How to whore myself out?

[aerobaticspilot]

i wouldnt get in a plane with you

 

[A Squared]

Even an instructor needs to be careful and make sure that he/she is actually giving instruction, not just riding along and "calling it dual" (the FAA recently pulled the certificates of a MEI who was doing this. The NTSB upheld the action).

Would you post a link to this NTSB decision? I'd be interested to see this. I'll bet dollars to doughnuts that he didn't get violated for flying with someone in thier own aircraft.

More likely he got violated because it was "instruction" in a rental aircraft that he "arranged" and the FAA considered it an illegal charter. Or perhaps it was because he was signing off instruction which he didn't actually give. (falsification)

I would ask you the same as I asked Rick (although much more politely, as you haven't acted like a two year old contradicting his parents) that you show me the regulation that prohibits a commercial pilot flying for compensation, or prohibits that pilot from advertising his willingness to provide that service.

It is probably unnecessary to point htis out, if you have read the thread, but I'll mention it anyway, Rick has been completely and utterly unable to point to any regulation which prohibits this. There's a reason for that. It doesn't exist.

 

[A Squared]

No. It's call private carriage or noncommon carriage. And it's allowed under Part 91. It does not fall under part 119.1. It's not "common carriage" and as long as you do it under contract for one or maybe two owners, you are not "holding out". As long as the owner and insurance company approve, you may fly as a private corporate pilot.

No, what the pilot is doing is not carriage, in any way shape or form. What the pilot is doing is offering pilot services, which is a privilege of the commercial certificate. With all due respect, you're beginning to sound like Rick7777, making assertions without anything to back it up. Would you please provide a regulatory refernce that supports this.

 

[A Squared]

So Rick, no word on which regulation would be violated?

Why not?

Personally, I'd be *very* embarrased to find myself in the position of insisting that something is Illegal, yet unable to point to a regulation which makes it so.

Perhaps you thought people would be so impressed by you repeating "I'm still right and you're wrong" that you didin't need to post any reasons?

Anytime you're ready to post the regulation you think is being violated, I'm ready to listen. I see you lurking on this thread, so we know you're not out in the woods away from internet access.

 

[rickair7777]

OK, I had to go fly an airplane there, but let me clarify (one last time) what I was trying to say in the first place...

"Holding out" in aviation-land is slang for "holding out as a common carrier", that's the issue that gets people in trouble and that is the activity I was addressing. Holding out as a common carrier is in fact illegal if you don't possess an appropriate operating cert.

ASqrd: The real affect and meaning of our often ambigious FARs is determined by their wording, the interpretation of that wording by the enforcement agencies, and finally the interpretation by the applicable folks on the federal bench. Unless you happen to an admin law judge, your interpretation of 91/61/135 doesn't mean a thing. Hopefully it doesn't get you in any trouble.

In this case the issue is not commercial pilot priveleges or private carriage at all. A commercial pilot can answer as many employment ads as he likes, and I'm sure post numerous ads seeking the type of employment which falls under private carriage. He can solicit every warm body on the field for that type of employment.

The issue is how to avoid common carriage and the related requirement to posses a 121/135 ticket: AC120 specifies that common carriage consists of 4 elements: 1) Holding Out, to 2)transport persons or property from 3) place to place for 4) compensation or hire. Note: while the AC may not be regulatory, it certainly serves as fair warning as to how the FAA will interpret and then attempt to enforce the regs.

1) This gets tricky, but basically seeking on-going employment piloting someone else's airplane seems to be OK (the written contract for an on-going relationship is the gold standard...works at my FSDO anyway). You can even be employed in this manner by several people at one time.
2) This is where ferry flights come in...apparently an airplane is not considered a person or property being transported...the property would have to be cargo carried in the airplane, so a ferry flight is missing this required component of common carriage.
3) Place to place is part of the basis for the sightseeing and photo op exemptions...assuming they return to the point of origin.
4) Compensation is the part where time builders can get in trouble...the FAA considers flight time to be compensation

Keep in mind that an individual pilot can be a common or a private carrier, he doesn't need to have his own company or an operating certificate to be defined as a "carrier", his actions in seeking business and the type of work he seeks determine his status.

