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Anyone giving or receiving instruction in a limited, primary, or experimental category aircraft is at risk

FAA prosecutors pursuing CFIs providing training for ‘free’

The FAA issued a new directive effective July 12 that “provides notification on flight training for compensation in certain aircraft,” specifying it applies to receiving and providing instruction in limited, primary, and experimental category aircraft. Meanwhile, in court proceedings, the FAA is prosecuting flight instructors who volunteered their time instructing in limited category aircraft and didn’t receive a penny for doing so, arguing the volunteers had received compensation.

The FAA argued in court that flight instructors who volunteered their time training pilots in limited category aircraft were given "compensation" whether money changed hands or not. The recent FAA directive requiring approval to provide compensated instruction also applies to experimental and primary category aircraft. Photo by Chris Rose.

“The FAA can’t have it both ways, while claiming it is clarifying the situation. This is contrary to the FAA’s mission and obligation to promote safe flight,” said AOPA President Mark Baker.

Last week FAA prosecutors quoted FAA Advisory Circular 61-142, “defining ‘compensation’ as the receipt of anything of value that is contingent on the pilot operating the aircraft… [it] does not require a profit, profit motive, or actual payment of funds. … accumulation of flight time and goodwill in the form of expected future economic benefits can be considered compensation. Furthermore, the pilot does not have to be the party receiving the compensation; compensation occurs even if a third party receives a benefit as a result of the flight.”

The FAA alleged volunteer instructors received compensation by “accumulating flight time” and “generating goodwill.” In other words, the FAA believes giving away your time and talent equates to compensation.

While pilots and flight instructors receiving and giving instruction in standard category aircraft are not affected by this recent move, it is a roadblock for those seeking instruction in these three specific categories of aircraft, potentially causing some to forego proper training and therefore impacting safety. Until July 12, the FAA never required students who provided experimental aircraft to have a LODA to receive flight training and flight reviews.

Now the FAA “clarified” that owners and operators of more than 39,000 experimental aircraft, as well as the CFIs who provide instruction in them, need LODAs in place to receive or give “compensated” instruction in those aircraft. But in reality, it doesn’t appear to matter if no money is exchanged for instruction in limited, experimental, or primary aircraft; the FAA can and is arguing that anything is “compensation” solely because the FAA labels it so, and that it can prosecute a flight instructor for someone else receiving “compensation,” even if the instructor receives none. The overreach and refusal to draw limits is breathtaking.

So, what does this mean for pilots who want to receive a flight review or transition training, or just brush up on techniques with an instructor in their limited, primary, or experimental category aircraft? And what does this mean to the instructors who want to teach them?

To stay out of the FAA’s legal crosshairs until the courts decide whether the FAA’s legal arguments are winning ones, you’ll need to get the FAA’s permission first. For training in experimental aircraft, that means obtaining a Letter of Deviation Authority, as outlined in the July 12 directive. For limited and primary category aircraft, that means obtaining an exemption.

Flight instruction is a noble profession, one that requires significant investment in terms of time, money, and effort. Flight instructors deserve to earn a living without needless bureaucracy. Pilots, particularly those who fly unusual aircraft with unique flight characteristics, need access to training without meaningless “approval” processes that have no impact on safety, beyond degrading it by delaying training and adding barriers to access.

Can there be flight training that doesn’t result in hours of experience for the instructor or student? Why did the FAA issue a policy that targets flight training “for compensation” if it also argues there is no situation that doesn’t fit its “kitchen sink” definition of compensation?  It sure would be nice if it could “clarify” that.

We will continue to probe the FAA for answers to these questions while also working through whatever means necessary to remove these impractical barriers to training.

If you’re a member of AOPA’s Pilot Protection Services plan and have questions about the approvals needed to give or receive training in a particular aircraft, the AOPA Pilot Protection Services legal team is standing by to assist you. The AOPA Pilot Protection Services can be reached at 800-872-2672.

Justine A. Harrison

Justine A. Harrison joined AOPA in 2019 and serves as AOPA’s general counsel and corporate secretary, leading the Legal Department and overseeing AOPA’s Legal Services Plan. She has a commercial pilot certificate and flies aircraft ranging from an AirCam experimental she co-built to a Learjet 75.
Topics: Advocacy, Aircraft Regulation, Experimental

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