Part 91, avoiding becoming a 135 flight

[dolphinjazz]

Hi,

Am looking for guidance on "where the line" is drawn. Regarding acting as CFI with a student on a cross country flight. Let me explain quickly:

Have seen many times instructional flights that were really Part 135 charters. The old, wink-wink, "sit in the left seat, I'll give you dual 'instruction' here, and we can fly this cross country flight (part 91)... I'll wait here at the airport while you conduct your business... and we can do dual instruction going back home..." Where in reality, the "student" isn't really interested in being a student... he/she just wants to fly to XYZ on business. Seems to happen frequently.

That example seems pretty clear. What I am interested in seeing where the gray area ends and the line is drawn.

For example, I have an aquaintance who wants to barter giving me some landscaping for an eventual flight (200 NM). She is not really interested in getting her license, but wouldn't mind a flight lesson or two, maybe.

Now, to make things more complicated, this particular flight might be one that I would like to take anyway... we would do things *together* there... it would be a fun flight and fun things to do together at the destination. We would probably stay over night and visit friends and do things as a group. So,now, maybe we can argue in favor of Part-91, no?

On the other hand, dig deeply enough, the tesimony would reveal that there was a quid pro quo in there... there probably wouldn't be a flight if there wasn't some landscaping. I pay for the flight, but she really paid for the flight by giving me something of value. Or, at least it could be argued that way. Would be hard to defend against that, no?

Anyway... just wanting to stay out of FAA jail... and do things right. Any guidance will be appreciated. And... I'd like to take that flight. Any ideas?

Best,

Garrett

 

[satpak77]

Any ideas?

call AOPA Legal section

sorry but thats probably the best option

 

[7B2]

Aircraft Experience: Most all piston, some jets
Flight Experience: Civilian
Ratings: ATP, CFII, CE500
Current Position: Director of Ops / Chief Pilot
Total Time: 6500+

And what part of the FAR don't you understand?

 

[Sctt@NJA]

Doesn't sound like making that flight a "flight lesson" would be very good idea. Pretty bad idea actually.

Why don't you just pay for the flight and leave it at that.

If she is a good friend maybe she will give you a good deal on the landscaping. One thing doesn't have to have anything to do with the other. wink wink.

Now if you don't want to give the FAA any reason to check out your lawn and your flight records... Delete this thread!!

 

[dolphinjazz]

And what part of the FAR don't you understand?

And what part of the FAR don't you understand?

Hi,

Well, knowing that would make it much easier... I'm not so sure that it boils down to one sentence in a regulation that I just don't get. That would be too easy. Probably is more involved... case law. So, your question is good, really... I just want to make sure that I don't stub my toe on this one with the FAA.

As near as I can tell my original question here is just another tired repeat of the age old problem of the CFI transporting a passenger under the guise of instruction. I just need to know where those lines are so that I don't cross them.

I'm presuming that one *portion* of the answer to my question, will be found in AC 120-12A and all the case law around "holding out" to the public as one who is willing to fly airplanes and carry passengers, etc. Or, more appropriatly, would the FAA prevail in saying that I am "holding out" to the public in this specific case.

I don't think the "photography angle" would be of any help because I do not have a drug testing program in place... so, I couldn't look to flying within an exemption in Part 135. Though, taking photos is a portion of the proposed trip, but it is not her business... she just wants some personal photos.

It doesn't matter that I am an ATP because the airplanes I use for instruction and the FBOs that I occasionally rent from are not Part 135 operators and I am not on any Part-135 certificate... so, that puts me squarely into Part 61... FAR 61.113... just like a private pilot. Additionally, I'm sure the FBO's insurance would not want any commercial operations happening with the flights, so I need to keep my nose clean on this one for a variety of reasons.

I'm not so sure that who pays for the flight makes any difference. Discovery and testimony would reveal that there was at least "some" barter going on... and so, it would be determined that the passenger paid even though I wrote the check.

My sense is that in order to take any flights like this, I will need to absolutely insure that they are instructional... no fudging... no possibility for misunderstanding that.

