A recent legal analysis provided by AOPA, indicates your CFI certificate (and flight instruction in general) is not directly at risk from the recent Warbird Adventures ruling. However, this decision was an overly broad interpretation targeting a specific case of flight instruction in a P-40, WWII military aircraft. This aircraft was operating in the “limited category” which prohibits flight for “compensation or hire” under CFR 91.315 anyway without an exemption. The FAA ordered this to stop, but in our opinion, applied the wrong enforcement. The FAA has a long legal precedent supporting CFIs *not* flying for “compensation or hire,” but as “educators.” This ruling needs to be clarified immediately. We are most concerned
about the “downstream consequences” of what this could imply in future interpretations for legal liability and regulatory confusion with charter regulations. The ‘obiter dictum,’ a legal phrase for ‘remark made in passing,’ could upset the FAA’s long-standing policy that CFIs are paid for their instructional expertise, not for flying for hire. SAFE sent our objection to the FAA protesting this ruling and we encourage you to copy this, customize it as necessary and send it as well: E-mail to Mr Bahrami here.
We at SAFE, representing over 3600 flight educators, urge the Agency to expedite a final ruling preserving the instructor’s historic role as “educator” and not “charter pilot.” Adopting the broader interpretation implied in this court’s recent decision would create irrevocable harm to our industry and diminish aviation safety.
The FAA’s historic legal position on CFI as “educator” not “compensation for transportation for hire” is very clear:
The FAA has determined that the compensation a certificated flight instructor receives for flight instruction is not compensation for piloting the aircraft but is rather compensation for the instruction. A certificated flight instructor who is acting as pilot in command or as a required flight crewmember and receiving compensation for his or her flight instruction is exercising only the privileges of a private pilot. A certificated flight instructor who is acting as pilot in command or as a required flight crewmember and receiving compensation for his or her flight instruction is not carrying passengers or property for compensation or hire, nor is he or she, for compensation or hire, acting as pilot in command of an aircraft.
This same “CFI loophole” came to mind recently when I was at Sun ‘N Fun observing CFIs flying their students from all over the country to Sun ‘N Fun “for training.” Was the purpose really “flight training” *or* “a trip to the show” in Florida for fun? Can any CFI fly any person anywhere (and charge for it) and designate it “flight instruction?” Can a pilot buy a jet and “give instruction” ferrying people to Florida in the winter? The FAA will probably be defining the limitations for what is legal instruction and charter. As CFIs we should not only protect our rights but also instruct responsibly, clearly following the rules. Fly safely out there (and often)!