Sal’s Law
LD @ KHPN Sal, I recently developed a plan to reduce the cost of flying to a family function next month. I want to go up on a social media web site and offer flights to anyone going to the same destination that would like to fly along. The only cost would be their fair share of the operating expenses. They get to fly along and I get to fly for half the cost or so. It sounded like a good plan until I ran it by a CFI I know, who told me to run it by you. He believes this may be a commercial operation even though we are only sharing cost?
Sal’s Law: Well, with everybody “running it by” someone I was just looking to run it by someone here in my office, but everyone left, so here it goes. In order to answer your question I have to take the usual lawyers way out; “it depends”.
FAR 61.113(a) provides that “no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire…” That would sound like a total prohibition to what you have planned, but there are numerous exceptions. The applicable exception here is section “c” which states in part, “a private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil and airport expenditures or rental fees.” So if you have a passenger on board who wants to share the cost with you, this section allows you to do that.
But wait, it gets more complex. There is a common carriage requirement in the same law, sometimes referred to as a common purpose. If you and the passenger have a reason in common for conducting the flight, then you have a common purpose. The idea of common purpose for the flight is critical to its legality under the section.
There is also a requirement that you not hold yourself out to the general public for such flights. The crucial determination is whether the Pilot in Command is “holding out” to the public or a segment of the public, for this particular flight. Put another way, if you are advertising the flight just to find passengers, then it is probably going to be deemed an impermissible act. A pilot who places a post on a Face Book page and offers a ride to anybody who wants to go to Joe’s Greasy Diner on Sunday and split the cost, would be “holding out” to the public and therefore barred by 61.113. If, on the other hand, you put out a post only to your close family that you would be willing to bring them along to attend the annual family picnic and share in the expenses of the flight, then you are covered under Section 61.113, and therefore permitted to share the costs of the flight.
So it is important to tread carefully on these types of operations. Keep the group small and with a common purpose and only share the pro rata portion of the flight expenses and you will most likely be in good favor with the FAA. Of course, don’t forget to post your flying pictures to your Face Book and Twitter account following the flight, so we can all see you in the silly family picnic tee shirts!
T.L. @ KHFD I was just flying an IFR departure out of our local airport when I was told to “fly at or below 1500 feet until at the Hudson River”, by ATC. Shortly before I reached the river the same controller advised me, “frequency change approved, have a good day.” I changed frequency and began to climb, only to be stopped by my pilot friend in the right seat who warned me that they did not cancel the altitude restriction. We leveled off to avoid the problem and flew on to the Hudson River before climbing. Is the altitude restriction cancelled when I get the frequency change?
Sal’s Law: Great question and one which is often heard on the airways, especially in busy airspace where words are at a premium. The answer can be found in the pilot-controllers manual which requires that the altitude restriction be maintained “until cancelled” by ATC or until you reach the limit of the clearance. In this case, when you reached the river, the altitude clearance would automatically be cancelled. However, telling you to change frequencies is not a lifting of the restriction. Often, on departures, that restriction is put in place to allow a departing aircraft to overfly your path on the same or similar heading. For example, at a mixed use airport with a departure procedure, a slower aircraft may wish to fly in the direction of airline departures. In order to accommodate both aircraft, ATC will altitude restrict the slower one and allow the faster to fly at a normal climb above you. By issuing to you a frequency change, the restriction has not cancelled and therefore you must continue with the limitation in place. There is no harm in asking the controller specifically since they are often working numerous aircraft and may have just forgotten. The alternative is to maintain the restriction until you reach the limit of that instruction. Confusion in busy airspace can lead to close encounters of the unwelcome variety!
Blue Skies all!
Sal Lagonia Esq., is an Aviation Attorney, Professor of Aviation Law and frequent speaker on aviation safety issues. Questions may be sent to Sal@LagoniaLaw.com or to his main office at 914-245-7500.