FAA

Clear the Runway: The Fight Over 'Uber for Planes' Is Coming to Congress

The FAA banned flight-sharing apps, but Sen. Mike Lee has introduced a bill to overturn that decision.

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Ingram Publishing/Newscom

Long before anyone was talking about the sharing economy, private pilots across the United States were already engaging in it. They used bulletin boards at general aviation airports to advertise planned trips to prospective passengers who might want to come along for the ride and share the costs of the flight.

Pilots do that because flying is an expensive hobby. The Aircraft Owners and Pilots Association warns would-be aviators to be prepared to spend more than $225 an hour when all flying costs—including fuel, insurance, and airport fees—are included. Since private pilots have to log at least three takeoffs and landings every 90 days to maintain their licenses, there aren't many viable ways to dodge those costs. So they've been sharing costs with passengers since at least the 1960s. For pilots, it's a crucial method of financing a flying habit. For passengers, it's an alternative way to reach a destination.

In the age of Uber, it has the potential to be much more. But the Federal Aviation Administration (FAA) stands in the way.

In 2014, the FAA shut down attempts to turn those analog billboards into digital ones, ruling that pilots who use online flight-sharing apps would be regulated as "common carriers" like commercial airlines. While that ruling doesn't directly ban those apps, no private pilot making weekend trips in a single-engine Cessna is going to subject himself or herself to the additional licensing and certification requirements (or mandatory liability insurance) necessary to be a commercial pilot in the eyes of FAA.

In the wake of the agency's ruling, one of those just-launched apps, FlyteNow, took the federal regulator to court. But last year the U.S. Supreme Court declined to take the case, seemingly grounding the apps for good.

Now Congress has an opportunity to overrule the FAA.

"A personal operator or a flight operated by a personal operator does not constitute a common carrier," reads part of the Aviation Empowerment Act, a bill introduced today by Sen. Mike Lee (R-Utah). The legislation maintains the current prohibition on private pilots making a profit off flights offered via flight-sharing apps, but it would otherwise allow for the creation of digital billboards advertising trips.

"Innovation is key to competition and accessibility," Lee told Reason. "Studies and experience with cost-sharing services have proven to be safe and effective in other countries, and it is past time we enact them in our country as well."

Allowing flight-sharing is a win-win for aviation enthusiasts, whether they are pilots or just enjoy flying. And the small number of private planes and pilots, along with those rules against letting noncommercial pilots earn a profit for their services, means that flight-sharing is unlikely to disrupt commercial airlines in the same way that Uber disrupted the taxi industry. Almost everyone has a car; very few people own private aircraft.

Apps like Flytenow and AirPooler launched in 2013, not long after Uber was becoming a ubiquitous part of non-airborne transportation. Naturally, the apps were often referred to as "Uber for the skies" as the subsequent regulatory and legal battled played out.

But that characterization is not entirely accurate. Unlike Uber or Lyft, these flight-sharing apps intended to do nothing more than the bulletin boards in general aviation airports: They connected pilots and passengers for the purposes of sharing the cost of a flight. Unlike with the ride-sharing services, no one was earning a profit—that, they feared, would violate the FAA's rules.

In other ways, the apps did resemble ride-sharing services. Pilots and passengers had individual profiles, and a ratings system provided feedback for other users. Running the current bulletin board network through an online app is likely to increase transparency and safety for all involved, even as it opens up the practice to a larger pool of people.

In a 2017 paper for the Mercatus Center, Christopher Koopma blamed the FAA's ban on the fact that Congress failed to clearly define what constitutes a "common carrier." Without any definition in federal statute, the agency was left to make its own definition, which it did in 1986 by creating a four-part test.

Before flight sharing apps like FlyteNow launched, developers approached the FAA to make sure they were staying on the right side of the law. Asking permission might have been a mistake. Acting on their own authority, the FAA used their own common carrier test, ruled the apps to be effectively the same as a commercial airline, and "imposed a significant limitation on the right of private pilots to engage in cost-sharing to which they would otherwise be entitled," wrote Koopman.

