Friday, August 22, 2014

Part 5 - How do we do it?

Vox Populi

  • Write a letter to your Congressional representatives in the US House and Senate. Enclose excerpts from this blog, your own ideas, and a draft of the proposed bill. It really is that simple. 
  • Contact AOPA, NBAA, and any other aviation trade organization with which you might have an affiliation.
  • Participate in blogs frequented by fellow pilots and other aviation enthusiasts and professionals and let your opinion be heard.

Part 4 - Statutory relief

The Gordian knot of regulations, FAA legal opinions, and case law that has accumulated has become unwieldy, arbitrary and capricious. NPRM and judicial relief is no longer a feasible approach to untangling the logical dysfunction inherent in the present state of regulations. Only with a return to the source of the will of the people, the United States Congress, can we now hope for relief. Therefore, it is proposed to seek statutory relief directly from the legislature of the United States.
Private/commercial operations firewall preserved
In the case of a commercial conveyance the public is entitled to government assurance that any operators of that conveyance are scrutinized to a standard to which the public could not itself verify compliance. Whereas in the case of a private operation, the passengers and owners of property conveyed by a private pilot have the burden, and the means, to acquire whatever information they wish to gather to weigh the risks associated with the operation. The services of a private pilot are not, and would remain under the proposed legislation, inaccessible to the general public that is unknown to the private pilot and who do not share the common purpose of the pilot on the flight.
Legislation is proposed (draft bill at the end of this post) affirms the need for a clear distinction between commercial and private operations and strives to unambiguously bar private pilots from operating commercially, while simultaneously providing protection of private property rights that have been unnecessarily trampled by a bureaucracy that seems incapable of rulemaking that accomplishes both goals.
The proposed draft bill has five provisions (SEC. 2) that incorporate all the elements of the firewall doctrines that the FAA has constructed between private and commercial operations.
  1. By restricting the compensation to reimbursement of expenses, paragraph (a) ensures that the flight is not the business, i.e., that it is not conducted by the private pilot for profit as an aviation business.


  1. Sub-paragraph (1) codifies the incidental doctrine that is well established in case law and there is no controversy surrounding its application:
(1) The flight is only incidental to that business or employment; and
  1. Sub-paragraph (2) codifies in statute the common purpose doctrine that the FAA has developed on its own to plug the gap between the definition of operations that are quid pro quo transactions and flights in which the private pilot shares a bona fide common interest in the mission:
(2) The private pilot shares a common purpose with passengers or property carried on the aircraft; and
  1. Sub-paragraph (3) ensures that the private pilot is not compelled to operate the flight as a condition of their employment or some other business compulsion. This is in stark contrast to a pilot employed in a commercial operation. It ultimately grants the private pilot the discretion to choose the mode of transportation, thus reinforcing the incidental doctrine.
(3) The possession and exercise of the privileges of a private pilot license is not a condition of that business or employment for the private pilot; and
  1. Sub-paragraph (4) extends the same doctrine as (3) to the passengers and property carried by a private pilot:
(4) Consent to be carried by an aircraft operated by a private pilot is not a condition of that business or employment for the passengers or owners of property.
These five provisions incorporate all the doctrinal elements that are to be found in the regulations, legal opinions of the FAA General Counsel, and administrative law court decisions, that separate commercial operations from private, without all of the mental gymnastics and logical fallacies that have befuddled the entire community as a result of the poorly crafted regulations currently on the books.
Win-Win
It would represent a win for both the commercial and private aviation communities and by extension to the economy at large. The commercial operators would be unambiguously protected from intrusion from private pilot operations and the private pilots would have their rights restored to receive just compensation for expenses related to the incidental use of their private property for private benefit.

It is therefore proposed to Congress to enact the following bill to amend the FAA Act of 1958 to restore the right of all citizens to transit through the navigable airspace of the United States without unnecessary, arbitrary and capricious denial of private property rights:





114TH CONGRESS
1ST SESSION H.R. XXX
To amend the Federal Aviation Act of 1958 to restore the right of private pilots to use private property for private benefit, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL xx, 2015
Mr. XXX introduces the following bill;


