Flight-sharing Debate Bubbles Up as Senate Preps FAA Bill

As the U.S. Senate continued to prepare to bring comprehensive FAA reauthorization legislation to the floor for a vote last month, a lobbying frenzy stepped up behind the scenes over the issue of legal limits on flight sharing. Flytenow has been working with the Goldwater Institute to push Sen. Mike Lee’s (R-Utah) bill that would open the door to online flight sharing in the U.S. The company has hoped that the FAA bill would serve as a venue for Lee’s measure.

But the Lee measure, The Aviation Empowerment Act, S.2650, has drawn fierce opposition from aviation organizations that fear it will compromise safety and open the door to gray charter by altering definitions of pilots, compensation, and common carriage. One of the major objections to the legislation is a measure to permit private pilots to receive compensation for flying persons or property if operating an aircraft with eight or fewer seats.

The Goldwater Institute in August fought back against those objections, releasing an editorial titled “Special Interests Try to Kill Flight-Sharing in the U.S.” Its editorial opens with a scenario of people who wish to fly between Boston and New York essentially having only the options of flying on an airliner or charter. Noting the inconvenience and expense of those, the editorial said Flytenow has been attempting to provide a third option—enabling pilots and passengers to connect via the Internet—and adds that Europe has permitted such efforts without incident.

The FAA shut down that effort, saying pilots were illegally operating commercial operations, and a court case to overturn that determination failed when the U.S. Supreme Court refused to hear it.

Legal Clarity

The editorial said Lee’s bill, which the Institute claims has “bipartisan support and approved language from the FAA,” can address the legal issues surrounding such operations. “Unfortunately, entrenched status quo special interests, including the Aircraft Owners and Pilots Association (AOPA), are preventing this common-sense legislation from moving forward,” according to the editorial. These “status quo forces,” the editorial adds, “are removing an entire segment of affordable travel options for passengers across the U.S.”

While receiving objections from multiple aviation groups, including the National Air Transportation Association, the editorial takes further aim at AOPA, reminding of the association’s stated mission “to preserve pilot freedoms to keep general aviation accessible to all” and adding, “Yet AOPA has never surveyed its members to determine whether they support Internet communications for flight sharing—a huge number of whom plainly want this basic freedom.”

The editorial further says the safety objections are a red herring because such flights must comply with all general aviation safety standards. “It is also a fallacy to compare flight-sharing to commercial operations, such as an ‘Uber of the Skies,’” the editorial added. “Flight-sharing merely defrays operating expenses—commercial profit is simply not possible on the platform as pilots must always pay a pro rata share of operating expenses.”

AOPA, meanwhile, responded that it has “always supported cost sharing for flights with others who have a common purpose and we have no issues with how pilots communicate.” But given recent court cases and legal interpretations, such activities must be done in a safe and deliberate manner, with safety parameters at the forefront to manage risk properly, the association added.

“If, however, that risk is not managed, the reaction and ramifications could do real harm to general aviation,” AOPA said. The association further noted that it has worked with lawmakers on a measure that would pave the way for flight sharing to move forward. That measure would seek clearer guidance from the FAA and a study on what is permissible.

NATA also endorsed that language—Section 516 in the House-passed reauthorization bill. But in a fact sheet outlining its opposition to the Aviation Empowerment Act, the association said the legislative fixes now sought by Flytenow “would provide carte blanche authority for private pilots to establish public transportation services. It would undermine the distinction that rightly exists between private aircraft flights where expenses are shared by individuals with a common purpose and commercial flights where members of the public are transported by aircraft for remuneration.”

NATA noted that FAA has “sensibly created” limited exception to the parameters of commercial operation to allow persons to share a trip with mutual purpose, for instance, a pilot flies friends to a resort or conference. But the association fears that the online platforms created recently have attempted to use the limited exemption to commercial carrier certification requirements "to bypass the safety, training, and aircraft maintenance requirements for pilots who clearly intend to carry passengers for hire.”

The association disputed the contention that simply following general aviation safety rules would be adequate for such operations, noting that private pilots can have as little as 35 hours of flight time, are not required to hold certain ratings, and are not covered by mandatory drug and alcohol testing programs. Further training and operational requirements vary and there is no requirement for minimum liability insurance.

The FAA has not found that online flight-sharing websites like Flytenow, AirPooler fall under the limited commercial exception. But NATA cautions that this is not about the right to communicate via the Internet. “The truth is that the FAA doesn’t concern itself with how anyone communicates. They evaluate whether a given flight is in accordance with the regulations,” the association said.

By creating new definitions for compensation, common carriage, and pilots (it calls for a “personal operators” category), the legislation “establishes a means for unrestricted and relatively unsurveilled airline-type operations by private pilots,” NATA added. “This represents a massive, and we believe unintended, deregulation of the existing air carrier industry. Hundreds, and potentially thousands, of currently certificated air carriers would be able to turn in their certificates and carry on their business as ‘personal operators.’”

However, Flytenow argues that its online flight-sharing platform would decrease the cost of aircraft ownership, promote safety, and stimulate economies at regional airports. “The predictable result for general aviation in the U.S. has been less innovation, higher costs, and fewer choices for consumers. It’s time for the FAA and AOPA to catch up to the digital age,” the editorial said.