First, it’s important to know that the Warbird Adventures case started when the U.S. Court of Appeals for the District of Columbia Circuit was asked to review an FAA emergency cease-and-desist order received by the operator of a limited category aircraft, which was providing flight instruction without an exemption to FAR 91.315. A limited category aircraft is an aircraft not designed to meet current FAA certification requirements; many warbirds fall into this category. The court’s decision declining to review the emergency cease-and-desist order is just two pages.
Below are the most common questions we have heard and our current perspective.
How does the decision immediately impact general aviation?
If you provide instruction for compensation in a limited category aircraft, regardless of who owns the aircraft, you need an exemption from FAR 91.315 to do so. The court’s decision does not differentiate between whether the student owns the airplane or not, so until the FAA officially says otherwise, all training in limited category aircraft requires an exemption.
How will the decision impact GA in the future, particularly flight training?
It’s too soon to tell. AOPA and other associations were involved in this case early because of concerns about potential downstream impacts of such a decision. We filed a “friend of the court” (amicus curiae) brief in late 2020 cautioning the court to avoid using broad language in its decision. Unfortunately, the decision contains an analysis stating that a student paying for flight instruction is “being carried for compensation.”
While the case decision was focused on flight training in a limited category aircraft, this broader language used in the decision raises concerns involving flight instruction in general. AOPA and other associations have asked the FAA to clarify how it views the decision impacting (1) the characterization of flight instruction, (2) flight instruction in limited category aircraft, and (3) flight instruction in other categories of aircraft. AOPA is deeply engaged in the issues—at legal and policy levels—and will provide updates on developments as they occur.
Does the decision mean CFIs and flight schools need a Part 135 certificate to provide flight training?
The decision does not require a Part 135 certificate for flight training. Remember that FAR 119.1 specifically exempts “student instruction” and “training” from certificate requirements.
I’m a CFI—do I have to worry about facing similar legal action if I continue instructing?
Not unless you’re providing instruction in a limited category aircraft without an exemption to FAR 91.315. The Warbird Adventures case revolved around how flight instruction can be legally provided in a limited category aircraft. The court’s decision does not differentiate between whether the student owns the airplane or not, so until the FAA officially says otherwise, all training in limited category aircraft requires an exemption.
It’s also important to note that, before taking legal action against Warbird Adventures, the FAA repeatedly told the operator that it needed an exemption to provide flight instruction in the Curtiss P–40 Warhawk. The operator did not apply for an exemption, continued to use the P–40 for paid instruction, and continued to advertise paid instruction in the P–40 after receiving a letter from the FAA’s chief counsel. These were some of the reasons the court cited for declining to review the emergency order.
What’s next? Is there any sense of timing on when/if the FAA will clarify its interpretation of the ruling?
The FAA is working on clarifications for the flying public but has not specified when they will be released. We are in regular communication with the agency and will report any clarifications as soon as possible.
— by Justine Harrison, AOPA general counsel