Petition for Writ of Certiorari — Woolsey v. National Transportation Safety Board

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fy Supreme Court, U.S.

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98-11 88 JAN 18 1994

No. ___oFfice OF TH

EC OLEKA

In The

Supreme Court of the United States

October Term, 1993

ROGER E. WOOLSEY,

Petitioner,

NATIONAL TRANSPORTATION SAFETY BOARD

and FEDERAL AVIATION ADMINISTRATION,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

—¢

SCHNEIDER & McKINNE)

W. Troy McKINnNeyY

11 Greenway Plaza, Suite 3112

Houston, Texas 77046

(713) 961-5901

Attorney for Petitioner,

Roger E. Woolsey

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. The improperly applied definition of “comme

carriage” affirmed below conflicts with both the applica-

ble federal statutes and re-ulations under the Federul

Aviation Act of 1958, 49 U.S.C.App. § 1301 et seq., and the

accepted comon law definition of the term, violates the

First Amendment rights of all commercial air operators,

and, if allowed to stand, will eliminate a significant seg-

ment of the commercial air irwiustry in the United States.

LIST OF PARTIES

Roger E. Woolsey (petitioner here and appellant below).

National Transportation Safety Board (respondent here

and appellee below).

Federal Aviation Administration (respondent here and

appellee below).

TABLE OF CONTENTS

QUESTION PRESENTED. ......--.-----2s+eerrerees

LIST OF PARTIES ......---:eececcceeceeserees

JURISDICTION .......----ecceec errr errr reer ceeees

eal os erase vedvercreeresverseereees

STATEMENT OF THE CASE.......-----+- eee eee:

REASONS FOR GRANTING THE WRIT ........---

THE DEFINITION AFFIRMED BELOW CON-

FLICTS WITH BOTH THE APPLICABLE FED-

ERAL STATUTES AND REGULATIONS AND

THE ACCEPTED COMMON LAW DEFINITION

OF THE TERM, VIOLATES THE FIRST AMEND-

MENT RIGHTS OF ALL COMMERCIAL AIR

OPERATORS, AND, IF ALLOWED TO STAND,

WILL ELIMINATE A SIGNIFICANT SEGMENT

OF THE COMMERCIAL AIR INDUSTRY IN THE

LINITED STATES ......--- sec ccc cer cc ccecercees

THE REVOCATION OF WOOLSEY’S COMMER-

CIAL PILOT’S LICENSE PURSUANT TO A DEFI-

NITION OF COMMON CARRIER NOT

ADOPTED IN CONFORMITY WITH THE

ADMINISTRATIVE PROCEDURE ACT SHOULD

BE SUMMARILY REVERSED........----+++-+>>

TABLE OF CONTENTS - Continued

Page

3. THIS CASE IS PARTICULARLY SUITED FOR A

GRANT OF CERTIORARI BASED ON THE ISSUE

PRESENTED, THE RECORD AVAILABLE, AND

THE WIDESPREAD POTENTIAL FOR HARM TO

AMERICA’S COMMERCIAL AIR OPERATORS.. 13

POA Fie bond be ka tuaens eb sare eer eae es 15

APPENDICES:

Appendix A: Opinion issued by the United

States Court of Appeals for the

Fifth Circuit on June 23, 1993........ la

Appendix B: Denial of Petition for Rehearing

and Rehearing En Banc by the

United States Court of Appeals for

the Fifth Circuit on August 18,

a Pye PE ey EEE S

Appendix Opinion issued by the National

Transportation Safety Board on

ee. reer

Appendix D: Transcript from the record of the

Oral Initial Decision and Order of

the administrative law judge given

a 2 es ee Oe eae 47a

Appendix E: Advisory Circular No. 120-12A

issued April 24, 1986 by the U.S.

Department of Transportation,

Federal Aviation Administration..... 56a

Appendix F: Selected portions of the United

States Code and the Code of Fed-

CURE TO oo sere caces ec eWis ves 6la

TABLE OF AUTHORITIES

Page

CASES

Arrow Aviation, Inc. v. Moore, 266 F.2d 488 (8th Cir.

os PEP EE ET eT TO aL ee 8

Batterton v. Marshall, 648 F.2d 694 (D.C.Cir. 1980) .... 13

Buchanan v. Stanships, Inc., 485 U.S. 265 (1988) ....-. 10

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

ot a) PP eerr er ererrerti Terri Crt eo 13

Consolo v. Federal Maritime Commission, 383 U.S.

GOT CBDGE) onc ccc cscccccsevasenssenveuneesriee nes 13

Curtiss-Wright Flying Service, Inc. v. Glose, 66 F.2d

710 (3d Cir.), cert. denied, 290 U.S. 696 (1933) ...... 9

Gallant v. Gorton, 581 F. Supp. 909 (D. Mass. 1984)..... 8

Home Insurance Co. v. Riddell, 252 F.2d 1 (5th Cir.

| PEP Or ReeCet ere er eter eet retire aL 6, 8

Jackson v. Stancil, 116 S.E.2d 817 (N.C. 1960) ...--06.: 8

Kansas City Southern Railway Co. v. United States,

2B? 11.5. TED (1991) .. 2c ccc cc ce ncnecserecscessess 10

Las Vegas Hacienda, Inc. v. C.A.B., 298 F.2d 430 (9th

a a ep rere Oren errr treet res. 9

Louisville & Nashville Railroad Co. v. United States,

28? U.S. 740 (1931)... ce ccc ncccnrercscvsrscvevee 9, 10

National Association of Regulatory Utility Commis-

sioners v. Federal Communications Commission,

533 F.2d 601 (D.C. Cir. 1976).......--- eee cece eeeees 8

Semon v. Royal Indemnity Co., 279 F.2d 737 (Sth Cir.

I soi ie hae ONO ROE E TARE ESTE ARTE 8, 9

State v. Department of Transportation, 868 F.2d 441

(D.C. Cir. 1989)... . cc ccc ccccceccceetercerecasrens 13

TABLE OF AUTHORITIES —- Continued

Page

Terminal Taxi Cab Co. v. Kutz, 241 U.S. 252 (1916)..... 8

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Counsel, Inc., 425 U.S. 748 (1976)........ 12

Washington v. Kuykendall, 275 U.S. 207 (1927)......... 8

Woolsey v. National Transportation Safety Board, 993

ce ks Ss ae: a reer ]

STATUTES, REGULATIONS, AND RULES

Administrative Procedure Act, 5 U.S.C. § 553..4, 5, 12, 13

Administrative Procedure Act, 5 U.S.C. § 706....... 13

gs SS Ae rae a repre tee st LO 2

Federal Aviation Act of 1958, 49 U.S.C.App. § 1301

“pha Meee) Ly Sanat lt gi a an aE a a ER Ie gE a a eM SLi So! a i

Federal Aviation Regulations, Part 1, 14 C.F.R.§1..... 5

Federal Aviation Regulations, Part 91, 14 C.FR.

Federal Aviation Regulations, Part 121, 14 C.FR.

I aries ie aie uae wes 4 ERSTE OER RTT 7

Federal Aviation Regulations, Part 125, 14 C.F.R.

Federal Aviation Regulations, Part 129, 14 C.FR.

EE ee eC Lal baie ke pcre w es eere ene e ea niee 7

Federal Aviation Regulations, Part 135, 14 C.FR.

ca S an 04 oy ais oow'h 44 dl6 WA SAAR 5, 2. 0

ois aS wasn sn band ourte oa ene 10

EN cscs o cnonsdebuvar doce nee 2

In The

Supreme Court of the United States

October Term, 1993

— —

ROGER E. WOOLSEY,

Petitioner,

NATIONAL TRANSPORTATION SAFETY BOARD

and FEDERAL AVIATION ADMINISTRATION,

Respondents.

———¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Roger E. Woolsey requests that this Court

issue a writ of certiorari to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding on June 23, 1993,

and for which rehearing was denied August 18, 1993.

——___——_- @—

OPINIONS BELOW

lhe opinion for which review is requested is Woolsey

v. National Transportation Safety Board, 993 F.2d 516 (5th

Cir. 1993), and is reprinted in the Appendix, along with

the order denying petitioner’s motion for rehearing. Sup.

Ct. R. 14.1. The opinions of the administrative law judge

and of the National Transportation Safety Board in this

matter are also reproduced in the Appendix. Id.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was rendered on June 23, 1993. Petitioner’s timely

motion for rehearing by that court was denied August 18,

1993. Petitioner was granted an extension by this Court to

file this Petition for Writ of Certiorari until January 18,

1994. This Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 1254(1).

STATUTES

Petitioner’s writ involves the application and inter-

pretation of several parts of the United States Code and

Code of Federal Regulations. Because of their voluminous

nature, these provisions are set out in the Appendix. Sup.

Ct. R. 14.1(f), (k).

STATEMENT OF THE CASE

This case presents a narrow legal issue requiring a

single, uniform answer that only this Court can give: the

definition of “common carrier” under the Federal Avia-

tion Act of 1958 - a critical concept inexplicably left

undefined. The definition advanced below by the Federal

ieee

Aviation Administration, and affirmed by the National

Transportation Safety Board and Fifth Circuit Court of

Appeals, distorts the statutory scheme implemented by

Congress and conflicts with the accepted common law

definition of the term. If allowed to stand, the FAA defi-

nition will eliminate a significant segment of the commer-

cial air industry in this country.

The factual background in this matter is simple and

largely undisputed. The FAA revoked petitioner Roger

Woolsey’s pilot’s certificate for serving as pilot in com-

mand on flights that allegedly required operating certifi-

cates he did not possess. Woolsey personally flew country

and western singer Ms. Reba McEntire, her company

officials, employees, and guests, in an aircraft Ms. McEn-

tire operated under a time share agreement with Wool-

sey’s company, Prestige Touring, Inc. Claiming that those

flights involved common carriage, the FAA issued an

emergency order revoking Woolsey’s pilot’s license for

piloting them without a Federal Aviation Regulation

(FAR) Part 135 certification. Woolsey contended that no

Part 135 certification was required since the challenged

flights were not subject to that regulation; the flights

having been conducted under the Statutory exception to

the Part 135 requirement found in Part 91.501.1 As the

FAA admits, and the Fifth Circuit acknowledged, the

flights in question would have been governed by [art 91

' Though these proceedings originally included charges

that Woolsey, on one occasion, operated an aircraft in an unsafe

manner, the NTSB refused to affirm this finding by the adminis-

trative law judge and it was not part of the Fifth Circuit’s

opinion below. Appendix at 6a & nn.6, 7.

had common carriage not been involved. Appendix at

l4a, 23a.

In the proceedings below, the administrative law

judge found that Prestige Touring had engaged in com-

mon carriage, applying a definition of common carriage

announced in an FAA Advisory Circular that had never

been adopted as a formal rule or regulation in conformity

with the Administrative Procedure Act, 5 U.S.C. § 553.

Woolsey appealed to the National Transportation Safety

Board, which affirmed the administrative law judge in

pertinent part. Woolsey then appealed to the Fifth Circuit,

which affirmed the NTSB, one judge dissenting. Woolsey

now seeks review by this Court of the judgment and

opinion of the Fifth Circuit

REASONS FOR GRANTING THE WRIT

1. THE DEFINITION AFFIRMED BELOW CON-

FLICTS WITH BOTH THE APPLICABLE FEDERAL

STATUTES AND REGULATIONS AND THE

ACCEPTED COMMON LAW DEFINITION OF THE

TERM, VIOLATES THE FIRST AMENDMENT

RIGHTS OF ALL COMMERCIAL AIR OPERA-

TORS, AND, IF ALLOWED TO STAND, WILL

ELIMINATE A SIGNIFICANT SEGMENT OF THE

COMMERCIAL AIR INDUSTRY IN THE UNITED

STATES.

In the Federal Aviation Act of 1958, Congress estab-

lished a distinction between those individuals and com-

panies who solicit and transport the general public and

those who do not. The former, known as “air carriers,”

provide the carriage of persons or property by aircraft for

compensation or hire from one destination to another,

and are subject to stringent regulatory standards concern-

ing safety and air operations generally contained in Part

135 of the Federal Aviation Regulations (FAR), 14 C.F.R.

§ 135.1 et seq. See 49 U S.C.App. §§ 1301(3), (10), (24)(a).

[he latter, known as “commercial operators,” are defined

in the negative as those persons other than air ca ‘iers

who likewise fly persons or property for compensation or

hire from one destination to another, and must meet

different, less stringent, standards. See, e.g., 14 C.ER.

§§ 1.1, 91.1 et seq., 125.1 et seg. The sole distinction

between the two is whether the flight operations involve

common carriage, a term not defined by either the Fed-

eral Aviation Act of 1958 or any Federal Aviation Regula-

tion.

[The FAA definition of common carriage applied

below, and affirmed by the Fifth Circuit, comes from a

1986 Advisory Circular issued by the FAA, but never

adopted in conformity with the Administrative Procedure

Act, 5 U.S.C. § 553. The FAA defines a common carrier as

one who holds itself out to the public, or to a segment of

the public, as willing to furnish transportation within the

limits of its facilities to any person who wants it. Appen-

dix at 57a. The Advisory Circular gives four elements to

be considered when deciding if common carriage is

involved, the final three of which are redundant on the

statutory definition of an air carrier: (1) a holding out of a

willingness to (2) transport persons or property (3) from

place to place (4) for compensation. Compare Appendix at

57a with 49 U.S.C.App. §§ 1301(3), (10), (24)(a). The FAA

definition thus does not include the critical element con-

tained in the common law definition that a carrier serve

its customers indiscriminately.2 Thus, under the FAA’s

definition, the sole determining factor in deciding

whether an operator is an air carrier or a commercial

operator rests on whether there is a “halding out” of a

willingness to furnish service for hire, a «°rriers may

effect such a holding out, while commerci*! operators

may not.

But the FAA’s definition —- which omits the require-

ment that a common carrier serve its customers indis-

criminately — effectively eliminates the distinction

between an air carrier and a commercial operator; allow-

ing a party to remain a commercial operator only at the

2 As the Fifth Circuit has explained in Home Insurance Co. v.

Riddell, 252 F.2d 1, 4 (5th Cir. 1958):

The salient characteristic of a common carrier is

that “He must be engaged in the business of carrying

goods for others as a public employment, and must

hold himself out as ready to engage in the transporta-

tion of goods for persons generally . . . [and] holds

himself out as ready to engage in the transportation of

goods for hire as a public employment,

and . .. undertakes to carry for all persons indif-

ferently....” And to state it conversely, those who

“...do not hold themselves out as willing to serve

the public indiscriminately, are not common

carriers”... .{T]here has been no such holding out if,

in the regular operation of that business, the carrier

by act and deed, with or without words, claims to and

exercises the right to fix specific rates in each individ-

ual case basing the charges not on a regular schedule

(whether formally filed as tariffs or otherwise), but on

contemporary judgment of the moment. For this is an

effectual announcement that the carrier will discrimi-

nate, will undertake transportation differently, not

indifferently.

expense of their First Amendment right to free speech. If

a commercial operator undertakes any method to inform

any potential client of their services, or indeed if the

potential client even learns of the operator’s services

from any third party source, the commercial operator

becomes engaged in common carriage and is therefore

now an air carrier. In addition to the statutory anomalies

engendered by this “distinction,” the dissenting judge in

the Fifth Circuit recognized the substantial First Amend-

ment problem it created.* Thus, because the sole differen-

tiating factor in the definition of common carriage (the

distinction between an air carrier and a commercial oper-

ator) is the question of “holding out,” any First Amend-

ment activity which the FAA chooses to characterize as

“holding out” transforms a commercial operator into an

air carrier and subjects it to the license revocation

imposed on Woolsey. The issue is therefore not which

commercial operators could be affected by the FAA’s

definition as affirmed by the Fifth Circuit - all ure.4 See

Appendix at 27a-28a.