I think the answer lies in knowing where the lines in the sand are with the FAA and existing common law. For example... exactly what is the test for proving up a flight was/is instructional? And... exactly what is the test for proving up that a flight's purpose was shared? (not the expenses, but the *purpose* was shared)

So... I think you can see that it might be a little more complicated that your question implies ("what part of the FAR don't you understand?"). I think it stretches beyond the FARs.

Thanks!!

Garrett

 

[7B2]

Ok,

Translation; you know as well as everyone else here that if you're going to do that x-c it is not instruction if she cannot show a logbook to the the faa with other flights in there like intro lesson, basic 4 etc etc etc up to the point where she would be ready for a x-c flight. So therefor I wrote in a previous post; what part of the FAR don't you understand.

Don't ask the obvious.

You rent the plane, you go knock yourself out on this flight and that's the end of the story. I do hope for you that she'll give you a good deal on the landscaping.

Capish

 

[Jedi_Cheese]

You could have her hire you on and then be the part 91 flight department of her company. What would be wrong with that?

Honestly, claiming it as an instructional flight would not get you off. It's obvious that the primary object of the flight is NOT instruction, don't try to BS it.

 

[nosehair]

There is no "line". Not hard and fast like you seem to be looking for. Each case is an individual call. By all that you have said, it is obvious to me that this is not "instructional". However, it could be. It all depends on the actual intent. In the case where your actual intent is to provide instruction for the purpose of "hooking" this person into flying lessons, then it would be "instructional", but maybe difficult to prove. That is why it is so difficult to provide a clear cut regulation.

 

[vclean]

The FAA will determine the true nature of the flight. If you were going to a destination and someone asked to come along, then there shouldn't be a problem if the FAA were to investigate. Trouble comes when you fly someone under the guise of instruction to a destination you hadn't intended to fly to. Chances are you will not be caught, unless someone calls the FAA (ie. local 135 operator losing business to your 'instruction', post incident/accident investigation or ramp check).

CYA, always be able to legally defend your actions if Murphy's law comes your way.

 

[PHX767]

It's just not that hard

Go have a nice trip, enjoy yourselves and if she decides to offer you a deep discount on lanscaping as a friend that is your good luck. It doesn't have to be connected to your trip.

No winky winky, nothing illegal, nothing to worry about. If you decide to let her fly a bit on the way there and back that is your right as PIC. Who knows, she may get the fever to start real lessons.

You are correct to avoid the CFI charter syndrome. It is so common as to be transparent to the feds.

 

[dolphinjazz]

The FAA will determine the true nature of the flight. If you were going to a destination and someone asked to come along, then there shouldn't be a problem if the FAA were to investigate. Trouble comes when you fly someone under the guise of instruction to a destination you hadn't intended to fly to. Chances are you will not be caught, unless someone calls the FAA (ie. local 135 operator losing business to your 'instruction', post incident/accident investigation or ramp check).

CYA, always be able to legally defend your actions if Murphy's law comes your way.

Yeah, it's the ramp check or post incident investigation that's always a concern. Am not wanting to sneak under the radar on this one (or any other time)... am wanting to be legit.

At this point I'm not too hopeful that she will want to take lessons, though it is a remote possibilty... I will discuss it with her... and I would document each and every little step in that direction. (Get her a logbook, log some ground instruction, get her Flight Training Magazine, etc., etc.)

Am not sure about "intro lesson" and having covered the "four basics" (logged) first as being a requirement... would sure help, I imagine... and I may be able to guide things in that direction. That speaks to my question, "exactly what is the test for proving up a flight was/is instructional?" Naturally, if we go this route, I will have a month or two to guide the process in this direction and will make sure that I've built a solid and honest case before the flight is made.

I will not make the flight with her if I think it's a sham... not worth risking the trouble. After talking with her some more, I will have a better feel for whether this thing could go instructional. If not, well... the advice received:

"Don't ask the obvious. You rent the plane, you go knock yourself out on this flight and that's the end of the story."

