Senate Bill Would Open Door for Flight Sharing

While the U.S. Supreme Court last year declined to take action on the debate surrounding flight-sharing operations, the issue is now working its way through Congress and may get settled through long-term FAA reauthorization.

In April, U.S. Sen. Mike Lee (R-Utah) introduced a bill to clear the way for flight-sharing operations. That bill is not expected to move forward independently, but it could find its way to the larger, more comprehensive FAA reauthorization bill that is pending in the Senate.

“Innovation is key to competition and accessibility,” Lee said in announcing the flight-sharing measure. “This bill adds definition and clarity to existing rules that will help unleash that innovation in the aviation community. Studies and experience with cost-sharing services have proven it to be safe and effective in other countries, and it is past time we enact them in our country."

The legislation is one of a few measures that have emerged in the wake of the court decisions that back the FAA’s move to strike down Flytenow’s website that connected pilots with potential passengers who would share expanses on pre-planned Part 91 flights. The FAA essentially deemed that activity illegal charter, determining that pilots who solicit passengers using the website are “common carriers” and subject to commercial transportation requirements.

In Search of 'Clear and Concise Guidance'

Lee’s bill, “The Aviation Empowerment Act,” directs the FAA to revise regulations within 60 days of enactment to ensure a person who holds a pilot certificate is able to communicate with the public in any way that person deems appropriate to facilitate a flight in which the pilots and passengers share operating expenses. The bill adds that “such flight-sharing operations…shall not be deemed a common carrier.”

The bill language would specify flight for compensation “requires the intent to pursue monetary profit, but does not include flights in which the pilot and passengers share aircraft operating expenses or the pilot receives any benefit.”

It further specifies that personal operator is a “person providing air transportation of persons or property for compensation or hire in aircraft that have eight or fewer seats, provided that the person holds a private pilot certificate pursuant to Subpart E of Section 61 of Title 14, Code of Federal Regulations (or any successor regulation),” and adds that a flight conducted by a personal operator does not constitute a common carrier requiring a Part 119 or 135 certificate, nor is that person a commercial operator.

Lee is one of several lawmakers who have expressed interest in this issue. On the House side, Rep. Mark Sanford (R-South Carolina) originally developed a broad-based measure to clear the way for flight-sharing, but after working with industry groups such as the Aircraft Owners and Pilots Association and the National Air Transportation Association, revised the language to direct the FAA to clarify what would be permissible for flight-sharing and seek a Government Accountability Office study on the issue.

That language was part of the comprehensive House FAA reauthorization bill, H.R. 2997 (the 21st Century Aviation Innovation, Reform, and Reauthorization Act or the 21st Century AIRR Act). Section 617, Pilots Sharing Flight Expenses with Passengers, would give the FAA 90 days to make available “clear and concise guidance that describes how a pilot may share flight expenses with passengers in a manner consistent with federal law.” This guidance would include examples where pilots and passengers could share expenses, when they may not, and what types of communications can be used to arrange flights where expenses are shared.

In addition to Sanford, other lawmakers have discussed offering much broader legislation either independently or to the House bill. Industry lobbyists have urged those lawmakers to hold off in light of language already in the bill. But it was unclear whether new amendments would be offered as the bill works through Congress.

The House late last month was expected to take up consideration of the legislation. It was unclear whether more flight-sharing measures would be offered at the time.

However, lawmakers in both the House and Senate are believed to have indicated a desire to keep amendments to a minimum with little appetite for anything controversial.

When the Senate may take action on its version of FAA reauthorization legislation is less clear, although Senate Commerce Committee chairman John Thune (R-South Dakota) has indicated a desire to finish work before the August recess.

Also unclear is whether a measure such as Lee’s bill will make its way to a Senate bill. He is not alone on the issue, though. Sen. Cory Booker (D-New Jersey) has been among those expressing interest in a rule change on flight sharing.

Flytenow has strongly pushed its case, believing the FAA “drastic[ally] departed[ed] from the common law definition of ‘common carrier,’” in its determination.

But the issue has also been closely watched by industry. NATA has viewed certain of the flight-sharing schemes as illegal charter. NATA president Marty Hiller has called efforts to change the rules “part of a campaign to convince people it is now acceptable to allow the public to ride-share with private pilots with potentially little flight time or training for challenging weather conditions.”