The NTSB has affirmed an order suspending an airman’s certificates for 30 days for violations arising from a flight which the airman characterized as a demonstration flight under FAR 91.501(b). In Administrator v. McGhee the airman operated a Cessna Citation carrying passengers on a flight on behalf of an air carrier which held an FAR Part 135 certificate authorizing the air carrier to conduct on-demand helicopter operations. However, the Citation was not listed on the air carrier’s operation’s specifications. As a result, the FAA alleged that the airman, on behalf of the air carrier, operated the Citation as a direct air carrier when the air carrier did not have authority to operate the flight, thereby violating FARs 135.343 (requiring appropriate crewmember training prior to operating flight under Part 135) and 91.13(a) (careless and reckless) because the airman had not fulfilled the training requirements of Part 135.
The FAA’s order suspended all of the airman’s certificates for 90 days. However, the airman appealed the order to the NTSB arguing that the flight was really a demonstration flight under FAR 91.501(b). After a hearing before an NTSB administrative law judge (“ALJ”), the ALJ found that the airman had the operated a flight without authority under Part 135, rather than in compliance with Part 91. The ALJ affirmed the violations alleged by the FAA, but he reduced the suspension from 90 to 30 days since the airman had only operated one flight in the Citation. The airman then appealed the ALJ’s decision to the full Board.
On appeal, the airman repeated his argument that the flight was a demonstration flight and not a Part 135 charter flight. The Board initially observed that “where a passenger has an expectation of being charged for a flight, this expectation indicates that the flight did not occur under the provisions of 14 C.F.R. part 91.” It further noted that a passenger may only waive the protections afforded by Part 135 knowingly.
Next, the Board recounted the evidence supporting the conclusion that the flight was a charter flight. The Board observed that the FAA presented evidence showing money was paid by the passengers’ employer to the air carrier in excess of the flight expenses allowed under FAR 91.501(d) (e.g. fuel, oil, lubricants, crew expenses, hangar costs, insurance) and the employer considered the flight to be a charter flight under part 135. Additionally, testimony indicated that the employer was not considering purchasing an aircraft and the Citation’s owner did not believe that the airman had conducted any demonstration flights in the aircraft.
Further, the Board recounted the evidence the airman should have been able to provide, but didn’t, to show that the flight was a demonstration flight. The Board expected that the airman would have been able to explain why he chose the particular destination for the demonstration flight, and why the passengers disembarked at the destination and stayed for several hours. The Board also felt the airman would have likely spoken with the passengers about the aircraft while at the destination; but, the airman testified that he did not speak with the passengers.
Finally, the airman testified that the air carrier contacted him and asked him to conduct the flights, even though the air carrier had no interest in purchasing the Citation and was not otherwise involved in a potential sale of the aircraft. Additionally, although the airman was the “aircraft manager” for the Citation, he couldn’t explain why he didn’t have any direct contact with the passengers’ employer without the air carrier’s involvement. The Board concluded that the airman had not met his burden of proving the flight was conducted for demonstration purposes.
As this case shows, a belief that a particular flight is a Part 91, rather than a Part 135, flight is not enough to avoid sanction by the FAA. The facts need to support any argument that a flight for which compensation is received is something other than a Part 135 charter flight. Unfortunately for the airman in this case, he didn’t have those facts. In this time of heightened scrutiny by the FAA, airmen should take care to ensure that they have the facts and documentation necessary to prove their compliance with the FARs applicable to their operations.
