The federal government has been hemming and hawing for a long time, and now it appears poised to take action. Specifically, I’m talking about the Part 135/380 loophole that has allowed companies like JSX, Aero, and Contour to flourish. This may sound like bad news for those airlines, and for some it will be. But this isn’t as straightforward as it may seem.
Before we even start, a brief tangent. I have to defend my use of the word “loophole.” This is clearly a loophole, but that doesn’t mean it’s not absolutely, completely legal. See, up until the mid-1990s, any flight with 30 seats or less could operate under the less restrictive Part 135 regulations instead of Part 121 rules the big guys must follow. In the 1990s, they lowered that number to 9 seats for scheduled flights, but it did not get changed for public charters.
What has happened is companies like JSX have found very clever ways to take advantage of this. JSX is just a marketing company that actually charters planes from Delux Public Charter, LLC. Both of these companies are under the same ownership. It’s just a game that has to be played for it to be considered a charter. JSX can then sell seats on that charter to the public. Except for those who pay attention to the fine print, it looks exactly the same.
Why bother going through this silliness? Each airline has a different reason. For JSX, it’s primarily about having the ability to operate out of private terminal areas, not in the passenger terminal at any given airport. It can also serve airports that don’t have passenger terminals, like Scottsdale (AZ) or Boulder (CO).
For Contour, it’s more about being able to hire pilots under less strict rules. The minimum number of hours to fly as a first officer drops in Part 135, and the Part 121 mandatory retirement at age 65 doesn’t exist.
This is what led SkyWest to try to start SkyWest Charter so it could get more pilots and operate to small cities. So far, the feds have failed to act on that application, and it’s pretty ridiculous that it has been held up so long.
The most threatened big airlines have put up a fight against this, most notably American and Southwest. And it appears they’ve gotten traction. I don’t think the safety arguments are good or fair here, but there is something to be said for consistent regulation.
The reality of the situation is that it is rather stupid to say that it’s perfectly safe for a passenger to fly on a 30 seat airplane under one set of rules if it’s a public charter and another if it’s a regular scheduled airline. To the passenger, it seems no different at all. This loophole is confusing and should be closed.
Now, if I had my way, I’d rather see it closed by actually returning to the 30 passenger limit on charter and scheduled service, because that market is virtually dead except for these loophole airlines. But it would seem that the feds are going with a more complex approach.
The FAA says it is looking into this in a two-part way. First, it wants to close the loophole. Then, it wants to possibly open it back up.
On closing the loophole, the FAA says it is going to initiate a rulemaking. On this “…the effect of this proposed rule change would be that public charters will be subject to operating rules based on the same safety parameters as other non-public charter operations.”
So this goes in the other direction and would force everything down to 9 seats. I’m not a fan. But it wants to offset this with the second part.
Additionally, because of our dedication to expanding air service to small and rural communities, we will explore opportunities to align aircraft size and certification standards with operational needs for small community and rural air service. Specifically, the FAA will convene a Safety Risk Management Panel (SRMP) to assess the feasibility of a new operating authority for scheduled part 135 operations in 10-30 seat aircraft.
Talk about tying yourself in knots. It’s not safe to have this loophole for public charters, but then again, maybe it’s safe enough if there’s no other option? What a weird way to approach this, but that’s politics for you. After all, those small cities have votes, and just shutting off the loophole could be very problematic. For example, here’s a map I put together showing the SkyWest markets that had been abandoned during the pandemic due to the pilot shortage.
ap generated by the Great Circle Mapper – copyright © Karl L. Swartz.
See all those routes picked up by Contour? It’s because that airline uses the Part 380/135 loophole and can get pilots because of it. Southern Airways Express only flies 9 seaters, so it has the same ability to hire pilots. Is it better to serve those cities or not? On the other hand, there’s Denver Air Connection which operates Part 121, and it has its own Part 135 operation to feed its pilot pipeline. There are a lot of ways to tackle this, but none solves every problem. That’s what the feds have to balance.
