AOPA Says FAA Prosecuting ‘Volunteer’ CFIs On Special Aircraft


AOPA is warning flight instructors they can’t provide instruction for free in limited, experimental and primary category aircraft without risking sanctions from the FAA. AOPA says the agency has gone after CFIs who have given instruction as volunteers, citing regs that say money doesn’t have to change hands for them to have received “compensation.” According to AOPA, FAA prosecutors told a court that Advisory Circular 61-142, which covers expense sharing in private aircraft, says such intangibles as goodwill and the prospect of future rewards count as “compensation.”

The AC says sitting in the right seat helping out the pilot in the left seat “does not require a profit, profit motive, or actual payment of funds. … Accumulation of flight time and goodwill in the form of expected future economic benefits can be considered compensation. Furthermore, the pilot does not have to be the party receiving the compensation; compensation occurs even if a third party receives a benefit as a result of the flight.”

The issue arose when the FAA went to court to stop a Florida company from doing what the agency claims was illegally offering flight instruction in a P-40. The agency got into the legal weeds on that one because there was some conflicting guidance in the regs on teaching people to fly warbirds. They cleared it up by banning CFIs from teaching people to fly the unique, complex and often arcane aircraft in the limited, experimental and primary categories unless they have a Letter of Deviation Authority (LODA) for experimentals or an exemption, in writing, for the other two categories from the agency. 

Paperwork backlogs at the agency mean that it could take months or years to process the thousands of applications that will flood the agency, AOPA contends. AOPA President Mark Baker said the hard line taken by the agency is contrary to its primary mission. He said it will tempt pilots to tackle aircraft they’re not trained to fly with potentially disastrous results. “The FAA can’t have it both ways, while claiming it is clarifying the situation. This is contrary to the FAA’s mission and obligation to promote safe flight,” said Baker.

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  1. The perfect example of having too much time on their hands. Maybe – stay with me here – instead of beating the bushes for a way to prove the old adage that they’re not happy until you’re not happy, the FAA could, say, open the FSDOs that are closed around the country and actually provide some service in return for all the taxpayer money. Just a thought.

  2. So where does this ultimately end? Are angel flights, pilots n paws, and other charitable flights now going to require a commercial license since the pilot might be deriving some form of goodwill and/or flight time? Certainly third party’s receive some benefit. If this might be the case, I am sure you will see fewer patients and animals transported by well-meaning private pilots.

    I am sure many an animal has gotten a “free” ride in many experimental aircraft as well as numerous certificated models. I am not sure I fully understand what the difference is between my CFI giving me free instruction in my certificated 177 vs. my experimental RV10. Is this ultimately a way to clamp down on experimental aircraft sales?

    • So it would seem. I suppose this means you’ll now need a LODA when doing initial flight testing with someone else on board too (something that was recently allowed, but it seems now not really). Someone at the FAA seems to have gotten confused about who the “general public” is, and apparently think that experimental aircraft *owners* are considered “general public” that need to be protected…from CFIs offering to teach them how to become safer in their own aircraft.

  3. My previous understanding was that “flight time” could be considered compensation if it was logged, but if you didn’t log the flight time, it didn’t count as compensation. Now it sounds they’re saying if you’re even just *sitting* in the airplane, you are receiving “compensation”. Same thing with just *talking* to a potential client; that is apparently “compensation” too, in the form of “future good will”. If so, that is the most ridiculous statement they have ever come out with, and basically ends all flight instruction in anything other than a certified standard category aircraft.

    This has to be from someone who saw their job at risk and invented a problem to “solve”.

  4. An unchecked government agency out of control! Try getting into a FSDO to conduct some real business! Impossible! They are all buttonholed up at home using the excuse of COVID to be on a permanent vacation. Call any FSDO and get a voicemail that they can’t help you right now, try later! Same result later! Just a bunch of worthless bureaucrats sitting on their duffs dreaming up ways to hassle the people who are out there doing good for the aviation community. Obviously they don’t understand that WE are the customers – they work for us, not the other way around. AOPA needs to get their lobbyists on this and get some congressional action to do some pruning among the FAA ranks!

  5. Here is a possible scenario… perhaps a bit far-fetched, but the dominoes do appear to be falling and the FAA does seem to be redefining the definition of flight instruction.

    Let’s say (hypothetically, of course) that as a retirement past-time, I earn a Sport pilot certificate and that is closely followed by the addition of the Sport CFI rating. Let’s also say that over the past several years I have given 500+ hours of flight instruction to old farts like me with a 100% pass rate on practical exams and proficiency checks for the Sport pilot certificate.

