An FAA and Federal Court Interpretation of the FARs Threatens Flight Instruction

The flight training industry—and aviation as a whole—suffered a blow whose full ramifications still remain to be seen when on April 2, 2021, the U.S. Court of Appeals for the District of Columbia Circuit made its ruling on Warbird Adventures, Inc., et. al. v. FAA. The ruling declined to reverse an emergency cease-and-desist order meted out by the FAA in July 2020 barring Warbird Adventures, a Kissimmee, Florida-based boutique flight school, from providing flight instruction for compensation or hire in a dual control World War II P-40 fighter training aircraft certificated in the limited category.

The FAA’s entire case rested upon an interpretation of 14 CFR 91.315, titled “Limited Category Civil Aircraft—Operating Limitations,” which states the following:

“No person may operate a limited category civil aircraft carrying persons or property for compensation or hire.”

However, flight instruction is not, and never has been until now, considered the “carriage of persons…for compensation or hire.” The order and ensuing case in Warbird Adventures centered around whether the flight school was required to obtain an exemption from 91.315 in order to provide instruction in the P-40 for “compensation or hire.” The only reason an exemption to 91.315 would be necessary to provide compensated flight instruction would be if paid flight instruction was considered the “carriage of persons.” And until now, the answer to that question has been a definitive “no.”

Historically, the “carriage of persons” has referenced such operations as those in which people are paying for the privilege of air carriage from one place to another, or a “ride”; whereas with paid flight instruction, as referenced by the 1995 Fretwell FAA Legal Interpretation, the trainee is compensating the instructor not for piloting the aircraft, but for the instruction they are providing. In 1949, the Civil Aeronautics Board (predecessor to the FAA) adopted the original regulations pertaining to commercial operators, 14 CFR Part 45; in which 45.1, “Applicability,” stated that “for the purpose of this part, student instruction…shall not be considered as the carriage of goods or persons for compensation or hire.” The current commercial operator regulations under 14 CFR Part 119, “Certification: Air Carriers and Commercial Operators,” similarly denote the flight operations that do not fall under air carrier requirements, stating specifically that “this part does not apply to…Student instruction.” [14 CFR 119(e)(1)] This distinction is what has allowed flight instructors to teach and be compensated for their time without having to hold commercial-level medical certificates or operate under commercial air carrier rules. However, the FAA is now essentially arguing that, for regulatory purposes, “paying-passenger” carriage is exactly what flight instructors are doing every time they take a student into the air for a lesson for “compensation or hire”—lumping all such training activities, regardless of aircraft certification, into the same general category as a commercial air carrier operation.

Prior to the issuance of the court’s decision, a group of aviation organizations including AOPA and EAA filed a joint amicus (i.e., ‘friend of the court’) brief, warning the court against making a broad-reaching decision that may have serious ramifications for the entire flight training industry. Unfortunately, the court did just that when it decided:

“A flight student is a ‘person’…When a student is learning to fly in an airplane, the student is carr[ied]…And when the student is paying for the instruction, the student is being carried ‘for Compensation.’”

That decision has now placed a substantial roadblock in the path of those seeking type-specific transition training in such specialty aircraft when compensation is involved. Additionally, the court’s decree has now effectively rendered all compensated flight training, as it is currently conducted, illegal.

The Court of Appeals’ opinion that its decision against Warbird Adventures was not precedential—therefore deciding not to publish it in the federal case register—underscores the court’s lack of understanding of the industry-wide ramifications of its determination. However, despite not being a published determination, the FAA can still reference the decision as precedent in future proceedings held in DOT, NTSB, and federal district courts—meaning that the door has been opened for the initiation of violations against any entity or individual who provides flight instruction for compensation or hire.

Under the new interpretation of “carriage of persons for compensation or hire,” any student in a typical paid flight training scenario is now a “person” being “carried” by their instructor for “compensation or hire.” This would make the flight in question subject to air-carrier certification and regulatory requirements for the pilot, aircraft, and operator (the flight school). In short, any operation by a for-profit flight school would require a Part 135 or similar commercial air carrier certificate. Additionally, any flight lesson with an independent instructor who is being paid for his or her instructional services would be considered the “carriage of persons for compensation.” This effectively nullifies the standalone validity of a flight instructor certificate, as no individual instructor will be able to meet the qualification requirements for commercial air carriers.

Also, if paid flight instruction is now considered “carriage of persons for compensation or hire.” an entire sector of flight instructor licensure—the sport pilot flight instructor —has now been rendered null and void. A pilot need not hold any more than a sport pilot certificate and a driver’s license in order to be eligible for the sport pilot instructor designation; consequently, according to the new decision, they do not meet the commercial medical and pilot certification requirements necessary to receive compensation for the ‘carriage’ of their students. Similar limitations would apply to CFIs using third-class medicals or BasicMed.

Further, with paid flight instruction being “illegal” unless operated under an air carrier certificate, the only other option for “legally” providing training is to offer free flight instruction. This creates a scenario in which no additional recurring inspections of aircraft providing such free flight instruction would be required outside of annual inspections. Theoretically, an operator could legally provide 700 hours of free flight instruction in a calendar year without ever being required to inspect or service the aircraft until the annual inspection is due, whereas the traditional “for compensation or hire” flight school operator would have completed at least seven inspections in the same operation interval.

Without industry unity and mutual understanding of the ramifications of having paid flight instruction defined as the “carriage of persons for compensation or hire,” the recent decision in Warbird Adventures has the potential to drastically change the foundation of aviation knowledge and safety—flight instruction—as we know it.