from the because-that's-what-the-FAA-does dept
But the FAA... doesn't like it. It claims that any offsetting of the pilots costs makes it a commercial endeavor and that violates the FAA's rules on private (non-commercial) pilots.
Private pilots as a general rule may not act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire nor, for compensation or hire, may they acts as pilot in command of an aircraft.Now, there is an exception to that rule if the passengers are paying a pro rata share of the expenses of the flight. So this shouldn't be a problem, right? Wrong. The reasoning here is about as opaque as a foggy morning in San Francisco. The FAA repeats that there's an exception for expense sharing, but then argues that AirPooler can't rely on this exception.
As such, although § 61.113(c) contains an expense-sharing exception to the general prohibition against private pilots acting as pilot in command for compensation or hire, a private pilot may not rely on that narrow exception to avoid the compensation component of common carriage. For this reason, the FAA has required a private pilot to have a common purpose with his or her passengers and must have his or her own reason for travelling to the destination.Got it? I've read it over half a dozen times and I'm still confused. There's an exception that says that a passenger can pay their share of the expenses and it doesn't make it a commercial flight, but... that doesn't apply here because it's compensation, as clearly determined by the fact that there's an exception for this kind of compensation. Say what?
Likewise, although airline transport pilots and commercial pilots may as as pilot in command on an aircraft carrying passengers for compensation or hire, they may not conduct a commercial operation involving common carriage without obtaining a part 119 certificate. You have urged that the test for compensation in commercial operations is "the major enterprise for profit" test set forth in the definition of commercial operator. Specifically, you state that a pilot would not be engaged in a major enterprise for profit "if accepting only the cost reimbursements allowed under § 61.113."
Based on the fact that the FAA views expense-sharing as compensation for which an exception is necessary for private pilots, the issue of compensation is not in doubt.
Therefore, the "major enterprise for profit" test in § 1.1 is wholly inapplicable. Accordingly, we conclude that, with regard to pilots using the AirPooler website, all four elements of common carriage are present. By posting specific flights to the AirPooler website, a pilot participating in the AirPooler serve 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. This position is fully consistent with prior legal interpretations related to other nationwide initiatives involving expense-sharing flights.
AirPooler apparently plans to ask the FAA "to elaborate" though the FAA's historical approach to almost any innovation seems to be "well, let's wait and not really make a decision for as long as is humanly possible." End result: significantly less innovation, not just from the likes of AirPooler, but all of the entrepreneurs who won't even try to build startups in the space.