When does it become 135?

[YaMama]

Hey folks,

When I was going for my Commercial license back in the day, I was taught that the standard for "holding out" to the public (and needing a 135 cert.) was flying passengers in an aircraft that was not owned by said passengers. At my current flight school however, the standard (supported by a former-FAA chief pilot) is that if a passenger has a pilot logbook then it is also legal. I.E, the guy has a meeting in XYZ city, so we conduct a lesson to that city, log it as flight instruction, and don't need to mess with 135. Note that the chief pilot warned me: "this doesn't mean we can just sell a logbook to anybody who walks in the door - they have to be a genuine pilot, with a medical and an interest in receiving flight training."

What do you guys think? Is it a good idea for me to accept these flights, or am I setting myself up for trouble with the Feds? Can anybody point me to some documentation, either in support of this type of operation, or of a pilot getting in trouble for it? Thanks a lot,

 

[freeflyer14]

Something that may save you would be to ask yourself.... "what is the sole intention of this flight?" If the sole intention is to get this guy from A to B, and the logging of dual given is only to make you feel like it is legal, then I am betting the feds are gonna have a problem. If the sole intention is to provide traing, like this guy is a student of yours and you are doing a dual x/c, all is well. You could always call the FSDO and ask someone, but if they say it's ok, make sure you get their name, and possibly their interpretation in writing.

 

[FN FAL]

If one of your students wants to go on a business trip and recieve flight instructing there and back, it's flight instructing.

The documentation will be that your student was in a student mode before this trip, because you will have been logging it as dual given and he will have been logging it as dual recieved. There is your paper trail. This is legal.

There is no law preventing a student from picking airports that he wants to go to during his flight training. There is no law preventing a student from combining his bonafide flight instruction with a business trip.

If you are not coducting bonafide flight instruction with the student...then it is not flight instruction.

 

[414Flyer]

Yes your CP is right, and yes you are possibly setting yourself up for trouble if you get a ramp check, and something is said to make the fed wonder.

But I will also guess that most of the pilots here who did not come from 141 factories have had such "instruction" flights occasionally.

 

[mar]

YaMama

You know, here's the deal:

You're skating on thin ice. And Feds are human. Some are cool and willing to work within the grey areas and some are very--um--how shall I put this? Pedantic?

You know what I mean? If this little arrangement falls into the lap of a Fed who only sees things in black and white (most in my opinion) then you'll be in hot water.

And that'll suck 'cause you've been skating on thin ice, right?

So my advice to you, since you're just starting out and really don't have any other aviation experience to fall back on (like bush flying or drug running, where they don't care about your background), is to find another job as soon as you can.

Best.

 

[philo beddoe]

Risky, in my opinion, and not worth the few hours you will get.

Unless the "student" checks the weather, fills out the nav log, sits in the left seat, does all of the flying and is legitimately expecting to receive an instructional benefit from the flight.

 

[FN FAL]

You're skating on thin ice.

Risky, in my opinion, and not worth the few hours you will get

it's not thin ice and the student doesn't have to get the weather. You are either giving flight instruction or you are not. The cfi doesn't have to pick the airports every time a flight with a student takes off and the student doesn't have to "get the weather" every time a flight with a student takes off. Show me in the regs where it says anything even remotely where the student can't get flight instruction from point "a" to "b" or where the student has to "get" the weather.

You are either giving flight instruction...or you are not. That's it.

 

[labbats]

You know when a guy is flying just to get somewhere, and where he is flying for training. So does the FAA. Move along.

 

[philo beddoe]

I think my point is valid.

My point is not that the regs say you must have the student d othese things for the flight to qualify as instruction.

My point is that the instructor should ask himself these questions, and if they really can say to themselves that the flight is instructional then do it.

FN FAL:

The FARs are not the sum total of all regulatory guidance the FAA can/will use.

There is case law and legal interpretations that can be thrown into the mix.

In other words, the FAA can interpret the reg with a lot of latitude. Read some enforcement action cases. Very enlightening regarding how 'incomplete' the picture is that is painted by the FARs.

 

[Pilot Doc]

If you are worried, then include some documentable enroute training. Shoot a practice approach or two, etc.

 

[Hugh Johnson]

How precious is your ticket?

