Articles

Exploring the Limits of Flying Under Part 91

Posted on Nov 13, 2019 by Rob Mark

Join COPA Today to see even more articles

Join Now

When you were a kid, or maybe even later in life, someone you trusted probably cautioned you about opportunities that look too good to be true; sometimes they are. That kind of advice usually focused on promised riches in exchange for relatively innocent commitments of time or resources. As pilots and aircraft owners, we’re way too smart to fall for promises like that; or are we?

Everyone that owns an airplane wishes it was less expensive to maintain. That’s one reason some owners lease their airplanes to a local flight school, flying club, or charter company, where they’re guaranteed a flat hourly cash flow that, when costs are extracted, might help eke out a small profit.

And just in time to shine a fresh light on this kind of venture, Uber-like aircraft ridesharing, flight sharing and air taxi companies like Flytenow, AirPooler, Blackbird, SkyRyde and FlyOtto have appeared, trying to demonstrate the flexibility of general aviation aircraft to passengers in need of transportation between cities unserved by air service of any kind.

In 2013, Flytenow and AirPooler were created to connect private aircraft owners with people in need of a ride to a destination that a random pilot might be headed towards, with the idea that they’d share the cost as allowed under Part 91. The Federal Aviation Administration (FAA) didn’t look too kindly on these ventures and decided they were not really ride-sharing, but actually just a commercial operation wrapped up in a fancy new website, despite these two companies claiming they had no profit motive. By early 2017, the legality of flight and ride-sharing nearly made it to the Supreme Court of the United States, but not quite. Lower courts ruled with the FAA against the concept, and both companies evaporated into history. Ridesharing proponents saw the ruling as a slap down of the emerging Uberization of light airplane flying, while critics called it a first step by regulators to protect the flying public from unqualified commercial carriers.

More recently, FlyOtto and SkyRyde have appeared, attempting to direct short-haul passengers to aircraft they represent for direct connections; although SkyRyde isn’t quite ready to open its doors just yet. The difference between 2013 and now is that in the case of FlyOtto (flyotto.com) the company acts as a middleman between potential passengers and legitimate charter operators operating under Part 135 commercial carrier rules called “commuter and on demand operations” by the FAA.

The goal is to simply direct more business to companies that already operate light general aviation airplanes like the Cirrus SR22 or Pilatus PC-12. FlyOtto doesn’t hold itself out as a Part 135 operator which it is not. It merely points people through its smartphone app to companies able to legally provide charter services using small aircraft. Once SkyRyde earns its FAA operating certificate, it intends to become a Part 135 operator and accept money for its services.

There’s one more company, Blackbird, that on the surface seems similar to FlyOtto and SkyRyde, but demands more due diligence on the part of an aircraft owner thinking about handing over their airplane for lease. Head over to the Blackbird website (flyblackbird.com) and you’ll see the company promotes using “Blackbird to discover how flying can be more affordable than driving.” Who among us wouldn’t buy into that idea? Blackbird even employs a slick new smartphone app to speed the connection process. The company is currently operating along the West Coast, but soon expects to begin flying along the East Coast of the U.S. Part of Blackbird operates under Part 135, but not all of it. It’s that portion operating under Part 91 that has caused skeptics to turn a closer eye; not so much at what Blackbird is trying to do, but how they’re trying to do it. Part of Blackbird’s plan encourages general aviation aircraft owners to lease the company their airplane to be used in regular operations.

During these kinds of investigations, the phrase “holding out” regularly pops up. It’s a phrase operators use to define their company’s goal … “to provide air carrier services to the flying public,” being an abbreviated example. Blackbird doesn’t hold itself out as a carrier, at least not at first glance. The company calls itself only, “an online marketplace that connects small aircraft, commercially-rated pilots, and people who are looking for an easy way to find them. Based on their desired route, people can rent aircraft and contract pilots to create their own itinerary. We [Blackbird] provide the platform to make that happen.”

Like a swim in the Great Lakes, a deeper dive means encountering places where the waters become murky. FlyOtto’s sole mission is to connect passengers to local charter operators who already operate single and light twin engine airplanes under Part 135. SkyRyde’s CEO J.B. Adkins said, “If we were to try and emulate Uber’s business model, which I think a lot of these aviation startups are doing, the goal would be to stay away from a lot of the existing regulations, but it’s almost impossible not to operate under Part 135. Anytime you’re transporting people for compensation, no matter how you skin it, you’re going to end up having to adhere to Part 135 regs.” Blackbird says they’re simply bringing pilots, passengers and aircraft operators together under Part 91.

Because of the contradictions in how experts view Blackbird, aircraft owners are wise to look closely at what they might be signing up for long before they sign a lease. Blackbird says because it’s operating under Part 91, not Part 135, the passenger is renting the airplane and the passenger engages the services of the [contract] pilot. The company says, “the flight is initiated by the passenger” and “the passenger maintains operational control.” The question is whether or not a passenger, uneducated about the ways of charter flying, understands the relationship Blackbird is creating. This gray area frightens regular charter companies.

Although Blackbird has never had a mishap, consider what might happen after an accident. Blackbird tells aircraft owners not to fret because the airplane is, after all, insured by the policy belonging to the aircraft owner/ operator. If you’re an individual aircraft owner who operates an airplane for pleasure or for your own business, it’s worth asking your broker how they’d feel about someone making money somewhere using your machine the way it’s currently insured, since Blackbird sounds an awful lot like a commercial operation to most critics.