    The dominoes continue to fall and the FAA finalizes their quest by including standard and sport (LSA) aircraft in their “carrying persons for compensation…” vendetta against CFIs. I do not hold a commercial certificate or a medical of any class, but I DO want to teach my grandson to fly, so I continue to renew my CFI-Sport rating. I pay for the airplane rental and teach my grandson free of charge.

    Question: Am I allowed to enjoy flying and instructing my grandson… or will that enjoyment be considered as compensation? Ah, yes, I can see it now. I’m met by an official from the FAA (always there to help!).

    FAA person (after checking my credentials): Did you enjoy the flight with your grandson?
    Me: Of course.
    FAA: Were you providing flight instruction to your grandson?
    Me (not wanting to commit perjury): Of course.
    FAA: Then you were illegally compensated for the flight and I am starting a certificate action against you.

    Yes, yes, I know. Pure fiction and the result of too little sleep on my part. I’ll shut up… but before I do, I’ll paraphrase Ronald Reagan:

    “In the present crisis, the FAA is NOT the solution to our problem. The FAA IS the problem.”

    • “FAA person (after checking my credentials): Did you enjoy the flight with your grandson?
      Me: Of course.”

      I take the FAA as considering you enjoyment as compensation.

      Bureaucrats have no perspective.

    • FAA: Did you enjoy instructing your grandson?

      Me: no, he tried to kill me, he’s younger than me, he has many years ahead of him, and he’ll be flying for a long time. No, it isn’t fun and I don’t enjoy it.

      FAA: We’ll, we’re not happy till you aren’t happy so our work here is done. Have a nice day.

  6. Legally, the word “compensation” is the problem. The FAA can attach ANY definition they desire to the word. Mr. CFI, you were receiving compensation by being allowed to come back down to earth safely and such BS.

  7. Set up a test case so you have standing in court. These vague and expansive interpretations often get shot down in court because the law is generally required to be specific. A similar issue crept up with flight sharing. Somehow posting on a cork board is ok but doing it on the interwebs isn’t.

  8. Here we go again with absurd BS being pushed to expand government control. 79 years ago the government ruled (in Wickard v. Filburn) that not participating in interstate commerce is participating in interstate commerce. 11 years ago the government ruled that you have a right to remain silent, but you must speak to actually claim and exercise it. Now it claims that not being compensated is being compensated.

    What’s next?

    • Are you trying to make my head explode, Bob? You’re driving me closer to it. Unfortunately, there are far too many people who think big government is just fine. Or even good. Even pilots. We’ve become quite comfortable with our low standard of liberty.

      • “Big government” is just a catch phrase used to get people riled up over generalizations. “Small government” doesn’t automatically imply that the remaining regulations are actually good or useful. The true problem is poorly-designed regulations that purport to protect someone but actually end up harming them instead.

        The whole idea of having rules around “compensation” in aviation is to protect the general public (who don’t have the proper knowledge to make an educated analysis of the risk they are undertaking) from under-qualified pilots or under-maintained aircraft (among other things). But when it goes so far as to classify properly-qualified flight instructors providing training to owners of experimental aircraft as illegal compensation, said regulation is now harming those aircraft owners rather than protecting them.

        I don’t think any of us would argue that there shouldn’t be *any* regulations around unqualified compensated (in the traditionally-understood definition meaning “paid”) flights. We just don’t want governmental overreach (which, again, is something that can happen in “big government” or “small/limited government”).

        • But a large number people expect micro-management in their naiive enthusiasm for collectivism.

          And people over-estimate the benefit of regulation. From my long experience including having delegated authority I say it props up the incompetent, who would go broke without a regulator. (Their service would be unreliable, and yes they might crash which would tell others they should not be hired.) And gives the public false confidence, most no longer think about who they are hiring (whether airline or pilot or technician).

          • And somewhere in gummints there is still an ‘economic fitness’ requirement to be allowed to operate an airline.

            Another example of gumming spending is cross-border. Very early in this century I attended a seminar, which covered both authority to operate and security. I was appalled that that US security bureaucracy had sent an inexperienced individual to cover that – with September 11, 2001 in everyone’s mind, whereas the authority to operate bureaucracy had sent an individual who really knew that unproductive subject.

            (For example, while it had been thrashed out that a Canadian sports team could fly its players to a game in the US using its Canadian-registered 727, it could not legally pick up a prospect in the US and take him to the game practice. In between was the case of picking up someone already on the team who was in the US participating in a family matter.)

    • Hmm, surprisingly high number considering the number of very small airplanes that do not require much effort.

      Writing FAA Advisory Circulars does help the small airplane owner.

