'Uber of the Skies' Grounded After D.C. Cir. Ruling

By Casey C. Sullivan, Esq. on January 05, 2016 | Last updated on March 21, 2019

So much for ordering a private jet from your smart phone. Flytenow, a start-up aiming to be the "Uber of the skies" has shut down following an adverse ruling from the D.C. Circuit. The app allowed you to hop aboard a private pilot's planned route, provided you pay for your share of expenses.

There was one catch though. Flytenow didn't require its pilots to have a commercial pilot licenses. The Federal Aviation Administration and the D.C. Circuit disagreed, sending the company's dreams down in flames.

Flytenow's Last Flight

Flytenow started up in early 2014 as a website where private pilots could post their flight plans and potential passengers could arrange to fly with them. If you were taking your Cessna for a spin or dropping the Learjet off at your private island, Flytenow allowed you to pick up a few extra bucks along the way. Consider it an Uber for planes or an Airbnb for aviation.

At its height it attracted 25,000 members, the Los Angeles Times reports. But its legality was questionable from the beginning. Under FAA rules, pilots licenses differ based on whether one is a commercial or private pilot. Commercial pilots are allowed to transport people or property for compensation. Private pilots are not.

Flytenow sought an advisory opinion from the FAA, declaring that its pilots were still private captains, despite the fact that they were hauling passengers through Flytenow. The FAA declined, finding that pilots who arranged flight-shares through the website were operating as commercial carriers and required a commercial license.

Flytenow sued, arguing that the FAA's opinion was an arbitrary and capricious interpretation of its regulations.

What Kind of Flying Carriage Are You?

While the Federal Aviation Act doesn't define "common carrier" or "compensation," FAA regulations do. Those regulations note the common-law origin of common carriers, stemming from the difference between common and private carriages. According to the FAA, a private carriage for hire is "carriage for one or several selected customers, generally on a long-term basis." Common carriers, on the other hand, hold themselves out as willing to transport anyone from the maddening crowd in return of compensation.

Under those definitions, the FAA ruled, Flytenow's pilots were common carriers needing commercial licenses. The D.C. Circuit easily shot down Flytenow's objections. Though the start-up argued that the FAA had misapplied the definitions of compensation and "holding out," the court wrote that "we have no difficulty upholding the FAA's interpretation if its regulations in this case."

That decision means the end of Flytenow for now. But the company's founders aren't totally done with the fight. In a blog post announcing the company's demise, the startup said it would still look into further appeals and legislative solutions.

They already have some help from Rep. David Schweikert of Arizona, who, the LA Times reports, has introduced legislation to legalize flight-sharing companies like Flytenow. We'll see if it ever gets off the ground.

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