 

[nosehair]

You know when a guy is flying just to get somewhere, and where he is flying for training. So does the FAA. Move along.

That's the ticket, Labbats. If it ever comes up before an NTSB Judge, he will determine from the sequence of events, whether or not the primary purpose of the flight was x/c training, or was it for the purpose of transportation to an airport for that person's other business or pleasure.
And everyone remember that these regulations are administative, meaning you can't nitpick a regulation and get an appeal. The judge can interpret it anyway he wants to - and in fact, that is what he is doing.

 

[Geigo]

Here you go you decide...

AC 120-12A - PRIVATE CARRIAGE VERSUS COMMON CARRIAGE OF PERSONS OR PROPERTY



Department of Transportation

Federal Aviation Administration



4/24/86



Initiated by: AFS-820

1. PURPOSE.

This advisory circular furnishes Federal Aviation Administration (FAA personnel and interested segments of industry with general guidelines for determining whether current or proposed transportation operations by air constitute private or common carriage. If the operations are in interstate or foreign commerce, this distinction determines whether or not the operator needs economic authority as an "air carrier" from the Department of Transportation. Operations that constitute common carriage are required to be conducted under Federal Aviation Regulations (FAR) Parts 121 or 135. Private carriage may be conducted under FAR Parts 125 or 91, Subpart D. Operations conducted under FAR Section 91.181, which permits certain charges to be made, may also be subject to these guidelines, particularly the "time sharing" provisions of FAR Section 91.181(c)(1). It should also be noted that lease agreements entered into under FAR Section 91.181 are subject to FAR Section 91.54, "Truth in leasing clause requirement in leases and conditional sales contracts."

2. CANCELLATION.

Advisory Circular 120-12, Private Carriage Versus Common Carriage By Commercial Operators Using Large Aircraft, dated June 24, 1964, is canceled.

3. BACKGROUND.

"Common carriage" and "private carriage" are common law terms. The Federal Aviation Act of 1958 uses the term "common carriage" but does not define it. It has therefore been determined that guidelines giving general explanations of the term "common carriage" and its opposite, "private carriage," would be helpful.

4. GUIDELINES.

A carrier becomes a common carrier when it "holds itself out" to the public, or to a segment of the public, as willing to furnish transportation within the limits of its facilities to any person who wants it. Absence of tariffs or rate schedules, transportation only pursuant to separately negotiated contracts, or occasional refusals to transport, are not conclusive proof that the carrier is not a common carrier. 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. This "holding out" which makes a person a common carrier can be done in many ways and it does not matter how it is done.

a. Signs and advertising are the most direct means of "holding out" but are not the only ones.

<> b. A "holding out" may be accomplished through the actions of agents, agencies, or salesmen who may, themselves, procure passenger traffic from the general public and collect them into groups to be carried by the operator. It is particularly important to determine if such agents or salesmen are in the business of selling transportation to the traveling public not only through the "group" approach but also by individual ticketing on known common carriers.

c. Physically holding out without advertising where a reputation to serve all is gained is sufficient to constitute an offer to carry all customers. There are many means by which physical holding out may take place. For example, the expression of willingness to all customers with whom contact is made that the operator can and will perform the requested service is sufficient. The fact that the holding out generates little success is of no consequence. The nature and character of the operation are the important issue.

d. Carriage for hire which does not involve "holding out" is private carriage. Private carriers for hire are sometimes called "contract carriers," but the term is borrowed from the Interstate Commerce Act and legally inaccurate when used in connection with the Federal Aviation Act. Private carriage for hire is carriage for one or several selected customers, generally on a long term basis. The number of contracts must not be too great, otherwise it implies a willingness to make a contract with anybody. A carrier operating pursuant to 18 to 24 contracts has been held to be a common carrier because it held itself out to serve the public generally to the extent of its facilities. Private carriage has been found in cases where three contracts have been the sole basis of the operator's business. Special adaptation of the transportation service to the individual needs of shippers is a factor tending to establish private carriage but is not necessarily conclusive.

e. A carrier holding itself out as generally willing to carry only certain kinds of traffic is, nevertheless, a common carrier. For instance, a carrier authorized or willing only to carry planeloads of passengers, cargo, or mail on a charter basis is a common carrier, if it so holds itself out. This is, in fact, the basic business of supplemental air carriers.

f. A carrier flying charters for only one organization may be a common carrier if membership in the organization and participation in the flights are, in effect, open to a significant segment of the public. Similarly, a carrier which flies planeload charters for a common carrier, carrying the latter's traffic, engages in common carriage itself.

g. Occasionally, offers of free transportation have been made to the general public by hotels, casinos, etc. In such cases, nominal charges have been made which, according to the operators, bear the expense of gifts and gratuities. However, the operators maintain that the transportation is free. The courts have held that such operations are common carriage based on the fact that the passengers are drawn from the general public and the nominal charge constituted compensation.

