# Petition for Writ of Certiorari — Dragna v. California

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1458%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1953
- **Citation:** 344 U.S. 921

## Text

eK Se SRI A ati 1 EERE

Ae ond neuen suena

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

AIR TRANSPORT ASSOCIATES, INC.,
Petitioner,
vs.

CIVIL AERONAUTICS BOARD,
Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.

Warren FE. Miiuer,
Counsel for Petitioner,
910 17th St., N. W..

Washington 6, D. C.

Na ai cs ee ee, * al PPS. PROS ,
i bs bed : me
re ee tas a at ie

ee ate

—a— a

INDEX

a")

$8 BS co cr ence to 00 mS

Petition for Writ of Certiorari ......_....
Opinions Below .............. waste ees eeu
UII oo) oc os Since seas ee Sa ee
Questions Presented ................. ee ee
Statutes and Regulations Involved

Summary of the Matter Involved | vr er
Specification of Errors to be Urged Pa eae
Reasons for Granting the Writ... sss
Conclusion ............. ee eee

TABLE or Cases CITED

American Air Transport, et al. v. Civil Aeronautics
Board, et al., 98 F. Supp 660 .....0... 008... 19
Brady Transfer & Storage Co. v. United States, 80
F. Supp. 110 (affirmed in 335 U.S. 875, 93 L. Ed.

Me as MOR EE Ah oss ee eh ee ee 9
Columbia Broadcasting Co. v. United States, 316 U.S.

ot Ea yiar A AS Sw co Fey i aaa Sed 13
Gibson Wine Co. v. Snyder, 194 F. 2d 329. 25
Illinois C. R. Co. v. McKendree, 203 U.S. 514, 51 L.

We es Oe rs Oe eee ee 27
In re Carter, 85 App. D. C. 224, 177 F. 2475... 13
Interstate Commerce Commission v. Raskioilis ¢

N. R. Co., 227 U.S. 88, 93... ... I OR en a ah Perse 13
Panama Refining Co. v. Ryan, 238 U.S. 338, 79 L.

cg § Y Ye Ree ee ea ase ney i 27
Standard Airlines vy. Civil Aeronautics Board, 85

Bie. De. Cig Be 008 Oe Be os eee. 13
United States v. Cohen, 255 U.S. 81, 89, 65 L. Ed. 516,

WO ee heres OLN oe ee 27
United States v. Reese, > 92 U. S. 214, 219, 220, 23 L. Ea.

ne ee AN Ol Us, a Meek CR 28
Utah Power & Light Co. v. United States, 243 U. S.

S00, Gi i, Bd. 781, 37 B. CL ST... ............... 27
W ichita R. & Light Co. v. Public Utilities Commis-

sion, 260 U.S. 48, 67 L. Ed. 124, 43 S. Ct. 51 . 27

—5016

Pre err

eer ae re

alee) [4c “eek Lenn han Chetan Ait:
ROVER PRR tai tot sales Dae eg AL Paton whe SNES

4

prescribed for the original license, in the absence of evi-
dence and studies of actual operations of regular and ir-
regular carriers?

3. Where a license is granted pursuant to a regulation
adopted through proper rule-making procedure, which reg-
ulation defines permissible operations in general terms
(i.e., ‘does not hold out a regular service’’), and a licensee
commences operations and makes a business investment in
reliance upon such regulation, may the agency thereafter
lawfully issue a document called an ‘‘interpretation’’ but
having the force of a regulation, which document substan-
tially curtails and restricts the prior definition of permissi-
ble operations without complying with the rule-making
procedures set forth in the Administrative Procedure Act? *

4. In eases involving the revocation of irregular air car-
riers’ licenses because of frequency of operations, may the
Board reject and refuse to consider evidence of the ‘‘de-
velopment of its business and the demands of the public’’®
for such transportation and evidence of the extent to which
a carrier served the public demands and public interest in
the operations upon which the complaint was brought?

5. If the Board believed petitioner’s operations violated
the so-called ‘‘interpretation”’ of the regulation, should not

such property as the public offers. No air carrier shall be deemed to
be an Irregular Air Carrier unless the air transportation services
offered and performed by it are of such infrequeney as preclude an
implication of a uniform pattern or normal consistency of operation
between, or within, such designated points. * * * Within the
meaning of this definition a ‘point’ shall mean any airport or place
where aircraft may be landed or taken-off, including the area within
a 25-mile radius of such airport or place.”

45 U.S.C. 1008(b).

5 See. 401(f) Civil Aeronautics Act, 49 U.S.C. 481(f) provides in part:

“| . No term, condition, or limitation of a certificate shall

restrict the right of an air carrier to add to or change schedules,
equipment, accommodations, and facilities for performing the author-
ized transportation and service as the development of the business and
the demands of the public shall require, =

ae _e
’

5

the agency have followed, in the words of Member Adams
who dissented below,
‘‘the more orderly procedure of issuing a cease and de-

sist order prior to considering revocation’’? (R. 25)
6. Unless a cease and desist order or other document is

issuedfff the name of, and by authority of, the agency,®
calling the attention of the licensee to conduct which would
warrant revocation, may the agency lawfully revoke the
license in view of the provisions of the Civil Aeronautics
Act‘? and the Administrative Procedure Act? ®
7. Where there was a dispute between petitioner and the
chief of one of the subordinate offices of an agency with
respect to the legality and interpretation of a regulation not
involving safety, may the agency resolve the dispute against
the carrier, at the same time declare its conduct to constitute
*‘willfulness’’ and then, without issuing an order command-
ing obedience and giving petitioner an opportunity to first
achieve compliance, lawfully issue an order which:
(1) declares petitioner to be in ‘‘willful’’ violation,
(2) orders it to ‘‘cease and desist’’ from operating
in violation of the Board’s interpretation of the regula-

tion, and
(3) simultaneously revokes its license?

Statutes and Regulations Involved

The pertinent sections of the Civil Aeronautics Act and
the Administrative Procedure Act here involved are set
forth in the Appendix to this petition.

Summary of the Matter Involved

Petitioner, Air Transport Associates, Inc., is a large ir-
regular carrier, engaging in the air transportation of per-

6 All italies in this petition supplied unless otherwise indicated.
7 See. 401(h) Civil Aeronauties Act, 49 U.S.C. 481.
85 U.S.C. 1008(b).

:
x
3
,
x

ag rk te tw Hien Veron.

pratense PRR Dar Bi Vi . AAA RSNA LN I LI I LEER LAN Eerie BOLO ARIE TE

sons and property. Petitioner commenced its operations in
July, 1948. At that time the Board had in effect a regulation
which permitted a large irregular air carrier to engage in
air transportation without a certificate of public convenience
and necessity (R. 352-364).

ERT

29

Conclusion

As the court below has decided an important question
of Federal law, has decided a Federal question in a way
probably in conflict with an applicable decision of this court,
has misinterpreted important statutes of the United States,
decided questions of substance relating to the application
of the Constitution, and has not given proper effect to an
applicable decision of this court, it is respectfully submitted
that this petition for a writ of certiorari should be granted.

Respectfully submitted,
Warren E. MIbter,
Attorney for Petitioner.

