August 1, 2007

At NATA's recent Air Charter Summit, jaws dropped when an attorney with the Federal Aviation Administration (FAA) explained to attendees that the manner in which many empty legs are posted or otherwise offered to the public may in fact violate the FAA's rules prohibiting scheduled service in turbojet-powered aircraft under Part 135.

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As part of a broader discussion involving the future of brokers, Joe Conte, manager of the operations law branch within the FAA Chief Counsel's office, touched on a subject gaining attention within the agency - defining what is and, more importantly for Part 135 operators, what is not a schedule. One of the services offered by brokers is the ability for an operator to alert consumers to available empty-leg (also called positioning, one-ways and deadheads) flights and for brokers to find passengers for these flights. But operators should proceed with caution because, according to Conte and a recent FAA legal interpretation, these flights may in fact meet the definition of a "schedule" and therefore MUST be conducted under Part 121 if a turbojet-powered aircraft is used.

Current regulations define a scheduled operation as one where the operator holds out to the public, in advance, the departure location, departure time and arrival location. In an interpretation issued in 2006, the FAA expanded upon what conditions might lead to a determination that an on-demand operator has conducted an operation meeting the three elements of a schedule.

This interpretation, which was reiterated by Conte, states:

"Having a time set within which the aircraft must leave satisfies the "departure time" element."

"The shorter the departure window..., the more it looks as though this is a scheduled operation."

During his presentation, Conte noted that when an on-demand operator offers the use of an "idle aircraft" that includes a relatively brief departure window and if the operator states the location where the aircraft must arrive the FAA will consider the operator to have "held out" and operated on a scheduled basis. Importantly, beginning with the introduction of Part 119, all scheduled operations using turbojet-powered aircraft must be conducted under Part 121.

As a result of the information presented during the Air Charter Summit, NATA has heard from many operators concerned about the legal status of their empty-leg flight offerings. The association is presently drafting guidance to help operators better understand the current regulatory environment that will be published as soon as possible. Operators are encouraged to consult appropriate legal counsel with specific questions about their empty-leg flight offerings.

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