Commercial Pilot Privileges

What?!? I can't get paid for that? - Every new Commercial Pilot (CPL)

WARNING

This is not legal counsel.

Consider this academic guidance only.

For absolute answers, buy AOPA Pilot Protection Services.

Becoming a commercial pilot is a great achievement. It means you can masterfully control an airplane in various energy states, execute advanced maneuvers, and sometimes get paid to fly. Commercial pilot privileges are not very easy to understand but with a little effort, you can figure it out. Every CPL candidate needs to understand the do's and the don'ts.

The FAA tightens the rules when it comes to flying paying customers around. And rightly so. Keep in mind that you are now under greater scrutiny. Airport operations, passengers, everyone will be looking carefully at you. Professionalism is of the essence.

At the end of the day, what you will realize from this article is that as a commercial pilot, you cannot act as your own mini-airline. As any regulation, it cannot necessarily be simplified to such simplicity, but it's a great way to start your thinking about being a commercial pilot and engaging in commercial operations.

The Regulations

Be cautious thinking one regulation governs all commercial pilot privileges. The starting point regulation governing commercial pilot privileges is FAR 61.133 - but it's only a starting point. If you only use I guarantee you will quickly be facing the FAA in a legal battle.

Ok cool. The regulation has paragraphs (i) and (ii):

(i) carrying persons or property for compensation or hire

This regulation seems to say that you can carry persons or property (cargo) for compensation or hire - but you have to read a lot of other regulations to know they key part of the introductory line "a person who holds a commercial pilot certificate MAY act as PIC...". What this rule fails to highlight is the fact that there are other requirements than just a commercial pilot certificate. These operations (that have more requirements) are referred to as air carriers and commercial operators (14 CFR Part 119): charter operations, airlines, and air cargo. And even though the regulation says "PIC" a commercial SIC is governed by restrictions similar to a PIC. Whether or not you can be PIC as a commercial pilot for these operations is dictated by further regulations in 14 CFR subchapter G (parts 110-139). Note also that you will need to apply to receive an air carrier operator certificate. The most famous are air charter (part 135) and airlines (part 121). So can you be PIC of an aircraft who does these ops? You have to look at the specific regs and also see what the operator's operational specifications (ops specs) say. Air carriers are heavily regulated because they have a lot of operational control over the flight. The more operational control, the tighter the FAA wants the regs to be. For example, to be PIC under part 121 (airlines), your commercial pilot certificate is not sufficient and you will need an airline transport pilot certificate (ATP) and the airline needs to have an operator certificate to be an air-carrier. What this leaves for you (brand new commercial pilot) is part 91 operations where you are not acting as an air carrier.

Requirements for aircarriers and commercial operators are covered in 14 CFR Part 119, including exceptions. Those exceptions (paragraph e) are important because you can be a commercial pilot for those "right off the bat", maybe. So paragraph (1)(a)(i) of FAR 61.133 can only be properly interpreted (and followed) by looking at 14 CFR Part 119.

(ii) for compensation or hire

This regulation covers "all the other cases" where you are not transporting persons or property. Simply said, you can get hired as a pilot.

Examples

Example 1: Your friend asks if you can fly him with your airplane to Charleston so that he can go see a basketball game. He will pay you $600.00.

Answer 1: That's illegal because you are behaving exactly like an air carrier! You cannot carry people for compensation or hire without abiding by Part 135 (charter operations)!

Example 2: Your friend now asks you to fly his airplane to Charleston so he can go see a basketball game.

Answer 2: That's legal because you are not operating as an air carrier. The airplane belongs to your friend. We refer to these as "private owner flights".

Example 3: Your friend now asks you to fly his airplane to Charleston so he can go see a basketball game with his business client.

Answer 3: That could be confusing depending on the nature of the business client, their relationship, and the finances behind the flight. Is your friend transporting the business client for some form of compensation (business deals, etc.)? If yes, then you could fall under 61.133(a)(1)(i) and be acting as an air carrier.

