Petition for Writ of Certiorari — Voyager 1000 v. Civil Aeronautics Board

Supreme Court brief1974

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IN THE

Supreme Court of the United States

OctToser Term, 1973

VOYAGER 1000, ]

PALMER K. WARD, Receiver,

Petitioners,

v.

CIVIL AERONAUTICS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Karu J. STIPHER

CHarLEs T. RicHarpson

810 Fletcher Trust Building

Indianapolis, Indiana 46204

Counsel for Petitioners

C. E. Pauley & Co., Inc., Indianapolis

Berrennnscere near

Page

UE ected ee. 2

enn IGN or ee ee Ie fn

Statutes and Constitutional Provisions Involved ........ oie

Pannen Sr NE RR OL in re ee 5

Reasons for Granting the Writ —......... 7

1. The Decision of the Court of Appeals Raises the

Significant and Novel Issue of Whether Private

Air Travel Clubs Need to be Certified by the

Civil Aeronautics Board as Common Carriers

Oe er ey Pe eye x 7

2. A Private Air Travel Club Is Not a Common

i SS ai Donk aren een 12

3. The Court of Appeals Committed Reversible

Error in Holding That There Was Substantial

Evidence and a Reasonable Basis in Law for the

CAB’s Finding That Voyager, a Private Air

Travel Club, Has Held Itself Out to the General

Public as a Common Carrier of Passengers in

Violation of $401(a) of the Federal Aviation

UR AREER Relenetea te Ok CoS RL RAS OLE ne 17

EIEN ARO RAaes BED aL see Padre Pa Cals NCR SEE 93

Exhibit A—

6 22 72 Initial Decision of Administrative Law

Judge William J. Madden .....00 ww. 25

Exhibit B—

3 1-73 Decision of the Civil Aeronautics Board .... 60

Exhibit C—

11 14 73 Decision of the United States Court of Ap-

peals for the Seventh Cireuit 2000000... 7s

TA ee oe

ii

TABLE OF AUTHORITIES CITED

Cases Page

Arrow Aviation, Inc. v. Moore, 266 F.2d 488 (Sth Cir.

|) gana axe sre aaa a pe Ba an BRR Ban Ke bo LEI 13

Las Vegas Hacienda, Inc. v. C.A.B., 298 F.2d 480 (9th

Cir.), cert. denied, 369 U.S. 885, 82 S.Ct. 1158 (1962) 138

Saturn Airways, Inc. v. C.A.B., 483 F.2d 1284 (D.C. Cir.

Lente aaa A OAS, RAM 9 See ae Ra are aI Reece, inl LE 13, 14

Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1822 (1969) 11

State of Washington ex rel. Stimson Lumber Co. v.

Kuykendall, 275 U.S. 207, 48 S.Ct. 41 (1927) -............. 13

Transamerica case, CAB Order 69-5-124 -20000..2..e ee... 22

United States v. Contract Steel Carriers, Inc., 350 U.S.

ee ee, CE beeen. 19

United States v. Pennsylvania Indus. Chem. Corp., —

Oy a eg Oe es CO OD renee ee 10

Statutes and Regulations

Burns Ind. Stat. Ann. §§ 25-501, ef seqg., IC 1971, 23-7-

ja > agg Ron aR CsTectO hao eke De ADMD WAAOTS RNR sire Set 5)

49 U.S.C. $1301, $101 of the “ederal Aviation Act of

| RANA pts Pent ets Mes RA DAS Ie See MSO eh wh Ris Rh BPN Tee ALLY 8, 12

49 U.S.C. $ 1301(3), $101(3) of the Federal Aviation

, Ee pee eet er rea artim ORE SALT oa rae URIs 3, 12

49 U.S.C. $ 1301(10), $ 101(10) of the Federal Aviation

eo

IS a i a ee 4,12

49 U.S.C. $ 1301(21), § 101(21) of the Federal Aviation

FE I cocks ccecsces en tntases oacaccmaannaaial 4,12

49 U.S.C. $1371(a), $401(a) of the Federal Aviation

pe" RR a eteercrns re 2, 3, 6, 8, 12, 17, 21, 24

iii

Page

49 U.S.C. § 1482(b), § 1002(b) of the Federal Aviation

TOM TO ee 6

49 U.S.C. § 1486(a), § 1006(a) of the Federal Aviation

TEA WO ee a ny en er 6

49 U.S.C. § 1486(e), § 1006(e) of the Federal Aviation

eich oe Bien ies ee Sai Nd ec Rie ee 17

49 U.S.C. §$ 1486(f), § 1006(f) of the Federal Aviation

sonnel asin Eo tee artes al a tao ete a eae 2

ithe eS Sy, A DOLORES tal SP CRC A AD Nd 6

eo eee Mee | 7

Miscellaneous

Constitution of the United States, Fifth Amendment....4, 10

n “gst DA ana

a OLLIE ELLIE NTC OT Tepe E RY ot

IN THE

Supreme Court of the United States

OctToBer Term, 1973

VOYAGER 1000,

PALMER K. WARD, Receiver,

Petitioners.

v.

CIVIL AERONAUTICS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Voyager 1000 (a private air travel club), and

its receiver under the laws of the State of Indiana, Palmer

kK. Ward, respectfully petition this Court to issue a writ

of certiorari to the United States Court of Appeals for

the Seventh Circuit to review the decision of that Court

affirming and enforcing an order of the Civil Aeronautics

Board holding that Voyager 1000 was a ‘‘common carrier”

of passengers.

2

JURISDICTION

On Mareh 1, 1973, the Civil Aeronautics Board found

that Voyager 1000 was a common carrier of passengers and

ordered Voyager 1000 to cease and desist from engaging in

air transportation as a common carrier without obtaining

a certificate of convenience and necessity in violation of

$401(a) of the Federal Aviation Act of 1958, 49 U.S.C.

§ 1371(a). The order and opinion of the Civil Aeronautics

Board are appended hereto as Exhibit B. On November

14, 1973, the Court of Appeals rendered its decision

affirming and enforcing the prior order of the Civil Aero-

nautics Board. The order and opinion of the Court of

Appeals (not yet reported) are appended hereto as Ex-

hibit C. On December 4, 1973, the Court of Appeals stayed

the issuance of the mandate in the case for a period of

thirty days to permit Petitioners to file this Petition for

Certiorari. This Court has jurisdiction to review the deci-

sion of the Court of Appeals pursuant to 28 U.S.C. $1254(1)

and 49 U.S.C. §1486(f).

QUESTIONS PRESENTED

1. Is a private air travel club a common carrier of pas-

sengers and thus subject to economic regulation by the

Civil Aeronautics Board?

2. Did the Court of Appeals err in upholding the de-

termination by the Civil Aeronautics Board that Voyager

1000, a private air travel club, has violated § 401(a) of the

Federal Aviation Act of 1958, 49 U.S.C. $ 1371(a)?

3. Is the order of the Civil Aeronautics Board sup-

ported by substantial evidence? Does it have a reasonable

basis in law?

4. Did the Civil Aeronautics Board neglect its duty

3

in failing to adopt regulations governing private air travel

clubs?

5. Was the Civil Aeronautics Board estopped from

holding that Voyager violated the provisions of the Fed-

eral Aviation Act because of prior administrative con-

struction of common carriage?

6. Does the retrospective effect of the cease and desist

order of the Civil Aeronautics Board, coupled with the

CAB’s failure to adopt regulations and prior administra-

tive construction of common carriage, violate the United

States Constitution and Amendments?

7. Does the Civil Aeronautics Board order violate the

United States Constitution because it unreasonably re-

stricts the rights of the public to travel?

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Federal Aviation Act of 1958,

§$401(a), 49 U.S.C. §1371(a):

‘‘(a) No air carrier shall engage in any air

transportation unless there is in force a certificate

issued by the Board authorizing such air carrier

to engage in such transportation.’’

§ 101(3), 49 U.S.C. § 1301(3):

**(3) ‘Air carrier’ means any citizen of the

United States who undertakes, whether directly or

indirectly or by a lease or any other arrangement,

to engage in air transportation: Provided, That the

Board may by order relieve air carriers who are

not directly engaged in the operation of aircraft in

air transportation from the provisions of this chap-

ter to the extent and for such periods as may be

in the public interest.’’

+

§$ 101(10), 49 U.S.C. § 1301(10):

‘*(10) ‘Air transportation’ means interstate,

overseas, or foreign air transportation or the trans-

portation of mail by aircraft.”’

§ 101(21), 49 U.S.C. § 1301(21):

‘*(21) ‘Interstate air transportation’, ‘overseas

air transportation’, and ‘foreign air transporta-

tion’, respectively, mean the carriage by aircraft of

persons or property as a common carrier for com-

pensation or hire or the carriage of mail by aircraft,

in commerce between, respectively—

‘*(a) a place in any State of the United

States, or the District of Columbia, and a place

in any other State of the United States, or the

District of Columbia; or between places in the

same State of the United States through the air-

space over any place outside thereof; or between

places in the same Territory or possession of

the United States, or the District of Columbia:

‘‘(b) a place in any State of the United

States, or the District of Columbia, and any

place in a Territory or possession of the United

States; or between a place in a Territory or

possession of the United States, and a place in

any other Territory or possession of the United

States; and

‘*(c) a place in the United States and any

place outside thereof;

whether such commerce moves wholly by aircraft or

partly by aircraft and partly by other forms of

transportation.’’

Amendment 5 to the United States Constitution:

‘*No person shall be * * * deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation.’’

0

STATEMENT OF THE CASE

Petitioner, Voyager 1000 (*‘Voyager’’), was formed as

an Indiana not-for-profit corporation in 1964 as a private

air travel club. Under its Code of By-Laws, members of

Voyager must apply for membership and pay an initial

membership fee and monthly dues. The members have legal

rights similar to the shareholders of an Indiana corpora-

tion for profit, including rights to notice of elections, rights

to nominate directors, and a right to vote. However, under

the Indiana Not-For-Profit Corporation Act of 1971, IC

1971, 23-7-1.1-1, et seqg., Burns Ind.Stat.Ann. §§ 25-501, et

seq., any assets of the corporation escheat to the State

of Indiana on dissolution. That law also contains a pro-

hibition against any returns of money to officers and di-

rectors other than for moneys advanced or services ac-

tually performed.

From incorporation in 1964 until December of 1971,

Voyager grew to 14,500 members and had owned as many

as five aircraft. Until November 19, 1973, when a receiver

for Voyager was appointed following the decision of the

Court of Appeals, the club provided its members with an

extensive flight schedule from Indianapolis, along with

various social activities and periodic promotional material

regarding flights and general membership news. Over

eighty people were employed in the operation and main-

tenance of its aircraft and in its office services. Since its

inception, but particularly since 1968, Voyager notified

members of scheduled flights and promoted Voyager mem-

berships by buying space in the news media. Accompanying

these efforts were various specialized programs to attract

new members, including open houses, student member-

ship drives, and sweepstakes to induce existing members

to interest others.

The Bureau of Enforcement of the Civil Aeronautics

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Board (‘‘CAB’’) filed a petition for enforcement and com-

plaint against Voyager and three individuals on Novem-

ber 16, 1971, pursuant to § 1002(b) of the Federal Aviation

Act of 1958 (‘*Act’’), 49 U.S.C. § 1482(b), and 14 C.F.R.

§ 302.201. The petition and complaint alleged that Voyager

and the individual respondents were violating § 401(a)

of the Act, 49 U.S.C. 3 1371(a), by soliciting the general

public for, and operating flights in, air transportation, as

a common earrier of passengers without prior approval

of the CAB. All respondents answered and presented af-

firmative defenses asserting that Voyager fulfilled the

essential requirements for legal private club flights not

subject to regulation by the CAB. A two-day hearing was

held before Administrative Law Judge William J. Mad-

den, a veteran of over 30 years’ experience with the

CAB, who issued an initial decision on June 22, 1972,

ordering the petition for enforcement and the complaint

dismissed. Judge Madden’s initial decision is appended

hereto as Exhibit A. The Bureau of Enforcement peti-

tioned for discretionary review of the initial decision, and

the CAB undertook review.

Two of the five members of the CAB heard oral argu-

ment on the review. On March 1, 1973, the CAB issued

Order 73-3-1, with opinion, reversing Judge Madden’s ini-

tial decision and directing Voyager to cease and desist

from engaging in the transportation of passengers as a

common carrier in violation of $401(a) of the Act. The

proceeding, insofar as it related to the three individual

respondents, was dismissed, and that dismissal is not at

issue here. The CAB’s order and opinion are appended

hereto as Exhibit B.

Voyager filed its petition for review of the CAB’s order

on March 8, 1973, in the Court of Appeals for the Seventh

Circuit, pursuant to 49 U.S.C.A. § 1486(a). After briefs

7

and oral argument by counsel for Voyager and the CAB,

the Court of Appeals on November 14, 1973, ordered the

CAB’s prior order enforced. The order and opinion of the

Court of Appeals are appended hereto as Exhibit C. All

Voyager flights ceased on the day the Court of Appeals’

decision was made public, and a receiver for the elub

was appointed under Indiana law on November 19, 1973.

Voyager did not violate any CAB regulations because

there never were any regulations promulgated by the CAB

pertaining to its operation. Voyager has, however, complied

with the safety regulations of the CAB’s sister agency,

the Federal Aviation Administration (‘‘FAA’’), and pres-

ently holds an operating certificate issued by the FAA

under part 128 of the Federal Aviation Regulations, 14

C.F.R. §§ 123.1-53. Until the bringing of the enforcement

proceeding involved in this case, Voyager had operated

for seven years without complaint from the CAB or any

other governmental agency. Indeed, this is the first time

the CAB has chargec that any of the thirty air travel clubs

throughout the country must obtain a certificate of public

convenience and necessity or some other CAB authoriza-

tion before providing this type of recreational service to

its dues-paying members. Since the Voyager action began,

however, the Bureau of Enforcement of the CAB has filed

three other enforcement proceedings against air travel

clubs, and there are indications that the Voyager action

is seen by the CAB as the beginning of a campaign to elim-

inate all air travel clubs.

REASONS FOR GRANTING THE WRIT

1. The Decision of the Court of Appeals Raises the Sig-

nificant and Novel Issue of Whether Private Air Travel

Clubs Need to be Certified by the Civil Aeronautics

Board As Common Carriers of Passengers.

8

A common carrier has to have CAB approval before it

ean fly; a private carrier does not. Congress has said so

in §$401(a) of the Federal Aviation Act of 1958, 49 U.S.C.

§$ 1371(a), and the various definitions set out in $101 of

the Act, 49 U.S.C. § 1801. Voyager will show in the second

and third sections below how the Court of Appeals (and the

CAB) misapplied the applicable standards of what is or

what isn’t a common carrier to the facts surrounding Voy-

ager’s operation.

However, Voyager wants to emphasize at the outset the

importance of this case to thousands of people throughout

the country—all the people who belong to the thirty or more

private air travel clubs in the United States. The issue of

whether a private air travel club is engaged in private

carriage and thus is not within the jurisdiction of the

CAB has not been decided before. This is the first time

the CAB has attempted to find an air travel club in viola-

tion of § 401(a) of the Act, and no federal court (except in

this case) has ever before had the opportunity to review

such a case. This is a case of first impression, and the

Court of Appeals has erroneously decided an important

question of federal law which has not been, but should be,

decided by the Supreme Court.

The CAB has never promulgated any regulations con-

cerning private air travel clubs, allowing Voyager and its

members to assume that private air travel clubs could func-

tion without CAB intervention. Vovager has not tried to

evade the law or to somehow impede the work of federal

regulatory agencies. Indeed, Voyager has operated since

1968 in full compliance with the safety regulations of the

Federal Aviation Administration. As Administrative Law

Judge William J. Madden, the man who heard the evidence

initially, said:

‘‘The record will not support a contention that

9

the managers of Voyager, from its inception to its

present status, have acted otherwise than in good

faith to carry out the basic plan [of private car-

riage]. Similarly it will not support a contention

that there was any intent on their part to evade or

avoid compliance with any applicable laws. Insofar

as the operation required the sanction of the FAA

they assiduously sought to achieve full compliance

and they took an active part in the rulemaking pro-

ceeding which produced Part 123. In the one instance

when a question of a legal nature arose as to the

club’s right to be covered by Part 123 they sought

and obtained advice of legal officers of the FAA.’’

(Exhibit A, pages 43-44)

The fact is that the CAB’s allegation that an air travel

club is a common carrier is not only inconsistent with its

own passivity on the subject from 1964 through 1971, but

it is inconsistent with the earlier expressed views of the

FAA. As late as August 2, 1971, just three months before

the Bureau of Enforcement of the CAB filed a complaint,

the FAA advised Voyager as follows:

‘* As air travel clubs are a non-profit organization,

they are not allowed to fly passengers or cargo for

hire. Therefore, they are not required to, or allowed

to secure from the CAB a Certificate of Convenience

and Necessity, as required by commercial operators.

‘*It is of [sie] the opinion of the FAA that as long

as air travel club aircraft are owned by the club

members on a non-profit basis, solely for the carriage

of its members on pleasure trips, these aircraft

should be regarded as private carriage versus com-

mon carriage by commercial operators.’’ (Exhibit

C, page 86)

Voyager will argue, as it did in the Court of Appeals, that

these prior actions and inactions by federal regulatory

agencies point squarely to the conclusion that the CAB’s

present construction of the Act is unreasonable and legally

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incorrect. The doctrine of administrative estoppel, as re-

cently enunciated in United States v. Pennsylvania Indus.

Chem. Corp., — U.S. —, 93 S.Ct. 1804 (1973), applies here.

Moreover, the retrospective effect of the CAB’s cease and

desist order raises serious constitutiona] questions. For

the order of the CAB does not merely prohibit Voyager

from doing certain things that the CAB has now found

objectionable under the Act; the order stops Voyager from

carrying its current members even if Voyager were to dis-

continue all practices the CAB dislikes. In other words,

Voyager could limit its membership and stop all advertis-

ing (the thing the CAB found constituted a ‘‘holding ont’’

of transportation to the public) and still be in violation

of the CAB’s cease and desist order. Without sufficient

notice of the acts the CAB now finds illegal, without the

knowledge that a completely new set of standards would

be applied for the first time to air travel clubs by the CAB,

Voyager is being forced to stop all operations, get rid of

all assets, and disband. Surely that amounts to an appro-

priation of property without due process of law under the

Fifth Amendment to the United States Constitution. Judge

Pell of the Court of Appeals, in a reluctant concurrence

below, spoke eloquently about a related constitutional prob-

lem:

‘It is somewhat ironical, and perhaps to he de-

plored, that in a society which generally encour-

ages competitive free enterprise a service is to be

stifled which a substantial segment of citizenry of

the Midwest portion of the country found to be

highly desirable in making available travel by air

which might not otherwise have been enjoved by

them, and which travel has been conducted in full

compliance with governmental safety requirements.

‘*While this travel presumably was ordinarily for

pleasure rather than business reasons, the right of

11

such movement is one that las received Supreme

Court recognition.