Well that advice speaks to my other question, "exactly what is the test for proving up that a flight's purpose was shared? (not the expenses, but the *purpose* was shared)" You see, my reading of the regs and my limited understanding of the common law and FAA position here is that it boils down to intent. Do we both share the desire, purpose, and intent to take this flight? And, if so, then did the pilot (as per 61.113) receive more compensation than is allowed?

This above paragaph is tricky because I would have to prove intent and shared purpose... AND I would have to prove the compensation issue. That might be pretty hard. (given the landscaping will be brought up at some point)

I don't care how much of a friend she will become... or if she even becomes a bit of a "girlfriend"... I can see in the event of an incident or accident, an attorney taking the position of there being a quid pro quo: she compensated me with landscaping... it was a commercial operation.

So, anyway guys... thanks for the feedback. I will most likely work with this young lady on the idea of honest and actual flight lessons... and, if she is game, I will document the heck out of it, do the intro flight first... and that should be enough.

 

[Sctt@NJA]

Wow you are making things complicated. Don't you ever rent airplanes on your own? Don't you bring people with you sometimes?

If it is a trip that you want to take then this is what you do. Forget about the whole flight instruction angle. You want to do it right? Forget about taking this pleasure trip under the pretense that it is instructional!

Now if she were a student already who was due for a dual cross country trip there is no reason you couldn't mix a little pleasure in with that business. But this is clearly not the case.

If you haven't figured this out by now then God help you.

 

[Daveman]

Bro - The long-short of it is: You pay for the trip. Have a nice time *together* as you say, plant your root and go home. If you did a good job 'Whalla' now you have new roots growing at your house. Case Closed!!!

200nmtrip $200.00??
Dinner/Drinks $150.00
Free Landscaping Priceless

All Legal, except if you're married!!!

 

[7B2]

It almost seems to me you want to get in trouble.

Do the friggin' flight and forget about it.

Unless you are ""THE ONE" that has never busted a FAR!!

 

[SharkBait]

Why is it the grey area always works to ones advantage?

 

[midlifeflyer]

Why is it the grey area always works to ones advantage?

When it comes to the line between part 91 and Part 135, the grey area always works to the pilot's advantage when she's thinking about finding a way to do it. Unfortunately, it almost always works to the FAA's advantage when they come after you.

 

[prpjt]

(Quote) "exactly what is the test for proving up that a flight's purpose was shared?"

Would you take this flight to see your common friends and do fun things, even if she was not doing landscaping for you?

 

[rcbullock]

1. Have her rent the plane from the FBO.
2. Have her hire you for pilot services.

She has operational control, you are her employee as a professional pilot. Just tell the FBO the deal, some have a problem with it being 134 1/2 , others understand the distinction. It isn't 135 because the FBO isn't providing the pilot, only renting the plane for her operational control. She doesn't have to hire you, she can pick any pilot meeting the FBO's criteria.

To me, the 135 test is : Did the plane and pilot come from the same place, and who has operational control over it?

 

[Lead Sled]

1. Have her rent the plane from the FBO.
2. Have her hire you for pilot services.

She has operational control, you are her employee as a professional pilot. Just tell the FBO the deal, some have a problem with it being 134 1/2 , others understand the distinction. It isn't 135 because the FBO isn't providing the pilot, only renting the plane for her operational control. She doesn't have to hire you, she can pick any pilot meeting the FBO's criteria.

To me, the 135 test is : Did the plane and pilot come from the same place, and who has operational control over it?

Be very careful. It really isn't as simple as you put it. We're dealing with a comparable situation as we speak. The solution actually involves written leases with copies sent to the FAA, FAA notification of individual flights and insurance company notification to insure that coverages won't be compromised.

Lead Sled

 

[Sctt@NJA]

1. Have her rent the plane from the FBO.
2. Have her hire you for pilot services.

NO NO NO. It doesn't work that way. She is not a pilot. Non-pilots can not rent airplanes. Now if she OWNED an airplane that would be different.