Are you an Air Carrier?

So as long as I'm not an air carrier, I can be paid to fly? Yes, and 14 CFR Part 119(e) actually lets you conduct non-stop air-tours but as an air carrier you need a letter of authorization (LOA). So there's some exceptions, but generically, not.

So how do you know you are not an air carrier? What exactly defines an air carrier? That's not an easy question to answer. It might mean asking a lwayer - after all, you are an expert flying planes and applying most regulations, but setting up a business may not be your forte. I have many times had friends call the FSDO to verify their operational was legal. A close friend even called the FSDO after the fact since another pilot challenged the legality of his flight. Keep in mind the FAA is here to help, so they want you to come clean and ask questions rather than live in ignorance. Ignorance is not an excuse under American law (or under Italian law for that matter). But the FAA can only go so far and their error can become your nightmare (see the link to Gorman, 2009)

If you open your own flying business, or simply want to make money as a commercial pilot, you may need to determine if you are an air carrier and therefore fall under 14 CFR subchapter G. To make this determination, it is a matter of operational control.

AC 91-37B provides questions that help you determine if you're an air carrier based on operational control.

1. Who decides to assign crew members and aircraft; accept flight requests; and initiate, conduct, and terminate flights?

2. For whom do the pilots work as direct employees or agents?

3. Who is maintaining the aircraft and where is it maintained?

4. Before departure, who ensures the flight, aircraft, and crew comply with regulations?

5. Who decides when/where maintenance is accomplished, and who directly pays for the maintenance?

6. Who determines weather/fuel requirements, and who directly pays for the fuel?

7. Who directly pays for the airport fees, parking/hangar costs, food, service, and/or rental cars?

If the operational control seems to be away from the customer, than you're most likely an air-carrier.

Common vs. Private Carriage (AC 120-12A)

The FAA says you become an air carrier the moment you execute common carriage. That is when you start openly offering your services to the public. It doesn't matter if you're offering an entire service (airplane+pilot) or just yourself (pilot). The FAA further explains in AC 120-12A (a really old AC, still in Courier font) that there are four aspects of being a common carriage : (1) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation. I love the opening to this AC, "The Federal Aviation Act of 1958 uses the term "common carriage" but does not define it". Classic. LOL.

Holding out means that you are publicizing your services. The AC gives you plenty of examples like planting signs on the ground, publishing ads, and so forth. The FAA also warns you that having the reputation of "serving all" is a form of holding out. So in essence, it cannot be a "known thing" that you offer those services to anyone, whether you publicize it or not. It's a grey area, I get it, but you have to live with it and err on the side of caution. It should be clarified that AC 120-12A specifically prohibits holding out when you act as a carrier. What that entails is you providing both the pilot (you) and the aircraft. So can you advertise yourself being available as a commercial pilot? Yeah! However it must be clear that you are offering your services without including an airplane. Aaaand the people you are being a pilot for cannot be acting as an air carrier either without the appropriate operation's certificate. An example of this is when you offer to fly your friend around in his airplane. You can advertise yourself and definitely get paid for it. However, I caution pilots from advertising themselves on social media... Saying "Hey, I'm a new commercial pilot and can fly you around" can be interpreted as an offer that provides both yourself and an aircraft. If you don't offer an airplane but can point at where to find one, that's not appropriate either (or at the very leasy very fishy). So as usual, be careful.

You are however allowed to execute private carriage, which means that you are hired for one or several selected customers , generally on a long-term basis without holding out (so if you're not doing common carriage). The word "several" is the problem. If you have too many customers, that implies that you are holding out (also by reputation, remember?), so it's important to be cautious. The AC advises that someone with 18 to 24 customers is considered a common carriage. Keep in mind that it's not a matter of selecting customers, it's the kind of operation that matters, too.

Wet vs. Dry Leases

We've noticed that "who owns the airplane" does matter in a determination of whether you are an air carrier. If the aircraft is leased, it is important, as the pilot of a flight, to keep in mind who the owner (lessor) and user are (lessee).