* In his dissent below, Judge DeMoss characterized this as

the “unanswerable conundrum” now presented to a commercial!

operator by the FAA’s definition (Appendix at 27a):

How can I engage in my business of carrying persons

or property for compensation or hire as a commercial

operator in air commerce, if by simply holding myself

out to prospective customers I became engaged in

“common carriage” which makes me an air carrier

subject to regulation under entirely different sets of

regulations?

* As are all persons or entities whose status depends on the

definition of common carrier. See, ¢.g., 14 C.F.R. §§ 121.1(a)(5)(ii);

125.1(a); 129.1(b); 135.1(a)(3).

As Woolsey urged below, application of the common

law definition of common carrier, with its emphasis on

indiscriminate service to all customers as reflected by the

use of a fixed rate or tariff charged, is both without the

constitutional infirmity and better effectuates the pur-

poses behind the federal statutes and regulations

involved. The common law defined a common carrier as

one who holds out a willingness to carry, at a fixed rate,

all persons applying for air transport, so long as there is

room in the aircraft. See Jackson v. Stancil, 116 S.E.2d 817

(N.C. 1960). Simply put, a common carrier takes all they

can carry who will pay their fare, a fare not distinguished

based upon who is the passenger. National Association of

Regulatory Utility Commissioners v. Federal Communications

Commission, 533 F.2d 601, 608-09 (D.C. Cir. 1976); Semon v.

Royal Indemnity Co., 279 F.2d 737, 739 (5th Cir. 1960);

Arrow Aviation, Inc. v. Moore, 266 F.2d 488, 490 (8th Cir.

1959); Gallant v. Gorton, 581 F. Supp. 909 (D. Mass. 1984).

That fixed fare or tariff is the linchpin of the requirement

that a common carrier serve its customers “indis-

criminately.” See Home Insurance Co. v. Riddell, 252 F.2d 1,

4 (5th Cir. 1958). The FAA definition omits this key facet.

Indeed, it is the indiscriminate service factor, with its

emphasis on the fixed nature of tariffs or charges, that

has been the focus of this Court’s prior decisions involv-

ing common carriage. Thus, in Terminal Taxi Cab Co. v.

Kutz, 241 U.S. 252, 255-56 (1916), Justice Holmes noted

“the mechanical fixity of charges” in deciding whether

the taxicab company was a common carrier, and as such,

subject to rate regulation by the Public Utilities Commis-

sion of the District of Columbia. Likewise in Washington

v. Kuykendall, 275 U.S. 207, 209-212 (1927), this Court

spent one-quarter of its four-page opinion detailing the

uniform charges assessed by the tow boat operators who

were challenging their status as common carriers and the

resultant regulatory iurisdiction asserted over them by

the Washington Department of Public Works.5®

Perhaps most closely analogous to the instant matter

were the facts of Louisville & Nashville Railroad Co. v.

United States, 282 U.S. 740 (1931), in which this Court

> Below, the FAA (when convenient) distinguished peti-

tioner’s cases as either not involving aviation, or not concerning

aviation safety (as opposed to economic) regulation. Indeed the

Fifth Circuit majority itself was caught by the definitional

doublespeak, first rejecting case authority from outside the avi-

ation context, and then accepting the FAA’s position that cases

involving the economic regulation of air carriers by the now-

abolished Civil Aeronautics Board might be appropriate support

for defining common carriage under FAA safety regulations. In

doing so, however, the majority relied on the Ninth Circuit's

opinion in Las Vegas Hacienda, Inc. v. C.A.B., 298 F.2d 430 (9th Cir.

1962), which explicitly rejected such an extrapolation, id. at

436-37. All such confusion would be eliminated if the common

law definition given above were applied. As the Fifth Circuit

itself once noted, “There is scarcely any field of law more

ancient Or more written on than that of carriers. So in solving

this insurance case, it is not surprising or disturbing that ‘we

must work with ancient markers whose general fitness is

reflected by their adaptability to the changing world of com-

merce and transportation.’ ” Semon v. Royal Indemnity Co., 279

F.2d 737, 739 (Sth Cir. 1960), quoting Home Insurance Co. v.

Riddell, 252 F.2d 1, 2 (5th Cir. 1958). Thus it has been with the

common law definition of common carriage moving from land

to water to air transportation. See Curtiss-Wright Flying Service,

Inc. v. Glose, 66 F.2d 710, 712 (3d Cir.), cert. denied, 290 U.S. 696

(1933). Indeed, the FAA itself recognized the applicability of the

common law definition when it adopted its version. Appendix

at 57a.

reviewed the determination of common carrier status for

railroads transporting office cars of other carriers — cars

“occupied exclusively by officers and employees of the

company owning the car and traveling upon business in

connection with the operation of their own railroac,” see

Kansas City Southern Railway Co. v. United States, 282 U.S.

760, 761 (1931). This case likewise presents the operation

of a similar “company plane” exception from the defini-

tion of common carriage. See 14 C.F.R. 91.501(b)(6)

(exception advanced below by Woolsey which excludes

the transport of company officials, employees, and guests

on an airplane operated under a time sharing, inter-

change or joint ownership agreement from FAR Part 135

regulation). Critical to this Court’s finding in Louisville &

Nashville R. Co. that the practice at issue was subject to

Interstate Commerce Commission regulation was the fact

that uniform minimum tariffs were collected by the car-

riers for transport of the allegedly private cars. See

Louisville & Nashville R. Co., 282 U.S. at 744-45 n.3, 748.

Here, the carriage of company officials, employees and

guests — specifically excepted from regulation as common

carriage - was independently negotiated and not

invoiced on a fixed rate or tariff basis.

The record in this matter also demonstrates the clear

violation of all operators’ First Amendment commercial

speech rights by enforcement of the FAA definition.®

correction. Sup. Ct. R. 10; cf. Buchanan v. Stanships, Inc., 485 U.S.

265, 269 (1988) (Marshall, J., dissenting). The merits are dis-

cussed only insofar as is necessary to show the truly micro-

scopic modicum of proof the FAA required before instituting

this emergency revocation proceeding and upon which the Fifth

Circuit affirmed.

Under the FAA definition, only a single example of what

the FAA decrees to be advertising to a relevant market

segment is needed for a company or individual to lose

their livelihood. See Appendix at 57a-58a (listing ways

“holding out” can be found).” Even taking as correct the

findings below regarding what constituted “advertising”

[for example, the magazine article written by a third

party reporter which simply mentioned Prestige Touring

Inc.|], none of the subject “proof” at issue here evidenced

a common law holding out to any segment of the public

of a willingness by Prestige Touring Inc. to furnish air

transportation to the limits of its facilities to any person

who wanted it on an indiscriminate basis. The limitation

which the FAA’s definition thereby places on the free

speech rights of commercial operators is undeniable. Sim-

ply put, had there been no First Amendment activity,

Woolsey could not have been found guilty. Indeed, the

FAA admitted that the flights in question here would be

governed by Part 91 if common carriage were not

involved. Appendix at 14a, 23a. The FAA definition there-

fore acts as a complete prohibition on the free speech

rights of commercial operators.

7 Though the Fifth Circuit noted the slippery slope nature

of this problem, the solace it found in dismissing it is illusory.

Appendix at 22a n.24. The guardian which the Fifth Circuit

claimed would protect commercial operators from the wide-

spread harm created by application of the FAA definition was

the requirement a carrier serve its customers “indiscriminately.”

Id. But as noted above, the FAA definition in fact removes the

linchpin for the determination of indiscriminate service — the

use of a fixed charge or tariff - which emasculates the guardian.

It was just this sort of restriction that this Court

invalidated in Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Counsel, Inc., 425 U.S. 748 (1976). In

Virginia Pharmacy, this Court affirmed that the indispens-

able needs of our free enterprise system require the free

flow of commercial information, and thus speech retains

its First Amendment protection even if it does nothing

more than propose a commercial transaction. Id. at

761-65. As in Virginia Pharmacy, the FAA definition used

here acts to completely suppress a commercial operator's

right to disseminate truthful information regarding its

services. By definition, any advertising makes the com-

mercial operator an air carrier. Appendix at 27a. As noted

above the issue is therefore not which commercial opera-

tors could be affected by the FAA’s definition as affirmed

by the Fifth Circuit — they all are. Appendix at 27a-28a.

The wholesale elimination by definition of the “commer-

cial operator” segment of the aviation industry in this

country — as illustrated by what happened to petitioner

Woolsey — requires corrective action by this Court.

2. THE REVOCATION OF WOOLSEY’S COMMER-

CIAL PILOT’S LICENSE PURSUANT TO A DEFI-

NITION OF COMMON CARRIER NOT ADOPTED

IN CONFORMITY WITH THE ADMINISTRATIVE

PROCEDURE ACT SHOULD BE SUMMARILY

REVERSED.

It is undisputed that the FAA’s definition of “com-

mon carriage” in Advisory Circular No. 120-12A, was not

adopted as a rule or regulation through the public notice

and comment procedures required by the Administrative

Procedure Act (APA), 5 U.S.C. § 553. Appendix at

61a-62a. But to have its definition of “common carriage”

supersede the long-standing common law definition, the

agency should have adopted it through the rule making

process described in the APA. See State v. Department of

Transportation, 868 F.2d 441, 445-47 (D.C. Cir. 1989) (find-

ing D.O.T. actions concerning advertising by airlines

which “shape and channel agency enforcement” must be

adopted through the formal procedure of the Act). This

the FAA failed to do, never justifying its failure with any

showing required to evade the Act. Cf. 5 U.S.C.

§ 553(b)(3)(B); Batterton v. Marshall, 648 F.2d 694, 704

(D.C. Cir. 1980). By taking away Woolsey’s pilot's license

pursuant to a definition of common carriage never prop-

erly adopted, the FAA’s actions violated Section

706(2)(A)-(D), making summary reversal appropriate. Cit-

izens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420

(1971); cf. Consolo v. Federal Maritime Commission, 383 U.S.

607, 621 (1966).

3. THIS CASE IS PARTICULARLY SUITED FOR A

GRANT OF CERTIORARI BASED ON THE ISSUE

PRESENTED, THE RECORD AVAILABLE, AND

THE WIDESPREAD POTENTIAL FOR HARM TO

AMERICA’S COMMERCIAL AIR OPERATORS.

For 35 years Congress and the FAA have failed to

formally define common carrier; this Court is the only

other body that can give the uniform definition necessary

for this nation-wide industry. Although the issue is a

narrow legal question, the implications of the erroneous

definition upheld below reach far beyond the injustice

done Roger Woolsey. The question has been properly

preserved and is clearly presented by a complete record.

‘é

Indeed, far from this being a “fact bound” controversy,

the minuscule quantum of evidence which sufficed to

create common carriage here particularly illustrates the

nature of the slippery slope opened by the opinion below

and the potential for disaster.

Nor should the issue be left to “percolate” in lower

courts. The defining of this statutory term does not pre-

sent a volatile circumstance such that great benefit can be

gained from allowing several courts throughout the coun-

try to address it. Meanwhile, the lives and livelihood of

all commercial operators, and their employees, hinge on

the proper definition of “common carrier,” and the will-

ingness of those operators to forgo their right to free

speech.

In addition, the procedural difficulties faced by

future litigants means thai few, if any, wiil persevere the

arduous administrative process, as well as a dual set of

appeals through both agency and circuit court, to eventu-

ally reach this Court’s door. Any stop at any point along

the way, whether through attrition or victory, will pre-

clude this Court from the opportunity to review this issue

in the future. And review by this Court is uniquely

required for any satisfactory resolution to this issue; this

is the only judicial forum that can give the necessary

uniform answer for application across the country. In an

industry that involves interstate commerce stretching

between areas overseen by differing courts of appeal,

percolation and “circuit splits” in the application of so

basic a question are simultaneously devastating to future

litigants and easily (and only) remedied by an opinion of

this Court.

CONCLUSION

The history behind this action led one Fifth Circuit

judge to note his belief that the Federal Aviation Admin-

istration had decided to make Roger Woolsey the scape

goat for an air crash he had no part in and for which he

bears no responsibility.® In its lust to punish Woolsey, the

FAA has set a precedent which will detrimentally rever-

berate throughout the air transportation industry in this

country, presenting commercial operators with a choice

between free speech and loss of livelihood. The narrow

legal issue presented is the definition of common carriage

under the Federal Aviation Act of 1958; a question prop-

erly presented on an illustrative record and for which

only this Court can give a satisfactory answer. Petitioner

Roger Woolsey requests this Court grant his petition for

writ of certiorari to review the judgment and opinion of

the Fifth Circuit Court of Appeals.

Respectfully submitted,

SCHNEIDER & McKINNEY

W. Troy McKINnney

11 Greenway Plaza, Suite 3112

Houston, Texas 77046

(713) 961-5901

Attorney for Petitioner,

Roger E. Woolsey

* Appendix at 5a, 32a. The FAA’s charges against Woolsey

arose .fter its investigation of a crash by another Prestige pilot

which killed many of the members of Ms. McEntire’s band; a

crash Woolsey was not responsible for and which was not one of

the flights challenged as imprope: :n this particular action.

APPENDIX A

Roger E. WOOLSEY, Petitioner,

NATIONAL TRANSPORTATION SAFETY BOARD and

Federal Aviation Administration, Respondents.

No. 91-4904.

United States Court of Appeals,

Fifth Circuit.

June 23, 1993.

President of air carrier appealed order of the

National Transportation Safety Board, which affirmed

revocation of his commercial pilot’s certification. The

Court of Appeals, Goldberg, Circuit Judge, held that evi-

dence supported finding that carrier was common carrier.

Affirmed.

DeMoss, Circuit Judge, dissented and filed opinion

|. Scott Hamilton, Louisville, CO, for Roger E. Wool

Edmund J. Averman, III, Atty., Peter J. Lynch, Man-

ager, Enforcement Proceedings Branch, Washington, DC,

for National Transp. Safety Bd. & FAA

National

Petition for Review of an Order of the

lransportation Safety Board.

Before GOLDBERG, JONES, and DeMOSS, Circuit

Judges.

GOLDBERG, Circuit Judge:

We embark on a journey into the lofty area of avia-

tion safety regulation. Previous navigators have left pow-

erful beacons along the way to guide us. The law in this

area is not too far up in the air. We may encounter a few

clouds of doubt, but they will dissipate. We anticipate a

smooth flight before descending to our final destination.

