Friday, August 22, 2014

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.


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