As of April 8, 2015, we filed the last of the legal briefs to be submitted to the Court before oral arguments are scheduled and a ruling from the Court is issued. We urge you to take a look at our reply brief, but below is a summary of the FAA’s position and our reply.
Throughout its brief (and throughout this entire process), the FAA continues its attempt to hammer a square peg into a round hole, applying an incongruent regulatory framework (i.e. “common carriage”) to the activities of expense-sharing pilots.
In its brief, the FAA made two arguments about why Flytenow pilots must receive Part 119 certification reserved for common carriers (i.e., airlines, buses, taxicabs, passenger trains, cruise ships, and the like). First, by sharing expenses with their passengers, Flytenow pilots are receiving “compensation” as common carriers. Second, by using the Internet to communicate travel plans on Flytenow’s exclusive website, Flytenow pilots are indiscriminately “holding out” transportation services as common carriers. Both of these arguments miss the mark.
Firstly, if the FAA’s interpretation of Flytenow pilots as common carriers is correct, then Flytenow pilots would be the only common carriers in history to not seek commercial profit from their operations. As we have pointed out, the term “common carriage” is well-known and understood by the courts, and refers to a commercial transportation enterprise that is willing to take all comers who are willing to pay a fare, without refusal. A commercial enterprise is a business pursuit for livelihood or profit. Our argument is that Flytenow pilots are not, and by definition cannot, be engaged in a commercial enterprise (and hence, common carriage) because there is no profit or ability to earn a livelihood by participating on Flytenow; rather, a pilot can only defray a portion of their operating expenses.
Conversely, the FAA argues that whether or not a commercial enterprise exists is “wholly inapplicable” because expense-sharing, as an exception to compensation, is itself compensation. The FAA holds this position despite the fact that the preamble to the Expense-Sharing Rule resolved the issue conclusively, stating, “[O]ne or more passengers contribut[ing] to the actual operating expenses of a flight is not considered the carriage of persons for compensation or hire.” We referenced the FAA’s analytical contortion in our previous post, Missed Approach: FAA Says Flytenow Go-around, and are confident that the Court will see through this line of thinking because a determination that an exception to a definition is the same as the definition would undermine the regulatory scheme set out not only in the Expense-Sharing Rule, but also any other regulatory scheme to which this logic is applied.
Next, common carriage requires that a common carrier must accept paying passengers, without refusal. This requirement of a common carrier stands in stark contrast to Flytenow, where pilots can accept or reject a passenger’s request to join a flight for any reason, and at any time. As such, pilots on Flytenow have exactly zero indicia of engaging in and providing common carriage. The FAA disagrees, stating, “Flytenow pilots and other common carriers share the relevant trait of holding themselves out to the public.” Even if pilots communicating their personal travel plans shared relevant traits with common carriers, which they do not, the FAA ignores all the other traits that expense-sharing pilots and common carriers do not share (e.g., see above). By the FAA’s logic, elephants, snakes and ropes should be treated the same because elephants have rope-like tails and snakes have rope-like bodies.
Secondly, the FAA contends that by posting their personal travel plans on an exclusive website, Flytenow pilots are “holding out” transportation services that are “indiscriminately available” to the public. To support this argument, the FAA claims that “there is no indication that Flytenow ever denies membership to a prospective passenger.” While this is simply false (see our Terms of Service, “Either You or We may terminate Your participation in the Flytenow Platform by removing Your information at any time, for any reason or no reason, without explanation . . . .”), the argument still falls short because ‘holding out’ prohibits only indiscriminate offers of air transportation and, in contrast, Flytenow pilots only communicate discriminate offers. More directly, even if Flytenow’s website was entirely open to the public, which it is not, the FAA’s argument still fails because a pilot’s communication of his personal travel plans is not indiscriminately available, but rather, is discriminately available because the pilot controls the flight and directs when and where he is traveling, as well as who is traveling with him at any time. This is also fully consistent with the common purpose rule – a flight is by definition only discriminately available if pilots and passengers have a common purpose, and a private pilot has his or her own reason for traveling to the destination.
Next, the FAA makes perhaps the most astonishing argument by seeming to assert that only “friends and acquaintances” may share expenses under the Expense-Sharing Rule, while “strangers” may not. This assertion is completely arbitrary and unsupported by the plain language of 14 C.F.R. § 61.113(c), decades of precedent, and the record in this case. Nothing in either the language of the Expense-Sharing Rule or the regulatory history of that provision even remotely suggests that individuals must have a preexisting friendship or relationship in order to share flight expenses. This “affinity” distinction also raises several questions, namely:
Is it true that two Flytenow members could use Flytenow’s communications platform to share expenses if they had a preexisting relationship, while members who had no such relationship would be prohibited from doing so?
Will the FAA now be responsible for determining whether or not people are “friends or acquaintances” when they share expenses?
Interestingly, in its brief the FAA squarely reaffirmed the Ware interpretation which found it permissible to post flight details on a school bulletin board and stated “if you plan to go to St. Louis for the weekend, there would be nothing wrong with your advertising on the school bulletin board for other students to accompany you in order to defray your costs.” Which begs the question: If the FAA now mandates friendship in order for two people to share expenses, why did the FAA embrace the Ware interpretation? The answer, of course, is that the FAA’s new affinity requirement is arbitrary, capricious, and plainly not in accordance with the governing regulations or decades of the FAA’s own legal interpretations.
Finally, the FAA argued that the Court is “barred” from considering Flytenow’s “constitutional claims” (see our previous post for more detail) because they were not raised in our initial Request for Interpretation. The legal precept of barring an argument for not raising it at a prior occasion is known as “exhaustion”, and as used by the FAA, is a blatant attempt to deflect the meritorious constitutional claims through procedural means. First, the FAA was on notice of the constitutional arguments in our Request for Interpretation. Second, even if they were not on notice, the FAA Ruling banning expense-sharing is itself the event that implicated constitutionally protected speech, giving rise to the claims. Third, “exhaustion” typically applies when there are extensive administrative processes, not as we have here, a single letter ruling. Fourth, the constitutional arguments are properly before the Court, because, as the Supreme Court aptly stated, “Constitutional questions obviously are unsuited to resolution in administrative hearing procedures (viz., an FAA Letter Ruling) and, therefore, access to the courts is essential to the decision of such questions.” While the FAA may have administrative expertise with federal aviation matters, Flytenow’s constitutional claims are properly considered by the Court, not an administrative agency unequipped and unable to resolve constitutional concerns.
We look forward to providing an update on oral arguments when they are scheduled. In the meantime, if you are a pilot, an aviation enthusiast, or are interested in the development of ridesharing in aviation, please sign up for updates by creating an account at flytenow.com or subscribing to this blog.
The Flytenow Team