Can I pay for you to take me in your Cessna? FAR 61.113 & Holding Out Discussion w/Aviation Attorney
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- Опубліковано 21 кві 2022
- (Please Subscribe!). Aviation Attorney Greg Reigel comes back to the show to sit down with Dan (@TakingOffDan) to discuss the whole can or worms with taking money as a private pilot, starting with FAR 61.113 and also a discussion on what Holding Out is.
Greg Reigel: www.shackelford.law Email: GReigel@shackleford.law
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Greg may have made a mistake when it comes to pro rata share. I don’t believe the shares needs to be equal. 61.113c states “A private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers.” So for a flight with pilot + 3 passengers that costs $100 in gas, every occupant can chip in $25 or one passenger can pay $75. As long as the pilot does not pay less than $25, it doesn’t matter how much everyone else’s contribution is. The pilot could just as well pay for $70 worth of gas and the occupants chip in the other $30.
Correct. Pro rata does not mean equal amount. It means no less than a proportional share of the total as divided by number of souls on board.
Yup.
@@Timberns FAR 61.113(c) is surprisingly clear on this. "A private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees." So the hangar and plane do not factor into the pro rata share for the flight that you must pay. I encourage you to reread FAR 61.113 and AC 61-142 to better understand why your comment is not representative of lawful behavior.
But a hangar counts as an airport expenditure you say? Not so fast. While hangaring overnight at a base not your own would likely qualify as a reimbursable expense on a pro rata basis, your long-term hangar lease at your base does not. This was very clearly answered by the FAA in the 1993 Meyerhoff interpretation. www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/1993/Meyerhoff_1993_Legal_Interpretation.pdf
@@Timberns I was debating whether or not to reply to this, but I will. Renting and airplane with the expectation that they hire you as a pilot definitely runs afoul of wet lease/common carriage rules. Read FAR 110. What you’re suggesting is still illegal.
Very informative session. Right on time for my CPL exam !!
Most of these regulations are just there as a "catch all" for people blatantly breaking the law, not the occasional $100 thrown your way to compensate you from a friend. Hard to regulate otherwise.
Interesting discussion Dan.👍🏽
Another excellent episode Dan thank you. Thank you Greg for making another appearance and helping everyone make better sense of the regulations. Keep up the great work. Safe sky's 🤘🇺🇸🛩️
Hi Dan & Taking off team,
Good to see what regulation u have across the pond.
Here in the UK Europe we or I now use flight sharing platforms such as Wingly or Coavmi. I’m on both but work more with Wingly.
I’m based south of London at Redhill aerodrome north of Gatwick.
I’ve used Wingly flight sharing platform for 3 years now. It helps save a lot of money as I build up hours to become an instructor. The prices are shared equally by the number of passengers & me as pilot. If I have a flight in a 2 seater we split 50/50. If I’m in a PA28 and 2 people join we split in 3. I’ve met great people through the platform for sightseeing flights, or trips for a lunch, or someone wanting to try flight experience. People have been respectful if I have to cancel due to weather on that day. Safety first.
Then their is another way to build up hours in the uk and it’s though Aeroclub flight experiences too. People just pay the hour flight.
I know Wingly are speaking with the faa to have their platform in Northern America as it’s been working well in Europe now.
Have a good trip in the uk and if you want to speak about it or meet around London feel free. Can message at borderless aviation on social media.
Thanks for your great shoes as usual.
Rudy
Thanks Rudy. Yeah somethign similar was tried here and the FAA shut it down. Noel Phillips told me about Wingly. We actually are looking at it for our long drive to Inverness on May 1.
Wow!
Yep. Sport Pilot training in your own plane got dealt a huge setback.
Interesting. Eventually I'd like to be able to get by commercial and atp.
@6:40 EAA got into a jam with this, they use to post ride share...notice they can't...maybe a way around this would be changing $1.00 membership for this specific purpose?
Just came across your video and noticed the drone footage is out of the airport I flight train at! Airport - C20 Thanks for stopping by!
