Riddle Me This

[Sidious]

Private Vs. Common Carriage

The distiction between these two is easy enough, but my question is in 119.3 where they define an On-Demand Operation. Private Carriage of persons is in there. So must I have a Comerical Operating Certificate under 135 for private carriage?

I understand it from the AC 120-12A that if you satisfy the definition of private carriage you can abide under part 91.....

Here's and example....
Ive got a commerical pilots certificate and I have contracts with 3 families to fly them around the state in there own aircraft. They came to me. Do I need to operate under 135 since it is "on-demand"?

Thanks guys

[butt]

Originally Posted by Sidious

Private Vs. Common Carriage

The distiction between these two is easy enough, but my question is in 119.3 where they define an On-Demand Operation. Private Carriage of persons is in there. So must I have a Comerical Operating Certificate under 135 for private carriage?

I understand it from the AC 120-12A that if you satisfy the definition of private carriage you can abide under part 91.....

Here's and example....
Ive got a commerical pilots certificate and I have contracts with 3 families to fly them around the state in there own aircraft. They came to me. Do I need to operate under 135 since it is "on-demand"?

Thanks guys

Is the flight common carriage? If so you need further authorization. If it's private carriage, all you need is a commercial pilot license. It's that simple.

[Sidious]

Originally Posted by butt

Is the flight common carriage? If so you need further authorization. If it's private carriage, all you need is a commercial pilot license. It's that simple.

Thats how I was looking at it but the reading 119.3 threw a wrench in it. Does is even need to be considered?

And by further authorization do you mean an operating certificate?

[tgrayson]

Originally Posted by Sidious

Ive got a commerical pilots certificate and I have contracts with 3 families to fly them around the state in there own aircraft. They came to me. Do I need to operate under 135 since it is "on-demand"?

You're simply providing your piloting services, you're not providing "air transportation" since you're not supplying the airplane.

[exleardriver]

+1. and if you do own your own airplane you may provide pilot services to a few clients..start flying too many clients and the faa, local fsdo inspectors will conclude that you are indeed 'holding out to the public', would take a dim view and require that you do all the due diligence to obtain a part 135 air operator certificate. how many clients is too many? it's often debated, but if you appear to have like half a dozen and more, the faa becomes suspicious as to just how many clients you're willing to take on..anybody, any day? tgrayson is correct..in your case you're simply providing pilot services. lot's of folks do..

[butt]

Originally Posted by exleardriver

+1. and if you do own your own airplane you may provide pilot services to a few clients..start flying too many clients and the faa, local fsdo inspectors will conclude that you are indeed 'holding out to the public', would take a dim view and require that you do all the due diligence to obtain a part 135 air operator certificate. how many clients is too many? it's often debated, but if you appear to have like half a dozen and more, the faa becomes suspicious as to just how many clients you're willing to take on..anybody, any day? tgrayson is correct..in your case you're simply providing pilot services. lot's of folks do..

This is a misconception. The college I went to had a King Air that they used to shuffle people on official university business around in. Over the course of the year, they carried over 400 different people on that plane, I would guess. It was all legally part 91, too.

Private carriage has nothing to do with the number of people you have contracts with. It is 100% determined by the nature of the operation.

[PanJet]

Originally Posted by exleardriver

+1. and if you do own your own airplane you may provide pilot services to a few clients..start flying too many clients and the faa, local fsdo inspectors will conclude that you are indeed 'holding out to the public', would take a dim view and require that you do all the due diligence to obtain a part 135 air operator certificate. how many clients is too many? it's often debated, but if you appear to have like half a dozen and more, the faa becomes suspicious as to just how many clients you're willing to take on..anybody, any day? tgrayson is correct..in your case you're simply providing pilot services. lot's of folks do..

Wouldn't this still be considered common carriage though? I'm more asking rather than debating. If you have your own plane, and you contract your plane (not just your pilot services), couldn't this be considered something along the lines of on-demand charter? The example that comes to mind is companies like Ameriflight. They don't have that many contracts; just UPS isn't it? That is unless you consider each route as a separate contract. Maybe they do, and please correct me if I'm wrong.

Butt, as far as what you said, they were legal because the university owned the plane, and it could be considered just one contract. It still has to be limited in some way. In that case it was probably limited to university related transportation or their alumni or something, it wasn't just open to any Joe or Jane that came in off the street wanting a ride.

