But is the current regulation reasonable? So a private pilot putting 3 pax in the back of his 1956 Skylane on Angel Flight is ok but the same pilot taking people up to circle around their neighborhood is suddenly dangerous? Ah no it perfectly safe if they just smiled and walked away after the flight. But if they offered to chip in for the fuel then they were well into the "danger zone" right?
The way FAA regulates commercial air transport is outdated and harmful for businesses. Here is another example. A 10000 hours commercial pilot who happened to own a brand new twin cannot take paying passengers, that according to the FAA is dangerous. But a 500 hours 18 year old kid with a wet ink on his commercial license taking 10 pax in a beat up C402 is just fine. What's the difference between the two? The latter works for a company that paid slightly over a million dollars to the FAA for the part 135 certificate.
I'm sorry but this regulation makes no sense.
At Oral Argument, the FAA agreed the common law definition of common carriage applied.
See, https://soundcloud.com/flytenow/judge-wilkins-on-whether-the....
Despite this, the court did not apply the common law definition. Indeed, they ignored the question, "we therefore do not consider Flytenow’s argument that the FAA’s decision contravenes the common law."
So, the determination is that Flytenow pilots are engaged in common carriage, yet the central element of common carriage - commercial enterprise for profit - was not addressed by the Court.
Your last statement [Flying is dangerous and should not be subject to the race to the bottom and rent-seeking behavior that is the "sharing economy"] cuts against your own argument. There is no "rent-seeking" behavior where there is no possibility for profit. That's the whole point of the common carriage analysis, and why the FAA and the Court got it wrong.
The term refers to a commercial transportation enterprise that "holds itself out to the public" and is willing to take all comers who are willing to pay the fare, "without refusal." BLACK'S LAW DICTIONARY 226 (8th ed.2004). Some courts have allowed that holding out on an all-comers basis to a limited segment of the public might be enough to qualify as a common carrier. See Woolsey v. Nat'l Transp. Safety Bd., 993 F.2d 516 (5th Cir.1993) (concluding that an air carrier had acted "as a common carrier" in offering services pursuant to negotiated contracts to members of the music industry because it had "held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately"). But whatever the particular test, some type of holding out to the public is the sine qua non of the act of "provid[ing]" "transportation of passengers or property by aircraft as a common carrier." 49 U.S.C. § 40102(a)(25), 41101.
Flytenow would satisfy the requirements here as the pilots on the site HELD OUT to a DEFINABLE SEGMENT OF THE PUBLIC and were willing to TAKE ALL COMERS WHO ARE WILLING TO PAY THE FARE. There is no mention of profit. The argument of whether or not profit is a requirement is an interesting one but, ultimately, is not relevant due to the below.
In addition, you misrepresent the Court's ignoring of the question by quoting only a portion of the text:
In its reply brief, Flytenow raises a new line of attack against the Interpretation, contending that it must be set aside because the FAA’s definition of common carriage contravenes the common-law definition. “Ordinarily, we will not entertain arguments or claims raised for the first time in a reply brief.” Forman v. Korean Air Lines Co., 84 F.3d 446, 448 (D.C. Cir. 1996). As we have explained, considering such arguments “is not only unfair to an appellee, but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.” McBride v. Merrell Dow & Pharm., 18 Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal citations omitted).
In its opening brief to this court, Flytenow did not contest the FAA’s definition of common carriage. To the contrary, it invoked the FAA Advisory Circular’s articulation of the FAA’s understanding of common carriage. See Br. of Petitioner 6 n.6, 11, 25. Thus, in its response, the FAA did not defend its Interpretation on the ground that its definition of common carriage is in keeping with the common law, aside from making passing reference to a decision in this court that noted the common-law pedigree of “common carriage.” See Br. of Respondent 30 (citing CSI, 637 F.3d at 415). We therefore do not consider Flytenow’s argument that the FAA’s decision contravenes the common law. That argument is forfeited.
As you can see, the question is ignored because Flytenow was attempting to append the argument after the fact. If Flytenow had argued the common law definition originally then the Court may have had to rule in a different manner.
In other words, the Court got it right and Flytenow screwed up.
In any event, the FARs are dispositive on the issue: "Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit." See definition of commercial operator, http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=14:1.0.1....
AKA Landlords, Realtors®, Middlemen, Licensures etc.
Of course, this doesn't mean that it's impossible for a landlord it middleman to be a rent-seeker, but they would need to pursue some type of artificial benefit/restriction on others in order for this to be the case. This does happen often, but I have no idea why OP would suggest rent-seeking is the primary activity of sharing economy companies. One of Uber's greatest accomplishments has been significantly weakening the rent-seeking taxi industry.
Uber is very much within the "virtuous cycle" – but they may also become rent seekers via monopolization of private transportation.
See: fractional ownership
Profit seeking is not a requirement to be considered a common carrier. The FAA and the Court are quite clear in that all that is required for a common carrier classification is "(1) a holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation" and that all four are satisfied by Flytenow. Posting an itinerary to the website qualifies as holding out, the flight is transportation, the individuals go from place to place, and the cost sharing is compensation. Flytenow's response to this is just needling and attempting to spin.
The current state of the law is extremely deferential to regulatory actions, at the expense of innovation. The Court relied on that regulatory deference, and the result is less choice for consumers, and less innovation in general aviation.
This is true. And it's for good reason. Flying is dangerous and should not be subject to the race to the bottom and rent-seeking behavior that is the "sharing economy".