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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 982

## Text

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 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. 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 '

=. . .
—_— ~ 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

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 +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=

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-
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) 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 hire’ or is ‘sharing
expenses’ with other passengers. The average passenger certainly is not
aware that the method by which he pays for his carriage determines the
level of safety that the operator of the aircraft is required to maintain.
Except for the method of payment, the typical travel club operation is in
all practical respects no different from a charter flight conducted by a
commercial operator, and the FAA believes that the level of safety re-
quired by Part 121 should be maintained.” 32 Fed. Reg. 10311 (1967).

ee

86

opinions and suggestions. These communications have not
been disclosed. In the present proceeding, the B.O.E.
avoided setting out its concept of the proper basis for
distinguishing A.T.C.’s from common carriers.

‘‘The Bureau takes no position on what criteria
should be used to distinguish between valid private
flying clubs and common carriers, for purposes of
the Board's jurisdiction.’’ Record at 827.
In 1971, the F.A.A. was of the opinion that air travel
club operations constituted private carriage:

‘*Tt is of the opinion [sic] 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 car-
riage of its members on pleasure trips, these aircraft
should be regarded as private carriage versus com-
mon carriers by commercial operators.’”®

However, no attempt was made to set out the underlying
reasons why such operations were not considered to pre-
sent competition injurious to the regularly scheduled air-
lines except to note that A.T.C.’s do not transport for
compensation or hire.
‘*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 opera-
ters.’”*"
Clearly this is an insufficient rationalizing principle since
the effect of being non-profit is that A.T.C.’s provide
transportation at a price which does not inelude a profit
factor. What could present stronger competition to the
commercial airlines?

® Opinion Letter from F.A.A. to Voyager 1000, Aug. 2, 1971. Record
at 629.

10 Td.

te Da cn et oh ee eet

87

Because the Act ultimately defines air transportation as
“carriage by aircraft... as a common carrier,’”! the
Board’s determination that Voyager is an air carrier en-
gaged in air transportation (which, in the ubsence of a
certificate of public convenience and necessity, is in viola-
tion of Section 401(a) of the Act) is based on its finding
that Voyager is operating as a common earrier, Although
the Act itself does not further define common carriage, this
term is of an ancient legal vintage. Narrowing the broad
range of possible applicable definitions are the stated pur-
poses underlying the regulatory functions of the CLA.B.

“The Civil Aeronautics Board is under an affirma-
tive statutory duty to exercise its regulatory powers
over ‘air transportation’ so as to foster sound eco-
nomic conditions, promote economical and efficient
service at reasonable charges, and avoid destructive
competitive practices. The legislative history of the
Act emphasizes the importance attached by the Con-
gress to the achievement of these purposes. Obvi-
ously the economic regulation contemplated by the
statute can be effective only if the commercial activ-
ity to which it is made applicable—‘air transporta-
tion'—represents a reasonably discrete market in
practical business terms.

912

11 Section 101 of the Act defines “air carrier” as
“any citizen of the United States who undertakes, whether direetly
or indirectly or by a lease or other arrangement, to engage in air
transportation . . .”
49 U.S.C. § 1301(3): “Air transportation” is defined as “interstate, over-
seas, or foreign air transportation .. .” (49 U.S.C. §1301(21)), terms
which are respectively defined as
“the carriage by aircraft of persons or property as a common carrier
for compensation or hire . . . in commerce . . Re
between states, between states and Territories or possessions, and between
the United States and any other place. 49 U.S.C. § 1301(21) (emphasis
added).
12 Las Vegas Hacienda, Inc. Vv. C.A.B., 298 F.2d 430, 432-33 (9th Cir.
1962) (footnotes omitted).

iil ti

2a RRM COS EN ee

FP. 6B EID IO ee

Y <e Weeter

88

Thus the Board’s attempt to define common carriage is an
attempt to delineate that market which is the object of the
regulatory scheme—‘‘the furnishing of transportation by
air to the general public on a commercial basis.** Las
Vegas Hacienda, 298 F.2d at 436.