Roger E. Woolsey appeals an order of the National

lransportation Safety Board (“NTSB”) which affirmed the

FAA’s revocation of his commercial pilot’s certification

due to his failure to comply with the safety requirements

for pilots operating aircraft for a common carrier under

Part 135 of the Federal Aviation Regulations (“FAR), 14

C.F.R. § 135. Neither the Federal Aviation Act of 1958, 49

U.S.C.App. § 1301 et seq., nor the regulations promul-

gated, thereunder, define the term “common carrier.”

Woolsey disputes the definition used by the FAA and the

NTSB. He claims that the aircraft he piloted were not

operated in common carriage, and hence that the less

stringent safety requirements of FAR Part 91 should have

been applied by NTSB. He also contends that the NTSB

erred in affirming the administrative law judge’s admis-

sion into evidence of certain documents pertaining to the

marketing efforts of Prestige Touring, Inc. (“PTI”). We

find that the NTSB’s interpretation of the term “common

carrier” as applied to air carriers was correct, and that the

fact finding of the NTSB was supported by substantial

evidence even without reference to the documents Mr.

Woolsey sought to have excluded.

Roger E. Woolsey is president of Prestige Touring,

Inc. (“PTI”), a small air carrier which specializes in trans-

porting musicians. Prior to entering into an agreement to

transport the country musician Reba McEntire for a mini-

mum of several hundred hours per year, PTI marketed

itself primarily to rock musicians, with whom it had at

least twenty-five contracts in 1990.1 Although Woolsey

claims that PTI makes “individualized decisions in partic-

ular cases whether and on what terms to serve . . . [and]

does not furnish transportation indiscriminately, but fur-

nishes it only to those with whom it sees fit to contract,”

there is no evidence that PTI ever turned away anyone in

the music industry who applied to it for air transporta-

tion and was willing to pay its fee.

Woolsey became aware in the late 1980s of the fact

that most country musicians travel by bus, and he deter-

mined to take advantage of that largely untapped market.

In 1989, Woolsey sent Reba McEntire’s manager (who is

also her husband) information about the services offered

by PTI. Although PTI engaged in self-promotion in a

major periodical read by many in the music industry,

Woolsey considered it important to make direct contact

with stars like McEntire in order to expand from “rock”

into the country music segment of the music industry.

' In a “thank you note” to twenty-five of its clients in the

music industry which was published in an issue of the weekly

magazine Performance International, PTI proclaimed, “Prestige

Touring, Inc., is the #1 air support company [for the music

industry] in the United States.” The twenty-five artists listed in

the “thank you note” were: Reba McEntire, Billy Joel, Ricky

Skaggs, Larry Gatlin & The Gatlin Brothers, the Jerry Garcia

Band, Duran Duran, Chicago, Kiss, Alice Cooper, Clint Black,

Europe, Arron Tippon, Cinderella, Robert Plant, Whitesnake,

Jimmy Buffett, U2, Depeche Mode, Stevie Nicks, the Judds, Don

Williams, Sawyer Brown, Chet Atkins, the Grateful Dead, and

Garrison Keillor.

Shortly after the “press kit” sent by PTI to McEntire’s

manager arrived, an agreement was negotiated by Reba’s

Business, Inc. (“Reba’s Business”) and PTI, whereby PTI

agreed to transport McEntire and her entourage for a fee

for a minimum number of hours of flight time per year.?

An additional standard hourly fee was to be levied for

any flight time over and above the minimum hours speci-

fied in the contract. PTI agreed to provide a specific

aircraft for the exclusive use of McEntire and her guests.

PTI painted Reba McEntire’s name and that of her son,

Shelby Blackstock, on the fuselage of the airplane. McEn-

tire and her guests were permitted to leave their personal

belongings on the plane at all times. PTI agreed to McEn-

tire’s request that flights be made from the airport in

Gallatin, Tennessee, which was more conveniently

located for McEntire than the Nashville airport at which

PTI originally intended to provide her with service.* PTI

rented an apartment in the Gallatin, Tennessee area, in

2 The fee was structured so as to comply with the require-

ments of FAR Part 91. However, Woolsey admitted that the fee

he charged McEntire in this case was lower than that he charged

some of the rock musicians with whom he had contracts (under-

stood to be governed by FAR Part 135), because he hoped to

promote PTI’s entry into the “country and western” market.

% The change of airports entailed a reduction in the level of

safety available, because the Gallatin airport’s runway was

shorter. It is unclear from the record whether the significance of

that safety reduction was explained to McEntire or her manager

when they negotiated the change of airports. It appears that

operations under FAR Part 135 are not permitted to be con-

ducted at the Gallatin Airport. We note, however, that the

change of airports does not appear to have factored into the

FAA’s decision to revoke Mr. Woolsey’s certification.

order that a flight crew would be available to transport

Ms. McEntire on short notice.

Woolsey claims that all of the “lease agreements”

between PTI and Reba’s Business were intentionally

designed so as to comport with the requirements of FAR

Part 91, not FAR part 135. He contends that these leases

constituted “time sharing agreements,” which are gov-

erned under FAR Part 91 if they involve private or con-

tract carriers. Thus, whether or not the leases comport

with the requirements of FAR Part 91, the crucial question

remains whether PTI acted as a common carrier with

respect to the flights in question.

When another PTI airplane for which Reba’s Business

had contracted crashed,* Reba’s Business ceased doing

business with PTI. On July 5, 1991, a Federal Aviation

Administration (“FAA”) Administrator issued an emer-

gency order revoking Woolsey’s commercial pilot certifi-

cate due to his alleged violation of Section 91.13(a) of the

Federal Aviation Regulations, 14 C.F.R. § 91.13(a).° Wool-

sey was alleged to have served as pilot in command on

fifty-three flights for compensation without meeting the

training and examination requirements of FAR Part 135.

He was also alleged to have intentionally stopped an

4 Ms. EcEntire was not aboard the flight, but some of her

employees were.

5 FAR § 91.13(a) provides that “No person may operate an

aircraft in a careless or reckless manner so as to endanger the

life or property of another.”

engine during one flight in order to avoid having to stop

for fuel.®

On July 24, 1991, after an evidentiary hearing, an

administrative law judge orally affirmed the FAA Admin-

istrator’s decision. Petitioner appealed to the National

Transportation Safety Board, which on Aug. 28, 1991,

issued an opinion affirming the administrative law

judge’s decision with the respect to the revocation of

Woolsey’s license. The NTSB refused to affirm the admin-

istrative law judge’s finding that the intentional engine

stoppage constituted careless or reckless endangerment

of the life of property of others,” nevertheless concluded

that “the sanction of revocation is clearly appropriate

where, as here, respondent operated as pilot in command

of fifty-three flights with paying passengers, to whom he

owed a high standard of care, and when he did not have

the necessary training, examinations and check rides

required of him under Part 135 [which applies to common

carriers].” The NTSB based its finding that PTI was a

common carrier on the definition of that term provided in

FAA Advisory Circular No. 120-12A.

Woolsey appealed the NTSB decision to this court

pursuant to 49 U.S.C.App. § 1486(a).° PTI is not a party in

stoppage on one of the flights is not presented in this appeal.

? This part of the NTSB’s decision is not being appealed by

the FAA.

8 49 U.S.C.App. § 1486(a) provides:

“Any order, affirmative or negative, issued by the

Board or Secretary of transportation under this chap-

ter, except any order in respect of any foreign air

the instant case. First, we must decide whether the NTSB

erred in affirming the administrative law judge’s admis-

sion of certain evidence which was offered to support the

Federal Aviation Administration’s argument that PTI

held itself out to the public as a common carrier. Second,

in considering whether the comparatively stringent safety

regulations of Part 135 apply (as opposed to those of Part

91), we must decide whether the flights in question were

operated by Woolsey in “common carriage,” a term that

the Federal Aviation Regulations leave undefined.

DISCUSSION

I. THE ADMINISTRATIVE LAW JUDGE’S ADMISSION

OF EVIDENCE OF PTI’S MARKETING EFFORTS

Woolsey claims that the NTSB erred in affirming the

administrative law judge’s admission into evidence of

Exhibits A-9 through A-15, which were offered by the

FAA to show that PTI had held itself out to the public.’

carrier subject to the approval of the President as

provided in section 1461 of this Appendix, shall be

subject to review by the courts of appeals of the

United States or the United States Court of Appeals

for the District of Columbia upon petition, filed

within sixty days after the entry of such order, by any

person disclosing a substantial interest in such order.

After the expiration of said sixty days a petition may

be filed only by leave of court upon a showing of

reasonable grounds for failing to file the petition

theretofore.”

9 Exhibits A-9 through A-15 consist of the following:

A-9: An article in Performance International magazine,

which is a periodical published weekly and available

by subscription;

Woolsey contends that these exhibits should not have

been admitted because they were not authenticated by

any witness with personal knowledge of them. He further

contends that the failure to authenticate the documents

by presenting their authors or signatories as witnesses

deprived him of the right to confront and cross-examine

witnesses against him.

A10: An advertisement in the form of a thank-you

note from PTI to its clientele, published in Performance

International magazine;

A-11: A facsimile transmission from the manager of

the Judds, a country music duo, to FAA investigator

Hall, and a cancelled check made out to Prestige Tour-

ing by the Judds’ manager;

A-12: “Information packet” sent by PTI to the man-

ager of the Judds, which claims that PTI has strict

flight requirements that meet the highest Federal Avi-

ation regulations, states that PTI specializes in serv-

ing the music business, and lists as PTI’s past or

current clients at least twelve major rock and country

music stars, as well as the radio personality Garrison

Keillor and former presidents Carter and Ford;

A-13: “Press kit” containing excerpt from a promo-

tional “article” about PTI contained in Performance

International magazine; cover letter from PTI to the

manager of the Judds, noting that PTI has three

offices in the southern United States;

A-14: Facsimile transmission sent to FAA investigator

Tucker by TKO Management on that company’s let-

terhead, and a copy of a contract between PTI and the

musical group Sawyer Brown;

A-15: A letter and a check made out to PTI from

Cherry Air, both of which were sent to FAA inspector

Tucker by Cherry Air’s president, Jim Donaldson, at

Tucker’s request.

The NTSB has not adopted rules of evidence. In 1986,

the Administrative Conference of the United States

adopted recommendations which stated that it would be

improper to require agencies to apply the Federal Rules of

Evidence. Recommendation 86-2, 1 C.F.R. § 305.86-2. The

only Federal Rule of Evidence strongly recommended by

the Conference for use in agency proceedings was

Fed.R.Evid. 403 (“Exclusion of Relevant Evidence on

Grounds of Prejudice, Confusion, or Waste of Time”).

Section 556(d) of the Administrative Procedure Act,

which applies to proceedings before the NTSB, only

requires the exclusion of oral or documentary evidence

which is irrelevant, immaterial, or unduly repetitious. 5

U.S.C. § 556(d). Sorenson v. National Transportation Safety

Board, 684 F.2d 683, 686 (10th Cir.1982). This standard is

“somewhat lower” than that required for authentication

of decuments under Fed.R.Evid. 901, but nevertheless

“does not completely obviate the necessity of proving by

competent evidence that real evidence is what it purports

to be. . . . [a]bsent, any such proof, the evidence to be

admitted would be irrelevant or immaterial and hence

should be excluded from the proceedings.” Gallagher v.

National Transportation Safety Board, 953 F.2d 1214, 1218

(10th Cir.1992) (emphasis added) (toxicological report

held admissible in NTSB proceeding despite fact that

chain of custody relating to body fluid sample “was

somewhat compromised”; NTSB was not required to infer

any deliberate acts of tampering or gross negligence in

handling the evidence when none had been shown).

Although we note that a slightly lower standard for

admission of documentary evidence applies in adminis-

trative proceedings than in the federal courts, we find

10a

that admission of the documents in question would have

been proper under the Federal Rules. Woolsey contends

that an FAA official’s testimony that he had requested

and received the documents during the course of his

investigation was insufficient under Fed.R.Evid. 901(b)(1)

to assure that the documents are authentic. He also claims

that since neither the publishers nor the authors of the

telephone books, periodicals, cancelled checks, letters,

lease agreements and press kits testified, he was deprived

of the right as “an accused” to confront and cross-exam-

ine witnesses against him. The FAA counters that there

was no danger that the documents were not what they

were claimed to be, and that Mr. Woolsey had every

opportunity to cross-examine the FAA investigators who

testified as to the method by which the documents were

obtained and stored prior to the hearing. Mr. Woolsey did

not claim that any of the documents allegedly signed by

his employees contained forged signatures.

Exhibits A-9 and A-10, which consist of articles and

self-promotional statements made by PTI in the weekly

magazine Performance International, are self-authenticat-

ing documents under Fed.R.Evid. 902. While Woolsey

appears to admit for the first time in his Reply Brief that

the documents are self-authenticating, he attempts to

maintain the claim that they should not have been ad-

mitted by arguing that they were irrelevant. Specifically,

Woolsey claims that the self-promotional articles in

Exhibits A-9 and A-10 pertained to service provided by

PTI on a turboprop airplane, operation of which is gov-

erned by FAR Part 125, and not by FAR Part 91 or 135. We

find this argument unpersuasive, because the exhibits do

not specifically refer to any particular type of aircraft.

lla

We find that there was no error in the admission of

Exhibits A-11 through A-15. We believe there was ade-

quate assurance of authenticity for documents A-11

through A-15 to be admitted. All of these documents

pertain to solicitation of business by PTI.1° The docu-

ments were requested by, and sent to, FAA investigators,

who were available to testify about the method in which

the documents were obtained and kept by the FAA, and

why it was reasonable to consider them authentic.!!

There is no evidence that the signatures on the docu-

ments were forged or that the documents were otherwise

falsified; nor is there any evidence that the documents,

once received by the FAA investigators, ever left the

investigators’ hands. Fed.R.Evid. 901(a) provides that,

“The requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evi-

dence sufficient to support a finding that the matter in

question is what its proponent claims.” The Advisory

Notes following Fed.R.Evid. 901 state that testimony of

witnesses having “personal knowledge,” broadly con-

strued can support the authenticity of a document.!* We

10 See infra, note 9.

11 Even if this involved hearsay, “the only limit to the

admissibility of hearsay [in the administrative context] is that it

bear satisfactory indicia of reliability. . . . [I]t is not the hearsay

nature per se of the proffered evidence that is significant, it is its

probative value, reliability and the fairness of its use that are

determinative.” Calhoun v. Bailar, 626 F.2d 145, 148 (9th

Cir.1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407

(1981). See also Richardson v. Perales, 402 U.S. 389, 407-08, 91

S.Ct. 1420, 1430-31, 28 L.Ed.2d 842 (1971).

12 A “witness with knowledge” of a matter can be anyone

from “a witness who was present at the signing of a document

12a

do not believe that the admission of Exhibits A-1]

through A-15 deprived Mr. Woolsey of “the accused’s

right to confront and cross-examine witnesses.” All but

one of the cases Mr. Woolsey cites in advancing his argu-

ment are criminal cases involving the Sixth Amendment.

We consider those cases inapposite in this civil proceed-

ing. See Administrator v. Harrison, 2 N.T.S.B. 504 (1973).

The single civil case cited by Mr. Woolsey is Greene v.

McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

That case involved an administrative proceeding in

which a private individual working for a private com-

pany had his security clearance revoked by the Defense

Department of the United States. The Supreme Court

found that the failure to provide the employee any oppor-

tunity to confront the evidence against him or to cross-

examine witnesses violated due process. In Greene, the

government presented no witnesses and “[i]t was obvi-

ous... from the questions posed to petitioner and to his

witnesses, that the [Industrial Employment Review

Board] relied on confidential reports which were never

made available to petitioner.” 360 U.S. at 479, 79 S.Ct. at

1405. The petitioner in that case had no opportunity

whatsoever to confront the evidence against him. In the

instant case, by contrast, the FAA presented witnesses

and documents which Woolsey was free to confront.

Although he objected to the admission of the documents

based on the absence of the persons who signed them, he

to [one who can testify that] narcotics [were] taken from an

accused and account[ | for custody through the period until

the trial.” Advisory Note Example (1). See also Administrator v.

Moore, 2 N.T.S.B. 3216 (1981); Administrator v. Harrison, 2

N.T.S.B. 504, 505 (1973).

13a

did not claim the documents were forged or altered in

any way. FAA investigators were available for cross-

examination as to how they obtained the documents and

why it would be reasonable to conclude that the docu-

ments were authentic.

Even if admission of any of the documents in

Exhibits A-11 through A-15 was error, it was harmless.

There was additional evidence on which the administra-

tive law judge and the NTSB could have based the deci-

sion to affirm the FAA’s revocation of Mr. Woolsey’s

commercial pilot certification. There was evidence pre-

sented that PTI actively solicited McEntire’s business by

sending her letters and brochures; engaged in self-promo-

tion in periodicals available to the general public;'* pub-

licly listed the names of scores of its clients in the music

industry;'4 and advertised in the yellow pages of the

telephone book.!®° We consider this to be “substantial

evidence” supporting the view that PTI held itself out to

the public as a common carrier.'®

13 Exhibits A-9 and A-10.

i4 Exhibits A-9 and A-10.

15 The listing for PTI appeared under the heading “Aircraft

Charter, Rental & Leasing Service.”

16 As long as the findings of fact of the Board are supported

by substantial evidence, they must be affirmed. 49 U.S.C.App.

§ 1486(c). See King v. Nat'l Transp. Safety Bd., 766 F.2d 200, 203

(5th Cir.1985) (“As an appellate court reviewing an administra-

tive order, it is not [this Court’s] function to reevaluate the

weight of the evidence or to reexamine the credibility choices

made by the finder of fact”) quoting Stern v. Butterfield, 529 F.2d

407, 409 (5th Cir.1976)); Nadiak v. Civil Aeronautics Bd., 305 F.2d

588, 592 (5th Cir. 1962), cert. denied, 372 U.S. 913, 83 S.Ct. 729, 9

L.Ed.2d 722 (1963) (“The function of a reviewing Court is to

l4a

Il. DEFINITION OF “COMMON CARRIAGE” WITH

RESPECT TO AIR CARRIERS; APPLICATION OF

PART 135 IN THE INSTANT CASE

Woolsey contends that the contracts or “leases” for

air transportation signed by himself and country music

singer Reba McEntire were designed with an eye to com-

pliance with the requirements of FAR Part 91.'7 The Fed-

eral Aviation Administration (“FAA”), however, contends

that the more stringent safety requirements of FAR Part

135!*8 apply. The FAA admits that the flights in question

in this case would be governed by Part 91 had PTI not

advertised its services and actively solicited business. The

FAA contends, however, that PTI held itself out to a

definable segment of the general public as being available

for air carriage for compensation, and that PTI was for

that reason a “common carrier.” FAR Part 91 specifically

excludes common carriers from its coverage, leaving

them subject to the more stringent safety standards of

FAR Part 135. The policy behind this distinction appears

to be that the general public has a right to expect that

airlines which solicit their business operate under the

most searching tests of safety. The term “common carrier”

is not defined in the Federal Aviation Act or the Federal

Aviation Regulations. Hence, we must look to other

sources (the most important of which is the common law

relating to air carriers) in order to determine whether PTI

accept the findings of fact made by the administrative body if

there is substantial evidence in the record as a whole to support

those findings”).

17 14 C.F.R. § 91.

18 14 C.ER. § 135.

15a

was a common carrier with respect to the flights in ques-

tion in this case.

In response to potential confusion as to the meaning

of the term “common carrier” under the Federal Aviation

Act, the Federal Aviation Administration issued Advisory

Circular No. 120-12A (“Advisory Circular”) on April 24,

1986. The Advisory Circular provides FAA employees

and members of the aviation industry with “general

guidelines for determining whether current or proposed

transportation operations by air constitute private or

common carriage.” Advisory Circular at 1. The Advisory

Circular defines a common carrier as one which holds

itself out to the public as being willing to transport per-

sons or property for compensation, to the extent that its

facilities permit.

Mr. Woolsey was aware of the definition of “common

carriage” provided by the FAA in its Advisory Circular.

However, Mr. Woolsey contends that PTI not only did not

hold itself out to the public, but that the definition of

common carriage contained in the Advisory Circular is

too broad, does not have the force of law because it was

not promulgated as a regulation under the Administra-

tive Procedure Act, and is inconsistent with the common

law definition of a common carrier. Woolsey claims that

the common law defines a common carrier as one which

(1) holds itself out to the public as willing to carry anyone

who applies so long as there is room in the aircraft, (2) at

a uniform price applicable to all who apply. He claims

that PTI “furnished air transportation only to those with

whom it saw fit to contract, as a private or contract

carrier, and... any... “holding out” was no more than

an invitation to negotiate such contracts on a case-by-case

l6a

basis, without any evidence of uniformity of charges or

willingness to carry all persons applying so long as there

is room in the aircraft.”

Instead of focussing on whether PTI held itself out to

the public, Mr. Woolsey discusses at length the nature of

PTI’s contracts with Reba’s Business; the fact that Ms.

McEntire was given exclusive use of a PTI airplane; and

the fact that the contract was not for a single or even

several flights, but for a year’s term. In so doing, he

hopes to establish that the agreement at issue here was

not a charter agreement, but a “time sharing” agreement

under FAR Part 91;'% that the airplane known by air

traffic controllers across the nation as “Reba Jet” was

more like a private airplane than an airplane owned by a

common carrier and chartered by a private party.

Woolsey notes that many of the cases defining “com-

mon carriage” as the FAA does are cases relating to

economic regulation of air carriers, as opposed to safety

regulation of air carriers. He contends that any relevance

that these cases might have had in the area of aviation

safety was decimated in 1978 by Congress’ abolition of

the Civil Aeronautics Board and repeal of economic regu-

lations affecting air carriers. Airline Deregulation Act of

1978, Pub.L. No. 95-504, Section 3; 92 Stat. 1705. We do

not agree that these cases “have no precedential value

after 1978,” nor do we agree that the term “common

'' The term “time sharing agreement” is defined in Section

91.501(c) as “an arrangement whereby a person leases his air-

plane with flight crew to another person, and no charge is made

for the flights conducted under that arrangement other than

those specified in paragraph (d) of this section.”

17a

carrier” as defined in economic regulation cases has no

relevance in cases concerning safety regulation. The same

definition has been applied in both economic and safety

regulation cases. The term “common carrier,” as used in

the common law, was not affected by the repeal of certain

economic regulations under the Airline Deregulation Act

of 1978. The mere fact that one of the bodies responsible

for developing the common law definition of common

carriage no longer exists is no argument for abolishing

the common law definition developed while that body

was in existence.2°

We do not address the legal sufficiency of the Advi-

sory Circular, for we find that the definition of common

carrier provided therein is in relevant respect the same as

that found at common law. Contrary to the assertion of

Mr. Woolsey, the FAA does not seek to broaden the defi-

nition of common carriage. Mr. Woolsey seeks to narrow

that definition in a manner inconsistent with the case law.

He would have us hold that an air carrier engages in

common carriage only when it transports all members of

the public at the same price whenever it has room on its

airplanes. Although there is some support for the view

that a common carrier must deal on the same terms and

conditions with all of its customers, see, e.g., Semon v.

Royal Indemnity Co., 279 F.2d 737 (5th Cir.1960) (charter of

a fishing boat found to constitute private or contract

carriage where there was no evidence of holding out), we

20 Had Congress defined “common carriage” so as to

replace the common law definition developed by the Civil Aero-

nautics Board and the courts, the question before us would be

different.

18a

are aware of no cases actually applying such a restrictive

test to air carriers.?!

The Advisory Circular correctly points out that the

crucial determination in assessing the status of a carrier is

whether the carrier has held itself out to the public or to a

definable segment of the public as being willing to trans-

port for hire, indiscriminately. Las Vegas Hacienda, Inc. v.

Civil Aeronautics Bd., 298 F.2d 430 (9th Cir.), cert. denied,

369 U.S. 885, 82 S.Ct. 1158, 8 L.Ed.2d 286 (1962); East

Coast Flying Serv. Enforcement Proceeding, 46 C.A.B. 640

(1967); M & R Inv. Co., Inc. v. Civil Aeronautics Bd., 308

F.2d 49 (9th Cir.1962); Arrow Aviation, Inc. v. Moore, 266

F.2d 488 (8th Cir.1959); Southeastern Aviation, Inc. Enforce-

ment Proceeding, 32 C.A.B. 1281 (1961); Consolidated Flower

21 In Jackson v. Stancil, 253 N.C. 291, 116 S.E.2d 817, 824-25

(1960), the North Carolina Supreme Court quoted two early

commentators on aviation law for the proposition that “[t]he

chief test applied to determine whether a carrier is a “common

carrier” is whether or not the operator of the aircraft either by

express written or oral statements, or by his course of conduct,

holds himself out to the public as willing to carry at a fixed rate

all persons applying for air transportation . . . so long as his

plane or planes will carry them.” However, that court went on

to apply a more multivariate test for common carriage, in which

the dispositive factor was not whether the carrier charged uni-

form rates or agreed to carry all passengers for whom its aircraft

had room, but whether the carrier held itself out to the public as

being available for service. The court specifically noted that a

charter carrier “may limit its operations solely to charter flights

and still be a common carrier.” Id. 116 S.E.2d at 824. Thus, the

court implicitly credited the idea that a charter carrier can qual-

ify as acommon carrier even if it does not offer to every member

of the public every available seat on its aircraft, but offers

various package deals to members of a defined segment of the

public.

19a

Shipments, Inc., 16 C.A.B. 804 (1953), aff'd, Consolidated

Flower Shipments v. Civil Aeronautics Bd., 213 F.2d 814 (9th

Cir.1954); Intercontinental Enforcement Proceeding, 41

C.A.B. 583 (1965). The test “is an objective one, relying

upon what the carrier actually does rather than upon the

label which the carrier attaches to its activity or the

purpose which motivates it.” Las Vegas Hacienda, 298 F.2d

at 434.

The cases which Woolsey cites in support of his defi-

nition of “common carriage” are distinguishable. Most of

these cases involve definitions of common carriage devel-

oped outside the context of aviation law. See, e.g., Terminal

Taxicab v. Dist. of Columbia, 241 U.S. 252, 36 S.Ct. 583, 60

L.Ed. 984 (1916) (taxicabs); Semon, 279 F.2d 737 (fishing

boat); Home Ins. Co. v. Riddell, 252 F2d 1 (5th Cir.1958)

(trucks). We agree with the Ninth Circuit that these cases

are inapposite:

It would be wholly unjustified simply to assume

that the [disputed] terms are to have the precise

meaning attached to them in the definitions of

the Motor Carrier Act and in the case law under

that statute. . . . We have been warned of the

impropriety of assuming that Congress intended

that judicial precedents and rules of interpreta-

tion applicable to the regulation of other forms

of transportation were to be applied to the regu-

lation of transportation by air: “However useful

parallels with older forms of transit may be in

adjudicating private rights, we see no reason

why the efforts of the Congress to foster and

regulate development of a revolutionary com-

merce that operates in three dimensions should

be judicially circumscribed with analogies taken

over from two-dimensional transit.”

20a

Las Vegas Hacienda, 298 F.2d at 437, 439 n. 31 (quoting

Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

333 U.S. 103, 108, 68 S.Ct. 431, 434-35, 92 L.Ed. 568

(1948)).

The few cases cited by Woolsey which do concern

aviation law are either distinguishable or only weakly

support his argument in dicta. See, e.g., Jackson v. Stancil,

253 N.C. 291, 116 S.E.2d 817 (1960) (where appellant did

not list his business in the telephone book or advertise in

any other fashion, and was affirmatively sought out by a

former flying student for a single incident of transporta-

tion, appellant engaged in private or contract carriage;

quoting with approval two early commentators who

advanced test for common carriage involving holding

out, uniform tariffs, and willingness to serve all persons

aircraft can accommodate, but applying more multi-

faceted test for common carriage in which holding out

was dispositive factor); Seven Seas Airlines, Inc., Enforce-

ment Proceeding, 34 C.A.B. 45 (June 26, 1961) (noting in

dicta that “if a carrier is not required to dedicate or assign

to the exclusive use of certain patrons any particular

equipment or if there is nothing to prevent a carrier from

hauling with any such equipment, it has been held that

the carriage is common”; but not stating that dedication

of an airplane to the exclusive use of a single party

necessarily would constitute private or contract carriage);

Scarborough v. Aeroservice, Inc., 155 Neb. 749, 53 N.W.2d

902 (1952) (owner of a school for airplane mechanics, who

agreed to transport one of his students on a single 45-

minute flight, was private carrier).

There was substantial evidence, even excluding

Exhibits A-11 through A-15, on which the administrative

2la

law judge and the NTSB could conclude that PTI had held

itself out as being willing to serve all members of the

music industry who were able to pay for its services.?2

Although Woolsey claims that PTI was “discriminating”

about whom it would serve, there is no evidence that PTI

ever turned away any member of the music industry who

was able to pay PTI’s fees. On these facts alone, the NTSB

was justified in concluding that PTI acted as a common

carrier.

Woolsey claims that because PTI does not utilize

uniform tariffs, it is not a common carrier.2> While most

common carriers do utilize uniform tariffs applicable to

all who apply for service, we agree with the FAA that the

“absence of tariffs or rate schedules, transportation only

pursuant to separately negotiated contracts, or occasional

refusals to transport, are not conclusive proof that the

carrier is not a common carrier.” Advisory Circular at 1.

See East Coast Flying Serv., 46 C.A.B. at 644; Southeastern

Aviation, 32 C.A.B. at 1284-85. The existence of a contract

negotiated for a special price does not alone suffice to

make the carrier a private carrier. See, e.g., Las Vegas

*2 As long as the findings of fact of the Board are supported

by substantial evidence, they must be affirmed. 49 U.S.C.App.

§ 1486(e). See King, 766 F.2d at 203; Nadiak, 588 F.2d at 592-93.

2% For this proposition, Woolsey relies on Jackson v. Stancil,

253 N.C. 291, 116 S.E.2d 817, 824-25 (1960), in which the North

Carolina Supreme Court quoted with approval two early com-

mentators on aviation law for the proposition that common

carriage involves uniform pricing. However, as noted supra, the

North Carolina Supreme Court actually applied a multifaceted

test in which no single factor besides “holding out” was disposi-

tive.

