IMHO the dealbreaker from an FAA POV is the ‘holding out’ (advertising in normal English 
). Advertising the flight (sic) on Wingly is, ahem, just that: advertising, or as US legalese would have it: holding out.
The question is what parts of Part 91 are applicable for operations in the country where the airplane is based, and what parts of the local OPS regulations apply.
Sure, but if the airworthiness parts of Part 91 don’t apply worldwide, then N-regs are flying without a valid CofA, which is obviously not possible since somebody would have realised that by now….
Peter wrote:
However, under the UK regs covering payment in foreign regs, the term used is “valuable consideration” and it doesn’t have to flow to the pilot. (…) In this case the €4 does to Wingly and that is technically in breach, but…
Just hand the passenger 4,- EUR before boarding the plane. Then it is a “security deposit” to make sure (s)he shows up, and if (s)he as on the flight, (s)he paid strictly nothing.
And the FAA “holding out” provision is still valid if there is no payment.
That’s another problem :)
achima wrote (#04):
…but the real restriction is in the FARs where it concerns pilot privileges. Those do not apply when pilot the aircraft on an EASA license which is possible within the country where the EASA license was issued.
Peter wrote (#05):
… a pilot who held FAA papers and German issued EASA papers could do Wingly in German airspace only.
172driver wrote (#09):
However, just as a little mind game: what if you hold both an EASA and FAA license? Is this interpretation then still valid?
It is irrelevant whether the operation is conducted under a US or European pilot licence. A pertinent starting point is the legal interpretation to Andy Dobis, 21 May 2014:
It is important to note, however, that the privileges and limitations conferred upon pilots are a separate and distinct issue from whether these flights would be considered a commercial operation for which a part 119 air carrier or commercial operator certificate is required.
FAA has consistently deemed flights under initiatives like Wingly as operations in common carriage requiring a 119 certificate: see penultimate para in the legal interpretation to Rebecca B. MacPherson, Jones Day, from Mark W. Bury, Assistant Chief Counsel (Aug. 13, 2014). In painting these operations as common carriage FAA typically relies on the pilot being compensated either through expenses-sharing or, if the cost of the operation is covered by a third-party, the accumulation of flight time. By default FAA assumes the latter is valuable to the pilot so establishes the existence of compensation, a necessary element of common carriage. FAA refuses to be drawn into case-by-case analyses for ascertaining whether flight time is actually of benefit.
FAA interpretation to Judy Lincoln, 30 Oct 1990, deals with flight time accumulation by private pilots:
… the agency has repeatedly taken the position that building up flight time is considered compensatory in nature when the pilot does not have to pay the costs of operating the aircraft and would, therefore, be deemed a form of “compensation” to the private pilot under Section 61.118 [now 61.113].
That interpretation cites para 4 of memo dated May 1982 from Bernard Geier, Chief, General Aviation and Commercial Division, to Chief, Flight Standards Division:
… that a private pilot may not serve as pilot in command of such an operation even when he/she elects to forego actual monetary compensation for service as pilot in command since, as stated, the private pilot is rendering his/her services to build (flight) time. This act, within itself, constitutes an operation for gain or advantage, other than for transportation alone. As such, it would be considered an operation for compensation or hire.
FAA memorandum dated 18 May 2009 to Don Bobertz, Attorney, Office of the Regional Counsel Western Pacific Region, AWP-007 from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations, AGC-200:
With respect to conducting the flights for compensation, your request notes that the pilot, who holds an ATP certifiate, argues that any time logged on these flights should not count as compensation because building general aviation flying time in a Cessna 172 does not advance his career. Generally, accrual of flight time is compensation and the FAA does not enter into a case-by-case analysis to determine whether the logging of flight time is of value to a particular pilot. Legal Interpretation to John W. Harrington, from Donald Byrne, Assistant Chief Counsel (Oct. 23, 1997) [1997-23].
The relevant part of the interpretation to Harrington, 23 Oct 1997, states:
In determining what is considered compensation, it has been the FAA’s long-standing policy to define compensation in very broad terms. For example, any reimbursement of expenses (fuel, oil, transportation, lodging, meals, etc.), if conditioned upon the pilot operating the aircraft, would constitute compensation. In addition, the building up of flight time may be compensatory in nature if the pilot does not have to pay the costs of operating the aircraft. While it could be argued that the accumulation of flight time is not always of value to the pilot involved, the FAA does not consider it appropriate to enter into a case-by-case analysis to determine whether the logging of time is of value to a particular pilot, or what the pilot’s motives or intentions are on each flight.
There’s plenty to be found online on similar schemes attempted in the US. Terms to search for include: Trans-Share Corporation’s Share-A-Flight, Pilots and Passengers Association, AirPooler, Flytenow.
Peter (#11, #15) raises a possible workaround: eliminate compensation. If this is done then the operation ceases to be one of common carriage, of which compensation is a necessary element, and so does away with the need for a 119 certificate.
172driver wrote (#07):
IIRC the only exception to this in FAA-land are flights conducted during a charitable event (e.g. airport open day, fundraisers and such).
The nonstop commercial air tour exemption at 119.1(e)(2) subject to some of the conditions at 110.2 may be used for A to A aeroplane or helicopter operations remaining within a radius of 25 SM, authorised by an LOA issued under 91.147, and conducted by a commercial or airline transport pilot certificate holder. Details in penultimate para of the legal interpretation to William W. Grannis, Aug 2017.
Many thanks for posting that, Qalupalik. It does appear to kill off Wingly for N-regs in all of Europe, unless one flies for free.
I don’t think it will kill it off, since almost nobody here in Europe has this kind of background knowledge about previous FAA jurisdiction.
All it means is that it is a minefield (just like so many other things) and that when there will be an accident, there is a certain risk that things will go into a bad direction for the pilot.
We probably agree, since pilots tend to be concerned about insurance (well, those who are concerned about insurance ).
The FAA rule about the logging of flying hours being considered compensation is barking, IMHO. It essentially stipulates that a PPL must pay the going rate (whatever that is) for any hours they log.
As I understand it the purpose of differentiating between a PPL and a CPL is to stop a PPL being paid to fly – thus protecting the higher standards required of a CPL (official) and the CPL’s ability to earn a living (unofficial). It seems crazy to extend that to essentially ensure that a PPL cannot fly without paying for it.
I have a number of entries in my logbook flying moderately interesting types (Tiger Moth, Nanchang) as PU/S because the chap who took me up for a spin (at no cost to me) happened to be a Class Rating Instructor and told me I could log it if I wanted – makes no odds to him as he logs P1 either way.
If the CAA were to operate the same rule as the FAA then I guess those flights would be illegal (to fly or to log?)
Edited to add that I didn’t log those hours for the purpose of building hours – I have no commercial ambitions. I logged them because it was nice to have the type in my logbook and I did fly them. On a similar note the same guy said the same “log that if you like” after a coupe of hours sat next to each other in a club PA28 that he was paying for on club flyout. I didn’t bother because the type was (obviously) already in my logbook, I hardly touched the controls, and I already had enough recent PU/S time for the next SEP revalidation. So to most of us who are strictly recreational, are hours ‘valuable’ – no.
Graham wrote:
If the CAA were to operate the same rule as the FAA then I guess those flights would be illegal (to fly or to log?)
OK, @Qalupalik may well be along in a second and contradict me (I am not a lawyer!), but in my understanding you would have logged these flights as ‘dual received’. Nothing illegal here, nobody forces an instructor to charge. There is no such as thing as P U/S in FAA-land, although you can be both PIC and ‘student / dual received’ at the same time.