Welcome!! That was at Husbands Bosworth yesterday, is that same as C20? Didn’t think it had ICAO.
@@TakingOff The drone footage at the very beginning looks to be in Berrien Springs, Michigan and that airport is C20. Pretty cool to see the footage though!
Excellent Topic! Thank you Dan and Greg. I have a specific question, but I think its one that would be of benefit to others. I am an Aviation Maintenance Technician and love the idea of using my privately owned aircraft to go do work for my company client or to travel for training. such as Airframe Specific Maintenance training. Is there any circumstance where the company can offer me mileage, similar to if I were driving my privately owned vehicle? Also, we are typically paid for our travel time. How would this work if I were flying my aircraft as a private pilot? I am currently working on my commercial rating. Does this change anything in this scenario? Thanks!
Good questions. Let me see if I can find answers.
The answer to your question is "yes" and "no". If you are a member of AOPA legal services, they can give you some benchmarks as to what is permissible and what is not.
The FAA recently put out that even just the mere fact that someone is gaining flight hours even if they are paying for the flight is deemed compensation if they weren't intending on doing that flight already.
I didnt hear any talk about who owns the plane. That matters right? What if someone else rents a plane and then rents you outside of that? As long as you are only providing the pilot services you are ok right?
I can follow the fine points of logic I've seen described here, and in reading rulings and interpretations. But by making the distinctions so subtle, the FAA has made it so your THOUGHTS can determine if a flight is legal or not. For example, they've ruled that someone who's time building for their ATP is getting value beyond splitting the costs. But I'm an older guy who just got his Private, with no need for more hour for a cert. So based on current rulings, we can imagine a situation where a young pilot working toward an ATP or me doing the same flight with every other part of the situation the same, and one is illegal and the other legal based on our HOPES and DREAMS for our futures. That's messed up. And then that legal flight of mine: maybe it turns out later that I passed 200 hours, and I got a discount on my insurance. So I did get value, and the flight became illegal retrospectively.
I can think of other scenarios where just changing one tiny thing can make a flight go from legal, to illegal, and back and forth.
I was taught you should look at common carriage for a commerical pilot as a chain and if any of the chain is broken or not there it does not fit the definition so it is not common carriage. Common carriage is 1) a willingness or holding out; 2)to transport person or property; 3)from place to place(airport a to airport b); 4)for compensation or hire.
If anyone disagrees please tell me why.
One can carry for hire without holding out. It's called private carriage and like common carriage an FAA operating certificate would be required. There are contract carriers that operate just like an airline only they don't advertise or transport the general public.
Both the CAA and EASA have both signed off on appropriate regulations to allow flight sharing. I wonder what would happen if the people who ran that service approached the FAA? Would they then fight it? The platform in Europ is called Wingly. For more information, Search for the above.
Yeah we’re about to head to the UK, we’re going to find out more
When I would tell my friends that I was going flying, on any given weekend, they were all aware that if they wanted to join me, we would "Share" the expenses of the flight. For that Famous $100 dollar Hamburger or Breakfast!
what about with a commercial cert. Can I buy a C172 or 182 paint it yellow and be an air taxi. Do i need a 135cert?
That’s pretty complicated. All depends on who owns the plane, who pilots the plane, and what rules you fly under… is it part 91, 135? All depends on a bunch of factors.
Does it matter how the costs are divided and are you required to keep records of this? Say you are part of a club and rent the plane for 100 dollars/hr. Can you charge half of that rental if you and a few friends fly somewhere for a weekend?
In your example, yes, the per hour rate they charge you is what you can split. You cannot split something like your monthly dues with your passengers.
Does it change when your passenger is also a pilot? Groups in clubs would regularly share costs when flying out to places, and more than a few times people would just say lets go fly and jump in a plane. The whole lunch comment makes it out like we should be tracking even that to not fall foul of the regs.
They restrict stuff like that cos they are scared of heights. The very reason flight is safer than the road (statistically).