[font=&quot][/font] h. Persons admittedly operating as common carriers in a certain field (for instance, in intrastate commerce) sometimes claim that transportation for hire which they perform in other fields (for instance, interstate or foreign commerce) is private carriage. To sustain such a claim, the carrier must show that the private carriage is clearly distinguishable from its common carriage business and outside the scope of its holding out. The claimed private carriage must be viewed in relation to and against the background of the entire carrying activity. Historically, Civil Aeronautics Board decisions have concluded that only in rare instances could carriage engaged in by a common carrier be legitimately classified as private. i. In summary, persons intending to conduct only private operations in support of other business should look cautiously at any proposal for revenue generating flights which most likely would require certification as an air carrier.

j. Persons who have questions concerning intended operation of their aircraft are encouraged to discuss their proposed operation with the Regional Counsel of the FAA region in which it intends to establish its principal business office. Such early interviews will materially assist the applicant in avoiding many of the "pitfalls" which could result in illegal common carriage operations.



/s/

William T. Brennan

[font=&quot]Acting Director of Flight Standards[/font]

 

[Geigo]

I could see where the owner/CP could see $$$ and get “a reputation to serve all” and put you in a position where you will be the one penalized should something happen. I know of one situation where an FBO was in the process of getting a 135 certificate. The pilot knew this was in the works and when the owner called and told him it was done (when it wasn’t) and there was a charter flight,which he did. I don’t remember the whole story, but afterwards the passenger was not happy about the bill and called the FAA. Needless to say it ended up being a bad deal for the pilot.

 

[Lead Sled]

The FAA standard is: If it looks like a duck, if it walks like a duck, and if it quacks like a duck, it's a duck. You (or your boss) might try to call it a pigeon, but it's still a duck. It's amazing how guys keep trying to reinvent the same old ways to circumvent the intent of the FARs. Here's a hint, the Feds are wise to this. Is the handful of hours you might get worth the violation? If you end up with a violation you can pretty much kiss any meaningful aviation career goodbye.

 

[flyer172r]

One thing that wasn't clarified in your initial post that makes a huge difference is: are you a CFI? Because if you're not, then it's not dual instruction and this whole discussion is pointless.

 

[Lead Sled]

One thing that wasn't clarified in your initial post that makes a huge difference is: are you a CFI? Because if you're not, then it's not dual instruction and this whole discussion is pointless.

Flyer...
Let's assume that he is a CFI. How does that change anything? It's still a 135 operation. You MIGHT get away with it if you can show that s/he has a logbook full of legitimate training flights. But just throwing a guy into one of the front seats of an airplane and flying him some where and making a "one off" logbook entry along the lines of "Cross country orientation and procedures" isn't going fool anyone.

Lead Sled

 

[FN FAL]

Yea that's all nice, the Advisory Circular and all the speculation, but you still haven't shown me where a bonifide student and a bonifide instructor are prohibited from combining flight instruction with the student's request to choose airports that make it convenient for him to combine his business with the instructing.

If your boss is selling them a log book and then just calling it instructing...that's one thing.

I suppose in the case where two multi rated flight instructors split 100 hours time in a rented twin and call it one hundred hours PIC time each, that you are going to tell me that it's O.K. that the CFI under the hood recieving the dual says, "Hey, lets stop in xyz so I can pick up my stuff at the sporting good store, they said it would be done today!"

I suppose you are now going to tell me that's not a charter? But if you don't know the guy...then it's a charter? Is that how it's done?