You would think this would be very bad news for JSX, but it is trying to keep a stiff upper lip, ignoring the first part and focusing on the second. The airline gave me this lengthy statement:
JSX supports the Federal Aviation Administration’s efforts to maintain the safety of civil aviation and applauds FAA Administrator Whitaker’s plans to evaluate a new operating authority for certain Part 135 operations. More than half of JSX’s public charter markets operate in airports that are not served by large network airlines, yet there are thousands more airports – funded by the American taxpayer – that remain inaccessible to the vast majority of Americans unless they have the means to afford private jets. As the country’s largest public charter air carrier, JSX has modeled the way forward for safe, secure, and reliable regional operations under Part 135 since inception and, with intent to take delivery of up to 332 hybrid-electric airplanes from 2028, aligns with the Biden Administration’s call to encourage competition and innovation in air travel. We eagerly look forward to collaborating with our regulators to cement the importance of public charters and expand access to vital air connectivity in the future.
So, there’s that. Now this is a bit of a trick, because yes, it does operate to a lot of airports not served by other airlines, but they happen to be very close to big city airports. For example, Concord is 30 miles from Oakland, Boulder is 30 miles west of Denver, Scottsdale is 20 miles north of Phoenix, Destin is 25 miles south of Fort Walton Beach, and Opa Locka is a mere 8 miles north of Miami.
Would the FAA look at that as providing valuable regional service? It’s a far cry from places like Fort Leonard Wood or Joplin, Dodge City, or any number of other places that are nowhere near a big airport. Clearly JSX will be trying hard to argue in favor of a broader definition.
At this point, nothing has been decided, and it’ll take some time to go through the regular government process. But the general path appears to be set. The question is now surrounding how much leeway the feds will provide in the end.
31 comments on “Closing the Public Charter Loophole Isn’t as Straightforward as It Sounds”
The pilot shortage is effectively over, so timing wise, it might end up being a nothing burger for Contour, particularly since they’re almost exclusively EAS. I know, regionals are having a hard time filling the left seat … but the legacy and LCC hiring bonanza is slowing to a trickle, and will reach a more moderated pace as new airframes are activated. That will stick regional CAs in their positions longer – probably way longer, since the 26-year olds hired by the legacies and WN the past two years will fill the seniority ranks for four decades. All the while, the tens of thousands of flight school students currently in training, or working as CFIs, will hit 1,500 hours without any job prospects, but loads of debt (seriously, this is shaping up to be a massive problem – anyone who has tried to get flight review or additional rating and been turned away due to flight schools being too busy can tell you this). All of a sudden $19K a year to fly for Contour or Southern will seem awfully appealing.
History, it just keeps repeating itself.
I’m trying to keep an open mind, but I have yet to see a cogent argument as to why these flights on smaller planes are “unsafe” or even “less safe [compared to, say, RJs & mainline aircraft] enough to matter”. All else equal (and it never is), smaller airplanes will (usually) be much less safe (on a pax/tonne trip or pax/ton-km/mile basis), but even very small (say, 9-30 seat) planes flown by full-time pilots (not private pilots flying less than a few hundred years as an expensive hobby) in the US are VERY safe.
When it comes to hand-flying a plane marginal weather to a safe landing, or even when it comes to the judgment & experience involved in dealing with bad weather, I’d argue that pilots flying the 9-30 seat planes often have better and more recent experience (simply by virtue of making so many takeoffs, landings, & flight hours in/under the weather) than a senior 777 captain at the top of the seniority ranks who makes 5x as much but who only flies a handful of roundtrips across the ocean a month. I’m not knocking the flying/judgment abilities of senior airline pilots at all, just pointing out that flying a Dreamliner for fewer than a dozen flight segments a month is a VERY different experience (and requires a somewhat different skillset) than flying a Metroliner for a dozen segments a day.
I don’t really agree with the “fairness” argument either, but I think there’s a better case to make for that, and at some point you do have to draw the line somewhere regarding what what/how extensively you regulate, especially in aviation.
As with most things involving rare, highly publicized & impactful events, this ultimately comes down to politics & public perception. If airlines like JSX, Aero, & Contour really want to “win” the battle enough to stay in business, they need to mobilize the political power of their customers.
The issue most people have with this is not safety. It’s the ridiculousness of lowering standards, not based on need, or number of passangers, but because ofnthe legal fiction of a company chartering itself.
When you buy a ticket on AA and wind up flying on PSA or Piedmont to connect to a flight operated by Japan Airlines (with a 250 hour FO) is that also a legal fiction?