22a

Hacienda, 298 F.2d at 434; Intercontinental, 41 C.A.B. at

601-02; Southeastern Aviation, 32 C.A.B. at 1285.

What is crucial is that the common carrier defines

itself through its own marketing efforts as being willing

to carry any member of that segment of the public which

it serves.24 In this case there was sufficient evidence on

which the NTSB could conclude that Prestige Touring had

marketed itself to numerous rock stars, and sought to

enter and capture the country music industry by directly

soliciting the business of country music luminaries like

McEntire.

Woolsey claims he structured the contract between

PTI and Reba’s Business, Inc., in order to make it comport

with the requirements of FAR Part 91.501 (subpart F), 14

C.F.R. § 91.501, which does not apply in conjunction with

Part 135. The exception to Part 135 on which Woolsey

relies is found at FAR Part 91.501(b)(6), which states that

“Operations that may be conducted under the rules in

this subpart instead of those in parts 121, 129, 135, and

137 of this chapter when common carriage is not involved,

include —- . . . The carriage of company officials,

employees, and guests of the company on an airplane

”

operated under a time sharing ... agreement. .

24 It may be objected that if the relevant “segment” of the

public is defined narrowly enough, any carrier transporting

more than one party might conceivably be found to be a com-

mon carrier. The slope is not that slippery. Only those carriers

who affirmatively hold themselves out to the public, either by

advertising or by a course of conduct evincing a willingness to

serve members of the general public (or a segment thereof)

indiscriminately, so long as they are willing to pay the fee of the

carrier, will qualify as common carriers.

23a

(emphasis added). The term “time sharing agreement” is

defined in FAR Part 91.501(c)(1) as “an arrangement

whereby a person leases his airplane with flight crew to

another person, and no charge is made for the flights

conducted under that arrangement other than those spec-

ified in paragraph (d) of this section.”25 Woolsey claims

that PTI charged no more than permitted by the regula-

tion. The FAA appears to concede in its brief that “[Sub-

part F] provides for certain limited exceptions to the

requirement that passenger-carrying operations con-

ducted in air commerce for compensation or hire (in the

type aircraft Woolsey was using) be conducted under Part

135, the operating rules applicable to air taxi and com-

mercial operators. If Woolsey’s operations in fact met the

requirements set forth in FAR § 91.501, it appears that he

could have conducted those operations under the rules of

that subpart, rather than under the more stringent

requirements of FAR Part 135.” Respondents’ concession

is more apparent than real, however, for the exceptions to

application of Part 135 to operations like those which

*° The charges permitted to be made for transportation

under a time sharing agreement are as follows:

(1) fuel, oil, lubricants and other additives; (2) travel

expenses of the crew, including food, lodging, and

ground transportation; (3) hangar and tie-down costs

away from the aircraft's base of operation; (4) insur-

ance obtained for the specific flight; (5) landing fees,

airport taxes, and similar assessments: (6) customs,

foreign permit, and similar fees directly related to the

flight; (7) in-flight food and beverages; (8) passenger

ground transportation; (9) flight planning and

whether contract services; (10) an additional charge

equal to 100% of the expenses for fuel, oil, lubricants

and other additives. 14 C.F.R. § 91.501(d).

24a

took place in the instant case would apply only with

respect to private or contract carriers.

Because we have affirmed the finding of the NTSB

that the aircraft used for the flights in question were

operated by Woolsey in common carriage, we find that

Mr. Woolsey’s claim that he intended to bring these oper-

ations under Part 91 is unavailing. The objective conduct

of PTI, holding out its services to the music industry and

actually serving scores of different musicians, makes

PTI’s operations subject to FAR Part 135. The subjective

intentions of Woolsey are not controlling. It is the objec-

tive conduct of himself and his corporation which bring

their actions under FAR Part 135. Las Vegas Hacienda, 298

F.2d at 434. See also Consolidated Flower Shipments, 16

C.A.B. at 805 (“[A] carrier cannot divest itself of its com-

mon-carrier status by the simple expedient of entering

into an agreement with its customers purporting to

relieve itself of its normal liability”). The Federal Aviation

Regulations are primarily designed to protect the public

safety, and not the private contractual aspirations of

given parties.

CONCLUSION

We have arrived at our destination: AFFIRMED.

DeMOSS, Circuit Judge, dissenting:

In my opinion, the “flight” in this case has been long

and bumpy, our instruments did not work well, and I

think we have landed at the wrong airport. I write this

dissent to explain why.

;

25a

I. Who is a “common carrier” and when is “common carriage

not involved?”

The fundamental problem in this case is one of defi-

nitions. Neither Congress nor the Federal Aviation

Administration (“FAA”) have defined the term “common

carriage” or “common carrier.” | am amazed that this is

the case. First, I feel strongly that there is a serious due

process problem in a quasi-judicial proceeding, such as is

involved in this case, if the revocation of a commercial

pilot’s license turns on the meaning of a critical term

which the administrative agency has not previously

defined under its rule making powers. Clearly the FAA in

issuing its advisory circular that purports to define “com-

mon carriage,” did not comply with the procedure for the

adoption of a formal rule or regulation. And, taking away

a commercial pilot’s license has an economic impact on

that individual very similar to a fine or jail term or taking

away a lawyer’s license to practice. An individual should

not be deprived of their livelihood as a result of an

administrative agency’s ad hoc definition of a critical

term.

Second, I think the meaning that the agency gives to

the term “common carriage” in this case is fundamentally

inconsistent with other terms that are defined by the

statute and by the published regulations.

As I read the definitions set forth in the statute (49

U.S.C.App. § 1301) and in the regulations (14 C.F.R. § 1.1),

the terms are defined as follows:

A. “Air carrier” is one who engages in “air

transportation.”

26a

B. “Air transportation” means “interstate air

transportation,” “overseas air transportation,”

or “foreign air transportation,” or the “transpor-

tation of mail by aircraft.”

Each of interstate, overseas, and foreign air

transportation are defined to be “the carriage by

aircraft of persons or property as a common car-

rier for compensation or hire” (underlining

added) plus the individual geographical defini-

tion.

C. “Air commerce” means:

1. “Interstate air commerce”;

2. “Overseas air commerce”;

3. “Foreign air commerce”; or

4. “Operation or navigation of an aircraft

within a federal airway or directly

affecting or endangering safety in inter-

state, overseas, or foreign air com-

merce.”

D. Each of “interstate air commerce,” “over-

seas air commerce,” and “foreign air commerce”

are defined as “the carriage by aircraft of per-

sons or property for compensation or hire,” plus

the geographical definition pertinent to each

one.

E. The regulations (but not the statute) contain

the definition of “commercial operator” as “a

person who for compensation or hire engages in

carriage by aircraft in air commerce of persons or

property, other than as an air carrier or foreign air

carrier or under Part 375.” (underlining added.)

Under this definition structure, it is open, obvious,

and clear to me that the fundamental distinction between

27a

“air carrier” and “air transportation” on the one hand,

and “commercial operator” and “air commerce” on the

other hand, is that the first two involve carriage “as a

common carrier.”

Now to this set of definitions, the National Transpor-

tation Safety Board (“NTSB”) on page 6 of its opinion in

this case would add the definition of “common carriage”

“

as“ ... the four elements of common carriage are:

(1) a holding out of a willingness to

(2) transport persons or property

(3) from place to place

(4) for compensation.”

However, the NTSB’s definition wipes out the stat-

utorily created distinction between air transportation and

air commerce; and it runs contrary to it’s own definition

of “commercial operator” which expressly points out that

a commercial operator is one who acts “other than as an

air carrier.” Elements (2), (3), and (4) of the NTSB defini-

tion set out above, are the same elements referred to in

the definition of both “air transportation” and “air com-

merce”; and the new definition creates a seemingly

unanswerable conundrum for a commercial operator:

How can I engage in my business of carrying

persons or property for compensation or hire as

a commercial operator in air commerce, if by

simply holding myself out to prospective cus-

tomers I become engaged in “common carriage”

which makes me an air carrier subject to regula-

tion under entirely different sets of regulations?

Surely there is some Constitutional right to free

speech for business which would encompass making

28a

known to prospective customers the availability of your

services. Bottom-line, therefore, a stamp of approval to

the NTSB’s definition which might be inherent in an

affirmance of this case may have implications way

beyond the bounds of Woolsey’s license revocation dis-

pute which is directly involved.

Il. How does § 91.501 interrelate with § 135.1 of the applica-

ble regulations?

Much of the argument and discussion in this case

relates to this question which is a riddle wrapped in

another conundrum. Assuming that the airplanes piloted

by Woolsey meet the test of being “turbojet powered,

multiengined, civil airplanes” as defined in paragraph (a)

of § 91.501, the first sentence of subparagraph (a) makes

clear that the operation of these airplanes is covered by

the rules in “this subpart, [§§ 91.501-91.533] . . . in addi-

tion to those prescribed in other subparts of this part,” |i.e

Part 91]. Consequently, § 91.5 in subpart A of Part 91 is

clearly applicable to these planes and requires compli-

ance by the “pilot in command” with the “requirements

of § 61.58 of this chapter.” Section 61.58 establishes rules

for periodic proficiency checks or flight checks which are

similar to, but perhaps not identical with, provisions for

periodic flight testing in Part 135. The Board, however,

accuses Woolsey of failing to comply with the Part 135

provisions. Consequently, even if Woolsey were correct in

his argument that the “time sharing agreement” in this

case relieved him of the necessity of complying with the

periodic performance checks in Part 135 as charged by

the NTSB, he would still have to comply with § 91.5 and

29a

§ 61.58. The record fails to show whether Woolsey did in

fact comply with § 61.58 and whether the NTSB’s com-

plaint is really only as to the timing of getting those

rechecks under the more frequent requirements of Part

135. If that were in fact the case, then the sanction of

license revocation levied upon Woolsey is grossly out of

Proportion to the nature of the “wrong” that he commit-

ted. A suspension of his license for a fixed period of time

or a money fine would have been the appropriate penalty

if he did in fact get retested on the § 61.58 schedule rather

than the Part 135 schedule. On the other hand, if Woolsey

was not retested at all for periods of time longer than

those required under § 61.58, then his contention that the

time sharing agreement eliminates the applicability of

Part 135, even if correct, would still leave him in noncom-

pliance with §§ 91.5 and 61.58.

III. Must the government prove that the airplanes and flights

in questions were governed by Part 135 or is it sufficient

that the government simply prove that Prestige Touring

was not entitled to the benefits of 91.501?

On page 6 of its opinion, the Board stated:

The law judge found that, notwithstanding

respondent's claims that he strived to conform

to the requirements of Section 91.501, the over-

whelming evidence established that these opera-

tions were governed by Part 135 because

Prestige Touring, Inc. failed to meet the thresh-

old requirement of not being “common car-

riage.” We agree.

30a

From the same opinion on page 2, it appears that

Woolsey was charged with careless or reckless operation

of an aircraft in violation of § 91.13(a)

... by serving as pilot in command on 53 flights

for compensation or hire, without meeting the

training and examination requirements of

§§ 135.293(a) and (b), 135.297(a), 135.299(a), and

135.343.

Clearly, these are not “criminal” proceedings. They are

quasi-judicial in nature and result in the imposition of

sanctions based on past actions. The Board therefore

should have to prove that the flights in question were

covered by Part 135. From this perspective, the finding of

the law judge on page 6 of the opinion quoted above is

just flat wrong. The mere fact that Prestige Touring may

have failed to meet the “threshold requirement of not

being common carriage” [which is part of § 91.501] cer-

tainly does not establish that Part 135 is applicable to the

flights in question. As set forth § 135.1(a), the rules in

Part 135 govern:

(1) Air taxi operations conducted under the

exemption authority of Part 298 of this Title;

(2) The transportation of mail by aircraft con-

ducted under a postal service contract awarded

under § 5402(c) of Title 39, U.S.C.;

(3) The carriage in air commerce of person or

property for compensation or hire as a commer-

cial operator (not an air carrier) in aircraft hav-

ing a maximum seating capacity of less than 20

passengers or a maximum payload capacity of

less than 6,000 Ibs., or the carriage in air com-

merce of persons or property in common car-

riage operations solely between points entirely

3la

within any state of the United States, the aircraft

having a maximum seating capacity of 30 seats

or less and a maximum payload capacity of

7,500 Ibs. or less.

In my view, none of these subparagraphs apply to the

airplanes and flights which Woolsey served on as pilot in

command. The first subparagraph relates to “air taxi

operators”; and § 298.3(b) clearly states:

. a person who does not observe the condi-

tions set forth in paragraph (a) of this section

shall not be an air taxi operator within the

meaning of this part with respect to any opera-

tions conducted while such conditions are not

being observed.

One of the conditions in paragraph (a) was registra-

tion with the Board in accordance with subpart (c). Noth-

ing in the record makes reference to the registration by

Prestige Touring with the Board under subpart (c) of Part

298.

Similarly, subparagraph (2) of § 135.1(a) regarding

transportation of mail is not applicable because there was

clearly nothing referencing the carriage of mail on any of

the flights which Woolsey commanded.

There are two distinct and separate sentences to sub-

paragraph (3) joined by the disjunctive “or.” The second

of these sentences relating to the carriage of persons in

common carriage operations solely between points

entirely within any state (emphasis added) of the United

States might possibly be applicable to some of the flights

which Woolsey commanded, but that is not developed in

the record. That leaves the first sentence of subparagraph

(3) as the only portion of § 135.1(a) that might apply; and

32a

here we meet again the definitional conundrum involved

in this case. Assuming that the seating and payload

capacities of the airplanes which Woolsey flew meet the

limitations of the first sentence of subparagraph (3), the

conundrum arises from the words “as a commercial oper-

ator (not an air carrier)” in this first sentence; and the

definition which the Board uses to show that § 91.501 did

not apply comes back to shoot the Board in the foot. The

Board cannot have its cake and eat it too, and if the

“holding out” by way of acvertising and Yellow Pages

listings caused Prestige’s operations to be “common car-

riage” for purposes of 91.501, then Prestige cannot also be

“a commercial operator (not an air carrier)” for purposes

of subparagraph (3) of § 135.1(a).

In conclusion, I have to say that my gut reaction to

this case is that the FAA decided to make a scape goat out

of Woolsey because of the crash of the other aircraft

carrying Reba McEntire’s band. For the reasons set forth

herein, | am unable to concur with my distinguished

colleagues. I would reverse and remand for rehearing.

33a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-4904

ROGER E. WOOLSEY,

Petitioner,

versus

NATIONAL TRANSPORTATION SAFETY BOARD

and FEDERAL AVIATION ADMINISTRATION,

Respondent.

Petition for Review of an Order of the

National Transportation Safety Board and

Federal Aviation Administration

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion June 23), 5 Cir., 1993 , __. F.2d __)

(August 18, 1993)

Before GOLDBERG, JONES and DEMOSS, Circuit Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no mem-

ber of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc, (Federal Rules of Appellate Procedure

and Local Rule 35) the Suggestion for Rehearing En Banc

is DENIED.

