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chartering

  • Tracey Cheek posted an article
    What You Need to Know Before Choosing a Private Jet Charter Provider see more

    NAFA member, Essex Aviation, shares what you need to know before choose a private jet charter provider.

    If you frequently fly commercial for business or personal reasons, you might want to consider making the switch to private aircraft chartering. Compared to flying on commercial airlines (notorious for their unreliable flight schedules, long security lines and cramped quarters), private jet charter services provide the flexibility to travel almost anywhere in the world, often arriving at a location closer to your final destination, on your own schedule and in total comfort and convenience.

    Most air charter companies offer a wide variety of options, so you can choose the aircraft that best meets your specific aviation needs and the requirements of each individual trip. Chartering is also practical from a cost perspective because you pay on a trip-by-trip basis. Although chartering does not guarantee aircraft availability the way membership programs, fractional or whole aircraft ownership does, it’s still one of the most convenient means available to access private aviation.

    Before making the transition from commercial airline travel to a private aircraft charter, there are a few important things you should know. There are a few ways to charter a plane, including working directly with a charter operator or going through a charter broker.

    Charter operators are directly responsible for the on-going management and operation of the aircraft on their charter certificate, as well as staffing the plane. Charter operators are required to be certified by and receive regular oversight from the Federal Aviation Administration (FAA).

    Charter brokers are agents who act as liaisons between the client and the charter operator. If you choose to work with a charter broker, they will present you with a cost quote for your trip and, once you’re satisfied with the price and approve the quote, they will work with the multiple charter operators they have relationships with to secure the aircraft to complete the trip. A few days prior to your trip, your charter broker will send you the airplane tail number (the plane’s FAA registration number) and all other relevant information.

    Unlike charter operators, charter brokers aren’t required to be FAA licensed nor are they regulated — in fact, charter brokers aren’t even required to have any prior experience in the aviation industry. Although the majority of brokers are reputable professionals with extensive industry experience, it’s still important to do your due diligence before signing a charter contract through a charter broker. For example, if your broker is able to arrange an aircraft for charter but is reluctant to give you certain information about the plane (including the year, make and tail number) or who the actual charter operator is that will be completing the flight, it’s best to take your business elsewhere.

    Before working with a charter operator or broker — or even pursuing charter services at all — consider seeking the advice of a qualified private aviation consultant. Aviation consultants, such as the experts at Essex Aviation, use in-depth cost and usage analysis to help you determine which private aviation service or combination of private aviation services is the best fit for your specific needs. If you decide to pursue private jet chartering, your consultant will represent you throughout the charter evaluation and trip approval process and work closely with your charter operator of choice to secure the best value and safest charter aircraft solution possible.

    Essex Aviation Group, Inc. was founded in 2013 with the primary goal of providing clients with the best, most current industry knowledge and experience, a vital component in evaluating the many options available to meet their business and private aviation needs. Essex has experience advising and representing clients in a wide range of services, including: new or pre-owned aircraft acquisitions, new aircraft completion management, pre-owned aircraft refurbishment and upgrade management, block and ad hoc charter services and more. If you’d like to learn more about Essex Aviation and the services we provide, contact us today.

    This original blog article was published by Essex Aviation

  • NAFA Administrator posted an article
    COVID-19 Opened the Door to Private Jet Ownership see more

    NAFA member, PNC Aviation Finance, discusses how business travelers and some individuals have bumped up against the limits of charter and fractional private aircraft services and are now pivoting to ownership.

    It's no secret that 2020 changed the landscape of the aviation industry. According to data from the Los Angeles Times[1], 2020 forecasts show that this will be the worst year in the history of commercial aviation with the industry poised to post a net loss of $84.3 billion. Consumer air travel revenue is expected to drop from $876 billion in 2019 to $434 billion in 2020. Initially many individuals considered charter services or fractional shares like JetLinx and NetJets but quickly ran up against usage limits and health concerns as the planes are still shared. As a result, more people are considering direct ownership. Airline brokers have noticed a significant uptick in business. "We're on pace to have one of our best years ever," says David G. Coleman, of Duncan Aviation a private aircraft sales, brokerage and consultancy.[2]

    Key Insights

    • Charter and fractional shares can lower risk compared to commercial airlines but they aren't risk free. Private ownership provides end-to-end control of cleaning, crew health and safety checks as well as limited use of the aircraft.

    • Aviation finance is a fragmented industry. It's important to engage veteran professionals who understand aircraft mechanics as well as financing options.

    • Individuals interested in owning an aircraft should have a clear understanding of the aircraft they are purchasing and be prepared to provide that information to lenders as well. Leasing is also an option, but individuals will want to make sure they've planned for any additional costs and are also well versed in the terms of their lease.

    Charter and Timeshare Services See a Short-term Boost

    While surging in popularity, many corporate travelers are realizing that chartered and shared services only offer limited flexibility in terms of schedule and personal safety standards. "What we're talking about is still a form of mass transit," says Jeff Wieand of Boston Jet Search, a private aircraft broker and consultancy.[3]"There are fewer people involved but the questions remain the same - are they cleaning the plane in between? When was the staff tested? Individuals in these kinds of arrangements don't have much control over the aircraft or the process. The lack of control was a driver toward ownership before the pandemic and more so now."

    Charter and timeshare services also require passengers to book in advance just like conventional travel, which may result in a bit of jostling if your travel schedule doesn't already line up with that of the service provider. While this may not matter much during a normal week, scheduling issues could become especially acute during high travel periods like around the holidays or ahead of virus lockdowns when many people are trying to get to more remote locations.

    Pivot to Ownership

    Historically, owning an aircraft was an all-cash process with a naturally limited audience. But as access to capital has improved, aircraft costs have come down and interest rates have remained low, aircraft ownership is possible for more people.

    "To my mind, what has happened with the pandemic really accelerated trends that were already happening in the private aircraft market. As major carriers continue to cut back on services, if you're someone who needs to be on the road a lot it's a problem," says Coleman. "What we're really in the business of is giving people their time back. And now, with growing health concerns we're helping them find an option that eliminates more of the risk."

    Navigating the Private Aircraft Marketplace

    There is a robust secondary sales market within aircraft that allows people to invest in pre-owned planes that are in working condition and on established maintenance programs that lenders are willing to underwrite. New planes are also available and financeable.

    For those that are new to ownership, both Coleman and Wieand suggest that it's important to work closely with veteran aviation professionals that can correctly assess the plane itself and the financing options.

    "This isn't like buying a car or a house where you can just compare across and get a sense for what things generally cost," explains Coleman. "You really need to understand the life of the aircraft in terms of where it is coming from, the state of the equipment, and maintenance schedules. And, you have to understand that not every bank is going to finance so you're going to want to engage with brokers and financing almost before you choose the plane so that people are on the same page early."

    Avoid Common Leasing and Owning Aircraft Pitfalls

    For those that want to invest in aircraft ownership, they can choose to lease their own planes or buy them outright. The financing considerations for both options differ.

    Leasing requires careful financing. With a lease, it's important for individuals to understand that they are going to be locked into an aircraft for a period of time even if problems with the aircraft arise. Wieand suggests that it's important to consider the potential for those additional costs when determining whether a lease makes the most sense. A close read of the lease terms is also a good way to ensure that there aren't any surprises if problems arise or if someone needs to break the lease for any reason.

    Focus on alignment first and financing second when taking out a loan. Taking out a loan to cover the cost of an aircraft can remove some obstacles like being locked into a lease period, but individuals will make sure that they are working with well respected financing teams that are familiar with these kinds of transactions. Coleman notes that if you're financing before you buy, lenders will typically want to be clear on the results of a pre-buy inspection so that there aren't any discrepancies with aircraft components or functionality. Appraisals and inspections can vary widely provider to provider so potential owners can avoid problems by working with appraisers and inspection teams that the lender is already familiar with and trusts. Coleman adds that some lenders will not finance specific types of planes so it is important to make sure that individuals align their desires with a finance team that is willing to support them.

    "I have seen people get into situations where they find out that they can't get the financing they were counting on because they didn't do the pre-work," Coleman says. "A seasoned aviation finance team will work closely with you on finding solutions but it's best when they are included early on in the process."

    Ready to Help

    PNC Aviation Finance offers knowledgeable financing solutions to make private aircraft ownership possible and affordable.

    We offer custom-tailored financing packages based on business needs and circumstances. Our experienced aviation finance team understands and has extensive knowledge regarding private aircraft ownership requirements, FAA, insurance, operating leases, etc.

    We can help you look at the implications of each option and help you decide on the best option for you or your business.

    Learn how PNC Aviation Finance can help you fly higher by visiting pnc.com/aviation.


    Sources
    1. Los Angeles Times (July 10, 2020) The rich are flying again -- in the comfort of their private jets - https://www.latimes.com/business/story/2020-07-10/charter-private-jet-flight-covid-19-coronavirus
    2. CEO David G. Coleman, Duncan Aviation (November 2020) Interview
    3. CEO Jeff Wieand, Boston Jet Search (November 2020) Interview


    This article was originally published by PNC Aviation Finance on December 17, 2020.

  • NAFA Administrator posted an article
    AINsight: How Dry Leases Can Prevent Illegal Charter see more

    NAFA member, David G. Mayer, Partner at Shackelford, Bowen, McKinley & Norton, LLP, discusses how dry leases can prevent illegal charter.

    Is it possible that a subtle shift is occurring away from the pervasive and persistent menace of illegal charter operations? Anecdotally, and perhaps for me just hopefully, I am seeing more aircraft owners, operators, lessees, and lessors asking whether they need some type of leasing or other structure to avoid FAA scrutiny or personal liability.

    Leasing enables a lessee, which may be an individual or entity (person), to lawfully “operate” and thereby exercise “operational control” over an aircraft under the FARs. Only one person has operational control. Leasing offers a broad array of benefits and structures to direct cash flow from lessees to lessors and vendors, manage risk, minimize certain taxes, share aircraft use and cost among unrelated and affiliated parties, and facilitate commercial operations under FAR Part 135.

    But leasing is not an incidental subject, as explained in the General Aviation Dry Leasing Guide developed by NBAA and several other aviation alphabet groups. This 17-page publication informs aircraft buyers, owners, lessors, lessees, lenders, brokers, lawyers, and other advisors about the flexibility, utility, regulatory aspects, and complexity of leasing.

    Key FAA Leases: Dry and Wet

    It is essential first to understand that a “lease” under the Uniform Commercial Code in part means a transfer by a “lessor” to a “lessee” of the right to possession and use of an aircraft for a term in return for consideration—usually hourly, fixed, and/or variable rent payments.

