Sharemysky.org

[gismo]

As I read the original post, this particular website is handling the money between passenger and pilot -- maybe even taking a cut? I'm pretty sure the FAA would not approve of that and would have jurisdiction to do something to the website operator.

If the website is indeed collecting a "fare" from a potential passenger, taking a "cut" and paying the rest to the pilot I completely agree that the FAA might take a dim view.

OTOH if the website operator simply charges a "fee" for allowing a pilot to post his available seats on a planned trip I don't see the website's involvement as having any bearing on the legality of the cost sharing.

Seems to me it pretty much all hinges on whether the FAA sees a "common purpose" to any such flight and like anything else there are shades of grey involved.

Three examples:

1) A pilot is planning a flight with his wife and daughter from his home base to an airport near their vacation lake home on a specific date. His plane can easily accommodate an additional 200lb passenger and 30 lbs of baggage. He advertizes his plans along with an estimated cost share amount equal to 1/4 the expected cost of fuel.

2) A pilot makes a weekly commute from home base to an airport in another state where he maintains a business that he attends to during the week. He posts that he has one or two seats available leaving the home base every Monday morning and returning Friday evening and any pax will pay their pro-rata share up to a maximum of $150 per flight.

3) Another pilot posts that he intends to fly from KABC to KXYZ sometime in the next two weeks, exact time and date to be negotiated with an expected cost of $100 if there are two passengers or $150 for only one. The pilot makes the flight to examine a boat offered for sale near KXYZ that he's interested in purchasing.

Assuming each posting results in a "cost sharing" passenger or two, what specifically would be illegal in each case?

And aside from the slightly lowered likelihood that the FAA would ever find out about each flight, what difference would it make if there were no postings on a ride sharing website and the pilot and passengers were introduced by a mutual friend?

 

[timwinters]

If the website is indeed collecting a "fare" from a potential passenger, taking a "cut" and paying the rest to the pilot I completely agree that the FAA might take a dim view.

The FAA specifically addressed this in the letter attached earlier (by dtuuri) and they said that it is not an issue as long as the pilot doesn't receive MORE the his fare share. His receiving less is not a problem.

They also provided a specific answers on the common purpose question and gave it a green light.

What they left hanging was the "holding out" question. They danced around it even though a specific question was asked. This tells me that they have an issue with it...

All simply my interpretation of the letter, of course...others may have a different take.

 

[Bonchie]

Doesn't matter. The term "profit" cannot be found in any of the regulations involved, only "air transportation for hire or compensation" with no requirement for profit before the regulation is violated, and no minimum value for the compensation. There is a specific exception for certain kinds of flights for non-profit events in 91.146, but these flights involving transportation from Point A to Point B don't fit that regulation.

You are making an assumption the website is taking a cut and is in violation. You don't know that. That's what I'm saying. I wasn't trying to say they'd be exempt because they are a non-profit. I was suggesting that as a non-profit, they may not be collecting money on these flights but could be supporting themselves some other way. Donations, website ads, membership fees, whatever.

And yes, I think if they were in violation they've of been busted by now along with some of the pilot's posting. These sites aren't new.

 

[poadeleted20]

You are making an assumption the website is taking a cut and is in violation. You don't know that.

You're right, and I said that right from the start. But if they are, then the issue of profit is irrelevant. All that is required to complete the offense is the exchange of air transportation in return for something of value without the proper FAA authorization. In fact, I'm not sure that the web site would be out of the legal woods even if they passed 100% on to the pilot as long as the are facilitating the exchange of air transportation for compensation between pilot and passenger.

This is different than the PayPal example in the interpretation discussed above because PayPal is no more than a conduit for the funds ex post facto. One would certainly not say the bank on which the passenger's check is drawn is part of the deal if payment were by check, nor the US Government if the payment were by $100 bills. In this case, it appears from the description that the web site is connecting the two, taking the money from one, and giving it to the other, possibly even before the flight. If that is all correct, I can see the FAA Chief Counsel finding a violation of the regulations even if the site itself doesn't take a cut.