"According to the FAA, it is perfectly okay for strangers who meet over a physical bulletin to share a flight, but if those same people meet online, where flight-sharing services such as Flytenow offer verified identities, then the flight magically transforms into an illegal commercial operation" FlyteNow co-founder Alan Guichard told Forbes shortly after the FAA grounded his app.

In other words, the battle over flight-sharing has followed a predicable arc familiar to anyone who has watches the interplay between Congress and the executive branch on a host of subjects, from health care to the environment. Congress passes a broad, ill-defined statute and leaves federal regulators to create specific rules within that standard. When the resulting rules do not comport with congressional intentions, lawsuits are launched. The courts usually side with the regulators, because Congress granted them the authority to make those rules.

"The problem here is that Congress has granted an incredible amount of authority over the decades to the FAA," says Marc Scribner, a senior fellow at the Competitive Enterprise Institute. Lee's bill, Scribner says, is exactly the type of thing Congress should be doing more of—clarifying in statute how regulatory bodies should be engaging innovative developments in the marketplace. "This is a job for Congress, not for the regulators," he says.

The FAA could decide on its own to pull a 180 on flight-sharing—or could be ordered to do so by President Donald Trump or Transportation Secretary Elaine Chao. But congressional action would have the most lasting impact, and would provide important clarity to the question of what constitutes a common carrier for the purposes of FAA regulation, something that may factor into future developments in air travel.

The longer Congress waits to act, the further American air travel will fall behind the rest of the world. Wingly, a flight-sharing service that allows pilots to post upcoming trips and allows passengers to request them, is already active across Europe. You can book a private flight from Liverpool to London, for example, for less than £60. Pilots can offer sightseeing trips in addition to one-way travel. "Join me as we laugh at the cars stuck on the M25″—a major highway around London—says one current ad.

It's not hard to imagine a similar service taking off in the United States. If the FAA won't let that happen, perhaps Congress will.

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  1. Why not write the apps in analog?

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  2. Why does the Supreme Court get to decide which cases to take? Those fuckers should deal with all the cases that get brought up. What, they don’t have the time? May be it’s time we admitted to ourselves that the idea that nine old fuddy-duddies are the ultimate arbiters of what is allowed for 300 million people is comically ridiculous.

      1. Look, me and the International Tennis Association have some bad blood. If they gain power I’m fucked. So let’s not joke.

        1. Ah, you’re ok. That’s the Intentional Teasers of America, and you just got teased, bro.

          1. “Don’t tease me bro!”

    1. Yeah, I’ve always thought the idea that they can decline cases is kinda bullshit. They should pretty much have to take anything that makes it through the court system all the way up to them. Nobody is going to fight a case all the way up to the supreme court unless it is something relatively important, it’s just too damn expensive. That they can just wave off important issues because they don’t want to deal with it is BS.

  3. If the FAA won’t let that happen, perhaps Congress will.

    *plays laughtrack*

  4. I’m sure Congress will screw this up too.

    I can imagine every GA airfield getting TSA security. Can’t let them terrorist ride share in grandpa’s Cessna 150

  5. “The Aircraft Owners and Pilots Association warns would-be aviators to be prepared to spend more than $225 an hour when all flying costs?including fuel, insurance, and airport fees?are included. Since private pilots have to log at least three takeoffs and landings every 90 days to maintain their licenses, there aren’t many viable ways to dodge those costs.”

    I missed my calling as a bush pilot, which, no, isn’t like being a butt pirate at all. It’s a guy who can take off and land in short distances without a runway. They supply rugged individualists and such in the Alaskan wild. Since there aren’t any Nazi’s to shoot out of the sky in a P-51 or Japanese carriers to dive bomb in a Corsair a la “Pappy” Boyington (Baa, Baa, Baa), I’ve never wanted to fly anything more complicated than a Piper Cub, and you don’t need an airfield or to rent a hangar–any old barn with enough land around it will do.

    https://www.youtube.com/watch?v=Y7Jwde4EAVw

    1930s technology. You can fly out into the wilderness, land, and take off again anywhere with 50 feet of pasture?

