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11 Answers

Flying for compensation

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Commercial Pilot

Concerning flying for compensation or hire on a commercial certificate.  Can anyone share a good "Litmus Test" to help in judging whether or not the compensation is legal?

I have looked over AC 120-12a.  

It has been a very long time since I have dug into any of this And I am trying to refresh myself

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11 Answers



  1. Kris Kortokrax on Apr 08, 2014

    If you have a commercial pilot certificate, you can fly for hire.

    You just cannot hold yourself out to provide transportation.
    Holding out is described in a legal interpretation as follows:

    “holding out can be accomplished by 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.”

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  2. Best Answer


    Mark Kolber on Apr 09, 2014

    AC 120-12a is woefully out of date and in many ways misleading. It suggests, for example, that you can provide transportation services to a small, discrete group — so-called “private carriage” — and remain out of Part 135. That sort of misses the point that there is a Part 135 private carriage certificate and I have not even heard of a single case where a pilot engaged in air transportation was let off the hook on that theory.

    What gets a lot of folks confused is that there is a difference between a “commercial pilot” and a “commercial operator.” Your commercial pilot certificate permits you to be compensated for being a pilot — to be hired by an airline or Part 135 operator, to be hired as a corporate pilot, to be hired to transport someone in his or her airplane, to ferry aircraft, for example.

    Beyond that, for all intents and purposes, any transportation of people or property in an aircraft is prohibited unless the transportation falls within the limits of the exceptions to the requirement for an operating certificate found in FAR 119.1 (or 61.113).

    For a litmus test, there are two that I know of. As with all rules of thumb, they are limited. One is a test for whether something is transportation of persons or property that requires an operating certificate or 119.1 exemption. That’s the question of who is providing the airplane. If it’s you, it’s transportation of persons or property; if the aircraft is provided by the person who is being transported, it’s Part 91.

    The other is a test for whether your operation is covered by Part 135. It’s the simple “duck test” — if it quacks like a duck… If your operation looks like something a charter operator would be doing, you’ve run afoul of Part 135 (unless, of course, there’s a specific exception covering it).

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  3. Mark Kolber on Apr 09, 2014

    BTW, you’ll notice I aid nothing about “holding out.” That was intentional. The concept is important, but not as important as it’s usually portrayed.

    You can hold out as much as you want if the activity is permitted. Go ahead and send resumes to every corporate flight department; contact every professional photographer you know to advertise your photo platform services. No problem at all.

    But have some guy call you to have you fly him and his family to a vacation spot in your airplane and you can be sure that you are running afoul of Part 135, no matter how he found out about you.

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  4. Sam Dawson on Apr 09, 2014

    In addition to AC 120-12a understand the regulations noted by Mark.
    Also look at FAA Legal Interpretations. Too many to list. You can type in some search strings.
    http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/

    Also NTSB Legal Decisions.
    http://www.ntsb.gov/legal/o_n_o/query.aspx

    To reiterate what Mark wrote, people get wrapped around the axial about “holding out”. I legally hold out every day for commercial flight activities without a 135 certificate- as a CFI, one of the areas exempted by part 119.

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  5. Kris Kortokrax on Apr 09, 2014

    Mark,

    Agreed that AC 120-21A is out of date. However, a 2011 legal interpretation referred to it for a definition of common carriage. That would seem to make it relevant, even though outdated.

    Obviously, one may hold out (advertise) for any of the operations exempted by 119.1 (e).

    It would probably have been more useful if the original poster had given a specific scenario in his question, rather than have us speculate endlessly about every possibility.

    I also subscribe to the “duck” theory.

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  6. Mark Kolber on Apr 09, 2014

    Kris, you can also go to England in the 1600s to find about the same definition of common carriage. “Holding out” has been used for centuries to define the difference between private and common carriage.

    My point about it not being =as= important as usually portrayed is simply (1) I’ve seen lot of questions by pilots asking whether it’s ok to mail out resumes (so it’s apparently not as obvious as it should be where it has no applicability) and (2) lit’s rare for it to be the determining factor these days, unless we’re talking about a 61.113 sharing the ride scenarios.

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  7. Kris Kortokrax on Apr 09, 2014

    If I had been in England in the 1600’s, I would have probably been banished to the colonies as a rebel.

    It’s amazing that terms such as “common carriage” and “holding out” are not defined in the regulations, since they are referenced in many scenarios. Also interesting is the circular reasoning apparent in Part 110 when they define “When common carriage is not invoved….” as “Non common carriage”.

    Could they be a little less clear??

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  8. Sam Dawson on Apr 09, 2014

    If it was clear Mark would not have a job.

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  9. Mark Kolber on Apr 10, 2014

    Unfortunately, Kris, it was also used in the colonies also since English common law is the basis for our own (except in Louisiana, but the civil law countries and states have a similar concept) .

    I’ve seen cases from the 1800s that discuss being a “common carrier” using the same terms and concepts as today. Whether someone was “holding out” availability to the public and was therefore a “common carrier” with all the liabilities that entailed, applied to the stagecoaches in colonial and expansion days as much as it does to aircraft today. If you’re interested, you can search for the definition of “common carrier” and find a wealth of historical information and usage that parallels the FAA’s

    That’s probably why there’s no formal FAA definition; it’s been well-defined for centuries.

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  10. Kris Kortokrax on Apr 10, 2014

    So much for consistency of the part of the FAA.

    Person is defined in 1 USC 1 and yet we have a definition of person in 14 CFR 1 which mirrors the USC definition.

    They also feel the need to define “night”, a term that has been around for more than a few years.

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  11. tommytom on Apr 10, 2014

    Gentlemen, Thank you for the great answers and all your help! You’ve helped answer and clear up the mystery for me. I feel more comfortable than I did before. I really appreciate it.

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