“But I’m a Commercial Pilot…”

Latest FAA Notice Addresses Common Misconceptions

On February 1st, 2022, the FAA issued a letter explaining some commonly held misunderstandings with regard to expense sharing and pilot privileges. (See Notice number: NOTC2238, reprinted here.)

This letter is the latest of a series of efforts by the FAA to combat unauthorized Part 135 operations which the administration has identified as a nationwide problem in the U.S.

How does this relate to Public Benefit Flying?

The Notice specifically addresses one of the common arguments ACA hears frequently from volunteer pilots and organizations who wish to raise money to operate their flights: that it’s okay for them to do so because the pilots have commercial or ATP certificates.

The FAA has long defined “compensation” for the pilot as anything of value—and that includes free flying time. Organizations cannot legally pay for a pilot’s fuel and pilots cannot use donated funds to operate their aircraft on public benefit flights. The only exception to this is if there is an exemption from the FAA in place. (Much more on that here.)

However, some argue that the FAA’s compensation rules don’t apply to them because the pilot has a commercial or ATP certificate. They believe this opens the door for them to raise money for fuel and operating expenses because commercial pilots and ATPs can be compensated according to Part 61 of the FARs.

In this latest notice, the FAA offers clarification (emphasis added):

“A person who holds an ATP certificate or a commercial pilot certificate may act as PIC of an aircraft operated for compensation or hire and may carry persons or property for compensation or hire. However, simply holding a commercial pilot or ATP certificate does not end the inquiry. A commercial pilot or ATP must meet the qualification requirements not only of part 61 but also the part under which the operation is conducted and the operator must hold the proper operating authority. Most operations involving the carriage of persons for compensation require the operator to hold a certificate under part 119 authorizing such operations to be conducted under part 135 or 121.”

In other words, having a commercial or ATP certificate does not give a pilot a green light to have someone else pay their operating costs while operating under Part 91. If a volunteer pilot does not pay the full cost of the flight, she is being compensated in the eyes of the FAA. And if the pilot is being compensated, the flight now falls under part 135 of the FARs. Unless the operator has a certificate (or an exemption) NO PILOT CAN LEGALLY MAKE THAT FLIGHT.

Bottom line:

The Air Care Alliance cautions volunteer pilots and organizations to be cognizant of and compliant with the FARs. Understanding the differences between the privileges of your certificate and the limitations on the type of operation is important. It is clear the FAA is increasingly interested in rooting out “unauthorized 135 operations”. Misinterpreting or ignoring these regulations could have unintended consequences for the pilot, organization, and public benefit flying in general.

If you have questions regarding sharing of operating expenses, holding out, or pilot certification rules versus operating rules, please review the FARs, Advisory Circulars, and Legal Interpretations referenced below. Additionally, you may contact your local Flight Standards District Office for assistance or seek the advice of a qualified aviation attorney.

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