FAA investigating BlackBird air transportation digital service

BlackBird, which has received media attention as an “Uber-for-planes startup,” was created by media and business development executive Rudd Davis in 2016, asserting online that it “helps you fly over traffic by connecting you with pilots and planes, bringing you true freedom of flight.” In March, Forbes reported that BlackBird had received $10 million in Silicon Valley venture capital in its quest to put an end to many travelers’ road trips.

Describing itself as an online marketplace—not a flight operator—BlackBird says pilots who join its database must meet safety standards; hold an “FAA Commercial Certificate”; have more than 500 flight hours; undergo a background check; and have an airman medical certificate, an instrument rating, and “aircraft currency.”

The FAA dismissed that picture in a December 17 letter sent to BlackBird’s attorney and posted to the agency’s Twitter feed.

“We have little trouble concluding that the pilots listed on BlackBird’s pilot database selected by the user are transporting persons or property, from place to place, for compensation,” wrote Naomi Tsuda, the FAA’s assistant chief counsel for enforcement. Her letter was written in response to a June letter from BlackBird to the agency, describing the business model.

The FAA emphasized its conclusion that BlackBird’s pilots were “holding out” a willingness to transport people or property, which with few exceptions is not permitted without an operating certificate issued by the FAA. As applied to aviation, the common-law concept of “holding out” can be accomplished “by any means that communicates to the public that a transportation service is indiscriminately available to the members of the segment of the public it is designed to attract.”

Participating pilots, therefore, “are engaged in common carriage” that requires additional certification and oversight.

In an AOPA interview, Davis expressed the view that the FAA’s position amounted to “guidance, not law” until tested in court. However, he added that the company had “paused” its activities covered by Part 91 of the federal aviation regulations—which he described as a minority of Blackbird’s enterprises—as a show of good faith pending resolution of the dispute.

As for judicial review, Tsuda likened the BlackBird business model to the flight-sharing website FlyteNow, citing a case in which the United States Court of Appeals for the District of Columbia Circuit upheld the FAA’s contention that FlyteNow activity amounted to an offering of transportation to the public (and that expense sharing was a form of compensation to pilots).

“Because these operations are subject to part 119 certification, a pilot who holds an airline transport pilot or commercial pilot certificate must obtain and hold a certificate issued under part 135 or the pilot must be employed by a company operating the flight that is certificated under part 119,” the letter said.

BlackBird believes the FAA’s position on its digital business model represents a “misunderstanding of technology,” said Davis.

“Software can create this scenario within the regulatory environment,” he said. “We believe passionately that this is above board.”

Tsuda warned BlackBird to expect further investigation, “particularly regarding its pilot database. In addition, we would be interested in learning of any action you intend to take in view of the jeopardy facing pilots who participate in BlackBird' s service." The FAA Safety Team, in a charter-guidance notice posted online December 27, said the agency “does not plan to take enforcement action against pilots who have conducted prior flights using the Blackbird app without a Part 119 certificate,” or against passengers who paid for the flights. The FAA “strongly” encouraged passengers to make sure their charter flights meet regulatory requirements.

Davis, whose expansive defense of BlackBird’s concept broached a range of topics from the projected professional pilot shortage to the cost burden to taxpayers of the subsidized Essential Air Service program, said he still hoped to meet with the FAA to hash out differences.

In the meantime, BlackBird is doing “millions of dollars of charter flights on a monthly basis” under Part 135 of the federal aviation regulations, he said.