 

[Bonchie]

You're right, and I said that right from the start. But if they are, then the issue of profit is irrelevant. All that is required to complete the offense is the exchange of air transportation in return for something of value without the proper FAA authorization.

Which is why I think they'd of been confronted by now if they were doing something illegal. This wouldn't be some random pilot breaking a reg who needs a sit down. It'd be a business operating and profiting as an illegal carrier with many multiple's of flights and mountains of evidence in plain view. I think the FAA would get involved if that was what was going on.

 

[poadeleted20]

Which is why I think they'd of been confronted by now if they were doing something illegal. This wouldn't be some random pilot breaking a reg who needs a sit down. It'd be a business operating and profiting as an illegal carrier with many multiple's of flights and mountains of evidence in plain view. I think the FAA would get involved if that was what was going on.

Not unless someone complains with a specific example -- and that won't be me, because I won't get involved. But that still doesn't change whether or not it's illegal, just whether or not they get caught. In that sense, it's no different than speeding on US50 between Annapolis and Ocean City in Maryland. Drive it at the 55mph limit, and you'll be passed by every other car on that road. Every one of them is violating the law, but only those who do that "something special" to attract the attention of the Maryland State Troopers will actually be charged with a violation. While many pilots using this site (and possibly the site operators themselves) may be violating the rules, until someone does something to attract the FAA's attention, neither this site nor those pilots who use it will face actual FAA enforcement action.

But that still doesn't change the fact that it's illegal for a Private Pilot to provide air transportation for compensation/hire by using this site to collect money from passengers on flights without "common purpose" as the FAA defines that term. Beyond that, it's your ticket and your decision -- I'm just trying to make sure you understand what those rules are so you know what's legal and what isn't.

 

[Bonchie]

Well, I've got no plans to use such sites, but hopefully those that do are above board.

 

[poadeleted20]

Well, I've got no plans to use such sites, but hopefully those that do are above board.

One can only hope. But more than that, I hope everyone here is wise enough not to do anything that might capture the FAA's attention in a negative way. My observation of this issue over the last 40-some years is with the exception of poor Peter Derkazarian (who did everything possible to stay within the rules, was unwittingly burned by a deceitful third party, and was eventually exonerated albeit at great legal expense) that those who get in trouble generally had to work at it.

 

[Brad Z]

Here's the deal: if you're providing strangers with transportation for money (even if it's only pro rata share), there's a high likelihood you're in violation of the rules.

On a somewhat related note, there are aome serious concerns I'd have about these arrangements: what happens if things don't go to plan? What if the pilot finds a bad mag on the island after the last ferry has left on a busy weekend? Get-there-itis is bad enough when it's your family and friends, but what about stranding a paying customer who could give you a one star review? Outside of Alaska, most people who aren't pilots don't understand the limitations of GA.

Most of the angel flight organizations have upped their standards and sops following crashes. I suspect it would only take one crash before the lawyers and the faa eat the ride share website provider for lunch.

 

[mvoska]

Hey everyone, I'm Matt - Co-Founder of Flytenow.

First off, we're certainly not using ignorance as an excuse to operate. I'm a private pilot myself and am not interested in getting anyone's certificate revoked/suspended/etc; including my own. We've looked at the FARs, previous Chief Council Interpretations, and had our legal advisor, Greg Winton (former FAA attorney) analyze the way we operate (note - we haven't paid him in money or stock to give us a thumbs up, he's a relative of a friend of ours who wants to make sure we're doing things properly.)

Common Purpose
We ensure common purpose by making the pilot post first on our site. Sure we can't stop someone from posting a flight where they are just seeing if people sign up or try to make money off it by putting in false prices, but a pilot can do that with or without a website. In the same fashion, a pilot can say "I'm going here on this date whether you're coming or not, but if you'd like to come with, I have an extra seat and we can split the cost" That's perfectly allowed as long as it is the genuine sharing of costs per 14 CFR 61.113(a)-(d).

"Holding Out"
With respect to holding out, the FAA has found that “holding out is accomplished when one communicates to the public, or a segment of the public, that transportation services are indiscriminately available to any person with whom contact is made.” See Legal interpretation to Mark Haberkorn from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations (October 4, 2011). When a pilot creates an adventure on Flytenow, their post does not communicate that transportation services are indiscriminately available because only an enthusiast with a common purpose may join the flight, and the pilot may decline an enthusiast’s request for any or no reason, at any time. Therefore, a willingness or reputation to transport all within a class is not established.

