Having lost its battle with the FAA, ride-sharing website Flytenow is banking on an amendment to FAA reauthorization legislation to make it legal for pilots and potential passengers to communicate about flights where they could share expenses when traveling to the same destination. While it is legal for pilots and passengers to share some expenses when traveling together, the FAA issued legal opinions last summer finding that Flytenow’s program and a similar program operated by AirPooler were commercial activities and that participants would need Part 119 commercial operating certificates.
Last December, according to Flytenow, “The U.S. Court of Appeals for the District of Columbia denied our request to overturn the [FAA’s] ban on Flytenow and other online flight-sharing websites.”
The amendment to H.R. 4441, the Aviation Innovation, Reform and Reauthorization Act of 2016, was submitted by representative Mark Sanford (R-S.C.), and it includes two elements under Sec. II, Private Pilot Privileges and Limitations. The first would require the FAA, within 60 days of enactment, to “issue or revise regulations to ensure that a person who holds a private pilot certificate may communicate with the public, in any manner the person determines appropriate, to facilitate a covered flight.”
The amendment then defines a covered flight as “an aircraft flight for which the pilots and passengers share operating expenses in accordance with section 61.113(c) of title 14, Code of Federal Regulations.”
“In our view the FAA’s letter of interpretation is not regulation, but it has the force and effect of a regulatory prohibition,” said Jon Riches, an attorney with the Goldwater Institute, which is helping Flytenow with its legal efforts. “This was truthful communication about an activity that everybody has determined was lawful.”
As many have pointed out, pilots have been communicating with expense-sharing passengers in various ways for decades, whether via airport bulletin boards, online, telephone and so on. Singling out communication via the Internet raises questions about basic constitutional freedoms, according to Flytenow. “That was an issue we raised with the court,” said Riches. “What the FAA has done is so vague and arbitrary. Any pilot wishing to share expenses doesn’t know what communication is lawful and what isn’t lawful, and that also raises constitutional problems. The whole point of laws and regulations is that they have to be clear so a reasonable person can know what is and is not legal. Frankly, this is unconstitutionally vague. But the court did not accept that.”
The House Transportation Committee approved the Sanford amendment on February 14, according to Flytenow, “with bipartisan support of an amendment to reverse the FAA’s antiquated policies and ambiguous interpretations dating back more than 40 years, and to allow pilots to use the Internet to communicate with and find passengers willing to cost-share their flights. The amendments moving through the U.S. Senate and U.S. House of Representatives will clarify and update the rights of pilots to use 21st-century communications.”
Flytenow is urging pilots to write to the Aircraft Owners and Pilots Association to enlist its help “to support your right as a licensed pilot to use the Internet for cost-sharing passengers and reverse the FAA’s antiquated policies.”