    In contrast, a true lease might exist when the lessor retains residual value risk—the remaining value of the aircraft at the end of the lease term. Sellers do not take this risk. Finally, a charter is not a lease; it is a service, with no change of aircraft possession.

    Under FAR 91.23, “a lease means any agreement by a person to furnish an aircraft to another person for “compensation or hire, with or without flight crewmembers, that is not a contract of conditional sale.” In this context, the FAA identifies two extremely important categories of leases in Order 8900.1: dry leases and wet leases.

    Dry lease refers to an aircraft transaction in which the lessor provides the aircraft, the lessee independently supplies the crewmembers, and the lessee retains operational control of the flight. FAR 1.1 defines a core regulatory concept of operational control with respect to a flight as “the exercise of authority over initiating, conducting, or terminating a flight.”

    Illegal or unsafe operations may occur when leases or other contracts do not specify who is responsible for operational control of the aircraft and in other circumstances. As such, the FAA focuses on operational control in assessing whether a flight operation is an illegal charter or valid Part 91 operation.

    Operational control under Part 91 does not mean the traveler must fly the aircraft personally. An aircraft owner or lessee typically delegates that responsibility to pilots under Part 91 or charter operator under Part 135. I sometimes refer to the one person that exercises operational control as having the liability target on the person’s back.

    For example, in one of the most common uses of dry leases, an owner enters into a dry lease between a limited liability company (LLC), as the single-purpose aircraft owner entity, to put operational control of flight operations into the hands of one person as the lessee in compliance with Part 91.

    A major business enterprise for profit may be an appropriate dry lessee if the aircraft serves the business of the enterprise whose operations generate substantially more revenue than the operating costs of the aircraft. The LLC owner/member may also agree to an “exclusive dry lease,” with one lessee/operator or “non-exclusive leases” with multiple aircraft lessees/operators under their separate non-exclusive leases.

    The finance world routinely uses exclusive dry leases of various types to enable a lessor to buy an aircraft and lease it to a lessee without crew under a long-term lease. Here, the lessee similarly supplies the crew and assumes all obligations under the lease for the care, custody, and control of the aircraft during the term, including for its maintenance, crewing, operations, cost payments, insurance, and taxes.

    Despite the availability of leasing, new and current aircraft owners still frequently violate the FARs when their LLCs operate the aircraft but have no business other than to own and operate their aircraft, converting the LLCs into illegal “flight department companies.” Such a single-purpose LLC cannot lawfully conduct these operations, share the aircraft for any compensation (anything of value), or offer the aircraft for hire to others unless the LLC obtains an air carrier certificate under Part 119 and operates the aircraft under Part 135. It is quite feasible to use non-exclusive or exclusive dry leases to rectify or avoid these violations.

    In contrast to a dry lease, the FAA defines a wet lease in FAR 110.2 as an aircraft lease whereby the lessor provides both an entire aircraft and at least one crewmember to a lessee. The lessor retains operational control of the flight, unlike a dry lease where the dry lessee supplies its own crew, directs many aspects of flight operations, and retains operational control.

    Another significant distinction exists between Part 91 private operations and Part 135 commercial operations conducted by the air carrier that influences lease structuring. The air carrier (charterer) has the liability target on its back instead of the person that would otherwise exercise operational control under Part 91. This feature appeals to risk-averse Part 91 lessees or owners that want to mitigate the risk of liability for accidents involving their aircraft under their operational control of the aircraft.

    When the Rubber Hits the Runway

    When the conduct of flights blurs the line in determining whether one lessee/passenger has operational control or the lessor/aircraft provider has operational control under Part 91, illegal charter operations may be occurring. Lessees normally must understand and accept operational control and related obligations.

    Although the FAA has no specific criteria to determine when Part 91 dry leases morph into illegal wet leases, lessees should be wary of lessors that offer leases to multiple unrelated parties, induce the parties to hire the lessor’s pilots, and usurp the lessee’s independence in exercising operational control.

    Importantly, the lease parties of large civil aircraft (over 12,500 pounds mtow) must comply with FAR 91.23, the Truth-in-Leasing rules. These rules, which protect and inform lessees, require the filing with the FAA of a copy of the lease within 24 hours of signing and notice to the local FAA Flight Standards office at least 48 hours before the first flight under the lease.

    Conclusion

    There is no excuse for operating an aircraft as an illegal charter, especially when leasing aircraft provides a reasonable way to transfer rights to lessees to possess and use an aircraft under the lessee’s operational control. With the guidance of knowledgeable aviation counsel, individuals and entities can operate safely, lawfully, and knowledgeably under the FARs using leases and other related documentation that will survive FAA scrutiny.

    This article was originally published on AINonline on January 15, 2021.

     

  • NAFA Administrator posted an article
    Insights From An FAA Illegal Charter Investigation see more

    NAFA member, Greg Reigel, Partner at Shackelford, Bowen, McKinley & Norton, shares insights from an FAA illegal charter investigation. 

    Recent FAA press releases have publicized the enforcement actions the agency is taking against those involved in illegal charter.  However, what is not publicized is how the FAA is investigating these cases.  A recent case in the U.S. District Court for the Southern District of Indiana provides an interesting glimpse into one such investigation.

    The Case

    In Elwell v. Bade et al., the FAA received complaints regarding alleged illegal charter activity.  In response, the FAA opened what has turned out to be a six year investigation.

    During its investigation, the FAA issued three sets of subpoenas over a three year period.  The last set asked for production of all documents related to agreements associated with use, ownership, and/or leasehold interest in certain aircraft under investigation for a specified period of time.  The recipients of the subpoenas (the “Respondents”) objected and refused to produce any documents.

    The FAA filed a petition with the U.S. District Court requesting enforcement of the subpoenas.  The Respondents objected to the subpoena by filing a motion to quash the subpoenas.  The Court refused to quash the FAA’s administrative subpoenas and ordered their enforcement.

    The Court concluded that “(a) the matter under investigation is within the authority of the issuing agency, (b) the information sought is reasonably relevant to that inquiry, and (c) the requests are not too indefinite.” However, the Court’s analysis and rationale also provide insight into some of the things the FAA can do, and when it can do them, in an illegal charter investigation.

    Here are some of the key takeaways:

    The FAA Has Authority To Issue Subpoenas In Connection With An Investigation

    Under 49 U.S.C. § 46101(a), the FAA may investigate violations as long as the agency has “reasonable grounds.”  Neither an enforcement action nor a lawsuit is necessary.  When a court reviews an agency’s subpoena requests, the court must make sure the agency does not exceed its authority.  And the threshold for the relevance of the documents/information requested by the administrative subpoenas is relatively low. The court must also confirm that the requests are not for an illegitimate purpose.

    In illegal charter investigations such as the Bade case, the FAA typically asks for

    • aircraft flight logs
    • flight summaries
    • aircraft lease agreements
    • operating agreements
    • interchange agreements
    • pilot services agreements
    • pilot payrolls
    • operating invoices
    • receipts etc.

    And, as in Bade, a court will likely hold that such requests are proper and do not exceed the FAA’s authority.

    Stale Complaint Rules Do Not Bar Subpoenas During An Investigation

    As you may know, stale complaint rules act to bar the FAA from acting in certain situations after a period of time.  For example, in certificate actions heard before a National Transportation Safety Board Administrative Law Judge, 49 C.F.R. § 821.33 may prevent the FAA from acting if it does not initiate the case within six months of advising the respondent of the reasons for the proposed action.  Similarly, in a civil penalty case, a case may be dismissed under 14 C.F.R Part 13.208(d) if the FAA does not initiate action within two years.

    However, these stale complaint rules do not apply to ongoing investigations where no action has been initiated.  According to the Bade court, the “FAA may conduct an investigation to assure itself that its regulations are being followed, regardless if it ultimately determines civil enforcement or formal charges are not warranted.”

    Similarly, the FAA may investigate a target who is “engaged in a continuing violation of [FAA’s] safety regulations.”  In Bade, the FAA argued it was not investigating stale claims.  Rather, it believed the respondents were engaged in continuing violations where “the statute of limitations restarts every day.”  And the Court agreed.

    (Interestingly, the Court did not address whether this analysis, and its decision, would have changed if the aircraft involved had been sold and/or the flight operations had ceased.  As a result, it is unclear whether the investigation would have been moot if applicable stale complaint rules prohibited enforcement action.)

    The FAA Does Not Have To Tell The Target Of An Investigation About Subpoenas

    Under 49 U.S.C. § 46104(c), an agency must only give notice to “the opposing party or the attorney of record of that party.”  However, an investigation has no “record.” As a result, since the target of the investigation is not the one being deposed nor is counsel to those targets being deposed, the target does not have a statutory right to receive notice of third-party depositions.

    The Bade court also noted that “’failing to receive notice of one or more depositions does not prove that the FAA’s investigation is a sham,’ and has ‘nothing to do with the enforceability of the Subpoenas or the motive of the FAA in conducting this investigation.’”

    So, potential respondents do not get to participate at third-party depositions or receive copies of documents produced in response to subpoenas. This certainly makes defending against an illegal charter investigation a more difficult task.

    The FAA’s Order 2150.3C Is Only “Guidance”

    In Bade the Respondents argued that the FAA had not followed its own policies when conducting the investigation.  Specifically, they argued the FAA failed to follow FAA Order 2150.3 – FAA’s Compliance and Enforcement Program. However, the Court rejected the argument.  It observed that Order 2150.3 is not regulatory.

    Rather, Order 2150.3 merely provides guidelines to FAA personnel for performing their duties. Thus, the Court concluded that the FAA’s failure to strictly adhere to Order 2150.3’s “guidance” did not negate its authority to investigate. Nor did it mean the FAA was pursuing the investigation for an improper purpose.

    Conclusion

    Illegal charter is a high priority for the FAA at the moment, and will be for the foreseeable future.  As a result, the agency will continue to investigate complaints of illegal charter.  It is important to understand how the FAA conducts these investigations and the extent of its authority.

    And it is imperative for aircraft owner or operator who is the target of an illegal charter investigation to know its rights. If you believe you are the target of an illegal charter investigation, contact us now so we can help you navigate the investigation and protect your rights.

    This article was originally published by Shackelford, Bowen, McKinley & Norton, LLP on June 23, 2020.  

  • NAFA Administrator posted an article
    How to Rent a Private Jet: Everything You Need to Know About Private Jet Charter Services see more

    NAFA member, H. Lee Rohde, III, President & CEO of Essex Aviation, shares what you need to know about private jet charter services.

