Defining Common Carriers: Flight Sharing, the FAA, and the Future of Aviation

In January 2017, the Supreme Court of the United States declined to hear a case brought by Flytenow, an aviation startup, against the Federal Aviation Administration (FAA). While Flytenow’s legal challenge ended when the Supreme Court refused to hear the case, the company continues to have the better policy argument.

In “Defining Common Carriers: Flight Sharing, the FAA, and the Future of Aviation,” Mercatus Senior Research Fellow Christopher Koopman argues that the flight-sharing industry was shut down because the FAA designated flight-sharing services as common carriers, which are subject to a higher regulatory burden than private pilots. The FAA’s definition of common carriage is too expansive and was implemented without oversight from Congress, which has been silent on the issue. Congress should intervene by explicitly defining common carriage narrowly via statute to allow flight sharing.

• Cost-sharing is a decades-old practice among private pilots, even though the FAA has repeatedly sought to shut down the practice.
• Flytenow’s innovative cost-sharing platform attempted to comply with the FAA’s rules so that its pilots would not be considered common carriers.
• But the FAA has broadly redefined common carriage and found that Flytenow’s pilots are indeed common carriers.
• The common-law definition of common carriage conflicts with the FAA’s interpretation. 
• Congress can change the statutory definition of common carriage to align with the common law’s purpose, which is to provide default rules that pilots and passengers are free to change by contract.