. . ree ANOS MAILE SPOT LOLS A EAM AP Fe EAL ED en

rt

| :

4 APPENDIX

: Pertinent Statutes and Regulations

i Administrative Procedure Act (5 U.S. C.):

: ‘*See. 1001(e). ‘License’ includes the whole or part of

any agency permit, certificate, approval, registration, char-
ter membership, statutory exemption or other form of
3 permission. ‘Licensing’ includes agency process respecting
; the grant, renewal, denial, revocation, suspension, annul-
; ment, withdrawal, limitation amendment, modification, or
¥ conditioning of a license.’’

‘‘See. 1003(a). General notice of proposed rule making
shall be published in the Federal Register (unless all per-
sons subject thereto are named and either personally served
or otherwise have actual notice thereof in accordance with
law) and shall include (1) a statement of the time, place,
and nature of public rule making proceedings; (2) refer-
ence to the 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
where notice or hearing is required by statute, this sub-
section shall not apply to interpretative rules, general state-

3 ments of policy, rules of agency organization, procedure,
ia or practice, or in any situation in which the agency for
A good cause finds (and incorporates the finding and a brief
18 statement of the reasons therefor in the rules issued) that
i notice and public procedure thereon are impracticable, un-
q necessary, or contrary to the public interest.”’

é **See. 1004. Adjudications

4 * * * e ° oe *

%

i ‘*Procedure

7

? . .

i ‘*(b) The agency shall afford all interested parties op-
+ portunity for (1) the submission and consideration of facts
4 arguments, offers of settlement, or proposals of adjust-

ment where time, the nature of the proceeding, and the
public interest permit, and (2) to the extent that the parties
are unable so to determine any controversy by consent,

31
hearing, and decision upon notice and in conformity with
sections 1006 and 1007 of this title.’’

‘‘See. 1008. Imposition of sanctions; determination of
applications for licenses; suspension, revocation, and ex-
piration of licenses.

‘‘In the exercise of any power or authority—

‘‘(a) No sanction shall be imposed or substantive rule
or order be issued except within jurisdiction delegated to
the agency and as authorized by law.

‘*(b) ... Except in cases of willfulness or those in
which public health, interest, or safety requires otherwise,
no withdrawal suspension, revocation, or annulment of
any license shall be lawful unless, prior to the institution of
ageucy proceedings therefor, facts or conduct which may
warrant such action shall have been called to the attention
of the licensee by the agency in writing and the licensee shall
have been accorded opportunity to demonstrate or achieve
compliance with all lawful requirements. . . .”’

Civiz Agronavtics Act or 1938, as AMENDED:

‘*See. 401 [52 Stat. 987, 49 U. S. C. 481] (a) No air
earrier shall engage in any air transportation unless
there is in foree a certificate issued by the Authority
authorizing such air carrier to engage in such trans-
portation: Provided, That if an air carrier is engaged
in such transportation on the date of the enactment of
this Act, such air carrier may continue so to engage
between the same terminal and intermediate points for
one hundred and twenty days after said date, and there-
after until such time as the Authority shall pass upon
an application for a certificate for such transportation
if within said one hundred and twenty days such air
earrier files such application as provided herein.”’

‘See. 401(ce) [52 Stat. 987, 49 U.S. C. 481]

‘*(e) Upon the filing of any such application, the
Authority shall give due notice thereof to the public by
posting a notice of such application in the office of the
secretary of the Authority and to such other persons as
the Authority may by regulation determine. Any in-

ER PPI SE NO et LE NE Nak Et

ee a re te

32

terested person may file with the Authority a protest
or memorandum of opposition to or in support of the
issuance of a certificate. Such application shall be set
for public hearing, and the Authority shall dispose of
such application as speedily as possible.’’

“*Terms and Conditions of Certificate
‘*See. 401(f) [52 Stat. 987, 49 U. S.C. 481]...

‘*(f) Each certificate issued under this section shall
specify the terminal points and intermediate points,
if any, between which the air carrier is authorized to
engage in air transportation and the service to be
rendered; and there shall be attached to the exercise
of the privileges granted by the certificate, or amend-
ment therto, such reasonable terms, conditions, and
limitations as the public interest may require. A cer-
tificate issued under this section to engage in foreien
air transportation shall, insofar as the operation is to
take place without the United States, designate the
terminal and intermediate points only insofar as the
Authority shall deem practicable; and otherwise shall
designate only the general route or routes to be fol-
lowed. Any air carrier holding a certificate for foreign
air transportation shall be authorized to handle and
transport mail of countries other than the United
States. No term, condition, or limitation of a certifi-
cate shall restrict the right of an air carrier to add to
or change schedules, equipment, accommodations, and
facilities for performing the authorized transportation
and service as the development of the business and the
demands of the public shall require. No air carrier
shall be deemed to have violated any term, condition,
or limitation of its certificate by landing or taking off
during an emergency at a point not named in its cer-
tificate or by operating in an emergency, under regula-
tions which may be prescribed by the Authority, be-
tween terminal and intermediate points other than
those specified in its certificate. Any air carrier may
make charter trips or perform any other special serv-

~~ oe

13)
i

33

ice, without regard to the points named in its certificate,
under regulations prescribed by the Authority.”’

‘See. 401 [52 Stat. 987, 49 U. S. C. 481]

(h) The Authority [Board], upon petition or com-
plaint or upon its own initiative, after notice and hear-
ing, may alter, amend, modify, or suspend any such
certificate, in whole or in part, if the public convenience
and necessity so require, or may revoke any such cer-
tificate, in whole or in part, for intentional failure to
comply with any provision of this title or any order,
rule, or regulation issued hereunder or any term, con-
dition, or limitation of such certificate: Provided, That
no such certificate shall be revoked unless the holder
thereof fails to comply, within a reasonable time to be
fixed by the Authority [Board], with an order of the
Authority commanding obedience to the provision, or
to the order (other than an order issued in accordance
with this proviso), rule, regulation, term, condition, or
limitation found by the Authority to have been violated.
Any interested person may file with the Authority a
protest or memorandum in support of or in opposition
to the alteration, amendment, modification, suspension,
or revocation of a certificate.”’

‘“‘See, 416 [52 Stat. 1004, 49 U.S. C. 496]

‘‘(a) The Authority [Board] may from time to time
establish such just and reasonable classifications or
groups of air carriers for the purposes of this title as
the nature of the services performed by such air car-
riers shall require; and such just and reasonable rules,
and regulations, pursuant to and consistent with the
provisions of this title, to be observed by each such
class or group, as the Authority [Board] finds neces-
sary in the public interest.’’

‘¢Exemptions

‘“(b) (1) TheAuthority, from time to time and to the
extent necessary, n extept as provided in para-
graph (2) of this Subsection) exempt from the require-

oto sal

Sa Bide Ne EEN TIAA SEAT AN CELE A REE ER AA aie LORS ea i

34

ments of this title or any provision thereof, or any rule,
regulation, term, condition, or limitation prescribed
thereunder, any air carrier or class of air eoreiers, of if

» pro-—~
vision, or such << regulation, em pone or
: “Timitation is or would be an undue jurden on such air
carrier or class of air ¢: riers by peasan of the lunited

exten

“and_ig not 5 the public interest.