    Wouldn’t it be great to be able to just rent a jet? Well, with private jet charter services, you can.

    Private aircraft charter is an on-demand service that enables passengers to select the aircraft model that most closely meets their travel needs and book a flight in much the same way they’d book a seat on a commercial flight.

    Read on to explore private aircraft charter options, expenses, safety considerations and more.

    Table of Contents

    Different Types of Private Jet Charter Services

    Private jet charter services typically fall into one of two broad categories: private jets for business and private jets for leisure.

    Private aircraft charter is an attractive option to businesses because it enables them to:

    • Arrange flights to multiple cities within a single day according to your schedule, rather than a commercial airline’s
    • Bypass long check-in and security lines by boarding through private terminals
    • Arrive on-time to important meetings by flying to an airport closer to their final destination
    • Access airports often having less ground and air traffic, thereby reducing the potential for delays
    • Transport larger groups at a potentially lower overall cost than commercial airfare
    • Avoid costly downtime associated with commercial flight delays, layovers and connecting flights
    • Support in-flight productivity by eliminating unnecessary distractions and increasing overall travel efficiency
    • Conduct onboard business meetings without having to worry about other passengers listening in on sensitive conversations
    • Enable team members to travel in a comfortable, inviting atmosphere so that they arrive to their final destination refreshed and prepared

    Private air charter is similarly appealing to those who fly primarily for leisure purposes. Private aviation enables such individuals to effectively extend their holiday experience by flying aboard aircraft appointed with the finest luxury amenities, including full-service kitchens, state-of-the-art in-flight entertainment systems and dedicated bedrooms. Private terminals at commercial airports offer a secure, comfortable and relaxed environment, far from the hustle and bustle of the main commercial airport concourse. Local, non-commercially serviced airports enable travelers to arrive closer to their final destination, so they can start their holiday that much sooner. Ultimately, private jet charter can make even the longest haul flightfeel like an escape.

    Read the full article here

    This article was originally published by Essex Aviation in October 2020.

  • NAFA Administrator posted an article
    Four Actions to Increase Quality Charter Revenue for Your Aircraft see more

    NAFA member, Clay Lacy Aviation shares ways to increase your aircraft's charter revenue.

    Aircraft owners routinely ask aircraft management companies: How can I maximize charter revenue for my aircraft? The most common answer is often something like “charter the aircraft more hours.” It is a simple answer—it is also wrong. While flying more hours increases gross revenue, you will sacrifice hourly profit margin which does not maximize revenue for the aircraft owner. Why? The rules of supply and demand, and variable expenses. The largest variable cost, accounting for 51 percent, is fuel. More fuel is burned in the first hour of flight, due to climb, than in hours two, three, four and so on, which means the owner earns less revenue on that first hour. Monitoring average leg segments is something your manager needs to manage.

    Historically, aircraft owners will require approval for each charter before it happens—often adding surcharges to make the trip more profitable. This owner release, as it is known in the industry, makes the plane less competitive in the market and drives charter customers to the next best alternative.

    The recent introduction of the branded charter model (Wheels Up, XO, VistaJet) has made owner approval charters even less competitive. Branded charter jets are owned by the company, dedicated to charter and do not need additional barriers. It is an attractive proposition for the customer.

    So how can aircraft owners maximize charter revenue and compete in the current market? Here are four actions to take.

    One: Establish clear revenue expectations.

    Establish clear revenue expectations for each annual period, with your management company. Then ask for quarterly reports to track how the aircraft is performing. Quality management companies will dynamically flex pricing on a trip-by-trip basis.  Giving the company this flexibility will ultimately provide the aircraft owner with higher hourly returns, more consistent revenue and allow the aircraft to compete in a rapidly changing market.

    For each aircraft, there is an optimal rate where the contribution margin is highest and most efficient. But owners have two options to pursue when offering their aircraft for charter: One, the optimal margin or two, operating cashflow goals. Just be aware that adding hours beyond the most efficient price will diminish returns.

    Two: Keep restrictions to a minimum.

    The more restrictions you place on the aircraft and management company, the less attractive your aircraft will be in the highly competitive charter market. A long, detailed list prohibiting things like red wine, children under eight, pets, short cycles and so forth will make your aircraft nearly impossible to charter. Instead, trust your management company to protect and maintain your aircraft properly. If the plane requires additional cleaning or a repair, the management company should cover the cost and charge the charter customer accordingly. Lastly, check your aviation services agreement to make sure that is defined for your protection.

    Three: Co-locate your pilots with your aircraft.

    Owners often allow their pilots to live in cities far from where the aircraft is located. While this is a perk for the pilots, it means they must fly commercially to and from the jet’s location before and after every charter flight. This not only adds additional cost to the charter, making it less competitive, it also significantly reduces the duty time and/or availability of the aircraft. The smarter and far more profitable move is to co-locate plane and pilots. If your aircraft is based in a city with multiple airports, there is usually one airport with significantly higher demand, but correspondingly higher parking and fuel prices.  Your manager can provide an airport base comparison to help you make an informed decision (demand, fuel, hangar, maintenance resources and repositioning costs) if that relocation would help achieve your goals.

    Four: Release owner approval of individual charters

    Finally, remove the sales barrier created by owner releases. Instead, require quarterly trend analysis on the hourly contribution margins. This simple and profound adjustment allows flexibility of the sales process, optimizes availability and allows adequate time to generate trends. In today’s highly competitive “look-and-book” market, where charters are increasingly confirmed online in real time, this gives your aircraft a competitive advantage.

    This article was originally published by Clay Lacy Aviation on November 2, 2020.

  • NAFA Administrator posted an article
    To Charter or Not see more

    NAFA member, Brian Proctor, CEO of Mente Group, discusses the benefits of charter.  

    There have been numerous articles exploring the benefits of charter.

    There have been innumerable cases of management companies telling owners and potential owners that they will “make money” owning and chartering a jet.

    In this article we will review a client case where we studied the true marginal return of chartering, explore the “make money” assertion, and analyze the situations when operating Part 135, in a charter environment truly makes sense.

    The Client Case:  To Charter or Not to Charter

    Recently, we were approached by a long-time client who owns a Challenger 604.  The client was approached out of the blue by an aggressive management operation, offering to manage the client’s aircraft, put it on a Part 135 certificate and to hold it out to third-party users of the aircraft.  The manager provided a very detailed operating proforma showing the “profits” that the client would make, along with a slick brochure indicating that the aircraft would “pay for itself”.

    We recommended to the client that we perform a true “Margin Analysis” based on a per-hour return.  In the analysis, we assumed three-hundred charter hours per year.  We factored in the Charter Revenue and Fuel Surcharge, along with the Direct Operating Costs and brokerage Fees for the aircraft.  In addition, we factored in non-cash costs associated with each hour of flying, including:

    • Blue Book based residual value charge per hour
    • Wear and Tear to the Paint allocated per charter hour
    • Wear and Tear to the Interior allocated per charter hour

    As part of the analysis, we did not factor in any costs relative to fixed maintenance for the aircraft, including the 96 Month Inspection, lesser inspections, gear overhaul, etc.

    As a net result, the client would receive Five-Hundred Eleven ($511) Dollars per hour of net charter margin, or $153,300 on an annual basis.  When compared to the owner’s fixed cost of operations, approximately $600,000 annually, the charter margin offset approximately one-quarter of the fixed costs.  When factoring capital (or a better analysis of residual value loss), chartering does not come close to “making money”

    “Making Money”

    As you can imagine, Mente Group is often asked to study charter as a way to “have the aircraft pay for itself”.  We’ve run hundreds of scenarios.  Most typically, we will be asked to review 150-250 hours of owner usage, augmented with 100-200 hours of third-party charter.  The findings generally point to the same conclusion.  Under most usage patterns, we’ve found that, at best, chartering your aircraft helps to offset the fixed cost burden of the aircraft.

    So, you’re probably asking, “at what point does charter pay for the plane?”  We’ve done the analysis.  But, before we go to the answer, you must remember that as utilization increases, pilot staffing needs to increase as well.  So, based on the findings, a 4.5 pilot organization, flying 100 owner hours a year and 700-750 hours of charter comes close to covering the owner’s usage and covering the fixed costs.  (it still won’t cover the major fixed maintenance inspections.)  Not until you approach 1000-1200 hours of charter alone (depending on aircraft type) do you approach break even. To approach this level of utilization, along with the increased crewing requirements, your airplane must ‘float’ becoming nomadic without a traditional home base or hangar.  Additionally, your aircraft becomes part of the wholesale market, with a client base focused on the lowest price, not the best aircraft.  Clearly, it is very difficult under normal operations to ever make money chartering an aircraft.

    When Chartering Makes Sense

    As we’ve worked with clients all over the US, we’ve come across several situations where chartering does make sense:

    1. Sales/Use Tax Mitigation: There are several US states that waive sales / use tax on aircraft used primarily in commercial operations.  Some of the states call this a “Rolling Stock Exemption”.  In this case, the owner is advised to work closely with aviation tax counsel to structure an operating model that not only exceeds the requirements, but also has appropriate record keeping systems in place to defend against almost certain audit.
    2. Property Tax Mitigation: Like sales tax, certain property taxing authorities around the country waive or significantly reduce property tax on aircraft used in commercial operations.  Taxing authorities vary greatly on this, and the analysis needs to be conducted at the state, county and even the city level.
    3. Related Party Usage and Reimbursement: In a situation where an owner wants to allow a related party (friends, colleagues, a business, etc.) use of an aircraft and get reimbursed, operating Part 135 and chartering the aircraft to them is an easy way to achieve the desired results.  This avoids the pitfalls of unintentional illegal charter –a hot issue today with the regulatory authorities
    4. Optics: Often times, client companies will charter their aircraft to improve the optics of ownership by having the aircraft “making money” when the corporation isn’t using it.
    5. Liability: This ties back to an FAA concept of “Operational Control”.  When a Part 135 Operator is operating your aircraft, operational control of the aircraft shifts from the owner to the operator.  Theoretically, this then shifts liability in case of an accident or incident to the operator.
    6. Fixed Cost Offset: As mentioned above, chartering allows an owner to reduce the fixed cost of ownership, but rarely eliminates them.

    Obviously, the decision to hold-out your aircraft for charter is a complex decision.  In many ways, it can simplify operations and reduce the cost of ownership, but there’s no way to eliminate it.  Much like renting out your vacation home, once you make the purchase decision, you can consider whether you want to rent it out to offset some of your costs.  But it won’t pay for the asset – including capital and operating expenses – much less make money.  Otherwise, we’d all own money-making charter airplanes as part of our investment portfolio.  And we don’t.  Feel free to reach out to the team at Mente and we can help you explore this topic in greater detail.

