide what their own regulations mean unless you can prove their position is 'arbitrary, capricious, or otherwise not according to law'", and that's a very tough proof to make.
 
In fact, a recent Supreme Court decision (it was the Department of Labor that was involved, but the principles are the same), affirmed that the FAA doesn't need to solicit comments or perform any sort of public review of interpretations. This pretty much quashes a number of FlyteNow's assertions.
 
Cliff Notes Version:

FlyteNow: Words mean things!! Look them up in the dictionary!!

FAA: Words mean what we say they mean! Screw your dictionary!!
 
Ron Levy said:
Then I guess most airlines aren't "commercial operations."
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Always helpful to comprehension is to take a sentence out of its 38-page context. Or even its 2-sentence context. :rolleyes:

As this Court has observed, "the well settled definition of business" or commercial activity is "that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit." Stone v. D.C., 198 F.2d 601, 603 (D.C.Cir. 1952) (emphasis added). Flights operated by expense-sharing pilots are not commercial operations because there is no profit.​

Could have use some better editing to avoid journalistic parsing but the meaning of the sentence is pretty clear when taken together with the thrust of the argument.
 
In any event, the FAA has always taken the position that intent to make a profit is irrelevant when examining issues of "compensation". Of course, that only affects the pilots involved -- Flytenow clearly intends to be a business/"commercial activity", and they're matching pilots with passengers and handling the money.

And there's definitely no law against receiving compensation for eating dinner without a commercial eating license.

But all that aside, I've always felt that there was nothing wrong with running the ride board, and that it was only the pilots who were in violation of the FAR's. What I think changes this one is that Flytenow is getting a piece of the action, although I agree with them that this isn't "common carriage", mainly for the reason they stated (right to refuse carriage).
 
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It is a settled facts the the FAA allows flight sharing under certain rules.
Pilots posting their intended flights on Flytenow platform must meets those conditions. (common purpose and expense sharing).
The FAA allows the pilots to communicate their intended flights on bulletin boards in colleges and airports FBO's, why would they not allow pilots to do the same on internet bulletin boards?
The government including the FAA cannot restrict free speech unless the result of this speech would be an illegal activity.
The FAA does not have a crystal ball to know in advance of a flight, if a pilot posting his intended travel plans on Flytenow would be in violation of the flight sharing exception.

I predict the court will rule in favor of Flytenow.
 
From what I've read in the FlyteNow brief so far, their arguments on the underlying subject matter seem well constructed. However, one question in my mind is whether the court will consider the matter to be ripe for review, since there is apparently no enforcement action or sanction to be appealed. The initial FlyteNow brief says that they are appealing a "final agency Order," but they make it clear that what they're actually referring to is a Chief Counsel opinion letter. Do the courts ever set aside agency opinion letters in the absence of actual enforcement cases?
 
The FAA actually argued in a different court case that a "chief counsel opinion letter" is in fact a "final agency order". This is probably why Flytenow is appealing a final agency order referring to the Chief counsel opinion letter.
 
Ron Levy said:
In any event, the FAA has always taken the position that intent to make a profit is irrelevant when examining issues of "compensation". Of course, that only affects the pilots involved -- Flytenow clearly intends to be a business/"commercial activity", and they're matching pilots with passengers and handling the money.

And there's definitely no law against receiving compensation for eating dinner without a commercial eating license.

But all that aside, I've always felt that there was nothing wrong with running the ride board, and that it was only the pilots who were in violation of the FAR's. What I think changes this one is that Flytenow is getting a piece of the action, although I agree with them that this isn't "common carriage", mainly for the reason they stated (right to refuse carriage).
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That historic position is what is being challenged in court.
 
The FAA's logic is pretty bizarre, they seem to be saying the expense sharing is allowed expect that it's not allowed.

Here's a good point raised by Flytenow :

Next, the FAA makes perhaps the most astonishing argument by seeming to assert that only “friends and acquaintances” may share expenses under the Expense-Sharing Rule, while “strangers” may not. This assertion is completely arbitrary and unsupported by the plain language of 14 C.F.R. § 61.113(c), decades of precedent, and the record in this case. Nothing in either the language of the Expense-Sharing Rule or the regulatory history of that provision even remotely suggests that individuals must have a preexisting friendship or relationship in order to share flight expenses. This “affinity” distinction also raises several questions, namely:

Is it true that two Flytenow members could use Flytenow’s communications platform to share expenses if they had a preexisting relationship, while members who had no such relationship would be prohibited from doing so?

Will the FAA now be responsible for determining whether or not people are “friends or acquaintances” when they share expenses?
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On the one hand the FAA says we can share expenses with friends. Except if we meet our friend on the web.

So does that mean I'm prohibited to share expenses with anyone I might meet at tonight's POA Austin meetup?

