Page 48 - Volume 14 Number 4

LEGALZONE
Inadvertent Flight into Part 135
by SCOTT WILLIAMS, ESQ.
W ith rare exceptions, Cirrus pilots fly their birds under Subchapter F – Air Traffic and General Operating Rules of the Federal Aviation Regulations (FARs).
More commonly referred to as “Part 91.”
What type of flights are allowed under Part 91?
The majority of general aviation is conducted under Part 91. This includes the broad categories of personal recreation, business flights and flight instruction. Even some commercial operations, such as aircraft ferrying or banner towing, are also flown under Part 91. What gets many pilots and owners in trouble is when they inadvertently cross the line from Part 91 to Part 135 ... the Part that regulates Air Taxi (Charter) Operations.
Charging Passengers
As a general rule, flying a passenger for “free” will keep most pilots out of Part 135. So long as the passenger pays nothing (no money or quantifiable consideration), pilots are free to fly their friends, family and most business associates to points near and far. If, however, a passenger is paying for any part of the flight or expenses, failure to maintain strict compliance with FAR §61.113 can result in
the FAA declaring the pilot was “charging for the seat” and therefore operating an unlawful air taxi operation.
The most commonly misunderstood subpart of §61.113 is: (c) A private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures or rental fees.
What exactly does “pro rata share” mean? It implies that if you add up all the occupants of the aircraft and divide that into the permissible expenses to be shared among all occupants, the pilot must pay an equal (or greater) share. For example, if you fill a Cirrus G5 or G6 with five occupants (including the pilot), and if the fuel for the flight was $200, the pilot must pay $40 of that fuel and the passengers can pay the rest. What about hourly reserves for maintenance? Nope. Hangar expenses? Negative. Insurance premiums? Nada. Money, however, isn’t the only restriction. The flight must have a “common purpose”1 which is a term coined by the FAA and not actually found in the text of §61.113 itself. Basically, all those who are sharing expenses must have a common purpose to fly to the same place for the same reason. For example, three COPA members hop in an SR22 and fly from Atlanta to New Orleans so they can all attend Migration 17 (a worthy and common purpose). Now, change the facts to: “Hey let’s post on Facebook that we are two pilots looking to fly to New Orleans Oct.16 and need another passenger to split the cost.” Someone responds: “Sure, I’ll pay one-third since I want to go to New Orleans to see my sister.” Rest assured, the FAA will find that your Facebook post and the final passenger’s expense payment to be lacking a “common purpose.” Since neither the pilot nor the aircraft was authorized to fly under Part 135, the FAA could declare that flight an illegal air taxi operation.
Rideshare versus Flight Share
Uber? Lyft? AirPooler? FlyteNow? Two of these four companies are still in business; two are not. The FAA put these and other flight sharing companies out of business by declaring their electronic bulletin boards (aka, websites) to be a violation of the “common purpose” doctrine. After losing at an NTSB hearing before an Administrative Law Judge, FlyteNow appealed to the U.S. District Court, and ultimately to the U.S. Court of Appeals for the D.C. Circuit, before finally exhausting all practical remedies. In the Circuit Court’s decision, it was held: “The common-purpose test has no bearing on whether compensation in the form of passengers’ expense sharing, together with holding out to the general public, tends to show that a private pilot is operating as a common carrier.”2
In summary, before you accept one dime from a paying passenger, make sure you are compliant with both the letter and spirit of §61.113.
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46 ■ COPA Pilot
MAY 2019