In this conversation, it's helpful to discuss wet vs. dry lease. A wet lease is when an entity provides both the aircraft and the crew. That's straight up an air carrier, right? If you someone provides you airplane and crew it's like a charter. In a wet lease, the operational control is maintained by the lessor. A dry lease, on the other hand, is when only the airplane is provided. The crew is found by the lessee and as such, received operational control. A dry lease is a transfer of operational control. The point is that when you dry lease and airplane, you become the operator. Even if you are operating an airplane in a dry-lease, make sure to be aware of who is the owner, operator, and customer. During an FAA ramp check, that may come up to determine the legality of the flight... the pilot should know (1) the name of the aircraft owner (2) the entity operating that flight and (3) the user entity represented by the passengers.

Beyond Advisory Circulars, there exist case law that we can use to see the regulations in action. Feel free to download the following two documents which offer the 2007 legal case of Gorman vs. FAA & NTSB in response to the violation of 14 CFR 119.23(b) which stated he was acting as an air charter illegally. The FAA revoked Mr. Gorman's commercial pilot certificate and the case is documented by the NTSB and the DC Court of Appeal (both confirmed the FAA's decision). The conclusion is not as important as the legal discusssions leading to the conclusion.

NTSB Docket Gorman vs FAA.pdf

Download PDF • 33KB

DC Court of Appeal Gorman vs FAA NTSB.PDF

Download PDF • 44KB

What can I do as a new commercial pilot?

14 CFR Part 119(e) lists those operations that do not require an air-carrier certification, and therefore the definition of common carriage does not apply (that's right, you can advertise your services!). Like everything else commercial pilot - read the actual regulation and if you are setting up a business, talk to a qualified lawyer :

1. Student instruction

2. Non-stop air tours

3. Ferry or training flights

4. Aerial work like crop dusting, banner towing, and pipeline patrol

5. Sightseeing flights in hot air balloons

6. Flying skydivers

7. Certain local helicopter flights

8. Helicopter operations under Part 33 (External Load Operations)

9. Emergency mail service

10. Operations under §91.321 (Carriage of Candidates in Elections)

11. Small UAS operations under Part 107

Fractional Ownership

Operators like Netjets and Flexjets are what we call fractional ownerships. That means that the passengers own part of the airplane. As such, they fall under part 91 subpart K and are not air-carriers. Yup, you can fly them as a commercial pilot if they hire you. As a practical matter, you will see Netjets has a 135 certificate, too.

Instrument Ratings

Without an instrument rating, per FAR 61.133(b)(1) you cannot fly as a commercial pilot at night or during the day for cross countries more than 50 NM: "The carriage of passengers for hire in (airplanes) (powered-lifts) on cross-country flights in excess of 50 nautical miles or at night is prohibited." So you better get your instrument rating if you want to be a commercial pilot.

Questions to ask yourself to see if you're legal.

If what you're doing is not representative of the exceptions listed in part 119(e) (instruction, ferry, etc.), then asks yourself these questions to figure out if you're operation is allowed or not. If the answer is NO to all these questions, then you should be good. But if this will be your livelihood, ask a lawyer.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

2. Are you being asked to fly because you've been holding out (publicizing your services and offering an airplane)?

3. Do I have most operational control?

Examples! Legal or Illegal?

Example 1 - Your friend Joe, who owns a plane (lucky him) needs to go to Charleston to visit his grandma. He broke his leg, so he's unable to fly the plane himself. He asks if you can fly the plane for him.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B? No, this is the owner of the plane, no "paying passengers" involved.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   No, this is the owner of the plane.

3. Do I have most operational control?

   No, this is his airplane, not mine!

The flight is legal as you are not operating as an air carrier. You are not holding out, as he knows you're a commercial pilot since you're friends, and he is supplying the airplane.

