More and more on HOLDING OUT Part 91 and Part 135

impossible to tell legal from illegal charter planeimpossible to tell legal from illegal charter plane
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FAA Issues Important Charter Guidance to Pilots and Passengers


Safe Air Charter Operations

cirrus aircraft type used by BlackBird

cirrus aircraft type used by BlackBird

“Holding out” is a necessary, but difficult legal distinction

Part 135 imposes more safety requirements and Part 91

FAA provides more guidance to understand the difference

Not that difficult to qualify for Part 135


These links signal another in a series of FAA efforts to inform consumers and to warn “gray charter operators” about the vagaries of the rules applicable to flights in which passenger pays pilot in “general aviation aircraft.” The differences between a legal and illegal flight in this specific band of transactions are very, very complicated – requiring a sophisticated aviation lawyer to distinguish prohibited from permissive operations. Furthermore, the rationale between them is incomprehensible to most.

Some thoughts:

The safety rationale–

The FAA has a structure of regulations that match level of safety strictures with the degree to which the traveling public has access to the operator. The highest two standards, 14 CFR Parts 121 and 135, are differentiated by the size of the aircraft while their “franchises” to sell to passengers are unlimited as to the scheduled airlines with large aircraft and the availability of the commuter carriers is determined by the short haul nature of their flights. Within the Part 135 rules is a category called “charter”, which allows them to sell to anyone on an “on demand basis.” Those lines are relatively obvious to consumers and easy for the FAA to enforce.

E.G. “Pilots who transport paying passengers must have the required qualifications and training, are subject to random drug and alcohol testing, and the aircraft used must be maintained to the high standards that the FAA’s charter regulations require.”

Part 91 usually involves owners who operate their own aircraft. The rules permit “cost sharing” in very prescribed circumstances. This category does not include many of the burdens or safety requirements of Part 135.  That said, the lesser standard is not necessarily UNSAFE, but analytically such flights can be LESS SAFE.


blackbird logo




This iteration was catalyzed by a new “form of contact between prospective passenger and pilot” by a company called Blackbird Air created a web-based application to connect passengers with pilots who would be paid for trips directly by their passengers. More details:

“Blackbird viewed themselves as, “not a direct air carrier and as an air operator [that] provides air transportation. Blackbird is an online marketplace and may act as an agent or air charter broker when facilitating flights.” Operating under Part 91 absolved Blackbird, as least from the company’s standpoint, from the need to oversee the qualifications of the pilots, as well as the maintenance of the aircraft with which they were connecting passengers.

Blackbird saw passengers as essentially responsible for all aspects of the flight, including determining the appropriateness of both the pilot and the aircraft used. One source Flying spoke with said Blackbird told pilots they’d be covered by the aircraft owner’s insurance, policies often not written to cover commercial operations. Insurance industry experts did not believe a loss would be covered by the open pilot warranty of an aircraft owner’s policy.

Although operating under Part 91, Blackbird did demand the pilots that listed themselves in the company database possess at least a commercial pilot certificate, the minimum needed to fly passengers for compensation or hire. Though Blackbird seemed to be operating in a gray area somewhere between Part 91 and Part 135, many commercial pilots on the west coast signed up with the company viewing the relationship as a way to log flight time and make extra cash.”

The FAA investigated Blackbird, closely monitored its practices, but concluded on December 17, that

The information that BlackBird has presented leads us to conclude that the pilots participating in BlackBird’s platform and using its app are holding out and thus are engaged in common carriage. This conclusion does not apply to individual commercial pilots who are legally operating the flights for operators authorized to conduct operations under 14 C.F.R. part 135, or pilots who are legally operating under 14 C.F.R. §91.501.1

There is no more obtuse FAA regulatory term than “HOLDING OUT”. It is an economic term being used for safety regulation, but the lawfulness of this standard was upheld in FLYTENOW, INC., PETITIONER v. FEDERAL AVIATION ADMINISTRATION, ADMINISTRATOR, RESPONDENT.

That said, the FAA had to issue all of the following to help consumers and pilots distinguish the legal from the legal:

Important charter guidance for pilots and passengers (PDF)

FAA letter discussing applicable flight sharing regulations (PDF)

FAA legal interpretation on peer-to-peer flight sharing (PDF)

U.S. Court of Appeals decision on FAA’s flight-sharing interpretation (PDF)

information and resources to help passengers ensure the company they hire is legitimate.

National Air Transportation Association (NATA)’s Air Charter Safety Foundation

The following are red flags that indicate a company may not be a legitimate operator:

If the company provides the aircraft and at least one crewmember, yet attempts to transfer operational control to a consumer via any document.

A lack of Federal Excise Tax charged to the consumer. Legitimate operators have to charge this. If the price is too good to be true, it probably is.

A lack of a safety briefing or passenger briefing cards.

Any evasiveness to questions or concerns. Legitimate operators should be transparent and helpful.

If the pilot or someone associated with the company coaches passengers on what to say or do if an FAA aviation inspector meets the aircraft at its destination.

Legal/licensed air charter operators (MS Excel)

FAA Advisory Circular, AC 91-37B (PDF).

FAA Licensed Operators and the Tail Numbers of the Aircraft they
(MS Excel)

FAA Flight Standards District Offices

Air Charter Safety Foundation’s Illegal Charter Hotline at:

Phone: 1-888-SKY-FLT1 or 1-888-759-3581

. The FAA formed a Special Emphasis Investigations Team to investigate complex cases


If you suspect illegal air charter operations, report it (anonymously if preferred) to the Air Charter Safety Foundation’s Illegal Charter Hotline at:

Phone: 1-888-SKY-FLT1 or 1-888-759-3581


Some more thoughts on this issue:

Red Flags For Charter Consumers

Shedding Light On The Gray Market By NBAA

Some Ideas About How To Stop Illegal Part 91Charters

Cato’s Argument Against FAA “Common Carrier” Interpretation Is A Bit Of UBERkill


This is an important rule and requires an inordinate amount of FAA effort to effectively enforce. SIMPLE SOLUTION: APPLY FOR A PART 135 OPS SPECS ; it is not that difficult and eliminates the likelihood of Special Emphasis Investigations Team visiting your offices!!!


aircraft with figurative "red flags"

aircraft with figurative “red flags”


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