FAA Says Blackbird Should Be Operating Under Part 135

It stands to reason that if a passenger pays for a charter flight, they’re entitled to expect a significantly better level of safety than if they accept a free ride from a neighbor in their single-engine trainer. That’s because the FAA has said, “Pilots who transport paying passengers must have the required qualifications and training, are subject to random drug and alcohol testing, and the aircraft used must be maintained to the high standards that the FAA’s charter regulations require.” One problem with charter operations is and always has been that most people riding in the cabin don’t understand enough about how the transportation system operates to ask the questions necessary to guarantee an operator meets the agency’s standards. Investigating illegal charters has become a large focus for organizations like the National Air Transportation Association and the National Business Aviation Association.

When Blackbird Air created a web-based application to connect passengers with pilots who would be paid for trips directly by their passengers, some industry experts cried foul when they realized Blackbird was operating under the general flight rules of Part 91, not the stricter charter standards of Part 135. Blackbird viewed themselves as, “not a direct air carrier and as an air operator [that] provides air transportation. Blackbird is an online marketplace and may act as an agent or air charter broker when facilitating flights.” Operating under Part 91 absolved Blackbird, as least from the company’s standpoint, from the need to oversee the qualifications of the pilots, as well as the maintenance of the aircraft with which they were connecting passengers.

Blackbird saw passengers as essentially responsible for all aspects of the flight, including determining the appropriateness of both the pilot and the aircraft used. One source Flying spoke with said Blackbird told pilots they’d be covered by the aircraft owner’s insurance, policies often not written to cover commercial operations. Insurance industry experts did not believe a loss would be covered by the open pilot warranty of an aircraft owner’s policy.

Although operating under Part 91, Blackbird did demand the pilots that listed themselves in the company database possess at least a commercial pilot certificate, the minimum needed to fly passengers for compensation or hire. Though Blackbird seemed to be operating in a gray area somewhere between Part 91 and Part 135, many commercial pilots on the west coast signed up with the company viewing the relationship as a way to log flight time and make extra cash.

After receiving numerous complaints from industry people claiming Blackbird was simply skirting the legitimate rules of charter flying and that such a practice was inherently dangerous to anyone who flew through the company, the FAA opened an investigation that ran more than two years looking into Blackbird’s operating practices. The FAA also questioned whether or not Blackbird or anyone working with them could be seen as “holding out,” a commercial air transportation term that tells the public a company provides transportation services, something Blackbird flatly denies. Luckily, there were no recorded accidents or incidents related to Blackbird’s services.

On December 19, 2019, the FAA ruled Blackbird should be operating under Part 135 regulations that govern traditional charter flying. It also warned participating pilots they could be setting themselves up for potential enforcement action.

A four-page letter to Blackbird’s attorney penned by FAA chief counsel for enforcement Naomi Tsuda concluded that, “pilots' use of the Blackbird platform constitutes, "holding out" and participating pilots are engaged in common carriage. Because these operations are subject to Part 119 certification (for air carriers and commercial operators), a pilot who holds an airline transport pilot or commercial pilot certificate must obtain and hold a certificate issued under Part 135 or the pilot must be employed by a company operating the flight that is certificated under Part 119.” The agency further explained that any pilot who provides charter flights without complying with the Part 119 certificate requirement would be violating the FARs even if they possess a commercial or airline transport pilot certificate.

The FAA said Blackbird should expect further investigative activity into its operations, particularly regarding its pilot database. In addition, the agency said it wants to know of any action Blackbird intends to take in view of the jeopardy facing pilots who participate in the company’s service.

In California, SkyRyde is an emerging travel company that also uses a web-based app to connect passengers with aircraft, but plans to operate under Part 135. JB Adkins, the company’s CEO, one person who complained about Blackbird’s operating practices, told Flying, “I don’t want to see my company become one that contributes to the stigma that aviation is dangerous. Any pilot who flies for SkyRyde will need to adhere to Part 135 standards.”

Following the FAA letter’s issuance, the NATA’s senior vice president Ryan Waguespack added, “We are seeing the hard work of our members pay off. These new FAA materials resulted from the industry voicing concerns about non-complaint operations and will help everyone gain a better understanding of the scope and scale of the issue. Better education, with enforcement when appropriate, are essential to combating the problem of illegal charters.”

Asked about the FAA’s recent ruling against Blackbird, JB Adkins said, “I’m glad the FAA handed down this interpretation/ruling, especially before an inevitable fatal incident forced their hand. Blackbird actually got off pretty easy, in my humble opinion.” The FAA posts a current listing of FAA-licensed charter providers on its website.