Early Request for an FAA Legal Opinion about Planesharing is Sagacious

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The nascent Planesharing industry has taken the right first step by initiating a request for an opinion (see the below article). Going to the agency early in the process is certainly preferred by the FAA. How the agency responds, particularly what further legal/economic limitations need to be imposed, will be most interesting.

Creative legal structures can result in greater aviation activity, increased aircraft sales, improved finances and most importantly greater safety margins. Innovation, which tests the existing regulatory constraints, tends to perplex both the operational FAA personnel and the agency’s lawyers. It is an area if inquiry which challenges this safety organization; these definitions involve more economic than engineering dimensions.

About 30 years ago, the founders of NetJets added the concept of “fractional ownership” and the FAA fumbled for almost 10 years before it defined what is permitted under Part 91 and what was not. The policy choices were somewhat limited because the government watched while the idea of multiple owners of an aircraft with cross agreements to use other airplanes EXPLODED. To have attempted to roll back the practices of a large and well organized industry would have been difficult. The FAA would have had to attack the premises of whether fractionals involved “holding out” or “compensation or hire”, complex legal questions and that controversy would have been “politicized” very quickly if the Chief Counsel/Flight Standards organization would have tried to roll back some of their legal elements.

More contemporaneously, the FAA is struggling to maintain its traditional legal boundaries with regard to the burgeoning UAS industry. Part of the problem derives from the fact that the business of drones is already deeply embedded, especially in real estate aerial photography. The UAV/UAS/drone/RC/model aircraft sector has grown slowly and without much regulatory intrusion. The forecasts for the future all point to near term, exponential growth. The directions assumed by some of the innovators and the historic FAA legal constraints portend some clashes.

AirPooler’s counsel Rebecca MacPherson has started the regulatory process well, bringing the FAA’s attention to this new form of structuring Part 91 relationships before it has become a rampant form of flying. Not surprisingly, the former FAA Assistant Chief Counsel spotted the key issues from her thorough research—offering and then cancelling Planeshare flights, listing too many flights and efforts to skirt the Part 135 limits. What elements of the Planesharing APP will require regulation and/or additional information will be telling.

The basic and critical premise on which this proposal is based is that the transaction is not a holding out to the general public, one of the tests which differentiates this type of flying (Part 91) from the commercial Parts 125 and 135. The rationale is that all of the people responding to such a Planeshare offer are already pilots, who can and will make reciprocal flight sharing offers. What must the Planeshare offeror do to assure that his/her offer is received only by pilots? What must the offeror do prior to accepting the response; how does the offeror check the credentials of the offeree? Does the offeror have to determine whether the offeree CAN later reciprocate? Does the offeree have to “join” the APP by submitting her/his license information, aircraft availability/type and committing to some future offer through the APP?

The average Part 91 pilot is knowledgeable about the skills and experience of her/his fellow pilots. It is likely that the information shared by Planeshare Apps will include detailed listings of the offeror pilot’s ratings (VFR/IFR/SEL/MEL, etc.), hours (particularly in the airplane to be flown), training, etc. What disclosure of such facts about the aircraft will be required by the FAA—the plane’s ownership, who is responsible for its maintenance and details of its airworthiness (engine and airframe cycles, last major overhaul, etc.) and equipage (type of engine, avionics, navigation systems, etc.)? Where will the FAA place the responsibility (if any) for determining the validity of such information—the APP service and/or the offeror?

Weather is a primary factor in Part 91 operations. The pilot/offeror has the right to determine what conditions are acceptable. Can the offeree decline to fly after the Planeshare has been legally accepted, but before the flight’s planned departure? Does such a WX cancellation count against Ms. MacPherson’s above mentioned offer-and-cancel limit or must the offeror fly after the offeree refuses based on weather?

A series of questions might come from the offeree’ s insurance broker as to the policies held by the offeror and attached to the aircraft. Is the offeror required to include the dollar coverage of his/her personal policy and the aircraft’s?

This form of flying holds great potential and the article does a good job of listing its perceived benefits. Planesharing could be an economic boost to GA aircraft comparable to what the Fractional industry has been to larger turbo’s and jets. Ms. MacPherson has set the legal stage well. Whether the FAA follows her forecast of accepting the concept is a fairly safe bet, but what sorts of delimiters the regulators impose is a big unknown. Equally relevant will be how the personal life and aircraft liability insurance markets respond.

This is a legal trail to follow; if the turns are positive, the GA industry may receive a BIG stimulus.

ARTICLE: The FAA Is Deciding If Planesharing Apps Are Legal

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