concluding that an air carrier had acted “as a common carrier” in offering services pursuant to negotiated contracts to members of the music industry because it had “held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately”
How later courts described this case
- concluding that an air carrier had acted “as a common carrier” in offering services pursuant to negotiated contracts to members of the music industry because it had “held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately”
- stating that “the crucial determination in assessing the status of a carrier is whether the carrier has held itself out to the public or a definable segment of the public as being willing to transport for hire, indiscriminately” (emphasis in original)
- concluding that FAA Advisory Circular definition of "common carrier" is "in relevant respect the same as that found at common law"
- finding that self-promoting statements issued through press kits are self-authenticating under Federal Rules of Evidence 902
Written by the judges who cited it.
The opinion
DeMOSS, Circuit Judge,
dissenting:
In my opinion, the “flight” in this case has been long and bumpy, our instruments did not work well, and I think we have landed at the wrong airport. I write this dissent to explain why.
I. Who is a “common carrier” and when is “common carriage not involved?”
The fundamental problem in this case is one of definitions. Neither Congress nor the *526 Federal Aviation Administration (“FAA”) have defined the term “common carriage” or “common carrier.” I am amazed that this is the case. First, I feel strongly that there is a serious due process problem in a quasi-judicial proceeding, such as is involved in this case, if the revocation of a commercial pilot’s license turns on the meaning of a critical term which the administrative agency has not previously defined under its rule making powers. Clearly the FAA in issuing its advisory circular that purports to define “common carriage,” did not comply with the procedure for the adoption of a formal rule or regulation. And, taking away a commercial pilot’s license has an economic impact on that individual very similar to a fine or jail term or taking away a lawyer’s license to practice. An individual should not be deprived of their livelihood as a result of an administrative agency’s ad hoc definition of a critical term.
Second, I think the meaning that the agency gives to the term “common carriage” in this case is fundamentally inconsistent with other terms that are defined by the statute and by the published regulations.
As I read the definitions set forth in the statute (49 U.S.C.App. § 1301) and in the regulations ( 14 C.F.R. § 1.1 ), the terms are defined as follows:
A. “Air carrier” is one who engages in “air transportation.”
B. “Air transportation” means “interstate air transportation,” “overseas air transportation,” or “foreign air transportation,” or the “transportation of mail by aircraft.”
Each of interstate, overseas, and foreign air transportation are defined to be “the carriage by aircraft of persons or property as a common carrier for compensation or hire” (underlining added) plus the individual geographical definition,
C. “Air commerce” means:
1. “Interstate air commerce”;
2. “Overseas air commerce”;
3. “Foreign air commerce”; or
4. “Operation or navigation of an aircraft within a federal airway or directly affecting or endangering safety in interstate, overseas, or foreign air commerce.”
D. Each of “interstate air commerce,” “overseas air commerce,” and “foreign air commerce” are defined as “the carriage by aircraft of persons or property for compensation or hire,” plus the geographical definition pertinent to each one.
E. The regulations (but not the statute) contain the definition of “commercial operator” as “a person who for compensation or hire engages in carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under Part 375.” (underlining added.) Under this definitional structure, it is
open, obvious, and clear to me that the fundamental distinction between “air carrier” and “air transportation” on the one hand, and “commercial operator” and “air commerce” on the other hand, is that the first two involve carriage “as a common carrier.”
Now to this set of definitions, the National Transportation Safety Board (“NTSB”) on page 6 of its opinion in this ease would add the definition of “common carriage” as
“... the four elements of common carriage are:
(1) a holding out of a willingness to
(2) transport persons or property
(3) from place to place
(4) for compensation.”
However, the NTSB’s definition wipes out the statutorily created distinction between air transportation and air commerce; and it runs contrary to it’s own definition of “commercial operator” which expressly points out that a commercial operator is one who acts “other than as an air carrier.” Elements (2), (3), and (4) of the NTSB definition set out above, are the same elements referred to in the definition of both “air transportation” and “air commerce”; and the new definition creates a seemingly unanswerable conundrum for a commercial operator:
How can I engage in my business of carrying persons or property for compensation or hire as a commercial operator in air commerce, if by simply holding myself out to prospective customers I become engaged in “common carriage” which makes me an air carrier subject to regulation under entirely different sets of regulations?
*527 Surely there is some Constitutional right to free speech for business which would encompass making known to prospective customers the availability of your services. Bottom-line, therefore, a stamp of approval to the NTSB’s definition which might be inherent in an affirmance of this ease may have implications way beyond the bounds of Wool-sey’s license revocation dispute which is directly involved.
