Leaves Lower Court Ruling Intact ... And Essentially Kills The Business
The U.S. Supreme Court has declined to hear an appeal of a case brought by Flytenow, Inc., a start-up business that sought to use the Internet to connect private pilots with passengers wishing to share flight expenses, against the FAA. The Supreme Court's decision not to hear the case essentially kills the business in its current form.
The idea behind Flytenow was to build on “sharing economy” services that companies like Uber and Airbnb have popularized: websites or mobile applications allowing consumers to connect directly with private service providers.
Flytenow passengers did not pay for tickets or for the pilot’s time; instead, they shared fuel and fee costs with the pilot. This would have been the first “sharing-economy” case the Supreme Court considered.
This cost-sharing arrangement between private pilots and passengers has been allowed by the FAA since the 1960s. Pilots previously found people to cost-share with by word of mouth, phone, posting notes on bulletin boards in airports, and various other means. Flytenow simplified the process by allowing pilots to post a preplanned trip on a website for passengers interested in sharing costs. But the FAA determined that the process of posting a planned trip on a website constituted advertising and that subjected the pilots to the same onerous regulations that pilots for a commercial airline like Delta would have to meet. The determination forced Flytenow to shut down.
“The Supreme Court missed an opportunity today to correct an error made by the FAA and lower courts that will now deprive millions of Americans of a unique, convenient, and affordable travel option. What’s more, the Court could have offered direction to lower courts that protects the First Amendment rights of people using other sharing economy platforms, like Uber and Airbnb. Hopefully the FAA will reverse its position on this issue, and hopefully the Court will decide in another case to examine the important constitutional issues raised,” said Jon Riches, the director of national litigation and general counsel for the Goldwater Institute, and the attorney representing Flytenow.
Several members of Congress, led by Congressman Mark Sanford of South Carolina, have sponsored legislation that would explicitly authorize internet-facilitated flight cost-sharing. “We are disappointed with the Court’s decision this morning and we will be continuing our efforts in Congress to overturn the FAA’s ban on online flight sharing,” said Matt Voska, a co-founder of Flytenow.
In a statment, NATA President Martin H. Hiller said that the denial by the Supreme Court was expected. NATA was opposed to the review by the high court. “As we anticipated, the Supreme Court did not grant cert in this matter because it is neither a novel question of law nor are there any disputes between the lower courts as to the FAA’s interpretation of the Flytenow model," Hiller said. "In fact, the Flytenow application is nothing more than old wine in a new bottle. As the lower courts demonstrated, neither internet freedom nor the expansion of the share-economy are at risk. Consistent with previous attempts to offer the same service using telephone-based technology, the FAA determined the Flytenow service establishes private pilots as common carriers and therefore requires additional safety certifications for both the pilots and their aircraft.
"Contrary to Flytenow’s assertions, the FAA ruling does not impact how pilots communicate with friends and family who may join them for an expense sharing flight. The Supreme Court’s decision upholds FAA’s safety assessment that pilots who offer to transport the general public for money are required to have additional flying experience and safety training.
"If past is precedent, we expect that Flytenow attorneys will pursue their ‘smoke and mirrors’ strategy up on Capitol Hill in an attempt to carve out a loophole exempting flight services advertised to the general public on their website from the robust safety oversight system that Congress and the public demand from commercial air transportation providers," Hiller continued. "It is simply not acceptable to allow the general public to 'ride-share' with private pilots who have potentially little flight time or training for challenging weather conditions. NATA will continue to educate lawmakers on the Flytenow model and the risks it poses to the safety and security of the flying public.”
(Source: Goldwater Institute and NATA news releases)