recent legal interpretations by the FAA’s chief counsel deal with the time-honored privilege of a private pilot—and a commercial and ATP pilot while exercising only private pilot privileges—to conduct a shared-expense flight. News reports that the interpretations rejected expansion of the privilege to take advantage of current technology raised concern. The good news is that a careful reading reaffirms the privilege as I explained it a few years ago (“Pilot Counsel: Shared Expense Flights,” December 2011 AOPA Pilot).
Part 61 of the Federal Aviation Regulations generally prohibits a private pilot from carrying passengers for compensation or hire. This prohibition contains an exception that allows a private pilot to receive a pro rata reimbursement from his or her passengers limited to fuel, oil, airport expenses, or rental fees, so long as the pilot and his or her passengers share a “bona fide common purpose” for conducting the flight.
A prior FAA chief counsel interpretation explains a common purpose. A pilot and his wife are flying from Raleigh, North Carolina, to Long Island, New York, in their Piper Arrow to attend a wedding. The pilot asked the FAA whether he may advertise on Facebook the specific time and date of travel in order to carry two additional passengers to share expenses. The pilot receives a response from two friends who want to go along to attend a baseball game. Is attending a baseball game a common purpose? Some believe that the common purpose must be the same purpose. The good news is that the FAA is more liberal in this interpretation. A common purpose does not necessarily need to be the same purpose, but the purpose must not be merely to transport the passengers. “The existence of a bona fide common purpose is determined on a case-by-case basis. Based on these facts there appears to be a bona fide common purpose, as the destination was dictated by the pilot, not the passengers, and both you and your passengers have personal business to conduct on Long Island. The purpose of this flight is not merely to transport your passengers to Long Island.”
This earlier interpretation also dealt with advertising on Facebook. “Holding out” is commonly understood to be a communication to the public, or a segment of the public, that transportation services are indiscriminately available to any person with whom contact is made. So, the Facebook post could be “holding out,” says the interpretation, if the post “expresses a willingness to provide transportation for all within this class or segment to the extent of its capacity.” Notice that the interpretation does not say that a post on Facebook is absolutely barred. Rather, it suggests that a post on Facebook could be OK if it is somehow limited to less than a whole class or segment of the class, as in this case, to “friends/family/acquaintances,” some affinity that takes it out of offering transportation to all comers.
Now to the two recent interpretations. One involves “a peer-to-peer general aviation flight sharing company that has developed an Internet-based discovery platform that allows private pilots to offer available space on flights that they are intending to take.” On the face of it, it sounds like a good idea. But according to the FAA, “by posting specific flights to the [company] website, a pilot participating in the [company] service would be holding out to transport persons or property from place to place for compensation or hire,” essentially “common carriage” not allowed under the shared-expense exception. Contrast this with the limited “friends” Facebook offering discussed above.
The plan in the second interpretation is that pilots and aviation enthusiasts would apply for membership to a website that is “only available to pilots who ensure that they intend to conduct private operations.” Upon enrollment, members have access to an isolated, non-public network. The network allows pilots to post an “aviation adventure” with a specific date and time and the points of operation. A member may select an “aviation adventure” for which he or she has a bona fide common purpose, and request to participate. The pilot may accept or reject the request. If accepted, the pilot may accept a pro rata reimbursement from his or her passengers. The FAA didn’t like this plan either. “Based on your description, the website is designed to attract a broad segment of the public interested in transportation by air.”
So, the good news is that the time-honored shared-expense exception continues to be available, but the flight may not be offered to too broad an audience.
John S. Yodice provides legal counsel for AOPA members through the Pilot Protection Services plan.