FAA Oversteps in Ride-Sharing Decision

[JimNtexas]

Flying Magazine Editorial by Robert Goyer

The money quote, which is IMHO 100% on target:

The fact that the FAA based its opinion not on the current law but on an expired statute shows that it knows it’s completely out of line here. It also exposes the level of ... I hate to have to say it, but in this case, one could make a strong argument that an agency that knowingly rules on a case in a way that makes its conservative position stronger despite not having the legal basis for it is corrupt. It is an abuse of power.

[snip]

If the FAA doesn't like that state of affairs, they should change the regs and not issue opinions arbitrarily and with utter disregard for the rule of law.

(emphasis added)

The FAA has created a backdoor rule making process that skips all the normal legal requirements that apply when they want to legally issue or change a real regulation.

The writer wants the alphabet groups to pressure the FAA, and that's a good thing.

The Pilot's Bill of Rights was a good step in right direction because it clarified that Chief Counsel letters are just opinions, not law. But I don't think FAA itself groks that yet.

But what really needs to happen is that these dictates need to challenged in Federal Court. I hope Airpooler does just that.

In the meantime, what can the ordianry pilot do?

DON'T WRITE THE FAA AND ASK FOR OPINIONS!!!!!!!! :mad2:

IF ANYONE EVEN SUGGESTS THAT THEN GIVE THEM A GOOD JOHN WAYNE STYLE SLAP!

The FAA lawyers will always, 100% of the time, provide the most restrictive possible interpretation of whatever question anyone asks them.

If you just must ask a question because your job depends on it then you need to hire a lawyer with a lot of political clout to ask for you. Clearly a former FAA law clerk isn't enough, just ask Airpooler.


The default position of the FAA law office is that GA suffers from insufficient micromanagement, and that's what you'll get when you give the FAA law clerks an opening to invent new rules!! :mad3:

 

[Jim Logajan]

The FAA has created a backdoor rule making process that skips all the normal legal requirements that apply when they want to legally issue or change a real regulation.

Opinion letters have never been considered by courts to be regulatory. You can find references to this effect in this post: http://www.pilotsofamerica.com/forum/showthread.php?p=1411235&post1411235

There is no statutory or regulatory requirement that the Chief Counsel follow any formal vetting of whatever they put in those letters. This becomes evident when you find that a later letter may correct or repudiate the contents of an earlier letter.

What such letters do accomplish is to provide notice of the line of argument the FAA might employ should they decide to take legal action. Also, the courts wont (or should not) treat the letters as evidence that a person "should have known the FAA would treat X as illegal" because the letters are, as can be seen by the letterheads, not directed at the public. Putting scanned copies up on a web page doesn't remotely meet the requirements for public dissemination.

 

[Jim Logajan]

I know some folks here think otherwise, but I'd ask them to show when the US Court of Appeals ever failed to defer to the FAA's interpretation of its own regulations in a pilot enforcement action. Witness credibility? Yes. Evidence? Yes. Jurisdictional issues? Yes. Interpretation of the FAR's? No.

It does not take long to find such cases if one takes even a miniscule effort to look; found this one within minutes of starting my search:

http://www.ntsb.gov/alj/o_n_o/docs/AVIATION/5472.PDF
Stated at its simplest, the Administrator here asks us to affirm the interpretation that the presence of drug metabolites in an airman’s urine prior to a flight amounts to prima facie evidence that the airman was “using” a prohibited substance at the time of his or her operation of an aircraft contrary to § 91.17(a)(3). However, the Administrator has presented no evidence of any actual prohibited substance in the system of the respondent at the time of the flight. For the reasons outlined below, we conclude that the Administrator’s proffered interpretation of his regulatory standard is arbitrary and capricious.

 

[Jim Logajan]

First, that's not the US Court of Appeals, it's the NTSB.

You are correct, in a way that really doesn't matter to me. The case wasn't appealed up the ladder as far as you specified. If the FAA thought it could have won at that level it would have appealed.

There is nothing in the AirPooler interpretation which "attempts to impose a requirement not contained in the plain language of a regulation".

I'm not actually interested in the contents of the letter under discussion. I'm just trying to put the letter itself into proper legal perspective as I understand such things.

And third, can you find another example among the hundreds or even thousands of interpretations of the regulations the Chief Counsel has made?

I'd appreciate it if you actually did the legwork to make sure your claims are reasonably valid before you make them so adamantly. First you wanted one counterexample, now you want a second, but wait, it doesn't matter because I'll need a large number anyway.

(By the way, has the Chief Counsel actually issued thousands of interpretations? Or just thousands of letters? If either is true, what do you think that means about the clarity of FAA regulations?)