[SteveC]

Originally Posted by butt

This is a misconception. The college I went to had a King Air that they used to shuffle people on official university business around in. Over the course of the year, they carried over 400 different people on that plane, I would guess. It was all legally part 91, too.

Private carriage has nothing to do with the number of people you have contracts with. It is 100% determined by the nature of the operation.

You're not following along. In the case you cite, the King Air is doing flying for only one client, the university. Not 400 different clients. Different animal than is being discussed here

[MidlifeFlyer]

Originally Posted by Sidious

Ive got a commerical pilots certificate and I have contracts with 3 families to fly them around the state in there own aircraft. They came to me. Do I need to operate under 135 since it is "on-demand"?

tgrayson had this right. If you are flying them in their own aircraft,the whole private vs public carriage issue doesn't even come up. All you are doing is providing services as a pilot. It doesn't matter whether they came to you or you came to them or even of you put an advertisement on a billboard.

The whole private vs public carriage, the whole "holding out" thing, and the need for a Part 135 operating certificate only comes up when you (or someone connected with you) provides the aircraft.

Part of the key is understanding the difference between a =pilot= certificate and an =operating= certificate. A commercial =pilot= certificate is required for someone to be compensated for piloting (the pilot, not the airplane). An operating certificate us required for public services for the carriage or persons or property for hire, which typically involves providing an airplane and a pilot to fly it.

[butt]

Originally Posted by SteveC

You're not following along. In the case you cite, the King Air is doing flying for only one client, the university. Not 400 different clients. Different animal than is being discussed here

OK that was a bad example. Lets say I own a King Air and I have a huge Italian family. If I'm running a little mini charter service, I'm perfectly OK in doing this with just a commercial certificate as long as I'm keep my clientèle strictly within the family. I may be regularly flying and charging 20 or 30 people (or more), but it's all OK just as long as I'm not serving the public. If you have a huge family and a huge set of friends, you probably could make a career out of private carriage.

You ever watch that show The Sopranos? Lets say AJ becomes a commercial pilot. Just about every single character on that show is related to him in some way, either through friendship, family, or business. He could legally take charters from just about any character on that show, as long as he can prove a legitimate connection exists.

[Sidious]

Originally Posted by MidlifeFlyer

An operating certificate us required for public services for the carriage or persons or property for hire, which typically involves providing an airplane and a pilot to fly it.

Ok so I own the a/c...... It is still private carriage but where does 119.3 fall into this picture or does it fall into it at all??

[tgrayson]

Originally Posted by PanJet

Wouldn't this still be considered common carriage though? I'm more asking rather than debating.

If there were only a handful of regular clients, it'd be considered private carriage, but you'd still need an operating certificate of some kind, either Part 135 or Part 125, depending on aircraft size.

[tgrayson]

Originally Posted by Sidious

Ok so I own the a/c...... It is still private carriage but where does 119.3 fall into this picture or does it fall into it at all??

§ 119.23 Operators engaged in passenger-carrying operations, cargo operations, or both with airplanes when common carriage is not involved.
(a) Each person who conducts operations when common carriage is not involved with airplanes having a passenger-seat configuration of 20 seats or more, excluding each crewmember seat, or a payload capacity of 6,000 pounds or more, shall, unless deviation authority is issued -
(1) Comply with the certification and operations specifications requirements of part 125 of this chapter;
(2) Conduct its operations with those airplanes in accordance with the requirements of part 125 of this chapter; and
(3) Be issued operations specifications in accordance with those requirements.
(b) Each person who conducts noncommon carriage (except as provided in § 91.501(b) of this chapter) or private carriage operations for compensation or hire with airplanes having a passenger-seat configuration of less than 20 seats, excluding each crewmember seat, and a payload capacity of less than 6,000 pounds shall -
(1) Comply with the certification and operations specifications requirements in subpart C of this part;
(2) Conduct those operations in accordance with the requirements of part 135 of this chapter, except for those requirements applicable only to commuter operations; and
(3) Be issued operations specifications in accordance with those requirements.

[MidlifeFlyer]

Originally Posted by Sidious

Ok so I own the a/c...... It is still private carriage?

Maybe. The FA gives lip service to the concept of private carriage, even has an AC about it - AC 120-12A Private Carriage Versus Common Carriage Of Persons Or Property. But I've never seen a real situation in which the FAA has looked at an operation and said it was private carriage that does not need a Part 135 operating certificate.

