Time To Revisit Holding Out And Common Carriage
If you were busy last week, you may not have noticed the story about Flytenow scrolling by on AVweb. In a nutshell, the brief described how the U.S. Supreme Court had declined to hear the company’s challenge of a ruling upholding a lower court finding that Flytenow was engaged in improper common carriage.
Flytenow, you may or may not recall, proposed to be a ride finding/sharing service for general aviation. It has been compared to Uber and Lyft, but it is—or was—definitely not that. Those taxi services are staffed by paid drivers and the company organizing it provides a service for which a profit is earned. They definitely meet the “holding out” standard of common carriage because they’re an on-demand service that takes all comers.
Flytenow simply proposed to help passengers or fellow pilots find rides on an expense-sharing basis. It’s the difference between a taxi company and a carpool, where everybody chips in for gas and tolls. I’ll get to how this could be—and probably would be—abused in a minute, but for now, just understand the concept.
In a webpage it maintains on the subject, Flytenow included recordings of the actual oral arguments of the case and they make interesting listening. The FAA’s case turned on what represents common carriage and holding out to the public to offer a transportation service. The FAA insisted that Flytenow’s electronic pairing of riders and pilots constituted holding out while Flytenow argued that its service was merely the electronic equivalent of a bulletin board notice, which the FAA long ago determined did not represent holding out.
So what we have here is what we’re seeing more and more of: inflexible government rules and interpretations that can’t keep up with the speed of modern life, especially modern technology. Still, a lower court agreed that the FAA had it right and denied Flytenow’s petition for relief. SCOTUS declined to weigh in and there the issue ended, at least judicially. Legislation may be introduced in Congress making such arrangement legal by statutory fiat.
The question du jour is this: Is this a righteous thing to do? Does the unsuspecting and dull-witted public need to be protected from sharing expenses with a pilot who hasn’t been vetted by the FAA’s vaunted medical and fly-for-hire oversight? In a word, no. It’s 2017 for Pete’s sake; we need flexible regulation that accommodates the fact that the dorm-hall cork board has been displaced by Facebook and focused websites. In all of its regulation, the FAA needs to recognize this, just as it needed to understand that it was finally time to trash the Third Class medical. (It’s debatable if we’ve actually done that. I haven’t seen any dancing in the streets.)
So what’s the worst that can happen in this scenario? I’m sure some sharpies would game the cost-sharing system in such a way so that the sharing would benefit them to the extent of paying for airplanes and/or gas. Some might even be running a little underground airline of sorts. So? I can’t get my ethical pants snagged on this because I just don’t see much of a downside. I doubt if it would be widespread enough to represent a clear and present danger to the public. Or at least one that the FAA could justify stepping in to stifle things like Flytenow and others that might follow. Sure, passengers would be boarding little airplanes completely unvetted by the government. They could be killed in a crash as a result or robbed at gunpoint. Yup, for sure. It’s a dangerous world and people ought to be allowed to live it and make their own risk/benefit decisions following informed consent.
I know one argument I’ll hear is that one of these crashes would get on the evening news and that would harm GA even more. I tire of this kind of defeatism. We all should. Flytenow had an interesting concept that could have benefitted aviation. It should have been allowed to plant the seed.