Operators that post alerts through brokers or any other method regarding empty-leg flights may find their operations deemed as “scheduled” by the FAA, according to NATA’s interpretation of words spoken by Joe Conte, manager of the operations law branch within the FAA Chief Counsels office. Conte spoke at NATA’s Air Charter Summit and warned that posting such notices might lead the FAA to redefine an operation as a scheduled flight that must be conducted under Part 121, as opposed to Part 135. According to NATA, there are two key elements affecting the FAA’s determination. First, setting a timeframe within which the aircraft must leave satisfies the “departure time” element. And second, the shorter that timeframe, the more it will look to the FAA like it is a scheduled operation. According to NATA’s reporting of Conte’s comments, if an operator states a location where an aircraft must arrive and then offers use of that “idle aircraft” within a brief departure window, the FAA “will consider the operator to have ‘held out’ and operated on a scheduled basis.” NATA will be working up guidance for operators concerned about the legal status of empty-leg flight offerings.