‘This Court long ago recognized that the na-

ture of our Federal Union and our constitu-

tional concepts of personal liberty unite to re-

quire that all citizens be free to travel throughout

the length and breadth of our land uninhibited

by statutes, rules, or regulations which unrea-

sonably burden or restrict this movement.’

Shapiro v. Thompson, 394 U.S. 618, _— huaaie ty

(Exhibit C, pages 95-96)

Regardless of the inequity of the CAB’s action, however,

the fact remains that the CAB did decide to issue an order

against Voyager calculated to put this private air travel

club, and all others, out of existence and thereby stop for

good the banding together of people interested in travel-

ing with their friends to unusual places at unusual times.

That is exactly the end the CAB will accomplish if the

writ of certiorari is not granted. Since the filing of the

complaint against Voyager by the CAB's Bureau of En-

forcement, three other complaints have been filed. In ad-

dition, Voyager understands the FAA has instructed

all of its regional offices to reexamine the operations of

each air travel club now operating under FAA regulation

to see if the club complies with the notions about common

carriage expressed by the CAB in the Voyager decision.

In breaking this new ground, the CAB acted arbitrarily

and illegally, and this Court should issue a writ of certiorari

to correct the error. For if the path surveyed by the CAB

and by the Court of Appeals is followed, the end result

will be yet another private institution smothered by fed-

eral administrative action. Voyager seeks only the chance

to test the unprecedented action of the CAB in this Court.

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2. A Private Air Travel Club Is Not a Common Carrier of

Passengers.

The statute at issue here is the Federal Aviation Act

of 1958. Section 401(a) of the Act, 49 U.S.C. § 1371(a),

says that ‘‘[n]o air carrier shall engage in any air trans-

portation unless there is in force a certificate issued by

the Board authorizing such air carrier to engage in such

transportation.’’ The definition section of the Act, § 101,

49 U.S.C. § 1301, describes what is meant by ‘‘air carrier’’

and ‘‘air transportation’’ as follows:

‘*(3) ‘Air carrier’ means any citizen of the

United States who undertakes, whether directly or

indirectly or by a lease or any other arrangement,

to engage in air transportation: Provided, That

the Board may by order relieve air carriers who

are not directly engaged in the operation of air-

craft in air transportation from the provisions of

this chapter to the extent and for such periods as

may be in the public interest.

‘ce & &

‘*(10) ‘Air transportation’ means _ interstate,

overseas, or foreign air transportation or the trans-

portation of mail by aircraft.’’

As to what is interstate, overseas or foreign air transpor-

tation, the applicable definition is found in § 101(21), 49

U.S.C. § 13801(21):

‘* «Interstate air transportation’, ‘overseas air

transportation’, and ‘foreign air transportation’,

respectively, mean the carriage by aircraft of per-

sons or property as a common carrier for compensa-

tion or hire or the carriage of mail by aircraft, in

commerce between, respectively—

(a) a place in any State of the United States,

or the District of Columbia, and a place in any

other State of the United States, or the District

of Columbia; or between places in the same State

WD NA Ct ee RPE,

13

of the United States through the airspace over

any place outside thereof; or between places in

the same Territory or possession of the United

States, or the District of Columbia;

(b) a place in any State of the United States,

or the District of Columbia, and any place in a

Territory or possession of the United States;

or between a place in a Territory or possession

of the United States, and a place in any other

Territory or possession of the United States; and

(c) a place in the United States and any place

outside thereof;

whether such commerce moves wholly by aircraft

or partly by aircraft and partly by other forms of

transportation.’’ (Emphasis added.)

In short, the question before the CAB’s administrative law

judge, the full CAB, and then the Court of Appeals, was

whether on the basis of the facts presented Voyager, a

private air travel club, became a ‘‘common carrier’’ of

passengers. The Act itself does not define common car-

rier, but it seems generally accepted by courts and ad-

ministrative agencies that a common carrier is one who

‘holds himself out to the public as willing to carry all

passengers for hire indiscriminately.’’ Arrow Aviation,

Inc. v. Moore, 266 F.2d 488, 490 (Sth Cir. 1959). For simi-

lar definitions, see Las Vegas Hacienda, Inc. v. C.A.B.,

298 F.2d 430, 434 (9th Cir.), cert. denied, 369 U.S. 885,

82 S.Ct. 1158 (1962), and State of Washington ex rel.

Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211,

48 S.Ct. 41, 42 (1927).

There are few precedents in this area to help judge

whether Voyager has violated the Act. The Court of Ap-

peals cites only two court decisions, namely, the Hacienda

ease and Saturn Airways, Inc. v. C.A.B., 483 F.2d 1284

(D.C. Cir. 1973), both of which dealt in some way with the

14

distinction between individually ticketed and private mar-

kets. The Saturn case, however, involved the issue of

whether the CAB acted illegally in promulgating new

charter regulations; there was no issue of common ear-

riage and no issue of the impact of a failure by the CAB

to promulgate regulations. As the Court of Appeals ac-

knowledged in its Voyager opinion, the CAB has refused

to take a position as to what criteria should be used to

distinguish private carriers trom common carriers for pur-

poses of the CAB’s jurisdiction. (Exhibit C, page 86)

Neither the CAB nor its attorneys have the courage to

state what is legal and, more importantly, what distin-

guishes a legal from an illegal operation. Moreover, the

Court of Appeals said that the ‘‘record is void of criteria

which would indicate sufficient differentiation between Voy-

ager services and individually ticketed services.’’ (Exhibit

C, page 95) That is a clearly erroneous statement. For it

is undisputed that Voyager has the following attributes

and indicia of private carriage:

(a) It is organized as a corporation with appropriate

Articles and By-Laws.

(b) All operations are nonprofit and initiation fees

and dues are set by the By-Laws at a level sufficient to

defray the contemplated operating expenses of the club.

(c) Members have certain legal rights, e.g., to nom-

inate and vote for directors, and to raise questions at

regularly called meetings.

(d) The club makes a change in the members’ life

style. A member realizes benefits such as the fun of trav-

eling together with friends or meeting and communicat-

ing with new people, and attending regular social events

such as dances,

(e) Members pay substantial dues—$84 annually, a

15

figure much in excess of prestigious clubs such as the

National Smithsonian Club whose dues are $15 per year

Voyager dues amounted to $886,000 in 1971.

(f) Members stay members; there is no significant

turnover in the membership. Only 216 resigned in the

first nine months of 1971.

(g) Members share club assets. While title to assets

in a nonprofit corporation is not the same as for a profit

corporation, the members have an interest in the assets

superior to anyone else except upon dissolution.

(h) Members travel on irregular schedules and air-

craft are operated for a relatively small number of

hours.

Do these activities and rights of members of Voyager apply

to the general public that rides TWA, American, United,

and other commercial airlines? Of course not! Voyager

does not transport the public generally. It does not hold

itself out to the public as willing to carry all passengers

for hire indiscriminately. Voyager transports its members

who have joined the club, paid their dues, and complied

with the requirements of membership.

Further, the CAB and the Court of Appeals have failed

to challenge the first and most important finding of the

Administrative Law Judge;

‘*In its concept and in its operation at least

through 1968, Voyager was a private club engaged in

private carriage under any reasonable legal meas-

urement, It originated with a relatively small group

with a common interest in recreational travel and

ina plan to provide, with their own facilities, round-

trip flights of durations and to destinations and

at costs not generally available on the commercial

services. In effectuating such a plan, Voyager was

in a clear posture of privacy—as a club and as a

16

carrier—not subject to the economic regulatory as-

pects of the Federal Aviation Act of 195s.

se * @

‘* * * Tf in its concept Voyager was a private

club engaging in private carriage, as it clearly

was, simply increasing the number of members does

not add an insidious noted [sic].’’ (Exhibit <A,

pages 43 and 45)

The CAB really comes to the conclusion that all air

travel clubs are illegal. Yet, the Board has permitted the

operation of these clubs for years simply because the law

has always recognized the distinction between private car-

riage and common carriage. If the CAB’s order in this

case is enforced, that traditional distinction will be de-

stroyed.

The overriding intent of everyone involved with Voyager

and the numerous other air travel clubs in this country

is to give to people willing to make the investment a

chance to band together for travel with their friends to

unusual places at unusual times. This is not an effort to

compete with regularly scheduled airlines. Indeed, the

choice for many Voyager members and members of sim-

ilar clubs is whether to belong to the club and travel or

not to belong and not travel. The choice is not between

traveling with Voyager and traveling with a regularly

scheduled airline. There is not one word of evidence in the

record that any passengers have diverted from a commer-

cial carrier.

The CAB has simply decided that it does not like that

form of recreation, but the fact that it does not like the

idea does not mean it can put travel clubs out of business.

The Federal Aviation Act of 1958 was not intended to

reach groups freely associating for recreational travel that

have the attributes of private carriage previously dis-

cussed.

17

3. The Court of Appeals Committed Reversible Error in

Holding That There Was Substantial Evidence and a

Reasonable Basis in Law for the CAB’s Finding That

Voyager, a Private Air Travel Club, Has Held Itself

Out to the General Public as a Common Carrier of Pas-

sengers in Violation of § 401(a) of the Federal Aviation

Act.

Voyager is a private air travel club and not a common

carrier, As found by the Administrative Law Judge who

listened to the evidence in this proceeding firsthand, Voy-

ager has all the attributes of a private club providing a

unique travel experience to a bona fide membership that

can reasonably be distinguished from the general public.

There was no holding out of air transportation to the

general public, and despite a healthy growth in membership

over the past nine years, Voyager has not moved into the

status of a common carrier. The contrary findings, con-

clusions and order of the CAB and the Court of Appeals

are not supported by substantial evidence, as provided by

§ 1006(e) of the Act, 49 U.S.C. § 1486(e), or by a reasonable

construction of the Act. Voyager has not violated § 401(a)

of the Act; the CAB’s cease and desist order should, there-

fore, be set aside.

A review of the Court of Appeals’ decision must begin

with the character of Voyager itself. The CAB discussed

the issue only obliquely by attaching to its opinion exy-

cerpts from Judge Madden's initial decision. The Court

of Appeals discussed Voyager's operations in part I of

its opinion, Both have not, and cannot, dispute the fact

that Voyager is a private club, with a corporate structure

that gives members a voice in the club's affairs. The

standards used to judge Voyager should be no different

than those used to judge any other private club.

So, if the CAB and the Court of Appeals have suddenly

decided for the first time that a private club is a common

18

carrier, what is it about the club that makes it so? What

has Voyager done to evoke the wrath of the CAB? Voy-

ager believes the CAB does not like two things: Voyager's

advertising and its growth.

Take Voyager’s advertising first. The CAB’s opinion

is replete with references to Voyager’s advertising pro-

gram, and it is clear that the CAB relied on the use by

Voyager of newspaper space to establish a ‘‘holding out”

to the public of common carrier services. Voyager’s ad-

vertising and promotion consist of monthly newsletters

and flight schedules to members, advertisements in the

Sunday travel supplement of The Indianapolis Star and

ads in other publications, direct mail brochures and pro-

motional material to prospective members, and an oc-

casional open house to attract new members. Copies of the

flight schedules and information on the weekly socials are

also sent to the members. Judge Madden attached copies

of some of these materials as appendices to his initial

decision. See Exhibit A hereto.

The newspaper advertisements typically refer to several

destinations, dates of flight and prices and carry the legend

*FOR VOYAGER MEMBERS ONLY”.

Usually a secondary message is carried to the same effect.

Occasionally notices are in the paper to Voyager members

reminding them to sign up for the next party if they want

to attend. The style of Voyager advertising has changed

little in the past several years. When Voyager officials

were in Kansas City discussing with the FAA Regional

Counsel the question of carrying guests, Voyager’s adver-

tising and promotion program was mentioned. FAA coun-

sel found no fault with the advertising and made no sug-

gestions.

The contention that Voyager’s publicity was directed to

19

the public generally to invite them to fly Voyager as if it

were a commercial enterprise is not supported by sub-

stantial evidence. Judge Madden said in his initial deci-

sion, as quoted by the Court of Appeals:

‘“‘The Bureau reads the advertising program as

being directed to members of the public generally

and as inviting them to fly Voyager as though it

were a commercial enterprise * * *.

‘‘The respondents deny that this was the pur-

pose, either overt or covert, and the evidence sus-

tains them. The adds [sic] clearly stated that the

trips were available only to Voyager members. In-

sofar as their placement was part of a campaign to

increase the membership that was the exercise of

a legitimate right as long as the original purpose

of the club was not being changed. The listing of

prospective flights and the costs can be fairly read

as an effective device to illustrate the advantages

of being a member. It was certainly effective as

part of the expansion plan. If in its concept Voyager

was a private club engaging in private carriage, as

it clearly was, simply increasing the number of

members does not add an insidious noted [sic]."’

(Exhibit C, pages 92-93)

Any information on specific flights is directed exclu-

sively to Voyager members—the only people who may par-

ticipate. While the ads may interest prospective Voyager

members in joining the club, they are not designed to sell

individual flights to members of the public and, as a

practical matter, do not do so. The concept portrayed in

the ads of traveling with other members of a private club

to exotic and mysterious destinations is meant only to

make prospective members aware of what the club does.

The finding that the advertising was designed to reach

and attract those who were not already members does not

establish a violation of the Act. As the Supreme Court

said in United States v. Contract Steel Carriers, Inc.. 350

baal

20

U.S. 409, 76 S.Ct. 461 (1956), as long as the advertising

is aimed at legitimate targets, it cannot be faulted for

being aggressive and bold.

There is absolutely no evidence in the record that Voy-

ager advertising caused one passenger to divert from a

common earrier flight. In fact, the CAB and the Court of

Appeals just assume that Voyager is illegally hurting

someone in the transportation marketplace. See, for ex-

ample, footnote 16 in the CAB’s opinion (Exhibit B, page

72) and the Court of Appeals’ decision (Exhibit C, page

86). An analysis of destinations and elapsed time by

common carriers and by Voyager shows Voyager is not

in competition with any airline or with any travel agents.

The club officers established a policy of trying to think of

destinations that would be novel, out of the ordinary, and

mysterious, with a heavy emphasis on the short weekend-

type trips. Taking a typical month, November, 1971, an

officer of Voyager found that of 17 planned trips, 15 were

to different destinations. Fifteen were weekend flights de-

parting Indianapolis Thursday or Friday (except Thanks-

giving week when the departures were Wednesday) and

returning Sunday. There is no attempt by common ear-

riers, scheduled or supplemental, serving Indianapolis, to

meet this unique and novel demand. Out of the 17 trips

Voyager flew that month, only two were to destinations

advertised by the travel agents. In conversations with travel

agents, the officer found that Voyager’s elapsed time was

less than half that of the best common carrier service in

five of eight examples. The travel agents and airlines in

Indianapolis just do not serve the same market that Voy-

ager has developed, and Voyager should not be brought

under the economic jurisdiction of the CAB which is re-

served for those common carriers.

All this should not have been lost on the Court of Ap-

NS EPS a I eS

21

peals. Indeed, footnote 13 of the Court’s opinion (Ex-

hibit C, page 90) is a fitting tribute to what should be a

recognition that you can’t haul a private club into court

for violations of § 401(a) of the Act unless there is compe-

tition with individually-ticketed services. The footnote says

this:

‘The court’s [Court of Appeals for the Second

Circuit] [sic] analysis quite properly demonstrated

the limitations on the Board’s affirmative statutory

duties. The desired result is not to remove all oper-

ations which compete with commercial airlines but

rather to regulate only those operations which affect

the economic soundness of regularly scheduled point-

to-point air transportation. The economic stability

of commercial airlines is to be preserved not for the

benefit of the airlines per se but only insofar as that

stability is necessary to the maintenance of an ade-

quate national and international transportation sys-

tem.”’

So, why didn’t the court practice what it preached? The

reason is based on the CAB’s and the Court’s apparent

ideas concerning Voyager’s growth: the second thing about

Voyager that evoked the CAB’s wrath. The Court’s opin-

ion seems to rest on the unsupported premise that Voyager

membership is undifferentiated from the traveling public

at large. Yet, Voyager has all the indicia of private car-

riage listed above under the second reason for granting a

writ of certiorari. See pages 14-15 above. In particular,

the initiation fee and monthly dues amount to a substantial

investment by people interested in participating in a travel

club, and the evidence is undisputed that members cannot

fiy, cannot attend parties, and cannot vote unless their dues

are paid. Moreover, any contention that members sign

up for one flight and then drop out of the club is totally

unsupported, as Judge Madden found. (Exhibit A, pages

45-46) A computer check of Voyager’s records, the only evi-

TIER ERE ALN ENT FE MEANS SMV GAI INANE aT ay DIN 1 He

| AAAPNNDINE I iC

22

dence on this point, shows that only 216 members dropped

out over a period of nine months in 1971 for delinquency

in payment of dues, and during this period 3,840 became

members. The Bureau of Enforcement also charged that

on numerous occasions new members paid the fees neces-

sary to join Voyager and their air share of a flight at

the same time, but a survey of Voyager’s members showed

that the average time between joining and traveling was

542 months.

So, what we are apparently left with is the conclusion

that Voyager is the general public. In other words, Voyager

is so large that a flyer to the membership or a newspaper

notice to the membership is really a flyer or notice to the

general public. Voyager had about 14,500 memberships

when the complaint was filed, and a membership generally

allows a family to participate in club activities. Is that

so many people that providing travel incident to club

membership in Voyager is per se a solicitation of the ‘‘ pub-

lic’’? The CAB has never gone so far as saying that a

private club automatically becomes a segment of the gen-

eral public where the number of memberships is only

14,500.*

If Voyager is the general public, when did it become so?

Surely not at 50 members. At 5,000? The CAB did not so

much as make a whisper until Voyager reached 14,500

memberships. Yet, where does the CAB draw the line? All

these questions are, of course, unanswered by the CAB

and by the Court of Appeals, probably because neither body

has given an acceptable reason of how and when Voyager

passed from private carrier status to that of a common

carrier. The fact is that Voyager is far from the point

*The CAB found that a membership of 140,000 was not per se a

segment of the general public in the Transamerica case. CAB Order

69-5-124.

ee —— —

23

where solicitation of its membership would be a per se

solicitation of the general public.

Because the program Voyager members have built has

been successful and has attracted the attention of signifi-

cant numbers of members, the CAB has, after nine years,

taken upon itself the job of dismantling the club. In so

doing, the CAB disregarded the meticulous findings and

conclusions of its own hearing examiner, as well as the

common meaning of the Act. Similarly, the Court of Ap-

peals has issued what Voyager—and all travel clubs—

consider an unfair, unjust, and not legally supportable

decision. A writ of certiorari should be granted to correct

the error.

CONCLUSION

There are over thirty air travel clubs in the United

States, clubs that have operated for many years under the

belief that a private air travel club with a bona fide mem-

bership is not a common carrier subject to the CAB’s

economic regulation. That belief was bolstered by the

acquiescence of the CAB and of its sister agency, the FAA.

The CAB has never sought to regulate air travel clubs.

Now the CAB has changed its mind: private air travel

clubs are common carriers, says the CAB, and they can no

longer operate. The Voyager 1000 club in Indianapolis

was the first club against which the CAB moved, but it

won't be the last.