If someone at the FAA wants to get you they will. Even taking a friend up for a free sightseeing flight can be considered a violation. After all, you are getting logable flight time which has some value in the eyes of the FAA. Since only the time required to establish currency is required to be logged, is the answer to this to not log the flight? No money, no log time benefit?
What if I have a delivery's business occasionally occasionally use my airplane to make a delivery as opposed to my truck?
Under 14 CFR § 61.113, with a PPL you cannot carry passengers OR property for compensation. Flying cargo as part of a delivery business is certainly flying property for compensation.
@@RK-252 Generally that is for third parties. It would need a closer look, but if the cost of delivery is included in the product price (free delivery), a private pilot who owns the business could fly the product there. If FOB at the store, and there is a delivery charge, clearly not.
@@garyrisley9170 you're welcome to try, and best of luck. I guess at the end of the day it's the pilot who is risking their license, so it's their call whether they feel comfortable with the arrangement.
Edit: it's worth noting that once you have 250 flight hours (100 of which must be pilot in command, and a few other things) you become eligible to apply for a commercial pilots licence (CPL). Assuming you already have 40+ hours from your PPL, reaching CPL isn't that difficult - and it should easily allow you to incorporate your small fixed wing aircraft into your delivery business.
@Gary Risley THAT SOUNDS GREYER THAN GREY,!!!!!! 🤔🤔🤔🤣🤣🤣
@@RK-252 All he will need at that point is an ATCO certificate. Then to fly on the certificate the pilot will need 500 hrs to fly VFR or 1200 hrs to fly IFR.
Easy as that: yes if you create appealing content.
Dan you should have asked Bryan about this
Part 135
I have a question that I would like the lawyer to answer, maybe on another episode. I fly a friend's plane. We are not a club or partnership I just get to fly his plane and since does not have the necessary account at the airport, complicated story, I pay for the tie down. Of course, I have my own insurance and pay for my own gas and oil.
Can he legally ask me to compensate him a rate/hour to fly it?
If you ask me that sounds like your talking about plane rental. I’m not a lawyer but I would say if he followed the proper channels to rent his plane then I would say yes. You would rent the plane as anyone else could for a fee. It would probably have to be a club or something. Anytime there’s an aviation lawyer holding the discussion it always comes to splitting hairs. Dealt with it at sun n fun too with A&P stuff. It’s crazy.
@@gtm624 Rental requires 100 hr inspections per the FAA. A club as it's own rule set but no 100 hr inspections.
@@JustaPilot1 are there any other requirements? I can’t imagine I could just list my plane on the internet for just anyone to pay me and take it flying. I would imagine there’s more to it than that. Thanks for responding.
A club is more legally structured as shared ownership right? So then fixed and variable are split or factored into the cost of membership?
@@gtm624 Rental is flying commercially not as the pilot but the plane. All commercial operations require 100 inspections from the local flight school to A-380s. You are hiring the plane to fly it. The FAA is very clear on this.
What if I fly into OSH 5 days and take friends and we split rental costs? As a practice I stop being friends for life for fear of increasing the friendship which can be considered value and there's no chance of future compensation. I fly a lot but have no long term friends.
😂 mannnnnn I feel you as if we were shaking hands
Yeah you never know, because if someone you took flying 20 years ago now bought you lunch, or offered to fix your car, or do whatever as a favor, the FAA could claim you violated the FARs and bust you.
If you fly into OSH with non-pilots they become future pilots and when they later fly you in return then it's just pilots taking turns flying.
I'm a commercial/instrument, low-time pilot. When I got my PPL in the 90s my dad, who was an ATP, was very interested in going flying with his son a few times. If he used his credit card to top off the school's airplane was I busting compensation/hire? I think the answer is "yes," but is this government overreach? I'm sitting here trying to apply some logic or common sense to why someone can't put some money in your wallet. In other words, what's a good reason for this?
Is this guy related to Rusty Shackleford?
If the actual cost of a flight is 200 and I have one passenger, then can legally pay up to 100. But they can’t buy me lunch and not pay the 100?