Publicly expressed willingness to fly most people most of the time is common carriage, which does require a 135/121 ticket. The fact that the public expression may be covert or on the Down-Lo doesn't make it legal...ask hookers and dope dealers about that.

I think Ninja's original title "How to Whore Myself Out" leans in the direction of common carriage as it implies a broad willingness to fly anybody anytime...that is clearly common carriage per the FAA. Ninja may or may not be able to get off the hook based on his assertion that the flight time he accumulates is not compensation since he is a recreational-only pilot. That would probably depend on the Fed in question.

Also, I take a conservative approach...ie I suggest how to avoid the violation in the first place, based partly on my own 91/135 experiences and the observed misfortunes of others. I do not advocate how to win the supreme court appeal based on ambigous wording in 14CRF.

 

[rickair7777]

So Rick, no word on which regulation would be violated?

Why not?

Personally, I'd be *very* embarrased to find myself in the position of insisting that something is Illegal, yet unable to point to a regulation which makes it so.

Perhaps you thought people would be so impressed by you repeating "I'm still right and you're wrong" that you didin't need to post any reasons?

Anytime you're ready to post the regulation you think is being violated, I'm ready to listen. I see you lurking on this thread, so we know you're not out in the woods away from internet access.

This is the last time I'm going to address you. I just got back from flying, which interupted my participation last night. (FLYING: is this something you even do?) and replied to your previous rants (see above).

What is your major malfunction? Have you noticed that most of the people on this forum are able to have rational and productive dialogue without insulting or deliberately antagonizing others (unless they REALLY deserve it ie PFT, scabs, etc)...there's nothing about the FARs that are worth getting emotional about. Really.

You obviously have some serious personality shortcomings that lead you to deliberately antagonize people on the internet...I mean WTF! I don't even want to imagine what you must be like in person. I'm not going to waste time speculating on what your issues may be, but do me a huge favor and don't respond to any of my future posts...even if I am wrong about some minor technical point, I'm sure someone else can point that out without getting personal about the FARs. I will extend the same courtesy to you.

BTW, I'm going to the gym now...it's good for you, and being fit and toned will help me get to get laid by some litte hottie in LA this weekend...HINT, HINT.

OUT.

 

[onthebeach]

aerobaticspilot....who were you talking to?

 

[A Squared]

"Holding out" in aviation-land is slang for "holding out as a common carrier", that's the issue that gets people in trouble and that is the activity I was addressing. Holding out as a common carrier is in fact illegal if you don't possess an appropriate operating cert.

Correct, I agree 100%. However, you have a completely incorrect idea of what constitutes Common Carriage.

Common Carriage is not "anytime you advertise anything remotely connected with an aircraft" which seems to be your erroneous understanding of the concept. Common carriage is first and foremost, transportation.

From AC120-12A:

There are four elements in defining a common carrier; (1) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation.

In order to be a common carrier, you have to be providing transportation of persons or property for hire. A pilot being hired to pilot an airplane for a private individual is not providing transportation.

Look, let’s say you and I both were going somewhere, perhaps a football game in the next state. I told you, hey give me $50 and I’ll provide the transportation. On the day of our departure I show up at your door with nothing but my driver’s license. I took a taxi there. I say, "hey dood, toss me the keys to your car and we’ll get going." Now, am I providing you with transportation? Obviously not. All I’m providing is a driver, that’s not transportation. Not in any sense of the word. Neither is a pilot, flying someone around in that person’s own airplane, providing transportation. If transportation isn’t provided for hire, it’s not common carriage.

I don’t know where you came up with the idea that piloting can be common carriage, but your mistaken. That is not supported in any way by the regulations, AC120-12A, legal counsel interpretations or case law. (and yes, I have read those sources, extensively; I suspect far more so than you)


Maybe some examples will help illustrate your misconception. Let’s say Frank in Atlanta owns a C-182, what are the various operations he might engage in?

1) Frank flies himself and his dog and a box of tools to Savannah .

That is Private carriage, not for hire. No persons or property are carried for hire. Frank controls when and where the airplane flies, and only Frank and his property are carried.