Voyager is asking this Court to issue a writ of certiorari

so that its membership can fully test the unprecedented ac-

tion of the CAB and the decision of the Court of Appeals

enforcing it. Voyager and the numerous other travel clubs

in this country would like to receive a definitive answer

to a question that has never before been asked (let alone

answered): Is a private air travel club, with all of Voy-

24

ager’s indicia of private carriage, a common carrier of pas-

sengers that must obtain CAB certification under § 401(a)

of the Federal Aviation Act of 1958?

The United States Court of Appeals for the Seventh

Circuit has decided, Voyager believes erroneously, an im-

portant question of federal law which has not been, but

should be, settled by this Court. Accordingly, a writ of

certiorari should issue to review the order and opinion

of the United States Court of Appeals.

Respectfully submitted,

Karu J. STipHer

CuHartes T. RicHarpson

810 Fletcher Trust Building

Indianapolis, Indiana 46204

Counsel for Petitioners

EXHIBIT A

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D. C.

Issued under delegated authority

Voyacer 1000 )

Apam Rveckenrt, Individually

Rosert J. Fixx, Individually

A. Lee Cuirrorp, Individually > Docket 23991

Respondents

Enforcement Proceeding

ORDER

A full public hearing having been held in the above-

entitled proceeding and the examiner, upon consideration

of the record, having issued an initial decision containing

his findings and conclusions, which is attached hereto and

made a part hereof, pursuant to authority delegated to

hearing examiners under Rule 27 of the Rules of Practice

in Economic Proceedings ;

IT IS ORDERED:

1. That the petition for enforcement and the complaint

in the above-entitled proceeding be and they are hereby

dismissed.

2. That this order shall become effective as the final

order of the Board on the 31st day after the date of service

of this order and the initial decision unless a petition for

discretionary review is filed within 21 days after service

in accordance with Rule 28 of the Rules of Practice in Eco-

nomic Proceedings (14 CFR 302.28) or the Board issues

25

LST BIE NR IMME AG

ey

Beran rrersxorcnc 1 FY RYE IRS STOIC OMEN OTTERS API RY AR MS RTA NS

26

an order to review upon its own initiative. If a petition

for discretionary review is timely filed or if action to re-

view is taken by the Board upon its own initiative, the

effectiveness of this order shall be stayed until further

order of the Board.

Wiuiam J. Mappen

Hearing Examiner

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D. C.

Voyacer 1000 )

Apam Rveckert, Individually

Rosert J. Fixx, Individually

A. Lee Currrorp, Individually | Docket 23991

Respondents

Enforcement Proceeding }

Initial Decision of Wi1am J. Mappen, Hearing Examiner

Served: June 22, 1972

Upon:

Harry Bowen, 1110 O.F.C. Building, 1730 Rhode Island

Avenue, N.W., Washington, D. C. 20036 for Voyager 1000

and other Respondents.

Peter C. Edison, 1875 Connecticut Avenue, N.W., Wash-

ington, D. C. 20428 for the Bureau of Enforcement.

This initial decision is rendered pursuant to the authority

delegated to examiners under Rule 27 of the Rules of Prac-

tice of Economic Proceedings. It becomes effective as the

final order of the Board 30 days after service thereof unless

a petition for discretionary review is filed within 21 days

after service thereof in accordance with Rule 28 or the

Board issues an order within said 30-day period to review

upon its own initiative. If a petition for discretionary re-

view is timely filed or action to review is taken by the

Board upon its own initiative, the effectiveness of this final

decision is stayed until further order of the Board.

27

ISTE ST PE Iie Tre CONN

as ad Wo 8

PL OLLON TIRES

vas etal ate

Srrerencses Say et as

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D. C.

Voyacer 1000

Apam Rveckert, Individually

Rosert J. Fixx, Individually

A. Ler Cuirrorp, Individually Docket 23991

Respondents

Enforcement Proceeding

Found that Voyager 1000 was founded as a private club

to provide transportation for its members as a private

carrier; that it has operated in this concept; that despite

the expansion of the membership from that originally

planned it has not verged from the original concept and

has not moved into a status of common carrier. Petition

for enforcement and the complaint dismissed.

APPEARANCES:

Harry Bowen for Voyager 1000 and other Respondents.

Peter C. Edison and T. Christopher Browne for the Bu-

reau of Enforcement.

INITIAL DECISION

The basis of this proceeding is a complaint docketed by

the Director of the Bureau of Enforcement which contends

that Voyager 1000 while represented as a private member-

ship flying club is in fact an air carrier offering and pro-

viding air transportation for the general public. As an air

carrier it would be required under Section 401(a) of the

Federal Aviation Act of 1958 to obtain from the Board a

28

29

certificate of public convenience and necessity authorizing

it to engage in air transportation.'

Voyager 1000 and the individuals also designated as re-

spondents contest the complaint in general and contend that

the facts upon which the Bureau of Enforcement relies

fail to establish that Voyager is a common carrier, On the

contrary they contend that the activities of Voyager must

be construed as private carriage and therefor not covered

by the certificate requirements of section 401. The activi-

ties in which Voyager engages and the manner in which

they are carried on, to the extent that they have a bearing

on the disposition of this case, are as follows.

Background and Formation

As originally conceived Voyager was to be a private fly-

ing club with a limited number of members that would

acquire its own transport type aircraft to be used for recre-

ational travel by the membership. The plan was to have

ten people advance about $1,000 each and establish a fund

necessary for the downpayment on an aircraft which would

be acquired as the first step in attracting members. These

“0 and 15 others which did not make cash contributions

constituted the founding members. Total membership was

to be 1,000 each of whom would pay an initiation fee and

monthly dues.?, Membership reached 1,000 within the first

1 Section 401(a) recites “No air carrier shall engage in any air trans-

portation unless there is in force a certificate issued by the Board author-

izing such air carrier to engage in such transportation.” The remaining

subsections of section 401 prescribe the manner in which the certificate

should be sought, eligibility requirements, terms and conditions, and the

various responsibilities imposed upon the holder.

2 The record is not precisely clear as to whether each of the first 1000

members actually paid an initiation fee or the amount. The fee was the

subject of some variation in the early years, being stated at $125, and

$200 for family membership, at one point being waived in some in-

stances and under some circumstances, and eventually being established

COLT PLT POTEET YR PI OT EN Ye I ORI P

Beers pyr

30

year and since there were additional candidates it was

decided to establish a second club to be called Voyager

2000.

The company was qualified as a nonprofit corporation

under the laws of Indiana in September 1964. Subsequently

the second club was merged into the first and the member-

ships were consolidated. At the present time membership

in the club is achieved through a printed application form,

a copy of which is attached as Appendix 1. As will be

noted the form contains a blank indicating by whom the

applicant is recommended and space for noting the action

of the membership committee. Despite this indication of

a screening the essential qualification for membership has

been payment of the initiation fee, when applicable, and

dues.

Financial Emergency—Expansion of the Membership.

Toward the end of 1967 there were approximately 2,200

members. A more accurate count as of May 14, 1968 showed

2,460 of which 2,100 were in good standing. At about this

time the club found itself in a tight financial situation. Cash

was seriously depleted, deposits for trips on flights yet to

be operated had been spent, dues collected to that point

had been spent, some members were demaning refunds for

eancelled trips and Shell Oil Company was insisting on the

return of its credit card. Emergency steps were taken to

build up some cash resources against the more pressing

liabilities. Some of the Board members made personal

loans which provided a $21,000 fund and an engine impound

fund on deposit was diverted to the extent of $25,000.

These steps helped with the immediate cash emergency

but a more significant step of longrun assistance was a

at $10, the amount which is now in effect. The amount of monthly dues

also varied but it now appears to be stabilized at $7.00.

31

change in policy as to the number of members. It was

decided that the club could not survive on a membership in

the range of 2,000 and that regular dues payments by a

much larger membership would provide the best prospect

for building up an adequate operating fund. To this end

it was determined to embark upon a drive for new members

with an initial goal of 5,000. In September 1970, the goal

was increased to 20,000.

The membership drive took a number of courses. Among

them was a series of ‘‘open houses’’ which were advertised

in newspapers in Indianapolis, Cincinnati and Louisville.

A number of such gatherings were sponsored in early 1958

at the club headquarters in Indianapolis, and in Louisville,

Fort Wayne, Evansville and Terre Haute, Indiana, and

Columbus, Ohio. Another was the preparation of special

articles about the club for publication in area newspapers

and magazines of general circulation such as Time and

Travel Weekly. ‘‘ Bonus memberships’’ were given to exist-

ing members for distribution or sale, if possible. The sum

of $10 in serip was credited to the member for each bonus

membership which resulted in a new member with the scrip

redeemable in Voyager services. As of May 1, 1969, new

members produced by bonus membership stood at 1,600

and were averaging 25 new members per day. As of Febru-

ary 1972, current liabilities of the club included $93,000 as

flight scrip.

Another avenue pursued to increase membership was the

investigation of possibilities of merging with other similar

clubs. While there were some discussions and some over-

tures in this direction toward similar clubs in Chicago and

Detroit no acquisition was accomplished.

When the club acquired the Boeing jet it utilized it in a

new-member program with published invitations to inspect

the aircraft on weekends. In the period from June to Sep-

a,

EET ROY OOF FOS IY PNT ee Ca

32

tember 1970 these announcements included a description

of the club and its activities and particularly stressed that

during this period the initiation fee of $200 would be

waived and the only financial outlay would be payment of

dues for the first six months.

Early in 1971 a special student membership drive was

conducted under which college students could join Voyager

for a 12 month period for a fee of $10. This was broken

down into a $5 initiation fee and a flat rate of $5 for annual

dues. A promotion of this plan was undertaken at Purdue

University, Ball State Teachers College and Marion Col-

lege. Part of this promotion was the offering of free flights

for those enrolling student members.

Accompanying these specialized efforts for attracting

new members was a continuing reliance on the advertise-

ment of the club’s flight program in mailings to the mem-

bership of the club’s flight program in mailings to the

membership and in newspapers in Indianapolis, Cincinnati

and Louisville. Samples of newspaper ads are attached

as Appendix 2. It will be noted that they contain a notice

that the flights are for members only but they also carry

an invitation to inquire about membership and most of

them contained a coupon which could be used for the in-

quiry. A number of them stated the cost of becoming a

member and emphasized the fact that dues were at the

rate of only $6.00 a month.

As a result of the various promotions the number of

memberships increased from 2,400 in the latter part of

1968 to 14,500 by December of 1971. Since most member-

ships are ‘‘faimly’’ this reflects an estimated 43,000 pros-

pective travelers. In the first nine months of 1971, 216

memberships were dropped.

33

Management and Ownership

As mentioned earlier the originating group consisted of

25 so-called founding members. The by-laws provide for

an 11 man Board of Directors, five elected by the founding

members and six by the general membership. They are

elected for a three-year term but the terms are staggered,

three being elected in each of three successive years and

two in the fourth. If a vacancy occurs the remaining di-

rectors fill the vacancy but the designated member serves

only till the next annual election.

The by-laws also prescribe the method to be followed in

nominating and electing the directors. In October of each

year the president appoints two nominating committees,

one comprised of founding members to provide candidates

for the founding member vacancies and another to propose

candidates from the general membership. It has been the

practice to designate general membership members to the

committee to propose candidates for the general member-

ship vacancies. These candidates may also be founding

members.

Election is at the annual meeting which must be held in

December. Originally the by-laws required that the election

for directors must reflect attendance at the annual meeting,

in person or by proxies, of at least 50 percent of the mem-

bership. Accomplishing such an attendance was a difficult

task after the club was well-established, necessitating a lot

of canvassing by interested members, stressing particularly

the use of proxies.

While a majority of the directors must be elected by the

xeneral membership the policies and the programs of the

elub reflect, for the most part, the determinations of the

group of founding members on the Board of Directors.

There has been only one instance in which the directors as

proposed by the nominating committees were not elected

Te PI ee ee

34

by the members. In this instance a general membership

candidate proposed by the nominating committee lost at

the election but only after an intense and expensive proxy

fight.

As an Indiana nonprofit corporation there is lacking on

the part of the members the element of tangible ownership

that is present as to the stockholders of a corporation

organized for profit. The Indiana corporation act ex-

pressly provides that upon dissolution of such a company

any tangible assets over and above those required to pay

off all debts, including those that may be owing to mem-

bers, shall escheat to the state. The Act also contains a

prohibition against any returns to officers or directors

other than for monies advanced or service actually per-

formed.

Operation of the Club. Voyager employs 86 individuals,

22 in operations, 20 in maintenance and the balance are

office employees taking care of matters such as planning,

reservations and finances. They are under the direct super-

vision of a general manager and he looks to an executive

committee for guidance on major decisions and policy

matters. This committee in turn reports to the Board of

Directors. Flight operations are conducted by pilots em-

ployed directly by the club and the in-flight duties are per-

formed by a crew of professional stewardesses.

Flight Equipment. The first aireraft acquired by the

club was a DC-7 which was purchased in January of 1965

for $75,000. It was financed by a downpayment of $25,000

with the balance to be paid in 12 monthly installments. A

second DC-7 was acquired later and in May 1970 the club

added a jet to its fleet, a Boeing 720-125 which was pur-

chased from the manufacturer for $1,700,000. Two Lock-

heed Electra units were added to the fleet in March 1971

at a cost of $1,350,000. The Boeing is configured to seat

155 passengers and the Electras 117 each.

Compliance with FAA Regulations. In September 1968,

the Federal Aviation Administration adopted Part 123 of

the Federal Aviation Regulations which was directed spe-

cifically to cover operations of air travel clubs with large

airplanes. This regulation provides for the issuance of an

operating certificate similar to that which the Administra-

tion issues to air carriers certificated as such by the Board.

The certificate is granted only after the flying club demon-

strates that it has met the requirements spelled out in

Part 123. These requirements are simi.ar to those estab-

lished for a scheduled airline covering as they do qualifi-

cations of the personnel, aircraft, navigation, equipment,

the maintenance of manuals and periodic inspections. The

regulation defines an air travel club for its purpose as ‘‘a

person who engages in the carriage by airplanes of persons

who are required to qualify for that carriage by payment

of an assessment, dues, membership fee, or other similar

type of remittance.’’

Voyager qualified to operate under Part 123 and pres-

ently holds operating certificate no. CE-14 (T.C.). It has

always maintained close contact with the representatives

of the Federal Aviation Administration and on occasion it

solicited information and advice on matters other than

those relating to the operating requirements of Part 123.

One such instance was an inquiry as to the propriety of

permitting members to bring guests on club flights, a plan

which was under consideration. It was directed first to the

FAA representative at Indianapolis who in turn suggested

it be discussed with the regional counsel at Kansas City.

This was done, the advice was negative and the plan was

abandoned. Voyager also was informed on occasion by the

FAA of somewhat similar determinations which arose as

WATER IE OTP RONG SY FREI

DET OMOEA T ON RCA TENT Ker me NIty med en sr "1%

OER TY

SIRO APE gatos

Se ar 39's

| LN NSN PRY

36

a result of inquiries by other clubs, these included an an-

swer to a question as to the propriety of a business estab-

lishment buying memberships for employees (the answer

to that was qualified but mostly negative) and whether it

would be proper for a travel club to carry prospective

members on promotional or demonstration flights.

Flight Programming. The flight programs are planned

well in advance and the announcement of flights cover a

five to six months period. There is a heavy emphasis on

the short weekend type and destinations which are con-

sidered novel and unique. For example the November 1971

program consisted of 17 flights, of which 15 were weekend

departures from Indianapolis on Thursday or Friday, re-

turning on Sunday. Included were trips to the following

points.

Lake Tahoe Puerto Vallata

La Paz Andros Island

Conzumel Grand Cayman

Panama City Barbados

Great Exuma Marathon

Illustrative of the flight planning is a mailing to the

members in May 1971, setting forth the flight program

for the months of June through October. A copy of this

document is attached at Appendix 3. The flights are

patronized almost to capacity and in the 12 months preced-

ing the hearing 24,000 members were carried.

It will be noted from Appendix 3 that precise prices per

person are stated and that in some instances the price is

all-inclusive and in others the cost of the air and ground

packages are stated separately. At this stage in the club’s

development the amounts reflect in a high degree prices

quoted for similar trips under previous programs. In its

earlier years prices were related to some extent to a base

a > > nimi mes

37

rate of approximately two cents per passenger mile. This

figure was borrowed from what the founders understood

to be the rate another similar club was using. At the

present time the air fares average about 31% cents per

passenger mile but there are many variations and no effort

is made to prorate the cost of any trip among the partici-

pants.

Activities Other Than Travel. Respondents concede that

recreational travel on Voyager flights is the dominant pur- :

pose of the club but they make a point of a social aspect.

The club plans and conducts a program of parties for mem-

bers with each party emphasizing a travel theme. Flyers 3

listing them are sent to the members and in many cases

they encourage members to bring guests. A typical an-

nouncement is one listing a series of gatherings at approxi-

mately weekly intervals during February, March and April

1971, at the Airport Holiday Inn in Indianapolis. The fiver i

includes a reservation form since the practice is to limit the ;

number of those attending to 250. On some occasions the

flyers mailed to members are combination announcements

of trips and social gatherings.

Orn ier y

Flights Carrying Other Than Members. In the com-

plaint that accompanied the petition for enforcement, the

Bureau refers to three instances in which Voyager ap-

peared to hold itself out as providing transportation for

other than bona fide club members. The instances consist

of flights operated to Fort Lauderdale for the convenience

of university students during the Easter recess; a flight

to Hawaii for the Indiana National Guard Association and

a flight to Jamaica for a Dayton group identified as the

Trailsend Club. The Fort Lauderdale flights for the Uni-

versity students were provided at the time of the student

recruitment program mentioned earlier. There were two

DU Gavia RU i Oo Sit ar Ratt TT ie eet

| a DAT RCT me ORR ara

38

planeloads and the flights were considered as a one-time

program.

The flight operated for the convenience of the National

Guard Association was set up for this purpose after a

representative inquired of Voyager if they could be accom-

modated. He was advised that the participants would also

have to be members of Voyager but after some discussions

a special fee arrangement was made whereby they could

join Voyager at 50 percent of the normal annual cost. A

flight to accommodate the Association under this arrange-

ment was fitted into the club’s schedule and it was also

available to regular club members.

The members of the Trailsend Club were carried to

Jamaica on a flight planned in the regular course for

Voyager members. As in the case of the flight accom-

modating the National Guard Association, the Trailsend

participants joined Voyager for the purpose of making the

particular flight but it does not appear that a special fee

arrangement was made in this instance. Approximately

48 Trailsend members took the flight.

Present Financial Status. The most recent income and

expense statement in the record covers the 12 months ended

September 30, 1971. For that period operating income is

listed at $4.3 million with the major contributions coming

from flight trips at $2.5 million, ground packages at $860,-

000 and dues payments at $886,000. Complementary ex-

pense items were flight expenses at $1.3 million and ground

packages at $1.2 million. Aircraft maintenance was listed

at close to $1.0 million and remaining items brought the

total to $4.6 million and an operating loss of $225,000. This

was increased to $400,000 by ‘‘other’’ expense items.

