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How the FAA Killed Uber for Planes

Flight-sharing helped fill seats on small, private trips and cut costs. But regulators stopped it.

private jetGordoviciousPrivate flight has long been a luxury limited largely to the über-rich or super dedicated. Unless you have the deep pockets or connections to buy or rent your own small plane, plus a pay for a pilot, fuel costs, insurance, and hangar fees, you will be stuck in the chicken coop of crammed commercial flights with the rest of us peasants for all your flying needs.

But what if it didn't have to be that way? What if you could purchase an empty seat on a private flight that was going where you needed to go anyway for a majorly discounted price? This was, for a glorious and brief period of time, made possible by a promising new crop of startups dedicated to bringing flight-sharing to the masses.

Dubbed "the Uber of the skies," startups like Flytenow and AirPooler aimed to connect pilots whose private flights were not yet filled to passengers eager to reach their destinations without suffering the horrors of commercial air travel. Founded in 2013, the services were a great win-win for both parties: Pilots no longer had to simply eat the cost of empty seats on each trip, and passengers got to enjoy the thrill of small-scale flight for a very affordable price. For the first time, it seemed like consumers would have a real inexpensive alternative to the hell of economy class travel.

That is, until the Federal Aviation Administration (FAA) caught wind of all this innovation and decided to quash it once and for all. In a sneaky bid to shut down this kind of arrangement, the FAA decided to expansively interpret its own definition of a "common carriage" operator so that non-commercial small-scale pilots using these services would be legally put on the same level as the big boy commercial flights—with the same expensive regulatory and licensing requirements.

The FAA knew that small services like Flytenow and AirPooler simply could not keep up with these requirements, and thus effectively shut them down. Flytenow valiantly challenged the FAA's capricious actions in court all the way up to the Supremes; but unfortunately, the Supreme Court declined to take up the case in January of this year, effectively upholding the lower courts' siding with the FAA.

My Mercatus Center colleague Christopher Koopman recently released a study analyzing the sad saga of flight-sharing's destruction at the hands of the FAA. It is an amazing tale of regulatory overreach and targeted statutory interpretation that seems to have been undertaken for little reason beyond FAA antipathy to non-commercial cost-sharing arrangements. And unfortunately for all of us non-millionaires out there, this agency bias ultimately leaves the public bereft of an encouraging new development in transportation.

To understand the current brouhaha surrounding the legal status of flight-sharing services, you have to know a little bit about the FAA's historical approach to non-commercial flights. Services like Flytenow and AirPooler are really only a new evolution of long-standing practices among amateur pilots.

For around as long as small scale flight has existed, pilots would leave messages on airport bulletin boards advertising their upcoming flight plans. Other pilots who needed to get to the same destination could hitch a ride and help defray the cost of the unused seats. This kind of cost-sharing arrangement made the relatively expensive hobby of amateur flight a lot more reasonable for all parties involved, and was explicitly authorized in the federal code, albeit with a considerable set of limitations. Chief among these caveats was that flight-sharing pilots could not seek to profit from flights, but rather merely offset the costs. This was good enough for the pilots' needs, and the convention became a critical and fiercely defended element of private flight. Flytenow and AirPooler are merely digitized versions of this practice, which allow pilots and passengers to connect and contract for mutually-beneficial air travel.

America's aviation regulators have long loathed the benign practice of cost-sharing in private flight. They attempted to outright ban the practice two times in the past, once in 1950 and again in 1963. Yet both times, the Civil Aeronautics Board and Federal Aviation Agency (precursors to the modern FAA) were forced to back away from their attempted regulatory expansion after immediate and severe opposition from the private flight community.

With its expansion of the "common carriage" designation to cost-sharing arrangements like Flytenow and AirPooler, the FAA may have won its first major success in its longstanding efforts to clamp down on the practice. But there is clearly little difference between such services and the analog bulletin board system that predated it—it is just a digitized version of the practice. Unlike airline carriers, cost-sharing pilots do not earn a profit, nor are they obligated to shuttle any passenger that wants to purchase a ticket—they can turn down anyone they want.

But that didn't stop the FAA. The regulator's prevailing "common carriage" rules were not established by Congress, but were promulgated by the FAA in 1986. There is a four-part test: If an airline operator undertakes 1) a "holding out of willingness" to 2) "transport persons or property" 3) "from place to place" 4) for "compensation or hire," it will be considered a common carrier subject to regulations on commercial airlines.

