On February 12th, 2014, Flytenow submitted an official FAA Chief Counsel request for legal interpretation of its services. The FAA's self-imposed deadline to respond to our request was June 18th, 2014.
In lieu of a formal deliberation from the FAA, Flytenow offers the following interpretation of the FAR's in consultation with Gregory Winton of the Aviation Law Firm for general information purposes only:
Shared Expenses & Common Purpose - 14 C.F.R. 61.113(c)
Flytenow is a service used by pilots who intend to engage in the genuine sharing of expenses. 14 C.F.R. 61.113(c) “allows a private pilot to receive pro rata reimbursement from his passengers for fuel, oil, airport expenditures, or rental fees, so long as the pilot and his passengers share a bona fide common purpose for conducting the flight.” See Legal interpretation to Mark Haberkorn from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations.
According to the FAA, “the ability of pilots to list flights with no specificity as to date or points of operation would appear to ignore the common purpose requirement, however, and raise concern about the potential holding out an offer of air transportation in violation of §119.5(k)” See Legal interpretation to Ron Levy from Loretta E. Alkalay, Eastern Region Regional Counsel.
Flytenow facilitates common purpose because pilots (not enthusiasts) unilaterally dictate the points of operation, date, time, and purpose of an adventure, and an enthusiast subsequently expresses shared interest in a pilot’s specific adventure by requesting to join it. The pilot may accept or reject an enthusiast’s request for any or no reason, and at any time.
Holding Out - 14 C.F.R. 119.5(k)
'Holding out' is accomplished when one communicates to the public, or a segment of the public, that transportation services are indiscriminately available to any person with whom contact is made.” See Legal interpretation to Mark Haberkorn from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations (emphasis added).
'Holding out' does not apply when a pilot and an enthusiast share common purpose because holding out is a defining characteristic of common carriage, transporting persons or property from place to place for compensation (See Advisory Circular 120-12A) - not the sharing of expenses under 14 C.F.R 61.113(c).
Still, even if ‘holding out’ did apply, a pilot's adventure on Flytenow does not communicate that transportation services are indiscriminately available because pilots unilaterally dictate the destination and purpose of their flight and may decline an enthusiast’s request to join them for any or no reason. Therefore, a willingness or reputation to transport all within a class is not established.
Finally, the 'holding out' provision is found in Part 119, in which the Applicability section states:
“This part applies to each person operating or intending to operate civil aircraft—
(1) As an air carrier or commercial operator, or both, in air commerce; or
(2) When common carriage is not involved, in operations of U.S.-registered civil airplanes with a seat configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more.” (emphasis added).
For the reasons stated above, Part 119’s first applicability element is not met. Secondly, Flytenow does not allow airplanes with a seat configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more. However, if we become aware of any abuses, we reserve the right to ban members indefinitely.
We hope this clears up any concerns. We will continue to operate, allowing pilots to share the thrill of aviation and giving enthusiasts easier access to the world of private aviation.
Please send any questions to firstname.lastname@example.org.