The problem is this concept of "holding out." "Holding out is a pretty old concept and is one of the tradiitonal tests for the difference between "private carriage" and "common carriage."

All it means is that you are letting the public that you are available for transportation. "The public" includes any segment of the public that you are trying to attract. And it doesn't have to be many. For example, if you are one pilot with a 172, how much business can you possibly do? You don't have to advertise either - word of mouth that people "know" you are available is enough.

So, take those three "private" clients. How did they learn about you? Did they hear through word of mouth that you were available to provide transport? Sounds like public carriage to me.

Originally Posted by tgrayson

If there were only a handful of regular clients, it'd be considered private carriage, but you'd still need an operating certificate of some kind, either Part 135 or Part 125, depending on aircraft size.

125, yes, but not 135. If it's truly private carriage, you would not need a 135 operating certifciate. That's the whole point of it being "private." I've become convinced that for practical purposes, there really ain't no such thing.

[tgrayson]

Originally Posted by MidlifeFlyer

125, yes, but not 135. If it's truly private carriage, you would not need a 135 operating certifciate. That's the whole point of it being "private." I've become convinced that for practical purposes, there really ain't no such thing.

Then why does 119.23(b) say differently?

[exleardriver]

read the bold part in red from ac120-12a for an explanation of having contracts for a select few clients in private carriage, sometimes called a 'contract carrier':


U.S. Department
of Transportation
Federal Aviation
Administration
Advisory
Circular
Sdject: PRIVATE CARRIAGE VERSUS COMMON Date: 4124186 AC No: 12042A
CARRIAGE OF PERSONS OR PROPERTY Initiated by: AFS-820 Change:
1 0 PURPOSE. This advisory circular furnishes Federal Aviation Administration
(FAAmnnel and interested segments of industry with general guidelines for
determining whether current or proposed transportation operations by air
constitute private or common carriage. If the operations are in interstate or
foreign commerce, this distinction determines whether or not the operator needs
economic authority as an "air carrier" from the Department of Transportation.
Operations that constitute common carriage are required to be conducted under
Federal Aviation Regulations (FAR) Parts 121 or 135. Private carriage may be
conducted under FAR Parts 125 or 91, Subpart D. Operations conducted under FAR
Section 91.181, which permits certain charges to be made, may also be subject to
these guidelines , particularly the "time sharing" provisions of FAR
Section 91.181(c)(l). It should also be noted that lease agreements -entered
into under FAR Section 91.181 are subject to FAR Section 91.54, "Truth%
leasing clause requirement in leases and conditional sales contracts."
2 CANCELLATION. Advisory Circular 120-12, Private Carriage Versus Common
Cirriage By Comercial Operators Using Large Aircraft, dated June 24, 1964, is
canceled.
3 BACKGROUND. "Common carriage" and “private carriage" are common law terms.
The Federal Aviation Act of 1958 uses the term "common carriage" but does not
define it. It has therefore been determined that guidelines giving general
explanations of the term "common carriage" and its opposite, "private carriage,"
would be helpful,
4 GUIDELINES.
to the public,
A carrier becomes a common carrier when it "holds itself out"
or to a segment of the public, as willing to furnish
transportation within the limits of its facilities to any person who wants it.
Absence of tariffs or rate schedules, transportation only pursuant to separately
negotiated contracts, or occasional refusals to transport, are not conclusive
proof that the carrier is not a common carrier. There are four elements in
defining a common carrier; (1) a holding out of a willingness to (2) transport
persons or property (3) from place to place (4) for compensation. This "holding
out" which makes a person a common carrier can be done in many ways and it does
not matter how it is done.
a. Signs and advertising are the most direct means of "holding out"
but are not the only ones.
AC 120~12A 4124186
b. A "holding out" may be accomplished through the actions of agents,
agencies, or salesmen who may, themselves , procure passenger traffic from the
general public and collect them into groups to be carried by the operator. It
is particularly important to determine if such agents or salesmen are in the
business of selling transportation to the traveling public not only through
the '*group*' approach but also by individual ticketing on known common carriers.
c. physical1 y holding out without advertising where a reputation to serve
all is gained is sufficient to constitute an offer to carry all customers. There
are many means by which physical holding out may take place. For example, the
expression of willingness to all customers with whom contact is made that the
operator can and will perform the requested service is sufficient. The fact that
the holding out generates little success is of no consequence. The nature and
character of the operation are the important issue.
d. Carriage for hire which does not involve "holding out" is private
carriage. Private carriers for hire are sometimes called "contract carriers," but
the term is borrowed from the Interstate Commerce Act and legally inaccurate when I*
used in connection with the Federal Aviation Act. Private carriage for hire is
carriage for one or several selected customers , generally on a long-term basis.
The number of contracts must not be too great, otherwise it implies a willingness
to make a contract with anybody. A carrier operating pursuant to 18 to 24
contracts has been held to be a common carrier because it held itself out to serve
the public generally to the extent of its facilities. Private carriage'has -been '
found in cases where three contracts have been the sole basis of the operator's
business. Special adaptation of the transportation service to the individual L
needs of shippers is a factor tending to establish private carriage but is not
necessarily conclusive.
e. A carrier holding itself out as generally willing to carry only certain
kinds of traffic is, nevertheless, a common carrier. For instance, a carrier
authorized or willing only to carry planeloads of passengers, cargo, or mail on a
charter basis is a common carrier, if it so holds itself out. This is, in fact,
the basic business of supplemental air carriers.
f. A carrier flying charters for only one organization may be a common
carrier if membership in the organization and participation in the flights are, in
effect, open to a significant segment of the public. Similarly, a carrier which
flies planeload charters for a common carrier, carrying the latter's traffic,
engages in common carriage itself.
& Occasionally, offers of free transportation have been made to the general
public by hotels, casinos, etc. In such cases, nominal charges have been made
which, according to the operators, bear the expense of gifts and gratuities.
However, the operators maintain that the transportation is free. The courts have
held that such operations are common carriage based on the fact that the passengers
are drawn from the general public and the nominal charge constituted compensation.
Par 4
4124186 AC 120912A
h. Persons admittedly operating as common carriers in a certain field (for
instance, in intrastate commerce) sometimes claim that transportation for hire
which they perform in other fields (for instance, interstate or foreign commerce)
is private carriage. To sustain such a claim, the carrier must show that the
private carriage is clearly distinguishable from its common carriage business
and outside the scope of its holding out. The claimed private carriage must be
viewed in relation to and against the background of the entire carrying activity.
Historically, Civil Aeronautics Board decisions have concluded that only in rare
instances could carriage engaged in by a common carrier be legitimately
classified as private.
i. In summary, persons intending to conduct only private operations in
support of other business should look cautiously at any proposal for revenuegenerating
flights which most likely would require certification as an air
carrier.
je Persons who have questions concerning intended operation of their
aircraft are encouraged to discuss their proposed operation with the Regional
Counsel of the FAA region in which it intends to establish its principal
business office. Such early interviews will materially assist the applicant
in avoiding many of the "pitfalls" which could result in illegal common carriage
operations.
klliam T. Brennan
Acting Director of Flight Standards
Par 4

