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
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has | : .
r .,
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-
- ‘
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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