The club’s balance sheet at of February 29, 1972, is sum-

marized as follows:

39

ASSETS

Current Assets

ee SOO eee a $ 680,000

i) SaaS ARNT eat AAT ARES aot 245,000

ee I ee eo 254,000

Zotei Current Assets _........................ $1,179,000

Fixed Assets

Aircraft and Engines (net) ................. $2,744,000

__ Geeneircastaat re i I SER a RAE ea 73,000

Total Fixed Assets .............................§ 2,817,000

ME I elaine ee erecceall $3,996,000

LIABILITIES AND NET WORTH

Current Liabilities

Deferred Trip Payments ......................81,218,000

I assess eciens 93,000

ME Te II cccteetierctssiecsormnicnnrenc 86,000

MI aah cient tati sv ecreccistsmntedeacaricotommeouccciote 122,000

BI I go cree epreeecs ener 111,000

Current Long-Term Debt ........0000.......... 316,000

Total Current Liabilities 2.000000... $1,946,000

Long-Term Liabilities

Contract Payable (Aircraft) 0.0.0.0... $2,250,000

I ee ec a (200,000)

Total Liabilities and Net Worth _.......... $3,996,000

eR CIE

NAIL LAB IRENA MALIA LIOR FI RAO A 8

ne Pt

8 Peat en Laas a

40

POSITION OF THE BUREAU

The position of the Bureau is that Voyager while nom-

inally a private flying club operates, as a common carrier

within the accepted legal understanding of this term and

thus its activities constitute those of an air carrier engaged

in air transportation which requires a certificate under

Section 401(a) of the Act.* The Bureau concedes that if

Voyager’s operations can reasonably be construed as pri-

vate carriage they are outside of the jurisdiction provided

to the Board by the Federal Aviation Act. The remedy

which the Bureau seeks is an order directing Voyager to

cease and desist from its current operations unless and

until the Board grants its approval of such operations by

the award of a certificate under section 401(a) or by an

exemption under section 416(b).

Facts Constituting Voyager as a Common Carrier. The

Bureau’s conclusion that Voyager must be found to be a

common carrier is based upon an overall appraisal of its

operations with a particular focusing on those features of

the operation which constitute a ‘‘holding out’’ of trans-

portation to a segment of the general public. The holding

3 The Act does not define a common carrier as such but the term appears

as part of the definition of air transportation which is defined in section

101(21) as *** the earriage by aireraft of persons or property as a

common carrier for compensation or hire ***. This definition of air

transportation is in turn employed as part of the definition of air carrier

in section 101(3): “Air carrier” means any citizen of the United States

who undertakes, whether directly or by a lease or any other arrangement,

to engage in air transportation.

4 The Bureau relies for a definition of a common carrier as appropriate

to be used in this case one which the Board reached in the Pan American

Ferry Flight Case, 18 C.A.B. 214 (1953), viz., “*** one who holds him-

self out as ready and willing to undertake for hire the transportation of

persons or property from place to place and so invites the patronage

of the public’. Particular note is made of the fact the Board found

that it was not necessary that the holding out be to the entire public;

that a segment of the general public is sufficient.

ee

out to the general public is established by the extensive

advertising program upon which Voyager engages, includ-

ing as it did insertions in eight newspapers with a com-

bined circulation exceeding one million readers, a full page

advertisement in Holiday Magazine, a series of radio ads

and direct mail campaigns. The Bureau can not accept

Voyager’s interpretation of these advertisements as an-

nouncements to members coupled with invitations to join

Voyager. Fortifying this aspect of the Bureau’s conclusion

is the surge in the number of members that took place after

1968; from the 2,000-2,400 range of the first five years to

14,500 within the last two.

The membership aspect of the advertising campaign is

untenable and irrelevant in the Bureau’s view, in part be-

cause of the extensive listing of specific flights with dates

and prices, in part by the fact that the flights are available

to new members immediately upon joining and in part to

the minimal screening, beyond payment of fees and dues,

of prospective members. The Bureau considers the Voy-

ager membership concept as nothing more than a paper

device employed by those in control of Voyager to evade

the regulatory responsibilities imposed upon air carriers

and the Board by the Act.

Small Group Control vs. Membership Control. The Bu-

reau considers Voyager as being currently controlled and

operated by a self-perpetuating Board of Directors and in

no significant degree by the general membership. It sees

it as a tightly controlled operation depicting many of the

aspects of a management controlled air carrier. The Bu-

reau’s conclusion in this respect is fortified with a refer-

ence to the fact that members generally have expressed no

interest in the operations of the corporation and appear

to have joined Voyager solely for the purpose of obtaining

low cost air transportation. The Bureau also emphasizes

a Neale

ala ia at a th

Sits PALO Et LORS ER

So a

Bremer cicee RAR: PERE Oy

42

what it considers an insufficient economic investment in

Voyager’s assets to set them apart from the general public.

The Bureau regards as nominal the presently established

initiation fee of $10 and monthly dues at the rate of $7.

POSITION OF THE RESPONDENTS

The respondents contest the Bureau’s claim that it is in

fact a common carrier and insist that Voyager is a private

club, with the necessary attributes and therefore it must be

considered a private carrier in its transport operations.

These attributes include its organization as a nonprofit

corporation, a membership voice in the management, the

social aspects, dues payments, outright ownership of the

aircraft and the common interest in recreational travel.

In countering the Bureau’s claim that it is a common

carrier they refer to a number of Board precedents in

which aspects similar to those exhibited by Voyager were

absent resulting in a finding that common carrier status

had been established. Among these is the so-called Trans-

america Case,® in which aproximately 145,000 stockholders

were not considered as constituting an affinity group be-

cause status as a stockholder was the only common interest.

Voyager’s much smaller number of members (although the

number was not of itself a principal factor in Trans-

america) plus the various private club aspects of the

Voyager membership distinguishes the instant case from

Transamerica.

The respondents also make a point of the efforts from

the beginning to abide by all applicable laws and regula-

tions bearing on air transportation operations, noting par-

5 In this case Trans International Airlines, Inc., a supplemental carrier

sought an exemption which would permit it to operate a number of

affinity charters comprised of stockholders of Transamerica, the parent

company of TIA, Order 69-5-124.

=

43

ticularly the compliance with Part 123 of the FAA regula-

tions in the adoption of which they were active participants

and their cooperation with the representatives of the Board

when the Bureau made its first inquiries as to the nature of

their operations in the latter part of 1971.

Should the ultimate decision be that Voyager is engaged

in air transportation and should be brought under the eco-

nomic regulatory jurisdiction of the Board the respondents

ask for ample time and opportunity to achieve compliance.

They point to the serious situation that would arise in the

event of a precipitate requirement to cease operations.

Illustrative is the present cash position of the club which

while adequate for a continuation of operations as pres-

ently conducted would be woefully inadequate against a

sudden liquidation requirement.

FINDINGS AND CONCLUSIONS

In its concept and in its operation at least through 1968,

Voyager was a private club engaged in private carriage

under any reasonable legal measurement. It originated

with a relatively small group with a common interest in

recreational travel and in a plan to provide, with their own

facilities, roundtrip flights of durations and to destinations

and at costs not generally available on the commercial serv-

ices. In effectuating such a plan, Voyager was in a clear

posture of privacy—as a club and as a carrier—not subject

to the economic regulatory aspects of the Federal Aviation

Act of 1958.

The record will not support a contention that the man-

agers of Voyager, from its inception to its present status,

have acted otherwise than in good faith to carry out the

basic plan. Similarly it will not support a contention that

there was any intent on their part to evade or avoid com-

pliance with any applicable laws. Insofar as the operation

Meee wn en Nie heey TA OL OPT RT FP ODL te treater

4H

required the sanction of the FAA they assiduously sought

to achieve full compliance and they took an active part in

the rulemaking proceeding which produced Part 123. In

the one instance when a question of a legal nature arose

as to the club’s right to be covered by Part 123 they sought

and obtained advice of legal officers of the FAA.

While they made no comparable inquiries as to whether

the activities of Voyager should be sanctioned by the Board

as to the economic aspects there is no hint of any purpose

to avoid such compliance had it been necessary. Insofar as

the actions which the Bureau construes as establishing a

common carrier status are concerned they were not taken

surreptiously but on the contrary they were open and no-

torious. When the Bureau conducted its investigation of

the club’s activities it was extended full cooperation and

given access to all pertinent records.

The Bureau’s case rests for the most part on develop-

ments that followed the decision to expand the membership

when it became apparent that the club could not survive,

financially, in the first concept of a small group. Those of

consequence to disposition of the complaint are the adver-

tising program (a holding out), and the minimal qualifica-

tions and the new size of the membership (a segment of the

public). The Bureau reads the advertising program as

being directed to members of the public generally and as

inviting them to fly Voyager as though it were a com-

mercial enterprise. It is in this posture the Bureau views

the extensive listing of flights and the details thereof, par-

ticularly the quoted prices.

The respondents deny that this was the purpose, either

overt or covert, and the evidence sustains them. The ads

clearly stated that the trips were available only to Voyager

members. Insofar as their placement was part of a cam-

paign to increase the membership that was the exercise of

a legitimate right as long as the original purpose of the

club was not being changed. The listing of prospective

flights and the costs can be fairly read as an effective de-

vice to illustrate the advantages of being a member. It was

certainly effective as part of the expansion plan. If in its

concept Voyager was a private club engaging in private

carriage, as it clearly was, simply increasing the number

of members does not add an insidious noted.

The Board has heretofore directed attention to the use

of advertising in newspapers of general circulation di-

rected to members of particular groups and their families.

Since they were so restrictively directed the advertise-

ments were not considered as solicitation of the general

public (Eastern Airlines, Inc. v. TIA, E-21440). While

Voyager directed them to prospective members there was

an element of selectiveness in that they were addressed to

persons travel-minded in the manner of the original Voy-

ager members.

The so-called ease of membership upon which the Bureau

places some reliance to establish ‘‘general public’’ has not

been sustained. While it is true that there is little or no

screening of an applicant beyond the payment of initiation

fee and dues there is a built-in screening by the mere fact

of application for membership. By such application, par-

ticularly after exposure to explanations of the purposes of

the club, an applicant, inferentially but effectively, declares

an affinity with the existing members.

Also important in judging ease of membership is the

financial outlay. Despite the Bureau’s regard of the pay-

ments as nominal the sum is real and substantial. The com-

plaint contains an allegation that in a good number of cases

persons join only to participate in a particular trip and

then abandon membership. The allegation went so far as

to estimate that 40 to 50 percent drop out after one flight.

ee Ae ee

SEMIS LT DER PPP ESOP RE OS BEE OER TIRED RT

46

There is no factual basis to sustain this allegation. A

check by the respondents of such activities following the

filing of the complaint revealed the figure of 216 drop-

outs in the first nine months of 1971 when 3,840 became

members.

The real and substantial character of the dues is espe-

cially clear when measured by the yearly amount and re-

membering that it is paid year in and year out. It is even

more clear when considered in the aggregate. In the year

ended September 30, 1971, dues produced $886,000, close

to one-quarter of the total operating income.

There are two other aspects of the club and the way

which it is run to which the Bureau calls attention in sup-

port of its position viz., alleged continuing control by the

founders or their designees, and a lack of interest on behalf

of a great number of the members in the direct operation

and the planning of flights. It is not quite clear wherein

these aspects, assuming that they exist to the degree

claimed, tend to support the Bureau’s case.

The Bureau expresses its evaluation of the mangement

as a self-perpetuating Board of Directors. It is a fact of

life that there is a tendency in all corporations, whether

for profit or not for profit, for the management to maintain

its managerial status. Also typical of corporations of ap-

preciable size is the tendency of the majority of stock-

holders (or their counterpart as members in organizations

such as Voyager) to have little interest in management and

operation as long as the end results are satisfactory and

are what they contemplated at the time they bought into

the company or joined the organization.

In taking the overall view of the activities of Voyager

in reaching the conclusion that common carrier status has

been established the Bureau does not pursue on brief the

instances charged in the complaint and referred to earlier

oS SOR Shen Pe,

47

in which persons other than bona fide members of the club

may have been carried on flights. While there are elements

of questionable practice in each of the three that have been

lescribed there were extenuating circumstances related to

the more desperate days in the club’s development. In any

event they do not establish the existence of a course of

‘onduct toward such practices on the part of the respond-

nts. It does not appear necessary at this point of the

‘lub’s development to select them out for specific prohi-

ition.

On the basis of the foregoing findings and conclusions

ind all the facts of record it is found that Voyager 1000

it the outset was intended to be a private club providing

ransportation for its members in a capacity of a private

arrier; it has operated in this concept and despite eXxpan-

‘ion of the membership from that originally planned it has

ot verged from its original concept and has not moved

nto the status of common carrier. Accordingly it is not

in air carrier within the meaning of the provisions of

section 401(a) of the Federal Aviation Act of 195s.

The complaint will be dismissed. An appropriate order

s attached.

Wiiuam J. Mapper

Hearing Examiner

une 16, 1972

Bere eewrers PEI SPLEEN LET I OBOE NOLS OT Oe NEE NT PIR I

(oy spt

“s rs Docket 23991

] Appendix 1

Page 1 of 1

fa)

GOVNEENIGE9

VOYAGER TERMINAL WEIR COOK AIRPORT, INOIANAPOUS, INDIANA 46241

Prone: 317-247-6221

MEMBERSHIP APPLICATION

(PLEASE PRINT)

CHECK ONE: HUSOAND & WIFE [) SINGLE [J

NAME AGE wire. AGE.

AODORESS. PHONE.

erry, STATE i

Vercvr

TITLE.

be BUSINESS ADONCSS. PHONE

~ Application is heroby made for membership in Voyoger 1000 Inc., @ non-profit poration in dance

with the orticles and by-laws. Enclosed is my check for $3! rep: ting my poy for: My $10 initio-

tion foo: first thres months dues (if within 100 miles of Indianapolis); six months (from 100 to 200

miles of Indionopolis); full year dues (more than 200 miles from Ind.anepelis. | understand that of the expire-

tian of this first poid-wp poried, | will be billed in advance for a similar time period.

Pleasa chergo my BankAmoricard A t No.

Master Charge Account No.

CHMDRAEH MEMCERSHIP

NAME act BIRTH DATE.

NAME act BiaTH DATE:

NAME AGE BIRTH DATE

NAME AGE BIRTH DATE.

NAME AGE BIRTH DATE,

Any chld 20 peers cf ser cr younger Leone at home @ aurmmercel’y Intute?

® pour membervep There ore no eddorel mort + Gere foe ese chogres

SIGNATURE

RECOM CNDED BY: (10M No. )

AOCAISS

lt FOR OFFICE USE ONLY i ee

MENCCERS uP COMMITTEE ACTION: APPROVED CHECK NO

DISAPPROVED a AMT. OF CHECK

| OATE OF ACCEPTANCE BY COW MITTEE

13Nt MUN CEA ACKNOWL COGENENT SENT,

CLAt. Care CERTIFICATE & CARDS SENT

a

Siled wa poks Stew

o4 2c) 1990

VYOYACES TRIPS

COMMS UP

Attention VOYAGER mombors

To he'p you plen ycur schedules

for the month of August, we are

listing four trips the? deserve your

special considerat ‘on.

VOYAGER

Aug. 6-10 Aurore

Reno Fun Flights (2) —Depart at $ | 69*

6 AM. Fit. 414 of 8 AJA, Fit. 2414. .ceeee

(Tele your choice)

All of the excitement ond g's rour of one of the UL A's

frou? @xc.uing cites, ond ome cf Gur Greatest Orang packazes

ever.

Aug. 7-9

TORONTO ZIP TRIP—Fit. <46 $72”

{includes air and Ground)... ceececreceeeces

Aug. 11-18

SAN FRANCISCO or DENVER ’ a

Flight to Son Frorcises.ccccecsscessees 140"

Flight to Denver. ....-s.cceeeeeeeeeeeces

Ground Packages: Derver $75.09

Aug. 25-30

MIAMI, FLA, —Fit. 453 Fly to Miami and $

oo easSonensioerst nike ean 74

Two g200t spots te “get ewer from it oll.”

SORRY VOYAGER MEMBCRS ONLY

For deteils coll 241-9212 or serd coupon below

Voyager 1009, Welr Cook Alrport, Indion: polis 46241

Gentlemen: | understand there is now @ lin ited aumber

of menbershi ‘lable. Kindly send information.

Pe

ADDRESS Peeeeeeseetere City eetenees ZIP wccesece

NAME SOOO TEE EET areas PHONE eeereeteetee

Docket 23991

Appendix 2

Page 1 of 8

Docket 23991

Appendix 2

Page 2 of 8

; 7

Onceanapstis Sbr~

(heeceot 2a, (940

DON'T READ THIS AD |

(Unless You're a VOYAGER 100) Member) h

This ad contans a Vhieg cf savoral :

soee-a! trae estes $9 wecbon of ’

VOYAGE! 1500--the worlas most |

weconlel travel clun. '

Aug. 7-9 VOYAGIR .

TORONTO Zi? TRIP—flight 445 oe

Lape Urea 4.0 re oF the Crghte *, te. 72°° }

eutcne ow P. eme Be ece Tene, mighe hte,

were ft oe Lg anee > Autre wmcheles |

i sh. Mt ea tee rere per perce vd

39. 18-19 $95250

LAS ViGAS SPICAL—Fiishe 469 -

i

Seed Cae cr, ot the cordtenent acd ¢' tter we t

Cr We We te ertet err crytel Paw -00008 4

" U

Aug. 14 '

SAN FRANCISCO—Fi!-%9 379 $7§°° !

One-mey Crh ee et retin teste sets ele

oble . . . @ une tome else ent, per pernen |

'

- Avg. 14

PAYSTERY IMHNER FLIGHT—Fir. 473 $9450

Ove of VOYA URS same gevclae Of ort 31°

we CON te. pow were rs arma Bt vee i

bere oo cre t nme Ames ce otes Pee, per vernen

Grownt booster cet court met ct en _

Chme tertauen

Aug. 15

_ MYSTERY DINKED FLIGHT Fit. 479 $9359

FUT Sie. ONL E Tay ence bea Seen

Sees So. aoe

wll So A ay See

Aus. 20 '

Horse Arcord of River Downs, Fir. £570 $9569 4

« Veer 2FG beet Cun . Cur mentors Hd Os.

H cers ee tre wer ek, Astlomce omeliiey per perean :

9° Moet. oe tba on, leche, Cmplegn.

{ tory tie Peer, 4

.

- - !

; Aug. 25-20 $7409

4 MIAR, FLA. anim, 453 4 ‘

¢ Bee trey tet ce Beane tem trengscrty Per penen |.

é ton oO

t VOYAGER Me:sbers Only S |

case 241-9212 A = >t

. For Flight snd For ae > f

» Men bershi ip Information sovessa ¢29

So SP OS

ol

i]

(POOR OOO CO Oe COR ees erase e eee sees ee OOS Sees

“*

POeeee errs,

ini pai

FiyTo w/t ee

OMA NAA CSS QE

iS SEE be

LEN Rote

WF VOYASIN 1639

voracirn sa 4.69 }

AIRSHARE «= “G9 | Ca

Voyoger Fir, 382 Departs Indianepolls Sept. 11,

Returns Sepe. 27.