34a

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who are

in regular active service not having voted in favor of it,

(Federal Rules of Appeliate Procedure and Local Rule 35)

the Suggestion for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR CLERK’S NOTE:

THE COURT: SEE FRAP AND LOCAL

/s/ Irvin L. Goldberg RULES 41 FOR STAY OF

United States Circuit THE MANDATE.

Judge

35a

APPENDIX C

SERVED: September 9, 1991

NTSB Order No. EA-3391

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

Adopted by the NATIONAL TRANSPORTATION

SAFETY BOARD

at its office in Washington, D. C.

on the 28th day of August, 1991

JAMES B. BUSEY, Administrator,

Federal Aviation Administration,

Complainant,

Docket

No. SE-11979

ROGER E. WOOLSEY,

Respondent.

Nee Newer ee Nee ee ee ee eee Ne

OPINION AND ORDER

The respondent has appealed from the oral initial

decision Administrative Law Judge Jimmy N. Coffman

issued in this proceeding on July 24, 1991, at the conclu-

sion of an evidentiary hearing.! By that decision the law

judge affirmed the Administrator’s emergency order,

dated July 5, 1991, revoking respondent’s commercial

pilot certificate on allegations that he had violated section

' An excerpt from the hearing transcript containing the

initial decision is attached.

36a

91.13(a) of the Federal Aviation Regulations (“FAR,” 14

C.F.R. section 91.13(a)),2 by serving as pilot in command

on 53 flights, for compensation or hire, without meeting

the training and examination requirements of FAR Part

135%, and by intentionally stopping an engine during

flight to avoid delay for a fuel stop on an approach to

land at Burbank, California, on November 29, 1990.

Respondent raises three issues on appeal.+ While

admitting that he served as pilot in command of the

flights, he denies the allegation that they were governed

by FAR Part 135, asserting that the flights fall under an

exception to Part 135 contained in FAR section 91.501.°

2 FAR Section 91.13(a) provides:

“§ 91.13 Careless or reckless operation.

(a) Aircraft operations for the purpose of air navigation. No

person may operate an aircraft in a careless or reckless manner

so as to endanger the life or property of another.

> FAR §§ 135.293(a) and (b), 135.297(a), 135.299(a), and

135.343. See Appendix.

4 The Administrator has filed a brief in reply.

> There were 25 flights on Civil Aircraft N93SC, a Jet Com-

mander Model IA-1121, occurring between May 1, 1990 and

May 28, 1990; 24 flights on Civil Aircraft N49RJ, a Sabreliner

Model 40, occurring between October 21, 1990 and December 9,

1990; and 4 flights on Civil Aircraft N49RJ occurring between

March 14, 1991 and March 16, 1991

“§ 91.501 Applicability.

(a) This subpart prescribes operating rules, in addition to

those prescribed in other subparts of this part, governing the

operation of large and of turbojet-powered multiengine civil

airplanes of U.S. registry. The operating rules in this subpart do

not apply to those airplanes when they are required to be oper-

ated under parts 121, 125, 129, 135, and 137 of this chapter. .. .

4’

ae J

Isa

Respondent also claims that the law judge committed

prejudicial error by admitting Administrator’s exhibits

A-9 through A-15. As to the November 29, 1990 flight,

respondent argues that the law judge erred in his cred-

ibility determination in favor of the Administrator’s wit-

ness. As we find, for the reasons discussed below, no

(b) Operations that may be conducted under the rules in

this subpart instead of those in parts 121, 129, 135, and 137 of

this chapter when common carriage is not involved, include

(6) The carriage of company officials, employees, and

guests of the company on an airplane operated under a time

sharing, interchange, or joint ownership agreement as defined

in paragraph (c) of this section. . .

(1) A “time sharing agreement” means an arrangement

wherewy a person leases his airplane with flight crew to another

person, and no charge is made for the flights conducted under

this arrangement other than those specified in paragraph (d) of

this section...

(d) The following may be charged, as expenses of a spe-

cific flight, for transportation as authorized by paragraphs

(b)(3) and (7) and (c)(1) of this section:

(1) Fuel, oil, lubricants, and other additives.

(2) Travel expenses of the crew, including food, lodging,

and ground transportation.

(3) Hangar and tie-down costs away from the aircraft's

base of operation.

(4) Insurance obtained for the specific flight.

(5) Landing fees, airport taxes, and similar assessments.

(6) Customs, foreign permit, and similar fees directly

related to the flight.

(7) In flight food and beverages.

(8) Passenger ground transportation.

(9) Flight planning and weather contract services.

(10) An additional charge equal to 100 percent of the

expenses listed in paragraph (d)(1) of this section.”

38a

merit in respondent’s objections to the law judge’s deci-

sion as to the Part 135 allegations, the appeal will be

denied, except to the extent that we will not affirm the

allegation concerning the November 29, 1990 flight.

The evidence of record establishes that respondent,

the owner of Prestige Touring, Inc. (“Prestige”), a Part 125

operator -had- carved out a niche in the air transport

industry by carrying rock and roll groups on aircraft

when they were on-téur throughout the United States. In

1989 respondent recognized that there was still an

untapped market to be targeted, i.e., country and western

entertainers, who largely travelled on tour by bus.

Respondent does not deny that he tried to capture this

market by mailing and faxing Prestige Touring, Inc. bro-

chures and letters to these stars, soliciting their business.

Narvel Blackstock, the husband and manager of Reba

McEntire, testified by deposition that he was very

impressed with Prestige’s materials, which appeared on

his desk just at the time when he and Reba McEntire were

considering the use of an aircraft to finish up her 1989

tour, before the birth of their son. They subsequently

contracted with Prestige for air transportation for the

1990 and 1991 tours as well.

In addition to Mr. Blackstock’s testimony that his

business was solicited by Prestige, and respondent’s

admission that Prestige solicited this business, the

Administrator produced other evidence of Prestige’s mar-

keting efforts. The Administrator’s exhibits include press

kits which Prestige sent to more than one potential client,

an ad which Prestige placed in a music-industry maga-

zine, a promotional article carried in a music-industry

39a

magazine, and a Yellow Pages listing for the company

under “Aircraft Charter, Rental, & Leasing Service.”7

Respondent claims that Prestige leased the subject

aircraft under “time sharing agreements.” He cites the

fact that the aircraft were normally used only by that

entertainer or his/her employees during the term of the

lease. For example, Reba McEntire used a Sabreliner

Model 40 in 1991. Her name was placed on the side of the

aircraft and the logo “Shelby’s Express” was placed

underneath the pilot’s window, because she apparently

used the aircraft after each performance to get home to

her son, Shelby. The star’s personal belonginzs remained

on the aircraft throughout the term of the lease. Coinci-

dentally, the aircraft’s registration number was N49RJ,

and, according to respondent, even air traffic referred to

the aircraft as “49 Reba Jet.”® Further, respondent testi-

fied that he hangared N49RJ near the entertainer’s home

during the term of the lease, and housed his pilots in a

corporate apartment nearby her home so that the aircraft

would be available for her use at all times. Respondent

also claims that Prestige’s charges for leasing the aircraft

were only those allowable under FAR section 91.501.

” Respondent claims that he neither asked for or paid for

this Yellow Pages listing, and that when he was questioned

about it by an FAA Inspector, that he was led to believe the ad

would be condoned by the Administrator.

* There is evidence that “49 Reba Jet” was once used to

transport The Judds during the lease with Reba McEntire, but

with her permission since she was on vacation.

40a

The law judge found that, notwithstanding respon-

dent’s claims that he strived to conform to the require-

ments of Section 91.501, the overwhelming evidence

established that these operations were governed by Part

135 because Prestige Touring, Inc. failed to meet the

threshold requirement of not being “common carriage.”

We agree. The four elements of common carriage are: (1)

a holding out of a willingness to (2) transport persons or

property (3) from place to place (4) for compensation.

Para. 4, FAA Advisory Circular No. 120-12A, Respon-

dent’s Exhibit R-9. As the law judge found in the instant

case, there was a “direct, open, obvious solicitation of

business for an on-demand air charter,” “e., a “holding

out.” Because of this “holding out,” Prestige’s operations

were “common carriage.”*

Respondent asserts that the law judge erred in con-

sidering the Administrator’s evidence concerning Pres-

tige’s marketing efforts, as it denied him the right to

cross-examine and confront witnesses against him. We

find this contention to be without merit. The documents!”

were relevant and probative evidence of respondent's

“holding out, gathered by an FAA Inspector directly from

persons solicited by Prestige, during the course of his

investigation, and identified as such by that Inspector,

° It is this “holding out” which clearly distinguishes the

facts in this case from those found in Administrator v. Bowen,

NTSB Order No. EA-3351 (served July 11, 1991). relied on by

respondent in his appeal brief.

10 Respondent’s attack on the authenticity of the periodi-

cals introduced by the Administrator is frivolous. Even under

the Federal Rules, which are not controlling here, such docu-

ments would be considered self-authenticating. FRE 902(6).

4la

who testified on behalf of the Administrator. This evi-

dence met the requirements of the Administrative Pro-

cedure Act.!!

Respondent further asserts that, notwithstanding this

evidence of solicitation, Prestige’s operations do not con-

stitute common carriage because the solicitations were

directed to the music industry, and there was no “holding

out” to the general public. We disagree. FAA Advisory

Circular No. 120-12A, which was offered into evidence by

respondent,!? indicates, in part, that

d. Carriage for hire which does not involve “hold-

ing out” is private carriage... .

e. A carrier holding itself out as generally willing to

carry only certain kinds of traffic is, nevertheless, a com-

mon carrier.'*

In summary, the Board concludes that Prestige’s

direct solicitation of the music industry as clients for air

transportation constituted common carriage, precluding

1! 5 USC §556(d) excludes only evidence which is irrele-

vant, immaterial, or unduly repetitious.

'2 Respondent admits that pursuant to his conversation

with an FAA inspector prompted by the Yellow Pages listing, he

was referred to FAA Advisory Circular No. 120-12A, Respon-

dent's Exhibit R-9, for the definition of “common carriage.”

'S In addition, we note that the promotional article indi-

cates that a Prestige jet was “chartered” to fly persons other

than entertainers, including the article writer, to a club in Mex-

ico owned by the rock group Van Halen, and a Prestige press

release indicates that former Presidents Ford and Carter have

been passengers on Prestige jets.

42a

Prestige’s claim that its operations fell within an excep-

tion to Part 135 contained in section 91.501. We adopt the

law judge’s findings that Prestige Touring, Inc.’s opera-

tions, as alleged in the Administrator’s order, were gov-

erned by Part 135 and that respondent's operation of the

aircraft as pilot in command resulted in violations of the

allegations of the FAR as alleged, including section

91.13(a).

Finally, we will not affirm that portion of the section

91.13(a) allegation concerning the November 29, 1990

operation. Our review of the conflicting testimony of

respondent and his co-pilot leads us to place great weight

on the unrebutted expert testimony of respondent's wit-

ness, who opined that it was unlikely that this particular

type of aircraft could suffer an engine stoppage due to

fuel unporting, and respondent's claim that if there had

been actual fuel exhaustion he would not have been able

to restart the engines and land and taxi with both engines

running, which his co-pilot admits did happen. As a

result, we need not rule on the law judge’s credibility

determination in light of the untimely documentary evi-

dence offered by respondent in his appeal. We nonethe-

less conclude that the sanction of revocation is clearly

appropriate where, as here, respondent operated as pilot

in command of 53 flights with paying passengers, to

whom he owed a high standard of care, and when he did

not have the necessary training, examinations and check

rides required of him under Part 135.

ACCORDINGLY, IT IS ORDERED THAT:

1. Respondent’s appeal as to the allegation that his

operation on November 29, 1990 constituted a violation

43a

of FAR section 91.13(a) is granted; in all other respects,

respondent’s appeal is denied.

2. The initial decision, except as to the allegation regard-

ing the November 29, 1990 operation is affirmed, and

3. The emergency order of revocation is affirmed.

KOLSTAD, Chairman, COUGHLIN, Vice Chairman,

LAUBER, HART, and HAMMERSCHMIDT, Members of

the Board, concurred in the above opinion and order.

APPENDIX

“§135.293 Initial and recurrent pilot testing require-

ments.

(a) No certificate holder may use a pilot, nor may

any person serve as a pilot, unless, since the beginning of

the 12th calendar month before that service, that pilot has

passed a written or oral test, given by the Administrator

or an authorized check pilot, on that pilot’s knowledge in

the following areas -

(1) The appropriate provisions of parts 61, 91, and

135 of this chapter and the operations specifications and

the manual of the certificate holder.

(2) For each type of aircraft to be flown by the pilot,

the aircraft powerplant, major components and systems,

major appliances, performance and operating limitations,

standard and emergency operating procedures, and the

44a

contents of the approved Aircraft Flight Manual or equiv-

alent, as applicable;

(3) For each type of aircraft to be flown by the pilot,

the method of determining compliance with weight and

balance limitations for takeoff, landing and en route oper-

ations;

(4) Navigation and use of air navigation aids appro-

priate to the operation or pilot authorization, including,

when applicable, instrument approach facilities and pro-

cedures;

(5) Air traffic control procedures, including IFR pro-

cedures when applicable;

(6) Meteorology in general, including the principals

of frontal systems, icing, fog, thunderstorms, and wind-

shear, and, if appropriate for the operation of the certifi-

cate holder, high altitude weather;

(7) Procedures for -

(i) Recognizing and avoiding severe weather situa-

tions;

(ii) Escaping from severe weather situations, in

cases of inadvertent encounters, including low-altitude

windshear (except that rotorcraft pilots are not required

to be tested on escaping from low-altitude windshear);

and

(iii) Operating in or near thunderstorms (including

clear air turbulence), icing, hail, and other potentially

hazardous meteorological conditions; and

(8) New equipment, procedures, or techniques, as

appropriate.

' 4

45a

(b) No certificate holder may use a pilot, nor may

any person serve as a pilot, in any aircraft unless, since

the beginning of the 12th calendar month before that

service, that pilot has passed a competency check given

by the Administrator or an authorized check pilot in that

class of aircraft, if single-engine airplane other than tur-

bojet, or that type of aircraft, if helicopter, multiengine

airplane, or turbojet airplane, to determine the pilot’s

practical skills and techniques in that aircraft or class of

aircraft. The extent of the competency check shall be

determined by the Administrator or authorized check

pilot conducting the competency check. The competency

check may include any of the maneuvers and procedures

currently required for the original issuance of the particu-

lar pilot certificate required for the operations authorized

and appropriate to the category, class and type of aircraft

involved. For the purposes of this paragraph, type, as to

an airplane, means any one of a group of airplanes deter-

mined by the Administrator to have a similar means of

propulsion, the same manufacturer, and no significantly

different handling or flight characteristics. For the pur-

poses of this paragraph, type, as to a helicopter, means a

basic make and model.

§135.297 Pilot in command: Instrument proficiency

check requirements.

(a) No certificate holder may use a pilot, nor may

any person serve, as a pilot in command of an aircraft

under IFR unless, since the beginning of the 6th calendar

month before that service, that pilot has passed an instru-

ment proficiency check under this section administered

by the Administrator or an authorized check pilot.