    This article was originally published by Mente Group on October 30, 2020.

  • NAFA Administrator posted an article
    How to Rent a Private Jet: Everything You Need to Know About Private Jet Charter Services see more

    NAFA member, H. Lee Rohde, III, President and CEO of Essex Aviation, discusses private jet charter services. 

    Wouldn’t it be great to be able to just rent a jet? Well, with private jet charter services, you can.

    Private aircraft charter is an on-demand service that enables passengers to select the aircraft model that most closely meets their travel needs and book a flight in much the same way they’d book a seat on a commercial flight.

    Read on to explore private aircraft charter options, expenses, safety considerations and more.

    Table of Contents

    Different Types of Private Jet Charter Services

    Private jet charter services typically fall into one of two broad categories: private jets for business and private jets for leisure.

    Private aircraft charter is an attractive option to businesses because it enables them to:

    • Arrange flights to multiple cities within a single day according to your schedule, rather than a commercial airline’s
    • Bypass long check-in and security lines by boarding through private terminals
    • Arrive on-time to important meetings by flying to an airport closer to their final destination
    • Access airports often having less ground and air traffic, thereby reducing the potential for delays
    • Transport larger groups at a potentially lower overall cost than commercial airfare
    • Avoid costly downtime associated with commercial flight delays, layovers and connecting flights
    • Support in-flight productivity by eliminating unnecessary distractions and increasing overall travel efficiency
    • Conduct onboard business meetings without having to worry about other passengers listening in on sensitive conversations
    • Enable team members to travel in a comfortable, inviting atmosphere so that they arrive to their final destination refreshed and prepared

    Private air charter is similarly appealing to those who fly primarily for leisure purposes. Private aviation enables such individuals to effectively extend their holiday experience by flying aboard aircraft appointed with the finest luxury amenities, including full-service kitchens, state-of-the-art in-flight entertainment systems and dedicated bedrooms. Private terminals at commercial airports offer a secure, comfortable and relaxed environment, far from the hustle and bustle of the main commercial airport concourse. Local, non-commercially serviced airports enable travelers to arrive closer to their final destination, so they can start their holiday that much sooner. Ultimately, private jet charter can make even the longest haul flightfeel like an escape.

    Private Aircraft Charter Amenities

    We’ve already touched upon some of the amenities that travelers can expect when they charter a private jet aircraft, but let’s take a closer look at some of the comforts and conveniences passengers enjoy while onboard:

    • Open spaces designed with legroom, storage space and aesthetics in mind
    • Private lounges featuring plush seating arrangements upholstered with high-end materials
    • Personal flight attendant crew members ready to tend to each individual passenger’s needs
    • Full-service galleys stocked with a variety of fine foods and beverages
    • In-flight food and drink services, including meal catering or onboard personal chef services
    • State-of-the-art in-flight entertainment systems featuring cutting-edge audio and visual equipment
    • Full-size lavatories, including mirrors, storage and, depending on the aircraft, shower facilities
    • Depending on the aircraft, dedicated bedrooms replete with full master suite
    • Private conference rooms fitted with built-in video systems, surround sound and Wi-Fi access
    • Special accommodations for passengers who wish to fly with pets

    Every aspect of the private jet charter experience is designed to accommodate the passenger’s unique needs.

    When Does It Makes Sense to Rent a Jet?

    Private jet charter services have long been popular amongst travelers who want the experience of private aviation without the long-term commitment associated with dedicated or fractional aircraft ownership. It’s an especially practical option for those who are dealing with a smaller number of trips, or who require flexibility in terms of aircraft size and destination. Interest in private aircraft charter has also increased significantly in light of COVID-19, as travelers seek to find safer alternatives to commercial flights. Travelers who are curious about the prospect of chartering a private aircraft but unsure whether it makes the most sense based on their needs are encouraged to discuss their operations with a private aviation consultant.

    How Much Does It Cost to Charter an Airplane?

    Unfortunately, there is no one simple answer to this question — the expense of chartering a private aircraft varies substantially based on a number of factors:

    • Number of Passengers: This dictates the size of the aircraft (light jet, midsize jet, long range or ultra-long range) and, therefore, available aircraft models from which to choose.
    • Dates of Travel and Scheduling: If you primarily charter on holidays and during peak travel times, this can affect your cost. General limited availability and the location of available aircraft can also affect your ability to travel on your desired dates, so it’s best practice to book charter flights as far in advance as possible.
    • Flight Route and Destination: More distant destinations with longer flight routes require long range or ultra-long range aircraft models; longer journeys may also require stops to refuel and change crew if required per the Federal Aviation Administration’s (FAA) Pilot Fatigue Rules.
    • Length of Time on the Ground: Most private jet charter service providers require an equivalent of two hours per day of flight time. That said, it does not matter how this time is spread out. For example, if a traveler were to depart on a four day trip, they would be required to fly a minimum of eight hours during that trip; however, they could divvy this up by flying two hours each day of the trip, or four hours each during the first and last days of the trip with the aircraft parked during days two and three.
    • Round-trip vs. One-way: Round-trip flights are generally more cost effective than one-way trips. The reason for this is that a one-way trip typically requires the aircraft to complete additional flights in order to support a one-way trip request. As a result, most charter providers will actually quote the cost of a round-trip flight, even for a one-way trip. Charter providers that quote a one-way trip will effectively quote, in some form or another, the cost for the flight time of repositioning the aircraft back to its home base. For travelers interested in booking either a one-way or round-trip flight, a private aviation consultant is an invaluable resource because they can help you better understand pricing.
    • One-way Options: Although it’s certainly possible to request a one-way trip, from a traditional charter perspective, the cost will likely compare to the cost of a round-trip flight. Therefore, travelers who frequently make one-way trips would probably be best served by looking into a jet card program as opposed to chartering because jet cards tend to cater more to one-way requirements.

    That said, some charter providers offer one-way options in which the traveler can take advantage of a positioning flight (that has no passengers) required by another client’s scheduled trip. These opportunities utilize what are referred to as “deadhead flights,” while positioning the aircraft to its primary departure point or returning it to its home base at the end of a primary charter trip. Should your travel needs coincide with a deadhead flight — also known as an “empty leg flight” — this can be a good option, one that is often offered at a discounted rate. It’s important to note, though, that the cost savings associated with deadhead flights pose risks in terms of flexibility because these flights have a predetermined departure date, time and schedule, all based on the schedule — and sometimes changing needs — of the primary charter customer.

    On the whole, private jet charter services are less expensive than most other private aviation options because they’re booked on a trip-by-trip basis with no ongoing ownership or program costs.

    For private jet charter cost estimates, please refer to the chart below:

    Charter Operators vs. Charter Brokers 

    There are a few different ways to charter a private jet aircraft, including working directly with a charter operator or going through a charter broker.

    Charter operators are FAA Part 135 Certified Air Carriers who are directly responsible for the ongoing management and operation of the aircraft on their charter certificate, including staffing, and require FAA certification. Charter brokers are third-party agents that act as liaisons between a client and the FAA Part 135 charter operator chosen to be utilized for the trip. A charter broker will work with their client to secure representation for the booking of the trip and then work with different charter operators to determine which option they believe best meets the trip requirements.

    It’s important to note that, unlike Part 135 charter operators, charter brokers are not required to be FAA certified and operate with limited regulatory oversight. That isn’t to say that there aren’t reputable brokers in the market, rather that it’s important to thoroughly vet brokers before choosing to partner with one; a private aviation consultant can prove to be a valuable asset in this review and selection process.

    For a more detailed explanation of the difference between charter operators and charter brokers, please refer to our blog post on the subject.

    How to Identify a Private Jet to Charter

    When determining which type of private jet aircraft model to reserve for a trip, travelers are advised to consider the following:

    • How many passengers will be on the flight?
    • Do any of those passengers require special accommodations? (For example, a passenger with a wheelchair may need additional space.)
    • How much total luggage needs to carried?
    • Are there any larger luggage items (golf clubs, skis, bikes, etc.)?
    • What is the desired departure airport or location?
    • What is the desired arrival airport or destination?
    • What is the length of the trip?
    • Will the aircraft be repositioned on certain days during the trip? If so, where and for how long?
    • Do the passengers require any special amenities (internet service, certain floorplan seating options, etc.)?

    Each of these factors plays an important role in determining the necessary size, equipment capability and performance capabilities of the aircraft.

    Private Aircraft Charter Safety Considerations

    In addition to FAA regulations, there are numerous other industry standards and ratings designed to audit the safety of private aviation companies. The three most well-known are the International Standard for Business Aircraft Operations (IS-BAO), the Aviation Research Group/US (ARGUS) rating system and the Wyvern Wingman Certification program.

    IS-BAO was founded by the International Business Aviation Council in an effort to “build a culture that continuously strives for a better, safer way of operating by identifying areas where better risk management will improve safety.” The IS-BAO auditing process consists of three stages designed to verify that safety management activities are appropriately targeted and integrated within an operator’s business. IS-BAO was developed by operators, for operators and is based on the standards outlined by the Standards and Recommended Practices outlined by the International Civil Aviation Organization.

    Developed by ARGUS International, the ARGUS rating system is designed to confirm the legitimacy of a charter operator based on their safety record, whether they have liability insurance, pilot training, experience and certifications, pilot background checks and more.

    ARGUS ratings break down into four categories, shown in the table below:

    Some private jet charter providers will claim that they’re “ARGUS Rated,” but there’s a significant difference between being an ARGUS Gold Rated and ARGUS Platinum Rated operator, so it’s in the travelers’ best interest to partner with a private aviation consultant who can help them understand the difference.

    As the first private aircraft safety auditing firm in the country, WYVERN Consulting has garnered a great deal of respect, and its WYVERN Wingman Certification is considered one of the most reputable in the industry. WYVERN audits are governed by six principles: integrity, fair presentation, due professional care, confidentiality, independence and an evidence-based approach. Wingman Certified operators gain an exclusive listing on The Wingman Report, WYVERN’s directory of premier operators, access to WYVERN’s safety data platform and round-the-clock support from the WYVERN team.

    Any private aircraft charter company that boasts one or more of these ratings or certifications in addition to meeting FAA regulations would be a preferred option to consider, though it doesn’t hurt to consult a private aviation expert for peace of mind.

