Chart courtesy of Nice Air Aviation

FAA Informational Letter to Pilots

5-22-2020

The FAA recognizes that there is a trend in the industry towards using computer and cell phone applications to facilitate air transportation by connecting potential passengers to aircraft owners and pilots willing to provide professional services. Some of these applications enable the provision – directly or indirectly – of both an aircraft and one or more crewmembers to customers seeking air transportation.

This letter serves as a reminder to all pilots that, as a general rule, pursuant to 14 CFR (commonly known by industry as the Federal Aviation Regulations FARs) private pilots may neither act as pilot-in-command (PIC) of an aircraft for compensation or hire nor act as a PIC of an aircraft carrying persons or property for compensation or hire. Furthermore, to engage in air transportation a pilot must hold a commercial or airline transport pilot license and must operate the flights in accordance with the requirements that apply to the specific operation conducted (e.g., Part 135). To meet the operational requirements, the pilots must be employed (as a direct employee or agent) by the certificate holder with operational control of the flight (e.g., a Part 135 certificate holder) or must herself or himself hold a certificate issued under 14 C.F.R. Part 119.

Another common pitfall to be aware of is the “sham dry lease” or the “wet lease in disguise.” This situation occurs when one or more parties act in concert to provide an aircraft and at least one crewmember to a potential passenger. One could see this, for example, when the passenger enters into two independent contracts with the party that provides the aircraft and the pilot. One could also see this when two or more parties agree to provide a bundle (e.g., when the lessor of the aircraft conditions the lease – whether directly or indirectly – to entering into a professional services agreement with a specific pilot or group of pilots. This type of scenario is further discussed in Advisory Circular (AC) 91-37B, Truth in Leasing.

• Whenever you pilot an aircraft subject to a dry-lease agreement (a dry lease is an aircraft leased with no crew), you should consider the following: Is it truly a dry-lease agreement whereby the lessee, in practice and agreement, has operational control in accordance with AC 91-37B and the FARs? If not, then flights operated under this agreement may be illegal charters and you, the pilot, may be in violation of the FARs for those flight operations.
• Are you as the pilot also providing the aircraft involved in the dry-lease? If so, you may be in violation of the FARs for those flight operations if you do not have the appropriate operational authority to conduct the flights (e.g., a Part 135 certificate.) 

An additional caution to consider is flight-sharing. Section 61.113(c) of Title 14 of the CFR allows for private pilots to share certain expenses. Pilots may share operating expenses with passengers on a pro rata basis when those expenses involve only fuel, oil, airport expenditures, or rental fees. To properly conduct an expense sharing flight under 61.113(c), the pilot and passengers must have a common purpose and the pilot cannot hold out as offering services to the public. The “common-purpose test” anticipates that the pilot and expense-sharing passengers share a “bona fide common purpose” for their travel and the pilot has chosen the destination.

Communications with passengers for a common-purpose flight are restricted to a defined and limited audience to avoid the “holding out” element of common carriage. For example, advertising in any form (word of mouth, website, reputation, etc.) raises the question of “holding-out.” Note that, while a pilot exercising private pilot privileges may share expenses with passengers within the constraints of § 61.113(c), the pilot cannot conduct any commercial operation under Part 119 or the less stringent operating rules of Part 91 (e.g., aerial work operations, crop dusting, banner towing, ferry or training flights, or other commercial operations excluded from the certification requirements of Part 119).

For more information on sharing flight expenses, common purpose, and holding out see:

• AC 61-142, Sharing Aircraft Operating Expenses in Accordance with 14 CFR 61.113(c)
• AC 120-12A, Private Carriage vs. Common Carriage of Persons or Property
• FlyteNow, Inc. vs. Federal Aviation Administration, 808 F.3d 882 (D.C. Cir. 2015)

Unauthorized 135 operations continue to be a problem nationwide, putting the flying public in danger, diluting safety in the national airspace system, and undercutting the business of legitimate operators. If you have questions regarding dry-lease agreements or sharing expenses, please review the FARs and ACs. Additionally, you may contact your local Flight Standards District Office for assistance or seek the advice of a qualified aviation attorney.

Important Charter Guidance for Pilots and Passengers
Notice Number: NOTC9901 dated 12-19-2019

Today, booking a charter flight can be as easy as tapping a few buttons on your mobile device. But that doesn’t mean the flight is legal or safe.

