Advertising and the regulations

[shdw]

Recently I took part in a discussion on another forum that posed the question: Can a private pilot advertise on craigs list for another pilot to fly with or for safety pilot? This was for the purpose of splitting costs and working towards an instrument rating, using hood time to gain more hours per dollar for both pilots.

Disclaimer: I realize JC typically tries to avoid taking on discussions that started on another forum. However, I believe it to be a valuable discussion for all pilots. If we can't come to a definitive answer I will be writing to the chief council in hopes of clarifying this.

After a week or so discussing the topic we have been left at a near 50/50 split. I will attempt to give a non biased overview of both sides of the story below:

The four key points of discussion were:

1) Pilot time, is it or isn't it compensation?
2) Would the pilot be holding out?
3) Common carriage, yes or no? This is dependent on holding out.
4) The purpose of the regulation preventing holding out.

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Our first point was debated over this letter: http://www.faa.gov/about/office_org...interpretations/data/interps/1990/Lincoln.pdf

To summarize, it is regarding a private pilot being a glider tow pilot. It was deemed, in 1990, that they could not perform this task because pilot time is a form of compensation. However, if we look at the current regulations this letter was overturned somewhere. We were unable to find any current LOIs that supported the "pilot time is compensation" argument.

On this topic is was argued that all pilots must be treated equally per the regulations. The point was raised that it would be difficult to claim 172 time being useful (compensation) to a 20,000 hour airline pilot. Arguing that, if it isn't compensation for that pilot, it can't be compensation for a fresh private pilot.

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Our second and third points were debated over the wording in AC120-12A

The third point of common carriage was pretty clear. If you are holding out then you are a common carrier:

There are four elements in defining a common carrier; (1) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation.

The ambiguity was in point two, is this holding out. Two areas of the LOI were referenced and the way to read it was split, I will bold one and underline the other for clarity with each segment. Read it first with emphasis on the bold and then with emphasis on the underlined to see the two sides:

A carrier becomes a common carrier when it "holds itself out" to the public, or to a segment of the public, as willing to furnish transportation within the limits of its facilities to any person who wants it.

The bold was argued that searching for a pilot would be a segment of the public.

The underlined argued that it is not any person and that the rest of the LOI repeatedly addresses this idea.

A carrier holding itself out as generally willing to carry only certain kinds of traffic is, nevertheless, a common carrier. For instance, a carrier authorized or willing only to carry planeloads of passengers, cargo, or mail on a charter basis is a common carrier, if it so holds itself out.

The bold supported the bold in the first quote.

The underlined example was argued to point to larger entities than would be the case if you advertise to find another pilot to fly with.

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Finally, our last point covered the purpose of this LOI/related regulations. We seemed to be in agreement that the purpose is to protect the unknowing public from getting into a plane and paying for a service that wasn't held to the same standards as 135/121 operators. Being that another pilot wouldn't fall into the category of "unknowing public" it was argued that this wouldn't be considered holding out.

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I was originally all for it and didn't see any problems. However, throughout this process I now find myself on the wall as to the legality. This raised a few curious questions:

1) How do some of the local FBOs in my area, some of which are 141 schools, have message boards for pilots to advertise for safety pilots or other flying buddies?
2) How is this different from advertising on craigs list or any other form of advertisement?

Thank you in advance.

~Brian

PS Common purpose was discussed and we seemed in agreement that, in the given scenario, both pilots would share a common purpose: to build time/have fun.

 

[killbilly]

Interesting topic.

Remove the "advertising" (which I would argue, is a persuasive pitch intended to generate commerce for profit) from the discussion and you have two pilots who agree to split costs (per the regs) and use the PIC/Safety Pilot rules to conduct the flight. This is well-documented and I think everyone agrees is common.

No one really profits here - time is compensation, but since both pilots are paying for their respective time, it's hard to argue that one pilot is paying for the other's time. I don't even think this is a gray area.

I do not believe the pilot(s) is/are holding out, because they mutually benefit from the flight for equal cost. The flight is for training purposes and not intended for transport - the transport in question is incidental because you have to move the airplane (and crew) to train in it.

I am no aviation attorney (few are) but to me, it strikes me as perfectly legal.

What says the local FSDO in this hypothetical situation?

 

[Douglas]

I skipped over half your post because I don't have time.
I don't mean to be curt with others, but this is a stupid waste of time. (Not the discussion here but the argument). I don't get why somebody would waste there time trying to be FAA lite, for something in the grand picture that just doesn't matter.

It just doesn't matter.