    That’s better than riding my motorcycle through the wilderness. It’s kind of amazing that the government hasn’t completely destroyed the freedom to fly ourselves around like that. I guess Musk or Google will get around to ruining it eventually.

    1. Amen. Bush pilots were the only real way Dick Proenneke could get his mail in Alaska. That was pretty much all he needed, since he did the rest by himself. These rules are ridiculous – – you can put up a paper flier in the break room of a private aviation lounge at the airport, but putting it on an internet bulletin board is a no go? Nanny’s need to change their own diapers.

    2. I missed my calling as a bush pilot, which, no, isn’t like being a butt pirate at all

      Yeah, that was a real crushing realization for me.

    3. I’ve been interested in ultralights for exactly this reason. no license required, no annual mechanical certification to work on your own plane, no black boxes, or flight plans. hell you don’t even have to have a radio. Limits on weight, speed, and flying at night or over cities are the only real restrictions.

      With the recent advancement of brushless motors, They already have electric planes like the E gull based off the gull 2000 frame. If we ever advance battery tech to reduce the weight and increase capacity, and maybe a spray on solar panel film. that will get rid of the 5gal gas tank and any distance restrictions. With an electric control system, In the event of a FAA inspection, you could lock out full throttle with a simple code, that way the legal limit of 63mph can be finessed. I mean the gull 2000 frame has a VNE of 120mph so crusing at ~80 with no chance for speeding tickets, manufactured searches or getting shot for reaching for your wallet too fast seems like an optimum alternative for medium to long distance travel.

      1. Solar powered flight makes electric vehicles look sane.

        1. Dummy- the sun is up in the sky and so is the plane. Duh

    4. FWIW, the 3 takeoffs and landings in 90 days is only necessary if you want to remain rated to transport passengers. It is not a requirement if a private pilot is flying only him/herself. It can also be done the day of a flight. So, if you’re taking passengers somewhere, you can just show up at the airport before they do and execute 3 quick takeoffs and landings in succession to get back up to code.

  6. “private pilots have to log at least three takeoffs and landings every 90 days to maintain their licenses,”

    This assertion is false. A pilot license/certificate remains valid indefinitely. Boehm is probably confusing the requirements a pilot must meet to take passengers (CFR 61.57(a)). If I don’t fly for 6 months, say, I can still go fly. But if I want to take my wife someplace then the requirement is trivially met by me saying “hang on a sec hon – I’m going to make 3 takeoff and landings in the pattern before I let you on board and we depart.”

    That said, private pilots are required to undergo a flight review every 24 months with an instructor and may not act as pilot in command till such a review is completed (CFR 61.56)

    I agree that the FAA’s position is illogical and inconsistent but I doubt the average private pilot would see much benefit from a change in the regs. The current FAA regs and their interpretation mean it is perfectly dandy for private pilots to fly with friends, relatives, or strangers so long as the private pilot don’t make money on the deal. The danger to the passengers is identical whether the pilot profits or not. The intent of FAA seems to be to protect the “uniformed” public who may mistakenly think a private pilot and an airline transport pilot are equally skilled and operating equipment with equivalent safety standards.

    And yes, ironically, the British now have regs that allow their pilots more freedom than here in the US.

    1. The intent of FAA seems to be to protect the “uniformed” public

      yeah they’re out to protect the uniformed public, alright… all those gummit uffishulls have their own uniform, and need protecting from the likes of the great non-uniformed unwashed….

      1. It’s kind of insane that the public would believe that private pilots flying Cessna 172s and commercial pilots flying 747s are in even remotely the same league. Do they think that Prius drivers and long-haul truckers are equivalent?