The FAA’s top priority is ensuring the safety of the traveling public, and it’s critical that both pilots and passengers confirm that the charter flights they’re providing and receiving comply with all applicable Federal Aviation Regulations.

If you pay for a charter flight, you are entitled to a higher level of safety than is required from a free flight from a friend. Among other things, pilots who transport paying passengers must have the required qualifications and training, are subject to random drug and alcohol testing, and the aircraft used must be maintained to the high standards that the FAA’s charter regulations require.

The FAA recently sent a letter about this issue to a company called Blackbird Air that created a web-based application that connects passengers with pilots. The letter emphasizes an FAA policy about the requirements for pilots who are paid to fly passengers. The policy states that pilots who are paid to fly passengers generally can’t just hold the required Commercial or Airline Transport pilot license – they also must be employed by the company operating the flight, which must hold a certificate issued under Part 119 of the Federal Aviation Regulations. Or the pilots must themselves hold a Part 119 certificate.

Any pilot who provides charter flights without complying with the Part 119 certificate requirement would be violating the Federal Aviation Regulations – even if they possess a Commercial or Airline Transport Pilot license. The FAA’s determination has been upheld in federal court.

A current listing of FAA-licensed charter providers is available here.

Q&A

Q: I have a Commercial/Airline Transport Pilot license. Why can’t I simply sign up on a web-based app as a pilot for hire and get paid to fly passengers?

A: The FAA has determined that pilots who participate in a for-hire service are holding themselves out as providers of common carriage. As such, they must be employed by the company operating the flight that holds a certificate issued under Part 119 of the Federal Aviation Regulations or must themselves hold a certificate issued under Part 119. The FAA expects to issue additional written guidance on this issue soon. Pilots who have questions about the legality of a planned operation should contact their local FAA Flight Standards District Office.

Q: I’m a pilot who has conducted flights through Blackbird but I don’t work for a Part 119 certificate holder nor do I have a Part 119 certificate. What’s going to happen to me?

A: At this time, the FAA is reminding pilots and alerting passengers about the requirement that Commercial pilots and Airline Transport Pilots must also conduct charter flights under proper Part 119 certification. The FAA does not plan to take enforcement action against pilots who have conducted prior flights using the Blackbird app without a Part 119 certificate. However, any pilot who doesn’t meet these requirements and conducts for-hire flights going forward could face enforcement action from the FAA.

Q: I was a passenger who paid for a charter flight through Blackbird and the flight was not operated under a Part 119 certificate. Do I face any sanctions?

A: At this time, the FAA does not plan to assess sanctions against any passenger who paid for any such flight. We note, however, that if a passenger accepts operational control over a flight, which means accepting responsibility for the safety of the flight and that it complies with all applicable regulations, that passenger may be responsible for any regulatory violation related to the flight.  This could include violations related to the failure to comply with part 119 certification requirements. The FAA strongly encourages passengers to ensure their charter flights meet all applicable regulations.

Q: Is the FAA saying that all flights conducted through Blackbird could potentially violate the Federal Aviation Regulations?

A: No. Flights piloted by properly certificated pilots who are conducting the flight for companies that hold Part 119 certificates, or flights flown by pilots who themselves hold a Part 119 certificate, may comply with the Federal Aviation Regulations.

Q: As a passenger, what should I look for when making arrangements for a charter flight? How can I know if my flight is legal?

A: A current list of FAA-certificated charter providers is available here.

Pilot certificate information is available here.

Passengers also should ask the pilot if their specific flight is conducted under a Part 119 certificate.

Q: When did the FAA determine that pilots who sign up with on-line for-hire services are holding themselves out as engaged in common carriage requiring a Part 119 certificate?

A: This has been the FAA’s longstanding policy consistent with the regulations that govern common carriage operations. The FAA issued determinations in 2014 to companies called Flytenow and Air Pooler that apply this longstanding policy to web-based initiatives. Blackbird’s platform is similar to those companies’ platforms.

Q: When was the court ruling that upheld the FAA’s determination?

A: In 2015, the United States Court of Appeals for the District of Columbia Circuit upheld the FAA’s determination in the case Flytenow, Inc. v Federal Aviation Administration.