A BILL
To amend the Federal Aviation Act of 1958 to restore the right of private pilots to use private property for private benefit, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Freedom to Fly for Private Benefit Act of 2015’.  
SEC. 2. PRIVATE PILOT PRIVILEGES AND LIMITATIONS: PILOT IN COMMAND.
(a) A private pilot may act as pilot in command of an aircraft in connection with any business or employment and be reimbursed for expenses directly related to the operation of an aircraft in connection with any business or employment, provided the expenses involve only fuel, oil, airport expenditures, or rental fees if:
(1) The flight is only incidental to that business or employment; and
(2) The private pilot shares a common purpose with any passengers or property carried on the aircraft; and
(3) The possession and exercise of the privileges of a private pilot license is not a condition of business or employment for the private pilot; and
(4) Consent of passengers or owners of property to be carried by an aircraft operated by a private pilot is not a condition of business or employment for the passengers or owners of property.
SEC. 3. OTHER DEFINITIONS.
For purposes of this Act—
(1) the term 'aircraft' has the meaning given such term in section 101(5) of the Federal Aviation Act of 1958 (49 U.S.C. 1301(5));
SEC. 4. EFFECTIVE DATE; APPLICATION OF ACT.

(a) EFFECTIVE DATE- This Act shall take effect on the date of the enactment of this Act.


Part 3 - Regulatory failure

In the current regulations, attempts to develop bright line tests to distinguish between private and commercial operations have been devised by first defining commercial operations explicitly and prescribing rules to govern them, and secondly by constructing a perimeter of restrictive regulations around private pilot privileges to prevent excursions of private operations into the realm of commercial activity.
It is the perimeter of restrictions on private pilot privileges that have missed the mark and the result is a Byzantine regulatory regime that unnecessarily infringes upon the citizens’ “public right of transit through the navigable airspace” as guaranteed by public law [49 USC 40103 (a)(2)]. Such regulations are also contrary to the mandate of Congress to the FAA to “encourage the development of civil aeronautics” in accordance with 49 USC § 40104 (a).
In the nation that is the birthplace of aviation it is truly an outrage, and clearly not in the public interest, nor certainly not in accordance with the public will as expressed by the intent of Congress in the public laws, to proscribe by regulation the explicit right of citizens to “transit through the navigable airspace” in privately owned conveyance for private benefit. Yet, this is precisely the state that has evolved under the current regulations and the administrative doctrines that have emanated from them in the form of legal opinion from the office of the FAA General Counsel.
If we could lift this proscription there is no doubt that employers and small business owners nationwide would dramatically and immediately use more general aviation. More GA flying would lead to more business for FBOs, maintenance shops, flight schools, aircraft and parts manufacturers, aircraft dealers, and of course the users directly. In short, more GA flying equals more economic prosperity for the nation. More fuel consumption also means more taxes collected for the government coffers.
The fountainhead of these fetters is the proscription on private pilots enumerated in 14 CFR 61.113(b)(2):
Code of Federal Regulations
Title 14: Aeronautics and Space
CHAPTER I: FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (CONTINUED)
SUBCHAPTER D: AIRMEN
PART 61: CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS
Subpart E: Private Pilots
61.113 - Private pilot privileges and limitations: Pilot in command.
(a) Except as provided in paragraphs (b) through (h) of this section, no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command of an aircraft.
(b) A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if:
(1) The flight is only incidental to that business or employment; and
(2) The aircraft does not carry passengers or property for compensation or hire.
A clue to how logically deficient is this regulation is the fact that it begins in paragraph (a) with an exception to a proscription that is again proscribed in (b)(2). The practical result is that private pilots who wish to use their private property for private benefit in operations that are incidental to their business or employment are denied the right of reimbursement for such use.
Aside from the logical fallacy of this construction, there is a whole host of situations that can be easily conceived in which this restriction on the liberty of an airman is clearly arbitrary and capricious. A simple example is that a private pilot who uses their own airplane to travel on business cannot be reimbursed for use of their private property in an operation that is incidental to their business or employment if they are accompanied by a member of their own family!
Another absurd and arbitrary aspect of this regulation is that the office of the FAA General Counsel has over the years developed a laundry list of items that constitute “compensation”, including the acquisition of “good will” and the mere act of recording pilot in command time in the airman’s log book. Any private pilot who the FAA determines has earned “compensation” while carrying passengers is subject to fines and loss of license. It is a real and tangible example of the enforcement of “thought” crimes.
Imagine if the IRS announced that no reimbursement for the use of a private vehicle would be allowed if the driver carried a passenger or some property on a road trip in which the use of the personally owned vehicle was incidental to the business at hand. And yet we in the general aviation community have accepted this very same absurdity to be imposed on our liberty to use our own private property for private benefit.
There are more than 200,000 private pilots in the United States who have no desire whatsoever to operate commercially so why should we arbitrarily deny them the freedom to use their private property for private benefit?
In contrast, imagine a situation where private pilots who own or rent airplanes, would be allowed reimbursement for expenses related to incidental use of their airplanes for private benefit in connection to business, in the same manner as all citizens are allowed reimbursement for the use of their privately owned land vehicles.
We are not talking about revenue generation here, just reimbursement of actual expenses. If such reimbursement was allowed, we know from the use of private vehicles that employers and small business owners across the nation would immediately and dramatically step up to the use of general aviation for private use and this vast aviation infrastructure that our forebears have built over a century will finally be given a chance to realize its full economic potential for the benefit of the entire nation.
It is truly an outrage that the most developed aviation infrastructure in the world, in this, the nation that gave birth to aviation, should be so monumentally squandered on the whim of unelected bureaucrats who have neither sense of the history nor vision of the aviation pioneers who sacrificed so much to build it.

