"Is this legal" thread - pt 134 1/2 or not?

DavidWhite

DavidWhite

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Lets say hypothetically speaking there was an aircraft that was owned by an LLC. The aircraft was available for rent. A lodge wanted to rent the airplane to fly clients out to a hunting camp, but they didn't have a pilot. The hunting lodge found a pilot to do the flying, and he was employed by a separate LLC, however he also did the majority of the instructing in this airplane. Could the hunting lodge hire the airplane and pilot (separately) to fly their clients out? There is no holding out and no advertising other than the airplane being advertised for rental and the pilot advertising his services as a contract pilot. They are two completely separate entities. Is this legal?
 
Computerjim said:
No.
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Why? It would be perfectly legal for the lodge to use their own airplane and pilot as it is incidental to the business. It would also be perfectly legal for the lodge to hire a pilot to fly their airplane. How is it not different than that? Is the distinction that the pilot and plane are sort of connected even though they are two separate entities?

I'm not trying to be contrarian, I am legitimately curious what the actual legality of the scenario is. I am inclined to disagree with you and say that it is in fact legal, but that's why I asked the question - because I'm not sure.
 
Because it's still common carriage. The service is provided to the public at large. The FAA has already issued rulings on this. You can't mask common carriage by wrapping it with other services.
 
flyingron said:
Because it's still common carriage. The service is provided to the public at large. The FAA has already issued rulings on this. You can't mask common carriage by wrapping it with other services.
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It's not common carriage. It's perfectly legal for a company to ask you to fly their airplane from X to Y.

edit: My understanding of common carriage is if someone called and said "Hey, can you fly me from A to B?" and you hopped in your airplane and took them.
 
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DavidWhite said:
It's not common carriage. It's perfectly legal for a company to ask you to fly their airplane from X to Y.

edit: My understanding of common carriage is if someone called and said "Hey, can you fly me from A to B?" and you hopped in your airplane and took them.
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Actually, the FAA just ruled on a similar setup the other day. Unfavorably. If you want to do something like this, simply have your attorney send a letter to the FAA asking about it.They'll probably get a reply that you won't like. (And you didn't mention who owns the LLCs ... the FAA really, really, really doesn't like it when people try to skirt the rules.)
Think about it: your lodge advertises the transport, right?
 
Probably be easier to find a plane that can conform to a 135 and find a 135 that will put said plane and pilot on their cert and work a deal out.

Unless you’re publicly traded or part of the gov the FAA does not accept any insubordination.
 
The lodge can use their own plane, no problem with that. They can hire whoever they please to fly it. The question is whether a plane leased on a per-hour basis is considered 'their plane'.

Probably different answers whether you deal with Anchorage FSDO or Garden City, NY
 
If the lodge charges for the flights? No. If the flights are incidental to the lodge services and the pilot is commercially rated? Yes.
 
To cut to the quick, your understanding or interpretation does not matter, only the FAA's counts. And as an earlier poster said if you really want to find out have your attorney ask the FAA based on the actual business entities...an d be prepared for bad news.
 
jonvcaples said:
To cut to the quick, your understanding or interpretation does not matter, only the FAA's counts. And as an earlier poster said if you really want to find out have your attorney ask the FAA based on the actual business entities...an d be prepared for bad news.
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I'd ask my attorney for advice and have the attorney decide whether it's necessary or advisable to ask the FAA based on a lot more information than is contained in this thread.

And yes, I am being obtuse and not particularly helpful with an answer because of that last part.
 
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Stewartb said:
If the lodge charges for the flights? No. If the flights are incidental to the lodge services and the pilot is commercially rated? Yes.
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Even if that were an accurate statement, "if the lodge charges for the flights" may not be easy to answer.
 
midlifeflyer said:
Maybe. Why do you think this is not a charter to bring customers to the lodge, requiring an operating certificate?
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It's the basis of an entire fly-in lodge industry in AK. Depending on how the pricing is bundled, it doesn't seem to require an operating certificate.

The lodge can't charge to transport you to their lake and they can't charge to transport your catch. They can charge for you to sleep at their place (whether they pick you up by dogsled, snow-machine or plane makes no difference to the overnight rate charged).
 
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The “Alaska Exception” notwithstanding, its illegal in the lower 48.
 
midlifeflyer said:
It will help a little with the difference between "common carriage" and "private carriage,"
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The AC was meant only to assist with this point.
midlifeflyer said:
Why do you think this is not a charter to bring customers to the lodge, requiring an operating certificate?
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FWIW: In the guidance I've read and my experience in Alaska, whether a ops certificate is required depends on if the pilot and aircraft also support services in the field (licensed guide, etc.) in addition to flying. If so then it's 91. There's also a caveat, that I don't remember, that allows the use of a pilot private certificate instead of a commercial cert but still allows for compensation to the private pilot. If the pilot and aircraft are simply moving people/cargo with no actual field work (guide work, etc.) then it becomes a 119/135 flight. If the aircraft is leased/rented then the truth in leasing guidance kicks in with ops control, etc.
 
Keep in mind it’s also FAA land with “administrative” law, if they get mad you’re going to have to prove your innocence to them.

