SHARING THE SKIES: THE LEGAL STATE OF 'FLIGHT-SHARING' AFTER FLYTENOW AND CURRENT REGULATORY ISSUES WITH LYFTING THE SHARING ECONOMY OFF THE GROUND

摘要

Although the D.C. Circuit made the right call in Hytenow, the result is a mismatch of regulations that have no place governing modern circumstances. Even if the D.C. Circuit would have reached the deference issue, under thirty years of Supreme Court precedent, the crazy house of administrative law mirrors remains highly disjunctive and perhaps too deferential under Auer. Only Congress or the agencies themselves can cure the problem. At a time where a whole new set of regulations will be necessary to come remotely close to keeping up with changes in technology and economy, the judiciary has effectively tied its own hands. The implications for aviation start-ups are obvious. The concerns of other start-ups are looming. Most alarming and far-reaching, however, Hytenow signals an inability of regulators to keep up with rapid innovation. For example, Uber has recently become the subject of similar legal debate regarding its status as a potential common carrier.234 Though mostly theoretical before, heightened liability could become a reality for ride-sharing companies under the Flytenow decision.235 Uber should especially take note, as it has announced plans to enter the aviation and private aircraft space, recently completing a deal with AirBus to carry out the design and implementation.236 It may be years before this plan takes off. Nonetheless, Flytenow should alert observers that the FAA (1) is still relying on thirty-year-old definitions in their foundational standards; and (2) may not be ready or willing to regulate such a drastic shift in consumer air travel. Time will tell. But for now, "sharing the skies" floats as a pipe dream of decades past.