When Flytenow and AirPooler were first getting off the ground, their attorneys reached out to the FAA to verify that their activities were all above-board. Unfortunately, it may have been better for them to have asked for forgiveness than permission: The FAA responded that such services indeed fit the definition of a common carrier, despite the fact that pilots would not be soliciting passengers from the general public (condition #1) or making a profit (condition #4). For some reason, a pilot can suddenly become a common carrier if he advertises an open flight online, but not if he posts it to a bulletin board in the real world. It is a tortured logic, but it is unfortunately the one that the FAA and the courts are sticking with.

Underlying this regulatory antagonism is the legal distinction between a commercial and a non-commercial pilot. All airplane pilots are required to hold current certifications in order to legally fly. But the requirements differ depending on the pilot class. Hobbyists are only required to log three takeoffs and landings every three months, plus a minimum number of flight hours. Commercial pilots on the other hand, who routinely shepherd hundreds of lives through the skies, must meet more stringent requirements.

Regulators, therefore, want to jealously block non-commercial pilots from engaging in any kind of activities that might even superficially resemble commercial activities out of an abundance of caution for passenger safety. The flight community would not stand for a ban on bulletin board messaging, but the FAA got away with it when it came to digital platforms.

Yet paradoxically, limiting cost-sharing abilities for non-commercial pilots may actually make those activities less safe. As Koopman points out, non-commercial pilots will be less able to log air hours if they cannot afford to practice. Cost-sharing therefore allows pilots to become more proficient and therefore safer in the skies. And on the consumer side, cost-sharing allows for efficiency in air travel (and much more comfort and enjoyment).

There is an easy solution to the FAA's regulatory overreach. "This problem can be solved by relatively simple congressional action," Koopman concludes. Congress could create a straightforward definition of a common carrier in aviation that would allow for promising innovations such as flight-sharing, while ensuring the safety and affordability that consumers and pilots alike desire. And such a reform would have the rare attribute of cutting across typical party lines. As far as innovation in aviation goes, there is definitely a way. Now the challenge is to get our Congress to muster up the will.

Photo Credit: Gordovicious

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  • BearOdinson||

    This problem can be solved by relatively simple congressional action

    What a cute kid! She is adorable!

  • Radioactive||

    oooh, puppies & unicorn farts!

  • Get To Da Chippah||

    Too bad the GOP can't even pass gas and get it to Trump's desk.

  • Griffin3||

    The FAA has been crapping out "regulatory overreach" for decades, for ... how old is the FAA anyway?

  • Unicorn Abattoir||

    Probably founded on 12/18/1903.

  • dantheserene||

    This seems more like slugging than Uber, since there is no profit for the driver/pilot.
    For those of you far from Northern Virginia, slugging is a popular form of ad hoc carpooling where strangers are given rides to allow for use of High Occupancy Vehicle (HOV) lanes. There are some designated pickup points for morning and afternoon rush hours, or drivers cruise commuter lots or bus stops to find people going in the same direction. The only government involvement I'm aware of is a few signs in the pentagon parking lot.
    No money changes hands, the driver gets to use the more efficient lanes and the slug gets a free ride rather than taking a bus or train.

  • Mickey Rat||

    From what I have heard, the FAA considers civil aviation to be something of a nuisance, they wouk2d like to regulate it out of existence as they can.

  • Radioactive||

    I can see where that whole Aviation thing would be quite burdensome to our stalwart regulators...

  • pan fried wylie||

    WON'T SOMEONE THINK OF THE PILES OF REGULATORS DYING IN THE STREET FROM EASY ACCESS TO CIVIL AVIATION!!!

    You heartless monsters.

  • notJoe||

    PILES OF REGULATORS DYING IN THE STREET

    I'll be in my bunk.

  • Mickey Rat||

    Dealing with the big airlines and freight carriers are easier than individual citizens, they tend to be unpredictable and ornery.

  • John Thacker||

    Civil aviation is subsidized by commercial aviation, though, especially on air traffic control. Evidence for which is that it's the civil aviation guys who complain the most at suggestions to privatize air traffic control, whether Canada-style or otherwise. The CEI, Reason Foundation and others have written on that.

  • MJBinAL||

    Yep,

    Civil aviation gets a free right on the air traffic control system, REQUIRED BY COMMERCIAL AVIATION because they fly at high speeds, with minimum separation, into congested airspaces, It increases the cost of fuel by 30% or more, requires purchase of thousands of dollars of extra equipment, all for civil aviation to support an air traffic system that primarily exists to support commercial aviation.

