Is it 91 or 135?

[proav]

Ok, here is the scenario...

"This guy I know owns a flight school" he gets a call from a guy
who wants someone to fly a couple hundred miles down the road
to pick up a box. The owner tells the customer ( we will call him
Bob) that he can not do that because that would be under
FAR 135 (which the flight school is authorized as but this
particular plane is not on the certificate) Bob says that a friend
of his is a Private pilot but does not have a current medical. He
would like to have this Private pilot rent the plane and hire a
flight instructor from the school to give him re-current training
along the way.

Bob, who is also a Private pilot, is paying for the aircraft and
Instructor but not riding along.

Bobs pilot friend would not go if Bob cancelled his part of the deal.

The plane that is on the certificate is not available that day so it
is not an option for Bob.

My "friend" declined the trip because he felt it would be illegal
to do it.


Question: Is this legal under 91 or is it a illegal 135 operation.

I would like to hear everyones opinion, especially any of the FAA
types out there!

 

[172driver]

Tough one. I'd say that as long as the CFI is receiving his normal rate of pay and the flight is performed and logged as flight instruction, they're good to go Part 91. Who cares what they pick up on the way. If they did this more than a couple of times it would indicate a general willingness to fly for compensation.

 

[pilotyip]

Holding out

If you move anything from point A to point B for compensation you need to have a certificate. Case being a CFI lost his ticket for giving dual instruction to "quote" student pilots one way on Friday and one on Sunday. The Feds the purpose of the flying was to build time and make money not to give instruction. another case pilot was giving cost sharing rides under part 91, and fed violated him because his compensation was the reduced rental time he was buying. Are you going to get caught doing this once, propably not. But multi times, someone will turn you in. Most likely a 135 operator who sees you taking his business and hew is forced to carry the administrative cost of the CErtificate and you are not.

 

[172driver]

I'm almost certain that you can move things from A to B for compensation in some scenarios.

OK pilotyip...What if the CFI in question owned his own plane. Could he pick up the package under 91 for compensation? I think so. It's not that he wouldn't get caught. It's legal. The tough part of the posted scenario is that the plane is being rented, supposedly for flight instruction.

My understanding of 'holding out' is showing a general willingness to fly for compensation. A single trip to pick up a box, in my opinion, does not show a general willingness. It is simply private carriage for compensation...legal under Part 91.

He may not rent the plane, advertise, offer his services, or make a routine out of flying for compensation or he will be exhibiting a general willingness.

A very grey area of the regs. I'm sure avbug has the interpretations of the Chief Counsel.

 

[avbug]

Pilotyip is correct for the most part. However, as pointed out, this issue isn't clear, and hasn't been provided with enough information to be definitive.

Here's the situation as I understood it. Bob has a package he wants moved. The flight school has an airplane, but it's not on the certificate. Bob can't charter the airplane. Bob is a pilot, and bob has a friend who is a pilot. Bob proposes to rent the airplane in order to get the package there. Bob may or may not travel on the airplane, and he may have his friend go in his place.

Bob can do this, and it can legally be done under Part 91. The issue of "providing instruction" is really a sham to avoid Part 135 requirements, and in this case, it isn't necessary. If Bob provides the airplane, he can hire a pilot to fly that airplane to the destination for him under Part 91.

The essence of this trip is the same as any private owner who hires pilot services to convey him in private carriage. Bob can take whomever he likes (he can't charge). The flight instructor who makes the trip in the scenario presented doesn't have to be providing instruction. He can be simply providing pilot services as a commercial pilot. The flight instructor is acting as a corporate pilot, performing an operation under Part 91.

If Bob elects to go, but has provided the aircraft by renting it, this is still legal. Bob doesn't need to travel on the airplane. However, it's unlikely the FBO will rent the airplane to Bob, a non-current pilot, especially if he's not the one flying the airplane. This also gives a stronger impression of attempting to circumvent the regulation.

Bob could perform the trip as a flight instruction operation, receiving recurrency without attracting undue attention. However, this really is against the spirit of the intent of the regulation, if not contrary to the regulation itself. In this case, it's clearly against the regulation, as the purpose of the instruction is to cover up the private transportation of goods in air commerce. In such a case, the operation should be conducted under Part 135.

A tougher case to make in favor of Bob or the flight instructor would be the case in which the instructor provides the aircraft, or is employed by the FBO which provides the aircraft, and is serving the needs of the FBO. If Bob provides the aircraft, it's not a problem, but the flight instructor should have no connection to the operation. Ideally, Bob will pay the instructor directly, not the FBO for the instructor's services. In this manner, the instructor is doing nothing more than providing pilot services under Part 91 to an aircraft provided by Bob. The fact that Bob does not own the aircraft does not matter.

A final point is the issue of the number of times an operation is conducted. Don't make the mistake of believing that simply because an operation is only conducted once or twice, it's okay. There is nothing in the regulation which permits only infrequent violations of the FAR; either it's legal, or it's not. Doing something less often perhaps might mean that the odds of getting caught are less (not always), but it doesn't make it any more legal.

The best bet is to ensure the operation is legal the first time around. Hope that helps.

 

[pilotyip]

Box Revenue

we never did establish, is revenue being generated by the movement of the box, if there is box revenue it is mosy likely a 135 operation.

 

[avbug]

If it's bob's box and he rents the airplane and provides it to the instructor to fly, no. If Bob has been approached by another individual and has been paid to move the box, yes. If bob makes money from the box (eg, delivering a product for sale), it doesn't matter.

 

[DC9stick]

If Bob rents the A/C and goes to get the box it's pt91 no question.

If Bob rents the A/C for his buddy to get instruction and then asks the insructor to stop and pick up the box it's 135.

The FAA's take is that the purpose of the trip is to pick up the box not to provide flight instruction and the operator is generating revenue (A/C rental,instrutor fee's) while doing so. 135 no question.

The previous post about cost sharing is not a 135 violation it is leagle to share costs. Only direct costs may be shared, Fuel, oil, landing frees etc. Maintance, engine reserves etc. may not be shared. If the A/C is rented the entire cost of the rental may be shared. You may not transport another person or property from one location to another and drop them off and the share the cost of the flight.

 

[proav]

Good Input!

Thanks for the replies. Here is some information for clarification...

The package is for Bob only, nobody is paying him to get it.

Bob's pilot friend does not have a medical, so he can't fly the
plane by himself.

The Instructor is employed by the flight school.

I feel that it would be a 135 flight because the flight school is
supplying the plane and pilot. The purpose of the trip is not
completely for the purpose of instruction. If it was the instructor
should be able to dictate the geograhical area of training plus
if Bob decided not to have the package picked up the trip would
most likely cancel. If however, Bob's friend was going regardless
of the package being picked up or not then it may be considered
a 91 trip.
That's my opinion, still interested in more input.

Thanks

 

[weekendwarrior]

We never determined what is in the box?


Sorry, couldn't resist. I guess if everyone on board was in cahoots with the whole operation, call it a 91 operation. If the fire was ever lit, they could just say they were doing flight instruction and did Bob a favor by picking something up for him. Bob paid for the flight instruction because he is a nice guy and want's to see his friend learn how to fly airplanes.

If Bob had many boxes that needed to be picked up, that would be something different I think, especially if it happened more than once. But on this one flight, I'd think the feds would have a hard time busting someone for it.

I'm no expert by any means, but makes sense to me.