The term refers to a commercial transportation enterprise that "holds itself out to the public" and is willing to take all comers who are willing to pay the fare, "without refusal." BLACK'S LAW DICTIONARY 226 (8th ed.2004). Some courts have allowed that holding out on an all-comers basis to a limited segment of the public might be enough to qualify as a common carrier. See Woolsey v. Nat'l Transp. Safety Bd., 993 F.2d 516 (5th Cir.1993) (concluding that an air carrier had acted "as a common carrier" in offering services pursuant to negotiated contracts to members of the music industry because it had "held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately"). But whatever the particular test, some type of holding out to the public is the sine qua non of the act of "provid[ing]" "transportation of passengers or property by aircraft as a common carrier." 49 U.S.C. § 40102(a)(25), 41101.
Flytenow would satisfy the requirements here as the pilots on the site HELD OUT to a DEFINABLE SEGMENT OF THE PUBLIC and were willing to TAKE ALL COMERS WHO ARE WILLING TO PAY THE FARE. There is no mention of profit. The argument of whether or not profit is a requirement is an interesting one but, ultimately, is not relevant due to the below.
In addition, you misrepresent the Court's ignoring of the question by quoting only a portion of the text:
In its reply brief, Flytenow raises a new line of attack
against the Interpretation, contending that it must be set aside because the FAA’s definition of common carriage
contravenes the common-law definition. “Ordinarily, we will
not entertain arguments or claims raised for the first time in a reply brief.” Forman v. Korean Air Lines Co., 84 F.3d 446, 448 (D.C. Cir. 1996). As we have explained, considering
such arguments “is not only unfair to an appellee, but also
entails the risk of an improvident or ill-advised opinion on the legal issues tendered.” McBride v. Merrell Dow & Pharm.,
18 Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal citations omitted).
In its opening brief to this court, Flytenow did not contest
the FAA’s definition of common carriage. To the contrary, it
invoked the FAA Advisory Circular’s articulation of the
FAA’s understanding of common carriage. See Br. of
Petitioner 6 n.6, 11, 25. Thus, in its response, the FAA did
not defend its Interpretation on the ground that its definition of common carriage is in keeping with the common law, aside from making passing reference to a decision in this court that noted the common-law pedigree of “common carriage.” See Br. of Respondent 30 (citing CSI, 637 F.3d at 415). We therefore do not consider Flytenow’s argument that the FAA’s decision contravenes the common law. That argument is forfeited.
As you can see, the question is ignored because Flytenow was attempting to append the argument after the fact. If Flytenow had argued the common law definition originally then the Court may have had to rule in a different manner.
In other words, the Court got it right and Flytenow screwed up.
Since its opening brief, Flytenow maintained that common carriage was a common law term. The FAA introduced a distinction between common law and their own interpretation of common carriage, to which Flytenow responded to in its Reply.
In any event, the FARs are dispositive on the issue: "Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit." See definition of commercial operator, http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=14:1.0.1....
Comments
Per the CSI Aviation Services case:
The term refers to a commercial transportation enterprise that "holds itself out to the public" and is willing to take all comers who are willing to pay the fare, "without refusal." BLACK'S LAW DICTIONARY 226 (8th ed.2004). Some courts have allowed that holding out on an all-comers basis to a limited segment of the public might be enough to qualify as a common carrier. See Woolsey v. Nat'l Transp. Safety Bd., 993 F.2d 516 (5th Cir.1993) (concluding that an air carrier had acted "as a common carrier" in offering services pursuant to negotiated contracts to members of the music industry because it had "held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately"). But whatever the particular test, some type of holding out to the public is the sine qua non of the act of "provid[ing]" "transportation of passengers or property by aircraft as a common carrier." 49 U.S.C. § 40102(a)(25), 41101.
Flytenow would satisfy the requirements here as the pilots on the site HELD OUT to a DEFINABLE SEGMENT OF THE PUBLIC and were willing to TAKE ALL COMERS WHO ARE WILLING TO PAY THE FARE. There is no mention of profit. The argument of whether or not profit is a requirement is an interesting one but, ultimately, is not relevant due to the below.
In addition, you misrepresent the Court's ignoring of the question by quoting only a portion of the text:
In its reply brief, Flytenow raises a new line of attack against the Interpretation, contending that it must be set aside because the FAA’s definition of common carriage contravenes the common-law definition. “Ordinarily, we will not entertain arguments or claims raised for the first time in a reply brief.” Forman v. Korean Air Lines Co., 84 F.3d 446, 448 (D.C. Cir. 1996). As we have explained, considering such arguments “is not only unfair to an appellee, but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.” McBride v. Merrell Dow & Pharm., 18 Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal citations omitted).
In its opening brief to this court, Flytenow did not contest the FAA’s definition of common carriage. To the contrary, it invoked the FAA Advisory Circular’s articulation of the FAA’s understanding of common carriage. See Br. of Petitioner 6 n.6, 11, 25. Thus, in its response, the FAA did not defend its Interpretation on the ground that its definition of common carriage is in keeping with the common law, aside from making passing reference to a decision in this court that noted the common-law pedigree of “common carriage.” See Br. of Respondent 30 (citing CSI, 637 F.3d at 415). We therefore do not consider Flytenow’s argument that the FAA’s decision contravenes the common law. That argument is forfeited.
As you can see, the question is ignored because Flytenow was attempting to append the argument after the fact. If Flytenow had argued the common law definition originally then the Court may have had to rule in a different manner.
In other words, the Court got it right and Flytenow screwed up.
Since its opening brief, Flytenow maintained that common carriage was a common law term. The FAA introduced a distinction between common law and their own interpretation of common carriage, to which Flytenow responded to in its Reply.
In any event, the FARs are dispositive on the issue: "Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit." See definition of commercial operator, http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=14:1.0.1....