What You Should Know about Public Charter

If you live in one of the many places in the U.S. that are not well-served by the airlines, so-called “public charter” may be an essential mode of transportation for you. Public charter is a well-established, if somewhat esoteric, program introduced over 45 years ago by the predecessor of the Department of Transportation (DOT) in Part 380 of the U.S. Aeronautics and Space regulations. Surprisingly, however, the program has experienced unusual challenges lately.

Here's how the program typically works. A public charter operator (PCO) contracts with a direct air carrier—which can be an "air taxi operator" registered at DOT and operating under Part 135, a “commuter” carrier, or even an airline—to operate a specific flight or flights. Acting as an “indirect air carrier,” the PCO negotiates a trip’s parameters (including departure and arrival airports and departure time) with the direct air carrier and then sells seats to the public, often by posting the flight schedule on websites. The economic risk of unsold seats lies with the PCO.

Public charter is sometimes referred to as “charter by the seat” because it provides access to flights on a per-seat basis rather than requiring passengers to charter an entire jet. By providing air transportation to remote communities and other places with little or no airline service, public charter not only serves business and recreational needs; it is also available for medical and other emergencies. As electric vertical takeoff and landing (eVTOL) aircraft become popular, public charter may find a market in highly populated areas as well.

Who operates public charter flights? Though the regulations permit a direct air carrier to obtain authority from DOT to act as a PCO, in many cases the PCO does not operate the flights and is not as such regulated by the FAA. Instead, by selling seats on a flight it has arranged with a direct air carrier, the PCO is responsible for providing the passengers with the transportation (as well as any other accommodations that are part of the transportation package). The direct air carrier remains the operator of the flight. Whether or not the PCO is a direct air carrier, it must comply with a slew of detailed Part 380 requirements, including filing forms with the DOT, escrowing passenger payments, complying with other financial security terms, and following detailed rules designed to protect the passengers from last-minute cancellations and the like.

DOT economic regulations govern public charter, but FAA regulations govern the actual flight operations. Public charter is confusing partly because the FAA and DOT regulations that govern the type of authority required to be held by the direct air carrier use the same or similar terms but define them differently.

A New Controversy

This prompted a controversy that began in June 2022 when SkyWest Charter (SWC), an affiliate of SkyWest Airlines (SWA), applied for authority from the DOT “to engage in scheduled passenger operations as a commuter air carrier under the public charter rules” using a 30-seat CRJ-200 regional jet. Commuter operations carry “passengers on at least five round trips per week on at least one route between two or more points, according to its published flight schedules that specify the times, days of the week, and places between which those flights are performed.”

SWC suggested that its proposed flights would “enable many underserved cities to have a frequency of service that provides them with a meaningful connection to the national transportation system,” so it is not surprising that over 60 citizens, organizations, towns, and airports filed briefs in support of SWC’s application. However, the Air Line Pilots Association (ALPA), the world’s largest airline pilot union, objected to the proposal, arguing that it would replace SWA’s Part 121 airline flights with ostensibly less safe public charter flights under Part 135. A key contention of ALPA was that pilots operating under Part 135 would be less qualified than those operating under Part 121, a shift that ALPA maintained would “degrade the margin of safety of our air transportation system” and introduce “unnecessary risk to passengers.”

Then in May 2023, American Airlines requested that DOT “provide regulatory clarity on the use of public charter regulations for what it called “a facsimile of common carriage scheduled service.” Quoting from a negative letter sent by the Allied Pilots Association (APA) the previous December, American accused operations like those requested by SWC of exploiting what it described as a “loophole” provided by public charter “to fly a published schedule with a 30-seat turbojet aircraft under Part 135,” a model that American, like ALPA, claimed “degrades our nation’s aviation system and distorts competition.” Operations pursuant to published schedules, presumably, should be reserved for airlines like American, not Part 135 charter carriers, and American demanded that “DOT should end this misuse.”

American’s request for clarity could use some clarification itself because the FAA has been clear that authorized public charters include the “on-demand” operations American referenced. This was confirmed by an FAA Chief Counsel opinion in 2014, which explained that, by placing Part 380 operations in the definition of “on-demand,” the regulations permit aircraft with 30 or fewer seats to be used for Part 380 public charters. Thus, public charter flights “were specifically carved out from the definition of scheduled operations” that would ordinarily render a flight “scheduled” for FAA purposes and consequently, depending on aircraft type and seating capacity, require it to be conducted by a Part 121 carrier.

Questions about Safety

The main objection to public charter flights operated under Part 135 is that they are supposedly less safe. If you’re a public charter passenger, should you be troubled about this? Several organizations, including the National Business Aviation Association (NBAA) and the National Air Transportation Association (NATA), weighed in on this issue with a letter to the FAA and DOT last July. Without naming either SWC or American, the letter charged that “economic competitors…with no evidence of safety and security concerns” were seeking “to prevent Part 135 operators from conducting public charter flights.” Fearing that the complaints could result in legislative interference, the commenters encouraged Congress to allow DOT to resolve the issue.

A month later, however, the FAA published a Notice of Intent, claiming that “the size, scope, frequency, and complexity of charter operations conducted as ‘on-demand’ operations under the Part 135 operating rules has grown significantly over the past 10 years.” Rather than viewing this as evidence of the importance of public charter flights for people needing air transportation, the FAA put the world on notice that it was “considering whether a regulatory change may be appropriate to ensure the management of the level of safety necessary for those operations.” In the worst case, the agency might propose to eliminate the public charter options that allow flights to be operated under Part 135 that would otherwise be required to be operated as scheduled flights under Part 121.

The FAA has not, however, justified the need for a major review of public charter. As indicated in a press release issued by NBAA, NATA, and other major aviation organizations responding to the FAA’s notice, “Part 380 charter regulations have been in operation for more than four decades. Merely witnessing an uptick in Part 380 operations over the past decade is insufficient grounds for a sweeping overhaul.”

This is especially true given that the uptick has not been accompanied by any apparent major incidents or accidents. The NBAA and the other organizations continue to gather data on routes and communities served and safety issues of Part 380. In addition, tens of thousands of comments were filed in response to the FAA’s notice, the vast majority of which support the rule as it currently exists.

As noted earlier, public charter is a long-standing and well-tested commercial aviation option that provides, among other things, competition and greater access to remote and rural airports not well-served by the airlines. Claims that public charter flights are unsafe do not seem to be supported by the evidence. A major review of Part 380 appears unnecessary, but action on SWC’s public charter application is long overdue.