Even among seasoned aviation professionals, determining whether a flight must be conducted under the FAA’s stringent Part 135 commercial operating rules or the more permissive Part 91 operating rules is a daunting task. The FAA regulations do not treat all operations equally, with the applicable framework shifting based on the specific facts and circumstances of each flight. Accordingly, even seemingly minor distinctions can carry significant consequences, triggering heightened standards of safety and regulatory scrutiny.
At the center of this analysis is a threshold question: Is the operator functioning as a commercial operator conducting flights under common or private carriage? The answer dictates the applicable regulatory framework, determining whether Part 135 certification is required. Getting the answer wrong can cost a company money—and it can cost pilots their certificates.
As a general rule, common carriage (air carrier flights) and private carriage (commercial operator flights) require the operator to hold a Part 119 certificate authorizing operations under Part 121 or Part 135. Without that certificate, and absent a valid exemption under 14 C.F.R. § 119.1, neither the operator nor the pilot may legally engage in common or private carriage.
Complicating matters, neither “common carrier” nor “common carriage” is defined in the governing statutes or regulations. Instead, both the FAA and federal courts recognize that the concept is derived from common law and must be interpreted through precedent and custom. Thus, when a court issues a written opinion analyzing a statutorily undefined term like “common carriage,” it does more than restate the rule. It evaluates the practical applications in a way that the regulations themselves do not, providing meaningful guidance on how the framework operates in real-world scenarios.
In September 2024, the U.S. Court of Appeals for the First Circuit issued a rare, detailed opinion addressing these issues in Bonnet v. Whitaker. The significance of this opinion lies not in the outcome, but in the depth of its reasoning. The NTSB provides Administrative Law Judges (ALJ) to hear FAA enforcement cases against pilots, and the NTSB board members decide appeals from the ALJs. Courts of appeals review NTSB decisions under a highly deferential standard and typically resolve petitions without extended discussion. Here, however, the First Circuit took the opportunity to walk through the regulations and explain how each is applied in practice.
Bonnet v. Whitaker arose from FAA enforcement actions against two Airline Transport Pilot (ATP)-certified pilots, Luis Bonnet and Carlos Benitez. The FAA alleged that the pilots operated passenger flights in April and May 2019 throughout the Caribbean as air carriers or commercial operators without the required Part 119 certification. The flights were conducted through Benitez Aviation, Inc. (BAI). Mr. Benitez both owned BAI and served as Bonnet’s second-in-command for the contested flights.
After investigating, the FAA issued Notices of Proposed Certificate Action seeking 270-day suspensions of Benitez and Bonnet’s ATP certificates. The FAA alleged violations of multiple regulations, including 14 C.F.R. §§ 91.13(a), 119.5(g) and several Part 135 training and qualification requirements. The NTSB ALJ and the board upheld the suspensions, and the pilots subsequently petitioned the First Circuit for review. Ultimately, the First Circuit denied the petition, concluding that substantial evidence supported the FAA’s findings and that the sanctions imposed were reasonable.
The court’s analysis centered on the core elements of common carriage. The First Circuit recognized that although not binding, the FAA’s definition of common carriage, set forth in Advisory Circular 120-12A, aligns with common law principles. Under the FAA’s framework, common carriage requires: (1) holding out; (2) a willingness to transport persons or property; (3) transportation from place to place; and (4) compensation. The First Circuit used this four-part test to analyze the petitioners’ actions.
The court quickly disposed of common carriage’s transportation element, noting that the record established that passengers were transported from place to place. The validity of the FAA’s enforcement action therefore turned on two issues: whether the operators engaged in “holding out” and whether the flights were conducted for compensation.
The court first addressed the element of “holding out.” Because neither the statute nor the regulations define the term, the court again relied on common law principles. The court reasoned that holding out does not require formal advertising and that it was sufficient that the operator becomes known as willing to provide transportation for hire. In one instance, a passenger learned of BAI through a workplace conversation and was directed to contact the company for charter services. The First Circuit concluded that this type of reputation-based referral satisfies the holding out requirement. A pattern of conduct demonstrating a willingness to serve members of the public, even without formal advertising, is sufficient.
However, the court added a caveat: A finding of “holding out” was not necessary to establish that the flight was required to be operated under Part 135. A private carriage flight that does not qualify for an exception under 14 C.F.R. § 91.501(b) is still required to be operated under Part 135 because the operator receives compensation.
The court next addressed whether the flights were conducted for compensation or hire. The petitioners argued that passengers were billed only for operational costs and that no profit was generated. The court rejected the argument, emphasizing that compensation does not require profit. Payments that cover costs are sufficient to satisfy the “for hire” element.
The petitioners also argued that they were not personally compensated because payments were made to BAI rather than directly to them. The court rejected that position as well. Once a flight is determined to be operated for hire, the court does not care who cashed the check. The First Circuit determined that the pilots were compensated through their employment, and even reimbursement of expenses alone was sufficient to establish compensation.
Finally, the petitioners argued that they lacked knowledge that the flights were operated under Part 91 and that a line pilot should not be held responsible for its employer’s failure to operate under the correct regulatory framework. The First Circuit admonished the pilots for shirking their responsibilities and was unimpressed by the pilots’ decision to not “ask too many questions” about the passengers because they were “rich people.” The court cited 14 C.F.R. § 91.3, Responsibility and Authority of the Pilot in Command, adding that the petitioners cannot avoid their responsibilities by “sticking their heads in the sand.”
The court ultimately upheld the FAA’s enforcement action, concluding that the record supported findings of both holding out and compensation. The opinion also clarified that even if holding out had not been established, the flights would still qualify as commercial operations subject to Part 135 because they were conducted for compensation.
The practical value of the opinion lies in its clarity and application. Bonnet v. Whitaker reinforces the common carriage test as a fact-driven inquiry and illustrates how broadly the elements of holding out and compensation can apply. Operators who assume that informal referrals or cost-based billing automatically falls outside of Part 135 do so at significant risk. Notably, the First Circuit’s opinion also reflects the substantial level of deference courts afford to the FAA and NTSB in technical, fact-intensive matters. In an area where the regulations leave room for interpretation, this type of guidance may be the difference between compliance and costly enforcement exposure.
Kent S. Jackson is founder and managing partner of Jetlaw. He has contributed this legal column to BCA since 1998 and is also a type-rated airline transport pilot, flight instructor and repairman.
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