**(2) e Authority shall not exempt any air car-
; rier from any provision of subsection (1) of section 401
é of this title, except that (A) any air carrier not engaged
{ _in scheduled air transporta: tation, and (BY To the extent
that the operations of such air carrier are conducted
during daylight hours, any air carrier engaged in
scheduled air transportation, may be exempted from
the provisions of paragraphs (1) and (2) of such sub-
section if the Authority finds, after notice and hearing,
that, by reason of the limited extent of, or unusual
circumstances affecting, the operations of any such air
earrier, the enforcement of such paragraphs is or would
be such an undue burden on such air carrier as to
obstruct its development and prevent it from beginning
or continuing operations, and that the exemption of
such air earrier from such paragraphs would not ad-
versely affect the public interest: Provided, That
nothing in this subsection shall be deemed to authorize
: the Authority to exempt any air carrier from any re-
quirement of this title, or any provision thereof, or any
: rule, regulation, term, condition, or limitation pre-
seribed thereunder whieh provides for maximum flying
hours for pilots or copilots.”’

p4sd Wy

2 ie hep tePt ride mF

3 39

) ‘¢JupiciaL Review or AuTuority’s Orvers
“Orders of Authority Subject to Review

“See. 1006 [52 Stat. 1024, 49 U.S .C. 646]
* * * * * * *
“Certification or Certiorart

“(f) The judgment and decree of the court affirm-
ing, modifying, or setting aside any such order of the
Authority shall be subject only to review by the Su-
preme Court of the United States upon certification or
certiorari as provided in sections 239 and 240 of the
Judicial Code.’’

Recunations Serra NUMBER 388

Aporrep BY THE Civi, AgRoNnaUtTiICcS Boarp
Ar Its Orrice in Wasuixeron, D.C. oN THE OTH Day
or May, 1947

The Civil Aeronauties Board, having held a hearing and
issued its opinion in the Investigation of Non-Scheduled
Air Service, Docket No. 1501, relating to non-certificated air
carriers, having circulated for comment a draft and there-
after a revised draft of proposed regulation relating toe non-
certificated air carriers, having considered written com-
ments and oral argument thereon in Docket No. 2742, and
having also considered other data and information * avail-
able to the Board, finds as follows:

21 As used herein the term “non-certificated air carriers” refers to air
carriers engaging in air transportation which do not hold certificates of
public convenience and necessity issued by the Board, and the term “eer-
tifieated air carriers” refers to air carriers whieh do hold such certificates.

22 Such data and information include, among other things, the reports
heretofore filed with the Board pursuant to Section 292.1 of the Economie
Regulations, data obtained in investigations made by the enforcement
staff of the Board, financial Forms 41, 2380 and 2780, and other reports
filed with the Board by the certificated air carriers, informal complaints
filed against non-certifieated air carriers, and applications for air ear-
rier operating certificates filed with the Civil Aeronautics Administration
pursuant to Part 42 of the Civil Air Regulations.

36

1. Since 1938 there has been in effect an exemption regula-
tion adopted by the Board which exempts non-certificated
air carriers from all provisions of Title IV of the Civil
Acronauties Act (other than sections 401(1) and 407(a),
and, since June, 1946, section 411) so long as they engage
only in irregular services as defined in such regulation. At
the time such regulation was originally adopted the Board
believed it was undesirable to provide for the detailed eco-
nomie regulation of the operations of such carriers without
further study. Since that time and particularly foliowing
the close of the war, the Board has aceumulated information
and data which indicate that the aggregate operations of
such carriers have increased in seope and importance, and
that operations by individual carriers are frequently exten-
sive. Some such operations have been conducted with little
regard to the responsibility and duty owed to the publie
by a common carrier with respect to service, and have
resulted in numerous complaints to the Board concerning
tariff and operating practices, including but not limited
to failure of such carriers to perform the service agreed
upon, great variations in the fares and rates charged by
the same carrier for comparable service, failure to make
refunds to passengers and shippers for transportation not
performed, misrepresentation of equipment, facilities and
services, and use of inadequate and makeshift equipment
and facilities. Both the protection of the publie from im-
proper practices by such non-certifieated air earriers and
protection of the certificated carriers against unregulated
competition require that additional regulatory provisions
of the Civil Aeronautics Act be now made applicable to
such non-certifieated air carriers.

2. In addition to the publie demand and need for air
transportation services furnished by the certificated air
carriers on regularly scheduled operations, there is public
demand and need at the present time for air serviees on
an irregular basis both to certificated and non-certifieated
points. Such irregular services vary greatly with respect
to type of service, and fill a need which, because of fluctua-
tions in the demand and the impossibility of determining
where and when the demand will arise, by its very nature

a someen

37

cannot be fulfilled economically by carriers operating on
regular schedules and routes. Such services can be per-
formed by non-certificated air carriers, and because of their
knowledge of local conditions or willingness to perform
specialized types of services such services can frequently
be performed by them more adequately, economically and
quickly than by certificated carriers. To require the cer-
tification of such carriers at the present time would be im-
practicable because it would be necessary to issue a certifi-
cate of public convenience and necessity which would
either impose no substantial limitations upon operations
or which would substantially reduce the flexibility and use-
fulness of the operations of such carriers. Certification,
in the ease of many small seale operations, would be un-
economical and would tend to prevent or retard the develop-
ment of new types of services designed to meet special
conditions. Because of the fact that irregular services meet
a different need and must be infrequent and irregular, such
services, if properly regulated under provisions of the Act
other than those relating to certificates of public con-
venience and necessity, will not under present conditions
have adverse competitive effect upon the services per-
formed by the certificated air carriers,

3. In view of the considerations mentioned in paragraphs
1 and 2 hereof, and in order to insure the flexibility in the
conduct of irregular services which is implicit in exemp-
tion of non-certificated air carriers from certification,
Irregular Air Carriers, as defined in Section 202.1 below,
should continue to be exempted from the requirements of
section 401 of the Act other than subsection (1). Protee-
tion of the public and the orderly development of the air
transportation system in accordance with the objectives
of section 2 of the Act, however, require that certain pro-
visions of the Act which are not directly related to the eer-
tification provisions of the Act should be made applicable
to the Irregular Air Carriers utilizing equipment of sub-
stantial size. Such carriers are now subject to sections
401(1), 407(a) and 411, and these requirements should he
continued, In addition, such carriers should now be made
subject to sections 4038, 404(b), 407(b), 407(c), 407(d),

38 |

407 (e), 409(b), 410, 415 and 416; and to the requirements of
section 404(a), relating to safe service, equipment and
facilities. In addition, such carriers should be made sub-
ject to the provisions of sections 408, 409(a), 412, 413 and
414, except to the extent, as more fully set forth in para-
graph (c) of Section 292.1 below, that such provisions in-
volve other Irregular Air Carriers.