We would agree that ‘‘the typical travel club operation
is in all practical respects no different from a charter flight
conducted by a commercial operator .. .’’ (Supra note 8),
at least for the limited purpose of appraising their com-
petitive impact on commercial airlines. The market served
by Voyager is strikingly similar to the charter flight
market.

The recent opinion by the Second Circuit in Saturn Air-
ways, Inc. v. C.A.B., 483 F.2d 1284 (1973) upholding the
Board's promulgation of regulations providing for a new
type of charter, the Travel Group Charter (T.G.C.), is
instructive. Inasmuch as charter trips are provided by
supplemental air carriers pursuant to a certificate of public
convenience and necessity (49 U.S.C. § 13871(d)(3)), the
question involved in Saturn was not one of common ear-
riage status. Nevertheless, the validity of the Board's
authorization of T.G.C.’s was determined by reference to
the importance of the distinction between individually
ticketed and group fare markets and the appropriate line
to be drawn between the two.

‘*The supplemental air carriers, once known as
‘non-scheduled’ or ‘irregular’ air carriers, are meant
to provide a supplementary service to that of the
scheduled or trunkline carriers, who offer individu-
ally ticketed, regularly scheduled service to the gen-
eral public. Since the supplementals are not subject
to the economic rigors attendant upon a regularly
scheduled, individually ticketed service, for they es-
sentially fly when they desire and nearly always
carry a full planeload of passengers, the air fares

89

for comparable routes on charter flights can be sig-
nificantly less than those offered by the scheduled
air carriers. Congress in providing for certification
of the supplementals recognized the potential prob-
lem of competition and the real possibility that if
not carefully controlled they would supplant, rather
than supplement, the regularly scheduled service.
See generally American Airlines, Inc. +. CAB, supra,
365 F.2d at 944-45. Individually ticketed, regularly
scheduled service is the mainstay of an efficient air
transportation system, and a critical necessity in
any sophisticated economy. Congress realized that
it must be preserved. Accordingly, the legislative
history and language of the statute itself manifest
a congressional intent that although the Board
should have the power of definition, it should never
permit ‘individually ticketed service to be offered
to the general public under the guise of charter.’
Sen. Rep. No. 688, 87th Cong., Ist Sess. 13 (1961).*’
(483 F.2d at 1287-88).
The court concluded that the T.G.C. regulations, ‘‘where
individual travelers without a community of interest apart
from transportation are organized by a third party and
... charter an aircraft on a pro rata basis’’ (483 F.2d at
1287), adequately preserve the distinction between group
and individually ticketed markets where differences such
as the following are required: (1) charter travelers are
liable for a pro rata share of the cost which share is sub-
ject to variation depending upon the final load factor: (2)
the group must be formed and members must have paid 25
pereent of the minimum charter price not later than three
months prior to the scheduled departure time; (3) partici-
pants must pay the total remaining balance of the flight
fare not later than two months prior to the departure date;
(4) the deposit and balance payments are with certain ex-
ceptions non-refundable; (5) the flight may be cancelled
up to 45 days prior to departure due to passenger defaults:

90

and, (6) participants must depart and return as a group
subject to predetermined trip duration restrictions. 485
F.2d at 1292; See 14 C.F.R. §§ 372a.1-.50.

The distinguishing factors cited by the court are ones
which eliminate from charter service those members of the
traveling public who require transportation on short notice
without risk of cancellation or restrictions on return ac-
commodations.!* The Board’s determination in the instant
case revolved around the relevant characteristics of peti-
tioner’s operation which failed to eliminate from <A.T.C.
service members of the individually ticketed market.

The cases setting forth the principles applicable to the
determination of common carrier status interpret the Act
as ‘‘bringing within the regulatory scheme all those who
compete in the commercial market in the business of offer-
ing air transportation to the public generally.’’ Las Vegas
Hacienda, 298 F.2d at 434. To ascertain whether a partic-
ular operation is so competing, the critical determination is
whether the operation is one which holds itself out ‘‘as
ready and willing to undertake for hire the transportation
of passengers or property from place to place, and so in-
cites the patronage of the public.’” Transocean Air Lines,
Inc., Enforcement Proceeding, 11 C.A.B. 350, 352 (1950).
In the instant case, the Board examined both the nature
of the ‘‘membership drives’’ and the extent of qualifica-
tions for membership as they relate to a ‘‘holding out to
the public or a segment of the public.”’

