A conservative taxpayer advocacy group, Americans for Tax Reform (ATR), published the below laudatory press release in support of a proposal to compel the FAA to authorize GA pilots to solicit “passengers” for Part 91 flights. It reports that Congressman Mark Sanford (R-S.C.) has offered an amendment to the FAA Reauthorization bill to bring the innovation of the Uber model to aviation. While the proposal reflects support for a new form of aviation, the language of the section will open the traveling public to a lesser standard of safety.
The author castigates the FAA for its blocking this “revolutionizing” aviation venture based on a digital platform for finding passengers seeking the desired destination. The person posting this critique has published many attacks of municipal and state efforts to regulate car sharing. Without any visible aviation safety or FAR credentials, he concludes:
“The practice of pilots sharing expenses with travelers is an age old tradition. A pilot posts on a bulletin board saying they have open seats and anyone willing to share the cost of gas, food and drinks is welcome to climb on board. Pilots are not required to have a commercial license because they are simply splitting costs, not flying for profit.”
That’s an extraordinarily definitive conclusion, especially since it does not even acknowledge any safety or regulatory considerations which will occur with the expansion of the ability of GA pilots to “find” riders.
Aviation SAFETY policy, under the Constitution, may be established by Congress, translated into specific regulations by the FAA and refined by US Courts on review. Rep. Sanford, more likely his staff with help from lawyers for one of the Planesharing companies, has drafted a new statutory standard concerning this Uber concept by air. There may be significant economic demand for this new type of flying; the policy implications should be considered by an Aviation Rulemaking Committee (to avoid the erratic definition of fractional ownership), but the amendment offered by the Representative may lessen the FAA’s ability to assure safety for the “traveling” public.
The proponents of Planesharing challenged the FAA’s determination that a digital solicitation, like the Uber APP, would constitute “holding out.” That phrase is the most salient legal test requiring that the pilot have a commercial license, measure of proficiency, and the airplane meet the higher level of standards for carrying the general public. Congress established a hierarchy of protection for air travelers and companies which may attract anyone to fly must meet those more exacting safety criteria.
A Part 91 pilot is exempted from the pervasive prohibition against any compensation, ONLY when he or she shares expenses with another pilot WITHOUT HOLDING OUT. The critical premise to Flytenow’s operation is the existence of an online listing that is “accessible to any member of the public who applies to become a Flytenow ‘member,’ and thus the ‘holding out’ requirement of common carriage is satisfied.” The general rule precludes reliance on the exception.
The Petitioners in Flytenow, Inc. v. FAA argued that the sharing expenses exception should allow their Uber approach, but Circuit Judge Pillard ruled in favor of the FAA’s regulatory regime on every element of the Petitioner’s arguments.
The Sanford amendment attempts to reverse this decision upholding the FAA’s position with a blunt object instead of a scalpel. The relevant text is as follows:
“…shall issue or revise regulations to ensure that a person who holds a private pilot certificate may communicate with the public, in any manner the person determines appropriate, to facilitate a covered flight.
covered flight means an aircraft flight for which the pilot and passengers share operating expenses in accordance with section 61.113(c) of title 14, Code of Federal Regulations.”
This effort to reverse almost 80 years of FAA interpretation of safety rules will devastate its ability to regulate safety and to protect the public. Under this change to the statute, any pilot will be able to place an advertisement of any sort to find passengers to fly with a pilot with less than commercial qualifications on a plane with lower airworthiness standards. The legal basis of this change to the standard of holding out may impact the FAA’s application of this criterion to other differentiation between commercial and less-than-that flights.
It should also be noted that the Stanford amendment ignores the other distinction which the Flytenow program proposed—membership. Having responded to whatever solicitation, the air Uber model would have included the requirement that the individual, drawn from the general public, would have to “join.” Theoretically, that introduction would have explained the level of pilot competence and the quality of the plane. Membership would have added an advantage of assuring that the consumer was making a conscious decision about the level of safety. The Congressman’s terse, not particularly exquisitely drafted, text will not add to the protection of his constituents.
Economic freedom is a positive goal of conservatives, but it has bounds. The FAA should not be forced to denigrate its safety standards for entrepreneurial reasons. Particularly, when there might be more surgical language, this blunt object approach should be rejected.