4. A portion of the irregular air service now being per-
formed is performed by small air carriers operating a
limited number of planes of small size. From reports sub-
mitted to the Board it appears that non-certificated air
carriers operating one or more aireraft having a gross
take-off weight in excess of 10,000 pounds constituted less
than 20 percent of the total number of non-certificated air
carriers, but flew approximately 30 percent of the total
revenue passenger miles flown by all such carriers. It
would thus appear that Irregular Air Carriers operating
aireraft under 10,000 pounds may be subjected to a much
lesser degree of economic regulation without materially
affecting the over-all air transportation system. Sueh
operations are limited in scope, do not represent a serious
threat to certificated operations, and extensive regulation
thereof at this time would be unduly burdensome and costly
to such carriers, would tend to increase the cost and impair
the value of such services to the public, and would impose
unnecessary additional administrative burden upon the
Board. Accordingly, such Irregular Air Carriers should
not be made subject to sections 403, 404(b), 407(b), 407(c),
408, 409(a), 410 and 412, but should be made subject to all
other provisions of the Act to which the Irregular Air
Carriers utilizing equipment of substantial size are subject.

In drawing the line between the Irregular Air Carriers
utilizing equipment of substantial size and the Irregular Air
Carriers which utilize only smaller equipment, the Board
finds that the use of a single aireraft unit having an allow-
able gross take-off weight in excess of 10,000 pounds would
involve an operation of substantial size in relation to the
service offered to the publie and the competitive effect
upon other air carriers; and that the use of aircraft units
having an allowable gross take-off weight between 6,000 and

ain OF me ARE ORL ORT at Pe ET a

10,000 pounds and an aggregate gross take-off weight in
excess of 25,000 pounds would likewise involve a substantial
operation.

5. Section 292.1 of the Economie Regulations as revised
herein, unlike the exemption heretofore in effect does not
provide for exemption from the Act with respect to the ear-
riage of persons in foreign air transportation. The Board
finds that notwithstanding the findings in paragraphs 2 and
3 hereof the continuation of the exemption with respect to
such transportation is no longer justified in view of the re-
cent substantial extension of our international air transpor-
tation system, as well as the recent award of foreign air
earrier permits, and in view of the smaller traffic potential
which the Board finds to exist in the field of international
air transportation as compared with interstate and overseas
air transportation.

6. As a condition to the grant of the exemptions pro-
vided for in Section 292.1 below, such section will provide
for letters of registration to be issued to Irregular Air Car-
riers, for quarterly operation reports, and for special re-
ports on the institution of service with large aircraft by such
carriers theretofore utilizing only small aircraft. These
requirements are deemed necessary in order that the Board
may maintain adequate supervision and obtain information
with respect to exempted operations.

7. Unless specifie provision were made herein the officers
and directors of Irregular Air Carriers otherwise would be
subject to the interlocking relationships provisions of see-
tion 409 of the Act, even though the Irregular Air Carriers
in which they hold the positions are wholly or partially
exempted from such provisions by the terms of Section 292.1
below. The Board’s statutory powers to grant exemptions
from provisions of Title IV of the Act extend only to air
carriers and not to individuals or persons other than air
carriers. Certain interlocking relationships as specified in
section 409 oceupied by such persons are lawful only if ap-
proved by the Board upon due showing, in the form and
manner prescribed by the Board, that the public interest will
not be adversely affected thereby. The Board has deter-
mined in this regard that since it is granting exemption to

a ee ORE LE IDLE AIOE BAO Sy " soi

40

certain Irregular Air Carriers from the requirements of
section 409 with respect to certain relationships, a due show-
ing within the meaning of the statute to justify approval of
an interlockitig relationship, upon application filed by an
officer or director of an Irregular Air Carrier, would be
made by a showing that such carrier itself had been granted
an exemption from the necessity of obtaining approval. To
require each such officer or director to file such an applica-
tion and make sueh a showing, however, would appear to
impose a useless administrative burden upon the Board and
would not be conducive to the proper dispatch of business
and to the ends of justice. The Board has determined, there-
fore, that such showing by all such officers and directors
individually shall be presumed to have been made, and upon
the basis thereof has granted blanket approval of such inter-
locking relationships in Section 292.1 below.

8. In view of the foregoing considerations, the present
enforcement of the provisions of Title IV, except to the ex-
tent required in Section 292.1 below, would be an undue
burden on Irregular Air Carriers by reason of the limited
extent of, and the unusual circumstances affecting the opera-
tions of such carriers, and would not be in the public interest.

On the basis of the foregoing findings and pursuant to the
Civil Aeronautics Act of 1938, as amended, particularly
sections 205(a) and 416(b) thereof, and for the purpose of
providing for the economic regulation of services conducted
on an irregular basis by non-certifieated air carriers, the
Civil Aeronauties Board hereby amends Section 292.1 of the
Keonomie Regulations in its entirety to read as follows
effective June 10, 1947:

Section 292.1 or THE Economic Recuiations IrreGuLar Aim
CARRIERS

(a) Applicability —This section shall not apply to any
air carrier authorized by a certificate of public convenience
and necessity to engage in air transportation, to Alaskan
Air Carriers, to operations within Alaska, or to any non-
certificated air carrier engaged in air transportation pursu-
ant to special or individual exemption by the Board or pur-

kU ay PRS

———

41

suant to exemption created by any other section of the
Economic Regulations.

(b) Classification —There is hereby established a classi-
fication of non-certificated air carriers to be designated as
‘Irregular Air Carriers’’. An Irregular Air Carrier shall
be defined Totem aie air earrier (1) which does not hold
a certificate of public convenience and necessity under sec-
tion 401 of the Civil Aeronautics Act of 1938, as amended,
(2) which directly engages in interstate or overseas air
transportation of persons and property or foreign air trans-
portation of property only, and (3) which does not.hold out

ic, expressly or by a course of conduct, that_it

0 more aire ween designated points, or
ithi designated point, regilarly or with a reasonable

degree of regularity upon which aircraft it accepts for
transportation, Tor compensation or hire, such members of
the public as apply therefor or such property as the publie
offers. No air carrier shall be deemed to be an Irregular
Air Carrier unless the air transportation services offered —
1 perf. s infrequeney as to preclude

a unifor consistency
ecu, or within, such designated pojuts —
Within the meaning of this defimition a “point”? shall mean
any airport or place where aireraft may be landed or taken-
off, including the area with a 25-mile radius of such airport
or place.

‘

(c) Exemptions,

(1) General.—Except as otherwise provided in this see-
tion, Irregular Air Carriers shall be exempt from all pro-
visions of Title IV of the Civil Aeronauties Act of 1938, as
amended, other than the following:

(i) Subsection 401(1) (Compliance with Labor Legisla-
tion) ;

(ii) Section 403 (Tariffs) ;

(iii) Subsection 404(a) (Carrier’s Duty to Provide Serv-
ice, ete.), only in so far as said subsection requires air ecar-
riers to provide safe service, equipment, and facilities in
connection with air transportation;

(iv) Subsection 404(b) (Discrimination) :

-
“4
é
3
:
4
*
:
§
3

a eee

Se etaaal ot im bE? SE ka cas

Let tn ot ba

42

(v) Subsection 407(a) (Filing of Reports): Provided,
That no provision of any rule, regulation, term, condition
or limitation prescribed pursuant to said subsection 407 (a)
shall be applicable to Irregular Air Carriers unless such
rule, regulation, term, condition or limitation expressly so
provides ;

(vi) Subsection 407(b) (Disclosure of Stock Ownership) ;

(vii) Subsection 407(c) (Disclosure of Stock Ownership
by Officers or Directors) ;

