Need to get a biennial flight review in your RV-7 from your buddy who’s a CFI? Good luck. Even if your friend were to provide the instruction for free, they couldn’t do it without first getting a Letter of Deviation Authority (LODA) from the FAA, without which the flight, paid or unpaid, would be in violation of the FARs. At least that’s the FAA’s current take on flight training in certain categories of aircraft.
Facing the ire of member organizations industry-wide, the FAA, in defending its about-face on its interpretation of flight instruction in Limited, Primary and Experimental Category aircraft, has declared that instructors who volunteer to offer instruction in these aircraft are by definition earning compensation. Knowing that the opinion flips the meaning of “volunteer” on its head, the agency says that volunteer instructors are being compensated by expected work or payment in other forms or, and this is the kicker, by the goodwill they build with the people they’re instructing for free.
News of the FAA’s semantic contortion was shared by the Aircraft Owners and Pilots Association (AOPA), which had vehemently protested the agency’s flip-flop on the nature of instructors’ role in providing training in these aircraft. This followed a ruling earlier this year by a Federal judge that instructors were offering commercial services in the plane, in essence, acting as the operator of an aircraft that the FAA has, for many decades, viewed as being operated by the owner or controlling entity of the aircraft.
Further adding to the overreach is the FAA’s claim that compensation occurs even when a third party benefits.
In an article detailing the continuing revelation of the FAA’s about-face on training, AOPA General Counsel Justine Harrison wrote, “Last week FAA prosecutors quoted an Advisory Circular (61-142) defining ‘compensation’ as the receipt of anything of value that is contingent on the pilot operating the aircraft… [it] does not require a profit, profit motive, or actual payment of funds. … accumulation of flight time and goodwill in the form of expected future economic benefits can be considered compensation. Furthermore, the pilot does not have to be the party receiving the compensation; compensation occurs even if a third party receives a benefit as a result of the flight.”
AOPA President Mark Baker gave some context to the situation, saying “The FAA can’t have it both ways while claiming it is clarifying the situation. This is contrary to the FAA’s mission and obligation to promote safe flight.”
We’ll keep you apprised, but in the meantime, be aware that AOPA is warning its members that the FAA is actively prosecuting instructors who seemed to be circumventing the requirement for them to get a LODA by offering instruction for free. Unless the rule is overturned or the FAA changes its tune, offering training without a LODA, even if it’s free, is a legally risky tactic.