Pilot-Counsel: PRIVATE VS. COMMERCIAL FLYING

December 2020 editorial comment and update:  This article first appeared in the December 1999 AOPA PILOT magazine. It emphasizes the importance of knowing and understanding the privileges and limitations of private pilot privileges. The issues and pitfalls raised in the 1999 column persist today. Newly minted pilots as well as veteran flyers sometimes stumble across the line between commercial and non-commercial activities due to confusion or ignorance of the rules. FAR 61.113 and its predecessor FAR 61.118 are directed at pilots, but they were promulgated in part for the protection of passengers and the unknowing public who are entitled to the higher standard of care imposed on commercial operations than that required of under private pilot rules. Private pilots are expected to know what they can and cannot do with regard to carrying passengers or cargo for compensation or hire, as distinguished from what commercial carriers can do. 
 
Since publication of this article in 1999, technological advances and the advent of internet-based flight-sharing applications and platforms have caused newfound confusion and strain for private pilots and other stakeholders. The FAA’s position on the matter though is pretty clear; it considers web-based applications or platforms that connect pilots, passengers and airplanes together to facilitate air transportation to be commercial operations that require pilots hold commercial pilot or ATP certificates and fly under Part 119 commercial operating certificates. Note that traditional expense-sharing flights under FAR 61.113(c) where the private pilot PIC is reimbursed the pro rata share of expenses remain permissible. 
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Suppose a friend calls on Labor Day weekend to tell you that an air ambulance aircraft, along with its pilot, nurse, and doctor are stranded because of a mechanical problem, and they need somebody to fly a mechanic to the aircraft to get it operational.  He tells you that they have tried to get a charter but they have been unable to do so.  He asks if you would help.  It’s a good cause, and you would like do it.  May you fly your own airplane to take a mechanic out, and bring the crew back, legally, according to the Federal Aviation Regulations?
 
Decisions of the National Transportation Safety Board in pilot enforcement cases teach us a lot about the interpretation and enforcement of the FAA’s regulations.  Here is a case that helps refresh our understanding about what flights we can conduct as private operations, and at what point a flight could be considered commercial.  The case also illustrates the importance of our right to appeal FAA enforcement cases to the NTSB, to bring some common sense and fairness to FAA actions.
 
FAR 61.113 is the regulation that specifies the privileges of the holder of a private pilot certificate.  It also applies to ATP and commercial pilots when they are exercising only the private privileges of their certificates.
 
According to the regulation, a private pilot may act as pilot in command of an aircraft, including carrying passengers onboard the aircraft.  But, there are two very important limitations to these privileges, both of which involve the legal phrase in the regulation, ”compensation or hire.”  A private pilot may not receive "compensation or hire" for acting as pilot in command of an aircraft.  And, a private pilot may not command an aircraft that is carrying passengers for "compensation or hire", even if the pilot does not receive any compensation.  

The regulation has exceptions to the "compensation or hire" limitation which we have explained in earlier columns (see “Interpreting the Rules,” October 1997

Pilot; Charitable Flights,” March 1996 Pilot; and “Shared Expenses,” March 1995 Pilot), such as shared-expense flights, flights incidental to a business or employment, charitable airlifts, sales demonstration flights, and glider towing.  None of these exceptions are involved in this case.
 
The respondent in this case, an automobile service station operator, is a private pilot and aircraft owner.  He received a call from a friend who had received a call from the manager of an air medical transportation service.  The service operates two helicopters as air ambulances.  The manager learned late on a Friday afternoon before a Labor Day weekend that one of the helicopters, which was on a mission involving a nurse, a patient, a doctor, and a pilot, had a mechanical problem and was grounded on a nearby island.  The manager made a couple of calls to commercial operators to try to arrange air transportation for his mechanic to the island to get the helicopter flying again.  He anticipated that the flight physician and nurse would also need transportation back, but they returned by other means.  Because it was a holiday weekend, he had difficulty finding anyone available. 
 