 

[tgrayson]

It was deemed, in 1990, that they could not perform this task because pilot time is a form of compensation. However, if we look at the current regulations this letter was overturned somewhere. We were unable to find any current LOIs that supported the "pilot time is compensation" argument.

The concept of flight time as compensation was not overturned. There is an exemption in 61.113(g) that allows private pilots to act as PIC of an airplane towing a glider, so the compensatory portion of the situation becomes irrelevant. I think this was added in 1996, well after the Lincoln letter. Here's an excerpt from the NPRM:

The FAA proposes several significant changes to the current
Sec. 61.118 [proposed Sec. 61.113]...

Finally, a new provision would be added to clarify that a private pilot who meets the requirements of Sec. 61.69 may act as PIC of an aircraft towing a glider and log that flight time. This is consistent with current and proposed Sec. 61.69.
​

 

[Mike H]

1) Pilot time, is it or isn't it compensation?

No, not if they're splitting the costs.

2) Would the pilot be holding out?

Clearly another NO.

3) Common carriage, yes or no? This is dependent on holding out.

No on 2 means no on 3

4) The purpose of the regulation preventing holding out.

Clearly doesn't apply since there is no holding out.

Looks like we're done here. Mods...

 

[poser765]

I sort of get the feeling from the other thread the people may be trying to make an issue out of something that is really pretty obviously not an issue.

 

[shdw]

Clearly another NO.

The problem I'm having is finding something regulatory that supports this. While we are at it let me add another scenario:

Advertisement: I am looking for a golfing buddy in the NJ area who would like to take some trips to various golf courses in PA/NY/and possibly elsewhere. I am a rated pilot and can rent an aircraft to take us. The aircraft we will fly can hold a maximum of 3 people with golf bags and cost of the aircraft rental will be split 50/50 or 33/33/33 depending on who goes. If interested...

Anyways, you can replace golfing with sight seeing, hiking, or various other activities one might fly to another airport to accomplish. Doing this puts you into a common purpose, but flight time counting as compensation would supposedly prevent it.

However, what if it is MikeD was doing this. I'd believe an attorney would have a difficult job trying to convince anyone that Mike gains any benefit from single engine flight time. After all compensation is something you find beneficial and for Mike it would be like paying him with toilet paper. (Mike is an unwilling victim of this scenario.)

Same would hold true for the 70 year old lonely guy/gal with a pilots license.

What says the local FSDO in this hypothetical situation?

I have not called them. Since I don't need to know immediately I will just shoot a letter to the FAA if it isn't resolved. Though, so far, it sounds like it is resolved.



MOD: I should have made this a poll, but forgot and cannot edit it now. Would someone mind editing this and adding the poll:

Can a pilot legally advertise in search of another pilot to split time/costs with:

Yes
No

 

[tgrayson]

but flight time counting as compensation would supposedly prevent it.

No, it doesn't. 61.113 allows a private pilot to receive compensation for acting as PIC in a limited set of scenarios. Even the splitting of costs is considered compensation and it's ok. Note how the regulation reads:

(a) Except as provided in paragraphs (b) through (g) of this section, no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft.
​

 

[shdw]

No, it doesn't. 61.113 allows a private pilot to receive compensation for acting as PIC in a limited set of scenarios. Even the splitting of costs is considered compensation and it's ok. Note how the regulation reads:

(a) Except as provided in paragraphs (b) through (g) of this section, no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft.
​

Yes, I know this, but which one of the exceptions makes that second scenario ok? Sure they share a common purpose, but if it is just advertising to any old joe (not just pilots) then how is it legal being that the pilot still gains time compensation? See my dilemma or am I being unclear?

 

[tgrayson]

Yes, I know this, but which one of the exceptions makes that second scenario ok? Sure they share a common purpose, but if it is just advertising to any old joe (not just pilots) then how is it legal being that the pilot still gains time compensation? See my dilemma or am I being unclear?

The only ambiguity I see is whether the FAA would conclude a common purpose if you don't really know the person. In the scenario you describe, the flight would probably not be legal. Here is an excerpt from a LOI:

Even if the pilot bears an equal share of the expenses with his or her passengers and indeed has his or her own need to fly to a particular destination, yet another problem arises. Since PPA's passengers would be solicited for flights by PPA from a broad segment of the general public, we conclude that each pilot carrying paying passengers from PPA would probably be engaged in common carriage. This means that each pilot would become an air carrier subject to the certification and operating rules of Part 135 of the FAR.
​

If both were pilots trying to build time, it might be a different story. I don't recall any LOI on the subject.