2) Frank loses his medical. He hires Jeff, who holds a commercial pilot certificate to fly him his dog and a box of tools in his 182 to Savannah .

That is Private carriage, not for hire. No persons or property are carried for hire. Frank controls when and where the airplane flies, and only Frank and his property are carried, and the carriage is not for hire. The fact that Frank is paying Jeff to pilot the airplane does not make it a transportation for hire operation. The *piloting* is for hire, but the carriage is *not* for hire. No commercial operator certificate is needed. This situation is identical to corporate aviation.

3) Betty approaches Frank and offers to pay Frank to transport her and her dog to Savannah .

That is Private Carriage for hire. (there is no holding out) Frank is providing transportation to betty for compensation. That makes Frank a commercial operator. (part 1 definition of commercial operator) Frank will need a 135 certificate. 119.23 (b) requires it.

4) Frank puts up flyers around Atlanta, advertising air service to Savannah for $150. This is Common Carriage. Frank will need a 135 certificate as per 119.21(a) Notice that this operation has all 4 of the elements Common carriage. Note also that operations 1,2, and 3 are missing one or more of the 4 essential elements of common carriage.

Now the original question centers around situation 2. Frank is engaging in private carriage, not for hire. Jeff is engaged in *piloting* for hire. Piloting isn’t transportation, and it isn’t carriage. The fact that Jeff may hold out his piloting services *still* doesn’t make piloting either transportation or carriage. Once you grasp what the terms carriage and transportation mean, (and clearly, you don’t) it becomes obvious that Jeff is not engaging in either, hence no "common carriage".

continued......

 

[A Squared]

Now, let’s take a look at some of the official interpretations from the FAA’s Office of Chief Counsel

FAA legal opinion (Note, FAR 61.51(c)(2)(i) is now codified as 61.51(e)(1)):
"December 9, 1992
Mr. Renato Simone

Dear Mr. Simone:

This is in response to your November 7, 1991, letter to the Federal Aviation Administration (FAA), Office of the Chief Counsel, in which you pose questions relating to certain requirements in Parts 61, 71, 91, and 135 of the Federal Aviation Regulations (FAR).

.......Edited for relevance, addresses control zones, and logging.......

Your third question asks, "Can a commercially certificated pilot fly a friend for full compensation or hire under Part 91?" The answer is that there are some limited circumstances when it is permissible. From the standpoint of Part 61, the holder of a commercial pilot certificate is permitted to accept compensation for piloting (See FAR 61.139). There is a question, however, whether the operation can be conducted under Part 91 as opposed to Part 135.

A pilot flying under Part 91 may not carry persons or property in air commerce for compensation or hire. This means that the aircraft owner may only transport passengers and property that pertain to the owner or the owner's business, as long as that business is not air transportation (See FAR 91.501). One example of this Part 91 operation is the corporate pilot flying a company airplane carrying company property and passengers. The corporate pilot is paid for his work, and therefore must have a commercial pilot certificate. Another example is pilot service, where a commercial pilot is paid by an airplane owner to fly the airplane for the owner. As long as there is no "carriage in air commerce of persons or property for compensation or hire", the commercial pilot can operate under Part 91 and be paid for his services.

We stress that FAR 135.1(3), FAR 135.5, and FAR 135.7 make it clear that the "carriage in air commerce of persons or property for compensation or hire" requires an air taxi/commercial operator operating certificate.

.....edited, addresses CFIs logging landings......

We trust the above response will prove helpful to you. Please do not hesitate to contact us if you require any further information in this regard.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations Division"

OK, now go back and read the bold portion. It’s "pilot service", not common carriage. Notice that the criteria is "as long as there is no carriage in air commerce of persons or property for compensation or hire" Notice also that the is no mention of "holding out", exclusive contracts or anything else. If you’re not carrying persons or property for hire you’re good to go.