    Yep, this civil aviator area pretty selfish not to be thrilled to have to pay an equal share for that air traffic control system they seldom need are often do not use.

    General aviation hates the "fees" approach to air traffic control because it forces them to use a system they don't need and then overcharges them for using it. The result is that it does just what the airlines want it to do, get all those irritating little planes out of their private airspace.

  • R. K. Phillips||

    Actually, the technology exists to eliminate air traffic control as we know it; it was tested in Alaska, in a rudimentary form, perhaps twenty years ago as "Free Flight". Planes talk to each other to mitigate sharing airspace.
    I am a GA pilot, and I am also one who has no issue with the "user fees" for ATC.

  • MJBinAL||

    ep,

    Civil aviation gets a free ride on the air traffic control system, REQUIRED BY COMMERCIAL AVIATION because they fly at high speeds, with minimum separation, into congested airspace, It increases the cost of fuel by 30% or more in taxes, requires purchase of thousands of dollars of extra equipment, all for civil aviation to support an air traffic system that primarily exists to support commercial aviation.

    Yep, these civil aviators are pretty selfish not to be thrilled to have to pay an equal share for that air traffic control system they seldom need and often do not use.

    General aviation hates the "fees" approach to air traffic control because it forces them to use a system they don't need and then overcharges them for using it. The result is that it does just what the airlines want it to do, get all those irritating little planes out of their private airspace. It IS their private airspace isn't it?

  • pan fried wylie||

    You didn't build that airspace.

  • Bgoptmst||

    "We" did and do though ...

  • Scarecrow Repair & Chippering||

    I remember when this happened, but thought it long over. The fact that it just recently hit the Supremes is amazing.

    Every time statists stamp out innovation, whether this way, the precautionary principle, or just general FYTW, I wonder how petty and dismal their lives must be to see these actions as triumphs. Maybe they are taking too many meds. Whatever it is, I am sure glad I don't have the same pessimistic gloomy outlook on life and my fellow humans.

  • Nicholas Conrad||

    Dismantle the regulatory state already!

  • Dillinger||

    >>>There is an easy solution to the FAA's regulatory overreach.

    a shit-ton less money to the FAA might be a nice start

  • BestUsedCarSales||

    Fire is one of mankinds oldest tools as well. Simple and easy to use.

  • Robert||

    Hobbyists are only required to log three takeoffs and landings every three months, plus a minimum number of flight hours.


    What happens if they stop for a few mos.? When they resume, do they have to start over w a learner's permit?

  • Radioactive||

    nope, whole new plane...it's a subsidy to Boeing & MD

  • MelH||

    Private pilot here.

    The "three takeoffs and landings in the past 90 days" rule is a rule that allows pilots to carry passengers. We don't lose our licenses, we just lose "passenger currency". It is easily remedied by renting a plane and doing those takeoffs and landings.

    A pilot license in the US does not expire. However, in order to validly fly at all, a licensed pilot must also have a flight review with a certified flight instructor (or equivalent) in the past 2 years.

  • pan fried wylie||

    how does that (or equivalent) work, is it in reference to the review or the instructor?

  • Zephyrus||

    This is a good example of shoddy reporting:
    " Hobbyists are only required to log three takeoffs and landings every three months, plus a minimum number of flight hours." Pilots certificates are not divided into "hobbyists" and commercial licenses. There is no ongoing hourly requirement for either and there are many more requirements not mentioned. The reporter is confusing requirements to *obtain* a certificate and requirements to maintain currency.

    To understand the FAA's position (which I don't entirely agree with) its important to note that commercial aviation is far safer than commercial auto transportation, this despite a far more complex environment for both airplanes and pilots. A major reason for this (very impressive) record is the tremendous burden placed on commercial pilots and aircraft for certification and continued airworthiness that does not exist for private pilots and aircraft (Part 91 operations). The record for Part 91 operations is far worse than that for commercial operators. Thus, the FAA has been very hard on people and organizations who try to blur the line between the two, for good reason IMHO. Flytenow and AirPooler are not the first to try this.

    (TO BE CONTINUED)

  • Zephyrus||

    I suspect that from the FAA's perspective, these organizations are a prelude to an Uber-like mega organization that *does* seek to make a profit from Part 91 operations, and thus should be subject to commercial (common carrier) requirements. It's hard to imagine that they are and will remain simple bulletin boards for pilots. Such simple bulletin boards already exist and are used successfully by pilots and passengers. If Flytenow and AirPooler were allowed to proceed, I have no doubt that they would foster a "fly for hire" operation, just as Uber does now. Although this would be a cost savings to passengers, it would come at the expense of safety.

