A recent court decision has upheld the FAA’s “cease and desist” order against “Warbird Adventures.” This ruling lets stand an interpretation that threatens the historic role of CFIs as “educators” and will have a negative effect on all flight training (and aviation safety). This action has left CFIs confused and at risk from the greater future liability of “flying for hire,” along with potential regulatory and medical consequences. Needless to say, this case has cause a firestorm in the aviation media.
Most importantly, initial legal analysis, provided by AOPA, indicates that CFI certificates (and flight instruction in general) are not directly or immediately at risk. But the recent Warbird Adventures ruling decision was overly broad. Though targeting a specific case of flight instruction in a P-40, WWII military aircraft, this court case has damaging effects on every CFI. In this particular case, this P-40 was operating in the “limited category” which prohibits flight for “compensation or hire” under CFR 91.315 without an exemption. The FAA ordered this to stop, but in our opinion, applied the wrong enforcement – reinterpreting flight instruction as “flight for hire.”. The FAA has a long legal precedent supporting CFIs as “educators” *NOT* flying for “compensation or hire.” This new ruling needs to be clarified immediately.
The biggest concern is “downstream consequences” of what this action could imply in future interpretations about legal liability, charter regulations, and medical requirements. The ‘obiter dictum,’ a legal phrase for ‘remark made in passing,’ could upset the FAA’s long-standing policy that CFIs are paid for their instructional expertise, not for flying for hire. SAFE sent our objection to the FAA protesting this ruling and we encourage you to copy this, customize it as necessary and send it as well: E-mail to Mr Bahrami here.
We at SAFE, representing over 3600 flight educators, urge the Agency to expedite a final ruling preserving the instructor’s historic role as “educator” and not “charter pilot.” Adopting the broader interpretation implied in this court’s recent decision would create irrevocable harm to our industry and diminish aviation safety.
The FAA has determined that the compensation a certificated flight instructor receives for flight instruction is not compensation for piloting the aircraft but is rather compensation for the instruction. A certificated flight instructor who is acting as pilot in command or as a required flight crewmember and receiving compensation for his or her flight instruction is exercising only the privileges of a private pilot. A certificated flight instructor who is acting as pilot in command or as a required flight crewmember and receiving compensation for his or her flight instruction is not carrying passengers or property for compensation or hire, nor is he or she, for compensation or hire, acting as pilot in command of an aircraft.
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I am very concerned about this. As a CFI of 41 years now I am worried about the precedent this sets for every aspect of private flying. Even though the FAA has already ruled on the “sharing expenses” area, this could stop that cold. And that’s just one example. How about flying clubs? Will they have to get a 135 certificate? The possibilities are enormous.
A huge step in the WRONG direction (and totally contrary to established legal precedent recognizing CFIs as “educators!”)
Correction: The rule only prohibits the “carriage of persons or property for compensation or hire”. It does not prohibit “flight for compensation or hire”. See FAR 91.315. Can you please fix that in the article as it confuses the issue?
Great article!
I would like to point out, though, that 91.315 does not “prohibit[] flight for ‘compensation or hire’ under CFR 91.315 without an exemption”; it prohibits the ‘carriage of persons or property for compensation or hire’ – thus leading us to this interpretation of flight instruction as ‘carriage of persons for compensation or hire’.