        1. Have you met the American public?

      2. I lost an “n” – anyone seen it? Anyway, I should have used the phrase ‘”naive” public’ since that more accurately describes the FAA bureaucrat’s view of the public.

        1. Uninformed public is redundant.

  7. In so many ways, the FAA is stuck in the Tri-Motor Era.

  8. Stupid gummit hooh hahs, always looking for some new way to control.

    On WHAT basis do FedGov have any authority to speak to aviation in any way? Especially non-commercial private general aviation.

    Of COURSE a private pilot COULD be far less skilled than the guy driing your 767 last week. But that does not seem to be much of an issue when it comes to non-commericaly ticketed drivers for Uber/Lyft, does it? Those guys may spend a bit more time on the road but in no way are they as skilled, necessarily, as the guy who’s been driving a Greyhound for twenty five years. But the general public say SO WHAT?? and climb on in anyway.

    COMMERCIAL means for profit. It means using the piece of equipment as a means of production. Private means no profit motive.

  9. Although I basically agree with the post (with limited knowledge of the issue) I do find a couple of statements interesting.

    1) Running the current bulletin board network through an online app is likely to increase transparency and safety for all involved, even as it opens up the practice to a larger pool of people.

    the 1st thing I thought of was Facebook, and along with the current congressional hearings

    2) Congress should be doing more of?clarifying in statute how regulatory bodies should be engaging innovative developments in the marketplace. “This is a job for Congress, not for the regulators,” he says.

    After listening to many of the questions they asked do people actually think members of congress are smart enough to make technical decisions in laws?

  10. If a private pilot flying solo takes pictures or videos while flying around, FAA has no problem.
    If the pilot should make money from those pictures or videos, the pilot is in violation of the FAA regulations.
    Same scenario in both cases, only difference is in the ultimate disposition of the images. So is posting one of my flight videos to Youtube legal or not? How is the public interest served by such a distinction? Even the FAA has trouble keeping their interpretations consistent, as shown by this FAA Chief Counsel letter: http://tiny.cc/mrolsy

    1. Correct. Zero to ten cents winds you up in bureaucratic jail. I can fly a box for free anywhere I can get gas as a private pilot. Take a dime for doing it and I’m a danger to public safety and must upgrade to a commercial pilot. I can take four strangers to Puxatawney for free. No problemo, Mac. If they give me even a dime, in the slammer! If I say I am going to Smut Eye, Alabama and you respond that you’d like to go then we can share the expenses. However, if you approach me to take you to Smut Eye then I must jump many firey hoops for the FAA first.
      This creates aerobatic stresses on logical reasoning which the FAA does it with aplomb.

      1. If those strangers gave you no more than an equal share of the flight-related costs of the trip and you were planning on flying to that destination whether or not the strangers were with you, then, you would be legal. The fact that you were planning on flying to that destination anyway is the important part.
        I never understood how they could determine if you would have gone to a particular destination with or without those passengers, but that’s the way it was explained in flight school.

  11. The only thing dumber than this particular conflict between Private and Commercial licensing is the difference between Commercial and Air Transport licensing.

  12. I always love the safety rationale tossed out there when people start talking about these issues.

    The difference between a flight needing only a private pilot’s license and one needing a commercial license is profit margin. I can fly the exact same people, plane, route, etc. and the only that will force me to need a commercial license is if I make more than 0% profit on the flight. Even accepting a tip could get a private pilot in trouble.

    1. In reality it boils down to a restraint of trade scheme. The rationale ised is that paying passengers have a greater expectation of competence and safety. My response to that is to pose the question: than my mother, my wife, my kids? Baloney!

      1. I think it’s more because if private pilots were able to make money carrying passengers, then they would have no motivation to put the effort into getting their commercial.

  13. Scenarios regarding common vs private carriage and “holding out” and “pro rata expenses” etc account for probably 70% of the commercial oral exam. Pilots should all know the rules. Having an online bbs where pilots can fly and share pro rata expenses shouldn’t be a problem.

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