(viii) Subsection 407(d) (Form of Accounts): Provided,
That no provision of any rule, regulation, term, condition
or limitation prescribed pursuant to said subsection 407 (d)
shall be applicable to Irregular Air Carriers unless such
rule, regulation, term, condition or limitation expressly so
provides;

(ix) Subsection 407(e) (Inspection of Accounts and
Property) ;

(x) Section 408 (Consolidation, Merger, and Acquisition
of Control): Prorided, That Irregular Air Carriers shall
be exempt from section 408 in so far as said section would
make it unlawful, without prior approval by the Board, (a)
for any Irregular Air Carrier or any person controlling any
such carrier to purchase, lease, or contract to operate the
properties, or any substantial part thereof, of another Ir-
regular Air Carrier, (b) for any Irregular Air Carrier to
consolidate or merge with another Irregular Air Carrier,
and (¢c) for any Irregular Air Carrier or any person con-
trolling any such air carrier to aequire control of another
Irregular Air Carrier; Provided further, That any Irregu-
lar Air Carrier which consolidates or merges with another
Irregular Air Carrier and any Irregular Air Carrier or any
person controlling any such carrier that acquires control
of, or purchases, leases, or contracts to operate the prop-
erties, or any substantial part thereof, of another Irregular
Air Carrier pursuant to the exemption granting herein,
shall submit to the Board, not more than 30 days following
the consummation of the transaction, a report indicating
in reasonable detail the nature and result of the transaction.

(xi) Subsection 409(a) (Interlocking relationships) :
Provided, That if an application by any Irregular Air Car-

oe pa = eg
BS. 4) On ee

43

rier for approval of an interlocking relationship in exist-
ence on the effective date of this section is filed with the
Board prior to a date 30 days after the effective date of
this section, such air carrier may retain the officer, direc-
tor, member, or stockholder involved in such relationship
pending final disposition by the Board of said application :
Provided further, That Irregular Air Carriers shall be
exempt from subsection 409(a) in so far as said subsection
would make it unlawful, without prior approval by the
Board, (a) for any Irregular Air Carrier to have and re-
tain an officer or director who is an officer, director, or
member, or who as a stockholder holds a controlling inter-
est, in another Irregular Air Carrier, (b) for any Irregu-
lar Air Carrier, knowingly and willfully, to have and re-
tain an officer or director who has a representative or nomi-
nee who represents such officer or director as an officer, di-
rector, or member, or as a stockholder holding a control-
ling interest, in another Irregular Air Carrier;

(xii) Subsection 409(b) (Profit from Transfer of Se-
curities) ;

(xiii) Section 410 (Loans and Financial Aid) ;

(xiv) Section 411 (Methods of Competition) ;

(xv) Section 412 (Pooling and Other Agreements) : Pro-
vided, That Irregular Air Carriers shall be exempt from
section 412 until 60 days after the effective date of this
section: Provided further, That Irregular Air Carriers
shall be exempt from section 412 in so far as said section
would require any Irregular Air Carrier to file with the
Board a copy or a memorandum of certain contracts or
agreements (other than contracts or agreements for pool-
ing or apportioning earnings, losses, traffic, service or fly-
ing equipment), or of modifications or cancellations thereof,
between such carrier and any other Irregular Air Carrier;

(xvi) Section 413 (Form of Control) ;

(xvii) Section 414 (Legal Restraints) ;

(xviii) Seetion 415 (Inquiry into Air-Carrier Manage-
ment);

(xix) Section 416 (Classification and Exemption of Car-
riers).

Iii Pciiew Da ali eee

Db AR SRO GEA, &

44

(2) Additional Exemptions for Irregular Air Carriers
Utilizing Small Aircraft——Subdivisions (ii), (iv), (vi),
(vii), (x), (xi), (xiii) and (xv) of subparagraph (1) of this
paragraph shall not apply to any Irregular Air Carrier
which does not utilize in its air transportation services any
single aircraft unit having an allowable gross take-off
weight in excess of 10,000 pounds, or three or more aircraft
units (not ineluding any aircraft unit having an allowable
gross take-off weight of less than 6,000 pounds) having an
aggregate allowable gross take-off weight in excess of 25,000
pounds.

(3) Additional Temporary Exemptions in Foreign Air
Transportation—Notwithstanding any other provisions of
this section, Irregular Air Carriers for a period of three
months after the effective date of this section, shall, with
respect to foreign air transportation of persons, be exempt
from all provisions of sections 401 (except subsection
401(1)) and 403 of the Civil Aeronautics Act of 1938, as
amended, only, however, to the extent that such foreign
air transportation of persons is confined to operations of
the type exempted under section 292.1 prior to this revision
of such section.

(4) Approval of Certain Interlocking Relationships.—
To the extent that any officer or director of an Irregular
Air Carrier would, without prior approval by the Board, be
in violation of any provision of subsection 409(a) (3) of
the Civil Aeronautics Act of 1938, as amended, by reason
of any interlocking relationship with another Irregular
Air Carrier, such relationship is hereby approved.

(5) Effect on Other Statutes—The exemptions herein-
above granted from certain provisions and requirements
of sections 408, 409, and 412 shall not constitute an order
made under such sections, within the meaning of section
414, and shall not confer any immunity or relief from op-
eration of the ‘‘antitrust laws,’’ or any other statute (ex-
cept the Civil Aeronautics Act of 1938, as amended), with
respect to any transaction, interlocking relationship or
agreement otherwise within the purview of such section.

(5) Operational Reports by Irrequar Air Carriers.—
On or before July 20, 1947, and thereafter on or before

45

the 20th day of every October, January, April and July,
each Irregular Air Carrier, except those Irregular Air Car-
riers utilizing only small aireraft, as specified in subpara-
graph (2) of this paragraph, shall file with the Board a
quarterly operational report covering the period of the
three preceding calendar months, showing all flights oper-
ated in air transportation during such period, and stating,
with respect to each such flight, the dates of departures and
arrivals and the origin, destination and intermediate points
served. Whenever any Irregular Air Carrier theretofore
utilizing only small aireraft, as specified in subparagraph
(2) of this paragraph, undertakes to utilize in its air trans-
portation services any single aireraft unit having an allow-
able gross take-off weight in excess of 10,000 pounds, or
three or more aireraft units (not including any aircraft unit
having an allowable gross take-off weight of less than 6,000
pounds) having an aggregate allowable gross take-off
weight in excess of 25,000 pounds, such Irregular Air Car-
rier shall notify the Board in writing within not more
than ten days after the actual commencement of such utili-
zation.

(d) Registration for Exemption.

(1) Letter of Registration Required—From and after
60 days after the effective date of this section no Irregular
Air Carrier may engage in any form of air transportation
unless there is then outstanding and in effect with respect
to such air carrier a Letter of Registration issued by the
Board: Provided, That if any Irregular Air Carrier, other-
wise authorized to engage in air transportation pursuant
to this section, shall file with the Board within 60 days after
the effective date of this section, an application for a Letter
of Registration, such applicant may engage in such air
transportation until such Letter has been issued, or such
applicant has been notified that it appears to the Board
that such applicant is not entitled to the issuance of such
Letter.

