AOPA Pilot Magazine - May 2016 - 24

PILOT COUNSEL

Expense-sharing flights
are still permissible

BY JOHN S. YODICE

Stick to friends with a common purpose
IT WAS ONLY a matter of time before the phenomenal
advances in technology would be used to try to expand
the time-honored flight-sharing privilege-expand it,
that is, so as to put together many more willing pilots
and passengers. Unfortunately, these well-meaning
efforts and the litigation they have spawned have created significant doubt in the general aviation community
about the continued availability of the legal flight-sharing privilege. Let there be no doubt, expense-sharing
flights are still permissible.
Let's review the law. Part 61 of the federal aviation
regulations generally prohibits a private pilot (similarly
a sport or recreational pilot) from carrying passengers
for compensation or hire. This prohibition contains
seven important exceptions that include certain charity
events, search and location operations, airplane-salerelated flights, and others. The exception relevant here

The essential point for pilots is that shared-expense
flights should not be offered to a broad segment of the
public interested in transportation by air.

JOHN S. YODICE

is an aviation
attorney, pilot,
flight instructor,
and longtime
aircraft owner.

24 | AOPA PILOT May 2016

allows a private pilot (and a commercial pilot and ATP
exercising only "private" privileges) to receive a pro rata
reimbursement from his/her passengers limited to fuel,
oil, airport expenses, or rental fees, so long as the pilot
and his/her passengers share a "bona fide common purpose" for conducting the flight. The common purpose
required by this exception to the rule is critical; the purpose must not be merely to transport the passengers.
So, too, the sharing of expenses is critical; the sharing
of expenses must be pro rata among all of the occupants
of the flight, including the pilot.
A recent decision by the U.S. Court of Appeals for
the District of Columbia has received some notoriety
and spawned some confusion. It dealt with a Webbased service through which pilots could offer their
planned itineraries to passengers willing to share the
pilots' expenses. The passengers were called "general
aviation enthusiasts" who become members of the service by filling out an online form. Anyone is eligible
to become a member. This case got started because
the developer of this service challenged an FAA legal
interpretation concluding that the pilots offering this

flight-sharing service on the website would be operating as "common carriers," which would require them
to be commercially certificated.
The court upheld the FAA's position. In its analysis, the court noted the important distinction between
private carriage and common carriage, with common
carriage being subject to more stringent operating
requirements beyond what is required under FAR Part
91. Common carriage involves holding oneself out as
willing to transport passengers, and doing or offering
to do so for compensation. The court's decision contains
a lengthy legal analysis that will be interesting to our
hangar-flying brethren, but the length and detail of the
decision tend to obscure the essential point that pilots
who would like to share rides should understand.
The essential point for pilots is that sharedexpense flights should not be offered to a broad
segment of the public interested in transportation by
air. If the offering is confined to a smaller, more related
group, it would be legal. According to the court, "other
kinds of Internet-based communications, such as
email among friends, for example, seem unlikely to be
deemed 'holding out' under the FAA interpretation."
Of course, the line between an offering to a broad segment of the public and an offering to a smaller, more
related group could be difficult to draw in close cases.
For example, the FAA has said that even carriers flying
members of only "one organization may be common
carriers if membership in the organization and participation in the flights are, in effect, open to a significant
segment of the public."
I don't expect efforts to expand the flight-sharing
privilege to end. But those efforts shouldn't cast doubt
on what general aviation pilots have been doing legally
for years. The court made clear, in language important
to extract from the decision, that "Private pilots continue to enjoy the right to share expenses with their
passengers, so long as they share a common purpose
and not hold themselves out as offering services to the
public." The court also said, "Pilots communicating to
defined and limited groups remain free to invite passengers for common-purpose expense-sharing flights."
So, expense-shared flights are still legal.
AOPA
WEB www.aopa.org/pps
http://www.aopa.org/pps
Table of Contents for the Digital Edition of AOPA Pilot Magazine - May 2016