13 The court’s analysis quite properly demonstrated the limitations on
the Board’s affirmative statutory duties. The desired result is not to re-
move all operations 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 economie sta-
bility 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 main-
tenance of an adequate national and international transportation system,

91

‘*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, posters,
brochures, and the like. Should the evidence disclose
that a carrier has advertised its services in such
manner as to solicit business from the general pub-
lic, the necessary implication arises that it has held
itself out as being in readiness to earry for all who
might apply. Nevertheless, the lack of advertising
is not in itself determinative of whether there has
been a holding out since a holding out may take place
through other methods.

**... [T]he 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 within the limits of its facilities.

‘*Furthermore, it is clear that a carrier need not
undertake to serve all the public in order to be con-
sidered a common carrier, 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 all within this class or
segment indiscriminately.*’ Transocean Air Lines,
11 C.A.B. 352-53 (footnotes omitted).

Regarding the propriety of the membership drives, Voy-
ager argued that its advertisements were announcements
to members coupled with invitations to join, that advertis-
ing is permissible so long as its thrust is to acquaint non-
members with the advantages of membership, that solicita-
tion of new members generally is proper so long as such
soliciation is not designed to sell individual flights to mem-
bers of the public, and that in any event there was no

YPN

Qivesn id

92

evidence that such advertising diverted passengers from
common carrier flights."

With respect to the qualifications for membership, peti-
tioner argued that it does not hold itself out as willing to
carrying all passengers but only members; that Voyager
membership does not constitute a segment of the general
public because the fees represent a real and substantial
investment and are an absolute prerequisite to participa-
tion; that the members have a legal interest in the club’s
assets until dissolution, and the social aspects of the club
differentiate the membership from the traveling public:
and, that as a practical matter the members do not receive
individually ticketed service.*5

Concerning the contention that the membership drive
activities constituted a ‘‘holding out,’’ the Administrative
Law Judge concluded as follows:

‘“‘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 purpose,
either overt or covert, and the evidence sustains
them. The adds [sic] clearly stated that the trips
were available only to Voyager members. Insofar

14 The record shows that in a typical month, November, 1971, out of
15 Voyager destinations only two such destinations were advertised by
travel agents. In conversations with travel agents, petitioner found that
its elapsed time was less than half that of the best common carrier service
in five of eight examples.

15 In 1971, Voyager conducted a survey of its membership based on a
random selection of 200 members. Every fiftieth member on the Master
Membership files who was current in dues payment was selected and a
questionnaire was sent to him or her. Among other things, the totals
showed that the average time between joining and traveling was 5-™%
months. The survey does not provide information on individuals who
had stopped paying dues. The record does not show the average time
between making reservations and flying.

93

as their placement was part of a campaign to in-
crease 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 pros-
pective flights and the costs ean 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 pri-
vate club engaging in private carriage, as it clearly
Was, simply increasing the number of members does
not add an insidious noted [sic]."’

The Administrative Law Judge further concluded that
advertising directed to prospective members does not con-
stitute solicitation of the general public; Voyager advertise-
ments contained *‘an element of selectiveness in that they
were addressed to persons travel-minded in the manner of
the original Voyager members.”’

in terms of their effectiveness in differentiating members
from the general public, the Administrative Law Judge
found that although

‘there is little or no screening of an applicant be-
yond the payment of initiation fee and dues there is
a built-in screening by the mere fact of application
for membership. By such application, particularly
after exposure to explanations of the purposes of
the club, an applicant, inferentially but effectively,
declares an affinity with the existing members.”’

Furthermore, the Administrative Law Judge viewed the

financial outlay as real and substantial when viewed in the
aggregate.

The Board reversed the initial decision of the Adminis-
trative Law Judge on the basis of the legal significance of
the facts as found. The cases and the purposes underlying
the regulatory scheme support the Board’s decision.

94

The fact that petitioner believed that it was engaged in
private carriage and had no intention of violating the law
is not determinative of the question.

