Purely academic question as I am not in any form of lease agreement nor will be in the foreseeable future.

This dialogue of “operational control” is making me realize my understanding may not have been broad enough to appreciate the nuances.

In the interest of their own asset, can a lessor place operational restrictions in the lease agreement that may be more restrictive than the FAR’s or would this be considered “not surrendering operational control?”

Kinda like a mini-opspec to use my plane, type of thing…

FWIW, I don't mean to suggest that dry lease is complicated.

It isn't; not in principle.

At base, it is simply, "here's your airplane; now give me my lease check."

Where things get complicated is when multiple folks want to partner on a transport category aircraft and start flying folks around on it while at the same time trying to cover the operational costs while leasing that aircraft from one or more third parties.

Those relationships can get both complicated and murky very quickly.

Having no horse in the race, I think there are two pieces.

One is protecting people who pay for a flight whose entire knowledge of aviation is something less than those journalists who we repeatedly mention as being so highly accurate about aviation. (Not) If you really think that some businessman who pays for an illegal charter really understands that they are accepting responsibility for the flight, I guess I’ll just disagree.

The second is definitely economic. Protecting the investment of those operators who follow the rules.

I tell lessee’s it’s like you rented a tractor from the rental shop. You and your operator are responsible to figure out how to use it. If you decided to drive it through deep mud and get it stuck that’s on you and your responsibility. You are the owner and operator for the time you leased the equipment. That helps make them understand operational control.

But I tell them they have to be on the plane at all times. They can not let others use the plane while they have it.

I take it pretty seriously and by the book. But I can see how 91 dry leases could be taken advantage of by lessee. How would I know how they use the plane while they have it? Technically for me the pilots would say something as they know they are responsible as well as the commercial pilot. They have the most to lose if it goes bad.

Mike

Sure. Happens all the time. One provision I always placed in mine is that the pilot selected by the “operator” must meet insurance requirements. Those are definite higher than FAA requirements.

The enforcement issue in this area is typically not what the documents say. That’s the easy part. It’s what the people involved do. This is not an FAA -specific principle.

I've been flying since 1992 and the first time I remember seeing the FAA on field was last week when I was ramp checked. Engaged when I walked into the FBO, I asked if I could hit the restroom first. While taking care of that very real physical need, I wondered "damn, did I do a W&B for this flight? I guess I can check Foreflight while peeing". Well, sure enough I had!

When we re-started, the questions were "Where do you fly from? Are you 91, 135 or both? I see your passenger over there, could you describe their role in the flight". My immediate sense was they had 134.5 on their mind.

The operation was a Veteran's Airlift Command charity flight. While I had alarm bells going off in the back of my head that somehow this flight could be viewed as non-legit, even though it is a well documented free flight charity organization, I openly explained my passenger for the Pt 91 operation.

Inspector was super cool after that...I had a feeling he might have been a vet, be he never said it. The rest of the "check" lasted about 5 minutes, showing airman & medical cert, and most of the conversation was him saying "thank for doing this..."

I’m pretty surprised to read this Robert. The fact that 135 operators coast to coast work around the clock to follow the law is ok. The fact that 134.5 operators who do everything to skirt the law and largely get away with it is not ok. Change the law. Fine. Let’s go!

But I can’t fathom for a second the idea that 135 operators feel protected from anything. 135 rules are written in blood. If 91 operators followed them, fewer would die. While I think we all can agree that we should have the freedom to operate as 91 allows, there are leases delivered by shady operators everywhere which are illegal and they misrepresent training quality, maintenance, safety etc to a lessee.

Of course we also have 91 subpart k which has clearly proven to be safe by the major fractionals. I’m all for making it easier as there’s seemingly no way a little guy can economically comply with 91K and 135 these days.

For now, illegal charter is just that. And it’s like porn, I know when I see it. And I see it all the time.

Because fewer would fly with more onerous rules.


We can't allow government to be that capricious. We need to define it carefully and not make it subjective.

When getting flight time is "compensation", then we have a problem. That is not charter by any means, that is just the FAA exceeding its authority.

Mike C.

Because fewer would fly with more onerous rules.


We can't allow government to be that capricious. We need to define it carefully and not make it subjective.

When getting flight time is "compensation", then we have a problem. That is not charter by any means, that is just the FAA exceeding its authority.

Mike C.

Please do not misunderstand me. I am not celebrating 134.5s. And we work very hard with our clients to ensure that they remain compliant.

Yes, minimum standards are important especially in an unforgiving environment such as flight.

I am merely suggesting that there is evidence that some of these regulations, especially early on, were driven by economic concerns, not safety.

This is NOT unique to aviation.

My frustration - as is others' - is that some FAA regulations are quite vague and when they are, we get into the realm of "because I said so" when the enforcement or civil penalty action comes.

This is what the Supreme Court was discussing in Christopher v. Smith Kline, to wit:

"Our practice of deferring to an agency’s interpretation of its own ambiguous regulations undoubtedly has important advantages, but this practice also creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby “frustrat[ing] the notice and predictability purposes of rulemaking.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (Scalia, J., concurring) (slip op., at 3); see also Stephenson & Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449, 1461–1462 (2011); Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 655–668 (1996). It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding and demands deference."

Show me where "flight time is compensation" is written in the rules.

That was a fabrication of the FAA to get someone. It isn't in the rules. If the FAA can arbitrarily make stuff up, like your "I know it when I see it" comment, that's capricious.

Mike C.

It's not. Nor, for that matter, is "money." Or "health insurance" Or "Vacation pay." Or a "company car" (or airplane?). Or maybe a dozen other forms of um... compensation ... for work performed.

I've definitely seen edge cases where it gets stupid but the definition I work with is just "a benefit provided in exchange for a service."

Besides, it's easy to avoid flight time compensation. Don't log it.

Show me where "flight time is compensation" is written in the rules.

That was a fabrication of the FAA to get someone. It isn't in the rules. If the FAA can arbitrarily make stuff up, like your "I know it when I see it" comment, that's capricious.

Mike C.

"but for the receipt of the compensation, the pilot would not have taken that flight"

No attorney here, but man, that line makes this super ambiguous to me. Consider charitable giving/charitable flights.

"I know he wouldn't have donated money to that charity if it wasn't for the tax deduction?" Huh, how do you prove that? "Well, you always deducted chartiable giving from your tax returns". Well, sure, because I could, doesn't mean I wouldn't have given if I couldn't deduct?

So if I conduct a charitable flight without deducting expenses it was a safer flight than if I had deducted some expenses?

I am saying it's not well defined. But I'll also concede, it's hard thing to define...

Public Benefit flying reimbursement is a whole nother discussion. Had it not been for one (controversial) charity, the BS paragraph (833) in the FAA Reauthorization Act of 2024 would have had a completely different, charity/pilot friendly paragraph allowing reimbursement. But, in the 11th hour, once a certain political group found out that charity was a member of the ACA and could benefit from reimbursement, our language was removed and the dumpster fire was added without any understanding of the nail in the coffin and its effect on public benefit flying in general and possible reimbursement.