II. How does § 91.501 interrelate with § 135.1 of the applicable regulations?
Much of the argument and discussion in this case relates to this question which is a riddle wrapped in another conundrum. Assuming that the airplanes piloted by Woolsey meet the test of being “turbojet powered, multiengined, civil airplanes” as defined in paragraph (a) of § 91.501, the first sentence of subparagraph (a) makes clear that the operation of these airplanes is covered.by the rules in “this subpart, [§§ 91.501-91.533] ... in addition to those prescribed in other sub-parts of this part,” [i.e. Part 91]. Consequently, § 91.5 in subpart A of Part 91 is clearly applicable to these planes and requires compliance by the “pilot in command” with the “requirements of § 61.58 of this chapter.” Section 61.58 establishes rules for periodic proficiency cheeks or flight checks which are similar to, but perhaps not identical with, provisions for periodic flight testing in Part 135. The Board, however, accuses Woolsey of failing to comply with the Part 135 provisions. Consequently, even if Wool-sey were correct in his argument that the “time sharing agreement” in this case relieved him of the necessity of complying with the periodic performance checks in Part 135 as charged by the NTSB, he would still have to comply with § 91.5 and § 61.58. The record fails to show whether Woolsey did in fact comply with § 61.58 and whether the NTSB’s complaint is really only as to the, timing of getting those reehecks under the more frequent requirements of Part 135. If that were in fact the case, then the sanction of license revocation levied upon Woolsey is grossly out of proportion to the nature of the “wrong” that he committed. A suspension of his license for a fixed period of time or a money fine would have been the appropriate penalty if he did in fact get retested on the § 61.58 schedule rather than the Part 135 schedule. On the other hand, if Woolsey was not retested at all for periods of time longer than those required under § 61.58, then his contention that the time sharing agreement eliminates the applicability of Part 135, even if correct, would still leave him in noncompliance with §§ 91.5 and 61.58.
III. Must the government prove that the airplanes and flights in questions were governed by Part 135 or is it sufficient that the government simply’.prove that Prestige Touring was not entitled to the . benefits of 91.501?
On page 6 of its opinion, the Board stated: The law judge found that, notwithstanding respondent’s claims that he strived to conform to the requirements of Section 91.501, the overwhelming evidence established that these operations were governed by Part 135 because Prestige Touring, Inc. failed to meet the threshold requirement of not being “common carriage.” We agree.
From the same opinion on page 2, it appears that Woolsey was charged with careless or reckless operation of an aircraft in violation of § 91.13(a)
... by serving as pilot in command on 53 flights for compensation or hire, without meeting the training and examination requirements of §§ 135.293(a) and (b), 135:-297(a), 135.299(a), and 135.343.
Clearly, these are not “criminal” proceedings. They are quasi-judicial in nature and result in the imposition of sanctions based on past actions. The Board therefore should have to prove that the flights in question were covered by Part 135. From this perspective, the finding of the law judge on page 6 of the opinion quoted above is just flat wrong. The mere fact that Prestige Touring .may have failed to meet the “threshold requirement of not being common carriage” [which is part of § 91.501] certainly does not establish that Part 135 is applicable to the flights in question. As set forth § 135.1(a),, the rules in Part 135 govern:
(1) Air taxi operations conducted under the exemption authority of Part 298 of this • Title;
*528 (2) The transportation of mail by aircraft conducted under a postal service contract awarded under § 5402(c) of Title 39, U.S.C.;
(3) The carriage in air commerce of person or property for compensation or hire as a commercial operator (not an air carrier) in aircraft having a maximum seating capacity of less than 20 passengers or a maximum payload capacity of less than 6,000 lbs., or the carriage in air commerce of persons or property in common carriage operations solely between points entirely within any state of the United States, the aircraft having a maximum seating capacity of 30 seats or less and a maximum payload capacity of 7,500 lbs. or less.
In my view, none of these subparagraphs apply to the airplanes and flights which Woolsey served on as pilot in command. The first subparagraph relates to “air taxi operators”; and § 298.3(b) clearly states:
... a person who does not observe the conditions set forth in paragraph (a) of this section shall not be an air taxi operator within the meaning of this part with respect to any operations conducted while such conditions are not being observed.
One of the conditions in paragraph (a) was registration with the Board in accordance with subpart (c). Nothing in the record makes reference to the registration by Prestige Touring with the Board under subpart (c) of Part 298.
Similarly, subparagraph (2) of § 135.1(a) regarding transportation of mail is not applicable because there was clearly nothing referencing the carriage of mail on any of the flights which Woolsey commanded.
There are two distinct and separate sentences to subparagraph (3) joined by the disjunctive “or.” The second of these sentences relating to the carriage of persons in common carriage operations solely between points entirely within any state (emphasis added) of the United States might possibly be applicable to some of the flights which Woolsey commanded, but that is not developed in the record. That leaves the first sentence of subparagraph (3) as the only portion of § 135.1(a) that might apply; and here we meet again the definitional conundrum involved in this case. Assuming that the seating and payload capacities of the airplanes which Woolsey flew meet the limitations of the first sentence of subparagraph (3), the conundrum arises from the words “as a commercial operator (not an air carrier)” in this first sentence; and the definition which the Board uses to show that § 91.501 did not apply comes back to shoot the Board in the foot. The Board cannot have its cake and eat it too, and if the “holding out” by way of advertising and Yellow Pages listings caused Prestige’s operations to be “common carriage” for purposes of 91.501, then Prestige cannot also be “a commercial operator (not an air carrier)” for purposes of subparagraph (3) of § 135.1(a).
In conclusion, I have to say that my gut reaction to this case is that the FAA decided to make a scape goat out of Woolsey because of the crash of the other aircraft carrying Reba McEntire’s band. For the reasons set forth herein, I am unable to concur with my distinguished colleagues. I would reverse and remand for rehearing.