FlyteNow is an innovative entrepreneur which seeks to bring the benefits of Uber and Car2Go models to general aviation. While such entrepreneurship is commendable and could stimulate the sale/operation of general aviation planes, its legal case runs afoul of considerable FAA precedent and will likely be denied upon appeal.
Aviation is about Freedom; an airplane provides the ultimate instrument for movement. Those vehicles also have the capacity to inflict damage on persons and property. For that reason, Congress decided that concerns about the safety of flight constitute a greater public good than the freedom of flying. To determine the precise metes and bounds where the interests of safety prevail over the movement of an aircraft, Congress created, in 1938, a federal agency which exercises delegated authority to make such judgments as to who can fly, where he/she can fly, in what pilots may fly and what compensation (if any) is appropriate based on the qualifications of the operator.
The petitioner’s brief was written by a pro bono institute established to “defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all fifty states.” The Goldwater Institute boasts a “perfect win rate in the United States Supreme Court, and a 70 percent victory rate on average.”
As stated in its website, counsel argued that “Flytenow’s business model is based on a common and long-standing practice among private pilots – sharing expenses with their passengers to make flights on small aircraft more accessible and cost-effective.” It failed to note that the quote reflects an exception to the standards of Parts 61 and 91. The general rule there and part 119 is that the safety standards increase as the plane operator offers her/his services to the general public, a pretty clear definition of the public interest.
The general rule that differentiates Part 91 flights from Parts 121 and 135 is that the operator under the less restrictive rules may not OFFER services for COMPENSATION OR HIRE. That more pervasive, prescriptive standard looks to whether the operator HOLDS OUT to the general public.
A Part 91 pilot is excepted from that pervasive standard 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; no amount of insisting that equity demands another outcome will overrule the law in a US Court of Appeals.
Rather than litigate against substantial precedent in the name of “entrepreneurship,” counsel might provide more productive work by either trying to restructure FlyteNow’s business model to comply with the FARs or go to a forum which holds new jobs and economic growth as high priorities, the Congress. The Members delegated to the FAA the authority to regulate aviation and create safety standards; they may revise the rules promulgated by the FAA to fit FlyteNow within the FAA’s balance between economics and safety.
No FlyteNow uber alles.
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