    Private Jet Charter Alternatives

    For those who aren’t sure whether renting a jet is right for them, there’s a world of other private aviation options in store, including:

    • Membership Programs: With a membership program, members agree to a fixed cost per hour charter rate at the start of the contract and are billed after each flight. Members typically pay either a monthly management or annual membership fee in addition to the cost per flight.
    • Jet Card Program: Jet card program members have their pick of a dedicated service with a predetermined number of hours on a specific aircraft type or size category or a debit card service in which they establish a travel fund account and pay on a trip-by-trip basis using that account.
    • Fractional Aircraft Ownership: Fractional owners purchase a share of a specific aircraft type and agree to an annual number of allotted flight hours. Most fractional aircraft ownership programs require a minimum size share of 50 hours of flight time per year, though this can vary depending on the provider.
    • Pre-Owned Aircraft Acquisition: Travelers who for a variety of reasons want their own private aircraft without the capital investment of a new aircraft acquisition are advised to consider purchasing pre-owned and investing in aircraft refurbishment services to breathe new life into an existing aircraft.
    • New Aircraft Acquisition: The ultimate in luxury, travelers can purchase a new aircraft tailored to their exact requirements and specifications.

    If you’re considering private jet charter services or evaluating alternatives, talk to the experts first — specifically, the experts at Essex Aviation Group. With a combined 95 years of aviation experience, we have longstanding private aviation industry connections that we can leverage to your advantage. We’re also intimately familiar with different private aircraft charter companies’ vetting processes, so we can help ensure that every flight you take is a safe flight.

    Ready to get started? Contact us today to let us know your unique travel requirements and we’ll help you determine whether private air charter services are right for you.

    This article was originally published by Essex Aviation on August 13, 2020.

  • NAFA Administrator posted an article
    AINsight: Best Five Options To Fly Privately see more

    NAFA member, David G. Mayer, Partner with Shackelford, Bowen, McKinley & Norton, LLP, shares the best options to fly privately. 

    As commercial airlines attempt to fill seats amid the Covid-19 pandemic, some families, businesses, and individuals have made a flight to safety by traveling again or for the first time on private aircraft.

    These travelers set their schedules and itineraries for on-demand business or personal flights. They can travel to about 5,300 public-use airports in the U.S., roughly 10 times the number of airports available to commercial aircraft. International airport access expands the flexibility to travel globally. Travelers greatly value saving travel time, the healthy and safe environment, productivity, and convenience of private aircraft while enjoying a comfortable, interconnected, and protected flight experience.

    Although the reasons to fly privately may be obvious, especially in the age of Covid-19, deciding on the right providers and approaches to flying are more complex. Three modes of aircraft travel involve no capital investment: chartering, jet or fraction cards, and membership programs. Each of these options holds strong attributes for new and some repeat flyers. Two other options require capital outlays for frequent flyers: purchasing a whole aircraft or a fractional share of an aircraft.

    Before All Else

    Before making choices from the five types of private aircraft travel described below, each person should complete the following diligence and processes to select the best possible flight experience:

    • Aircraft supports the mission. Identify the right aircraft for your “mission”—industry lingo that refers to identifying the details of a trip. In general, a mission profile covers logistics, operating hours, amenities, connectivity, catering, luggage/storage capacity, number of passengers, and travel distance. One size aircraft might not fit all travel needs, especially for owners or lessees that have access to only one aircraft.

    • Stellar manager, operator, and pilot safety records. Insist that the commercial operator, aircraft manager, and pilots have stellar safety records. The commercial operator should supply a top-flight team, including experienced pilots approved by the operator’s insurer. Managers, operators, and pilots should be free of enforcement actions by, or violation notices from, the FAA. Ask them.

    • Aircraft in good condition. Confirm whether the aircraft complies with its manufacturer’s maintenance and regulatory requirements. The aircraft should also present a well-maintained physical appearance.

    • Robust Covid-19 protocols. Verify that the aircraft manager, commercial operator, and FBO have designed and implemented a robust Covid-19 safety protocol for ground personnel, passengers, and crew, including health screening, social distancing, and personal protective equipment.

    • Adequate insurance coverage. Require that the aircraft manager or commercial operator provide written evidence of comprehensive liability insurance to protect you despite the tightening insurance markets.

    • Aviation experts. Use business aviation experts, including various brokers, technical consultants, and aviation lawyers, to assist in evaluating, documenting, and closing the best option or options for you.

    Chartering Aircraft

    charter is simply an ad hoc transportation service by private aircraft by the seat or whole aircraft. Charter makes the most sense for occasional and new flyers including those seeking a healthy and safe aircraft travel environment during the pandemic. Although more complicated, a charter is like taking a taxi. In legal terms, charter operators engage in air commerce by carrying persons or property for compensation or hire. You can hire a charter service in most cities with a private or public-use airport.

    Perhaps the simplest question about a charter and other options is what kind of aircraft does the traveler need to satisfy his or her top travel priorities? And how much will she or he spend to travel on a private aircraft? Charter rates can easily climb from approximately $1,200 to $12,000 per hour or more, depending on the aircraft selected from light jet or turboprop to an ultra-long-range jet.

    Though charter rates are not inexpensive, charters are somewhat more affordable because charter rates have dropped since 2019. Also, Congress approved, among other tax benefits, an excise tax holiday in the CARES Act, which suspends the 7.5 percent flight excise tax on amounts paid to charter operators from March 28, 2020, to Dec. 31, 2020.

    Cost transparency is sometimes challenging in the charter world. Travelers should ask for receipts detailing charges on their accounts, watch for overlapping charges, and tie the charges to final invoices. It is advisable to compare operator fleet sizes and business models.

    One persistent legal and safety concern arises from illegal charter operations. Broadly speaking, illegal charters occur when the aircraft operator or pilot conducts charter operations without proper certification or fails to comply with strict safety requirements in applicable regulations. Illegal charters have ensnared frequent and occasional charter travelers.

    Customers should look for red flags such as an operator asking customers to sign short-term leases or timesharing agreements. As a result of these regulatory violations, the FAA has, in coordination with the business aviation industry, stepped up its enforcement actions against operators and warned pilots to shun illegal charter operations.

    Membership Programs

    Fee-paying members typically have access to private aircraft for a set number of hours that may range from 25 to 100 hours per year. Program terms, aircraft fleets, and quality vary widely as does pricing for membership and flights. Before joining, travelers should compare programs of operators that have developed creative ways to travel at a predictable cost.

    Jet and Fraction Cards

    Jet and fraction cards cost more than most other aircraft travel options and work like a pre-paid credit card that a traveler uses to pay for 25 to 100 or more flight hours. The cards enable travelers to dip a toe into private aviation. Card amounts vary, starting as low as $25,000 and perhaps lower in this changing segment. These cards and other options can provide supplemental lift to enhance travel flexibility.

    Whole Aircraft Ownership or Leasing

    Buying or leasing a “whole” aircraft often makes sense once a traveler anticipates using at least 200 flight hours per year and wants to control the use, customization, operational control, repair facilities, crewing, base location, and availability of the aircraft. However, many of my clients acquire aircraft knowing they will need fewer hours but also expecting to charter the aircraft to others to offset fixed costs.

    At the outset of deciding whether to buy a whole aircraft, businesses should determine whether bonus depreciation and other tax benefits may be available and structured to reduce their after-tax cost of ownership and operations. Financing is widely available for whole aircraft at historically low rates. It is important to use aviation experts here as purchase, sale, financing, or leasing transactions are often complex.

    Fractional Share Ownership

    Simpler than owning or leasing a whole aircraft, an owner or lessee of an aircraft fractional share typically commits to a five-year program. A fraction typically corresponds to a certain number of annual flight hours, often ranging from 25 to 300 hours, though some programs instead use number of travel days instead of flight hours. Fractional programs charge monthly management and per-hour flight fees, differ in quality, and provide highly personalized service. Bonus depreciation and/or other federal tax benefits might be available like whole aircraft. A few banks will lease or finance a fractional share.

    Conclusion

    To mitigate Covid-19 infection risk, some families, businesses, and individuals have abandoned commercial aircraft travel for on-demand travel in private aircraft. The five best options for such private aircraft flights consist of charter services, membership programs, and jet or fraction cards, along with purchasing or leasing whole or fractional shares of these aircraft.

    Covid-19 has boosted demand to fly by private aircraft, especially charter services. Perhaps this demand foretells a new era of sustainable growth in private aircraft travel as people realize that these flights not only save time but might also save lives.

    Disclaimer: This blog is not intended to convey, and does not convey, legal or other advice. Each person should consult his or her advisors to make decisions about flying privately, as well as any legal or economic implications, risks, or terms in connection with any such decision.

    This article was originally published by AINonline on July 17, 2020.

  • NAFA Administrator posted an article
    Charter Operations Feel the Impact of COVID-19 see more

    NAFA member, NBAA, shares their latest episode of NBAA Flight Plan regarding the impact COVID-19 has had on charter operations. 

    With business aviation flight operations across our nation and around the globe idled by the COVID-19 pandemic, what options are available to help operators weather this storm and when might we finally see our industry recover? “International travel is absolutely critical, particularly for long-haul aircraft,” notes aviation attorney David Mayer, a partner in the law firm Shackelford, Bowen, McKinley & Norton, LLP. “When you see evidence that, as a whole population globally we have confidence in travel across borders and across oceans, I think you will see business aviation respond fairly promptly.”

    In this episode of NBAA Flight Plan, host Rob Finfrock speaks with:

    • David Mayer, aviation attorney and partner at the law firm of Shackelford, Bowen, McKinley & Norton, LLP
    • W. Ashley Smith, CAM, president of aircraft charter, maintenance and aeromedical provider Jet Logistics

    Listen to Podcast Now

    This article was originally published by NBAA on May 4, 2020.

  • Tracey Cheek posted an article
    FAA Responds to NBAA’s Call for COVID-19 Accommodations on Part 135 Training see more

    NAFA member, NBAA, shares FAA's response to call for COVID-19 accommodations on Part 135 Training.

    Faced with an unprecedented situation driven by the escalating COVID-19 pandemic, the FAA has answered NBAA’s call for the agency to take unprecedented steps to ensure that many charter operators are able to continue flying through the crisis.

    On March 25, the agency issued the following four exemptions in effect through May 31, 2020, and applicable to most Part 135 operators:

    • FAA-2020-0291, exempting Part 135 operators from the requirement that crewmembers don protective breathing equipment or oxygen masks during recurrent and upgrade training, testing and checking.
    • FAA-2020-0292, allowing Part 135 ground personnel and crewmembers to complete recurrent training and qualification activities up to three calendar months after the month that the activity was due to have been completed, for requirements that were due to be completed through May 31, 2020.
    • FAA-2020-0307, exempting Part 119 certificate holders, including some Part 135 operations, from the requirement that crewmembers don protective breathing equipment or oxygen masks during recurrent and upgrade training, checking and evaluation.
    • FAA-2020-0308, allowing Part 119 certificate holders, including some Part 135 operations, allowing ground personnel, crewmembers and dispatchers to complete recurrent training and qualification activities up to three calendar months after the month that the activity was due to have been completed, for requirements that were due to be completed through May 31, 2020.