  • dantheserene||

    So it might be profit based at some point in the future, so spike it now, while it is not profit based?

  • pan fried wylie||

    also, "at the expense of safety."

    Wouldn't it be awesome if there was some sort of monetary generation mechanism that would pay for that expense. Not profit though, cause, evil.

  • Radioactive||

    so never do anything new cause...it might be dangerous?

  • This Machine Chips Fascists||

    Yeah, pretty much. United States Persons are ignorant children who couldn't keep their noses out of a flame without the guiding hand of wise public servants. Chuck Schumer and Newt Gingrich love you and urge you to relax, it's just the tip.

  • Jima||

    Wonder if anyone in the FAA gloms onto the fact that by and large, pilots themselves are very determined to stay alive, which is a good incentive for maintaining safety in general. If someone is unsafe, you can bet the word will get out quickly. We adults should be able to accept whatever level of risk we're comfortable with, without Uncle Sam's permission... as long as we don't endanger others. Being a passenger on someone's aircraft, who has already had their flying skills certified, is not the same as playing Russian roulette. Hand wringing nanny-staters need to be collected up and placed in a cage for their own safety for a while. Then maybe they could appreciate the value of freedom.

  • pan fried wylie||

    Some sort of camp where the attendees can concentrate on the value of freedom. Finally, a solution we can all get on board with.

  • Death Rock and Skull||

    What are we getting on board? How are we going to get to this camp?

  • CE||

    ....it would come at the expense of safety.

    Yeah, those planes are way more likely to crash if they fill all the seats with paying passengers.

  • Darr247||

    Well, it's certain there's likely to be more casualties in a crash if the seats are all filled with passengers (paying or not).

  • RR250||

    They are more likely to crash with paying passengers on board. Passengers are distracting and more importantly add pressure to the pilot to complete the flight.

  • Death Rock and Skull||

    "Commercial" and "common carrier" are not the same thing. First of all, from a libertarian perspective, all common carrier nonsense in all industries should be abolished.

    But anyway, if the FAA wants to regulate safety, it should do it from the perspective of carrying passengers for compensation=commercial=higher standards, rather than this shit which reeks of purely economic (business practices) regulation in favor of rent-seeking airlines.

  • ||

    Isn't FAA's primary objective is to ground all flights and kill aviation completely so we all can be safe in our homes ?

  • Longtobefree||

    I suspect if there were a few hundred more TSA agents hired to strip search the private air travelers, the FAA would be just fine with this arrangement. It is the lack of federal overreach that is the issue, not air safety.

  • John Thacker||

    Congress could create a straightforward definition of a common carrier in aviation that would allow for promising innovations such as flight-sharing, while ensuring the safety and affordability that consumers and pilots alike desire.

    Pair it with Air Traffic Control privatization, which would eliminate the biased towards civil aviation taxes in favor of fair user fees (as Reason Foundation and others recommend), and you have the basis of a compromise that would help out civil aviation in one sense while taking away some of its subsidies with the other.

  • Death Rock and Skull||

    The vast, vast, vast majority of general aviation trips are conducted VFR. Which means ATC is only useful to the IFR flying air carriers to avoid hitting the VRF aircract (which fly well under them anyway).

  • Big Ed's Landing||

    Weird article. (1) Nowhere in the article do I see any way that the pilots are just sharing costs and breaking even at best. What is to prevent them from charging enough to make a tidy profit? What if they end up with 3 passengers on a flight instead of just 1? Do they reduce everyone's fare so they still just break even? (2) The author doesn't think that signing up with a ride booking service is advertising to the general public? Does she think the ride booking service is going to hide it's light under a bushel basket? Of course not. A 3x5 card on the bulletin board at a small airport reaches a handful of aviation geeks, but a ride service is going to promote their availability to the general public. (3) Sharing? Why do enthusiasts of this sort of ride booking service persist in calling this sharing? Nothing is being shared here...people are selling rides. Sharing is when my neighbor and I commute to the same workplace and agree to carpool and split expenses. (4) Uber and their ilk have made rule breaking a fine art, and have been banned from various cities as a result. If these flight-booking services are modeling their businesses after the auto-booking services, the FAA can expect wholesale ignoring of regulations and no safety or quality of ride assurance.

  • CE||

    Yeah, of course that's the point. And there's nothing wrong with it. Why can't they sell the seats at a profit? Why can't the passengers assess the risks themselves and fly that way if they want to?

  • Death Rock and Skull||

    Does any of that shit matter?