This type of thing seems to be asking for trouble to me
 
weilke said:
It's the basis of an entire fly-in lodge industry in AK. Depending on how the pricing is bundled, it doesn't seem to require an operating certificate.

The lodge can't charge to transport you to their lake and they can't charge to transport your catch. They can charge for you to sleep at their place (whether they pick you up by dogsled, snow-machine or plane makes no difference to the overnight rate charged).
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Oh, you mean
midlifeflyer said:
based on a lot more information than is contained in this thread.
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?

There are actually a few cases which go into the details of this one. The leading one seems to be a 1995 civil penalty decision in which the lodge was found to have violated the regs with respect to one type of operation and not violated them with respect to another.

...and a FAQ which appears to have come out of the Regional Counsel's office posted the state.
 
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I would think if there is no other way to get to the lodge then yes. The plane is incidental to the lodge, example "The company picks up incidental expenses, such as food, or a guest yoga instructor for the wellness club."
 
AKBill said:
I would think if there is no other way to get to the lodge then yes. The plane is incidental to the lodge, example "The company picks up incidental expenses, such as food, or a guest yoga instructor for the wellness club."
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When an aircraft is essential, the FAA has rarely considered it to be incidental.
 
Bell206 said:
There were also several actions brought against the FAA which ended in 2000 when Congress amended Title 49. The FAA was directed to establish rules on Alaska guide pilots but I've never seen them. The only guidance I've seen came out of the FAA Regional office. However, the 49 amendment is here, Section 732:
https://www.congress.gov/106/plaws/publ181/PLAW-106publ181.pdf
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Assuming we are talking about the same Regional Counsel guidance, a lot of the content is right out of the 1995 civil penalty case.
 
Doc-me too! Arguing with the FAA is about as productive as arguing with the IRS. You might win, but the odds are not in your favor, their resources far exceed yours, and they don't have to pay any legal expenses. To borrow an old phrase from Inspector Callahan, do you feel lucky?
 
jonvcaples said:
Doc-me too! Arguing with the FAA is about as productive as arguing with the IRS. You might win, but the odds are not in your favor, their resources far exceed yours, and they don't have to pay any legal expenses. To borrow an old phrase from Inspector Callahan, do you feel lucky?
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One can argue with the FAA as long as they have facts on their side and are well versed in regulations and guidance.

The problems begin when someone decides to attempt to subvert the regulations to their favor and argue inane interpretation of the regulations.
 
DavidWhite said:
It's not common carriage. It's perfectly legal for a company to ask you to fly their airplane from X to Y.

edit: My understanding of common carriage is if someone called and said "Hey, can you fly me from A to B?" and you hopped in your airplane and took them.
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The issue isn’t the lodge asked the pilot to fly “their” airplane...it’s the lodge providing the airplane the lodge providing the airplane and pilot for its customers.
 
I know one Lodge here locally sells tickets to a Salmon bake to cruise ship passengers. They use one of the part 135 operations to fly them to the Salmon bake. Tickets are around $100 I think, flight is about 15 min each way
 
AKBill said:
I know one Lodge here locally sells tickets to a Salmon bake to cruise ship passengers. They use one of the part 135 operations to fly them to the Salmon bake. Tickets are around $100 I think, flight is about 15 min each way
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That sounds like a great deal!
 
Commercial pilot applicants: don't worry. Your DPE doesn't really know that much more about the details than you do. There are going to be exceptions, but the Q&A tend to to be pretty easy on this subject.
 
midlifeflyer said:
Assuming we are talking about the same Regional Counsel guidance, a lot of the content is right out of the 1995 civil penalty case.
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I found an internet copy (http://alaskaprohunter.org/FAA_Letter.pdf) of one of the guidance docs I remember and it's by the same counsel who offered your FAQ link above. Never ceases to amaze me how the FAA works sometimes, but the Alaska guide pilot reference has always topped my FAA WTF list.
 
It never ceases to amaze us what douchebags you guys elect to represent you in Washington.
 
Stewartb said:
If the lodge charges for the flights? No. If the flights are incidental to the lodge services and the pilot is commercially rated? Yes.
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That is exactly my interpretation as well.
 
midlifeflyer said:
There are actually a few cases which go into the details of this one. The leading one seems to be a 1995 civil penalty decision in which the lodge was found to have violated the regs with respect to one type of operation and not violated them with respect to another.

...and a FAQ which appears to have come out of the Regional Counsel's office posted the state.
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Q: What rules apply to flight operations conducted on behalf of guides or lodges in Alaska?

A: Generally, if the flight operations are conducted by the guide, lodge, or employees of the guide or lodge, and the operations are incidental to providing guide services in the field, then they may be conducted under Part 91 of the Federal Aviation Regulations and Part 119 and 135 does not apply. The pilot(s) must still comply with Part 61 and 67 and the aircraft maintained in accordance with Part 43.


Sure, there is always a way to violate the rules, but as the FAQ says GENERALLY operations incidental to the operation of the lodge are not covered by part 119. I am not sure what you are trying to disagree with here ?
 
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