Going Direct: Flight Sharing Going To The Supreme Court?

Flytenow’s model got shot down by the FAA. Not so fast, says the Internet startup.

For decades, private pilots who took along paying friends on trips have been targets for the FAA, which strictly limits a pilot’s right to collect fees from passengers. So when Flytenow started its ride-sharing business a couple of years ago, it was nothing new to the FAA. The company’s model seemed in total compliance with the FARs. So why did the FAA bring down the hammer?

It’s important to understand the nature of the problem, and to do that we need to look at two distinctly different kinds of flying: private flying (conducted under Part 91 of the FARs) and on-demand charter flying (which adheres to Part 135 of the regs). The FAA has zealously enforced Part 135, which makes sense, because when a company advertises its services to the public for air transportation, the public should expect the company doing the flying to be doing it at a high level of safety. That’s why a company flying charter needs to have its operating rules approved by the FAA and why it has to stick to those procedures, in terms of how flights are flown, how the planes are maintained and how the company is organized. It’s an extremely expensive and time-consuming process to get a Part 135 certificate, and it’s not easy to keep it current, either.

When companies don’t follow the letter of the law, the FAA will come down on them, sometimes suspending and sometimes revoking their charter certificates, levying fines, and in the most egregious cases, even recommending criminal charges against the owners.

Part 91, on the other hand, is very lightly regulated, at least in comparison. Pilots fly their own planes, fly with friends and family, and generally stay out of the hair of the FAA’s scheme to regulate flying for hire. So it’s a critical part of the FAA’s job, in its view, at least, to keep charter flying separated from private flying, because to passengers, the two operations can be indistinguishable.

So the dilemma is, how does the FAA keep private flying separate from charter operators?

Historically, they’ve done it by cracking down on private flyers who fly for hire, and to the FAA, “flying for hire” is a very specific thing. Pilots operating under the good old Part 91, can, according to the regs, only allow passengers (fellow pilots or non-pilots—the regs make no such distinction, even though we pilots might) to pay a pro-rata share of the flight expenses. So you can’t, for instance, tell a friend they can come with you on your flight from Minneapolis to Kansas City if they “pick up the fuel bill.” Without going into voluminous detail, they can only pick up a share of the direct costs, which usually includes rental costs and fuel and oil, but not any ownership costs, like hangar rent or future maintenance fees. And that share has to be equal. Oh, and everybody has to be going for the same purpose, to attend the same football game or do business downtown, to prevent the pilot from using such ride sharing as a way to build hours on the cheap. If anything about the rule were to change, this vague restriction would be the place to start, as eliminating it would have little to no impact on safety.

This is all moot, because with Flytenow’s business model, the spirit and letter of Part 91 are upheld. The only difference is the way the sharing is communicated. Why that should make a difference is beyond us, and beyond Flytenow, too. The company wants the United States Supreme Court to take a look at the case, and has filed a petition to that end. If the Court does indeed decide to hear the case, it could have repercussions not only to aviation, but to other Internet-sharing businesses, like domicile-sharing company Airbnb and car-share giant Uber, as well.

But before the court has a chance to act, Congress might just step in and amend the law itself to allow flight-sharing services like Flytenow. We’d encourage our legislators to do just that.

The underlying question, however—whether private flyers should be able to charge for giving people places in their airplanes—isn’t up for debate. That remains a Part 135 operation and subject to all the provision of those regs. And that’s as it should be.

If you want more commentary on all things aviation, go to our Going Direct blog archive.

6 thoughts on “Going Direct: Flight Sharing Going To The Supreme Court?

  1. This won’t be the last challenge – even if they lose. Uber certainly is eyeballing this as an option as well. The FAA is the rock and these other companies are in a hard place with the policy inbetween. I’m certainly not advocating for anyone with the most basic of flying skills to start flying for hire, but maybe it’s time for some type of evolution to the rule?

  2. By the current FAA regs, Flytenow COULD NOT charge any fees whatsoever for their service – they would have to be FREE – totally free of charge and not even accepting donations. The only costs would be as listed – SHARED EXPENSES EQUALLY between pilot and passengers.
    The old method was sticking a piece of paper on the FBO cork boards listing your flight to a destination and seeing if anybody was gong that way to help them out as a favor with shared expenses maybe!
    If the Supreme Court hears this case, that should be the order as listed above. Everybody knows this. When you pay for an advertisement in a newspaper looking for passengers, that does not work either as you are commercially requesting for riders unless your advertisement is listed onto a public media that takes no money and is a free service – totally free to comply with CFR14Part 91 shared ride expenses.
    Websites won’t work either as those websites are paid for in some form to a acquire the IP address which is a commercial form of advertising.
    So, the FAA is correct in their actions.

  3. The author is incorrect that under Part 91 “everybody has to be going for the same purpose, to attend the same football game or do business downtown.” FAA has interpreted “common purpose” to mean only wishing to go to the same airport on the same day, not intending to do anything together at the destination, so one could do business downtown while the other goes to a football game.

  4. How is Flytenow in compliance with Part 91 when they have a “business model” in place???? Flight sharing costs under Part 91 means no profit is made and only the costs of the flight are shared. If there is a profit made they are now under Part 135. So someone explain to me how Flytenow is going to be in “business” under Part 91 if they can’t make a profit??? This is going to turn into another free-for-all if the court doesn’t uphold the law. Our society has gotten to a point where the law means nothing and everyone wants to do whatever they want and if they don’t get what they want they can just sue and throw a tantrum. Pretty much like Hillary Clinton supporters are doing right now and the way Uber has conducted itself. Law means nothing…give us what we want even though its against the law and we want to screw everyone else out of their legally earned profit while we pay for nothing!!! Enough is enough!!! Flytenow needs to get in line with the law just like every other charter in this country and stop trying to screw them out of their profit while they’re legally conducting business. A “Business model” that breaks the law, makes a profit without having to invest anything of their own and screws those that are following the law is disgusting and has become the dismantling of America. No one wants to actually “work” for anything anymore and seem to think its ok to take from those who have.

  5. IMO, Flytenow’s business model isn’t to make money off of flying. It’s making money on creation of a marketplace that brings like-minded people together. The flying part is incidental. People are paying a fee to Flytenow to make use of that marketplace. That is why this is not (or at least should not) be under Part 135.

    The fact is, government officials hate these self-forming marketplaces because they remove superfluous middlemen from the equation — namely them.

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