Here’s an excerpt from another

........With regard to your final question, that is, whether the pilot may work for more than one company as an employee providing pilot services only, and still be considered a Part 91 operation, it is our opinion that, so long as each respective company procures its plane, and the pilot does not procure the plane, this may be done under Part 91. . This opinion is limited to a situation in which the company would not be charging the passengers. If the company were to procure the plane and pilot, and charge passengers any amount for the transportation, then the company would be providing air transportation for compensation, requiring Part 135 certification.. (full text provided below)

Again there we have that term popping up again, "pilot services" Did you happen to recall that "pilot services" was never mentioned in AC120-12A? Notice here, that the chief counsel specifically states that you are not limited to providing pilot services to one company. No mention of it being forbidden to advertise. It’s "pilot services" not air commerce, not carriage for hire. Also notice that if the company makes charges it is the *company* (who has operational control of the aircraft) who is providing air transportation.

"......then the company would be providing air transportation for compensation...."

The pilot is not providing air transportation, he’s providing pilot services.



Here’s another excerpt from a related Chief Counsel interpretation:

Finally, you ask about the situation where the same business rents an airplane from a local FBO and you are hired to fly the rental aircraft as a commercial pilot. We see no conflict with Part 135 in this situation as long as you are strictly the pilot, and play no part in procurement, payment, or operational control of the airplane. The business would have to understand that it is responsible for operational control which includes, among other things, responsibility for compliance with the FAR and susceptibility to enforcement actions.

The full text of the interpretation is provided below. Notice that it is once again, not a violation of the provisions of Part 135 to provide pilot services. Advertising those services doesn’t change that. Notice that the concept of operational control is brought into the discussion. That is another fundamental concept, one that is used to determine whether an someone is acting as a commercial operator. If you had read the Admin. v Nix decision, you would have seen that much of the discussion centered around who effectively had operational control of the aircraft, Nix or his client company. If the client has operational control of the aircraft, all you’re providing is pilot services. In our previous example, Jeff does not have operational control of Frank’s 182, it belongs to Frank, and Frank determines when and where the airplane is flown. Frank has operational control. Without operational control of the aircraft, Jeff will never be considered a common carrier, no matter how much he advertises pilot services. (as long as it’s just pilot services he advertises.)

Now, lets summarize: I’ve provided regulatory references, Chief counsel interpretations and case law. My view is entirely consistent with all of these (and with 1AC120-12A)

You have provided nothing but misinformed opinion, repeated over and over, no regulations, no interpretations, no case law.

Personally, I know which I find more persuasive.

 

[A Squared]

The interpretations

The interpretations

FAA Legal Opinion:
"December 10, 1990
In Reply Refer To: ACE-7

Mr. Daniel E. Ferris

Dear Mr. Ferris:

This is in response to your letter requesting our opinion as to whether certain operations may be conducted under Part 91 of the Federal Aviation Regulations.

Your first question is, if a company were to hire a pilot to fly men and equipment, could the pilot rent the plane for the company, or would the company have to rent the plane?

It is our opinion that if the pilot were to rent the plane, he would then be providing both the plane and pilot services to transport people and property, and, assuming he receives compensation for this, he would be required to hold a Part 135 certificate, since he would be engaging in air transportation for compensation. On the other hand, if the company were to procure a plane, and retain the pilot to transport the company personnel and equipment, this would not require a Part 135 certificate, since the pilot is not the provider of both plane and pilot services.

Your next question concerns whether or not the pilot may sign for the plane's rental receipt upon completion of the rental.

It is our opinion that in order to stay within the realm of Part 91, the company must procure the plane, and the company may not delegate certain acts attendant to the rental agreement to the pilot. Therefore, if the rental of the plane necessarily includes signing the receipt, the company must follow through on that, and not use the pilot as their procurement agent.

In that same vein, with regard to questions number 2 and 3, the company must make the plane's rental arrangements and times of usage, and the company must make the payment of the rental plane directly to the lessor of the plane, who may not be the pilot.

With regard to your question as to whether it is still a Part 91 operation if the owner of the company also holds shares in the FBO from whom the plane is rented, it is our opinion that this would still constitute a Part 91 operation.

With regard to your question as to whether it would be possible under Part 91 for the pilot to work for the company as a pilot transporting their men and equipment, and still work for the FBO as a flight instructor, it is our opinion that this would be permissible under Part 91 so long as it is the company that still procures the plane, and the pilot is not procuring the plane in addition to providing his pilot services.

