FlyteNow Sues FAA (Uber for pilots)

[midlifeflyer]

Folks will probability recall the discussions about the two Chief Counsel opinions regarding the proposed FlyteNow and AirPooler operations to set up a bulletin board for private pilots to post planned flights and for other people to pick a flight to go an and share the expense.

FlyteNow has sued the FAA over the interpretations with the support of the Goldwater Institute think tank. There are a few stories out there on it most pretty short. For anyone interested in reading FlyteNow's formal legal position, the Goldwater Institute posted it on their website: Petitioner's Brief

It's long - over 70 pages double-spaced, including some of the references. It goes further and makes a number of legal arguments but, to summarize a bit, the primary argument is (1) shared cost flight is a "traditional" pilot privilege; (2) shared flight requires some forms of communication between pilot and passengers. which the FAA has always permitted; and (3) the FlyteNow model follows all of the existing rules and interpretations, with; (4) only thing the twin interpretations in fact doing being prohibiting Internet communication (which they argue implicates first Amendment privileges among other things).

Being a legal brief, those statements are not just the opinion of the writer. They are supported by reference to FAA materials and interpretations, cases, and some historical documents. Just as a matter of history, some migh find the "traditional" sharing privilege argument and supporting material kind of interesting.

 

[Jim Logajan]

FlyteNow has sued the FAA over the interpretations with the support of the Goldwater Institute think tank.

AHEM...

The suit seems to make the fundamental mistake of treating an interpretation letter as a "final agency action". I haven't seen any court cases where such letters are treated as such - normally such suits are "won" by the government. FlyteNow will need to first get its nose bloodied by the FAA before a court is likely to consider any "final agency action" to have taken place.

See for example:
https://law.resource.org/pub/us/case/reporter/F3/357/357.F3d.632.02-1682.html

In the above case, a company by the name of Air Brake (substitute FlyteNow) sued the NHTSA (substitute FAA) over the contents of one of its chief counsel interpretation letters (substitute "ride sharing system" for "antilock brake system". This was (will probably be) the result:Soon after NHTSA posted the first of these letters on its website, Air Brake filed this action challenging the Chief Counsel's conclusion as well as the Chief Counsel's authority to issue the letter. The district court granted summary judgment in favor of NHTSA, reasoning that interpretive letters issued by NHTSA's Acting Chief Counsel do not constitute "final agency action" subject to judicial review under the Administrative Procedure Act. We agree that the tentative conclusions reached in the letters, which are based in part on Air Brake's representations about its antilock brake system and which NHTSA acknowledges are neither binding on the industry nor entitled to any administrative deference, do not constitute final agency action regarding the meaning of Standard 121 or Air Brake's compliance with that standard. At the same time, however, the letters do reflect final agency action with respect to the distinct question whether the Chief Counsel has authority to issue them, because the practice does not lend itself to further review at the agency level and has legal consequences. Yet because the practice of permitting NHTSA's Chief Counsel to issue advisory opinions in response to inquiries from the public does not exceed the Chief Counsel's authority (and indeed has much to recommend it), we affirm the district court's judgment in favor of the Government.

 

[Jim Logajan]

Jim, for some reason, the quote isn't working.

No, that is not what I'm talking about. I will steal this from elsewhere because I believe it to be the case, but I did not write it:

If you are referring to a post by me that is no longer visible, I realized after-the-fact that the reply I posted was not relevant to what to were talking about and deleted it - but presumably not fast enough before you saw it and attempted to reply. Sorry.

 

[Jim Logajan]

FlyteNow winning would be good for GA. More flights, more exposure, every FlyteNow ride is an intro flight. Exposing Joe public to the utility and fun of GA.

The FlyteNow lawsuit is likely going to get tossed. If or when they actually open for business and the FAA takes action, then they can make their case.

I think the business case is pretty dang weak. There aren't that many private pilots or available plane seats in the GA fleet to make it more than a curiosity. The GA planes fly too slowly and dispatch reliability will be too low to make it worthwhile to potential customers. And there isn't that much in it for the average private pilot.

Compared to Uber, whose population of potential drivers, vehicles, and riders number in the tens of millions, the population of potential pilots, planes, and riders number in the few thousands. There is no scale there.

You know what I think is the closest existing parallel to FlyteNow type services that gives some idea of its challenges? Angel Flights. Whenever I take a look at the Angel Flight West web site to see if I would want to fly any open missions (in theory only; I don't have enough hours) there are dang few, and often no, missions between airports that wouldn't cost me a fortune to offer. It'd be the reverse situation of course on a shared flying system, but I can't imagine it ever taking off (ahem.)

Ironically where I think the service might be of more interest is to CFIs and others already with commercial certs who would have another way to build hours on a budget - the kind of pilots who you'd expect to be "safer" than Joe Private anyway, thus muting some of the "ohmygod greenhorns" concerns.

Lastly, as a personal example, the last flight I took where anyone else might have had an interest in flying along with me was a flight from the Eugene, OR area to San Jose, CA. That was a 4 hour flight that I was prepared to turn back on because I wasn't sure I'd have enough ceiling to get over some of the Oregon ranges. It worked out. Would a passenger have been willing to spend $240 pro rata to fly with me - about the same price they would have paid for a commercial flight for one way? Would they have insisted on a stop for a potty break, turning it into a 5 hour flight? (Driving the same distance is about a 10 hour drive.) Add in pre- and post- flight and the door-to-door and it took 5 hours and could have taken 6 with a stop.