by Paul Cianciolo, FAA Safety Briefing
It seems like a simple concept — tap a button, get a ride. That’s the basic premise for transportation network companies like Uber, Lyft, or Juno. With technology these days, the act of hailing down a taxi for a ride might seem somewhat old-fashioned.
Our on-demand economy demands innovation and speed. The “Uberization” of basic services like vacation house rentals, food delivery, laundry, housekeeping, and handyman work — to name a few — is bombarding the market. But what about Uber for airplanes, drones, or even flying cars? Let’s take a look.
Ground Rules
When we are talking about an application, or app, that supports ground transportation, or any other service on the ground, local and state laws usually apply first. For example, you register your car and get your driver’s license in your state of residence. The federal government doesn’t get involved unless you need to transport more than eight people. There are exceptions, but you get the picture: state law regulates private ground transportation. If you don’t like the laws in that state, you can always move to another state.
However, once you leave the “surface of the earth” anywhere in the United States, with anything that can sustain flight, you fall under the federal rules of the National Airspace System (NAS). In the air, you have a certificate to fly. That certificate is regulated by the federal government. On the ground, you have a license to drive, and that is regulated by your state of residence. Given these differences, you can begin to see how applying ridesharing technology is quite different on the ground than in the air.
Rules of the Sky
Our airspace is regulated by the federal government. Depending on how high or fast you fly, an accident that occurs in the air also poses a greater risk to people and property on the ground. For this reason, the U.S. Congress charges the FAA with the ability to regulate nearly every aspect of private and commercial flight, including certification and regulation of pilots and their operations, to promote the “safe flight of civil aircraft” under Title 49 of the United States Code (USC).
Even at the federal level, not everything has the same meaning, e.g., the term “flight school” can mean an individual flight instructor according to Transportation Security Administration (TSA) rules versus FAA’s definition of a flight, or pilot, school being certificated under Title 14 Code of Federal Regulations (14 CFR) part 141. For additional clarity in these areas, check out the FAA’s legal interpretations and chief counsel’s opinions that are published online. You can keyword search the database on FAA’s website at 1.usa.gov/2bc4IdC.
That said, the FAA is not against using technology to make it easier to share a ride on a GA aircraft. In fact, companies like Gotham Air and FlyOtto are already making an impact through operations that comply with FAA regulations.
For an airman, a commercial pilot certificate is essential to the money-making status, which is a step up from that of a recreational, sport, or private pilot. A commercial pilot certificate is an added level of safety in the NAS. You must be 18 years of age, have more in-depth aeronautical knowledge and skill, and have logged at least 250 hours of flight time in an airplane, 150 hours in a helicopter or gyroplane, or 35 hours in a hot air balloon. See 14 CFR part 61 for specific requirements.
Having that commercial pilot certificate, however, does not authorize an airman to become a commercial operator. Generally, if you’re being compensated for providing a service to another person and have “operational control” of the aircraft that the service is provided with, you’re going to have to be issued a 14 CFR part 119 certificate to conduct that operation under 14 CFR part 135 (or part 121 or 125 if larger aircraft or more complex operations are involved).
“In most instances where compensation is provided, the FAA has determined that this level of safety can only be achieved when the operation is conducted by at least a commercial pilot flying under the provisions of an operating certificate,” explains Paul Greer, an attorney in the FAA’s Office of the Chief Counsel. “The public has an expectation that both the pilot and the operator will meet a standard of competence and provide a level of safety higher than that provided by a private pilot operating solely under the general operating requirements of part 91.”
Exceptions to the Rule
Under certain circumstances, a commercial pilot can conduct some commercial-type flights without the issuance of an operating certificate. These exceptions are limited and apply to activities such as flight instruction; certain types of sightseeing flights; aerial work like crop dusting, seeding, spraying, or bird chasing; banner towing; aerial photography or survey; firefighting; helicopter operations in construction or repair work (but not transportation to and from the site); and power line or pipeline patrol. Exceptions also include emergency mail service contracted by the U.S. Postal Service conducted under 49 USC section 41906 after a disaster; or small UAS operations conducted under 14 CFR part 107. See 14 CFR section 119.1 for a complete list.
Under certain circumstances, a sport, recreational, or private pilot can receive some compensation from passengers for a flight. The sticky wicket is that a pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees. The cost cannot be paid indirectly either if that value would exceed the proportional share of the flight expenses, e.g., your passenger buying you a fancy dinner or use of their beach house. Future goodwill obtained from providing a flight has been considered compensation; see Blakey v. Murray, NTSB Order No. EA-5061 (Oct. 28, 2003). And you cannot receive reimbursement for shared expenses from anyone other than your passengers, such as your employer.
If you split expenses to fly as a sport, recreational, or private pilot, there must be a common purpose. The sole purpose of the flight cannot be to simply transport your passengers. If you do, it would be considered holding out as a common carrier, which is explained in Advisory Circular 120-12A, Private Carriage Versus Common Carriage of Persons or Property (http://bit.ly/2cg4sWD). There are four elements in defining a common carrier: (1) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation. This common law definition in an aviation context has been upheld by the courts in 1993 and again in 2015. Holding out can be as simple as posting a notice on a publicly accessible community bulletin board or as blatant as advertising your flight through a ridesharing app for private pilots.
Some start-up companies have tried to apply ground-based logic to provide a web-based service through which private pilots could offer their planned itineraries to passengers willing to share the pilots’ expenses. However, this type of operation is by all aviation-related definitions simply flying as a common carrier. Companies that want to be a technology partner and give the public access to open charter seats can do so legally under current FAA regulations. This type of innovation can reduce idle time and expand utilization of GA aircraft when maintained under 14 CFR part 135.
The FAA has a responsibility to ensure safety in the air and to protect people and property on the ground. And you, as a pilot, have a shared duty to be a responsible user in the NAS. It’s okay to want to be compensated for doing what you love — flying! You must ensure that you, your aircraft, and your operation are properly certificated before clicking the first “accept” button on your new skysharing app.
Paul Cianciolo is an assistant editor and the social media lead for FAA Safety Briefing. He is a U.S. Air Force veteran, and a rated aircrew member and public affairs officer with Civil Air Patrol.
This article was originally published in the November/December 2016 issue of FAA Safety Briefing magazine.
Credits:
Photo courtesy of FlyOtto