PSA and Piedmont are have the same Part 121 pilot requirements that American Airlines does. JAL does not because they’re not a US airline.
No not at all. Where is the legal fiction there? Do you see a problem with one airline selling another’s flight?
This goes back to 1952, when the CAB exempted airlines flying aircraft of less than 12,500lbs max takeoff weight from oversight. This is the origin of “Part 298”
In 1972, this was lifted to 30 seats and less than 7,500lbs max payload (not weight of the aircraft). The CAB was economic regulation, but my understanding is the FAA went along with it on the safety side too.
In the 1990s, there were some very large 19-seat operators, Mesa was huge in this area – had over 200 19-seat aircraft. 19-seat operations had a not-great reputation. So the boom was lowered and because they now had to operate to Part 121 standards, most 19-seat operators went out of business. Some took an agonizingly long time to die, but most went out of business (e.g. Great Lakes).
The loophole is silly, but so is the 1500 rule. I’d swap it in a heartbeat for significant, prolonged mentorship, which is quite accidentally what they’ve done! These loopholers are hiring age retired Captains and setting them up with novice copilots.
Killing the loopholers, it that’s what this leads to, would hasten a major restructuring of US air services. Small airlines must generate pilot experience faster than majors can hire it away. The more small airlines there are, the more experience gets generated at that entry level. 2024 has been a pause, but the retirement peak is still through the early 2030s.
There’s an opportunity here to create new experience and mentorship requirements between 10 and 30 seats and generate the FOQA data that would allow a meaningful analysis of their efficacy compared to 121 rules. I hope they take it.
On JSX, another attractions of Part 135 operation is it allows them to use airports that are not Part 139 (the certification an airport needs to accept commercial operations).
Scottsdale is not usable by Part 121 airline – it’s not Part 139 certificated – whereas Boulder is. In theory, a JSX regulated to Part 121 standards could still operate at Boulder, it would just need to create a little commercial terminal (which Allegiant long ago proved could be done within the confines of a triple-wide trailer or two – so for JSX, a very nice triple-wide trailer).
But a Part 121 JSX could not operate at Scottsdale, unless Scottsdale upgraded to Part 139 and that ain’t gonna happen.
A regulatory apparatus that pushes passengers to fly in a 9-seat single-engine Cessna 208 instead of a 30-seat twin-engine ERJ in the name of safety is obviously questionable.
Like maybe you can justify it by saying “all Part 135 operation is inherently more dangerous, and this regulation limits the size of the market to reduce the number of affected passengers”. But even then, it seems like a distant second-best.
We (Americans) respond to body counts. It’s the reason Sully has a museum and the we still don’t know who landed that 208 in IMC on a road outside of IAD with barely a scratch.
What makes the US so different to other countries in this area? Some level of coordination is required to ensure our crews can operate in other countries airspace, and we reciprocate in those arrangements. Why can’t we all learn from one another? Yes, a two way street, but lessons to be learned.
Then again, if we can’t get our government departments to agree on regulations, what chance is there to agree with other countries?
But we have ICAO, IATA, and others…..
If it’s not invented in my back yard, I won’t play with you!
Oh, dear……
> The loophole is silly, but so is the 1500 rule. I’d swap it in a heartbeat for significant, prolonged mentorship, which is quite accidentally what they’ve done! These loopholers are hiring age retired Captains and setting them up with novice copilots.
That’s a great way to put it. I agree on the ridiculousness of the 1500 rule, as it doesn’t account for the breadth & quality of the hours (1500 hours flying the same type of plane to the same handful of airports in good weather is far less true skill-building experience than 1500 hours of flying different types of planes in all kinds of weather and to a wide variety of airports).
More fundamentally (and thinking beyond aviation), how can those early in their careers best develop the experience, skill, & judgment required to succeed, beyond just what is easily measurable (such as the ability to pass a test or getting X time in their position or X hours of work experience)? I don’t know the best answer to that, and I don’t work in aviation.
However, I will say that the “What did I do well? What would I do differently next time? How else could I have approached this situation?” types of coaching conversations with managers and mentors are quite useful for many people (myself included). I’m not sure how one can best measure/mandate those relationships & conversations, but those conversations should certainly be a key part of development plans, not just in aviation but in many industries & career paths.