[exleardriver]

at any rate, although isn't all that common, at least in my region, it has been successfully done. it's best to have a close relationship with your local fsdo, as you can be sure they're going to be keeping a close eye on such operations for signs that it could be beginning to hold out to the public. you'll need an atco certificate for that. a decade ago, i helped a man assemble an ops manual, specs, etc. for a single-pilot part 135 atco certificate. his manual was approved and he was given a checkride after my ground/flight training by his assigned fsdo inspector. he operated a piper seneca. eventually, after about 4 years, he dropped the certificate and continued to only do work for 2-3 clients. you could no longer call him up for a charter flight.

[MidlifeFlyer]

Originally Posted by tgrayson

Then why does 119.23(b) say differently?

I don't think it does. It applies applicable requirements of 135 to private carriage operations, but you still have to separately see whether or not 119 or 135 requires a Operating Certificate for the specific type of operation. 125 was designed to deal with the special issue of large aircraft in private carriage, but I don't think there is any such thing as a Part 135 "private carriage" certificate for a C182. If it's not common carriage, it's not 135 - at least that's what all of the FAA Legal opinions dealing with the subject suggest to me. There are even some where owners of Part 125 aircraft are trying to stay within 125 and avoid the greater requirements of 135 by claiming that their operations are private and not common. Hard to imagine a regulatory scheme where an aircraft with less than 20 seats in the same type of operation is given stricter requirements than one with more than 20.