    “We thank the FAA for its responsiveness to our request for these accommodations to ensure that business aviation operators will be able continue flying through this unprecedented and challenging situation,” said Brian Koester, NBAA director of flight operations and regulations. “As we continue to adapt to the realities of the COVID-19 environment, NBAA will work to ensure our industry is fairly represented in these and other actions taken to maintain our nation’s aviation infrastructure.”

    In issuing these exemptions, the FAA noted that the agency has circumvented the typical publication process in the Federal Register, as “delaying action would have an adverse and potentially immediate impact on [the] continuity of critical aviation operations essential to the public interest.”

    This article was originally published by NBAA on March 26, 2020.

  • Tracey Cheek posted an article
    Hot Topics for Bizav in 2020 see more

    NAFA member, David G. Mayer, Partner with Shackelford, Bowen, McKinley & Norton, LLP, shares the top-five challenges in business aviation for 2020.  

    The U.S. finished 2019 at the top of the world of business aircraft transactions and it is well-positioned to continue its leadership this year. Of course, every year presents important challenges and there are five that I believe will affect many aircraft owners, lessors, lenders, managers, insurance and buy/sell brokers, technical consultants, and other industry participants in 2020. Here are my top-five challenges for this year:

    ETHICAL BUSINESS TRANSACTIONS

    The International Aircraft Dealers Association (IADA) expects its member brokers and other aircraft transaction professionals to abide by professional standards and ethics rules under IADA’s code of ethics. To put its standards into practice, among other steps, IADA admits new members under an accreditation process administered by an independent outside firm.

    IADA is far from alone in its important efforts. By issuing its statement regarding ethical conduct, the National Air Transportation Association (NATA) strongly asserts that every member company should use these guidelines to enforce high levels of ethical behavior, safety, integrity, accountability, and respect for others. NATA urges its diverse general aviation members to use these guidelines to enforce compliance and deter wrongdoing. Further, NBAA published ethical business aviation transactions guidelines to establish core ethics and business conduct standards in transactions between buyers and sellers of business aircraft products and services.

    It’s no secret that some industry participants believe others act outside such ethical guidelines. Still, each person has a new opportunity in 2020 to renew his or her efforts to play by the applicable rules urged on them by their respective associations regardless of inconsistent or questionable behavior of others.

    ILLEGAL CHARTERS

    After seeing the FAA take multiple actions against illegal charters in 2019, you might conclude that illegal charter operations will be unstoppable in 2020. Not so.

    In my experience, most charter and on-demand flight services operate legally, will happily demonstrate their capabilities, and explain how they comply with the FARs. Unfortunately, other operators test the limits or flat out operate illegally in violation of the FARs.

    The FAA focuses on safety and enforces the FARs. Two big buckets of rules in the FARs, among others, cover legal operation of business aircraft: private flight operations under FAR Part 91 and commercial or on-demand flight operations under FAR Part 135.

    A Part 135-compliant operator must obey stringent operational, training, and other rules designed to assure passenger safety. Part 91, not so much; an operator has fewer requirements under the FARs in part because they do not, if in compliance, transport persons or property for compensation or hire as permitted for certified operators under Part 135.

    Anyone, including prospective passengers, can help curb illegal flight operations in 2020 by doing modest diligence on charter operations you observe or might use. For example, as a prospective passenger, you can potentially identify violators, reporting your concerns to the FAA and taking your charter business elsewhere. NATA’s website posts a hotline telephone number for customers or others to report violators.

    One tell-tale sign of a potential problem might appear if the price of a flight is much lower than one provided by another operator. Although that may be good news for your wallet, it might also reveal an illegal operation that lowers its prices to edge out operators that incur higher costs to comply with FAR Part 135.

    If a charter operator tells you, or you discover, that you, and not the charter operator, will exercise “operational control” of the flight, that is a red flag warning of a potential illegal charter operation under the FARs. Operational control means you will be responsible for the initiation, conduct, and termination of the flight (14 CFR 1.1), a position that puts you in the personal liability hotseat should certain things go wrong with the flight.

    For more, NATA and NBAA offer valuable materials on illegal charter operations.

    Although a bit different than illegal charter, I have seen and discussed with many colleagues illegal private operations under Part 91 categorically called “flight department companies.” Often taking the form of limited liability companies (LLCs), LLC members sometimes erroneously believe that the LLC, which has no business enterprise, can operate its aircraft and receive “compensation” from family, friends, associates, or others that “borrow” or “use” the LLC’s aircraft.

    Compensation is a very broad term in the FAA’s view and occurs in many ways, including when passengers share expenses or reimburse the LLC for aircraft operating costs. With very limited exceptions, these flight operations are illegal, prohibited under the FARs, and subject to FAA enforcement action.

    Expect both illegal charter and flight department company operations to be on the FAA’s radar in 2020, likely more so than you have ever seen before.

    BONUS DEPRECIATION AND OTHER TAX PLANNING

    A buyer committed to purchasing an aircraft should make a New Year’s resolution to analyze primary tax aspects of owning, operating, and storing the aircraft, and tax minimization structures, ideally, before signing a letter of intent to buy an aircraft. This analysis should at least cover federal income, state sales/use, and local property taxes to calculate the total tax costs of, or potential tax write-offs with respect to, acquisition and ownership of an aircraft.

    Typically, clients start with questions on claiming 100 percent “bonus depreciation,” which continues to be available in 2020. For this year, the Tax Cuts and Jobs Act of 2017 allows aircraft owners, with limitations for personal use, temporarily to take 100 percent bonus depreciation deductions on new and preowned aircraft against gross income if the taxpayer uses the aircraft in its trade or business or for production of income. (For more, see AINsight: Maximize Aircraft Bonus Depreciation in 2019 and AINsight: 100% Depreciation and Aircraft Personal Use.)

    Early in the buying experience, many buyers also express an understandable aversion to paying any property, sales, or use tax—and often believe they can avoid these taxes entirely. It is imperative to consider recent changes in law and tax rates that came into effect on January 1 and how to eliminate or reduce these taxes.

    To advance your planning, determine the expected storage/hangar location(s), project the use outside of the aircraft’s home state, and consider various structures to lease your aircraft. Also, determine if or when local tax law imposes an annual property tax on the aircraft for possible tax planning relating to the location of your aircraft on that date. Using all this information, talk with your advisors for structures and strategies that may defer, allocate, eliminate, or otherwise minimize the property, sales, and use taxes.

    Once a purchase closes, always keep accurate, clear, complete, and contemporaneous records on relevant tax-oriented facts for all federal, state, and local tax authorities. Don’t wait for an audit letter to update your books.

    ADS-B OUT PRIVACY

    The ADS-B technology mandate, which became effective January 1, has great merit for safety, flight communications accuracy, and other reasons.

    However, private third-parties can—using inexpensive, commercially available receivers—pick up the aircraft’s broadcast of its unique ICAO address and thereby capture information directly from ADS-B transmissions that an aircraft operator might prefer to remain confidential. Such information includes an aircraft’s identification, altitude, GPS positional data, and velocity.

    To address these privacy concerns, ADS-B operators should quickly evaluate and, if using 1090-MHz ADS-B equipment, decide whether to participate in the FAA’s Privacy ICAO Address (PIA) program, starting this month. In December, the FAA established an application process for operators to use and periodically change temporary ICAO aircraft addresses that aren’t tied to an operator in the Civil Aviation Registry (CAR).

    The PIA program is limited to U.S. domestic operations to avoid potential conflicts with other ICAO member states that currently do not offer this capability. That means privacy breaches might still occur on flight operations outside the U.S.

    The PIA program differs from the FAA’s new Limiting Aircraft Data Displayed (LADD) program. Operators that do not wish to allow the FAA to share aircraft data the FAA receives, including tail number, call sign, and flight number, can submit LADD requests via FAA’s dedicated LADD website. The LADD program, which replaces the Block Aircraft Registry Request (BARR) program, does not impact the ADS-B broadcast data, which, as noted, transmits information directly to capable receivers.

    For maximum privacy domestically in the U.S., sign up for both the PIA and LADD programs.

    INSURANCE TURBULENCE FOR OWNERS, OPERATORS, LESSORS, AND LENDERS 

    If you plan to buy or renew insurance coverage in 2020, buckle up. Plagued by years of huge payouts and financial losses, some insurers have exited the market, resulting in reduced liability insurance capacity for all aircraft and much higher premiums (anecdotally, 20 percent to up to 300 percent of 2019 rates).

    The best operators should still be able to maintain or even improve coverage in 2020 at higher premiums provided their insurers agree that the customers have a stellar safety record, outstanding training programs, and experienced pilots with high hours in the type of aircraft insured by the carrier. The story is different for single-pilot, owner/operated aircraft or new pilots who might not be able to find insurance at any price or, if insurance is available, must accept reduced liability limits at higher premiums than in 2019.

    Lenders and lessors might have a different predicament. From transactional activity in 2019, it seems financiers generally required and successfully obtained yesteryear’s high liability insurance limits. In 2020, lenders and lessors may have to ease back on their demands for such high liability insurance levels and concentrate more on property damage coverage.

    In supporting this easing, lenders and lessors can point to a 2018 federal law amendment that might facilitate approving transactions with reduced liability insurance limits. Under 49 U.S. Code § 44112, Limitation of liability, Congress provided a preemptory shield of business aircraft lessors and lenders from personal injury and property damage liability if they do not have possession or control over the aircraft at the time of the accident.

    Customers should contact specialized aviation insurance brokers well before signing a purchase agreement in 2020, to allow much more time than the week before closing to find insurance with the best terms and lowest cost. (For more, see AINsight: Limiting Risk as Liability Insurance Tightens.)

    CONCLUSION 

    Amid the many challenges that business aviation will face in 2020, rather than debate the topics above for long, it is more important to take action now and throughout the new decade for the benefit of clients, customers, and colleagues involved in the business aviation industry. Will you take action and suggest others do too?

    This article was originally published by AINonline on January 10, 2020.

     

  • Tracey Cheek posted an article
    AINsight: Millennials' Shared Use Is a Real Deal see more

    NAFA member, David G. Mayer, Partner at Shackelford, Bowen, McKinley & Norton, LLP, discusses millennials, shared use, and private jet travel.