With regard to your final question, that is, whether the pilot may work for more than one company as an employee providing pilot services only, and still be considered a Part 91 operation, it is our opinion that, so long as each respective company procures its plane, and the pilot does not procure the plane, this may be done under Part 91. This opinion is limited to a situation in which the company would not be charging the passengers. If the company were to procure the plane and pilot, and charge passengers any amount for the transportation, then the company would be providing air transportation for compensation, requiring Part 135 certification.

We hope that we have answered your questions. If you have any further questions, please do not hesitate to call or write this office.

Sincerely.

Timothy C. Titus
Assistant Chief Counsel

Original Signed By:
Mary Ellen Loftus
Attorney"



FAA Legal Opinion:
September 23, 1991
Mr. James Datsko

Dear Mr. Datsko:

Thank you for your letter of September 11, 1990, in which you ask for an interpretation of the Federal Aviation Administration (FAA) regulations concerning leasing of your airplane and how you can avoid operations which would be subject to Part 135 of the Federal Aviation Regulations (FAR). We apologize that other interpretations and rulemaking matters prevented us from answering your inquiry sooner.

In your letter you say that you own a light twin engine airplane. At various times friends have asked you to fly them to business appointments or vacation destinations. You do not wish to obtain a Part 135 certificate, and you propose several plans which would allow your airplane to be used by others with your personal involvement kept to a minimum.

The first plan you mention is an exclusive lease of your airplane to a local business, except for times when you would be using it personally. You would lease the airplane at a break-even rate, and the leasee would select the pilot of their choice. Occasionally, the business could hire you as a pilot, but there would be no obligation to do so.

Your letter seems to reflect a fear that this transaction may label you as a commercial operator, and that by charging only a break even amount to lease the airplane you may avoid this result.

FAR 1.1 defines a commercial operator as "a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property other than as an air carrier ..." There is no relationship between the amount you charge per hour to lease your airplane and whether or not you are a commercial operator. There is also no prohibition to your leasing your airplane as you describe. This would be called a dry lease, where only the airplane is leased. If a flight crew is provided with the leased airplane, it is called a wet lease, and questions of operational control come to the fore, generally requiring air carrier certification. If you arranged the lease and then arranged your subsequent hiring as pilot to fly a trip, this would be regarded as a sham to avoid the Part 135 certification requirements.

Your second question asks what the result would be if you sold a 1/2 interest in the airplane to the local business, instead of the lease described earlier. Both owners would contribute at an hourly rate into a co-ownership account to pay costs, and the business would hire the pilot of its choice, occasionally including the co-owner.

FAR 91.501, applicable to large and turbojet powered multiengine civil aircraft, is also available by exemption to members of the National Business Aircraft Association (NBAA). FAR 91.501(c)(3) describes a joint ownership agreement similar to your second question. As long as neither owner carries persons or property for compensation or hire, we see no problem with the arrangement you describe above. We would caution against your providing pilot service to the non-pilot business co-owner, because the delineation of operational control can become very hazy. FAR 91.501(b)(5) can also be used to help the non-pilot business co-owner define what may and may not be carried on the airplane with reimbursement.

The third question discusses the option of rental of the airplane to the business, with the business choosing and hiring the commercial pilot to fly the airplane, and never hiring the pilot co-owner. As you say, this is even further removed from the Part 135 situation, and we see no conflict here, particularly if you are not hired to fly your own airplane.

Finally, you ask about the situation where the same business rents an airplane from a local FBO and you are hired to fly the rental aircraft as a commercial pilot. We see no conflict with Part 135 in this situation as long as you are strictly the pilot, and play no part in procurement, payment, or operational control of the airplane. The business would have to understand that it is responsible for operational control which includes, among other things, responsibility for compliance with the FAR and susceptibility to enforcement actions.

We are enclosing several other interpretations we have issued on this subject.

This interpretation has been prepared by Arthur E. Jacobson, Staff Attorney, Operations Law Branch, Regulations and Enforcement Division; Richard C. Beitel, Manager.

We hope this satisfactorily answers your questions.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations and Enforcement Division