Optione! Growed Pochose Avoleble

Other Voyoger Filghts Coming Up:

o- wre Aus. 27-30

Rulon a 0

4

Ci rent ot Leee Geneve Wa, wes

80 eccemlol thot were remay fer

enwrer ee ning wertent Pechoce mm.

Chten Avabore, hovel, teves

ve am—Sept. 17-20

a ae

Recs, sem pom teh ond Wernustly

error yrune’l om me Mercon toed Pa oO

tevret, Voyopes Omere pm bcge ’ ¥y

Cee acer det 8 et tre kev

Comvell Hore! of meas e-¢ gennd

tramsions Onn cnal grand gmacce ar'y

$70¢0

ve Sept, 17-20

MYSTERY FUGHE .. 2...

We cont tell you where the fight le

erro . . . OF een eroctra we

Reod-g berouw ther weg lenes te SON

Prvitery Gert ag ot We cen tell you ¢ i! e.

thet the Arvbore eciudes © Mt eure }

McOmwerserinns, internstene! Trove! toe ce w

Ord © Corelree Clr tere -

VOYAGER MCIMCERS ONLY...

Did you ince that Voyocer 1009 dees ove only $6 per

month... end thal you cov j>'9 f+ 's ectlative cooper

five trowel cled for on'y $26 dows?

4 you bie to trove’... think VOYAGER

Coll 241.9212

Fer Membership and Reservation Inlermeree

CO Pee eee Oe eee eee eee ree eeesOeeeeeeeeeeeoeeeeeeees receeeeseeoeoooses

$ Voyeger 1009, Weir Cock Airport, Inc onesotis 66261 :

i Gentlemen: | understand there is now @ | mited mums :

ber of memberships available. Kindly send information, :

4 NAWE seoccccccccoseccsecccces PHONE Seeeeeees 3

© ABORESS occcccnse eats a eS

aed « See eeoese ree seoes

: ;

bd *-

: :

; oo vou’ 8229 ;

Docket 2399

Appendix 2

Page 3 of 8

Vor r-eew

Helens Y

Tipe

es

grote ane

———_—

Enk nua

petty 10,1990

52

and you'ro

Erna tho whole farwy Weew 678 of ost fect of

OC-7 n. Hear tho Veoreorr 1069 cory from te

nerdy perme wh ove TK

CCsstul Co-( parties Heels

and imecelyo otoorn 4.

JOP! TZ Wat weil Go ind Lorvico fata Ute sume

ner}.

Voyarer 1202 le a mors c-ownos ron-prott

Compers".on, he.

Bagartate Zin Irs: A508 >. at

cea tert clea pines caclue

o ty its metrdurs MH ctture 9 fur,

or ant oe aceomtore of fy: 19

vars gu fra clas3

C3 aeu'tsdD'o BMy*

the cvuce

epo's wiever Hoghs > ’.

at the moet econmercel p

wc

in ieguamgpc's Voy2s7? 1053 bast Delt Its

members 12 tthe bert tee yous to ovcr 6029

ous y. Won wrist

. Our reserva

poopie. tee take ur fur

@ civ ct 43 fell

tions ace gro-r-

Voyocer cud mem"

220 Acapu'ce, 8-2552u, Haws.

alee?

licw wots exper to sree 18 (a1, Out tew

’

edvaris

As a gataleg of ime biog ef tens you ute

olfered, horn are just @ tow of tha realy 29

Pights Vey wor hes achedvied fcr ile memvers

$9 Jutg og An gett.

cer OOO syprea

3!

ac cya i

ree ie

ee 28 -_ es — or - ive

- allie ’

. ne Sates |

ae oe

the world’s mosi successful travel club

is now in Cincinnati

invited to our open house

Sunday, July 12th at Lunken Airport. 12 noon to

8:00 P.M. in front of the Garcinatl Avcratt Corp. Main Merger

free refrechirccats

and enierisinment

Dele Desiinsi’on Your Shere

7/1419 «Mexico City 43500

(Groved Pa he5e e4co

TW2rli2 Fraps Trip 18400

Caso Tee 6.40

(incisces 71¢& Ground)

B/G-23 Frerklort—Cterammergew 283 00

Ground fF. kaze 46409

(ircludss tckots)

8/20-3/5 EXPO '70(Tok;o} 79269

E>cise To tw

(Total of 21 Aw & Cround)

{indianepols Departure)

In Seciember cur rew jet cocs Into eervice.

During that ere mons i well Corry Voyager

memicrs to such ofsc-6 63 Los Ve 3o8, Acé-

puico. Jamaica, San Ju. ard texss1

Fhgh's vali pen tes hccs'cS for C.ncinnss

Cepeture. There ll Dolo ginpserd short tips.

Trpe Gerigned for yo~ o- S Voyaser mortar.

Acdiication forme wi te avzi'ed'c gi cur open

hove2

”

at

Cicrinraty B rcvalt Gorp, Termorat

7 '

<6":

i. 3

Circrrrate, OO

Docket 23991

Appendix 2

Page 5 of 8

53

CAMA RE

SbGnuacucococgsgGd

--«

p Ish

——..

OSLER MGEI*

TRAVEL WITH US...

$133.00

aun

VANCOUVER, CANADA

Breen pvene pec uege,

erin

FREEPORT, CANAMAS

pucets) rast and toed

sem mite

MYRTLE BEACH, SOUTH CAROLINA $159.00

ts Bree

Gasser: Braet bee.

Sorry, enty Voyecer 1063 eee ters can tohe cur trizs.

Fer ialormsinen cou 221-2559

Ooh his 6/x2 y/

$102.60

Veyegcr 1603, 6242 Lirgert Seas

ti, Chie 63236

Gentlemen: | underrond thee ® now + lrted mumbo

Of memoz est ovokcse Bondy bord mliorncion

Gocopccocececscoccoscoce

MALE ...., Prone

ADORESS ... -oTy 7

Gcoucoaaossnuanoasoscapee==—e=

5 OD ae rr |

H

;

Docket 23991

Appendix 2

Page 6 of 8

VASE NEES TENET ERNE Ten Nea hie ome

ME LAP ue eh apt

VFPE TR OM ENT RAT M4

Feidev, Musee Lo 1958, The Tritwine, New Aleany. Page s

Docket 23991

Appendix 2

Page 7 of 8

CVYoyad le ah

aft it

Spreads t LS VEL SS

ene Sans nemovers monn © ey - se —

' $

ee {.

j Me i

7y ‘

: -. a Se ait

ae ~~ Fe o * pe ET

H . i

-a

ae -_— , ®, i:

- <4 , o- 2a2n 4 <2

“s ee ee Was ‘

¢ on oe . <a aa ad | sot, ‘ ?

te —— is ~~ om" ane ae

= : oe!

: 5 ‘a

; a |

has | : .

r .,

.*

-

- ‘

i

e >=. . .

—_— ~ 2? ~

ae Oe pe oy Pi, Sol ah

: D vat dri Ys) ie 1 ee

nw a a — Te Revie oa ot? ming Peed --% . —— |

{| the world’s most succes sfut fe club

is now in Loutsville

ORS RO I BO CTR BE

do

and you're invited t. our open house

Sunday August 16 at oon aan

Standiford Field (SSctenenmec, "“seots

12 noon to § PLM.

Stangitord Field Air Cargo Terminal, (entor from Harding Avenue)

INITIATION FEES WAIVED...YOU CAN JOIN FOR ONLY £36.00

(6 months dues down... Total years mombership duns just $72.60)

Bring tha whole family. View one of our Heot of OC-7's Hear tha Voyager 1000

Btory from tho fricrtly poopic who vo made it the most successful Co-operalwo

travel Club in thn word... and the only ona to own a jat.

Voyrqe: 100 a Inemberowned non proht corporation, beadquartered ot

fad.anapots, thot owr.s and operates a ticet of sea planes eaciuevely for use hy

tamemnbe:s Hotters ine fun ine egutalon and Lie adventura of fiyeng to spats

all ever the globe. Members go first class al tha most economical prices

availadin anywhere

+ tn latianapcls Voyager 1000 has built as membership un the last fiwa years

fo over 2004 pranie We taka our fun serousty. We miamntan a ata of 44

full-ume employees. Our tecarvations ara processed by IDM computar. Last

vear Voyacer clit) mempers Hew 69 milion seat miles... to Acapulco,

Nassau, Hawan Spawn ('o mame a tow!

Vayaar has been so successtul that we ve aCqQuued AmaAGM tanse Roewrq

720 Jetener designed to Oavrata on routes wp to 2 S00 nauncal miirs wilh 189

Passenoers. US Purpasre 1S tO Frowdcie Our Mamhers Mora tnps at icss Cot,

Our professonv fegnt ang maentemance Crows ara highly trauned and tuly

FAA-quaited Srvied top planar. sound Busness management, and a

frendiy lod atmosphere hava macs Voyager 1009 tne tasicst growing travel

Cloud on toe world. And the only one with a yet.

Now were cager to share the fun. Our now Louvieville Voyaqor 1000 club

welcomes erpenenced travel club membors wilh @ special price advaniag’®

oe. dues Cut SQ%e Lveaif you ve never belonged 10 a travel Clun hefore... you

can now tly to tha most teautful spois on earth... al prices you never

Areamed porsidle

As a ramping of the bind of tops you ll De offered. hare are ust a fow af he

Nearly 20 flights Voyager has scheduled for iis members in July and Autust.

Dale Destination Your Share

9 26-28 San Juan, Puerto Rice $148

Jot Front MSO Ground Pacsags 49m

m79-4 Panemes wom

Fignt 4a Ground Package 7200

v. 1@9R Canbbdecn Carnival 20

Fiegnt <64 (Arr snare inciuaes hgh. hotels, (tora!)

Wanslers. S.tes Of G18 Avents)

11/24-39 Margarita tstene (South Amrnca) 21300

Fioynt 475 Erctuteas [eght, hote's, 2 mer's darty)

19/24-122 HONOLULU 320.48

Jet Fiigtt 3458 Grounc Package 14809

(Incianapolis Departure)

In September our now yal anes iala sence During that ana montis it will

carry Voyager members fo such places as Las Vegas. Acnouico, Jamarca, San

Juan, Bod fiassau

Fights wil soon be schetulad for Lowswl'e Gepartice Thera t! da fang tens

Ant short ings Traps cas qren for you rs m Voyccar

meober. Applicaton forms wil Ga gwarad'@ & Out

open house,

LIEN PRE MP

-

Tere

ALO PANS RG YAO INE PIU UOT OM, LIB IS!

Date IAL FA

yey,

ey

Rey, 20 COPY >

Set Scheduie

Fit, 34co—June 622 Deperture 7:CO P.M.

COPENHAGIN-ZURICH ..------------- .-. $249

Vius tntermational Vas ~ $100

Ground Pachacet Cicerere Upon payer from $1*2.00 te $43).00

Bequued Pavgot!. Smeiyos Yar

3489—June 13-29 Ceporture 7:00 P.M.

* MADRIO- TURMIEN occhecose=sceees<e<> +09 rd

Pies tnteenetions!

Grewnd Pachaces itinerary Upew munene (rom si30.00 re gst0e

Required: Fasport. Smsitvow Vee.

Flr, 3484—June 20-July 6 Ooporture 7.00 P.M.

COPENHAGEN-ZURICH ..-..-------------- $249

Pies Enternatisnel Tew $389

Ground Packeces iinerary Upaa Mequest: feom $150.00 te $415.08

Mequired. Feryurt, Smsiinow Var.

2p, 3481—June 27-July 13 Deporture 7:00 P.M.

COPENHAGEN-ZURICH _..---~.----------- $249

Pies International Tes $500

Grownd Packaces (inrrary Upon Mequet) from $150.08 to

Reqeleed: Paryertt. Ymelipor Vac.

Sir, 3482—July 4-20 Deporture 7.00 P.M.

BRUSSELS-ZURICH --.-.------ cicanien eee

ations! Taw $300

Ground Packaces titinerary & = sequesm $550 08 te $970.00

Beguied. Smatipor Vee.

Fit. 3463-July 11-27 Departure 7:00 P.M.

PARIS-ZURICH _.----------- a ae $249

Pies Intermational Tay $302

Ground Pacheces (itinerary Upon Request) from $150.60 to $379.00

Keqar *. Passport, Sawasilpus Vac.

Fit. Bac6—July 18-August 3 Deporture 7:00 P.M.

ZURICH, SWITZERLAND Se eg at ore $200

Pies Internation at

Growad Packaces tliineraty Upon aa: tom Herre ro sycee

Required: Parpurt. Smeiivos Voc

Fir, 3405—July 25-Avgust 10 -Deportura 7:00 PIA.

AMSTERDAM-ZUNICH ...-------------- a ~-$249

Groved Packares (tiaerary Unon PE en anor $130.00 4 aloes

Keguirgd: Ferport, Ymsiipon Yee

Fit, 3480—August 1-37 Deporture 7.00 P.M.

MADRID-ZURICH ~-..----------------- - -$246

Pies Lotern 2

Ground Pachaces sItinerary Upon Request) oom "ae 20 we SR

Requled: Pavyort, Smaiipos Vac.

3487-Aucust 8-24 Deperture 7:00 PIA.

MpARis-ZURICA Sata pelea ner So $24 x4

joternstional Tas

Groond Pachaces (liinerary Uper mien from $150.03 aS gyt0.s0

Reguued. Farwurt, Sma'ipou Var.

Fit. 3490-Avgust 15-31 Oeporture 7.00 PM.

PARIS-ZURICH ....------------

Plot Inferreticnal Taw

Ground Pachares (ttiner: + Upon Request) trove sic ow ieee

Meguired: Papert, Smeipoa Sac.

Fit, 3691-—Aug. 22-Sept. 7 Departure 7:00 PJA.

SHAISNON-ZURICH -.------------------- $249

Viv Baternstional Tex S18

Growed Pachaces Utinerary Unen Reguent? from $150.63 te 18

Kew Varnpert, Smsiipoa Yee.

Fit. 3492-Aug 29-Sept. 14 Departure 7:00 PMA.

MADRID-ZURICH ------ woceccecececooce= $249

Piet letercasions! Tas 5368

Creed Wesbeore Uvieerary Upon Reqeett) from 3190.60 te $079.69

Kegerrd. Payor, Seulizoa Yor.

Fim! Felusd De’ o= Da fe that Vorager chet will he teed ff camello-

oom ercereed 3 dave prow ta wheduied Gepertite.

he ALIAS 3 een

aAcarrryp wv 7.7?

VILLE

“ee

“@

-

'

7 aenase

o.$04

sane

42 Airport food — 45226

ay ae

VOYAGER 1000 KCADQUARTERS

1 (513) 321-2969

Weir Cock Airport

Indicrepolis, Ind.

¥(317) 247-6221

VOVAGIR CINCINNATI

Stendiford F.cld

YCOYACELR tO

1(50

Ces Terminal

“

-

r4

a satin

omsic

$62-4uno 2-6 Ocpearts 7:09 o.m.

ON iO BDAY, JAMAICA __..----------- $108

Viet lotercetional Tet $3.00

deh Pachuge (Casa Monte.o, 3 Meals Wally) $59.09

qubeds Devel of Clreoss'9

663-June 3-6 Departs 7:00 o.m.

. LAUDERDALE, FLORIDA --.------ pameainial $79

» Motel Package

6$4-June 4-6 Dvports 3:00 p.m.

tw) ORLEANS Zi? TRIP ~.-.------------ 2369

aledes Alp a03 Motel Tecluse) Mosteleote

663-Juno 5-6 Departs 4:00 p.m.

MMYAUNCE, WISCGHSIN ZIP Til? —-------- $45

WWAUREE USAC 150 AMILE CHAIAPIONSHIP RACE

aiedes Aictare, Motel, Race Tibet wos Traasters) Meléay les

6$5—Juno 7-10 Doports 7:00 c.m.

CAPULCO, PACXICO -....--------------- $132

$24.00

oul Peckase (Paraiso Marriott)

qured: Toustt Card, Proc! of Citiensbip

626—Juno 10-13 Departs 8.00 a.m.

ONTREAL, CANADA ...----------------- $60

Piss Lotcrestionsl Tas $3.00

fel Package (Sberatoc) se

peed: Proof ef Cicutad'p

$$6—Juno 11-13. Doparts £:00 o.m.

EEPORT, CAHAIMLAS ZIP ber~4 nen aaeamane

Pies Letercaticcel

tieées Aly x4 Mets) Pa-kege) Occacus

pir Groct of Cluucibia

$65 suno 31-13 Departs 6.00 6.1.

ONTEGO DAY, JAMAICA ..------------- $103

tel Palece (CcsaMfostess, 2 Meas i Vay)

nied: rod df Clicciip

$85—Juno 11-13 Doports 2.60 p.m.

INGLES-NELY VOR CITY, ti. ¥. ZIP ThI?...$60

wbeécs Aly 028 Cote] Pack-s2) Copid Martetca

$09-4oy 17-20 Deports 6.00 ont.

KE LOUISE, CARALA -...-------------- $125

Pics Isterratiamad Tax 53.09

ei Pockcse (Cocteza Lake Leatse, 2 Bictls by) $luss

pied. Prod of Cluccailp

467—June 17-20 Ocparts 7:00 o.m.

NO, NEVADA

tel Packsze (ichioy Metc) er Sictez)

W0-Juno 18-20 Oeperts 3:00 p.tn.

W ORLEANS ZIP TRIP -------- SEE

Jades Aly ccd Wisse] Peckoge) Ptastci-2e

69—June 18-20 Doports 7:00 o.rs.

-$142

ws

Pies Iocetmsts Jit Rw

cledes Aly cad Mole) Peckcca) Peake ine

pied: Proc! cf Cited

127=<June 24-27 Departs 7.00 a.tn.

FETERSCURG, FIORIDA ........-.--2--- $79

Motel Pachaze

70 "une 24-27 Departs 12:15 o.m.

TE. TIONAL FAYSTERY 477? ~2.-- pen eee

Pies Loierescosal Tas 53.08

thudes Ale cad Licte! Package)

saled: Proof of Citizerniip

186—June 24-27 Dcpurts 5.09 om.

ANCOUVER, CANADA -..-----—------ -$120

Piss Teterantivead ‘Tes S360

tel Pechegs (Cicpress, 2 Meale Day) ew

tebed: Bevel cf Cileeerktp

57

Oo eR Rae.

2 ADVE = 45 Docket 2399:

({Sorecs: Appendix 3

Page 2 of 4

rors

QD eo

Fit. 634-—Juno 25-27 Deperts 7.00

FRILPONT, -SAHAMAS ZIP ba enccesccassos £99

Gacluces Alt bod Muse! Package) locum

Meguired: Proof of Ciuu-es tp

Fit. 548--June 26-July 3 Departs 8.00 o.m.

MIAIAL, FLORIDA (SHRINE CONVENTIC?) $75

No lictel Pachue

Fit. 549—June 29-July 4 Deports 8:09 o.m.