46a

§ 135.299 Pilot in command: Line checks: Routes and

airports.

(a) No certificate holder may use a pilot, nor may

any person serve, as pilot in command of a flight unless,

since the beginning of the 12th calendar month before

that service, that pilot has passed a flight check in one of

the types of aircraft which that pilot is to fly. The flight

check shall -

(1) Be given by an approved check pilot or by the

Administrator.

(2) Consist of at least one flight over one route

segment; and

(3) Include takeoffs and landings at one or more

representative airports. In addition to the requirements of

this paragraph, for a pilot authorized to conduct IFR

operations, at least one flight shall be flown over a civil

airway, an approved off-airway route, or a portion of

either of them.

§ 135.343. Crewmember initial and recurrent training

regu irements.

No certificate holder may use a person, nor may any

person serve, as a crewmember in operations under this

part unless that crewmember has completed the appro-

priate initial or recurrent training phase of the training

program appropriate to the type of operation in which

the crewmember is to serve since the beginning of the

12th calendar month before that service. This section does

not apply to a certificate holder that uses only one pilot in

the certificate holder’s operations.”

47a

APPENDIX D

BEFORE THE

NATIONAL TRANSPORTATION SAFETY BOARD

In the Matter of: Docket No. SE-11979

)

JAMES E. BUSEY,

ADMINISTRATOR,

FEDERAL AVIATION

ADMINISTRATION, .

Complainant, _)

vs. :

ROGER E. WOOLSEY, )

)

Respondent.

ORAL INITIAL DECISION AND ORDER

JUDGE COFFMAN: We have heard the case of

the Administrator, Mr. Busey, versus the Respondent, Mr.

Woolsey. The case is SE-11979.

The case was conducted today, the 24th day of July,

1991 in Arlington, Texas. The Administrator, at all times,

has been represented by Assistant Chief Counsel from the

FAA Southwest Region, Mr. Tim Duff. The Respondent

has been present in the courtroom at all times with his

attorney, Mr. Scott Hamilton from Broomfield, Colorado.

The trial was conducted through the day. We have

had witnesses and exhibits introduced on both sides.

And just a little discussion here. Many of the flights

were admitted to, so we don’t have to discuss each [p.

205] and every flight that was taken.

48a

I would state for the record several things. The fact

that the case that Mr. Hamilton pointed out - and this is

the Stancil case, the Supreme Court of North Carolina,

1960. I think the facts are a little different in that case.

It was a trip involving two business partners that

were flying a Valonca [phonetic], and the trip was for

business purposes. And I think the facts of that case are a

little different

However, in Administrator’s [ am sorry - in

respondent's Exhibit R-9 it states very clearly that in the

guidelines in this FAA advisory circular number

AC120-12A that there is four elements in defining a com-

mon carrier

A holding out of a willingness, number one; to trans-

port persons or property is number; number three, from

place to place;; and number four, for compensation.

[his case against Mr. Woolsey — this emergency order

revocation really involves two things. Number one, it

involves, where the flights that were admitted to and the

flights were made by Mr. Woolsey —- whether they were

under 91.501 or whether they were under 135. That is the

first issue

lhe second issue was whether the flight on [p. 206]

November 29, 1990 from Gallaton, Tennessee to Burbank,

California was careless and reckless.

Let’s talk about the 91 versus the 501 flights. The AC

addresses the issue of common carriers versus private

carriers. It talks about holding itself out.

49a

And in that regards, would like to call the record’s

attention to Mr. Blackstock’s deposition, which Mr. Black-

stock, for the record, is the business manager of Reba

McEntire.

He states in his depositions on page 6 and 7 that due

to her pregnancy, that she was very uncomfortable on a

bus, and they wanted to check on flying.

And he says at line three, “We picked up the yellow

pages and called some local charters and the only planes

that we found were available was a Lear 24 that was out

in Smerna [phonetic].”

And he describes how they went to look at the plane

and didn’t like the looks of it.

Down at line 20 — this is on page 6 of Mr. Blackstock’s

deposition — he says, “The next morning I came in and |

had received either a letter or a flyer. I can’t really

remember what the first contact was, if it was a letter or a

brochure from Prestige, but I had on my desk a letter

from Prestige Touring.

“It stated” — and continuing on page 7 — [p. 207] that

they had flown many of the pop artists, Billy Joel, Stevie

Nicks, U2. I was very impressed. I thought, Well I will

give them a call and run this itinerary by them and see

what happens.”

I think that as to the holding out issue, that a busi-

ness such as Mr. Woolsey holds - and we have Adminis-

trator’s 12 and Administrator’s 13. I think it is very clear

- | think it is abundantly clear that Prestige Touring was

holding itself out to the music industry as being available

for and operating a charter business.

50a

You just don’t send out press guides. You don’t send

out press packets. You don’t advertise. You don’t list

yourself in the yellow pages.

You don’t do things such as put together a touring

package and send it to people attempting to solicit busi-

ness, which apparently this contact with Mr. Blackstock

was unsolicited.

It was — he had a letter — he had a brochure from Mr.

Woolsey telling him about his company, or from some-

body at Prestige Touring, Inc. telling them about his

company. And it just appears abundantly clear that that

was a direct solicitation of business.

I want to cite for the record - I know you gentlemen -

you counselors probably don’t have the benefit of it, since

it is a most recent case. It was a [p. 208] case that I heard

involving Mr. Dan Bowen, Board Order Number EA 3351.

It was a case that I tried in Virginia Beach the first

week of June of last month. The Board decision date is

July 11, 1991.

In this case, it was facts very similar to what type of

company — we had a company run by Mr. Bowen that the

FAA alleged that he was operating flights under 135, and

Mr. Bowen maintained that he was operating flights

under part 91.

In that case, I dismissed the FAA’s order of revoca-

tion against Mr. Bowen and determined that the flights

were part 91 flights. That order was affirmed by the full

Board on July 11, 1991.

However, my opinion in this case, looking at the

circumstances of the two cases, that Mr. Woolsey’s does

5la

not fit into the category of the flights as described in the

Bowen case.

Part 91.501 is a gray area and is difficult to under-

stand, but not impossible. However, in this case — In Mr.

Woolsey’s case, we do not have the intricate agreements

like we had in the Bowen case.

We do not have the time share agreements. We don’t

have the lease back agreements. We don’t have the speci-

fic agreements — the demonstration flight agreements [p.

209] or other documentation that would show that these

flights were done under 91.501 and not under 135.

Plus, additionally, in this case, Mr. Woolsey’s case, in

my opinion, the evidence will support a finding that

there was direct, open, obvious solicitation of business

for an on-demand air charter.

Now, when we get into credibility, you have to look

at - when we are looking at the credibility of Mr. Woolsey

and the credibility of Mr. Dalton as to the incident alleged

to have occurred on November 29 — you have to look at

several factors in determining what each witness would

have to gain by the outcome. That is one of the factors.

You have to look at any prejudices that either witness

might have towards the testimony that they are about to

give.

You have to look at the reason for their testimony.

You have to look at the demeanor and the appearance.

And I submit for the record that there is no reason

that became apparent to this Court today why Mr. Dalton

would come into this Court and perjure himself.

52a

On the other hand, Mr. Woolsey has everything to

gain and everything to lose in this case —- his commercial

pilot’s license is at stake. His reputation in [p. 210] the

music industry, in the entertainment business is at stake

in this case.

So I think in all due respect to the imminent experts

on the Sabre, Mr. Lowery - I respect Mr. Lowery, how-

ever, | submit that I don’t see any reason why Mr. Dalton

would make up something like shutting an engine down,

restarting it and then running out of gas on an approach

into Burbank.

It sounds like that there was a lot of pressure on Mr.

Woolsey to get — and I am sure that Mr. Blackstock and

Reba McEntire would have been very unhappy had they

had to land in Las Vegas or Phoenix.

But I think with the experiences that they have

recently undergone, I think they would have been much

happier to land in Phoenix and Las Vegas and refuel then

to cut it as close as they did.

And it sounds to me like they cut it real close,

because Mr. Woolsey, | think, testified that he logged 4.5

or 4.6 on that flight.

Well, that is 4:30 to 4:45, 4:50, somewhere - that is

just awful, awful close on fuel consumption, fuel starva-

tion. And how many flights do we all see reading the

NTSB reports and accidents. Every day we see fuel star-

vation, fuel starvation as a cause of accidents, day after

d a y.

53a

[p. 211] So I am going to accept Mr. Dalton’s testi-

mony that it did happen. For whatever reason, the engine

was shut down.

And I am not going to reread the entire order in its

entirety due to its length, but I will say that this Court

will adopt the emergency order of revocation as

amended.

It will be the order of this Court that this order will

be affirmed and Mr. Woolsey’s airman certification

number 432194443 with commercial pilot privileges is

revoked, revocation to become effective immediately.

/s/

Jimmy N. Coffman

Administrative Law Judge

[p. 212] APPEAL

[ must add for the record, gentlemen, that any party

to this proceeding may appeal this proceeding by filing

with the Board - and both of you attorneys are very

experienced, but I want to caution you on the appeal time

on an emergency.

Should you decide to appeal you must within two

days from this date - I say again - within two days from

this date, you must file with the Board a notice of intent

to appeal.

That appeal has to be perfected within five days after

that date by filing with the Board a brief in support of

such appeal.

Let me caution both of you - and you read the

opinions as well as I do - that the Board will not hesitate

54a

to dismiss a case — dismiss an appeal for failure to file a

timely brief or timely notice.

Any questions, Mr. Duff, on behalf of the Adminis-

trator?

MR. DUFI None from the Administrator, Your

Honor.

IUDGE COFFMAN Mr. Hamilton, sir, any

questions on behalf of the Respondent?

MR. HAMILTON No, Your Honor

JUDGI COFFMAN Thank You, sir We are ip

213] adjourned

(Whereupon, at 4:45 p.m. this hearing was con

cluded.)

Ip. 214] CERTIFICATE

CASE NAMI Roger E. Woolsey

DOCKET NUMBER SE-11979

LOCATION Arlington, Texas

DATE: luly 24, 199]

[ do hereby certify that the foregoing pages, numbers

1 through 214, inclusive, are the true, accurate, and com

plete transcript prepared from the verbal recording made

55a

by electronic recording by Barbara Wall before the

National Transportation Safety Board.

/s/ Laura A. Schneider 07-26-91

(Transcriber) (Date)

S/ Betsy Phillips 07/26/91

(Transcriber) (Date)

On the Record Reporting, In«

5926 Balcones Dr., Suite 115

Austin, Texas 78731

56a

APPENDIX E

Advisory Circular

U.S. Department

ot lransportation

Federal Aviation

Administration

Subject: PRIVATE CARRIAGE VERSUS

COMMON

CARRIAGE OF PERSONS OR

PROPERTY

Date } 24 Sh

Initiated by: A FS-820

AC No: I2Z0-1ZA

Change

PURPOSI! [his advisory circular furnishes Federal

Aviation Administration (FAA) personnel and interested

segments of industry with general guidelines tor deter

mining whether current or proposed transportation oper

ations by air constitute private or common carriage. If the

operations are in interstate or foreign commerce this

distinction determines whether or not the operator needs

economic authority as an “air carrier” from the Depart

ment of [ransportation Operations that constitute com

mon carriage are required to be conducted under Federal

Aviation Regulations (FAR) Parts 121 or 135. Private car

riage may be conducted under Far Part 125 or 91, Subpart

D. Operations conducted under FAR Section 91.181

which permits certain charges to be made, may also be

57a

subject to these guidelines, particularly the “time shar-

ing” provisions of FAR Section 91.181(c)(1). It should also

be noted that lease agreements entered into under FAR

Section 91.181 are subject to FAR Section 91.54, “Truth in

leasing clause requirement in leases and conditional sales

contracts.”

2. CANCELLATION. Advisory Circular 120-12, Private

Carriage versus Common Carriage By Commercial Oper-

ators Using Large Aircraft, dated June 24, 1964, is can-

celed.

3. BACKGROUND. “Common carriage” and “private

carriage” are common law terms. The Federal Aviation

Act of 1958 uses the term “common carriage” but does

not define it. It has therefore been determined that guide-

lines giving general explanations of the term “common

carriage” and its opposite, “private carriage,” would be

helpful

4. GUIDELINES. A carrier becomes a common carrier

when it “holds itself out” to the public, or to a segment of

the public, as willing to furnish transportation within the

limits of its facilities to any person who wants it. Absence

of tariffs or rate schedules, transportation only pursuant

to separately negotiated contracts, or occasional refusals

to transport, are not conclusive proof that the carrier is

not a common carrier. There are four elements in defining

a common carrier; (1) a holding out of a willingness to (2)

transport persons or property (3) from place to place (4)

for compensation. This “holding out” which makes a

person a common carrier can be done in many ways and

it does not matter how it is done.

58a

a. Signs and advertising are the most direct

means of “holding out” but are not the only ones.

b. A “holding out” may be accomplished through

the actions of agents, agencies, or salesmen who may,

themselves, Procure passenger traffic from the general

Public and collect them into groups to be carried by the

Operator. It is Particularly important to determine if such

agents or salesmen are in the business of selling transpor-

tation to the traveling public not only through the

“group” approach but also by individual ticketing on

known common Carriers.

¢. Physically holding out without advertising

Where a reputation to serve all is gained is sufficient to

constitute an offer to carry all customers. There are many

means by which Physical holding out may take place. For

example, the expression of Willingness to all customers

with whom contact is made that the Operator can and will

perform the requested service is sufficient. The fact that

the holding out senerates little success is of no conse-

quence. The nature and character of the Operation are the

important issue.

d. Carriage for hire which does not involve

“holding out” is Private carriage. Private carriers for hire

are sometimes called “contract carriers,” but the term is

borrowed from the Interstate Commerce Act and legally

inaccurate when used in connection with the Federal

Aviation Act. Private Carriage for hire is Carriage for one

Or several selected customers, generally on a long-term

basis. The number of contracts must not be too great,

otherwise it implies a willingness to make a contract with

anybody. A carrier Operating pursuant to 18 to 24 con-

tracts has been held to be a common carrier because it

where three contracts have been the sole basis of the

Operator’s business. Special adaptation of the transporta-

tion service to the individual needs of shippers is a factor

tending to establish Private carriage but is not necessarily

conclusive.

itself out. This is, in fact, the basic business of supple-

mental air carriers.

f. A carrier flving charters for only one organiza-

tion may be a common carrier if membership in the

Organization and Participation in the flights are, in effect,

60a

passengers are drawn from the general public and the

nominal charge constituted compensation.

h. Persons admittedly operating as common car-

riers in a certain field (for instance, in intrastate com-

merce) sometimes claim that transportation for hire

which they perform in other fields (for instance, inter-

state or foreign commerce) is private carriage. To sustain

such a claim, the carrier must show that the private

carriage is clearly distinguishable from its common car-

riage business and outside the scope of its holding out.