And from Excel's quote from the AC:

==============================
...that constitute common carriage are required to be conducted under
Federal Aviation Regulations (FAR) Parts 121 or 135. Private carriage may be
conducted under FAR Parts 125 or 91, Subpart D.
==============================

I know that's not necessarily a good answer, and you've got my curiosity piqued. I'll try to find a better one.

[tgrayson]

Originally Posted by MidlifeFlyer

but I don't think there is any such thing as a Part 135 "private carriage" certificate for a C182.

Then how do you interpret this from a letter of interp:

=============<snip>=============
However, the transportation of those youths going to and from the City of Oakland, pursuant to a contract of carriage based on a flat reimbursement fee based on the number of youths carried, is a specialized form of private carriage for compensation or hire as a commercial operator (not an air carrier). Assuming that the airplane fits the definitions set forth at FAR 135.1(a)(3), we conclude that a Part 135 operating certificate is required for these flight operations.
=============<snip>=============

BTW, Part 135.1(a)(3) originally read

The carrying in air commerce by any person, other than as an air carrier, of persons or property for compensation or hire (commercial operations) in aircraft having a maximum passenger seating configuration, excluding any pilot seat, of 30 seats or less and a maximum payload capacity of 7,500 pounds or less;

The interp is dated May 22, 1984, addressed to Mr. William M. Dickerson, Re: VisionQuest.

[MidlifeFlyer]

Originally Posted by tgrayson

Then how do you interpret this from a letter of interp:

I think you answered your own question with the quote of how 135.1(a)(3) read at the time. Assuming the FAR 1.1 definition of "air commerce" was the same as now, "private carriage" would be covered by that version of 135.(a)(3) and "Assuming that the airplane fits the definitions set forth at FAR 135.1(a)(3)," indeed, "a Part 135 operating certificate is required for these flight operations."

Now, the closest we get is 135.(a)(1) that says 135 covers operations that require an operating certificate under 119, which says....

IMO, this is one of the true "gray areas" in the FAR.

[tgrayson]

Originally Posted by MidlifeFlyer

IMO, this is one of the true "gray areas" in the FAR.

Not really. Private carriage is carriage for compensation or hire of a limited set of customers and requires an operating certificate. The interpretation quote says that if it's a small airplane, then Part 135 applies.


Furthermore, from the regs,

§ 119.5 Certifications, authorizations, and prohibitions.

(b) A person who is not authorized to conduct direct air carrier operations, but who is authorized by the Administrator to conduct operations as a U.S. commercial operator, will be issued an Operating Certificate.

And a commercial operator, from Part 1 is

Commercial operator means a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under the authority of Part 375 of this title. Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit.

[MidlifeFlyer]

I told you you piqued my curiosity. I still have some touble with the concept, given all the "grey charter" cases that go into a "holding out" analysis - why bother if it makes no difference whether they were holding out or not?

But, in addiiton to your 1988 Opinion, I found one from 1992 (I don't know what the reg said at the time) involving a company that sells vehicles. It plans to rent an airplane from a flight school (we're obviously not talking about Part 125 aircraft) to transport its own employees to pick up the cars. In the course of saying it's okay, the Opinion goes on,

==============================
I would caution you against allowing this arrangement to evolve into a de facto operation of private carriage for hire. This would occur if you, in fact, put together the transportation package consisting of aircraft and pilot services and received payment for the operation of the flights, even if the clientele was limited to one customer. This would require a commercial operator certificate.
==============================

I'm not completely satisfied for my own purposes yet, but thanks for bringing this to my attention.

[Sidious]

Originally Posted by MidlifeFlyer

I still have some touble with the concept, given all the "grey charter" cases that go into a "holding out" analysis - why bother if it makes no difference whether they were holding out or not?

Exactly! Why have this differentiation if I must get a Part 135 operating certificate no matter if it is Private or Common!

[tgrayson]

Originally Posted by MidlifeFlyer

I still have some touble with the concept, given all the "grey charter" cases that go into a "holding out" analysis - why bother if it makes no difference whether they were holding out or not?

I think the main difference is whether you will be a "Commercial Operator" or "Air Carrier".

[Sidious]

Originally Posted by tgrayson

I think the main difference is whether you will be a "Commercial Operator" or "Air Carrier".

Okay so common carriage would be "Air Carrier" but when could you operate Part 91 as private carriage? Given what has been said about 119.23