Moreover, the applicability of 14 C.F.R. 119.5(k) (“holding out”) to a pilot sharing expenses under 14 C.F.R 61.113(c) is unsubstantiated, as Part 119 applies only to:

“each person operating or intending to operate civil aircraft—
(1) As an air carrier or commercial operator, or both, in air commerce; or
(2) When common carriage is not involved, in operations of U.S.-registered civil airplanes with a seat configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more.” .

Both of Part 119’s applicability elements are likely not met by Flytenow’s pilot-members.

Happy to answer any questions

 

[acrophile]

Hi Matt. Calling passengers "enthusiasts", and pointing out that pilots have the option to refuse specific passengers, does not credibly distinguish Flytenow listings from "holding out". An unlicensed carrier could not successfully deflect the FAA by using such terminology or by occasionally turning passengers down.

But despite the weakness of that particular argument, I think your legality conclusion remains valid, because you're right that according to the regs, ACs, and FAA interpretations, the "holding out" rules only apply to carriers, and pilots whose passengers share a bona fide common purpose are not acting as carriers.

 

[dtuuri]

Hey everyone, I'm Matt - Co-Founder of Flytenow.

Both of Part 119’s applicability elements are likely not met by Flytenow’s pilot-members.

Happy to answer any questions

Welcome to the forum Matt. I bet you've been following this thread with with more than a little interest.

As only a website owner who has done at least a little due diligence, you probably don't have a lot to fear in the near future. Not because what you do is perfectly within the intention of the rules, but because the rules are behind the times, in my opinion.

You may or may not know that there is a class of charter broker known as an "indirect air carrier" which requires DOT authorization. They broker transportation between passengers and pilots too. The pilots work for other carriers which also require authorization from the DOT as well as the FAA. Those "indirect carriers" buy and resell seats aboard licensed operators. Right now, for small planes, such authority isn't required. I do not see a material distinction between the services rendered though. According to this white paper by the NBAA, one of the things DOT enforcement notices have indicated is that for all charter brokers:

"It is incumbent upon the broker to exercise due diligence to ensure he or she is arranging the charter service that is advertised. For example, if the broker is acting as an agent of customer, the broker must ensure it is, in fact, placing customers on licensed direct air carriers."​

The paper also states that there is a process underway to bring small aircraft into the scope of 'indirect air carrier' operations as well. I can only imagine that if some tragedy involving a flight arranged through your website should occur, it would put that effort on a fast track. In the meantime the question is an ethical one, "Are you arranging transportation for a segment of the general public aboard uncertified air carriers?" Personally, I suspect so.

dtuuri

 

[acrophile]

there is a class of charter broker known as an "indirect air carrier" which requires DOT authorization. [...] Right now, for small planes, such authority isn't required. I do not see a material distinction between the services rendered though.

To count as an indirect carrier, don't you have to act as a broker for someone who is in fact acting as a carrier? If so, the material distinction here is that for sites like Flytenow, no one is acting as a carrier in the first place (because of the common-purpose requirement), so the brokering site is not brokering for carriers.

 

[LDJones]

As I read the original post, this particular website is handling the money between passenger and pilot -- maybe even taking a cut? I'm pretty sure the FAA would not approve of that and would have jurisdiction to do something to the website operator.

The FAA has no jurisdiction over the website operator. The "cut" only means the pilot is letting passenger off with less than a pro-rata share, strengthening his argument that it was not "for hire".

Panties are getting wadded up here for no reason.

 

[LDJones]

Here's the deal: if you're providing strangers with transportation for money (even if it's only pro rata share), there's a high likelihood you're in violation of the rules.

How long do you need to know someone before they're no longer a "stranger"? If you commute from A to B every week and someone introduces you to a third person who also makes that commute, how long would you have to know them to offer them a ride?

 

[dtuuri]

To count as an indirect carrier, don't you have to act as a broker for someone who is in fact acting as a carrier?

