Operational Control and Its Impact on Private vs. Common Carriage in Aviation

In aviation regulations, operational control plays a pivotal role in determining the applicable rules for an operation, particularly when it intersects with the distinction between private carriage and common carriage. Understanding this concept is essential for compliance, as it influences certification requirements, liability, and who bears responsibility for flight decisions.

The FAA defines operational control in 14 CFR §1.1 as:

“the exercise of authority over initiating, conducting, or terminating a flight.”

How Operational Control Relates to Carriage Types

The primary driver for requiring a commercial operating certificate (under Part 121 or 135) is common carriage—holding out to transport persons or property for compensation or hire. However, operational control helps determine who is the operator and thus whether the operation falls into common or private carriage, especially in compensated flights.

Key Impacts

1. In Common Carriage (e.g., Part 135 On-Demand Charters):

   • The certificate holder (the charter company) must maintain operational control.
   • This includes authority over flight initiation, crew assignment, maintenance, dispatch/release, and termination.
   • The certificate holder is responsible for compliance with stricter rules (pilot qualifications, duty times, maintenance programs).
   • Passengers contract with the operator, who “holds out” services and assumes primary liability.

2. In Private (Non-Common) Carriage:

   • Often, the customer or aircraft owner retains operational control.
   • Example: A company owns an aircraft and hires a commercial pilot to fly its executives. The company (not the pilot) has operational control → private carriage, potentially operable under Part 91 (if incidental to the business and no holding out).
   • Private carriage for hire (compensated, limited customers, no holding out) may still require Part 135 certification, but the structure emphasizes the customer’s control.

3. Dry Lease vs. Wet Lease Scenarios:

   • Dry lease (aircraft only, no crew): Lessee gains operational control → often treated as private carriage under Part 91.
   • Wet lease (aircraft + crew): Lessor typically retains operational control → may constitute common carriage if holding out is involved.
   • The FAA scrutinizes “sham” dry leases where the lessor effectively controls the flight despite the agreement.

Why Operational Control Matters in Classification

• If a pilot supplies the aircraft and exercises operational control while carrying passengers for compensation, it often implies holding out and common carriage → requiring a Part 135 certificate (risk of illegal charter).
• Conversely, if the passenger/customer supplies the aircraft (ownership or legitimate lease) and exercises operational control, hiring a pilot as an employee or contractor → more likely private carriage under Part 91.
• Misassignment of operational control can lead to enforcement: The FAA looks beyond contracts to actual practice (who decides go/no-go, routing, crew, etc.?).

Comparison Table: Operational Control in Context

Aspect	Common Carriage (Typical Part 135/121)	Private Carriage (Part 91 or Limited Part 135)
Who Has Operational Control	Certificate holder (operator/charter company)	Aircraft owner or customer
Holding Out	Yes	No
Certification Required	Air carrier certificate (Part 119)	Often none (Part 91) if no compensation; Part 135 if for hire
Liability Focus	Operator (higher insurance standards)	Owner/customer
Regulatory Strictness	High (dispatch, duty limits, etc.)	Lower
Example	On-demand charter booking a flight	Corporate flight department flying executives

Practical Implications

• For Pilots: A commercial certificate allows compensation, but if you have operational control in a compensated flight with holding out, it’s likely illegal without an operator certificate.
• For Owners: Structuring as private carriage (retaining control) can allow Part 91 operations, reducing costs but increasing personal liability.
• Enforcement Risk: The FAA investigates based on who truly exercises control. Advisory Circular 91-37B (Truth in Leasing) provides guidance on legitimate transfers of control.

In summary, operational control doesn’t directly define common vs. private carriage but is a critical tool the FAA uses to verify who the true operator is and ensure the appropriate regulatory framework (and safety standards) apply. Always consult FAA guidance or legal counsel for specific operations.

References

• 14 CFR §1.1: Definitions (Operational Control)
• AC 120-12A: Private vs. Common Carriage
• AC 91-37B: Truth in Leasing
• FAA Order 8900.1: Operational Control Guidance

Safe flying requires clear control—and clear compliance!