‘MYRTLE BEACH, SOUTH CAROLINA ZiP TRIP. .$1S9

Clictedes Air asd Motel Package) (Oceas Forest, 2 Bicals Daily)

Susy

Fit. 687-July 3-4 Departs 7:00 o.m.

FOCANO S09 RACE ZIP TRIP ........-.--— $64

(lactedes Hots an4 Tickets) Hutce

Fit. 778-July 2-5 Ceports 8:00 a.m.

FREEPORT _..-. amen $110

Ten $208

(Mactedes Aw asd Tlotel Techage) eum

4: Proof of C

Fit. €03-July 8-11 Deport 6:00 o.m.

"KENORA, CANADA ZIP TRIP -...--.------ 9159

Pies LateresGoed

(laciades Als a34 Hote! Packege) Devils Cop Lodge

(Inelsées Meas, Boat, Geide)

Regared: Pirvel of Citucqukip

Fit. 671—July 8-11 Departs 8:00 a.m.

QUEDEC, CANADA ---.-- eccoucuscsrses= -$70

Pies teterestcant Tex Site

Flote! Peckase (LcCustcea Froetenes, 3 Picals Deal) wae

Requiree: Proof of Ciascastig

Fit. 688—July 9-11 Deports 2:00 p.m.

—SINCLES—NNEW ORLEANS ZIP 1RIP .........£69

Gactetes Az and Hotel Packise) Mectekone

Fit. 604—July 16-18 Deports 7:00 a.m.

FREEPORT, BAHASAAS ZIP TRIP _--...--- ---$99

Pius Laserenctenel Tes

(locindes Aur eed Motet Package) Oxecacs

Begares: Proc! of Cutseacdi2

Fit. 672—July 16-18 Departs 6:00a.m

“WILLIAMSBURG, VIRGINIA ZIP TRIP _..-... $89

(laclades A nad [lote! Package) WClamserg Bieter Lae

Fit. 689—July 21-25 Departs 2:00 o.m.

ST. PAAARTEN (INETHCRLAND ANTILLES)..---- $150

Pius Ictere:tioced Tom FACS

Celt Fe. gs (Lite Bay Trech, 2 Miezis Deu) $5940

Reccircd: i roof of Cluzeostiy, Gmalipor Var.

Ht. 779—July 30-Aug. 1 Departs 7:00 o.m.

FREEFORT, BAHAJAAS ZIP TRIP _.....-... --$99

Piss leterestoes) Tua $340

(acta tes Als aad Hote! Package) Orvanes

Regeired: Prot of Chucas>

Auguss

Fit, 780—August 5-8 Departs 7,00 a.m.

SAN JUAN, FUERTO RICO epee wenn nnncee -$139

-Flotel Pactage (Ames‘cesa!

lBequreé: Proof of Gurecthip

SE eT

AG ET PPR

ba ih

Sy DCA ID

Oe asl Te Aaa

Bererencenes

- o ee.

Reyess (Com isricd)

. 701—Augu:! 6-8 Departs 3:00 p.m.

NEW ORLEANS ZIP TRIP ~.------------+---- £69

dlactudes Ale ood Mot.! Packeze) Moantehone

+, 690—Auqust 6-11 Departs 7 00 a.m.

TORONTO, CANADA -.---------------=--- $30

Pius Intervational Tas

Hotel Packece (Four Seasons) $8?

Riguied: Praul of Ciilscarhly

t. 782—August 12-15 Deports 6:00 o.m.

MONTEGO CAY, JAIAAICA --------------- $

Plus International Tas

Hotel Packaze (Cae Montego) $76

Required: Brvof of Culseassip

1. 783—August 13-15 Ocparts 7:00 a.m.

. FREEPORT, BAHAIAAS ZIP TRIP _----------- $99

Pius Interwetions! Sax 153.00

(foctudes Ale cad Mute! Vackoge) Oceanus

Hequired: Proof of Ciieartip

t. 784—August 18-22 Departs 7.00 .o.m.

ST. CROIX, VIRGIN ISLANDS -------------- $135

Plus Intermational Tes

Motel Package (St. Crole by the Sea, 2 Meals bas “suis

Required: Proof of Ciileortty

t. 691—August 19-22 Deports 6:09 .a.m.

KENORA, CANADA ZIP TRIP .------------- $159

‘bluse Totemational Tas

(lectudes Ate ard Motel Pachage) Devits Chap Lodse, lociudes meals

boet and

ie

Requued: Proof of Citlieasdio

,t. 785—August 20-22 ‘Departs 7:00 a.m.

_ FREFPORT, BAHAMAS ZIP TRIP _------—--- $99

Pius foteruationc!) Tex $9.00

(leclow . Ale and Hotel Package) Occanus

Requires: Pruof of Cuilensbip

*t. 786—August 25-29 Deports 7,00 a.m.

LOS ANGELES-DISHEYLAND

"Los Anketes Package (Hotel: Statler Miitood $79.00

, Disaeplaad Pacease (Motel: Disocylacd Mored $9v.08

. 787—August 26-29 Departs 2.00 a.m.

| ARUBA (NETHERLAND ANTILLES) .-.------- $160

' Pius istercaiioens Tas duns

+ Hotel Package (MoUJey Ino)

! Requires: Proo! ef Citizeosbip

‘It, 788—August 27-29 Depars 3:00 p.m.

| NEW ORLEANS ZiP TRIP pe REE ET

(lecluées Als and Hotel Package) Moa'eleose

September

i

It. 692—September 2-6 Departs 12:15 a.m.

1 INTERNATIONAL IAYSTERY ? ? ? ---------- $200

® Pius loternatioas! Tax 890

(loctades Ale end Motel Pechage)

Prost of

H Requues: Chunotip

It. 550—September 3-6 Departs 6:00 a.m.

' LAKE LOUISE, CANADA .-.--------------- $125

4 jus International Tax — $309

| Hotel Packoee (Chateau Vase Loulse, 2 Meals Day bine

Required: Proof of Citueaship

Ir, 551—September 3-6 Deperts 68.00 a.m.

LAS VEGAS/ONTARIO 500 RACE ZIP TRIP___.$220

fine Als asd Motel bache,e aad Tibet) Tropkecs

“it. 6ye—September 3-6 Departs 7:00 c.m.

FREEPORT, DAHAMAS ZIP TRIP ----------- 2$110

Pius boservstiocal Tas

Uncludes Ale end Hotel Package) Oceasus

Reqsued. Kroot of Cilliensiip

217, 694—September 9-12 Deperts 7:00 a.m.

ACAPULCO, MEXICO ~-—---------------- $132

Plus International Jas

58

Docket 2355;

Arcludes Ale and isoret Parbese) Treassre Cay Yaced

Required: Proof cf Citrensalp

Fit. 791—Octcher 7-10 Departs 6.00 a.m.

MONTEGO EAY, JAMAICA - ~~ ---~- ~~~ ~> == ~

Vitet Pachoge (Coss Mostra, 3 Meals Lraurt

Barter Ct LSS Appendix 3

* Page 3 of 4

Flt, 696 -Sepiember 10-12 Deports 9:00 a.m.

TREASURE CAT, BAHAMAS Zi? ee &

dloctudes Ale md Hotel Porkare) assenee en te nie ’

Requised: Broot of Ciierlog

Flt. 697--Septer:bor 10-12 Departs 7.00 a.m.

NASSAU, PAHAMMAS ZIP TRIP -----------~- ae

Plus Lotermationss Sas!

(lactudes Ait acd Motel Pachace) Wlegler

Required: Proof of Cititeashia

Flr. 789—Septemoer 16-19 Departs 6:60 a.m.

BERMUDA ---.---------------------"2 onl

Pive Ieterwationsl Tag $)

Single Supplement he

Hotet Package (Cale Harbour, Includes Two Meals Dally) Siu

Requlird: Proof of Cituenbly

Fit. €99-—September 17-19 Departs 7,00 a.m.

LAS VEGAS, NEVADA ZIP TRIP a

(lactudes Als end Hotel Package) Hacienda

Fit. 700-Septernber 17-19 Departs 8.00 a.rn.

‘FREEPORT, BAHAMAS ZIP TRIP cccccacccesel

Pius lotersetioca) Tas 4)

(octudes Ale aod Hote! Pakage) Occasus

Required: Proof of Culrensble

Fit, 701—September 23-26 Departs 7:00 a.m.

COZUMEL, MFXICO -..---------------=-- $i

Plus lotersational Tas 5

Hotel Pecheze (Cantare!l, 2 Meals Wally) em

Required: Tourist C23, Prof of Cittwemaip

Fit. 790-—Septernber 22-26 Departs 7:00 a.m.

VERA CRUZ, MEXICO --.--------------= mo

7 Pius Laterwacoes! Tas 1)

Motel Package «(Sictumto, 3 Meals Daly m

Requised: Proof of Cittaeesbly, Towrts! Card

Fit. 703-September 24-276 Derorts 7:00 a.m.

FREEPORT, BAHAMAS ZIP TRIP ...-6-<- aan

Pius Laterwational Tas 4s

(Mociudes A end Hote! Package) Oceasss

Required: Proof of Cithensdip

Flt. 754-September 24-26 Departs 9:00 a.m.

TREASURE CAY ZIP TRIP -...------------ oe

Pius fetervetiocs! Tex

(octudes Ale and Hotel Pachage) Treasure Cay Yorut Cd

Required: Proof of Cillreosb!p

Flt. 705—September 30 October 3 Departs 7:00 c-

ACAPULCO, MEXICO -.---------------=-- tz

Piss Iatersationa) Tas S$)

Motel Packase (Pareto Marriott) “

Requised: Tourtst Card, Proof of Cituensdig

Flt. 706—Septembe, 30-October 3 Deports 8:00 a-

PUERTO VALLARTA; MEXICO ------- aie $i:

Plus toternatieoal Tas ‘>

Hote! Package (Posada Vallarts, 2 Meals Daur ve

Req ised Towrtst Curd, Vroof of Citicensh'p

Flt. 767—September 30-October 3 Departs 9:00 o-

GAIT) < oon nncccnncecccee--sere=s-5ece" 1

y Pius Internatiocal Tas f!

Hotel Package (Castietalts)

Mequired: Proof of Cituensdlp, Smalipor Vac.

October

Fit, 708-October 1-3 Ocparts 9.00 o.m.

TREASURE CAY ZIP TRIP ------------=-5 a

Pive International Tas &

Aan” Ganss08%

Ortiowr 4 ( er ee Pee tor)

9. 792-Octobor 7-10 Departs 7:00 a.m.

MAZATLAN, MEXICO ------------ ciaewaree $120

Twos Totereatocad Tas os 4

Wad Package Afutel PLya, 2 Masts Do.)

Kegulred: Proof of Citlcadlp, Torts Cad

t. 793-Ociober 8-10 Departs 2:00 p.m.

Ivy CMLESNS Zl? TRIP ...cccce iene $69

(Lacldes Ale cad Tlotel Vechage) Muol.teoue

4. 711-October 8-10 Deperts 7:00 o.m.

LAS VICAS, NIVADA ZI? TRP -....----2-- $165

(leclodes AL ad Motel Pockeze) Maci.cle

$. 794-October 14-17. Doparts 3:00 a.m.

ST. CROIX, VINCI ISLANDS -..-.--------- $135

Plus lotervationad Tas $3 °O

Hou! Pechage (St. Cris Dy The Seo, 2 Mieals Bally) Sisco

Required: Proof of Ciuc vile

4. 714-Octobor 15-17 Departs 7:00 o.m.

FREZPORT, CAMAMAS ZiP ThiP ~--.------ --$99

Vive laurmaticaal Taz 860

(ectades AU and Mote! Package) Ocearus

Required: Proof of Cilieotip

4 795-Octobor 21-24 Doparts 7:00 a.m.

$7. THOLIAS, VIRGIN ISLANDS ~_...------- $135

Vine Loteresitons) Tax $3090

Rote) Packsge (Pisessple Deak, Lactudcs 2 Meals Dauy) $9.00

Required: Proof of Ciuiea.ilp

& 796-Octobor 21-24 Doparts 2:00 a.m.

SAN ANDRES ....-.--------------- ~----$149

Pius YotersUosal Tas = $* 0)

Motel ~* Aage (EI) Lsleco, Esclases 2 Micels Daily) $52.09

Requ Proof of Ciilzeos'p, Toortst Card, Sual'pos Vee.

& 797-October 21-24 Deports 6,00 a.m.

ST. LUCIA .....-..--------------------- 1

Pius Loterestioes) Taz = $362

Flote! Package (WicliZay Too)

Required: Proc! of Ciuzenstia

& 798-Octobor 22-24 Departs 7:00 a.m.

LAS VECAS, NEVADA ZI? VIP -------- ----5165

— ilacledes A end Rotel Package) Meciecds

, £.799-Octobor 28-31 Departs 7:09 a.m.

ARACAS cancccccwnccoscesoseeo-s= ---$165

Fou) Pukese (*laccta Sberaicn) 6

Pegeled: Procol of Cilieost'y, Tourtst Card

* & 800-Octobor 28-31 Departs 7:00 a.m.

“ARUBA (LESSER ANTILLES) -.-------------- $169

Package (Sberstoo) so te

- 4: Proof of Citizenship

© & 001-Octobor 28-31 Departs 0:00 a.m.

CURACAO (NETHCRLAND ANTILLES) -.------ $149

2 Plas Ioterestivaud Tag =$*69

o Botel Packeze Moterecetoeo's)) iw

7 Froof ef Cilicia

* € 602-Octcber 29-31 Departs 7:09 a.m.

FREEPORT, DAMALAAS Zi? Rie nineteen aaeeee

[wry

Gsclutes AU cod Note! Vachege) Oceanus

Bequind: Proof cf Ciuzer sip

$F @Bhore cont indvdes 6% excise tox wi ore cppcol'e.

© mad Pochoge Includeo—First Class hotel eccomecdaulcns, tervice

Gorges, hote! tomes, tromsfers, arnsionce tiough wnmm' grater

WWegege herding.

" OV peincides Alrshore ond Ground Pochoge

i] Relved Cote—Date thot Veyoger check wil be issued If enn.

Ver callotign reveived 30 days grace to cchedved Comrive

59

~YyI

CO mene pemes Te asta Hq Docket 23991

IC w*w és a attend us Appendix 3

Pochoge prices listed below Include oir ond gr Page 4 of G

hotel occommodetmns of the Princers Kowluai

fora, leggoge handing, oll service charges ond tunen

per p.rion

If rozorvations are moze befora Juno 1-----0259:

If rozorveiicns cre mado belforo Ausu:? 1--..-- £319

If retorvotions ore mada oftur Auguti 1-----.-$25?

Wt. S59 cnccee-Ce® Se 8

A Fi. 3470 -2--22-Ost. 9-15

FUCHT Flr, 2679 .-..-.C.2. 16-22

SCHEDULE Fi, 34572 ..----- Cer. 22-22

Fi. 3473 2.-Oct. OO-Nev. 5

Fit. 34674 .-..---Mov. G12

Veyerer Family Flighis ts Azzalcs

Pockoge prices listed below indude oir ond ground, including hore!

eccommodotions, ground trensfert, luggoge handing, ell servae

chorges ond tones, plus crsistonce through customs wpon return.

Supplemental charge of $105 for families of more than 5

persons.

per parses

Firs? Porson ..-.-- $269.00

Socond Person _.. $169.00

Eoch Child .......-----<<- i ee

International Tox por porton ....--------- $ 3.09

8. GOOE cacccece duly Say 10

np Fit. 9002 -.--.--- July 10+duly 17

trate Fit. 9003 --..-- widuly 17+duly 24

SCHEDULE Fi. 9004 .....- wuduly 24duly 33

Fle. 9900S ...-.--- duly 31-Aug. 6

The Fiscal Refund Date ts Play 31

All fights cepert Voyager Terma! 710 AM.

Tourist Card & Proof of Cisco ip Required

Hoteh—Pareiao biarrmit

Voyayer Fomily Flights to Preezost

Packoge prkas listed below incduds o'r end ground, including eccom-

modst.ons ot Sholimar Rotel, ground tronsfers, lvggoge hordi.ng. oll

service charges ord tones, plus cesionce throwgh Cuties wpon

teturn. ALL MOTEL FOOIAS CONTAIN KITCLENETIL

Supplemental charge of $72 for lames of moro than §

persons

BucRc KY 1) AFTER AY I

pcr partes

First Perton ..----------- $129.09 $1359.C9

Second Perron ..--------- $107.09 $119.C9

Childron (32-10) ---------- $ 79.09 $ 69.03

Childron (Uncor 12) ------ $ 59.09 $ 69.0)

International Tux ~-------- $ 3.00 $ 3.09

Flt. 629 anccocce- July 3-July 30

ge «+ Reape July 10-duly 37

sour Be a a I

° ° tt, 632 «cecoceccee ue wee .

SCHEDULE fy 633 2.222. july 3 Mrs 6

Fit. 774 ccccccccccocceh yg. Fete

60. 778 cnccaccccecuus Aug. It)

AL fghw apart Voyezet Tern sal SQam

LeQS ROE ILL YT E REY a

VENT I Ree ORALLY ET EY MEE D1

EXHIBIT B

Order 73-3-1

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D. C.

Adopted by the Civil Aeronauties Board

at its office in Washington, D. C.

on the Ist day of March, 1973

Voyracer 1000 )

Apam Rueckert, Individually

Rosert J. Fixx, Individually

A. Lee Cuirrorp, Individually + Docket 23991

Respondents

Enforcement Proceeding

ORDER

A full public hearing having been held in the above-

entitled proceeding, and the Board, upon consideration of

the record, having issued its opinion containing its find-

ings, conclusions, and decision,

IT IS ORDERED:

1. That Voyager 1000, its officers, directors, agents, rep-

resentatives, successors, and assigns cease and desist from

engaging in air transportation in violation of Section 401

(a) of the Federal Aviation Act by holding out to the

public at large transportation by aircraft for compensation

or hire through membership in Voyager 1000 or any other

similar organization operating in a comparable manner.

2. That this proceeding, insofar as it relates to Adam

Rueckert, Robert J. Fink, and A. Lee Clifford, each indi-

vidually, be and it hereby is dismissed.

60

3. That this order shall be effective sixty (60) days after

issuance thereof, provided, however, that Voyager 1000

shall during said 60 days discontinue all advertising and

public promotion of Voyager 1000 membership and serv-

ices, and shall not during said 60 days accept any new

member.

BY THE CIVIL AERONAUTICS BOARD:

Harry J. Zink

Secretary

(SEAL)

Bree ere ari 12 mars rere mire neni

73-3-1

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D. C.

Voyracer 1000 }

Apam Rueckert, Individually

Rosert J. Fixx, Individually

A. Lee Cuirrorp, Individually Docket 23991

Respondents

Enforcement Proceeding

Decided: March 1, 1973

Voyager 1000 found to be a common carrier engaged in

air transportation without board authorization and ordered

to cease and desist from violating the Act. Complaint dis-

missed as to the three named individual respondents.

APPEARANCES:

Harry A. Bowen for respondents.

Peter C. Edison and T. Christopher Browne for the

Bureau of Enforcement, Civil Aeronautics Board.

