§91.501 (d) is a safety rule defined by an economic partition
Definition protects consumers and can be enforced
Sen. Lee’s digital definition would not be enforceable
Senator Lee, good conservative libertarian, has reintroduced two bills to facilitate Air BNB or Flight Sharing. The well-drafted (staff and/or the Goldwater Institute) legislation which carefully crafts new definitions for “common carrier” and “private operator to bring the FAA into a digital age of commerce. As he describes his bill, it would:
- Codify a definition of a “common carrier” based on the FAA’s own internal regulatory definition.
- Reverse the FAA’s ban on online flight-sharing by allowing private pilots to communicate with the public through the internet, or in any manner they deem appropriate.
- Create a “personal operator” category of pilot who may fly 8 or fewer passengers for compensation and not be deemed a “common carrier”.
The frustration of the Senior Senator of Utah and the constituencies that he is representing is with an “economic” partition promulgated by a safety agency. He and the Goldwater Institute justify this change by the opening of GA to this Air BNB opportunity, lower costs to consumers and greater innovation. Goldwater Institute’s General Counsel, Jon Riches, further elaborates on their collective rationale:
“Internet-based flight-sharing complies with all existing general aviation safety standards,” and contended, “Moreover, because pilots and passengers have more information about one another than they otherwise would, it is safer than flight-sharing as it exists today offline.”
The precise language is correct, but fails to note that GA’s safety record is significantly below other forms of air transportation. Mr. Riches’ choice of word, sub silento, acknowledges that existing Part 91 operators are “flight sharing” beyond 14 CFR2]. Not recognized is that this limitation is intended to distinguish levels of safety.
Part 91 was established to allow persons who operate their aircraft greater flexibility in their flying. The exception in §91.501 (d) was intended to provide AN ENFORCEABLE standard for the FAA to distinguish between GA flying and common carriage. The point of DETECTION is HOLDING OUT– a practice which a regulator can detect without marketplace omniscience. The Lee Flight Sharing proposal would make the enforcement of this safety delimiter impossible to detect and thus there would be no safety protection for the ordinary consumer.
As NATA explained, the GAO study found that there is little opposition to the existing §91.501 (d), except those intending to offer Aviation BNB services. The Lee proposals would expand this “gray market” and in so doing reduce the safety offered to these new digital consumers.
by Kerry Lynch
– April 20, 2021, 10:21 AM
U.S. Sen. Mike Lee (R-Utah) is continuing his push to facilitate flight-sharing, introducing two new bills that, among other things, would create a “personal operator” category to enable pilots to fly eight or fewer passengers for compensation without operating as part of a common carrier.
The bills, the Aviation Empowerment Act and the Flight Sharing Freedom Act, are designed to foster innovation and correct oversights surrounding limits on a private pilot’s ability to coordinate flights via the Internet and receive compensation for the transport of persons or property, said Lee, who has pushed to open the door for flight-sharing for several years. Further, since the FAA has not defined common carrier, it has broad authority on its regulatory implementation, he said.
Thus, the Aviation Empowerment Act would define common carrier as a “service provided by a person that meets the following elements: holding out of a willingness to transport persons or property from place to place for compensation, and without refusal [⇓] unless authorized by law.” However, the bill also specifies that the term compensation “does not include flights in which the pilot and passengers share aircraft operating expenses or the pilot receives any benefit.”
It further defines “personal operator” as a “person providing air transportation of persons or property for compensation or hire in aircraft that have eight or fewer seats, provided that the person holds a private pilot certificate…A personal operator or a flight operated by a personal operator does not constitute a common carrier.”
The bill directs the FAA to revise regulations to enable pilots to “communicate with the public, in any manner the person determines appropriate, to facilitate an aircraft flight for which the pilot and passengers share aircraft operating expenses.” In addition, the bill further calls for the creation of the personal operator category and that person “shall not be subject to the requirements set forth in part 121, 125, or 135.”
As a companion to the Aviation Empowerment Act, the Flight Sharing Freedom Act contains the same stipulations surrounding definitions of common carrier and the ability of pilots to communicate about flights and share expenses but stops short of creating the personal operator.
Lee previously introduced an “Aviation Empowerment Act” in 2018, calling for the FAA to ensure pilots can communicate with the public in any way they deem appropriate to facilitate a flight in which the pilots and passengers share operating expenses. The bill had added that “such flight-sharing operations…shall not be deemed a common carrier.”
A year later he had co-authored an opinion piece in the Washington Post expressing the belief that flight-sharing could make private flying an affordable option for millions. This push was met with staunch opposition from groups such as the National Air Transportation Association, which feared it would open the door for illegal charter and compromise safety.
Lee’s earlier push culminated in a compromise congressional directive for the FAA to release guidance on what was and was not permissible as part of flight-sharing. The agency released that guidance last year.
That guidance, AC 61-142, provides that “pilots may share operating expenses with passengers on a pro-rata basis when those expenses involve only fuel, oil, airport expenditures, or rental fees.” But it specifies that private pilots who wish to share expenses may not “hold out” to the public as willing to offer transportation services.
Think tank Goldwater Institute, a major backer of flight-sharing, strongly endorsed the Lee bills. Jon Riches, director of national litigation at the Goldwater Institute who co-authored the Washington Post opinion piece with Lee and who has represented flight-sharing startup FlyteNow, said, “Internet-based flight-sharing complies with all existing general aviation safety standards,” and contended, “Moreover, because pilots and passengers have more information about one another than they otherwise would, it is safer than flight-sharing as it exists today offline.”
Riches further noted that sharing-economy technologies from Uber to Airbnb are “upending every industry” but that the “The predictable result for general aviation has been less innovation, higher costs, and fewer choices for consumers. It’s time for the FAA to catch up to the digital age,” he said.
 Charges for fuel, oil, lubricants, and other additives. Charges for travel expenses of the crew, including food, lodging and ground transportation. Hangar and tie-down costs away from the aircraft’s base of operation. Charges for insurance obtained for a specific flight.
 As suggested by the Cover graphic, the average consumer would not be able to ask all of the questions about the pilot, safety record, plane’s MX status, difficulty of the offered flight (i.e., mountains), navigational and weather equipment on board, etc. Even if such a checklist existed, the pilot bears no regulatory burden to answer the questions; even honest answers are filled with technical jargon; highly unlikely that the conversation would be recorded and found in the event of an accident. The consumer’s first real opportunity to assess the risk would be at takeoff—almost a point of NO RETURN!!!
 The Government Accountability Office recently conducted a study of the issue and the FAA guidance, finding most stakeholdeI’llrs saw benefits of expense-sharing, including that it could encourage pilots to fly more and help potentially expand the pool of future pilots. But the response to the FAA guidance was more mixed, with eight stakeholders, including six of seven professional organizations, expressing safety concerns about the implementation of internet-based programs. Meanwhile, another seven organizations, four of which were representatives from companies with expense-sharing programs, disagreed with the FAA’s approach in the guidance, saying the FAA should permit the internet-based programs
[⇓] There is absolutely NO WAY that the FAA could surveil all Flight-Sharing “personal operators” ever refused to carry a passenger.
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