(2) Issuance of Letter of Registration—Upon the fil-
ing of proper application therefor, the Board shall issue, to
any Irregular Air Carrier, a Letter of Registration which,

4
4
i
4
|

SWS a eltconse

Aa aay

NI HME ee DID

-

= red =
a Rael ated Ed Sind Ma BS OM

46

unless otherwise sooner rendered ineffective, shall expire
and be of no further force and effect, upon a finding by the
Board that enforcement of the provisions of section 401
(from which exemption is provided in this section) would
be in the publie interest and would no longer be an undue
burden on such Irregular Air Carrier or Class of Irregu-
lar Air Carriers. Such application shall be certified to by
a responsible official of such carrier as being correct, and
shall contain the following information: (i) date; (ii) name
of carrier; (iii) mailing address; (iv) location of principal
operating base; (v) if a corporation, the place of incorpora-
tion, the name and citizenship of officers and directors and
a statement that at least 75 per centum of the voting in-
terest is owned or controlled by persons who are citizens
of the United States or of one of its possessions; (vi) if
an individual or partnership, the name and citizenship of
owners or partners; (vii) the types and numbers of each
type of aircraft utilized in air transportation. Such ap-
plication shall be submitted in duplicate in letter form or
on C.A.B. Form No. 2789 which is available on request for
the convenience of applicants.

(3) Non-transferabil:ity of Letter of Registration.—A
Letter of Registration shall be nontransferable and shall
be effective only with respect to the person named therein.

(4) Suspension of Letter of Registration.—Letters of
Registration shall be subject to immediate suspension when,
in the opinion of the Board, such action is required in the
publie interest.

(5) Revocation of Letter of Registration—tLetters of

Registration shall be subject _to_revocation, dl
an ri for knowing and willful violation of any

provision of the Civil Aeronauties Act of 1938, as amended,
or of any order, rule or regulation issued under any such
provision, or of any term, condition or limitation of any
authority issued under said Act or regulations.

(e) Separability—If any provision of this section or
the application thereof to any air transportation, person,
class of persons, or circumstance is held invalid, the re-
mainder of the section and the application of such pro-
visions to other air transportation, persons, classes of

—— SEAN ED OR”

= eaRertba Thesstinhad 0 ut
:

persons, or circumstances shall not be affected thereby.
(52 Stat. 984 and 1004, as amended; 49 U. S. (C. 425a and
496b).

Note: The record-keeping and reporting requirements
of this section have been approved by the Bureau of the
Budget in accordance with the Federal Reports Act of
1942.

By the Civil Aeronautics Board:

(S.) M. C. Mututcan,
Secretary.

47

(SEAL. )

Regulations
Serial Number ER-136

JINITED STATES OF AMERICA
CIVIL AERONAUTICS BOARD
Washington 25, D. C.

Economie Regulations
Interpretation No. 1 to §292.1
Adopted: December 10, 1948

Irrecuntar Arr CARRIERS

The following interpretation of the Economic Regula-
tions §292.1, in the form of illustrative examples of ‘‘irreg-
ular”’ air transportation as therein defined, is being promul-
gated pursuant to section 205(a) of the Civil Aeronautics
Act and See. 3(a) of the Administrative Procedure Act.
It is adopted as part of the regulations. Its purpose is to
assist irregular air carriers to conduct their operations in
conformity with the Act and §292.1 of the Economic Regu-
lations.

In consideration of the foregoing, the Civil Aeronautics
Board hereby issues the following interpretation of §292.1:

Examples of Irregular Air Transportation within
the Meaning of Section 292.1

For the guidance of Irregular Air Carriers and other
interested parties the Board here sets forth a number of

*
.
d
#

VAR Baa

Bs PE st aah

CR RAS Gel NEY

~

Rishi Rna cert a,

& Giceesitbk 5

48

illustrative examples of irregular and regular service. All
Irregular Air Carriers should study these examples, for
the Board expects to use them as standards to apply to the
operations of such Carriers.

It should be noted that all of the illustrations included
here refer only to actual operations. Such operations indi-
cate a course of conduct constituting the holding out of
regular or irregular service, as the case may be. The
holding out of regular service may also be brought about
by means other than actual operations—for example, al-
though its services are operated irregularly, a carrier may
be holding out regular service by reason of the nature and
extent of its advertising and traffic solicitation efforts. In
other words, an Irregular Air Carrier is not immune from
enforcement action if its actual operations are irregular
but all the circumstances surrounding its business show
that the carrier is holding out regular service.

The illustrations included represent application of the
principles announced in Page Airways, Inc., Investigation,
6 C.A.B. 1061, Trans-Marine Airways, Inc., Investigation
of Activities, 6 C.A.B. 1071, and Investigation of Non Schea-
uled Services, 6 C.A.B. 1049, and more particularly of the
cease and desist order entered in the Matter of the Noncer-
tificated Operations of Trans Caribbean Air Cargo Lines,
Inc., Order Serial No. E-370, adopted March 14, 1947. This
is emphasized because the Board is not attempting by re-
vision of section 292.1 either to enlarge or contract the
scope of operations permitted by the regulation.

(1) An Irregular Air Carrier operates between points
A and B, in one direction, on the days of the month which
are encircled on the following caiendar table:

Ss M T W = F Ss
(1) 2 3 4 5 6 7
(8) 9 10 11 12 13 14
(15) 16 17 18 19 20 21
(22) 23 24 25 26 27 28

(29) 30 31

Since these flights are conducted on the same day of each
week, the service is not irregular within the meaning of

a re pee One fee ee ee

49

’ the regulation. Moreover, if over a period of weeks an
occasional Sunday flight is omitted, or is operated on some
other day of the week, such minor variations in the general
pattern of regularity would not cause the service to become
an irregular service.

(2) An Irregular Air Carrier operates between points

ee

A and B, in one direction, on the days of the month which
are encircled on the following calendar table:
Ss M T W T F Ss
— 1 (2) 3 (4) 5 6
7 8 (9) 10 (11) 12 13
) 14 15 (16) 17 (18) 19 20
21 22 (23) 24 (25) 26 27

28 29 (30)

These flights are conducted regularly, twice a week, with-
out frequent and extended definite breaks in service and
are obviously not irregular within the meaning of the regu-
lation. Moreover, if over a period of weeks an occasional
flight is omitted, or is operated on some other day of the
week, such minor variations in the general pattern of regu-
larity would not cause the service to become an irregular
service. :

(3) An Irregular Air Carrier operates between points
A and B, in one direction, on the days of the month which
are encircled on the following calendar table:

S M T W T F S
sk _ “ (1) 2 3 4
5 6 (7) 8 9 10 1
12 (13) 4 15 16 17 (18)
19 20 3 @ 3s 24 25

(26) 27 28 29 (30)

These flights are conducted at regularly recurring
periods, or substantially regular periods (every 4, 5 or 6
days), and therefore do not achieve infrequency and irregu-
larity of service through frequent and extended definite
breaks in service. Such service is not irregular within the
meaning of the regulation.