Part 2 - Private or commercial operation?


Included in the FARs are rules that govern the conduct of airmen in both commercial and private aviation operations. There is no statutory language that provides a clear demarcation between commercial and purely private operations and it has been left to the FAA to craft regulations to distinguish between the two and to prescribe privileges and limitations of airmen engaged in these operations. In doing so, a number of proxy characteristics have been defined in the regulations to provide a distinction between commercial and private operations because it is nearly universally agreed that such a distinction is in the public interest.
Among the distinguishing characteristics that are used to test whether an operation is commercial or purely private is the question of “holding out” to the public to provide air transport in a quid pro quo economic transaction in the free market. Other tests are designed to determine if such operations are incidental to a business activity of the airmen or whether it is an aviation related business activity itself. It is clearly in the public interest to ensure that commercial operations are conducted within a strict regulatory framework that is designed to maximize the safety of all involved in them as the public has no other way to acquire the necessary information needed to adequately assess the risk of the operations to their person or property.
Code of Federal Regulations
Title 14: Aeronautics and Space
PART 1—DEFINITIONS AND ABBREVIATIONS
§ 1.1   General definitions.
Commercial operator means a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under the authority of Part 375 of this title. Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit.
If an operation is deemed to be commercial in nature, FARs in Parts 119, 121 and 135 regulate those operations. These regulations function quite well and the safety record of US commercial aviation provides prima facie evidence of that fact.

Commercial regulations are a great success, so how did we get it so wrong for private aviation?

Part 1 - Freedom to fly protected by law

On December 17, 1903 on the windswept Bodie Island peninsula in the North Carolina Outer Banks, powered aviation was born. Over the next one hundred years the world’s most extensive air transportation infrastructure developed in accordance with the will of the people of the United States, as expressed through the guidance of the United States Congress. It remains one of the crowning achievements of the most prosperous nation that has ever existed in human history.
Freedom to fly protected by law
From the earliest days of flight, federal laws have been enacted to ensure the freedom of every citizen to exercise the right to use the airspace of the United States for the pursuit of private benefit. This doctrine is enshrined in the codified federal statutes:
49 USC § 40103 - Sovereignty and use of airspace
(a) Sovereignty and Public Right of Transit.—
(2) A citizen of the United States has a public right of transit through the navigable airspace.
FAA mandate to promote civil aviation and safety
In the Federal Aviation Act of 1958 (as amended) the Federal Aviation Administration was created and given the mandate to promote civil aeronautics and to ensure the safety of air commerce:
49 USC § 40104 - Promotion of civil aeronautics and safety of air commerce
(a) Developing Civil Aeronautics and Safety of Air Commerce.— The Administrator of the Federal Aviation Administration shall encourage the development of civil aeronautics and safety of air commerce in and outside the United States.
Federal Aviation Regulations (14 CFR) designed to ensure the safety of air commerce have been developed over many decades pursuant to the law that mandates their creation:
49 USC § 44701 - General requirements
(a) Promoting Safety.— The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing—
(5) regulations and minimum standards for other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security.
           Somewhere between the right to fly ("transit through the navigable airspace") and safety, is a balance point that is agreeable to society. This blog is about identifying that point and making a public choice to attain it.

Thursday, August 21, 2014

Welcome

Greetings fellow aviators,

Folklore has it that a frog would boil to death if it would be placed in a pot of cold water under which a flame is applied to gradually raise the temperature over a long period of time.

This blog is about tamping out some of that insidious fire that has incrementally eroded our fundamental right to use our private property, our airplanes, for purely private purposes.

On December 17, 1903 there were no government imposed restrictions on manned powered flight. There was only the freedom to fly. The flame of regulation has been burning under us ever since.

Timothy F. McDonough, Ph.D.
Visiting Clinical Professor
Dept. of Information Technology and Operations Management
SMU Cox School of Business
Dallas, TX
tmcdonough@smu.edu