  • Death Rock and Skull||

    And selling is still a kind of sharing.

  • Leo Kovalensky||

    Big Ed, why don't you go land a plane at about 5000 ft below sea level somewhere, slaver?

  • Dennis Bergendorf||

    A good friend is a pilot and owns a Cessna 140. He sometimes takes me for rides, as long as I pay for fuel. He's a former instructor and a darned good pilot, but he can't charge me more than the fuel cost, because that requires a commercial license. If he were to go through the hoops to get said commercial ticket, would he be a better pilot and would I be safer? I think we know the answer to that.

    Are these regs in place to benefit corporations and stifle competition? Partly. But it's also because bureaucrats must be in control.

  • Elias Fakaname||

    It's justo like all the bullshit my state requires so I can legally sell a car at a profit. All designed to keep small vendors out

  • BestUsedCarSales||

    If he were to go through the hoops to get said commercial ticket, would he be a better pilot and would I be safer?

    Obviously, duh.

  • Zephyrus||

    Got news 4 U. If he is a "former instructor" and hasn't had his license revoked, he already has a "commercial ticket"

  • Cranedoc||

    Just think, if Al Gore used this service, he could offset his gross carbon pollution caused by his private jetting around the world! Why do you hate the planet FAA???

  • Joe Emenaker||

    The part you're glossing over, here, is that we pilots post notes about our upcoming flights on *airport* bulletin boards... usually at flight schools or places which rent planes. As such, the people who see these bulletins are people who can be expected to have some familiarity of what they're getting themselves into (the typical skill level of the pilot, the condition of the plane, etc).
    By listing the flights online, Flytenow and AirPoolers are making a *huge* shift toward making their services available to the general public and toward being a common carrier.

    "Ah", you say, "but they're still not doing it for profit!". Well... not so fast. I believe the FAA ruled that the accumulation of flight hours can be regarded as a type of profit. You see, in order to attain certain pilot certificates or jobs, pilots need a certain number of flight hours. Flight hours are so often the main barrier to the airline jobs that people will fly *just* to rack up hours. When faced with that proposition, if I were already willing to pay $160 to go fly for an hour in a Cessna 172 in order to earn another flight hour, getting to split it with 3 others would be quite a savings.

  • Joe Emenaker||

    What the FAA is trying to prevent, with their common-carrier criteria, is the possibility that an average Joe on the street is going to pay for a ride in a plane thinking that it's safe when there's no regular maintenance/inspection done on the plane and no drug testing done on the pilot. Consider, for example, once a pilot has their commercial certificate, the FAA is perfectly fine with his being paid handsomely for flying people who *know* him places. The thinking, here, is that friends, coworkers, and associates will have some idea of what kind of character this guy is and how well he maintains his aircraft.

  • Leo Kovalensky||

    So your position is that only the government can determine whether something is safe for a person? There's no longer personal accountability? Why have private flights at all if this is the case? Think about the safety of the people and the children.

  • RR250||

    It isn't that only the government can determine whether something is safe: Uber has many restrictions on its drivers and their cars that exceed government standards

    Flytenow and Airpooler put no effort into standards for their pilots and aircraft, and they never would as it opens them up to huge liability. And the average private pilot is far FAR worse than the average driver.

  • swampwiz||

    Flying an aircraft is lot more involved that driving a car.

  • swampwiz||

    *than* driving

  • RR250||

    The general public does not understand the level of risk involved in private general aviation. Every single media article refers to these schemes as "uber for airplanes," which proves the point. Uber is safer, better, and more convenient than traditional taxi service in every way, and that's what at least some of the general public will expect in "uber for airplanes." What they would be getting instead is a flight 400-1000x as likely to kill them as an airline flight, with accident rates similar to motorcycles. And the flights would not be reliable or cheap. The bottom line here is that airplanes are very different from cars!

    The real "uber for airplanes," which the FAA is absolutely happy with, are companies like ImagineAir in the south east, and Surf Air on the west coast. The former has a fleet of 80+ Cirrus SR22s with airframe parachutes flown by commercial pilots, with shared or private flights. Surf Air operates Pilatus PC12s. There are a lot of new airlines like these around the world, that are getting around the pain of large airports and TSA and using innovative pricing schemes to lower costs.

  • pxm||

    Who let you here with your common sense? I think "uber for neurosurgeons" is a great idea and any pre-med kid should be able to advertise his ability to get those silly tumors out of your head with knitting needles and a bit of lobotomying between friends. Something something slaver.

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