Hi Dan, greetings from Argentina.
One topic you didn´t adress is: what happens with the aero-clubs? Can these clubs collect the money and THEN some pilot member do the flight?
In my country, as soon as I got my PPL, there was a list of "green" pilots and when somebody needed a flight, the instructor of that club picked the first one of the list and let him/her do the flight. The costs of fuel was paid by the passenger TO THE CLUB not to the pilot and that was legal. Are there in the US some similar options?
As always, cheers from NE Patagonia.
So basically, you can ask is anyone going to somewhere, and then share the cost or allow them to go for free. Let's be honest, this happens a lot with no issues. Friends talking with friends. The FAA needs to be investigated first. Do they do anything right?
A lot of these type of regulations need to be removed or re-written to give more freedom to private pilots to take other private citizens on flights and get compensated the full cost of the flight, just not paying the pilot a fee or salary...something like that.
Well in fact the FAA blatantly disregarded the law at the time when Congress had specifically stated that the FAA could not promelgate any new regulations for rc model aircraft and the FAA did otherwise. If your a regulatory body like the FAA you should lead by example, not by hypocracy.
One thing that wasn’t mentioned, or maybe I missed it, is that if you have your commercial license and own a plane you still can’t rent your plane and yourself but someone could hire you to fly their plane. Am I right on this?
How about Angel Flights???
Angel Flights are all voluntary, and the pilot pays all expenses and receives no compensation of any kind, i.e. cash, gifts, etc.
@@aeroengguy448 tax write off for all expenses as if it was a monetary donation to charity
They have a special letter of exemption from the FAA that allows them to reimburse fuel expenses to pilots if they meet similar to commercial qualifications and follow certain rules.
@@FlyingNDriving This was an issue, but, for once, the FAA showed good sense and their policy is that a charitable tax deduction is not compensation that violates the FARS'; otherwise, they would killed the charitable flight programs.
Proof of be careful what you ask for when giving permission to an organization to regulate any industry
Sure they regulated pilots for safety
But they also stopped normal people from helping their friends build careers or stop you from juat paying a pilot to take you 40 miles to the beach unless that pilot has went through thousands of dollars worth of regulation training which in the end means he charges you alot more for a simple trip
I still think I can put my airplane in a holding company and have that company rent it out at like $500 an hour and then ok sure me and passanger pay equal shares so thats $250 an hour each hmm that seems to be ok
Would a private pilot, break the rules if they earn something from a youtube video.
Or would they need a comercial pilot license.
Drone pilot need a commercial drone licence in US, if they make money from youtube videos.
It comes down to whether the video is incidental to the flight.
Did I hear that right? If I am flying from City A to City B and public post that I have a seat available for anyone heading that direction. That is against the rules? Even if Im only doing it to have someone to talk to on the flight or to give someone an opportunity to experience a flight in a small plane.
If you take compensation, then yes, big time against the rules. If not, then acceptable.
The other day I flew to visit my dad. On the way out, he offered to cover the fuel bill. I said no because I wasn't sure in the moment how the regs would view that. It's like, retrospect compensation. Another topic I wish you guys discussed was the pilot-to-pilot requests. "My plane's annual is finished and I need a ride to pick it up.. I'll help cover costs." is another common social media post.. the FAA's argument of an uninformed public isn't valid now... so can I give another pilot a ride?
The FAA does not have any jurisdiction or authority over other transactions that might be taking place between individuals not related to the actual flight. Just because the FAA might make the argument that one buddy can't buy the other buddy lunch, that does not mean the FAA is correct. If the lunch is not part of the flight costs, it might be a totally different transaction between friends just because two different transactions happen contemporaneously, does not mean they are tied together.
It depends on if lunch is contingent on flying. Buddy can pay pro rata share plus lunch if he normally buys you lunch even when you’re not flying. However if he says “if you take me flying I’ll pay half the expenses plus lunch,” the lunch is clearly compensation for the flight and not a separate transaction.