 

[wheelsup]

<<I suppose in the case where two multi rated flight instructors split 100 hours time in a rented twin and call it one hundred hours PIC time each, that you are going to tell me that it's O.K. that the CFI under the hood recieving the dual says, "Hey, lets stop in xyz so I can pick up my stuff at the sporting good store, they said it would be done today!" >>

FN FAL:

I think you're comparing apples to oranges. By having 2 multi rated pilots up front the only reason the second one is there is because the left seat one wants to log hood time. If the one giving dual jumped out (easy on the small pipers ) the other guy could legally fly and operate the aircraft (assuming he/she takes the hood off).

I would hope the FAA wouldn't have problems with CFI's going along with other pilots once they have obtained their particular rating for the aircraft/condition of flight. I had one gentlemen who, although had over 1000 hours and 600 multi, wanted someone to ride along with him on his business trips as a back up guy. He was a commercial SEL/MEL Inst. pilot, current medical, BFR, etc. etc. In other words, legal to go alone, however he just wanted someone next to him. So I went - in my eyes NOT a 135. I didn't NEED to be there to make the trip legal.

I used to instruct out of Teterboro, NJ. As one would imagine, the airspace around that area is fairly complicated. Visiting pilots would stop by the FBO and want to go take a plane up for a Hudson river tour, and rightly so have an instructor go along with them. Again, in my eyes NOT a 135, you are giving additional training, but they could still make the flight legally by themselves.

In the same way, you have companies/pilots who offer this same service to owners of higher performance aircraft - a form of advanced training. Whether they go to another destination for a reason other than training is no one's business. Here is one featured in the March 2004 AOPA Pilot:​

​

http://www.guardianjet.com/​

The other case is of a pre-private 'student' and an instructor going along. The instructor needs to be in the aircraft to make it legal...so I would think that the FAA would see this as a sort of charter. Atleast, I would get uneasy feelings accepting flights in this manner. Just last week I turned down an 'instructional' flight approximately 400 miles in length with a current student. The flight was for other than training purposes...if he simply wanted to do a REALLY long xcty then fine, but it had other motives, and he could not of made the flight legally by himself. He was paying me to get him there.

Atleast this is my view of it...if I HAVE to be there to make it legal then it's 135!

~wheelsup

 

[FN FAL]

Atleast this is my view of it...if I HAVE to be there to make it legal then it's 135!

No. Proper documentation and structure does not mean that by having to be "making it legal" then it's 135.

Making it legal? I'm sorry, but if an individual leases or rents a plane from some place that does such things and then in separate and well documented contractual agreement hires you as his commercial pilot to fly the leased plane...this is not "making it legal" it's already legal to do so...you are just providing structure and documentation so that the feds know that you are not operating illegal charter. It's not only a good idea for keeping the FAA off your back but it probably will also keep the IRS off your back. Plus proper documentation and structure will also mean incorporation, which should provide some liability protection. But this aint "making it legal"...it's legal.

But anyway, this is getting off the beaten path. A real student and real instructor participating in real flight instruction can go to the airport of the students choosing for personal reasons of the student. A combined trip.

No one here has yet proven to me that a student can't choose the airport and use the trip as business or pleasure at the same time.

You can find cases where the intent wasn't to flight instruct but to travel as if on a charter and there was some bust by the feds...but I bet you can't find one single case where there was legitimate flight instruction being given and a choice by the student to combine the flight with a personal purpose. Find one. Someone mentioned case history or law in one of their posts...but never shat a case.

And don't give me that one where the guys first flying lesson was in a Seneca and he had three of his buddies in back with him on trip, ahem, I mean flying lesson who were all helping to pay for this first lesson and when they got to where they wanted to go THEY went to the concert and the CFI sat at the FBO all day. That's not what we are talking about here. This is a charter being hidden by the guise of flight instruction. This case actually happened.

If I had a documented student and he said he wanted to go somewhere and take his wife to a concert or attend a business meeting, while combining it with flight training...we're going. And I'll be glad to show the feds my log book, my invoices for ground and dual and we are documented and done.

This student's documentation will be his endorsed log book and the student's medical. He will be doing his best attempt at takeoffs landings and keeping the wings level while flying his plan and maybe even while wearing a hood during the flight.

If we are talking real flight instruction, combined with a desire for the real student to make the use of the lesson flight for personal reasons, that's one thing. If your boss is selling a log book to a someone off the street to cover for holding out flight...that is a totally different intent.