FlyteNow’s Writ of Certiorari
Extremism Is Not An Effective Strategy
The notion that the FAA is anti-entrepreneurial seems to be driving a number of claims and litigation, like the appeal of Flytenow to the Supreme Court of a unanimous opinion of the DC Circuit that the FAA’s definition of common carriage is legally sustainable. The highest court in the land decided to deny the writ of certiorari; the litigation is over; there is no higher appeal. Finished; fini, terminado; законченный.As previously explained here, Cato’s Argument Against FAA “Common Carrier” Interpretation Is A Bit Of UBERkill. The learned counsel based their arguments on the historic definitions of “common carrier” and “communication.” Here are examples of those two terms illustrated in the enterprises contemporary with the briefs’ citations:
It is appropriate for legal scholars to base their arguments on historical precedents. Although the estimable figure for whom one of the Institutes in this case is named, Senator Goldwater’s aphorism that “extremism in the defense of liberty is no vice,” while it may be an appropriate goal in the general rule of governing a democracy, is not a useful rubric in the deciding of safety matters.
For these and others seeking to have an impact on the FAA’s regulatory approach, it would be well worth their time to read the FAA’s statutory authority, 49 USC § 106, et. seq. and regulatory framework, 14 CFR Parts 1-440. After having studied those documents and their history, it is self-evident that the agency’s mandate involves balancing.
In Libertarian terms, one possible policy antipode would be absolute safety: if the FAA were to not accept any risk caused by aviation to the populace, there would be ZERO flights, no accidents and no free enterprise. At the other end of this safety policy continuum, there would be no restrictions on operations, maximized free enterprise and much greater (unacceptable?) risk to Cato’s citizens.
Somewhere along that range of policy alternatives is a point of equipoise where safety and economic enterprise exist in some harmony. At that intersection of conflicting interests, the regulatory must define rules. Criteria which are capable of being comprehended by the regulated and which create an objective standard which the regulatory may fairly and consistently enforce those rules. To establish an ultimately flexible safety rule, to grant the FAA absolute discretion in determining a prospective operator’s safety capacity would be to authorize the very tyranny about which Messrs. Trenchard and Gordon railed!
Sometimes that articulation of where lawful can be defined in distinction to unlawful aviation involves a legal artifice called “arbitrary, but not capricious.” The FAA’s definition of what constitutes common carriage has been in effect for over fifty years, has been reviewed by a number of independent tribunals, has been known by Congress and has worked.
That is not to say that the Flytenow business model and the FAA rules are irreconcilable, but extremism in the pursuit of this free enterprise is not an effective stratagem.