Likewise if the passenger wants to give the pilot a birthday gift of $200, and that $200 has nothing to do with the flight or flight compensation, that would be perfectly legal, as the FAA has no jurisdiction over gifting between two private individuals who just happen to also be flying together.
Good thing I do not have many friends. Holding out is advertising services. The FAA considers flight time as compensation. I think that is BS but they actually do.
They restrict lucrative use of your plane cos some dudes with planes are not that safe but most are. But it's a risk and they want it in a registered transport business paying absorbent insurance etc. Public liability up high is the problem. Don't take money and you are safe stops a vast booming logistics industry ran by any private pilots.
I've often wondered where UA-cam falls in this. Most aviation UA-camrs are not commercial. They are making money from the video. I have always assumed it falls under the incidental clause. But as more people make videos taking higher risks for views one has to question will that be cracked down on.
If the recording of the video is incidental to the flight then you are fine posting on UA-cam and making money off it. If the flight was made for the purpose of recording a video and making money off it then you are operating illegally. The FAA has been cracking down on this.
Like 1dgram said, it's all about incidental. I do videos and make a couple bucks off them but it's videos from flights I am already doing.
@@1dgram e.g. Trevor Jacob? 😂
@@1dgram Trent Palmer? They are after him right now
@@skyboy1956 Trevor Jacob's crimes are way beyond this
I have always had an issue with the FAAs reasoning on this. Yes, I get the whole safety aspect but to say someone, a private citizen, cannot assume the risk when getting into the aircraft is illogical. We assume risks getting in an Uber, a friends car, a boat, etc.
Lots of restrictions on private citizens...
Restrictions are more on the pilot than the paying citizen. Because a paying citizen who has no clue can do a simple google search and find a legal art 135 that can carry them in any type of aircraft or simply fly commercially.
They would never have flown with the random pilot had that pilot not gone up to them.
Okay here is a scenario, not a real thing. A stranger asks a pilot to fly him from point A to point B. The pilot doesn't take any compensation or value from the passenger, however he captured the flight on video and posts the flight to a channel that is monetized. Is that legal?
Technically, probably illegal if a private pilot, even if he was flying alone, but apparently that isn't what they busted Trevor Jacob for so maybe it is legal.
The purpose of the flight wasn't to take video to monetize it. If the pilot was going to fly him anyway then it's legal.
Just remember, the FAA is here to help.....
The FAA already (stupidly) determined flight time as a form of compensation
I think if the time is not logged, then it would have no value. If I remember correctly, only the time and landings needed for recency currency and new ratings needs to be logged. Look into it and decide for yourself though, I am only expressing my own thoughts, am not providing legal advice, yada yada.
its easier if you accept compensation is not limited to monetary instruments.
Why cant the passenger just sign a waiver saying they are willing to take the risk with a private pilot? In a free country thats how it should work. If I as a member of the public would like to do something like a Cessna 172 tour from Seattle to Alaska I dont need government agencies telling me I cant in order to protect me from myself.
It's counter intuitive, but it's not about you, it's about the pilot. If a pilot is taking commercial passengers, on average they will fly more than a hobbyist. Since risk is cumulative, more flights means they pose a greater accumulated safety risk to the public. The regulator has decided that this level of safety risk needs to be mitigated by the additional training and rules required by a commercial pilots licence, not just a private pilots licence. This is the same reason commercial truckers need a commercial driver's licence (CDL). Hope this makes sense.
I believe you are missing the point. It is not about the passenger. It is about the pilot. When somebody starts getting paid to offer transport services they are no longer just a private pilot. They are acting in the commercial sphere. Regulations, not to mention insurance requirements and maintenance requirements, or higher. And they are for a reason.
@@RK-252 well I can understand maybe a commercial certificate being required but in the video they were saying even then there are restrictions and not being able to transport people or property. What if I want to take a small plane tour flying relatively low compared to airliners to see the scenery on a flight like from Seattle to Alaska. Where do I sign up to do that?