The claimed private carriage must be viewed in relation

to and against the background of the entire carrying

activity. Historically, Civil Aeronautics Board decisions

have concluded that only in rare instances could carriage

engaged in by a common carrier be legitimately classified

as private.

i. In summary, persons intending to conduct only

private operations in support of other business should

look cautiously at any proposal for revenue-generating

flights which most likely would require certification as an

air Carrier.

j. Persons who have questions concerning intended

operation of their aircraft are encouraged to discuss their

proposed operation with the Regional Counsel of the FAA

region in which it intends to establish its principal business

office. Such early interviews will materially assist the appli-

cant in avoiding many of the “pitfalls” which could result in

illegal common carriage operations.

/s/ William T. Brennan

William T. Brennan.

Acting Director of Flight Standards

61a

APPENDIX F

5 U.S.C § 553

§ 553. Rule making

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved -

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or

personnel or to public property, loans, grants,

benefits, or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have actual notice thereof in accordance with law.

The notice shall include -

(1) a statement of the time, place, and

nature of public rule making proceedings;

(2) reference to the legal authority under

which the rule is proposed; and

(3) either the terms or substance of the

proposed rule or a description of the subjects

and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply -

(A) to interpretative rules, general state-

ments of policy, or rules of agency organization,

procedure, or practice; or

(B) when the agency for good cause finds

(and incorporates the finding and a brief state-

ment of reasons therefor in the rules issued) that

62a

notice and public procedure thereon are imprac-

ticable, unnecessary, or contrary to the public

interest.

shall give interested persons an opportunity to partici-

pate in the rule making through submission of written

data, views, or arguments with or without opportunity

for oral presentation. After consideration of the relevant

matter presented, the agency shall incorporate in the

rules adopted a concise general statement of their basis

and purpose. When rules are required by statute to be

made on the record after opportunity for an agency hear-

ing, section 556 and 557 of this title apply instead of this

subsection.

(d) The required publication or service of a substan-

tive rule shall be made not less than 30 days before its

effective date, except -

(1) a substantive rule which grants or rec-

ognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of

policy; or

(3) as otherwise provided by the agency

for good cause found and published with the

rule.

(e) Each agency shall give an interested person the

right to petition for the issuance, amendment, or repeal of

a rule.

63a

49 U.S.C.App. § 1301 FEDERAL AVIATION PROGRAM

49 U.S.C.App. §§ 1301 (3), (10), (24).

SUBCHAPTER I - GENERAL PROVISIONS

§ 1301. Definitions

As used in this chapter, unless the context otherwise

requires —

+ * *

(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 direciiy engaged in the

operation of aircraft in air transportation from the provi-

sions of this chapter to the extent and for such periods as

may be in the public interest.

* * +

(10) “Air transportation” means interstate, over-

seas, or foreign air transportation or the transportation of

mail by aircraft.

* * *

(24) “Interstate air transportation”, “overseas air

transportation”, and “foreign air transportation”, respec-

tively, mean the carriage by aircraft of persons or prop-

erty as a common carrier for compensation or hire or the

carriage of mail by aircraft, in commerce between, respec-

tively —

64a

(a) a place in any State of tiie 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

place outside thereof;

whether such commerce moves wholly by aircraft or

partly by aircraft and partly by other forms of transporta-

tion.

14 C.ER. § 91.501.

§ 91.501 Applicability.

(a) This subpart prescribes operating rules, in addi-

tion to those prescribed in other subparts of this part,

governing the operation of large and of turbojet-powered

multiengine civil airplanes of U.S. registry. The operating

rules in this subpart do not apply to those airplanes when

they are required to be operated under parts 121, 125,

129, 135, and 137 of this chapter. (Section 91.409 pre-

scribes an inspection program for large and for turbine-

powered (turbojet and turboprop) multiengine airplanes

65a

of U.S. registry when they are operated under this part or

part 129 or 137.)

(b) Operations that may be conducted under the

rules in this subpart instead of those in parts 121, 129,

135, and 137 of this chapter when common carriage is not

involved, include -

(1) Ferry or training flights;

(2) Aerial work operations such as aerial photogra-

phy or survey, or pipeline patrol, but not including fire

fighting operations;

(3) Flights for the demonstration of an airplane to

prospective customers when no charge is made except for

those specified in paragraph (d) of this section;

(4) Flights conducted by the operator of an airplane

tor his personal transportation, or the transportation of

his guests when no charge, assessment, or fee is made for

the transportation;

(5) Carriage of officials, employees, guests, and

property of a company on an airplane operated by that

company, or the parent or a subsidiary of the company or

a subsidiary of the parent, when the carriage is within the

scope of, and incidental to, the business of the company

(other than transportation by air) and no charge, assess-

ment or fee is made for the carriage in excess of the cost

of owning, operating, and maintaining the airplane,

except that no charge of any kind may be made for the

carriage of a guest of a company, when the carriage is not

within the scope of, and incidental to, the business of that

company;

66a

(6) The carriage of company officials, employees,

and guests of the company on an airplane operated under

a time sharing, interchange, or joint ownership agreement

as defined in paragraph (c) of this section;

(7) The carriage of property (other than mail) on an

airplane operated by a person in the furtherance of a

business or employment (other than transportation by

air) when the carriage is within the scope of, and inciden-

tal to, that business or employment and no charge,

assessment, or fee is made for the carriage other than

those specified in paragraph (d) of this section;

(8) The carriage on an airplane of an athletic team,

sports group, choral group, or similar group having a

common purpose or objective when there is no charge,

assessment, or fee of any kind made by any person for

that carriage; and

(9) The carriage of persons on an airplane operated

by a person in the furtherance of a business other than

transportation by air for the purpose of selling them land,

goods, or property, including franchises or distributor-

ships, when the carriage is within the scope of, and

incidental to, that business and no charge, assessment, or

fee is made for that carriage.

(1) A time sharing agreement means an arrangement

whereby a person leases his airplane with flight crew to

another person, and no charge is made for the flights

conducted under that arrangement other than those spec-

ified in paragraph (d) of this section;

67a

(2) An interchange agreement means an arrangement

whereby a person leases his airplane to another person in

exchange for equal time, when needed, on the other

person’s airplane, and no charge, assessment, or fee is

made, except that a charge may be made not to exceed

the difference between the cost of owning, operating, and

maintaining the two airplanes;

(3) <A joint ownership agreement means an arrange-

ment whereby one of the registered joint owners of an

airplane employs and furnishes the flight crew for that

airplane and each of the registered joint owners pays a

share of the charge specified in the agreement.

(d) The following may be charged, as expenses of a

specific flight, for transportation as authorized by para-

graphs (b) (3) and (7) and (c)(1) of this section:

(1) Fuel, oil, lubricants, and other additives.

(2) Travel expenses of the crew, including food,

lodging, and ground transportation.

(3) Hangar and tie-down costs away from the air-

craft’s base of operation.

(4) Insurance obtained for the specific flight.

(5) Landing fees, airport taxes, and similar assess-

ments.

(6) Customs, foreign permit, and similar fees

directly related to the flight.

(7) In flight food and beverages

(8) Passenger ground transportation

68a

(9) Flight planning and weather contract services.

(10) An additional charge equal to 100 percent of

the expenses listed in paragraph (d)(1) of this section.

14 C.FR. § 121.1

§ 121.1 Applicability.

(a) Except as prescribed in paragraph (b) of this

section, this part prescribes rules governing the certifica-

tion and operations of the tollowing:

(1) Each air carrier engaging in interstate or over-

seas air transportation under a certificate of public conve-

nience and neécessity or other appropriate economic

authority issued by the CAB.

(2) Each air carrier engaging in foreign air transpor-

tation under 4 certificate of public convenience and

necessity or other appropriate economic authority issued

by the CAB.

‘

é wy

(3) Each air carrier covered by paragraph (a) (1) or

(2) of this section when engaging in charter tlights or

other special SOTVICe operations

(4) Each Supplemental air carrier when it engages in

the carriage of persons or property In air COMmMerce for

compensatton Or hire

(5) Each commercial Operator when it engages in

the carriage of persons or property in air commerce tor

compensation or hire

(i) With large aircratt other than airplanes. or

69a

(ii) As a common carrier solely between places

entirely within any state of the United States, with air-

planes having a seating capacity of more than 30 pas-

sengers Or a maximum payload capacity of more than

7,500 pounds.

(6) Each air carrier when it engages in all-cargo air

service under a certificate issued by the CAB under sec-

tion 418 of the Federal Aviation Act of 1958.

(b) This part does not apply to operations con-

ducted under part 127, 133, or 135 of this chapter, or

emergency mail service conducted under section 405(h)

of the Federal Aviation act of 1958.

(1) Each person employed or used by an air carrier

or commercial operator in operations under this part,

including the maintenance, preventive maintenance and

alteration of aircraft; and

(2) Each person who applies for provisional

approval ot an Advanced Qualification Program curricu-

lum, curriculum segment, or portion of a curriculum

segment under SFAR No. 58 and each person empioved

or used by an air carrier or commercial operator under

this part to perform training qualification, or evaluation

tunctions under an Advanced Qualification Program

under SFAR No. 58; and

(3) Each person who is on board an aircraft being

operated under this part

id) For the purpose of this. part, passenger-carryir

uirplane OF passenger-carrying Operation Means one carrvin

INV person other than a person kisted in § 121 583

70a

(e) For the purpose of this part, passenger-carrying

aircraft or passenger-carrying operation means one carrying

any person other than a flight crewmember or other

crewmember, company employee, authorized govern-

ment representative, or person accompanying a ship-

ment.

(f) This part does not apply to operations conducted

under § 91.321.

14 CER. § 125.1

§ 125.1 Applicability.

(a) Except as provided in paragraphs (b) and (c) of

this section, this part prescribes rules governing the oper-

ations of U.S.-registered civil airplanes which have a

seating configuration of 20 or more passengers, or a

maximum payload capacity of 6,000 pounds or more

when common carriage is not involved.

(b) The rules of this part do not apply to the opera-

tions of airplanes specified in paragraph (a) of this sec-

tion, when -

(1) They are required to be operated under part 121,

129, 135, or 137 of this chapter;

(2) They have been issued restricted, limited, or

provisional airworthiness certificates, special flight per-

mits, or experimental certificates;

(3) They are being operated by a part 125 certificate

holder without carrying passengers or cargo under part

91 tor training, ferrying, positioning, or maintenance pur-

poses,

7la

(4) They are being operated under part 91 by an

operator certificated to operate those airplanes under

part 121, 135, or 137 of this chapter or are being operated

by a foreign air carrier or a foreign person in common

carriage solely outside the United States under part 91 of

this chapter; or

(5) They are being operated under a deviation

authority issued under § 125.3 of this chapter.

apply to the operation of airplanes specified in paragraph

(a) when they are operated outside the United States by a

person who is not a citizen of the United States.

14 C.FR. § 129.1

§ 129.1 Applicability.

(a) Except as provided in paragraph (b) of this sec-

tion, this part prescribes rules governing the operation

within the United States of each foreign air carrier hold-

ing a permit issued by the Civil Aeronautics Board or the

Department of Transportation under section 402 of the

Federal Aviation Act of 1958 (49 U.S.C. 1372) or other

appropriate economic or exemption authority issued by

the Civil Aeronautics Board or the Department of Trans-

portation.

(b) Section 129.14 also applies to U.S.-registered air-

craft operated in common carriage by a foreign person or

foreign air carrier solely outside the United States. For

the purpose of this part, a foreign person is any person,

not a citizen for the United States, who operates a U.S.-

registered aircraft in common carriage solely outside the

United States.

72a

14 C.ER. § 135.1

§ 135.1 Applicability.

(a) Except as provided in paragraph (b) of this sec-

tion, this part prescribes rules governing -

(1) Air taxi operations conducted under the exemp-

tion authority of part 298 of this title;

(2) The transportation of mail by aircraft conducted

under a postal service contract awarded under section

5402c of title 39, U.S.C.;

(3) The carriage in air commerce of persons or prop-

erty for compensation or hire as a commercial operator

(not an air carrier) in aircraft having a maximum seating

capacity of less than 20 passengers or a maximum pay-

load capacity of less than 6,000 pounds, or the carriage in

air commerce of persons or property in common carriage

operations solely between points entirely within any state

of the United States in aircraft having a maximum seating

capacity of 30 seats or less or a maximum payload capac-

ity of 7,500 pounds or less; and

(4) Each person who applies for provisional

approval of an Advanced Qualification Program curricu-

lum, curriculum segment, or portion of a curriculum

segment under SFAR No. 58 and each person employed

or used by an air carrier or commercial operator under

this part to perform training, qualification, or evaluation

functions under an Advanced Qualification Program

under SFAR No. 58; and

(5) Each person who is on board an aircraft being

operated under this part.

triton

73a

(b) Except as provided in paragraph \c) of this sec-

tion, this part does not apply to -

(1) Student instruction;

(2) Nonstop sightseeing flights that begin and end

at the same airport, and are conducted within a 25 statute

mile radius of that airport;

(3) Ferry or training flights;

(4) Aerial work operations, including -

(i) Crop dusting, seeding, spraying, and bird chas-

ing;

(ii) Banner towing;

(iii) Aerial photography or survey;

(iv) Fire fighting;

(v) Helicopter operations in construction or repair

work (but not including transportation to and from the

site of operations); and

(VI) Powerline or pipeline patrol, or similar types of

patrol approved by the Administrator;

(5) Sightseeing flights conducted in hot air balloons;

(6) Nonstop flights conducted within a 25 statute

mile radius of the airport of takeoff carrying persons for

the purpose of intentional parachute jumps;

(7) Helicopter flights conducted within a 25 statute

mile radius of the airport of takeoff, if -

(i) Not more than two passengers are carried in the

helicopter in addition to the required flight crew;

74a

(ii) Each flight is made under VFR during the day;

(iii) The helicopter used is certiiicated in the stan-

dard category and complies with the 100-hour inspection

requirements of part 91 of this chapter.

(iv) The operator notifies the FAA F:ight Standards

District Office responsible for the geographic area con-

cerned at least 72 hours before each flight and furnishes

any essential information that the office requests;

(v) The number of flights does not exceed a total of

six in any calendar year;

(vi) Each flight has been approved by the Adminis-

trator; and

(vii) Cargo is not carried in or on the helicopter;

(8) Operations conducted under part 133 or 375 of

this title;

(9) Emergency mail service conducted under section

405(h) of the Federal Aviation Act of 1958; or

(10) This part does not apply to operations con-

ducted under the provisions of § 91.321.

135.353 operator means any person or entity conducting

nonstop sightseeing flights for compensation or hire in an

airplane or rotorcraft that begin and end at the same

airport and are conducted within a 25 statute mile radius

of that airport.

(d) Notwithstanding the provisions of paragraph (c)

of this section, an operator who does not hold a part 121

certificate or a part 135 certificate is permitted to use a

75a

person, who is otherwise authorized to perform aircraft

maintenance or preventive maintenance duties and who

is not subject to the requirements of an FAA-approved

anti-drug program, to perform -

(1) Aircraft maintenance or preventive maintenance

on the operator’s aircraft if the operator would be

required to transport the aircraft more than 50 nautical

miles further than the closest available repair point from

the operator’s principal place of operations to obtain

these services; or

(2) Emergency repairs on the operator’s aircraft if

the aircraft cannot be safely operated to a location where

an employee subject to the requirements of this appendix

can perform the emergency repairs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.