A look at Blackbird’s web presence reminds everyone that, “every pilot is commercially certified,” and even “surpasses Blackbird’s own standards. Before joining the BlackBird community, every pilot must meet BlackBird’s safety requirements.” Those include a commercial pilot certificate, at least 500 flight hours, a background check, a valid first- or second-class medical certificate, an instrument rating and aircraft currency.” If the service is flown by a pilot, even a commercially rated one under Part 91, one question would be how much training that pilot has had recently. To be eligible to fly under Part 135, pilots must have recently completed a competency checkride with an FAA designated examiner. The aircraft must also be closely examined and found to meet commercial standards. On the aircraft side, Blackbird standards require aircraft to come with an airworthiness certificate, an FAA registration, an annual inspection, an ELT, seat belts and required emergency equipment. What airplane wouldn’t meet those requirements?

Ryan Waguespack looked closer at some of the questions that have arisen surrounding Blackbird. Waguespack is the vice president of aircraft management, air charter services & MROs at the National Air Transportation Association (NATA) in Washington. He explained that the legitimate charter industry “is historically a safe industry. We assume the pilot is properly trained and that the aircraft is well maintained.” He worries that the unrefined flying public might see nothing more than a cheap $99 price tag for a flight from say San Francisco to Lake Tahoe in a Cirrus SR22. “It costs more than that just to operate the airplane.” He doubts the “majority of the public truly understands the risks.” Nor might some aircraft owners. In the case of Blackbird, he points out that the company is simply “deflecting the risk.” The need for the passenger to be responsible to check both the pilot and the aircraft’s qualifications for the flight is where Waguespack says the public is being misled. He warned aircraft owners that “as a Part 91 operator, your estate could be penetrated. Who do you think is going to be number one on the lawsuit if there’s an accident?” He said the insurance industry is only now beginning to look at companies like Blackbird. “It’s turning slowly, but [looking closer] it’s going to happen.”

In recent years a number of industry investigations have been initiated from organizations like NATA and the National Business Aviation Association (NBAA) into air charter companies that hold themselves out to the public as legitimate when they are not. The crash of a Falcon 50 at Greenville, South Carolina, last year is a recent case in point. Neither the captain nor the first officer were actually certified to fly charter in the jet, but of course the passengers didn’t know that. The Falcon slid off the end of the runway at Greenville on landing, killing the two pilots and seriously injuring the two passengers in the cabin. Charter operations are often conducted in aircraft much smaller than a business jet. The part of Blackbird trying to convince owners to offer the company their airplane for lease can be found at aircrafty.io.

Despite the questions, it’s ultimately the FAA’s duty to decide whether Blackbird is following all the rules, but despite repeated requests to the agency for an interpretation on this Blackbird question from traditional charter companies, the agency has been silent. The only thing we do know is that the FAA has initiated a special investigation of Blackbird, but has yet to release any findings. The fact that the agency did not ban Blackbird from the skies outright offers some insight into the many questions that have arisen about the company, again, mostly from Part 135 charter companies.

Mentioned earlier, LA-based SkyRyde, founded by JB Adkins in 2014, an Embry-Riddle graduate and a pilot, spoke initially to similar battles Uber itself waged with regulators during its early years. He believes that while some incidents have occurred with Uber operations and been forgotten, “The margins for error in the air are pretty thin. It seems like every day, there’s an incident in the media involving general aviation. I don’t want [SkyRyde] to be a company that contributes to the stigma that general aviation is dangerous. I want to open this up so people can enjoy a safe and efficient way to get from A to B. Any pilot who wants to fly for SkyRyde,” he says, “will have to adhere to Part 135 standards.”

Adkins emphasized, “SkyRyde’s not varying from the regs at all. We’re just kind of reimagining them, trying to make our business model fit within the existing regulatory framework.” Adkins said “as an entrepreneur, I don’t wish ill on Blackbird or the founders. I think they’re trying to do something innovative.” He simply believes “they’re undermining everything that we’ve worked to uphold in terms of safety and a passenger’s perception. It’s a little disingenuous. Right now, it seems like there’s no standard. There’s no oversight if you’re able to operate without a certificate.”

Some people believe that Blackbird isn’t holding itself out as a charter operator at all. Adkins says there’s more to the argument than just that. “A company doesn’t necessarily need to hold themselves out as a Part 135. Most of the public has no idea what Part 135 means anyway.” Holding out, according to the FAA, simply means that an entity is presenting itself as a commercial air carrier operation. It doesn’t matter how they’re actually facilitating connecting people with airplanes. If a member of the unassuming public believes Blackbird to be the one conducting or facilitating commercial flights, that in and of itself is considered holding out [to the public].

At the moment, Adkins sees Blackbird like a dog chasing its tail. For the aircraft owner considering leasing their airplane to a company like Blackbird, the best advice right now might be buyer beware.

Rob Mark is a business aviation pilot, journalist and flight instructor. He also publishes the awardwinning industry blog, Jetwhine. com.

Join COPA Today to see even more articles

Join Now

Theme picker

You may also like