This was one of the questions addressed in an October 3, 2011 Legal Interpretation issued by the FAA’s Office of Chief Counsel. The individual requesting the interpretation posed the questions in the context of a proposed trip to a wedding in which the pilot would receive a pro-rata share operating expense reimbursement from additional passengers pursuant to FAR 61.113(c). The questions presented were:
- Whether the pilot may advertise, on Facebook, the specific time and date that he was traveling in order to carry two additional passengers with him in exchange for a pro-rata reimbursement of the operating expenses;
- If he receives a response to his Facebook post from two friends that expressed an interest in traveling with him in order to attend a baseball game whether he and his passengers share a “common purpose”?
- Whether he may post the same information on a fixed based operator’s (FBO) bulletin board instead of on Facebook; and
- Whether he could receive the pro-rata expenses through Paypal since Paypal extracts a 3% commission from any fees paid through their service.
The Interpretation initially noted that FAR 6l.113( c) “allows a private pilot to receive a pro-rata reimbursement from his passengers for fuel, oil, airport expenditures, or rental fees, so long as the pilot and his passengers share a bona fide common purpose for conducting the flight.” It went on to discuss “common carriage,” which is not allowed without a FAR Part 119 commercial operating certificate. If an operator is “holding out” to the public or a segment of the public, that “is the ‘crucial determination’ in deciding if one has engaged in common carriage or not. According to the Interpretation, holding out is accomplished through any “‘means which communicates to the public that a transportation service is indiscriminately available’ to the members of that segment of the public it is designed to attract.” This can be done through signs, advertising or even where an operator has a reputation to serve all.
With respect to advertising the specific time and date of his trip on Facebook to his “friends/family/acquaintances,” the Interpretation stated that would be acceptable as a private pilot, since he would not be holding out to “the general public.” However, since the pilot didn’t provide any additional details about the nature of the Facebook post or how large his Facebook audience was, the FAA cautioned that Facebook advertising could still be construed as holding out. For example, if the pilot advertised to a class such as all Facebook users, that could still be considered holding out if the advertising was expressing a willingness to provide transportation for all within that class.
Regarding the “common purpose,” the Interpretation noted that “[t]he existence of a bona fide common purpose is determined on a case-by-case basis.” It then concluded that based on the facts presented by the pilot, it appeared to be a bona fide common purpose, since the destination was dictated by the pilot, not the passengers, and he and his passengers both had personal business to conduct at the destination. Thus, the purpose of the flight was not just to transport the pilot’s passengers to the destination.
Finally, the Interpretation cautioned that putting the Facebook post on the bulletin board at an FBO could be considered holding out. It also noted that “payment through Paypal would suggest that there is an interest in carrying passengers with whom there is no previous personal relationship and that the offer to accept passengers is being made to the general public,” which would suggest that the pilot was “holding out.” However, in specific response to the pilot’s question, stated that whether or not the passengers reimburse the pilot through an online payment system such as Paypal has no bearing on the legality of the payment so long as the pilot does not pay less than his pro-rata share of expenses.
This Interpretation provides some fact specific insight into determining whether a private pilot may share expenses under FAR 61.113(c). For additional discussion on the topic, please read my article Shared Expenses and the Private Pilot.