Update on Aug. 16 at 3:55 p.m. PT: As a result of the FAA’s decision, Flytenow has decided to remove the expense-sharing feature of its site, yet still allowing pilots to post trips they plan to take and make them available to other people who’d like to join, although they can no longer pay for a seat on the flight. More details here about Flytenow’s response. 

Ride-sharing in the sky has hit a rock-hard cloud by the name of the Federal Aviation Administration (FAA) – and an affected flight-sharing service is questioning the decision.

On Friday, the federal agency issued a ruling in response to an inquiry from startup AirPooler and one from Y Combinator company Flytenow. The two startups had asked the FAA for clarification about the rules governing their operations.

Based in Cambridge, Mass., the five-month-old AirPooler allows a private pilot to post a trip they are taking and to ask for passengers willing to share costs. Costs are set by AirPooler, based on the plane type, the trip length and other factors. Flytenow is essentially identical.

The FAA said that, by sharing gas and other costs with passengers, the pilot is receiving compensation and therefore needs a hard-to-get carrier license to operate as an air service:

In your request for legal interpretation, you maintain that the AirPooler service is not a commercial operation and does not involve common carriage because there is no compensation of pilots. We disagree.

Flytenow had also asked for a decision from the agency and has received a similar response.

“What they’ve done in this decision [is] they’ve leaned way, way over to address concerns for public safety,” AirPooler co-founder and CEO Steve Lewis told VentureBeat.

Lewis said that private pilots are hurting, since the costs of operating planes “have doubled or tripled” in the last 20 years. “The concept of air sharing helps pilots,” he said, as well as passengers.

He described the FAA response as “confusing” because it is based on “a draft version of proposed legislation in 1963.” When the ruling was actually enacted in 1964, Lewis told us, it “totally overturned” the earlier version and made “an exception for private pilots to get a pro-rated share of costs” without needing a commercial license.

If the agency had based its current response on the enacted 1964 version, he said, AirPooler would have clear skies.

An FAA spokesman told us that the agency has no comments on its decision.

AirPooler’s next step is seeking clarification as to why the 1963 proposal was used.

“You can surmise it’s because they didn’t have an alternative that would have worked” to prevent such ride-sharing, Lewis said. “I think they just wanted to cover their butts.” He added that the agency has not told AirPooler to take down its service, so it will continue operating as it seeks clarification.

“To give the FAA credit,” Lewis noted, “all the existing legislation about aviation was put in place before the Internet.” The agency has similarly been playing catch-up with the sudden emergence of drones.

Is the FAA justified in its hesitation to move forward on airplane ride-sharing?

After all, how can the average person assess how well the pilot can fly? Pilot information on AirPooler includes the age of the pilot, where they work and their level of certification.

“Nobody other than a certified flight instructor” can truly determine how skilled a pilot is, Lewis said. “There’s always a risk [and we] can educate people and let them come to their own decision.”

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