FAA Bans Non-Commercial Avaiation, Wrongly — Flytenow Goes to the Supreme Court

Flying commercial airlines is increasingly difficult. Long TSA lines this summer only compound peoples’ anger over high fees and cramped seats. Much better to fly private — that is, if you can afford it. But is it even possible to bring private air travel to the masses?

Flytenow was designed to do just that. The company’s founders, Alan Guichard and Matt Voska, developed an online platform to match individual pilots with passengers willing to share the expenses of flying. (See Jared Meyer’s interview with Flytenow’s founders.) While Flytenow was in operation, people could fly in private planes from, for example, Boston to Martha’s Vineyard in under an hour and for less than $70.

The Federal Aviation Administration shut Flytenow down. The FAA determined that pilots who partner with Flytenow are “common carriers” (the same classification for United Airlines, JetBlue, and other commercial airlines), even though the pilots could not make a profit from passengers — they could only defray a proportional amount of flight expenses. Common-carrier designation comes with myriad onerous regulations, including expensive licensing fees and heightened liability, forcing Flytenow to close.

Flytenow is not the only flight-sharing start-up that has been opposed by regulators. Wingly, Europe’s leading flight-sharing company, is under attack in its home country, France. French aviation regulators are creating new rules to prevent it from operating there.

In Europe, France stands alone in this fight against affordable private air travel. Emeric de Waziers, one of Wingly’s founders, told us that the company entered the German market in February 2016, and the U.K. market in July 2016, to prove to the French government that there is nothing crazy or dangerous about an online platform for sharing flight expenses. Not only did the aviation administrations of Germany and the United Kingdom confirm that Wingly was legally allowed to operate, but the EU’s European Aviation Safety Administration gave its seal of approval as well. If France continues to place restrictive laws on flight sharing, EU law requires the French government to prove that doing so is a response to a direct public-safety problem.

One of the French government’s main complaints against Wingly is that online flight-sharing services do not provide adequate information to passengers, leading to their possible endangerment. While advertising shared flights over beers at a bar or through a paper pinned to a bulletin board is still completely legal in France (as it is in the United States), apparently an online platform that offers verified information on passengers and pilots poses a threat to public safety. (Check out Wingly’s Safety & Trust page.)

A decision on whether Wingly can operate will be handed down by France’s aviation regulators at the end of August. If they ban Wingly and other flight-sharing companies, a long court battle will ensue over which regulations apply, France’s or the EU’s. With the sharing economy expanding beyond for-hire vehicles and unused homes, innovative services will continue to emerge across many more sectors of the economy, including aviation.

In the United States, aviation regulators are trying to outdo their French counterparts in hostility toward innovators. After several denied appeals in federal circuit courts, Flytenow is now taking its legal case against the FAA and seeking review before the Supreme Court. In a recently filed amicus brief to the Supreme Court, the Cato Institute and TechFreedom argue that, given the historical definition of “common carrier,” pilots who use Flytenow should not be treated the same as commercial airlines.

Read more of this National Review article by Andrew Meleta and Jared Meyer by clicking here.

Photo: Mike Scarcella/ALM