IOW, there are so few cases where the NTSB has stated that an FAA interpretation is "arbitrary, capricious, or not according to law" that is really foolish to think you can win such a point before them. And while some argue that the PBOR has changed that, I've yet to see that change anything since the PBOR was enacted.

I will only agree that it makes sense to follow the regulations as best one understands them and try to take account any information that comes available, however the means.

If I believe that a Chief Counsel interpretation letter is not according to the law, then I will act on that belief rather than their interpretation. Others can do what they will, but since you insist others follow your advice, I'll advise them to follow mine.

With respect to the PBR, it appears that the first court to deal with it has limited the scope and meaning of its "full independent review":

http://scholar.google.com/scholar_case?case=2329339228184269922&hl=en&as_sdt=6,38&as_ylo=2013

 

[Jim Logajan]

With respect to Florida law, even thinking about Florida law is the UPL in Florida. I was told.

ABA document "State Definitions of the Practice of Law":

http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf

No one is receiving compensation or being hired to post their advice here. As far as I can tell it would even be legal to post one's advice about legal matters on PoA even while flying a plane and playing a banjo on one's knee. That can't be any harder than using a knee board in turbulence after all.

 

[Jim Logajan]

The word "incidental" is one everybody can understand--if the operation is only incidental to your other business then it isn't commercial. The act of canvassing for riders tells me it isn't "incidental". I think the gist of it applies equally to personal business as well as financial.

Funny you should mention "incidental" as something everyone should understand since the FAA lost a major case because it offered two different definitions of that word. As a result, as far as I can tell it is still possible for hunting guides with only private pilot licenses in Alaska to take money from hunters in exchange for flying them to places to go hunting.

 

[Jim Logajan]

I think this is the one he's talking about:

http://www.cadc.uscourts.gov/intern...9C50835B1B85256F15006C3F20/$file/98-1051a.txt

That's it. (This version is better formatted: http://scholar.google.com/scholar_c...as_sdt=6,38&case=11524765852581158083&scilh=0)

The court appears to have said the FAA had to go through a notice and comment (presumably NPRM) if they wanted to change their 30 years of using one interpretation for "incidental" in Alaska that seemed to differ from the definition used in the rest of the U.S.

I can't tell if the FAA ever went through that a second time with a notice and comment. My brief scan of FAA NPRMs since that case didn't turn up any likely suspects - but I probably overlooked it. Maybe the FAA said "F it" and went on with their usual business and have banked on the unresolved issue not later causing them problems.

 

[Jim Logajan]

I also think what's going to really kill this idea is that insurance companies are going to start writing exclusions for paying passengers on business/pleasure policies, especially if there's an accident involving a flight of this nature where paying passengers are hurt or killed and the lawsuit runs into the millions.

So long as the pro rata clause is operative, the whole idea seems to me to have little business merit - regardless of all other aspects.

Reasoning: The more passengers a Part 135 operator transports, the more money they can (in theory) make. By contrast the best a private pilot can hope to accomplish is reducing their loss - they can never make money. It isn't like they can make the loss up on volume. And there are only so many people they can fit in a plane even in the event they happen to luck out and fill the seats within W&B. So there is no pecuniary incentive for a private pilot to increase their flights, or buy a bigger plane than they otherwise need, or to fly where they wouldn't go anyway.

That said, such a web service might help those pilots who enjoy flying for any reason at all reduce their outlays for their obsession.

 

[Jim Logajan]

Whether a pilot is trying to build hours for a career in aviation, or just enjoys flying, reducing the pilot's out-of-pocket cost seems like a pecuniary interest to me.

Pecuniary interest involved? Obviously agree.
Pecuniary incentive exists? Disagree:

As I figure it, the pilot wanting to build hours will probably pay $30/hour or more using pro rata ride sharing to cut costs, while acting as CFI would actually earn the pilot money. Long run seems to favor the traditional routes to building hours; I don't see how a ride-sharing web site changes that.

With regard to just enjoying flying: The only pilot I'm intimately familiar with who just enjoys flying is myself. Much as I would love to cut the cost of aviating, such a ride-sharing service doesn't appeal. I can't think of a single flight that I've flown that such a service could have been used - for many different reasons.

Lastly, if a private pilot intends to make a profit flying people or packages around, then such a site is useful to them - and an extreme danger, since it helpfully centralizes all the crooks in one place for FAA scrutiny.

 

[Jim Logajan]

IAfter that, the insurance companies may put an exclusion in their policies about this or give the coverage for an extra premium.

What is the "this" that they would exclude? How would it be worded?