Example 2 - Your friend Bill needs to go to Atlanta to visit his grandma. He knows you own a small plane (lucky you) and asks if you can fly him to Atlanta.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   Yes, Bill is a paying passenger since he doesn't own the plane.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   Well, you own the plane, but you haven't advertised your services, though. He just knows you own a plane.

3. Do I have most operational control?

   Yes, the airplane is mine. I do the maintenance, do its schedule, etc.

   
   

The flight is illegal as you are operating like a charter operation! That means you are an air-carrier and therefore fall under part 135.

Example 3 - My friend Jack owns a large company and buys three Cirrus aircraft to easily move his executives around the country. He knows you're a CFI because you taught his neighbor how to fly. He wants to hire you to be his pilot and move him and his executives around the country.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   No, his executives don't pay Jack to travel.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   No, he owns the airplane.

3. Do I have most operational control?

   No, this is his airplane, not mine! He decides where it goes, how it gets handled, etc.

   
   

The flight is legal as you are executive private carriage.

Example 4 - Your friend Ben asks you to fly him to Miami to meet a business partner using his friend Jake's Piper. He will pay you for your time.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   Ben doesn't own the plane, but neither do you. It's owned by Ben's friend, so you can argue that operational control of the plane is with Ben, and not you. This would be a dry-lease scenario.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   No, you didn't find the plane. As long as you are not linked somehow to Jake, you are fine.

3. Do I have most operational control?

   No, Jake and Ben have most of the operational control.

   
   

The flight is legal as you are executive private carriage.

Example 5 - Your friend Tim needs to pick up his new golf clubs in Augusta. You offer to fly him with your Cessna to pick them up for a fee.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   Yes, Nick is paying you to fly to Augusta. They are very much a paying passenger.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   Yes, you offered to fly him there with your plane!

3. Do I have most operational control?

   Yes, it's your airplane.

   
   

   The flight is illegal as you are behaving like an air charter. 

Example 6 - Your friend Brian inherited his dad's Cessna but isn't a pilot. You offer to be his commercial pilot whenever he needs to go places.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   No, it's his airplane and therefore isn't a paying customer.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   No, you don't own the airplane.

3. Do I have most operational control?

   No, it's Brian's airpalne.

   
   

   The flight is legal because you fall under private carriage.

Example 7 - Your friend Rob, who owns a wood shop, needs to transport tools to his other location out of state. Rob knows you own a plane that is sufficiently large to carry the tools. He offers to pay you to transport his tools.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   Yes, cargo! There is a payment to move cargo.

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   Yes, you own the airplane, so you're providing both pilot and aircraft.

3. Do I have most operational control?

   Yes, it's your plane!

   
   

   The flight is illegal because you're a wet lease and acting as an air-carrier!

Example 8 - Your friend Jerry owns an airplane. His business clients made a deal where they can use Jerry's airplane to go skiing in Colorado for a reduced cost. Jerry asks you to fly them to Colorado.

1. Are you carrying people or property who are paying someone (you or another person) to be moved from point A to point B?

   Eh, those business partners seem to be "paying passengers". They are not Jerry's family and partners. It's definitely a gray area!

2. Are you being asked to fly because you've been holding out (publicizing your services with an airplane)?

   No, this is Jerry's airplane.

3. Do I have most operational control?

   No, it's Jerry's.

   
   

   This flight is probably illegal because the operation seems to be an air-carrier. I would contact an aviation attorney to examine the "deal" and see what the relations and entities involved are.

Clear as mud? Ask yourself those questions. It's a lot easier if you fly for someone who owns a plane, as long as they are not operating like an air-carrier. Holding out applies to you as a commercial pilot, whether you own an airplane or not. You can be a commercial pilot and hold out only for those activities listed under 14 CFR Part 119(e).

This article was reviewed by a highly experienced pilot and instructor. Thank you Bill Tuccio, Ph.D., ATP for reviewing this article and finding all the errors. Any remaining mistakes are my own!