(4) An Irregular Air Carrier operates between points A

50

and B, in one direction, on the days of the two successive
months which are encircled on the following calendar table:

S M = W T F S
~— _ _ — _ 1 2
3 4 (5) 6 (7) 8 9
10 (11) (12) 13 14 15 16
17 18 (19) (20) 21 22 23
24 (25) 26 (27) 28 29 30
31
_ l (2) 3 (4) 5 6
7 8 9 (10) 11 12 (13)
I4 15 16 17 18 19 20
21 (22) 23 24 (25) 26 27
(28) 29 30 (31)

These flights are conducted twice a week in succeeding
weeks without the intervention of other weeks or similar
periods at irregular but frequent intervals during which no
flights are operated. Such service is not irregular within
the meaning of the regulation.

(5) An Irregular Air Carrier eperates between points
A and B, in one direction, on the days of the two successive
months which are encircled on the following calendar table:

S M T W T F S
_ ~ — — — (1) 2
(3) (4) 5 (6) 7 (8) 9
10 ir (12) (13) 14 15 16
17 (18) 19 =6©(20)—s 2 (22) 28
24 25 26 27 28 29 30
(31)
s M T W T F S
— (1) 2 (3) 4 5 (6)
7 8 (9) (10) i 12 13

(14) 15 (16) 17 = (18) (19) 0
21 22 23 24 25 26 27
(28) (29) 30

In this pattern, unlike the preceding example, two breaks
of at least a week occur within a two-month period. How-
ever, operations in the other weeks oceur with such fre-
quency that the breaks in service are not of sufficient fre-

51

quency and extent to compensate for the substantial number
of flights conducted with frequency over a substantial
period, The flights are not irregular within the meaning of
the regulation.

(6) An Irregular Air Carrier operates between points
A and B, in one direction, on the days of the two successive
months which are encircled on the following calendar table:

SS) M ¥ W T F Ss
_ _ —_ l 2 (3) 4
5 6 (7) 8 9 (10) 11
12 13 14 15 16 17 18
19 20 (21) 22 23 (24) 25
26 27 (28) (29) 30 31
— _ _ — _ — 1
2 3 (4) 5 6 (7) 8
9 10 11 12 13 14 (15)
16 17 (18) 19 20 (21) 22
23 24 (25) 26 27 (28) 29
30 31

The flights do not exceed two per week and the two-
month period includes two definite breaks in service. How-
ever, in view of the frequent rendition of service on Tues-
days and Fridays the breaks in service and comparatively
small number of flights operated are not sufficient to de-
stroy the pattern of regularity. The service is not irregu-
lar within the meaning of the regulation.

(7) An Irregular Air Carrier operates between points
A and B in one direction, on the days of the two successive
months which are encircled on the following calendar table:

s M T W T F 8
_— I (2) 3 (4) 5 (6)
7 (8) 9 (10) 1 (12) 13
14 15 16 17 18 19 (20)
21 (22) 23 (24) 25 (26) 27

(28) 29 (30) 31
- —- —- = @® 2 @
4 5 6 7 8 9 10
(11) 12 (13) 14 (15) 16 (17)
18 (19) 20 (21) 22 (23) 24
25 26 27 28 29 30 (31)

s Pn dtl ete 0~

52

These flights are operated every other day except for
infrequent breaks. Such service is not irregular within the
meaning of the regulation.

(8) Four Large Irregular Air Carriers agree to utilize
the services of a single ticket agency, XYZ Ticket Agency,
Ine., with respect to service between points A and B, and
to furnish to the agent the dates upon which each will oper-
ate between A and B. If the flights, considered in com-
bination, of such carriers between A and B reveal a pattern
of operations similar to those shown in examples (1)
through (7) above, the combination of flights constitute
regular air transportation and each such carrier is deemed
to be conducting regular operations between A and B.

(9) An Irregular Air Carrier operates between points
A and B, in one direction, on the days of the month which
are encircled on the following calendar table:

s M T Ww T F s
a oh (1) 2 3 4 5
6 7 8 (9) 10 ll 12
13 14 15 16 (17) 18 19
20 21 22 23 24 25 = (26)

27 (28) 29 30 31

These flights are conducted on a different day of each
week, and are operated only after frequent and definite
breaks in service. Although two flights (on the 26th and
28th) were operated within one period of less than one week,
this frequency was compensated for by the breaks of at
least a week between the other flights. The flights are there-
fore irregular within the meaning of the regulation.

(10) An Irregular Air Carrier operates between points
A and B, in one direction, on the days of the two successive
months which are encireled on the following calendar table
(numerals above and to the right of encircled dates indi-
cate the number of flights operated on those dates) :

-

53

8 M T W T F S
_ 1 2 3 4 5 6
7 8 (9) (10) 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27

(28) 29 30
— _ —_ 1 2 3 7
(5) (6)? (7)3 (8)? 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25

26 27 28 (29) (30) ? 31

These flights are conducted in such manner that f requent,
extended and definite breaks in service occur at irregular
intervals and therefore the service is irregular within the
meaning of the regulation.

By the Civil Aeronautics Board:

(S.) M. C. Mvuurcan,
[sEaL] Secretary.

Crviz Agronavtics Boarp, Ecoxomic Reeuations, Jury 1,
1949

(Amended by ER-151 and ER-154)

Part 291—Classification and Exemption of Irregular Air
Carriers

Note: The following interpretation of Part 291 was
adopted by Regulation Serial No. ER-136, 13 F. R. 7769.

Examples of irregular air transportation within the
meaning of Part 291. For the guidance of irregular air
carriers and other interested parties the Board here sets
forth a number of illustrative examples of irregular and
regular service. All irregular air carriers should study
these examples, for the Board expects to use them as stand-
ards to apply to the operations of such carriers.

It should be noted that all of the illustrations included
here refer only to actual operations. Such operations indi-
cate a course of conduct constituting the holding out of regu-
lar or irregular service, as the ease may be. The holding
out of regular service may also be brought about by means

tt
i
‘
i
:
‘
N
5

54

other than actual operations—for example, although its
services are operated irregularly, a carrier may be holding
out regular service by reason of the nature and extent of its
advertising and traffic solicitation efforts. In other words,
an irregular air carrier is not immune from enforcement
action if its actual operations are irregular but all the cir-
cumstances surrounding its business show that the carrier
is holding out regular service.

The illustrations included represent application of the
principles announced in Page Airways, Inc., Investigation,
6 CAB 1061, Trans-Marine Airways, Inc., Investigation of
Activities, 6 CAB 1071, and Investigation of Nonscheduled
Services, 6 CAB 1049, and more particularly of the cease
and desist order entered in the Matter of the Noncertifi-
cated Operations of Trans Caribbean Air Cargo Lines, Inc.,
Order Serial No. E-370, adopted March 14, 1947. This is
emphasized because the Board is not attempting by revision
of Part 291 either to enlarge or contract the scope of opera-
tions permitted by the regulation.

(1) An irregular air carrier operates between points A
and B, in one direction, on the days of the month which
appear in brackets on the following calendar table:

s M T Ww T F Ss
[1] 2 3 4 5 6 7
[8] 9 10 11 12 13 14
[15] 16 17 18 19 20 21
[22] 23 24 25 26 27 28

[29] 30 31

Since these flights are conducted on the same day of each
week, the service is not irregular within the meaning of
Part 291. Moreover, if over a period of weeks an occasional
Sunday flight is omitted, or is operated on some other day
of the week, such minor variations in the general pattern of
regularity would not cause the service to become an irregu-
lar service.

