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FAA AC Outlines Limits on Web-based Flight-sharing

By Kerry Lynch

The FAA last week released much-anticipated guidance outlining when flight-sharing is permissible but reinforcing policy that holding out to the general public through a website or app without an operator’s certificate is prohibited. That guidance comes at the behest of Congress, which had asked the FAA to clarify regulations governing expense-sharing flights.

That measure, included in the 2018 FAA reauthorization act, was a compromise as certain organizations, including FlyteNow, were making a strong push on Capitol Hill for legislation to open the door to online flight-sharing. Legislation was offered to alter the definitions of pilots, compensation, and common carriage to facilitate such operations. But other organizations, including the National Air Transportation Association, expressed strong opposition, warning that such a measure would lead to illegal charter activity.

AC 61-142 states that “pilots may share operating expenses with passengers on a pro-rata basis when those expenses involve only fuel, oil, airport expenditures, or rental fees.” But it specifics that private pilots who wish to share expenses may not “hold out” to the public as willing to offer transportation services.

“Holding out is accomplished by any means that communicates to the public that a transportation service is indiscriminately available to the members of that segment of the public that it is designed to attract,” the AC states.

While acknowledging no specific rule provides criteria on how holding out is achieved, the FAA said that determinization is assessed by available facts and that advertising in any form raises the question of holding outKey to this interpretation is whether the holding out is to a broad public sector or a limited group. “A pilot may invite passengers for expense-sharing flights; however, a pilot should be guided by whether he or she is reaching out to a defined and limited group comprised of people with whom he or she has an ongoing, pre-existing relationship,” the agency said.

The FAA provided a number of examples of when it would and would not be acceptable. Posting a specific flight on a bulletin board may be acceptable as long as done to a defined and limited audience.

However, posting on the Internet is a different story, the agency indicated. “The internet has a virtually unlimited audience. Therefore, when advertising on the internet, one typically would expect to reach, at a minimum, a broad segment of the general public searching for the type of information posted,” the FAA said. “Therefore, generally, an advertisement published on the internet would not meet the criteria of a limited and defined group.”

Further, citing the expansive reach of the internet, the FAA said a posting of a flight on a website accessible to the general public, or a segment of the general public, would not be considered acceptable. “Pilots advertising flights on the website would be deemed to be holding out,” the agency said.

The same holds true for apps, even in cases involving “memberships” that are publicly available, the agency said: “The app is designed to attract a broad segment of the public interested in transportation by air. Any prospective passenger searching for flights could access the app, sign up, search for flights, and readily arrange for travel. Therefore, the FAA would consider pilots advertising flights on the app to be holding out.”

The National Air Transportation Association praised the AC, saying it reaffirms longstanding precedent and policy. “NATA hopes this enables pilots to make better decisions in this area to avoid enforcement actions that would jeopardize their future ability to fly,” said NATA president and CEO Timothy Obitts. “This is another great example of the FAA working in concert with the industry to educate owners and pilots, and help put an end to uncertified charter operations.”