    Millennials—those ranging in age from 21 to 37 years old this year—have discovered the private jet travel experience, and they like it. With unique attributes, this generation seems broadly interested in on-demand chartering, sharing flights with friends and, to a lesser extent, owning jets and other types of private aircraft—always on their terms.

    Also known as “Gen Y,” Millennials seem to enjoy private aircraft travel “experiences” at an acceptable cost with emphasis on safety, freedom, personalization, efficiency, speed, privacy, customization, and transparency—all couched in a high level of service and luxury. They also crave digital connectivity, mobility, and flexibility to travel when and where they want, preferably arranging private flights on mobile devices.

    Their perception of the benefits of business aviation includes accessibility of aircraft on-demand, the ability of aircraft to save time, and the efficiency of aircraft travel to increase their work productivity.

    Finally, Millennials care deeply about climate change and social causes. They might prefer aircraft operators that demonstrate their environmental responsibility. In fact, the business aviation community has long been committed to mitigating climate change, proven in part by the formation of a broad industry coalition that emphasizes developing and using sustainable aviation fuel (SAF).

    As a generation of roughly 73 million adults, Millennials often have high ambitions. Their top aspiration and priority in 2019, according to Deloitte, is to travel and see the world (57 percent). But their needs and wants are far more than aspirational. Some Millennials have, and others in the foreseeable future may earn or inherit, more than enough money to travel by private aircraft amid their peers who, by one report, now make up nearly half of the world’s super-wealthy, including Millennial billionaires.

    Indeed, Millennials already seem to be altering the business aviation industry by transforming a business aircraft from a product for purchase into a tool for transportation services in their “click and ride” world.

    VIABLE STEPS FOR MILLENNIALS TO ACCESS PRIVATE AIRCRAFT

    What, then, is the right generational, practical, and legal path forward in business aviation to meet the needs and wants of Gen Y? Setting aside the critical issue of selecting the right aircraft for use or purchase, let’s consider two high-level access and legal structures for Millennials to buy, use and share private aircraft along with the corresponding obligations, risks, and benefits.

    First, Millennials can decide, and currently seem to prefer, to experience private aviation travel without commitment to, or investment in, aircraft. They simply prefer to click and ride. Second, Millennials can elect to own or lease a fractional share of an aircraft or a whole aircraft.

    Regardless of what Millennials choose, private aviation is highly regulated. The FAA oversees the safety of U.S.-registered aircraft operations under the FARs, including Part 91 private flights and Part 135 charter.

    Further, now—perhaps more than ever—the FAA is looking for, and potentially taking enforcement actions against, operational and other violations of the FARs. Even with this FAA presence in mind, Millennials can still share ownership or use of aircraft with others or go it alone—as long as they properly structure their arrangements under the FARs.

    The following two use and ownership options work under the FARs:

    • Use only with no ownership commitment—click and ride. Many Part 135 operators do and increasingly will offer charter-based services such as on-demand charter flights (like renting a car), jet cards (types of pre-paid flight debit cards), block charter programs (package of charter flight hours), club or member programs (reduced flight costs for up-front fees). With myriad choices available, Millennials can select flights by criteria that meet their personal life values, economics and travel preferences, including aircraft type, flight sharing, transparency, connectivity, and privacy.

    Although many of the services might be easy and simple for Millennials to use, it is imperative that Millennials do not trade their safety just to pay lower charter fees offered by flying with illegal charter operators. Millennials should do their diligence to identify and steer clear of such legal and personal risks.

    • Own or lease specific aircraft. Properly structured, Millennials, solo or in a group, can take a deeper commitment in accessing private aircraft by leasing or owning an aircraft. Ownership, of course, requires a capital investment in an aircraft unlike the click-and-ride model, which has no ownership component. Banks may want to lend part or all of the purchase price to Millennials or buy and lease the aircraft to them, which frees up cash for Millennial to deploy in other ventures or equities.

    Within the option to buy or lease aircraft, Millennials can buy and finance or lease a fraction or whole private aircraft. Although a large number of financiers compete to finance or lease whole aircraft, relatively few lenders or lessors finance fractional shares.

    Fractional share programs, regulated under Part 91K, offer one good way to dip a toe into the water of aircraft ownership. Fractional shareowners buy and use a certain number of flight hours associated with owning or leasing as little as a one-sixteenth share of an aircraft.  This type of purchase might appeal to Millennials who decide to change their interests from click-and-ride offerings to ownership in an aircraft fleet that, for example, uses newer engines and fuels that minimize an aircraft’s carbon footprint, has an outstanding safety record, or has better connectivity features on the ground and aloft.

    The next step up in commitment is to buy or lease a whole private aircraft instead of a fraction of one. A Millennial might be able to locate and buy an aircraft that adequately meets his or her personal life values and needs, including size, customization, privacy, and technology. Whole aircraft purchases start to make sense when flying at least 200 hours per year. Before then, click-and-ride or fractional programs might work better economically.

    FARS NEVER FAR AWAY

    If Millennials need or want to share ownership or leasing of an aircraft jointly with others, they can legally structure such sharing under the FARs. However, being an owner and an operator might not be the same thing, and a joint operator (either as a joint owner or a joint lessee) under Part 91 can be tricky. For example, as a general rule, no cost-sharing, reimbursements, or other compensation in any form can be conveyed to any operator or owner for any Part 91 flight, other than under very limited circumstances.

    In many situations, receipt of compensation by the operator will convert the Part 91 flight into an illegal charter. However, if correctly structured, Part 91 will allow Millennials to enter into certain joint ownership and leasing arrangements that Millennials can use to accomplish their objectives.

    In contrast, under a bona fide Part 135 flight operation, Millennials can devise their own cost-sharing arrangements under appropriate agreements with much greater flexibility, typically at a higher cost than Part 91 flights.

    Millennials today and in the foreseeable future will have the financial means to use or acquire personal aircraft. Only time will tell whether Gen Y prefers to fly private aircraft as a service free of the ownership risks or lean into the world of aircraft ownership or leasing, alone and with friends, to fulfill life experiences and work objectives. No matter which way Millennials go, the FARs will be right there with them.

    This article was originally published in AINonline on September 13, 2019.

  • Tracey Cheek posted an article
    Three Myths About Business Aircraft Ownership see more

    NAFA member, David Wyndham, Vice President with Conklin & de Decker, discusses the myths about business aircraft ownership. 

    David Wyndham speaks to people who are new to Business Aviation on a regular basis, and also hears some recurrent myths about business aircraft ownership. Following he sets straight three of the more common misunderstandings…

    I tend to help clients select the appropriate aircraft for their flying needs and to cost out the various ways to achieve that. Along the way is the need and opportunity to educate and inform.

    Quite often the decision-maker is informed, but others (perhaps a board member or a CFO) are not. My first task is to listen to, and understand the client’s concerns and then, after validating them, provide answers – or at least a different point of view – for their consideration.

    But what are some of the common myths I hear relating to business aircraft ownership? Let's dive in…

     

    Myth 1: You can Make Money Chartering Your Aircraft

    One client operates a transcontinental business jet. When it’s in for scheduled maintenance, he often uses charter. After seeing the charter bills, however, he wanted to buy a second transcontinental business jet for his backup and to charter it while he was not flying.

    I worked with his aviation manager to find the break-even utilization. When accounting for the acquisition cost as well as the operating costs, there would be a need to fly over 2,000 charter hours annually. Why? There are two parts to the answer:

    First: Charter rates are a relative bargain. While $8,000 per hour to charter a Long-Range Jet may seem like a lot, the operating expenses are significant: The variable expenses of fuel and maintenance alone average about $4,000 per hour. The annual fixed costs, including items such as crew, hangar, insurance, training and airborne internet run to $1.4m.

    A typical charter payback to the owner is 85% of the listed hourly rate, and the owner pays for the aircraft expenses. So on that basis, our $8,000-per-hour charter provides the owner $6,800 per hour. 

    Deducting the $4,000 variable hourly costs leaves $2,800 per hour. To accumulate the $1.4m fixed costs takes 500 charter hours.

    So, after that isn’t it all profit? In short, no. Our owner paid $60m for his global business jet. Current market depreciation is about 7% per year (or a loss in value of $4.2m per year). And that would require another 1,500 charter hours to make the deficit up. Hence our 2,000-hour break-even point.

    Second: Money is not free. Our owner has a cost of capital, or an opportunity cost. If he paid $60m in cash for the jet, he can’t invest that money in his company or other ventures. If you add in a 10% return on capital, there is $6m per year in the lost opportunity of having his money tied-up in the jet.

    He could opt to decrease that up front with an operating lease or a loan, but then his fixed expenses increase. To verify this, look at the financial reports of the airlines: An airline needs to fly between 2,500 to 3,000 hours per year per airplane in order to make a profit.

    There is almost no way an on-demand charter operator can book enough charter to cover the costs of owning their own business jet. When an aircraft owner utilizes a charter operator to charter their aircraft when not in use, both parties can win.

    The charter operator gets the use of a business aircraft without the cost to acquire it. The owner gets some revenues to offset their operating costs.

     

    Myth 2: You Should Focus on Only one Cost… ‘Acquisition’

    Every pilot report and airplane review article mentions three things:

    1. Cabin and amenities;
    2. How far the airplane flies;
    3. Acquisition cost.

    Whenever I do an analysis of costs, I look at the total life cycle cost. This includes not only the acquisition cost, but the operating costs, and disposition.

    While the acquisition cost – less the recovery at resale – is significant, the operating costs can amount to just as much over time.

     

    Myth 3: Operating Costs are Consistent

    At least a couple of times each year I have a client who is shocked when confronted with their maintenance costs. A recent situation involved the owner of a large-cabin business jet. The management company had told the owner to budget $3,500 per hour for fuel and maintenance, yet when they looked at their total expenses for 2018 those items averaged over $5,000 per hour.

    Working through the management company’s reports, while also running our own “should-cost” analysis, we found a cost listed under maintenance for international travel, for which the mechanic accompanied the jet on a multi-week trip overseas. 

    Though this was smart planning, it was not necessarily a ‘routine’ maintenance expense.

    The owner also had an inspection every 2,400 flight hours. They flew less than 300 hours in 2018 and averaged the cost of the 2,400-hour inspection over the 300 hours they flew, not the 2,400 hours it took to accrue the expense.

    In my should-cost analysis the accruals for the maintenance from Conklin & de Decker’s data, adjusting for the cost of fuel, came to approximately $3,600 per hour over time. In any given year, the average for that year varied from about $2,400 to over $7,000 per hour.