I agree here very much,
I would assert that a pilot spending 1,000 hours flying real passengers on scheduled routes in real world conditions is far superior training than spending 1,000 hours doing the same maneuvers in the same spots in the same plane over and over.
It’s my understanding that we still rely on log-books to determine hours. It would seem that, by now, we could completely automate this.
Pilot tracking, in general, seems way behind the times. The crash of that Amazon flight in Houston appeared to reveal that one of the pilots had had a lot of issues and his latest employer wasn’t aware of it. It was surprising to learn that there was no industry or FAA database where this stuff is centralized. (bear in mind, tracking of pilots would cause some people to freak out over big-brother issues – my view is, tough sh*t, this is a safety issue).
But back to pilot logbooks. You could see issuing some kind of scannable ID to pilots to be matched to whatever they’re flying – i.e. you scan into the aircraft that you’re flying, it knows you’re there, right seat/left seat, there’s a record entered into an FAA database. Pilot Jenny Pilotface flew aircraft Acme Jet 123 serial whatever, from here to there, in the left seat. I mean, heck, the ADSB returns from the flight and the ATC conversations could also be saved for the flight in the same database, it would all be there, a pilots entire career. I realize that some would see this this as a big brother nightmare, I could see ALPA freaking the **** out, but this is something that’s technically possible today. You want to review Jenny’s flight on January 23, 2024 – there it is, the FAA can look at it at any time, Jenny can look at it at any time, anyone she authorizes can (e.g. current and any potential employer) look at it.
Hours get calculated automatically. And then you can run statistics on it – hire people with particular kinds of profiles. So you can make judgments about how valuable someone’s 1000 or 1500 hours are.
This is all perfectly possible today technically.
It’s not a big enough problem to bother solving, though. The logbooks just aren’t that big a deal vs. all the other paperwork and process in the aviation industry.
The fact that an aircraft crashed because one employer didn’t know a pilot had issues at prior employers suggests that we do, in fact, need such databases.
I’m not familiar with the types of databases for pilots and what employers can/do share in them, or how much airlines check & verify flight hours & work history for potential hires.
However, for truckers there are databases that show failed drug tests. Why not have similar types of databases for pilots, where employers voluntarily report the flight hours that a pilot flew each month or year? Companies are certainly tracking (and maintaining internal databases somewhere) of hours each pilot flies, both for pay and compliance purposes.
Alternatively, upon (or after) leaving a company, can a pilot request a report on company letterhead showing the hours that they flew each month for the company? As another way to do it, as part of the employment verification process, can a pilot give new/future employers written permission to ask their past employers directly about the flight hours flown for that employer, along with the usual permission to verify past employment start/end dates?
That’s how I would do it as an outsider, and if I were a pilot (where hours flown are a big deal), I’d be maintaining my own personal collection of evidence (such as paystubs) to support my logbook claims.
Nobody seems to be focusing on lack of TSA with these operators. That is where their advantage lies. It would be easy to take over a JSX rj and fly it into the Staple Center or the MGM in Vegas. No consistency in security is an advantage and security risk.
Wrong about lack of security…
From the JSX web site:
– Being the first public charter operator to use TSA Secure Flight, the same TSA-provided background check process the major airlines use.
– We are rolling out an enhanced security protocols across our stations powered by Evolv, a state-of-the-art detection device that maintains the seamless security experience you expect from JSX.
That’s great that JSX is doing that, but not so great if it’s just up to them. In other words, regs should insist that any airline in that situation do this.
JSX has walk through weapon/density detectors. They also ETD swab every bag and are subject to random searches. Same background/name checks done through TSA. I would argue JSX is probably better as each passenger is getting a personal screening.
Good point about the personal screening.
I haven’t flown JSX or the other brands mentioned in this post, but in my anecdotal experience it seems like the chance of a pax getting a “random” search is much higher when flying out of a smaller airport (think: Green Bay, WI, many of the Allegiant airports, or any small town airport with fewer than 15ish flights per day). The smaller airports may not have the most advanced screening machines, but as a pax it almost feels like they have to justify the 4 or 5 people at the security checkpoint.