Eventually he called a longtime acquaintance who he thought was a commercial operator (he actually was no longer a commercial operator).  The acquaintance indicated that he was not available to take the flight himself, but he would try to get someone to do it.  The manager ended up talking to the respondent.  The respondent stated that he advised the manager in their initial telephone conversation that, although he did not do charter flights, he would take the flight.  "He had asked how much it would be, and I said I wouldn't take any money."  He agreed to help as a favor, not only to get an air ambulance back operating, but because, "if it ever happened to me, I'd want somebody to help me."  An NTSB judge would later characterize him as a "good Samaritan", and his help as a "good deed."
 
So, that day, the respondent, in his own Piper Lance, flew the mechanic to the island and came back with the pilot.  The next morning, Saturday, he took the mechanic and the manager to the island to complete the repairs on the helicopter.  Three flights were made in all.  
 
Here is where the situation gets sticky.  The manager received an invoice for $300 from the longtime acquaintance, and he paid it.  But, the respondent never received any compensation for the flights--not even for the fuel. Nor did the respondent expect to get paid or otherwise compensated.
 
Even though the respondent, himself, did not get compensated, and did not expect any compensation, the FAA contended that he carried passengers for "compensation or hire." 
 
To demonstrate how strongly the FAA felt about it, the agency threw the book at the respondent.  The FAA suspended his private pilot certificate for one year.  The FAA not only charged him with violation of FAR 61.118 (now 61.113), but also a string of Part 135 violations (the Part governing commercial charter operators), and with careless or reckless operation in violation of FAR 91.13(a).
 
The respondent appealed his case to the NTSB.  There he found more understanding of his situation.  The Board granted the respondent's appeal and dismissed the FAA complaint. 
 
The case before the Board seemed to turn on whether the respondent "should have known" that the flights were commercial.  The Board distinguished an earlier similar case decided by Board, in which the pilot claimed that he was giving the other pilot flight instruction and had no knowledge of any arrangement with the passengers.  He failed to ask any questions about why the passengers were on the flight.  In that case, the Board concluded that the pilot knew or should have known that the flight was subject to Part 135.  The pilot was found in violation.  
 
"The evidence in the instant case, on the other hand, does not support a similar finding.  [The] respondent agreed to transport, in his own aircraft, [the ambulance service's] mechanic in order to help the air ambulance service regain the use of one of its two helicopters during a busy holiday weekend.  He testified, and the law judge found, that he advised [the manager of the ambulance operation] the flight would not be a charter and there would be no charge.  He did not allow [the manager] to pay for fuel, and the evidence did not show that he was ever reimbursed by anyone for the fuel he utilized,”. “Further, no evidence was introduced to show that respondent expected any return favor from or sought to build goodwill with [the manager], and there is no evidence to indicate that respondent worked in any way for or with [the former commercial operator].  There is also no evidence to indicate that respondent knew or should have known that [the former commercial operator] planned to charge [the manager] for the flights.  In short, the evidence is insufficient to prove that the flights were operated for compensation or hire."
 
This case has several messages for us.  It reminds us of the dual limitation on the privileges of a private pilot.  Not only must a private pilot not receive compensation, the pilot may not carry passengers or property for "compensation or hire" even though the pilot is not being paid.  If there is any payment or compensation for the carriage, a private pilot may not command the flight.  Similarly, although an ATP or commercial pilot may be compensated for serving as pilot in command of an aircraft carrying passengers or property for compensation or hire, he or she must do so under the requirements of FAR Part 135.  Even if the pilot in this case had an ATP or commercial certificate, he no doubt would have had the same problem with the FAA.
 
This case also cautions us to be on our guard to question circumstances that suggest passengers or property may be carried on a flight for "compensation or hire."  Even if we don't actually know the status of our passengers or cargo, we are responsible if we "should have known."
 
Finally, this case teaches us how seriously the FAA considers such violations.  A one-year suspension of a pilot certificate is pretty serious stuff.
 
 
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John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com