August 13, 2014 FAA Opinion: No Go on Website Matching Private Pilots with Passengers

In 2011, the FAA Chief Counsel’s office issued the Haberkorn opinion letter, generally expanding a private pilot’s ability to share expenses with passengers without running afoul of the rules against engaging in commercial activities. For decades, the exception for shared expenses has required there be a “joint venture with a common purpose for the flight.”  In the Haberkorn Letter, the FAA expanded the notion of “common purpose” to only require a common destination. In other words, if Mr. Haberkorn was going to a wedding and a friend was going to the same area to attend a baseball game, that was a sufficient common purpose to allow Haberkorn to take his friends and share the out-of-pocket cost of the flight with them.

Haberkorn went a bit further though; he asked whether he could post his planned wedding flight on FaceBook. The Chief Counsel’s response to that was was a  bit less clear:

While you offer no additional details about the nature of the post or how large your Facebook audience is, the FAA cautions that this type of advertising may be construed as holding out. … [E]ven if you limit the transportation services to a class or segment of the general public (such as Facebook users), it may still be considered holding out if it expresses a willingness to provide transportation for all within this class or segment to the extent of its capacity. *** Finally, the FAA cannot determine or approve in advance what type of advertising or soliciting are considered a holding out of air transportation service without all available facts concerning a specific situation.

In other words, “maybe.”

Perhaps the next step was to be expected. How far one could go in terms of letting people know you were available without it being considered a “holding out of transportation services” was bound to be tested. The Chief Counsel’s August 13, 2014 letter to Attorney Rebecca MacPherson (a former FAA Assistant Chief Counsel and the author of many FAA opinion letters including the Haberkorn Letter) answers much of the question.

The question in the MacPherson Letter involved a proposed business model (AirPooler.com) in which pilots planning a trip somewhere would post; others planning a trip to the same location would be able to match their plans with the pilot. The questioner viewed it simply allowing a private pilot to take advantage of permissible sharing of expenses with someone having the same destination. The FAA Chief Counsel’s office, however, did not view it that way, holding that the manner in which flights were posted amounted to the equivalent of advertising charter flights by holding out availability for common carriage:

Accordingly, we conclude that, with regard to pilots using the AirPooler website, all four elements of common carriage are present. [“(1) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation or hire”] By posting specific flights to the AirPooler website, a pilot participating in the AirPooler service would be holding out to transport persons or property from place to place for compensation or hire. Although the pilots participating in the AirPooler website have chosen the destination, they are holding out to the public to transport passengers for compensation in the form of a reduction of the operating expenses they would have paid for the flight.

The new MacPherson Letter may be viewed here. The earlier Haberkorn Letter here.

Postscript: The FAA Chief Counsel issued a second opinion on the same subject the next day: the 2014 Winton Opinion, available here.

Posted in Aviation