    The bottom line is that maintenance costs are cyclical. Unless you are on a guaranteed hourly maintenance program provided by the OEM or a third-party provider like Jet Support Services, Inc., the cost in any given year can fluctuate greatly.

     

    In Summary…

    All of the above misconceptions can be cleared up by listening, explaining and budgeting correctly. It also helps to have someone who understands both the costs and the operation to assist in the understanding.

    More information from www.conklindd.com.

    This article was originally published by AvBuyer on August 19, 2019.

  • Tracey Cheek posted an article
    Owner Personal Liability for Illegal Charter Ops see more

    NAFA member David G. Mayer, Partner with Shackelford Law, discusses illegal charter operations, personal liability and LLCs.

    It’s an unfortunate reality that private aircraft accidents occur all too often and cause fatalities, personal injuries, and significant property damage. In the first half of 2019, fatalities in private aircraft accidents soared to 47 people, an all-time high for comparable periods. Families who experience these losses usually hire lawyers to seek compensation from aircraft limited liability companies (LLCs), members, owners, operators, manufacturers, and others.

    Many aircraft owners believe that, if an LLC holds title to their aircraft, the LLC will protect the owners, as LLC members, from personal liability arising from any accident. This belief extends to any accident that occurs during illegal charter operations. 

    However, their belief may be wrong. As discussed below, just one prevalent type of illegal charter operation may occur if an LLC operates flights only for the owners/members, using the owner/member’s cash, paid into the LLCs for aircraft operating costs. Though surprising to many people, the LLC becomes a “flight department company” operation that not only is functioning illegally but also may be exposing the owner/members’ personal wealth to the FAA civil penalties and other claims.

    Looking into a Real Fatal Accident

    On March 8, 2019, a tragic aircraft accident occurred in Florida that killed five people when the twin-engine Piper Aztec in which they were flying hit the surface of a lake on approach to Palm Beach County Glades Airport (KPHK), Pahokee, Florida. Although yet to be officially determined, the initial facts suggest that the passengers hired the pilot who conducted an illegal charter for unspecified compensation. Though he was certified for commercial flights, the pilot’s required second-class medical certificate lapsed on Nov. 30, 2018, more than three months before the deadly flight. As a result, the pilot could not legally conduct the flight. For more on pilot operations, read my article titled Should Aircraft Owners Worry About Their Pilots?, AvBuyer (Dec. 22, 2017).

    In addition, the aircraft owner, L-Holding LLC, apparently did not meet the certification requirements under Part 119 of the Federal Aviation Regulations (FARs). Further, it did not hold an operating certificate under FARs Part 135 to lawfully conduct the Piper Aztec's on-demand commercial flight under Part 135.

    The Florida accident raises important questions for LLCs and their members that conduct illegal charter operations: Will the LLC, if properly formed, shield the members’ liability from occurrences like the Florida accident or civil penalties imposed by the FAA? In a case like the Florida accident, will the LLC’s insurance provide a defense to civil lawsuits and pay for money judgments? Will insurance respond to FAA civil penalties against the LLC, its members, or the pilot?

    Perhaps the most fundamental question for these members or their LLCs is whether, in today’s heightened enforcement environment discussed below, conducting illegal charter operations is worth risking personal wealth to pay a claimant, the FAA, or the Department of Justice (DOJ), and significant legal costs? A similar question exists for any pilot who may lose his or her pilot’s certificate resulting from illegal flight operations.

    Structuring LLCs to Mitigate Personal Liability Risk

    When properly formed and used, an LLC can maintain the shield afforded to members under various state laws. The laws generally limit the members’ personal liability from the LLC's debts, obligations, and liabilities. Although it is difficult, in the Florida accident or comparable situation, it is reasonable to expect that the claimants will try to penetrate the LLC shield to reach members’ personal assets. This may especially be true in the Florida accident if the families confirm the pilot or the LLC operated the aircraft as an illegal charter.

    Spotting Illegal Charters

    Illegal charters come in many forms as discussed by the NBAA's The Risks of Flying With Illegal Charter Operators. Three examples deserve emphasis here: a Part 135 operator does not comply with the FARs’ safety standards, illustrated by the apparent lapse of the pilot’s medical certificate before the Florida accident; a Part 91 operator enters into multiple timesharing or leasing arrangements that constitute disguised, sham charter operations that should be operated as Part 135 flights; or an often misunderstood or ignored infraction under Part 91 where members provide cash for flight operations in flight department companies.

    Flight department companies, typically created in the form of LLCs, exist and function for the single purpose of owning and operating their own aircraft for the benefit of their members and their guests. Owners pay for the aircraft operating costs through members capital contributions or other cash transfers into the LLC.

    These cash infusions fundamentally convert such an LLC into an illegal “commercial operator.” The FAA defines a commercial operator as one that operates an aircraft carrying persons or property “for compensation or hire.”  Under a flight department company structure, any payment into the LLC constitutes illegal “compensation.” 

    If a flight department company and/or its owner let people know that those people can use the aircraft, operated by the company, in exchange for any cost reimbursement to the company, the second fundamental violation likely occurs. The company is likely illegally holding the aircraft out for “hire.”

    Perhaps surprising to many owners/members, unless and until the companies obtain a Part 135 air carrier certificate, both these operations “ for compensation or hire,” simply put, constitute illegal charter operations.

    For example, think of an LLC member who (1) pays money into the LLC for that member’s flights in order supposedly, in part, to create a liability shield for the benefit of the members; (2) offers a friend that she or he is welcome, at the friend’s expense, payable to the LLC, to “borrow” the LLC’s aircraft, including its pilots, for a weekend college visit; (3) collects fuel costs from a passenger to ride along on the owner/sole member’s ski trip; or (4) flies several golfers to a location for a business meeting but charges passengers non-pro-rata shares of the operating costs.

    Some owner/members don’t realize they have created a flight department company or that the normal functions of the company violate the FARs. Others who do know or receive good advice from aviation counsel about the prohibition under the FARs simply ignore or refuse to obey the rules.

    I have heard of comments such as: “I have been running the airplane reimbursements and flights through my LLC for many years without any issues and don’t plan to change;” or “My friend has used his LLC to operate his aircraft without any FAA problems;” or “The LLC ownership is a good way to block personal liability, and these rules won’t be a problem for me or my company.”

    These Illegal charter operators should appreciate that, in addition to the FAA’s own increased enforcement actions, the FAA has powerful industry allies like the National Air Transport Association (NATA), including NATA’s Air Charter Committee, and the NBAA. NATA’s website, titled Avoid Illegal Charter, provides significant resources to explain illegal charter operations and educate consumers, among others, on the dangers of illegal charter operations. NATA also helps the FAA focus enforcement actions against illegal charter operations while promoting the Illegal Charter Hotline, (888) 759-3581, so anyone can report illegal charter operators.

    Aircraft owners and operators can significantly mitigate their risks by asking knowledgeable aviation counsel to conduct a compliance checkup. In completing this task, aviation counsel can confirm that the LLC ownership structure and operations comply with the FARs or, if not, restructure the LLC and/or operations to bring them into compliance.

    In addition, counsel should examine the structuring of the LLC under state law to maximize the protection of the members with special attention on the exposure of a single member in LLCs.

    Imposing Personal Liability for Illegal Charters

    The best structured LLC may not be enough to protect its members from personal liability arising out of illegal charter operations. If members believe the FAA won’t find them, they should take heed; the FAA and the business aviation industry have intensified their scrutiny of, and the FAA has ramped up civil and criminal enforcement actions against, illegal charter operations. For more, see my blog titled AINsight: FAA Actively Pursues Illegal Flight Ops.

    Owners who believe insurance will cover them regardless of violations should think again. Insurance policies will likely not cover civil or criminal penalties assessed by the FAA or other governmental agencies. Further, as underwriters continue to increase insurance premiums to curb their losses on claims payouts, they also may reserve rights not to insure a non-compliant charter business or flight department company or their members. They may also look for policy provisions, such as warranties and coverage exclusions, to deny policy claims involving illegal charter operations.

    Pursuing Assets of LLC Members for Illegal Charters

    As occurs in all aircraft accidents, the FAA and the National Transportation Safety Board (NTSB) launch investigations into the cause(s) of the accident and regulatory aspects of the flight operation associated with the occurrence. If the FAA imposes civil penalties on the LLC or its members exceeding $50,000, the DOJ enters the fray to enforce those civil penalties under FAA Order 2150.3C. And, as noted above, most families file lawsuits against aircraft owners, operators, and others to secure compensation for their losses.

    Even if insurers defend the insured, violators can still expect to pay significant legal fees in the defense of the claims or FAA/DOJ actions. A recent Texas case may provide the FAA and DOJ with an additional tool for assessing civil penalties directly against the LLC members; in other words, they allow the FAA and DOJ to pierce the LLC shield that prevents members from incurring personal liability for the LLC’s debts, obligations, and liabilities.

    My blog, titled AINsight: Piercing the Aircraft LLC Veil, discussed a 2018 Texas Supreme Court case, Texas v. Morello, in which a Texas water agency sued the sole member-employee of an LLC and the LLC for their failure to comply with an environmental clean-up plan relating to the Texas Water Code. The agency imposed punitive damages and fines on the member for approximately $1 million. After my blog published, Mr. Morello asked the U.S. Supreme Court to hear his argument that the Texas agency did not justify the fines imposed on him personally, thereby piercing the LLC shield. On November 19, 2018, the U.S. Supreme Court refused to hear Mr. Morello’s case.

    Given the U.S. Supreme Court decision, the FAA, the DOJ, and other regulatory agencies could use Morello as a legal basis to tap into personal assets of LLC members to pay for civil penalties as happened to Mr. Morello in Texas. Private claimants might also use Morello to sue members based on legal concepts of negligence per se (liability for violations of statutes and regulations that cause harm), reckless disregard for passenger safety or other similar theories of liability under the state laws that govern the case.

    The objective is the same in all cases – to pierce the LLC shield and collect money damages from individual members. As a Texas state case, Morello may not be a game-changer nationally. However, the FAA and DOJcould potentially use Morello to impose personal liability of members for illegal charter operations, especially when the members flagrantly, expansively and continuously disregard the FARs.

    In conclusion, flight department companies and other illegal charter operators should promptly change course to comply with Part 91, Part 119 and Part 135. The idea is simple: Get certified for charter operations and play by the rules. If they fail to do so, members and their companies not only undermine the regulatory framework designed by the FAA to ensure safety in aviation but also snub the business aviation industry, which expects all operators to do what is right.

    This article was originally published on AINonline on July 12, 2019.