OPINION

By The Board:

This proceeding involves a complaint by the Bureau of

Enforcement against Voyager 1000 and three of its officer-

directors, charging Voyager with engaging in air trans-

portation without operating authority from the Board in

violation of Section 401 of the Federal Aviation Act. The

relief sought is an order directing the respondents to cease

and desist from such alleged violations.

62

peta?

eee eee

63

Following hearings, Administrative Law Judge Madden

issued an intial decision on June 22, 1972. He concluded

that Voyager’s operations did not amount to common car-

riage and hence that it was not engaged in air transporta-

tion. Accordingly, the examiner ordered the complaint

dismissed.

The case is now before the Board for decision on BOE’s

petition for discretionary review which was granted by

Order 72-8-34 (August 7, 1972). Briefs have been received

and oral argument heard. Finding that Voyager's opera-

tions do involve common carriage by aircraft, the Board

reverses the initial decision.'

I

The details of Voyager’s background and method of

operation are set forth in the appendix. It will thus suffice

for present purposes to confine ourselves to an outline.

Voyager was founded in 1964 as a non-profit Indiana

corporation. The founders contemplated a private club,

limited to 1000 members, which would acquire an aircraft

for recreational travel by members.? Intitiation fees of

$200 for a family membership and $125 for an individual

membership were established, and monthly dues were $4.00.

The goal of 1000 members was achieved within a year

and a second club, Voyager 2000, was formed in 1963.3

Voyager 2000 was merged into Voyager 1000 and the

merged club’s membership stood at a fairly constant 2,400

through early 1968.

? Attached as an appendix are excerpts from the initial decision with

which we agree and which we adopt as our own.

* There were 25 “founding members,” 10 of whom contributed $1,000

each for the down payment on the aireraft.

%The record does not indicate how many members were originally

recruited.

y

SEAT EET IT tf

Sanna te i

Biter nome news

64

In the spring of 1968, Voyager fell upon hard financial

times. While various steps were taken to meet the imme-

diate crisis on a short-term basis, the directors decided that

the long-term solution to Voyager's fiscal ills lay in a

greatly expanded membership and an extensive public

campaign to achieve that objective, a campaign which, so

far as the record shows, continues unabated.

Voyager's promotion efforts took various forms, spear-

headed by mass media communication. Advertisements

were regularly placed in eight newspapers in Indiana,

Ohio, and Kentucky with a combined circulation of more

than one million copies. These advertisements featured

Voyager flight schedules, showing flight number, destina-

tion, and fare. While in terms addressed to ‘* Voyager

Members Only,”’ they openly solicited ‘‘*non-members”’ to

become ‘*members** in order to take the flights.*

**Open houses”* to visit Voyager's facilities, inspect one

of its aireraft, and ‘‘hear the Voyager 1000 story’’ were

held and widely advertised. These advertisements typically

contained a list of upcoming flights and advised the reader

that ‘‘we’re eager to share the fun’’; that he could join

with ‘‘dues cut 50% **; and that membership ‘‘application

forms will be available at our open house.’*®

Another avenue pursued by Voyager was direct mailing

of brochures describing flight programs—dates, flight num-

bers, departure times, and fares. These would be sent to

+A typical advertisement listed various flights available to “Voyager

Menmers Only,” adding “that you can join this exclusive cooperative

travel club for only $36 down” and providing a telephone number to be

called “for membership and reservation information.” Also provided was

a coupon which could be mailed to Voyager for the same information.

5 Other mass media solicitation included a full-page advertisement in

Holiday Magazine in the spring of 1971 and regular commercials (three

to six per week) on a Cincinnati radio station during the last three months

of 1970.

65

non-members as well as members.* To this end, Voyager

purchased a commercial mailing house mailing list, ‘‘such

as all passport holders in the midwest’? (Tr. 96). The

brouchures were also mailed to members of large organiza-

tions such as the Indiana State Teachers Association (Tr.

97).

As part of the mass recruitment programs, special in-

ducements to become Voyager members were offered. The

regular initiation fee (originally $200 for a family and

$125 for an individual membership) was reduced to $10

and even this was ‘*waived’’ during particular ‘*member-

ship drive[s]*’ (See, ¢.g.. BOE Exhibits 12 and 31, and

Tr. 86-88). Monthly dues were set at a modest $6 ($7 as

of the time of the hearings). ‘*Membership*’’ and conse-

quent eligibility to participate in Voyager flights were

offered for payment of $31, representing ‘$10 initiation

fee’’ and ‘‘first three months dues (if within 100 miles of

Indianapolis) ; six months dues (from 100 to 200 miles of

Indianapolis); full year dues (more than 200 miles from

Indianapolis).** (1.D., Appendix 1). College students be-

came the focus of special recruitment attention. ‘*Student

memberships*’ were sold for a flat rate of $10, represent-

ing an ‘‘initiation fee’? of $5 and ‘‘annual dues"’ of $5, by

on-campus promoters employed by Voyager and compen-

sated by free flights.

While membership application forms contained blanks

for the name of new member’s sponsor and **membership

committee action’’ (i.¢., ‘‘approved’’ or **disapproved"’),

there was in reality no screening. No ‘applicant’? was

ever turned down. There was no screening committee and

if an application was received with the blank for a spon-

sor’s name uncompleted, a Voyager employee would sign

® Voyager printed 100,000 copies of its “Europe ‘72 Program,” more

than seven times the number of its members in the spring of 1972.

TIO PAP AP Me!

A a ha ie a

Boceegrcne Seer eet at

66

as sponsor (Tr. 26). Indeed, a former Voyager official

testified that ‘‘many of our memberships just came in

through the mail with a check attached to this coupon they

had clipped out of the paper”’ (Tr. 25).

As a result of Voyager’s mass solicitation of the public,

‘*membership’’ increased dramatically. From 2400 in the

spring of 1968 it rose to 14,500 by the spring of 1972 and

17,000 by October of 1972.7

In order to serve these members Voyager operates a

fleet of aircraft which includes a Boeing 720 jet configured

to seat 155 passengers, two Lockheed Electras configured to

seat 117 each, two DC-7’s and two Martin 404’s. Voyager

has its own terminal at Weir Cook International Airport

in Indianapolis, Indiana, and employs over 80 employees

in the operation and maintenance of its aircraft and in its

offices and reservation services.

Voyager maintains an extensive flight schedule from

Indianapolis. Between March, 1970, and May, 1971, Voy-

ager operated 200 flights and from July, 1971, to April,

1972, it operated 156 flights. During the summer of 1971

it offered two-week package trips to Zurich (usually with

a stop at one other European point) on a weekly basis, and

during the summer of 1972 it programmed Indianapolis-

Zurich flights on a weekly basis. Frequent, scheduled serv-

ice to other European points was also offered, in addition

to the Bahamas and Jamaica, as well as to popular

domestic resorts.

Il

‘* Air transportation’’ is defined by section 101(21) of

the Federal Aviation Act as ‘‘the carriage by aircraft of

persons or property as a common carrier for compensation

7 Since, on the average, each membership represents three persons, the

number eligible to participate in Voyager flights as of October of last

vear was thus approximately 51,000 persons.

SE PR TSR Ta eink sc Rs ae

or hire’’ in interstate, overseas and foreign commerce, and

such operation are unlawful when conducted without oper-

ating authority from the Board (section 401(a)). Since

Voyager holds no such authority and insists that it needs

none, the question is whether it has operated as a ‘common

carrier.’

In the Transocean A.L., Enforcement Proceeding, 11

C.A.B. 352-353 (1950), the Board set forth quite simply

its analysis of the term ‘‘common carrier’’ as follows:

‘*The term ‘common carrier’ is not defined in the

Act. Generally speaking, a common carrier is de-

fined as one who holds himself out as ready and

willing to undertake for hire the transportation of

passengers or property from place to place, and so

invites the patronage of the public.? On the other

hand, a private carrier for hire is generally defined

as one who, without being engaged in the business

of carrying as a public employment, undertakes to

deliver goods or persons in a particular case for

hire or reward.’

‘*The breadth of the activities contemplated under

the term ‘common carrier’ reflects the great variety

of recognized means whereby the ‘holding out’ may

be accomplished. The most obvious method of a

holding out which may result in common carriage

is advertising through magazines, newspapers, post-

ers, brochures, and the like. Should the evidence

disclose that a carrier has advertised its services

in such manner as to solicit business from the gen-

eral public, the necessary implication arises that it

has held itself out as being i in readiness to carry for

“2 Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211

(1927). Smitheran & McDonald v. Mansfield Hardwood Lumber

o., 6 F.2d 29, 31 (W.R. Ark., 1925): United States v. Siour

City Stock Yards Cr., 162 F. 556, 560 (N.D. Iowa, 1908), aff'd

167 F.2d 126 (C.A. Sth 1909).

“3 Smitheran & McDonald v. Mansfield Hardwood Lumber Co..

supra,

TEAC YT IE CRT LAN

eee Anta oe Cee a ei, er’

LN MATT Te err taY

. ere a ate, RSL

68

all who might apply.t| Nevertheless, the lack of ad-

vertising is not in itself determinative of whether

there has been a holding out since a holding out may

take place through other methods.

‘*For example, a holding out may result from per-

sonal solicitation through salesmen, or through

agents. The courts are in substantial agreement that

the solicitation of passengers or freight shipments

from the general public through solicitors or agents

is convincing evidence of the holding out to carry

for all who may apply.’ In fact, the courts have held

that a course of conduct without solicitation or ad-

vertisement may support a finding that there has

been a holding out if the facts indicate that the

carrier generally accepted within the limits of its

facilities all customers desiring its services.* In

short, the requisite holding out may be evinced by

any means which communicates to the public that

a transportation service is indiscriminately avail-

able. A reputation gained through merely serving

the public indiscriminately may be sufficient in itself

to inform the public that the carrier will carry for

all who apply with'n the limits of its facilities.

‘‘Furthermore, it is clear that a carrier need not

undertake to serve all the publie in order to be con-

sidered a common e¢arrier, but may limit its trans-

portation services to a class or segment of the gen-

eral public so long as it expresses a willingness to

provide transportation for ali within this class or

segments indiscriminately.? In determining whether

“4 State v. Witthaus, 340 Mo. 1004, 102 S.W. 2d 99 (1937).

“5 Grolhert Vv. Board of Railroad Comr’s. of State of Towa, 60

F.2d 321, 323 (S.D. Lowa, 1932); Breuer v. Public Utilities Com-

mission, 118 Ohio St. 95; 160 N.E. 623, 624 (1928).

“6 Stoner Vv. Underseth, 85 Mont. 11; 277 P. 437, 441 (1929);

Marshall v. Public Service Commission, 129 Pa. S. 272, 195 A.

475, 476 (1937).

“7 Terminal Taxicab Co. v. Dist. of Col., 241 U.S. 252, 255

(1916); Anderson v. Fidelity & Casualty Co., 228 N.Y. 475, 127

N.E. 584, 587 (1920). This concept is embodied explicitly in the

————“

Wyk 1 AO ES ir id SN SPS AES

69

a carrier is in fact a common earrier, isolated in-

stances of refusal to transport, or discrimination

between, persons seeking the service will not in

themselves prevent a carrier from being a common

amet..."

definition of common carrier contained in section 213 (14) of the

Motor Carrier Act of 1935.

“8 Grolbert v. Board of Railroad Com’rs. of State of Towa,

60 F.2d 321 (S.D. Iowa, 1932).”

The principles applicable to this question of what con-

stitutes a ‘‘common carrier’’ are further epitomized in

Las Vegas Hacienda, Inc. v. Civil Aeronautics Board, 298

F.2d 480 (CLA. 9, 1962), cert. denied, 369 U.S. 885. The

Court there stated that the fundamental test is whether the

alleged carrier holds itself out as ready and willing to

im)

undertake the transportation of persons or property from

point to point for compensation or hire. The statute, it

held, must be interpreted as ‘‘bringing within the regu-

latory scheme all those who compete in the commercial

market in the business of offering air transportation to the

publie generally’? (298 F.2d at 484) that is those who en-

gage in ‘‘the furnishing of transportation by air to the

general public on a commercial basis’? (298 F.2d at 436).

The Court stressed, moreover, that in applying the statute,

the Board is to be guided not by the labels the alleged

carrier attaches to his activities, but on what he actually

does.* Applying the Transocean test and the Hacienda test

to the activities disclosed by this reeord, the Board finds

that Voyager is operating as a common carrier.

We can readily dispose of several aspects of the issue

confronting us. It is obvious that Voyager is providing

‘arriage of persons by aircraft. Equally obviously, it is

doing so for compensation or hire in interstate, overseas,

§ See, also Consolidated Flower Shipments, Ine. v. Civil Aeronauties

Board, 213 F.2d 814 (C.A. 9, 1954).

70

and foreign commerce.® The question, then, is whether it

has held out its services to the general public. Viewing its

activities objectively and in their collective totality, we find

that it has, despite the labels attached to those activities,

The record is clear that Voyager's extensive flight sched-

ules have been widely advertised to the public at large. We

are unpersuaded that the advertisements were simply a

means of communicating with existing ‘‘members.’’ While

it is true that some, but by no means all, of the advertise-

ments carried the legend ‘‘For Voyager Members Only”’ or

words of similar import, the most reasonable inference, and

the one we draw, is that the advertising was designed to

reach and attract those who were not already members.!”

It would, we find, be equally unrealistic to treat the

advertising and other promotional efforts as mere ‘‘mem-

bership drives.’’ It is quite true, of course, that one re-

sponding to Voyager’s public solicitation must become a

® This conclusion is in no way undereut by the fact that Voyager may

be a nonprofit corporation. Consolidated Flower Shipments, 16 C.A.B.

804 (1953), aff'd, Consolidated Flower Shipments v. C.A.B., supra, 213

F.2d 814.

10 This alone distinguishes the ease from Eastern Air Lines v. Trans

International Airlines, Order E-21440 (October 23, 1964) which involved

a determination by the Bureau of Enforcement that mass media advertis-

ing addressed to specitie organizations and groups was not solicitation of

the general publie under the affinity charter regulations in effect have

prevented a person joining one of the groups to which the advertisements

were directed from participating in a flight until six months after joining.

Here, in contrast, one could become a Voyager “member” and fly imme-

diately, and the record shows that many did take a Voyager flight shortly

efter becoming “members.” In any event, the holding sustained in the

Trans International case is obsolete as the result of changes in the regu-

lations. They now include within the definition of public solicitation mass

media advertising of flights “whether or not .. . addressed to members of

a specific organization” (14 CFR 207.40, 208.210, 212.40, 214.30). As

the Bureau of Enforcement says in its brief, this reflects “the futility of

basing a distinction between proper and unlawful solicitation which

reaches the general public on the inclusion or omission of the phrase

‘for members only.”

‘‘member"’ before he can take a Voyager flight and that,

to that end, he must pay an ‘initiation fee’? and a part of

his *‘annual dues.’’ To accept these requirements and the

labels attached to them as dispositive however, would exalt

form over substance. ‘*Membership’’ is offered to the

public at large and is readily available to ‘anyone willing to

pay the ‘‘initiation fee’? and a portion of the ‘dues.’

This outlay, in turn, is relatively insignificant, particularly

when viewed in light of the fare bargain it buys.’2 Added

to these considerations are the facts that the very reason

for Voyager's existence is the transportation and that the

basic reason for obtaining ‘*membership”’ is to take advan-

tage of its transportation service. Thus, ‘‘members”’ are

solicited from the public at large and join with ease for the

purpose of obtaining transportation at reduced rates.'3

This, the Board has long held, amounts to a holding out of

transportation to the general public even when the osten-

sible purpose of the organization is unrelated to travel."

11 As indicated earlier, there is no screeing of “applicants.” A check

attached to a coupon clipped from an advertisement satisfies the require-

ments for membership.

12 As previously indicated, a “membership” ean be obtained for as

little as $31. On the basis of three persons per membership, which the

examiner found to be the average, this comes to $10 each. Immediately

upon joining, this member could purchase a 1972 peak-season Voyager

trip to Zurich for $249. This contrasts with a peak-season 14-21-day

excursion fare of $577 on the scheduled carriers, a saving of $328, or

$984 for a family of three.

13 During oral argument, counsel for Voyager answered in the affirma-

tive when asked whether the primary purpose of Voyager was to provide

air transportation to the public. Viewing this most favorably to Vovager,

its primary purpose is to provide air transportation to any member of

the publie desiring to become a member.

14 See, e.g., Capitol Airways, Exemption, 31 CAB 957 (1960). More-

over, one of the factors which the Board has considered as strongly

indicating such a holding out by such an organization is solicitation of

new members by advertisements in which reference is made to prospective

charter flights for the organization. The Voyager advertisements did not

merely refer to its flight schedule, they featured them.

i at

IIE LET I LN aR Ep

—s

SoA

is

INS NSS aly come ae

g Ary Ip ens

é 72

The same conclusion follows a fortior’ where, as here, the

avowed purpose of the organization is travel. Consolidated

Flower Shipments, 16 CAB 804 (19538), aff'd, Consolidated

Flower Shipments, v. C.A.B,, 213 F.2d 814 (CLA. 9, 1954)."

In sum, viewing its activities objectively, we find that

Voyager widely promoted and provided air transportation

to the general public in return for the payment of money.

Despite the various labels Voyager attaches to itself and

to various aspects of its method of operation, it is ‘‘fur-

nishing transportation by air to the general public on a

commercial basis.’? (Las Vegas Hacienda vy. C.A.B., supra,

298 F.2d at 486), and hence it engaged in ‘‘air transporta-

se

tion’’ within the meaning of the Act.'® Lacking operating

authority from the Board, Voyager's operations are in

violation of section 401(a) of the Act.'?

15 The similarities between Consolidated Flower and this case are strik-

ing. It, too, involved a nonprofit corporation performing a transportation

service—a cooperative of members who were flower shippers. It, too,

involved widespread solicitation of membership. In finding the coopera-

tive to be engaged in common carriage, the Board rejected a defense

based on the fact that it was a nonprofit corporation whose services were

available only to its members. The Board said (16 C.A.B. at 805):

“The facet that membership in Bay Area is a prerequisite to ob-

taining its services does not detract from this conclusion [that the

cooperative was a common carrier], since membership is readily

attainable, involves no obligation that the payment of nominal

dues, and has as its sole purpose eligibility for Bay Area’s

services.”

'6 Voyager argues that there is no evidence that its operations divert

from, or compete with, the airlines. This, it says, means that it is not

engaged in common carriage. The conclusion simply does not flow from

the premises. In any event, Voyager obviously is competing with the

airlines. Most of its flights are to points served by the scheduled carriers;

its fares are far lower, a point featured in its advertising; and it boasts

in its brief that it provides faster service at more convenient times. More-

over, the record shows that most people joining Voyager did so because

of the lure of lower fares than they would have to pay on the scheduled

carriers,

17 Voyager makes much of the fact that the Federal Aviation Adminis-

tration found it eligible for an operating certificate under Part 123 of the

meee eave ee |

73

Judge Madden appears to have been influenced by his

finding that Voyager did not intend to violate the law.

However, ‘tan evil purpose or intent to violate the law

+. is not necessary where acts themselves not wrong are

made wrong by the limitations of a regulatory statute...