 

[MidlifeFlyer]

FWIW, I don't see a problem with posting on Craigs list or anywhere else for a pilot with whom to share aircraft costs, safety pilot duties or flight time. I agree with those that say it's a non-issue and not even worth arguing about. Policy-wise, the whole idea of the regs is to prevenmt the transportation of persons or property for compensation. That's just not happning in this scenario.

 

[shdw]

So in summary:

Advertising to share pilot time & expense is ok.

Advertising you are making a trip and looking for anyone to join you (pilot or not) is not ok.

Any disagreements? Speak now or forever hold your peace.

Thanks fellas.

 

[MidlifeFlyer]

So in summary:

Advertising to share pilot time & expense is ok.

Advertising you are making a trip and looking for anyone to join you (pilot or not) is not ok.

Any disagreements? Speak now or forever hold your peace.

Thanks fellas.

Maybe.

The problem with "Advertising you are making a trip and looking for anyone to join you (pilot or not) is not ok" is that you are advertising that you have scheduled a flight and you are seeking a paying passenger. Other than maybe making a security check, you don't really care who they are. That's exactly what the airlines and charter companies do. That's what's wrong with it.

This is an area that I refer to as "intentionally vague." The rules about "common purpose," "flight time as compensation" and the rest are all there to give the FAA flexibility is going after things that quack "gray charter." The real test is "does it quack like a duck?"

Even your second blanket statement is arguable. Consider the number of pilots who, for years, have "advertised" that extra seat in the 210 for the annual pilgrimage to OSH on airport bulletin boards. You think the FAA doesn't know about it? You think the FAA cares?

 

[shdw]

Even your second blanket statement is arguable. Consider the number of pilots who, for years, have "advertised" that extra seat in the 210 for the annual pilgrimage to OSH on airport bulletin boards. You think the FAA doesn't know about it? You think the FAA cares?

Interesting, so the way it sounds is as long as you aren't doing weekly trips with different people each week. IE the regularity of it. Do it once or twice, or just with one or two different people making repeat trips, say for a golf outing, they probably could care less. Start making a habit of it with everyone who contacts you and you fall into the "willing to take anyone" bracket. Are we on the same page?

 

[MidlifeFlyer]

Interesting, so the way it sounds is as long as you aren't doing weekly trips with different people each week. IE the regularity of it. Do it once or twice, or just with one or two different people making repeat trips, say for a golf outing, they probably could care less. Start making a habit of it with everyone who contacts you and you fall into the "willing to take anyone" bracket. Are we on the same page?

Pretty much.

I don't know if you've ever heard it but there's a saying that "bad cases make bad law." It's sort of like how regs come into being because some idiot did something stupid and it screws it up for the rest of us. Some of the rules that fit into the grey area in legal interpretation are the result of people trying to find loopholes - the FAA or NTSB makes a ruling that closes the loophole in that case but creates consequences for everyone else.

There's a good chance that if you =asked= the Chief Counsel's office, they would say that even that one-time ad for a stranger to accompany you is verbotten. Look at that PPA opinion tgrayson mentioned. He wondered aloud whether the fact that they were strangers would negate "common purpose." That's a heck of a good question. My guess is that whether it would negate it or not, it would enter into the loose legal/policy equation (is "loose equation" an oxymoron?).

How is the Craiglist add different from PPA? If it's the numbers, is two ads a year ok? Is 8 too many? You start dancing on the head of a pin. There's no way to make a rule other than to simply say no that makes any sense. So what you end up is with a technical violation in all cases but discretion in the enforcement function.

Want something real similar for comparison? The FAA's treatment of known icing. There really hasn't been much of a policy change by the FAA on this through the years - if the known weather conditions were conducive to icing and you had an "event" because of it, you got nailed for it. Otherwise, everyone left you alone. Then a few years ago a pilot asked the Chief Counsel's office to be more specific about the definition of known icing and they came up with an interpretation in which anyone who ever went near a cloud or, according to some reactions, flew on a cold humid day was in violation of the rules, whether or not any icing occurred. It caused such an uproar that the FAA had to backtrack and make an attempt to explain how it actually worked. Truth is that nothing about that opinion letter or the later retraction/revision changed even one thing about how known ice has been treated in the enforcement process.

Boring enough?

 

[imatworkallday]

:drool:

 

[shdw]

How is the Craiglist add different from PPA? If it's the numbers, is two ads a year ok? Is 8 too many? You start dancing on the head of a pin. There's no way to make a rule other than to simply say no that makes any sense. So what you end up is with a technical violation in all cases but discretion in the enforcement function.

So FAA is...

???