Flytenow Sues FAA to Overturn Ride Sharing Ban

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
24 responses
A posthaven user upvoted this post.
I just visited and and they still have pilots actively listing their flights or their availability to fly. How can the FAA regulate what you put on the Internet? Your site certainly has a global appeal and I see you offer membership to people outside the USA. Why not just automate the entire thing and move the server outside the USA?
In accordance with 14 C.F.R. § 61.113 and §61.117, compensation or hire is specifically prohibited. As per the same FAR, making aircraft space available information available to the public is not specifically prohibited. The Freedom of Information Act could be applied to this problem. Currently, there are no regulations or laws preventing general aviation operators from volunteering t flight information in any media including websites. Therefore, “…in the best interests of the United States Government and the general public…” and in unwavering support of the Freedom of Information Act, it is a general aviation operator’s civic duty to publish this information in order to make it available to the public. Flytenow should change the website to “The General Aviation Operators Freedom of Information Act Database”. This “public service” website would be an “educational tool” for non-operators. The front page of the site should include 14 C.F.R. § 61.113 and §61.117. On the site, general aviation operators could choose to post the flight information including aircraft seating charts, number of passengers on the flight and contact information. This information could be available to general public for use as they see fit.
I think the problem is that Flytenow is trying to make money off the entire thing. You are dealing with airplane owners, pilots and general members of the public and nobody is making money at this and yet Flytenow wants to make a profit? This site could easily be run off of donations or advertisements. Flytenow should change your business model to allow direct interaction between users and take yourself out of the middle and then figure out another way to make money. Relaunching despite the authoritarian meddling of the FA would also be a great way to generate publicity and build up your advertising value. Facebook doesn't charge their users and they're worth how much?
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