Maybe the screeners just get a bit bored, or maybe they aren’t under the implicit pressure to get pax through the line like their counterparts at the hub airports with big security lines are, but nonetheless I definitely get flagged for searches much more often at the smaller airports, and sometimes the smaller airports will catch things (like bottles of water) that the bigger airports miss or ignore.
@Kilroy: I spend a lot of my time flying in/out of small airports (many of them EAS…. and I’ve flown 75% of Contour’s route system and most of the rest when it was under other operators). The small airports sometimes don’t have the millimeter wave or some of the more advanced imaging machines. So it’s just the walk-through and the 10-years-ago generation of bag scanners. Regardless of size of airport or number of passengers screened, TSA still requires certain testing and certain protocols/secondary searches that have to be done every day. So you have essentially the same finite number of “tasks” to complete but fewer specimens (passengers). But as anything else you also have screeners who while trained to the same standard as large airports (and possibly more so given their local training is more one-on-one) have less experience in total number of items screened so things, like for me a battery pack that will recharge my laptop twice and my phone 5 times, seen more often in larger airports are more likely to bring extra scrutiny. Nothing wrong with that.
And you are right about the implicit pressure of throughput. Sometimes at the smaller airports it’s just one person at a time going through the whole process – I flew out of a small airport in Montana last week where there were just 5 of us boarding… we went through security one at a time and sat in chairs against the wall behind the TSA folks, then when time for boarding they escorted us back through the waiting area pre-security and outside to the plane. They also don’t have the urgency from passengers because the plane isn’t leaving until everyone is screened at these places.
They have to have a minimum of a male and a female at the checkpoint. I’ve seen operations with just that. Ideally for a 30 seater or up they’ll have 4-5 including a supervisor which would staff one person at each distinct stage of the screening process.
Thanks for the additional information. What you said about the “same finite number of ‘tasks’ but fewer specimens (passengers),” as well as the relative lack of experience with the less common items in their particular airport*, makes a lot of sense.
* “In their particular airport” is key there. I’d wager that the airline personnel and checked bag screeners at an airport in hunting country (say, Missoula, MT) know the protocol for dealing with checked firearms far better than the folks at LGA do, and are much more experienced at it, but the reverse may be true for large battery packs or TV/film cameras.
I used to fly to MKG (in one of CF’s pics above) and those TSA agents offered a free colonoscopy to each of the <100 passengers per day that passed through
Stop calling it a loophole
Brett: AA and WN weren’t the source of this. What this is about is the Biden Administration pandering to labor unions (remember Biden walking a UAW picket line?), in this case ALPA. The whole thing started in Summer 2022 when ALPA filled an objection to SkyWest Charter’s DOT commuter application on this so-called “safety” basis — see ALPA’s 7/8/2022 filing in Docket DOT-OST-2022-0071. ALPA’s lobbyists kept the pot boiling and other unions jumped on the bandwagon . . . as did AA and WN when they saw blood (especially JSX’s blood) in the water. ALPA, AA and WN . . . as they say, politics makes strange bedfellows.
JSX started putting out an affordable superior product and flyer experience that threatened siphoning high value revenue PAX from the big airlines. ALPA was just one tool used to fire a shot across the bow and rattle the FAA cages.
In an ironic twist Skywest Charter has focused on traditional charter service and found themselves very busy in the 30-50 seat charter arena.
I have flown JSX once from Phoenix (Sky Harbor) to Boulder (the old Jefferson County Airport) and was totally impressed with the whole shebang,. Frankly, it is too bad that JSX routes are in the sunny states. No matter where I am going, I check first to see if JSX goes there. Most of the postings on this story have been “inside baseball” type but not from people who fly on JSX and others. JSX offers a superior service because there are fewer people to deal with and the whole place is full of smiles from workers to passengers. I know JSX has switched from Sky Harbor to Scottsdale which makes it even easier to fly them.
The ruling this week by SCOTUS taking out the Chevron precedent likely cripples the FAA regarding any rule making or executive orders. It would now take a law passed by Congress to make this change. For those unfamiliar with it this ruling basically cripples government agencies from making decisions on laws passed by Congress unless they are specifically defined. Great move for business and will take away the ability of many agencies to impose their political will on companies