One of the most confusing subjects for commercial pilot applicants is what they can do with respect to their commercial license and what they cannot do. Is it permissible to fly a colleague in your airplane and charge him (or the company) for the flight? What if the colleague (or company) provided the airplane? Can they then pay your for your time? Can I rent an airplane from the FBO and charge people to fly with me? What are the rules?
The privileges and limitations of a commercial pilot are covered in §61.133 Commercial pilot privileges and limitations.
(a) Privileges —(1) General. A person who holds a commercial pilot certificate may act as pilot in command of an aircraft—
(i) Carrying persons or property for compensation or hire, provided the person is qualified in accordance with this part and with the applicable parts of this chapter that apply to the operation; and
(ii) For compensation or hire, provided the person is qualified in accordance with this part and with the applicable parts of this chapter that apply to the operation.
Right up front, it becomes apparent that to be compensated we will need to look into another part of this chapter. The chapter is 14 CFR. The get a better picture of what a commercial pilot can and cannot do is covered in 14 CFR Part 119. Luckily for us, 119.1 specifies what a commercial pilot can and cannot do. §119.1 Applicability.
(d) This part does not govern operations conducted under part 91, subpart K (when common carriage is not involved) nor does it govern operations conducted under part 129, 133, 137, or 139 of this chapter.
(e) Except for operations when common carriage is not involved conducted with airplanes having a passenger-seat configuration of 20 seats or more, excluding any required crewmember seat, or a payload capacity of 6,000 pounds or more, this part does not apply to—
(1) Student instruction;
(2) Nonstop Commercial Air Tours ….
(3) Ferry or training flights;
(4) Aerial work operations, including—
(i) Crop dusting, seeding, spraying, and bird chasing;
(ii) Banner towing;
(iii) Aerial photography or survey;
(iv) Fire fighting;
(v) Helicopter operations in construction or repair work (but it does apply to transportation to and from the site of operations); and
(vi) Powerline or pipeline patrol;
(5) Sightseeing flights conducted in hot air balloons;
(6) Nonstop flights conducted within a 25-statute-mile radius of the airport of takeoff carrying persons or objects for the purpose of conducting intentional parachute operations.
(7) Helicopter flights conducted within a 25 statute mile radius of the airport of takeoff if— …
(8) Operations conducted under part 133 of this chapter or 375 of this title;
(9) Emergency mail service conducted under 49 U.S.C. 41906; or
(10) Operations conducted under the provisions of §91.321 of this chapter.
What does common carriage mean? We have this definition from a seemingly trustworthy site. http://defitions.uslegal.com
Common carrier refers to a person or entity in the business of transporting goods or people for hire, as a public service. A private carrier, in contrast, is employed to transport good for people for specific needs on an individual case basis. For example, city buses are a common carrier, as opposed to a private carrier such as a moving company which is hired on a one-time basis. A common carrier runs according to a regular schedule on a designated route.
Under common law rules, a common carrier is generally liable for all losses which may occur to property entrusted to his charge in the course of business, unless he can prove the loss happened in consequence of the act of God, or of the enemies of the United States, or by the act of the owner of the property.
In AC 120-12A another definition for common carriage appears
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.
The FARs define what is not common carriage in §110.2 Definitions
When common carriage is not involved or operations not involving common carriage means any of the following:
(1) Noncommon carriage.
(2) Operations in which persons or cargo are transported without compensation or hire.
(3) Operations not involving the transportation of persons or cargo.
(4) Private carriage.
Finally, we get to the definition of Noncommon carriage in the same FAR.
Noncommon carriage means an aircraft operation for compensation or hire that does not involve a holding out to others.
There is only one last thing to discuss, again in AC 120-12A the definition of holding out shows up:
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.
It becomes quickly apparent that a commercial pilot can for compensation or hire pilot an aircraft with persons or property on board as long as it does not fall into the category of common carriage. Typically, the scenario is if the pilot is contracted to fly a personal aircraft for an owner than it does not fall under common carriage. The owner is most likely not advertising that he has an airplane that he is willing to rent. There are situations where the owner can be reimbursed for a flight and the operation still fall under Part 91. (See Private Carriage).
The other typical scenario is where the pilot offers his services and airplane to the public for compensation or hire. In this case, it is undoubtedly common carriage and a 135 certificate is required.
It is my belief, that if you perform an operation under one of the exclusion to Part 119.1 you can provide your services and an airplane. How many students would we lose if they had to purchase an aircraft to get flight training? If the operation does not fall under one of those exclusions more research is going to be necessary.
In the end, the commercial pilot needs to take a step back on any new operation and ask himself whether or not it is legal. Does it fall into the common carriage definition or “a holding out” definition? If there is any doubt, the best advice is to contact the local FSDO for their interpretation of the operation. If you want to read some legal interpretations on holding out and common carriage please feel free to do so.