Transocean AL, Enforcement Proceeding, 11 C.A.B. 350,

867 (1950). As Mr. Justice Holmes put it in Horning v.

District Columbia, 254 U.S. 135, 1387 (1920):

‘There is no question that the defendant intention-

ally maintained his storehouse and managed his

business in the way deseribed. It may be assumed

that he intended not to break the law but only to get

as near to the line as he could, which he had a right

to do, but if the conduct described crossed the line,

the fact that he desired to keep within it would not

help him. It means only that he miseconceived the

law.’’ -

When Voyager began to hold itself out as providing air

transportation for hire to members of the public who would

join its ranks, Voyager crossed this line.

Federal Aviation Regulations. Part 123 establishes safety regulations for

the operation of air travel clubs operating large aireraft. While the

requirements of Part 123 are similar to FAA requirements for air carriers,

the premise upon which Part 123 authorizations are granted is that the

club is not engaged in common carriage. However, the FAA determina-

tion is not meant to be a determination of the Board's jurisdiction under

the economic regulatory provisions of the Act. Indeed, in the notice of

proposed rulemaking which led to the adoption of Part 123, the FAA

noted: “[I]f the operations [of a travel club] involve interstate, over-

seas, or foreign air transportation (common carriage), appropriate au-

thority would be required from the Civil Aeronautics Board.” 32 F.R.

10311. As the Department of Transportation noted in its submission in

this proceeding, it is for the Board to determine its own jurisdiction and

for the party involved then to qualify for the FAA license appropriate

for his status as determined by the Board. The Board is no more bound

by the FAA determination than Voyager is hound by an Internal Revenue

Service determination that it was engaged in commercial carriage requir-

ing payment by each passenger of the transportation tax applicable to

regular airline passengers (Tr. 78-79),

"

7

ATE RIT A U

a bis Sia TR

74

Our decision here is based solely on the law and the facts

pertinent to Voyager's activities. Some 30 organizations

presently operate as flying clubs under Part 125 licenses

from the FAA. Our decision here is not a ho!ding that all

are engaged in common carriage in violation of section

401(a). This is a determination which can only be made

on the basis of the facts and circumstances peculiar to a

«iven operation.

There remains the question of the remedial action the

Board should take with respect to Voyager. Pointing out

that it is ‘ta $2,000,000 club,’? Voyager urges that a cease

and desist order would cause *‘serious harm and loss to the

members (advance trip deposits), to creditors, to the held-

ers of the mortgages on the aircraft and to the employees.””

It suggests that the Board institute a proceeding to estab-

lish standards applicable to flying clubs.

Insofar as rulemaking is concerned, we are not clear as

to what Voyager has in mind. Presumably, the idea is to

formulate rules defining the boundaries between private

and common carriage insofar as flying clubs are concerned.

The very nature of the question, however, and the almost

limitless variations in method of operation convince us that

such a proceeding would be little less than futile. The bench

marks of what constitutes a ‘‘common carrier’’ are quite

clear under the Transocean and Hacienda tests. We be-

lieve that a case-by-case application of these standards is

the only proper way to test whether the activities involved

constitute a ‘*common carrier.’’'®

19 As the Court said in Hacienda, “the term ‘eommon carrier’ . . . is an

ancient one in our law and has been applied in many factual and legal

contexts.” (298 F.2d at 433). Depending as it does on the peculiar facts

and cireumstances of a given operation, case-by-case adjudication has

since time immemorial been the normal way of applying the term “com-

mon earriage.”

75

Just as we find the rulemaking suggestion impractical,

we find the plea based on economic hardship, while appeal-

ing in terms of the private interests of those benefitting

from the unlawful activity, wholly unpersuasive from the

viewpoint of our regulatory obligations. The mere fact

that illegal operations have proven economically successful

obviously cannot provide grounds for allowing them to con-

tinue. We thus believe that the appropriate remedy is an

order requiring Voyager to cease and desist from operating

as an air carrier in violation of Section 401(a).*"

What this entails for Voyager is much more involved

than a mere discontinuance of its past unlawful holding

out. The nature of the problem is such that Voyager must

rid itself of the benefits it has derived from that holding

out, including **membership”’ directly or otherwise proxi-

mately attributable to it and Voyager's reputation as a

readily-available source of low-rate air service. In other

words, Voyager must cease holding out air transportation

even to its so-called members.

To cease doing so requires much more than merely stop-

ping its advertisements. Voyager's program and the ready

and easy availability of eligibility to take advantage of it

are surely by now so well known that continuing as before

could be holding out by course of conduct even if all adver-

tising were eliminated. However, simply retaining its mem-

bership roster at present levels and declining to receive

new members is also insufficient. With a total present eligi-

bility of approximately 51,000 persons, Voyager's member-

ship is too large to be distinguished from the general public,

especially since it appears some 85% of the current mem-

20 With regard to the three named individual respondents the Board

will dismiss the complaint. The cease and desist order will bind Voyager,

its directors, officers, employees, servants, agents, assigns and successors.

Nothing would be gained by ineluding the individual respondents.

9

PT UNTILL annette onset hy

76

bers became such by responding to Voyager's general

~olicitations. Voyager cannot expect—or be permitted—to

retain the benefits it has obtained by its illegal course of

conduct.

We recognize that our decision necessarily and unavoid-

ably will require drastic changes for Voyager. Mindful of

the impact on members of the public who in good faith are

presently signed up for transportation in the immediate

future, we will make our cease and desist order effective 60

days from the date of its issuance, conditioned, however,

on Voyager's elimination of all advertising including mail,

press, radio, television, personal solicitation, telephone

solicitation, and all other forms of solicitation and on its

discontinuing enrollment of members during that period.

In view of the foregoing and all the evidence of, record,

we find—

1. Voyager 1000, a corporation organized, existing, and

doing business under the laws of the State of Indiana, has

held itself out and continues to hold itself out to the public

as a common carrier to provide transportation by aircraft

of persons in interstate, overseas, and foreign commerce

for compensation or hire and is an air carrier as defined in

Section 101(3) of the Act engaged directly in the transpor-

tation of persons by air within the meaning of the Act.

2. Voyager 1000 has not held and does not hold a certifi-

cate of public convenience and necessity or other authority

from the Board authorizing it to engage in air transporta-

tion of persons or property as a common carrier.

3. Voyager 1000 has been and continues to be in viola-

tion of Section 401(a) of the Act.

4. Voyager 1000 and its officers, directors, agents, em.

ployees, representatives, successors, and assigns should be

Bee,

77

ordered to cease and desist from engaging in air transpor-

tation in violation of Section 401(a) of the Act.

9. This proceeding insofar as it relates to Adam Rueck-

ert, Robert J. Fink, and A. Lee Clifford, each individually,

should be dismissed.

An appropriate order wil be entered.

BROWNE, Chairman, GILLILLAND, Vice Chairman,

MINETTI, MURPHY and TIMM, Members, concurred in

the above opinion.

[NOTE: The Civil Aeronauties Board attached to its opinion all of

Judge Madden's Initial Decision (see Exhibit A above), except the section

titled “Findings and Conelusions.” }

TEL OPIN E! CEPR MR EAN NR NRT Rn Ce IA

1H VAY MONARY TY PPR GE PaO ae

EXHIBIT C

In the

Usitep States Court or APPEALS

For the Seventh Cireuit

NoveMBErR 14, 1973

Before ns

How. Witsur F. Pet, Je., Circuit Judge

How. Rospert A. Sprecuer, Circuit Judge

How. Wituiam J. Campsety, Senior District Judge*

No. 73-1222 )

Voracer 1000, On Petition for Re-

Petitioner. .

view of an Order

, . ae

v. of the Civil Aero-

Crvit Azronavtics Boarp, nautics Board.

Respondent.

os

This cause came on to be heard on the transcript of the

record from the Civil Aeronautics Board, and was argued

by counsel.

On consideration whereof, it is ordered and adjudged by

this Court that the decision of the Civil Aeronauties Board

entered in this cause on March 1, 1973, be, and the same

is hereby, ENFORCED, with costs, in accordance with

the opinion of this Court filed this day.

* Senior District Judge William J. Campbell of the Northern District

of Illinois is sitting by designation.

78

~ SSE “SRS YL!

In the

Unirep States Court oF APPEALS

For the Seventh Circuit

SEPTEMBER Term, 1972—Apnit Session, 1973

No. 73-1222 7}

een er Petitioner,| OB Petition for Re-

; view of an Order

v. of the Civil Aero-

Crvi. Arronavtics Boarp, nauties Board.

Respondent.

ArcvueD June 7, 1973— Decipep Novemser 14, 1973

Before Pett and Sprecuer, Circuit Judges, and Camp-

BELL, Senior District Judge.*

Sprecuer, Circuit Judge. Petitioner, Voyager 1000, seeks

review of Order 73-3-1 issued by the Civil Aeronautics

Board on March 1, 1973, directing petitioner to cease and

desist from engaging in ‘‘air transportation’’ in violation

of Section 401(a) of the Federal Aviation Act.’ Section

401(a) of the Act states that ‘‘[n]o air carrier shall en-

gage in any air transportation unless there is in force a

* Senior District Judge William J. Campbell of the Northern District

of Illinois is sitting by designation.

1 The Federal Aviation Act of 1958, 728 Stat. 731, 49 U.S.C. § 1301

et seq. (1970) [hereinafter cited as the Act].

79

ae.

REESE: AAS ONLY IEE TRY A BOENARNMNES MTL AEN TGRE HAY Lat

SO

certificate [of public convenience and necessity] issued by

the Board authorizing such air carrier to engage in such

transportation.’’ 49 U.S.C. §1371(a) (emphasis added).

The issue presented on appeal is whether the Board’s deter-

mination that Voyager was operating as an air carrier en-

gaged in air transportation is supported by substantial

evidence* and a reasonable basis in law. Las Vegas Haci-

enda, Inc. v. C.A.B., 298 F.2d 430, 43-34 (9th Cir. 1962).

We affirm the Board’s order.

I

In September, 1964, Voyager was founded as an Indiana

non-profit corporation.* The founding members’ plan was

to organize a private flying club which would acquire an

aircraft for recreational travel for a membership limited

to 1000. Each member was required to pay an initiation

fee of $125 ($200 per family membership) and monthly

dues of $4, although in some instances these amounts were

waived or reduced. The membership having reached 1,000

within a year, a second club, Voyager 2000, was formed and

susequently merged into Voyager 1000.

In early 1968 when the membership total stood at 2,460,

the club’s cash resources were seriously depleted. The

directors decided that a substantially larger dues paying

membership was necessary to provide sufficient operating

funds to keep the club on a healthy financial footing. The

initial goal was set at 5,000 members; in September, 1970,

the goal was increased to 20,000.

2 Section 1006 of the Act delineates the limits of judicial review of

C.A.B. orders, providing in pertinent part that “findings of facet by the

Board or Administrator, if supported by substantial evidence, shall be

conelusive.” 49 U.S.C. § 1486(e).

3 Under the Indiana Not-For-Profit Corporation Act of 1971 (Btrws

Ixp. Stat. ANN. §§ 25-501 to - 566 (Cum. Supp. 1972) ), in the event of

dissolution all assets in excess of obligations to creditors and lenders

escheat to the state, Burns Inp. Stat. ANN. § 25-533.

81

Membership drive activities included the following:

(a) Familiarization with Voyager programs and facili-

ties was proffered by means of open houses held in early

1968 in Indianapolis, Fort Wayne, Evansville, and Terre

Haute, Indiana, and Columbus, Ohio. N ewspapers in Indi-

anapolis, Louisville and Cincinnati carried advertisements.

When a Boeing jet was acquired, open houses to inspect

this craft and ‘‘hear the Voyager 1000 story’ were also

held; these too were widely publicized. From June to

September 1970, published announcements included lists

of upcomping Voyager flights, stressed that the only initial

outlay would be the advance payment of six months dues

($36) because the initiation fee was being waived, and

stated that application forms would be available at the

open house.

(b) Articles describing Voyager activities were pre-

pared for publication in newspapers and magazines such

as Time and Travel Weekly. During the last three months

of 1970, from three to six commercials per week were

broadcast over a Cincinnati radio station. In the spring

of 1971, a full page advertisement was placed in Holiday

Magazine.

(c) Existing Voyager members were offered the in-

ducement of $10 in scrip redeemable in Voyager services

for each **bonus membership"’ they procured.

(d) Brochures describing flight programs in detail—

dates, flight numbers, departure times, and fares—were

mailed to non-members appearing on purchased commer-

cial mailing-house lists and on large organization member-

ship lists such as the Indiana State Teachers Association.

For example, in the spring of 1972 Voyager had 100,000

* This approach resulted in 1,600 members by May 1, 1969, with bonus

memberships coming in on an average of 25a day.

RAD te hr se Be a

a tas

2

copies of the ‘‘Europe ‘72 Program” brochure printed,

more than seven times the then current membership.

(e) In early 1971, college students at Purdue Univer-

sity, Ball State Teachers College and Marion College were

offered a one-year membership for $10. Free flights were

offered to the individuals enrolling students.

(f) As part of the membership drive, the initiation fee

and monthly dues were the subject of some variation, being

waived ‘or reduced in connection with particular programs.

At the time of this proceeding, the cost of joining was $10

per membership and $7 per month.

(¢) Throughout the period of the membership drive,

advertisements appeared regularly in eight newspapers in

Indiana, Ohio, and Kentucky with a combined circulation

in excess of one million copies. These advertisements con-

tained a selected listing of flights available to ‘‘ Voyager

Members Only”’ detailing dates and price per person. They

also invited inquiry about membership, giving a phone

number or containing a mail-in coupon. Many advertise-

ments included the cost of membership.

This total effort resulted in approximately 12,100 new

memberships, from 2,400 members in 1968 to 14,500 mem-

bers in December, 1971. Since most memberships are owned

by families, this represents an estimated 43,000 individuals

eligible for Voyager flights.

As a result of increased membership, Voyager employs

over SO individuals, operates seven aircraft (a Boeing 720

jet, two Lockheed Electras, two DC-7’s and two Martin

404°s), and maintains its own terminal at Weir Cook Inter-

national Airport in Indianapolis.

Voyagers flight program is extensive. Flights are an-

nounced from five to six months in advance and by flight

83

time are generally filled to capacity.* Although the Voy-

ager program tends to concentrate on weekend trips and

destinations which are novel, longer trips and more custom-

ary destinations are also available. Voyager operated 200

flights from March, 1970 to May, 1971 and 156 flights be-

tween July, 1971 and April, 1972.

Although concededly secondary to travel, there is also a

social aspect to the club. Voyager conducts a series of

parties planned around travel themes. Announcements are

sent to members sometimes in combination with flight

schedules; they include a reservation form and often en-

courage members to bring guests.

Participation in Voyager flights, parties and corporate

elections® is limited to members whose dues are paid up.

Immediately upon payment of the fee necessary to become

a member, an individual is eligible for all Voyager activi-

ties and could conceivably take a Voyager flight scheduled

for that same day if passage was available.

On November 16, 1971, the Director of C.A.B.’s Bureau

of Enforcement (B.O.E.) docketed a complaint against

Voyager alleging that Voyager was operating as a com-

mon carrier for compensation or hire without authority

from the Board in violation of $401(a) of the Act. The

alleged aspects of common carriage included Voyager's

inass media campaign for new members and the lack of

eligibility qualifications for membership other than the

payment of fees and dues. Following evidentiary proceed-

ings, the Administrative Law Judge issued his initial

decision with order attached on June 22, 1972, dismiss-

5 During the 12 months prior to the institution of this proceeding,

Voyager carried some 24,000 members.

6 Membership confers certain rights similar to those held by shareholders

of a business corporation including the right to notiee of elections and

rights to nominate and vote on directors.

NORE PT Bay yet

ts,

7

WALT LAA ABO REA NRE SI Marae

Onin

S4

ing the petition for enforcement and the complaint. The

B.O.E. petitioned for discretionary review of the initial

decision, and the Board undertook review. On March J,

1973, the Board issued its decision reversing the Adminis-

trative Law Judge.

Il

Economie and safety regulation of air transportation is

provided by the Federal Aviation Act. Engaging in air

transportation is conditioned upon obtaining the appropri-

ate economic authority from the Civil Aeronautics Board

(49 U.S.C. §§ 1371-87) and safety authority from the Ad-

ministrator of the Federal Aviation Agency (49 U.S.C.

$$ 1421-31). Voyager 1000 has operated since 1968 under

Part 123 of the Federal Aviation Regulations entitled

‘*Certificate and Operations: Air Travel Clubs Using

Large Airplanes.’’ 14 C.F.R. $§ 123.1-53 (1973). Part 123

basically tailors the commercial operator certification and

safety standards of Part 121 (14 C.F.R. $121.1 ef seq.)?

to air travel club (A.T.C.) characteristics. 33 Fed. Reg.

12887 (1968). Economie authority is not required for the

issuance of an operating certificate under Part 123. Certifi-

‘ation of a person by the F.A.A. as an air travel club under

Part 123 does not authorize operations as an air carrier in

air transportation. 14 C.F.R. § 123.1(e).

An air travel club is, by definition, a

‘*nerson who engages in the carriage by airplanes

of persons who are required to qualify for that car-

riage by payment of an assessment, dues, member-

ship fee, or other similar type remittance.”’

7 A commercial operator is defined as “a person who, for compensation

or hire, engages in the carrier by aircraft in air commerce of persons

. . ” ~ .

or property, other thanvas an air carrier... .” 14 C.F.R. § 1.1 (emphasis

added).

OER LD Be tee een |

(9 8)

5)

14 C.F.R. §123.1(b). An air travel club differs from com-

mercial operators in that the operations are non-profit, air

schedules are sporadic, and aircraft are operated for a

relatively small number of hours. 33 Fed. Reg. 12887

(1968).

Although the reasons for requiring safety regulation of

air travel clubs are well defined,* the reasons for allowing

their operation outside the economic regulatory scheme in

the first instance have not been clearly articulated. Appar-

ently at the outset these clubs were so small and the mem-

bers were so intimately related that their operations were

simply not relevant in any respect to commercial aviation.

During the 1960’s, however, the F.A.A. noted the growth

of a different kind of organization.

SRR > ONY PTA. NTT AP TTC EL

ON CO lS ee Ol

es

‘*During the past few years, a number of travel

clubs have been formed for the purpose of providing

their members with long-distance travel usually on

large (over 12,500 Ibs, takeoff weight) aircraft. In

most cases, these clubs operate on the basis that the

members share the expenses of the travel by an

assessment, dues, membership fee, or similar pay-

ment to the club.”’

32 Fed. Feg. 10311 (1967). When the F.A.A. was consider-

ing applying the safety standards of Part 121 to A.T.C.'s,

the C.A.B. probably participated, as it normally does, in

the making of the proposed rule by communicating its

S“Fom a safety standpoint, when a passenger has, in any manner,

paid for his carriage aboard a large aircraft the FAA believes that the

applicable safety standards should not depend on a distinction as to

whether that passenger is carried for ‘compension or

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Petition for Writ of Certiorari — Voyager 1000 v. Civil Aeronautics Board · 416 U.S. 982 | Frix