Indirect air carriers, I think, put together big groups of people going to the same place, like Las Vegas, aboard various air carriers, like United. So, they're really being a broker for the passengers and price shopping on the their behalf. I must admit though, any kind of broker, to me, be it real estate, aircraft or charter flights, really only represent their own best interests, since they make nothing unless a sale is consummated.

If so, the material distinction here is that for sites like Flytenow, no one is acting as a carrier in the first place (because of the common-purpose requirement), so the brokering site is not brokering for carriers.

The way I see it is the site puts passengers (buyers) together with air-transporters (sellers), so it's a brokering service. There are standards for brokering services, including due-dilgence to make sure the carrier is safe. That could be as simple as ensuring the carrier is certified.

dtuuri

 

[acrophile]

The way I see it is the site puts passengers (buyers) together with air-transporters (sellers), so it's a brokering service

I agree that it's a brokering service. But the question is whether it's a brokering service for carriers. If not, I don't think the "indirect air carrier" designation applies; an indirect carrier is a broker for an actual carrier.

So the key question is still whether or not a pilot is acting as a carrier by transporting a cost-sharing passenger when there's a legitimate common purpose. I still haven't seen anything in the regs, ACs, or FAA letters to suggest carriership in that situation.

 

[Brad Z]

How long do you need to know someone before they're no longer a "stranger"? If you commute from A to B every week and someone introduces you to a third person who also makes that commute, how long would you have to know them to offer them a ride?

I've given lots of strangers rides; I've never charged them for the privilege. As to when a person goes from stranger to not stranger, that's up to you.

 

[mvoska]

Calling passengers "enthusiasts", and pointing out that pilots have the option to refuse specific passengers, does not credibly distinguish Flytenow listings from "holding out".

Agreed. We did that more to distinguish ourselves for the non-pilot enthusiasts so they wouldn't think of it as a charter or airline operation.

You may or may not know that there is a class of charter broker known as an "indirect air carrier" which requires DOT authorization.

Yes! This was actually something that our legal advisor had mentioned to us. I've heard it referred to as the two phone call rule as well where if a passenger pays for a pilot and a plane from one place (with one call) than that would run afoul under those circumstances. The difference here is that the pilot isn't making any money, there would be common purpose (under proper use), and it wouldn't be indiscriminate air transportation services, so it's no longer a charter broker operation but the genuine sharing of costs using our platform as somewhat of a PayPal.

How long do you need to know someone before they're no longer a "stranger"?

The Legal interpretation to Mark Haberkorn from Rebecca B. MacPherson is where I saw this first mentioned. It says that a "payment through PayPal may suggest that there is an interest in carrying passengers with whom there is no previous personal relationship and that the offer to accept passengers is being made to the general public" No where in the FARs state that you must have a previous relationship with someone to split the costs of flying. So it doesn't matter whether they are a stranger or not. The FAA just says if they are a stranger than it looks more like indiscriminate air transportation services open to the public.
Also, we let you view the enthusiasts Facebook and/or LinkedIn before you accept or deny them on your flight. While I wouldn't call that a "previous relationship" you do at least get to know a little bit about the person before you even meet them at the airport. The nice thing about the way we market our service is that you get people who are excited to go flying and excited by the adventure of it, not people just looking to get to the destination, asking "are we there yet".

 

[poadeleted20]

The FAA has no jurisdiction over the website operator. The "cut" only means the pilot is letting passenger off with less than a pro-rats share, strengthening his argument that it was to "for hire".

They do if the web site sells air transportation, collects the fare from the passenger, and pays a third party to provide the flight. Not saying that is what is happening here, but it is possible.

 

[dtuuri]

Yes! This was actually something that our legal advisor had mentioned to us. I've heard it referred to as the two phone call rule as well where if a passenger pays for a pilot and a plane from one place (with one call) than that would run afoul under those circumstances.

I don't think the "two phone call rule" has anything to do with "indirect air carriers". I'd have to see how somebody makes that connection.

