Last February, we asked the FAA to confirm that our operations fit within the longstanding legal precedent permitting ride sharing because inspectors within the FAA intimidated pilots who posted on Flytenow, claiming that a mere posting amounted to a violation. In August, we were shocked when the FAA took a 180 degree turn and banned ride sharing, claiming that posting a planned flight for the purpose of identifying a common purpose would be considered “holding out” for compensation, requiring a pilot to obtain a part 119 certificate. This conclusion extinguishes what the FAA has in itself characterized as a pilot’s “traditional right”. On Monday, January 5th, 2015, we filed suit in the United States Circuit Court of Appeals for the District of Columbia to overturn the FAA’s ruling barring expense sharing. We’ve summarized our Opening Brief below.
In its ruling, the FAA upends over four decades of established legal precedent and common practice among private pilots – sharing expenses with passengers to make flights on small aircraft more accessible and cost-effective – and creates a new regulatory regime which directly contradicts the current Expense Sharing Rule. Under the FAA’s new regulatory regime, however, a pilot’s mere communication with potential passengers will be considered advertising indiscriminate air transportation services (“holding out”). As such, the FAA disregards the common purpose test, traditionally used to determine whether expense sharing constitutes compensation, and instead, declares that all expense sharing constitutes compensation. Such a misapplication of the Expense Sharing Rule is arbitrary, capricious, and cannot be reconciled with the plain language of 14 C.F.R. § 61.113(c).
We’re now left in the strange conundrum of attempting to engage in expense sharing without being able to communicate the details of a planned flight to a passenger. This is the enigma we mentioned in our previous post and what we ultimately request relief from.
We are also challenging the ruling on Constitutional grounds. Everyone, including the FAA, agrees that expense sharing among pilots is in accordance with current Federal Aviation Regulations. The only thing that has changed is the means of communication. Rather than pilots sharing their travel plans via phone, email, or a bulletin board at a regional airport, they now communicate those plans via Flytenow (the Internet). By requiring a Part 119 certificate for pilots to communicate their flight plans online, the ruling imposes an impermissible constraint on speech.
Moreover, by closing off the Internet as an avenue for speech, the FAA gives no standards whatsoever in outlining what constitutes holding out. Thus, the FAA does not specify what methods of communication are permitted and is unconstitutionally vague.
Finally, the FAA’s sweeping ruling violates the Equal Protection clause of the Fifth Amendment by treating an occasional expense sharing pilot the same as it treats commercial air carriers like American or Delta Airlines. Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike. In doing so, the ruling eliminates any meaningful distinction between private and commercial flight operations, and we’re challenging the ruling on this ground as well.
We thank you for all your support and the countless emails we have received during this process. As promised, we’ll continue to defend the right of pilots and aviation enthusiasts to share expenses. If you haven’t done so already, please sign up for updates by creating an account and subscribing to this blog. We welcome comments below. Thank you!
The Flytenow Team