Because I didn't meet them in meatspace first?

The FAA is crazy to make this distinction. Clearly the FAA law clerks want to ban expense sharing. The way to do that is to publish a NPRM in the Federal Register.

But the FAA crack legal team prefers to just type out a note and claim its the law.
 
JimNtexas said:
Cliff Notes Version:

FlyteNow: Words mean things!! Look them up in the dictionary!!

FAA: Words mean what we say they mean! Screw your dictionary!!
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Yup.

I wish FlyteNow luck.
 
Ron Levy said:
The brief doesn't use the word "intent", and neither did I. In any event, it was a joke. Sorry for omitting the smiley.
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As cited in post #11, the brief uses the word "purpose," quoting the court. It would be tough to argue that expense sharing operations have "the purpose of a livelihood or profit."

"Yes, we're selling our product at a loss, but we're going to make it up on the volume." :wink2:
 
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Christian cg said:
The FAA actually argued in a different court case that a "chief counsel opinion letter" is in fact a "final agency order". This is probably why Flytenow is appealing a final agency order referring to the Chief counsel opinion letter.
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OTOH, in another recent case, involving a letter threatening enforcement action, the US Court of Appeals kicked it out for that reason.

BTW, no predictions from me on how it turns out. The most interesting legal argument to me is the free speech one if for no reason other than its interesting application. IOW, can the FAA meet its legitimate goals of restricting commercial operations to those with the proper certification without going as far as prohibiting online what is permitted in person, or on a small bulletin board at an airport.
 
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Ron Levy said:
The brief doesn't use the word "intent", and neither did I. In any event, it was a joke. Sorry for omitting the smiley.
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You're right, the brief uses the phrase 'seek commerical profit':

Expense-sharing pilots do not operate a business. “To bring a person therefore within the description of a common carrier.... he must hold himself out as ready to engage in the transportation of goods for hire as a business and not as a casual occupation.”CARRIER, Black’s Law Dictionary (10th ed. 2014) (emphasis added) (internal citations omitted).

Expense-sharing pilots have exactly zero indicia of engaging in a business or commercial activity; indeed, such pursuit would be self-defeating.

They are merely taking unprofitable flights they have a clear right under their license to take and that they otherwise would have taken. See United States v. Contract Steel Carriers,Inc., 350 U.S. 409, 411-12 (1956) (“We hold also that the fact that appellee has actively solicited business within the bounds of his license does not support a finding that it was ‘holding itself out to the general public.’”) If the FAA’s interpretation of expense-sharing pilots as common carriers is correct, then expense-sharing pilots would be the only common carriers in history to not seek commercial profit from their operations.
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It seems the Europeans got it right!

European Aviation Safety Agency:
Air Operations Regulation was amended in 2014 to include some exceptions of its own, similar to some of the exceptions in the ANO. Two of these EASA exceptions go further than the ANO: • the EASA exception allowing cost sharing permits up to 6 persons to share the cost with no minimum contribution and no restriction on advertising, and

Source: http://www.caa.co.uk/docs/33/InformationNotice2015029.pdf.
 
First time EASA actually got anything right...
 
How bad have things gotten when pilots on the continent have more freedom than the US?
 
Government in bed with big corporations= Fascism

The FAA is trying to protect the airlines who are afraid they will loose some passengers to flight sharing. Just as simple as that!

The restriction by the FAA on flight sharing was never about safety by their own admission, it is all about who get the money!!!

The "safety" agency says that you can fly for free with a private pilot safely but if there is compensation it is not safe anymore???
 
Katamarino said:
First time EASA actually got anything right...
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No, they also started the industry certification of small aircraft rather than government as well. The FAA adopted and adapted EASA protocols into LSA when they wanted to bring the 2 seat ultralights under a minimum level of supervision.
 
Christian cg said:
The "safety" agency says that you can fly for free with a private pilot safely but if there is compensation it is not safe anymore???
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It's a widely accepted principle, for better or worse, that paying passengers are entitled to a higher level of safety, hence the wrangling over what constitutes "paying." Commercial pilot and air taxi certifications are intended to provide that higher level of safety.
 
I think I'm rooting for the obviously smarter folks at FlyteNow on this one as the case moves on, and we get to read just how bad at lawyering the folks we hired at FAA to work for us all, appear to be.

That won't mean they're going to truly win. FAA won't allow that.

If they win, FAA will ramp up enforcement on the unwary pilots who participate. They won't have any participants.

They went after FlyteNow first instead of pilot enforcement, in a Hail Mary of laziness, hoping they'd get tossed a bone by a judge.

But I think in both the letter and history of the law, they're going to lose the case on the poor wording of their law, unless the judge is paid off or stoned.