There are pressures when you are flying for compensation that don't exist otherwise. If someone is paying you to get them somewhere you will have a harder time saying no and safety may suffer.
@@sizzelot that's what charter operations are for. They do that. And they have the proper training and insurance to do it
How is it possible that Dan is jumbling this up so bad? Most people will be more confused by this video. The FARs are clear about holding out, common carriage, wet leases, dry leases, and exceptions to holding out and being compensated for services (e.g. CFI, parachute operations, sight seeing tours, banner towing, fire fighting, etc).
Good idea for a video topic but missed the mark with the execution - doesn’t seem there was great pre-planning. It is an awkward conversation and questions seemed very random, unarticulated, and hard to follow.
After I flew a Pilots n Paws mission, the coordinator offered me a $50 Starbucks card, which I refused. That’s also compensation.
Yup
If you found a $50 Starbucks card on the ground it wouldn’t be
My question is would the flight have been any more dangerous or less safe if you had accepted the card? As a jury member I dont care what a government prosecutor tells me if he wants me to throw common sense out the window this would be hands down not guilty.
@@adamdobrzanski6631 AGREE!!!!!! ISNT A PILOT IN PAWS MISSION, KINDA LIKE A CHARITY, BACK TO THE GREY AREAS, I LIKE THE "OPPS, I DROPPED" CARD!!!
If a $50 Starbucks card showed up in the mail with no return address, you wouldn't have a clue who it was from or what it was for. 😂
It's ok until you get caught😂😂
DITTO!!!!!!!!!!!
It's all "legal" until the accident happens.
Dumb regulation, the passenger can just donate you a gift for something else completely unrelated lol
Yes, it's my 34 and 1/2 birth day! I would think proving a case like the scenarios discussed is difficult.
Not everyone wants to be or shouldn't be a Flight instructor.
there is no reason why as a commercial pilot with your own airplane you cannot take a family member or a friend to a business meeting or other event and get compensated for it. I can understand the holding out aspect where you are advertising to the general public. IMHO it is the NBAA (National Business Aviation Association) that has pushed this with the FAA for all these years. Even though in my example it is hard to enforce, the very fact it is like that is annoying. When I flew for a major airline (retired), I would tell people who asked if it was safe to fly, I would always say I have a vested interest in the outcome so if it were not safe I would not do it. Same thing applies to flying your friends and family.
the difference between general public and "friends and family" is common carriage vs private carriage. By you providing the plane and pilot, you need an operating certificate as you are basically running a private airline.
In addition, it depends on how many friends you have. If it looks like you are willing to carry more than a handful, the FAA may decided you are engaging in common carriage even though you don't hold out.
This video really doesn't clarify anything and just serves to confuse the topic. Holding out really means nothing to a private pilot, and 61.113 really means nothing to a commercial pilot, and you guys really didn't clearly define which you were talking about when. A commercial pilot can absolutely accept compensation or be hired for something prohibited by 61.113. Also, the lawyer guy really seemed to be ignoring Dan's question about things a private pilot CAN accept compensation for, such as towing gliders.
Another money based regulation that has nothing to do with safety. It's also mostly unenforceable. Famous line from Training Day: It's not what you know, it's what you can prove
The Europeans have got this part of the regulations right. See my last comment for the details.
If you are going to collect money from your passenger(s), collect the money after you land back at your base. There is no money changing hand before or during the flight, then the pilot is not acting as a chauffer or as a taxi. The money is to reimburse the pilot for no more than 1/2 the gas and oil. etc. People might think that your GA plane is cheaper than flying commercial, but that is in most cases not the case. Sorry, but it is just not. It is fun and it can be time saving, but cheaper? No.
Thats dumb. I can take my friends in my car for gas money. Not commercial. I need no special licenses to drive random strangers around for profit. But if i fly my drone for fun and let a church use that footage. No compensation. No contract. According to the FAA thats commercial. So technically giving your friends a ride to a destination without compensation falls under the FAA definition of commercial use.
FAA like all regulatory bodies kills innovation.