The "www" in your web address stands for "World Wide Web". To me, and I believe the FAA, that shows an intention to link the general public with air transportation. Those are folks who don't know the pilot. Folks who have no way to judge whether the operation would be safe or not. Innocent folks. You can forget about "common purpose", IMO, because the investigation won't need to go that far. You or your pilots are "holding out", ergo, engaging in "common carriage". The pilots you recruit to conduct transportation are at more risk than you from the FAA's standpoint, but that might change soon.

Here's something to think about though. Suppose you required your "enthusiasts" to prove they all have a pilot's license? Might your argument have a lot more weight? Or not.

dtuuri

 

[LDJones]

I've given lots of strangers rides; I've never charged them for the privilege. As to when a person goes from stranger to not stranger, that's up to you.

Which you're welcome to do....and they could have contributed their pro rata share and it would have been fine.

 

[flyingron]

They claim to be a non-profit.

Matters not. Most of the airlines haven't made a profit for a while

Even if you were to establish a carrier as a non-profit, you still have to comply with the regulations. The issue isn't that you are making a profit but that you are holding out air service to the public.

 

[Bonchie]

Matters not. Most of the airlines haven't made a profit for a while

Even if you were to establish a carrier as a non-profit, you still have to comply with the regulations. The issue isn't that you are making a profit but that you are holding out air service to the public.

I know. I explained in a subsequent post what I was getting at. I realize being a non-profit doesn't exempt them from regulations.

 

[hook_dupin]

Supposedly, the FAA is debating the legality of internet private pilot ride sharing:

http://techcrunch.com/2014/07/08/planesharing/?utm_campaign=fb&ncid=fb

Realistically, I see the same nebulous "The platform is legal, but advertised operations may not be" response as already discussed in this thread.

 

[timwinters]

AirPooler‘s attorney Rebecca MacPherson, who is highly qualified to comment since she was the former FAA assistant chief counsel,

That's an interesting tidbit.

 

[dtuuri]

That's an interesting tidbit.

Ironic too. She's the one who signed the Mangiamele interpretation which is more restrictive than what the rule actually states. Goes to show ya, "There's no honor amongst lawyers or thieves."

dtuuri

 

[Henning]

They claim to be a non-profit.

Just because you run a non profit, doesn't mean you can't draw a salary. If you set your salary as all the income beyond expenses, then you have a non profit, the company's books sum zero.

 

[hook_dupin]

Ironic too. She's the one who signed the Mangiamele interpretation which is more restrictive than what the rule actually states. Goes to show ya, "There's no honor amongst lawyers or thieves."

dtuuri

One of the interesting things about the FAA and enforcement actions is that since the FAA rarely takes enforcement actions, these opinions don't hardly ever get challenged at the NTSB level.

In other legal spheres, individuals will often violate a government opinion with the expressed intent of challenging that opinion in court. Who wants risk his pilot's license that way? As a result, I see the FAA as taking a very wide stance on issues.

 

[gismo]

One of the interesting things about the FAA and enforcement actions is that since the FAA rarely takes enforcement actions, these opinions don't hardly ever get challenged at the NTSB level.

In other legal spheres, individuals will often violate a government opinion with the expressed intent of challenging that opinion in court. Who wants risk his pilot's license that way? As a result, I see the FAA as taking a very wide stance on issues.

Does a pilot have to be the target of an enforcement action to have standing when challenging a FAA interpretation?

If not, maybe we should set up a crowd-sourcing system to fund some good legal battles over this kind of nonsense. I'd bet we could raise a big enough chunk of cash to entice a good lawyer to challenge Mangiamele,

 

[poadeleted20]

Ironic too. She's the one who signed the Mangiamele interpretation which is more restrictive than what the rule actually states. Goes to show ya, "There's no honor amongst lawyers or thieves."

Indeed.

 

[Palmpilot]

Does a pilot have to be the target of an enforcement action to have standing when challenging a FAA interpretation?

If not, maybe we should set up a crowd-sourcing system to fund some good legal battles over this kind of nonsense. I'd bet we could raise a big enough chunk of cash to entice a good lawyer to challenge Mangiamele,

Chief Counsel interpretations are opinions, and I don't think the courts are in the business of telling people they can't express opinions.