(2) An irregular air carrier operates between points
A and B, in one direction, on the days of the month which
appear in brackets on the following calendar table:

4

s M 5 T F s
— 1 [2] 3 [4] 5 6
7 8 [9] 10 {11] 12 13
14 15 [16] 17 [18] 19 20
21 22 [23] 24 [25] 26 27

28 29 [30]

These flights are conducted regularly, twice a week, with-
out frequent and extended definite breaks in service and are
obviously not irregular within the meaning of Part 291.
Moreover, if over a period of weeks an occasional flight is
omitted, or is operated on some other day of the week, such
minor variations in the general pattern of regularity would
not cause the service to become an irregular service.

(3) An irregular air carrier operates between points A
and B, in one direction, on the days of the month which ap-
pear in brackets on the following calendar table:

s M T W T F S
— _ _— {1] 2 3 4
5 6 [7] 8 9 10 11
12 [13] 14 15 16 17 [18]

19 20 21 [22] 23 24 25
[26] 27 28 29 [30]

These flights are conducted at regularly recurring pe-
riods, or substantially regular periods (every 4, 5 or 6
days), and therefore do not achieve infrequeney and irregu-
larity of service through frequent and extended definite
breaks in service. Such service is not irreeular within the
meaning of Part 291.

(4) An irregular air carrier operates between points A
and B in one direction, on the days of the two successive
months which appear in brackets on the following calendar
table:

Ss M T W T F Ss
_ _ — _ — [1] 2
3 4 [5] 6 [7] 8 9
10 (11) 12} 13 14 15 16
17 18 [19] [20] 21 22 23
24 [25] 26 [27] 28 29 30
31
~ 1 [2] 3 [4] 5 6
7 8 [10] ll 12 [13]
14 15 16 17 18 19 20
21 [22] 23 24 25] 26 27

4
Bs
;
:
;
i
i
;
;
3
:
i
‘
:

NS eae ee Ben ee eae» Cee ee en eee

ae

ee ape re

56

These flights are conducted twice a week in succeeding
weeks without the intervention of other weeks or similar
periods at irregular but frequent intervals during which no,
flights are operated. Such service is not irregular within
the meaning of Part 291.

(5) An irregular air carrier operates between points A
and B, in one direction, on the days of the two successive
months which appear in brackets on the following calendar
table:

s M T Ww T F s
an -_ _ _ _ [1] 2
[3] [4] 5 [6] 7 [8] 9
10 ll (12) [13] 14 15 16
17 [18] 19 [20] 21 [22] 23
24 25 26 27 28 30
[31]
_ (1) 2 [3] 4 5 [6]
7 8 9] ~—- [10] 11 12 13
[14] 15 [16] 17 [18] [19] 20
21 22 23 24 25 26 27

[28] — [29] 30

In this pattern, unlike the preceding example, two breaks
of at least a week occur within a 2-month period. However,
operations in the other weeks occur with such frequency
that the breaks in service are not of sufficient frequency and
extent to compensate for the substantial number of flights
conducted with frequency over a substantial period. The
flights are not irregular within the meaning of Part 291.

(6) An irregular air carrier operates between points A
and B, in one direction, on the days of the two successive
months which appear in brackets on the following calendar

table:

S8scon |

10
17
24
31

T F )
2 [3] 4
9 [10] 11

16 17 18

23 [24] 25

30 31

— — 1
6 [7] 8

13 14 [15]

20 [21] 22

27 [28] 29

The flights do not exceed two per week and the 2-month
period includes two definite breaks in service. However,
in view of the frequent rendition of service on Tuesdays and
Fridays the breaks in service and comparatively small num-
ber of flights operated are not sufficient to destroy the pat-
tern of regularity. The service is not irregular within the
meaning of Part 291.

(7) An irregular air carrier operates between points A
and B, in one direction, on the days of the two successive
months which appear in brackets on the following calendar

table:
s

7
14
21

[28]

4
(11)
18
25

12
[19]
26

T
[2]
9
16

23
[30]

6
[13]
20

27

14
[21]
28

T F S

4] 5 [6]

11 [12] 13

18 19 [20]

(1) 2 [3]
8

[15] 16 [17]
22 [23] 24
29 30 [31]

These flights are operated every other day except for
infrequent breaks. Such service is not irregular within the
meaning of Part 291.

a Veet ns: 33

LIN AP Mest in sed PLS REGO Te NT NTO TN WTA ol Mail

58

(8) Four large irregular air carriers agree to utilize the
services of a single ticket agency, XYZ Ticket Agency, Inc.,
with respect to service between points A and B, and to fur-
nish to the agent the dates upon which each will operate
between A and B. If the flights, considered in combination,
of such carriers between A and B reveal a pattern of opera-
tions similar to those shown in examples (1) through (7)
above, the combination of flights constitute regular air
transportation and each such carrier is deemed to be con-
ducting regular operations between A and B.

(9) An irregular air carrier operates between points A
and B, in one direction, on the days of the month which
appear in brackets on the following calendar table:

Ss M T W T F s
_ _ {1] 2 3 4 5
6 7 8 [9] 10 11 12
13 14 15 16 [17] 18 19
20 21 22 23 24 25 [26]

27 [28] 29 30 31

These flights are conducted on a different day of each
week, and are operated only after frequent and definite
breaks in service. Although two flights (on the 26th and
28) were operated within one period of less than one week,
this frequency was compensated for by the breaks of at
least a week between the other flights. The flights are there-
fore irregular within the meaning of Part 291.

(10) An irregular air carrier operates between points A
and B, in one direction, on the days of the two SUCCESSIVE
months which appear in brackets on the following calendar
table (numerals above and to the left of dates appearing in
brackets indicate the number of flights operated on those
dates) :

GR eS

or

S M ‘3 W T F S
_ 1 2 3 4 5) 6
7 8 {9] [10] 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
[28] 29 30
_ — — 1 2 3 4
[5] [? 6] [5 7] [? 8] 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 [29] [? 30] 31

These flights are conducted in such manner that frequent,
extended and definite breaks in service occur at irregular
intervals and therefore the service is irregular within the
meaning of Part 291.

§ 291.1. Definitions—(a) Irregular air carrier. The term
irregular air carrier means any air carrier which (1) di-
rectly engages in air transportation, (2) does not hold a
certificate of public convenience and necessity under sec-
tion 401 of the Civil Aeronautics Act of 1938, as amended,
and (3) does not operate, or hold out to the public expressly
or by course of conduct that it operates, one or more air-
craft between designated points, or within a designated
point, regularly or with a reasonable degree of regularity,
upon which aircraft it accepts for transportation, for com-
pensation or hire, such members of the publie as apply
therefor or such property as the public offers. No air ear-
rier shall be deemed to be an irregular air carrier unless the
air transportation services offered and performed by it are
of such infrequeney as to preclude an implication of a uni-
form pattern or normal consistency of operation between,
or within, such designated points.

(b) Point. The term ‘‘point’’ as used in this part shall
mean any airport or place where aircraft may be landed or
taken off, including the area within a 25-mile radius of such
airport or place.

(5016)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1458%3A4. Public record. Not legal advice.