ON-Lion Letter

In January, Flytenow, Inc. -- an innovative start-up business that uses the Internet to connect private pilots with passengers wishing to share travel plans and flight expenses -- sued the Federal Aviation Administration (FAA) for shutting the website down.  Flytenow is represented by the Goldwater Institute in Phoenix.  The Lynde and Harry Bradley Foundation in Milwaukee substantially supports Goldwater's litigation activities.

Flytenow expands on the trend that companies like Uber and Airbnb have popularized -- allowing consumers to connect directly with private individuals who have goods or services that they need.  Flytenow passengers do not pay for tickets or for the pilot's time.  Instead, they only share fuel and fee costs with the pilot.

Cost-sharing arrangements like these with private pilots and passengers have been allowed by the FAA since the 1960s.  Pilots previously found people to cost-share with by word of mouth, phone, posting notes on bulletin boards in airports, by e-mail, and various other means.  Flytenow simplified the process by allowing pilots to post a planned trip on a website to find people interested in sharing costs.  But the FAA determined that the process of posting a planned trip on a website constituted advertising -- and that subjected the private pilots to the same regulations that pilots for a commercial airline like Delta would have to meet, so they forced Flytenow to shut down.

"This is a classic case of government overreaction to new technologies and innovative ideas," according Goldwater Institute attorney Jon Riches.  "Instead of updating regulations to reflect the way Americans communicate today, the FAA is stifling innovation and silencing pilots who want to use the Internet to communicate their travel plans.  The FAA has essentially said that sharing flight expenses by posting a flyer on an airport bulletin board is okay, but sharing expenses by posting travel plans on the Internet is not."

Goldwater is arguing that the FAA's decision to shut down Flytenow violates the First Amendment and Due Process rights of the company, its owners, and its members, and that the agency's rules are unconstitutionally vague because they cannot provide legally required "fair warning" of what communications are allowed or not.

Barry Goldwater, the Goldwater Institute's namesake, was a military pilot and aviation enthusiast.  He flew every type of American military aircraft in use during his time as an active pilot and was inducted into the National Aviation Hall of Fame in 1982.    

Flytenow, Inc. v. Federal Aviation Administration was filed in the U.S. Court of Appeals for the District of Columbia Circuit, often considered the nation's second-highest court.  A successful outcome in the case could have wide-ranging implications for the broader "sharing economy."

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