Petitioner's claims of uniqueness, capacity to provide
faster and more convenient service, and ability to offer air
travel to individuals unable to afford commercial rates all
relate to the question of whether a certificate or exemption
should issue and not to the determination of common ear-
rier status. See Las Vegas Hacienda, 298 F.2d at 438-39.

The question of the propriety of mass media advertise-
ments can not be resolved simply by determining whether
the ads solicit members, as those in the instant case clearly
did. We would agree with the Administrative Law Judge
that an increase in the membership does not necessarily
result in a transformation from private to public carriage.
Rather, the proper inquiry is whether the ads solicit pros-
pective members where the membership is defined in such
a manner as to be undifferentiated from the traveling pub-
lie at large. Thus the fact that the ads are addressed ‘*To
Members Only’’ is not dispositive.

The Administrative Law Judge cites the membership
fees and dues and the declared affinity, by virtue of applica-
tion for membership, with ‘‘persons travel-minded in the
manner’? of the existing members as providing sufficient
differentiation from the general public. The Board found
the financial outlay to be ‘‘relatively insignificant, partic-
ularly when viewed in light of the fare bargains it buys.’
Since the avowed purpose of Voyager is group travel, the
affinity involved in Voyager membership is a common inter-
est in travel. To employ affinity in this manner begs the
question.

16 As a practical matter the fees become part of the transportation cost
which in total amounts to less than commercial fares.

95

Insofar as the affinity only relates to travel,!* the nature
of the travel services provided must be differentiated from
the individually ticketed market. Here, members were
eligible to fly as soon as they joined and there was no pre-
scribed waiting period between making reservations and
flying. The record is void of criteria which would indicate
sufficient differentiation betwen Voyager services and in-
dividually ticketed services.

There was substantial evidence and a reasonable basis
in law for the Board’s finding that ‘‘[dJespite the various
labels Voyager attaches to itself and to various aspects of
its method of operation, it is ‘furnishing transportation by
air to the general public on a commercial basis’... and
hence it engaged in ‘air transportation’ within the meaning
of the act.”’

OrpERED ENForRCED.

PELL, Circuit Judge, concurring.

I concur in the foregoing opinion although I do so with
considerable reluctance. My disinclination, however, arises
from no feeling that a legally incorrect result has been
reached. Indeed, Judge Sprecher’s well reasoned opinion
leaves little area, it seems to me, for disagreement with
the legal premises it sets forth and applies.

It is somewhat ironical, and perhaps to be deplored, tha:
in a society which generally encourages competitive free
enterprise a service is to be stifled which a substantial see-
ment of citizenry of the Midwest portion of the country
found to be highly desirable in making available travel by

17Tt is not clear how the establishment of a prior affinity among
Voyager’s members would help petitioner’s ease. The C.A.B. has recently
begun experimenting with the discontinuance of the affinity group concept
due to the fact that it discriminates against individuals not belonging to
groups which are charterworthy. 37 Fed. Reg. 2080S (1972).

96

air which might not otherwise have been enjoyed 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 such movement is
one that has received Supreme Court recognition.

‘*This Court long ago recognized that the nature
of our Federal Union and our constitutional con-
cepts of personal liberty unite to require that all
citizens be free to travel throughout the length and
breadth of our land uninhibited by statutes, rules,
or regulations which unreasonably burden or restrict
this movement.’* Shapiro v. Thompson, 394 U.S.
618, 629 (1969).

While the further movement of the Voyager members is
perforce restricted by our upholding of the administrative
determination here involved, we are unable to say that it is
not supported by substantial evidence, nor that it is an un-
constitutionally unreasonable application of the guidelines
laid down by the Congress. That body has as a_ policy
matter legislated where competing interests are involved.
It is our function in the judiciary not to make the law but
only to determine what it is and whether it exceeds consti-
tutional limitations either as stated or as applied.

A true Copy:

Teste:

Appeals for the Seventh Circuit.

USCA 4013—The Scheffer Press, Inc., Chieago, Illinois—11-14-73—200

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1765%3A1. Public record. Not legal advice.