      Oh, you are probably including ATC, which is a fundamentally different context than airworthiness and piloting competence.

  9. Wow. The absurdity of both the FAA and the court is mind boggling. Goodwill and possibility of future benefits are considered compensation. Just when you think the government just can’t possibly do anything dumber than they already have, they do.

  10. So, I am having this odd thought…our new White House Administration seems to be obsessed with giving out “free” stuff. It would seem to me that if Joe can do it, my Flight Instructor can do the same…

  11. The article didn’t mention the best part: FAA employees don’t want to do rides in military and old amphibs for personal safety reasons, so they rely on DEs and CFIs.

    Whatever minor “loopholes” that existed benefited FAA staff.

  12. And just in case ya’ll don’t realize it, the FAA pavillion at Airventure will be … UNMANNED! They’re not coming! Only the controllers will be working. What BS. How do I get an FAA job ?

    I have a DOT employee living right next door to me (not FAA). He has a Government car. That car just moves around in the driveway (because it’s in his way) instead of being out on the road inspecting big rigs and other commercial vehicles. I see the guy strolling around the yard all day long. In another case, I know an FAA guy who is actually laughing about how much time he has on his hands. Meanwhile, the rank and file non governbment employee taxpayer in this Nation has to work or else.

    MY head is exploding, too !!

  13. I’ve been following this story as it has developed, but I still can’t wrap my brain around one thing: A CFI is a commercial pilot, and so is allowed to fly ‘for compensation or hire,’ right?
    So why is the FAA now saying that’s not allowed?

    • 1) You’re right, but it’s the CFI rating that’s more important in this case. Commercial operations with passengers is highly regulated compared to instruction. The FAA lawyers are focusing on limited, experimental and primary, but all of those require instruction of some kind in practical terms for safety reasons and possibly endorsements.

      Do you really want low-time pilots flying P-40s, etc. around with no instruction in peace time? The US lost as many planes and pilots due to training accidents as the enemy in WW2.

      2) FAA lawyers are quoting the AC 61-142 on ride sharing expenses, but instruction is not ride sharing.

      The recent history is that the FAA has clamped down on “air taxi app ride sharing” (correctly) and Youtube payments by one FSDO (incorrectly.)

      In the Youtube case, a famous Youtube Part 91 single turboprop pilot called his viewers “passengers” or said “fly with me”, and was monetized on Youtube, and I think it was the Miami FSDO that basically lost their minds and started enforcement actions over not being an air carrier (for Internet viewers!) and collecting payments (for incidental Youtube views!) It was truly kafkaesque.

    • Not all CFIs have commercial privileges. There are many flight instructors who are flying on a third class medical or BasicMed and those CFIs can’t legally fly commercial operations. There are also Sport and Private pilots who have the CFI-Sport rating and those pilots by definition do not have commercial privileges. We have an excellent CFI-Sport in our area who has been instructing for several years with several hundred hours of instruction given. He will be out of a job and his students out of luck if the dominoes continue to fall.

      The problem is that the FAA has previously considered flight instruction to be just that – INSTRUCTION – and NOT carrying a person or cargo for compensation or hire. The current madness has the FAA redefining flight instruction in accordance with the unpublished judicial opinion that flight instruction is obviously carrying persons for compensation or hire. Not satisfied with that, the FAA then says that compensation is whatever they say it is, including such nebulous terms as ‘goodwill’ in the definition.

      This is government overreach at its finest.

      • So if a CFI does have a current 1st class, can they give instruction in an experimental airplane? Or do they need an operating certificate to do it? What kind of operating certificate?

        These are some of the questions that are raised by this ruling, which the FAA doesn’t have answers for.

        • It would appear it doesn’t matter what kind of medical (if any) the CFI has. It’s the fact that they’re providing instruction in an experiemental/limited/restricted-category aircraft, and that requires a LODA. And apparently it doesn’t matter if they’re donating their time, not charging a penny, and not even logging the flight time (though it’s that last point I’m not entirely clear on – is the FAA saying you don’t even have to log and record the flight time for it to be something of “value”?)

  14. Welcome to the “administrative state”. That’s where politicians set up agencies to regulate. They are given sweeping powers and have near 0 accountability. It becomes tyrannical as we see here. The FAA needs to be re-constituted so that stake-holders have seats at the table with actual voting power in the rule making process. Who would be stakeholders? GA, Airlines, Manufacturers, and the FAA itself. Stakeholders having input and voting power would help common sense enter into an otherwise out of touch bureaucracy. Some would claim this arrangement would be effectively the “fox guarding the hen house”. That is a risk, but the present concentration of power is unacceptable. Surely some balance of power is possible.