Next up: Pilots losing certificates, and participants of this system will be the first and heaviest targeted.

There's always a way for a bureaucracy scorned, to get their way.
 
Why do you think the FAA wants to win? :dunno: If a court orders them to shed responsibility, that is less work they have to do. The only question is, what does the insurance industry want? That is what will happen.
 
Henning said:
Why do you think the FAA wants to win? :dunno: If a court orders them to shed responsibility, that is less work they have to do. The only question is, what does the insurance industry want? That is what will happen.
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Going off of the recent history. Mangiamele for example.
 
I never heard of this company, or ever heard of this service until I read this thread.
I really like the concept, and I hope they prevail. That said, I do think they should make it a bit more clear that you may be flying with a guy who has minimal experience and qualifications. If third class medical reform passes, that should also be made clear. I went to the website, and if I was an aviation novice I may not grasp those details.

So, in short, I like it a lot, but I do think it should be made absolutely clear that the pilot may have minimal training, essentially zero experience and has not taken a physical (if reform passes).

I say this because like it or not, people see this in the internet, know it will cost them money, and therefor think of it as a commercial operation.
Yeah, I know it says in places that you can't pay the pilot because it's not commercial blah blah blah.... It needs to be more clear IMO, unless I missed it sonewhere.
 
Kritchlow said:
I never heard of this company, or ever heard of this service until I read this thread.

I really like the concept, and I hope they prevail. That said, I do think they should make it a bit more clear that you may be flying with a guy who has minimal experience and qualifications. If third class medical reform passes, that should also be made clear. I went to the website, and if I was an aviation novice I may not grasp those details.



So, in short, I like it a lot, but I do think it should be made absolutely clear that the pilot may have minimal training, essentially zero experience and has not taken a physical (if reform passes).



I say this because like it or not, people see this in the internet, know it will cost them money, and therefor think of it as a commercial operation.

Yeah, I know it says in places that you can't pay the pilot because it's not commercial blah blah blah.... It needs to be more clear IMO, unless I missed it sonewhere.
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So you're saying the standards that the FAA set for a pilot certificate (which includes the ability to carry any passenger you feel like carrying) aren't good enough?
 
denverpilot said:
So you're saying the standards that the FAA set for a pilot certificate (which includes the ability to carry any passenger you feel like carrying) aren't good enough?
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Plenty good for private ops, AND plenty good to carry passengers. Not good enough if the passengers are under the impression they are booking a commercial flight.
 
denverpilot said:
So you're saying the standards that the FAA set for a pilot certificate (which includes the ability to carry any passenger you feel like carrying) aren't good enough?
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The standards of a private pilot are pretty low, passengers beware.

Once the average PP receives his license, he is no longer required to get any formal or recurrent training, only the Flight Review which he can't fail. And we all know of flight reviews that are given at the airport cafe or on a weekend hamburger run.

Throw in an Instrument rating and now we have a person that can take you into the clouds and hard IFR and his recency of experience is on the "honor system" and again, he doesn't ever have to demonstrate ability for the rating ever again.

There's a distinct reason for Part 119. :rolleyes:

Kritchlow said:
Plenty good for private ops, AND plenty good to carry passengers. Not good enough if the passengers are under the impression they are booking a commercial flight.
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There are lots of PP's that I wouldn't get in a plane with.
 
RotorAndWing said:
The standards of a private pilot are pretty low, passengers beware.

Once the average PP receives his license, he is no longer required to get any formal or recurrent training, only the Flight Review which he can't fail. And we all know of flight reviews that are given at the airport cafe or on a weekend hamburger run.

Throw in an Instrument rating and now we have a person that can take you into the clouds and hard IFR and his recency of experience is on the "honor system" and again, he doesn't ever have to demonstrate ability for the rating ever again.

There's a distinct reason for Part 119. :rolleyes:

There are lots of PP's that I wouldn't get in a plane with.
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Agree completely, and there are many more who aren't fully compliant but continue to fly anyway. I won't fly with those guys either.
 
denverpilot said:
They went after FlyteNow first instead of pilot enforcement, in a Hail Mary of laziness, hoping they'd get tossed a bone by a judge.
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Who went after FlyteNow? Not the FAA. FyteNow asked the FAA a question. The FAA answered it. FlyteNow didn't like the answer.

FlyteNow sued the FAA in the US Court of Appeals (one level below SCOTUS) for the DC Circuit (the Circuit among the 13 Circuits in which most appeals of administrative rulings are made), where the decision is made by a panel of judges.

I have no predictions (I know better) although I think I'm in safe ground that the Court of Appeals judges aren't going to toss centuries of law imposing stricter requirements on common carriers or the general principle that commercial operations get regulated more. The question will be their application to this type of activity.
 
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