1

BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

__________________________________________

)

In the matter of the )

Application of )

)

SCOTT AIR, LLC ) Docket DOT-OST-2012-0178

)

For a certificate of public convenience )

and necessity under 49 U.S.C. § 41102 )

to engage in interstate scheduled air )

transportation of persons, property and mail )

__________________________________________)

MOTION OF THE KETCHIKAN CARRIERS

TO DISMISS THE APPLICATION OF SCOTT AIR, LLC

Communications with respect to this document should be addressed to:

 Hank Myers

P.O. Box 7142

 Bellevue, WA 98008-1142

 (425) 429-3454

 hank@mtcworld.com

June 4, 2013
2

BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

__________________________________________

)

In the matter of the )

Application of )

)

SCOTT AIR, LLC ) Docket DOT-OST-2012-0178

)

For a certificate of public convenience )

and necessity under 49 U.S.C. § 41102 )

to engage in interstate scheduled air )

transportation of persons, property and mail )

__________________________________________)

MOTION OF THE KETCHIKAN CARRIERS

TO DISMISS THE APPLICATION OF SCOTT AIR, LLC

Pacific Airways, Inc. and PM Air, LLC (Ketchikan Carriers) hereby request the Department 

to dismiss the application of Scott Air, LLC (Scott) in this docket. Last week was the 

three month anniversary of the last filing of substance by Scott in this docket, and it has 

been nearly four months since the Ketchikan Carriers provided a list of the exclusions 

and deficiencies in Scott’s application which make it impossible for the Department to 

find Scott fit. Scott has yet to file the information required by 14 CFR 204.3. The 

February 25 filing by Scott was in response to the Ketchikan Carriers’ discovery that 

Scott was no longer a corporation in good standing as required by Department 

regulations. This was simply the latest in a string of actions or non-actions by Scott 

displaying a cavalier disregard for the regulatory process. As a result of the Carriers’ 
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filing, Scott filed its required state reports and filed its new certificate of standing 

without comment in this docket. The state reports were long overdue, and without the 

filing by the Ketchikan Carriers it is conjectural about when Scott would comply, if at all.

In its February 1 filing, the Ketchikan Carriers specifically listed each of the information 

requirements that Scott failed to comply with. These requirements are not mere 

formalities, but provide the factual basis for judging the veracity of all other data filed by 

Scott. The unmet requirements are basic to a well thought out service plan, and provide 

cross reference points for other data required by section 204. If based on a sound 

service plan, these data are easy to compute and document, taking a matter of hours to 

accomplish. Why Scott has been unable or unwilling to comply is irrelevant, in four 

months it has not provided the data. 

In addition to seeking dismissal of the application for lack of prosecution, the Ketchikan 

Carriers have carefully analyzed the operations of Scott and find that it regularly offers 

service operated pursuant to a published schedule in markets other than KetchikanKlawock. These services should have been included in the service proposal and 

sufficient financial strength shown to operate these flights as a certificated carrier. 

While the Office of Aviation Enforcement does enforce economic violations of operation 

pursuant to a published schedule, it is the F.A.A. that has defined what operations 

pursuant to a published schedule are.
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According to opinions by the F.A.A. Office of the Chief Counsel for Regulations, 

operations pursuant to a published schedule occur when a carrier “offer[s] in advance 

the departure location, departure time and arrival location” of the flight. This 

interpretation is based on the specific language of 14 CFR 135 which defines “scheduled 

operation” as “any common carriage passenger-carrying operation for compensation or 

hire conducted by an air carrier or commercial operator for which the certificate holder 

or its representative offers in advance the departure location, departure time and 

arrival location.” 

The term “offers” is interpreted broadly to include services made available by any 

means including telephone conversations, emails or text messages. In this case, Scott 

and its representatives offer in advance the origin point, departure time and destination 

point for transportation to and from various fishing lodges in the Ketchikan area. In 

particular, El Capitan Lodge, which is commonly owned with Scott, advertises that it 

uses Scott and will provide transportation between Ketchikan and El Capitan Lodge on 

flights where the origin point, destination point and departure time are determined by 

Scott, and which carry comingled, unaffiliated passengers (Appendix A). In fact, it is a 

common practice for Scott to work with several lodges to determine in advance the 

timing of flights serving those lodges. Scott then charges the passengers a seat fare and 

charges for freight and baggage transportation based on each passenger’s actual load. 

Appendix B is a list of fishing lodges to which Scott operates under contract; this list is 

taken directly from Scott’s web site. Each of these lodges does use Scott by prior 
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arrangement, but passengers are required to purchase their transportation on Scott 

separately.

Because the timing of the flights is set by Scott alone, or Scott in conjunction with the 

fishing lodge, the fare paying passenger has no choice other than engaging a different 

carrier on a single entity charter, at a great additional cost.

The D.O.T. Office of Aviation Enforcement has investigated cases where it has suspected 

that non-certificated carriers operated pursuant to a published schedule without 

economic authority. The particular practice that violates regulations is where a carrier 

accepts a charter for less than the full capacity of the aircraft and then offers seats to 

subsequent passengers who wish to travel between the same two points as the original 

flight. By informing a passenger in advance of existing operations that are available for 

sale, the carrier is engaging in operations pursuant to a published schedule.

The relevance of this rule on the instant application is that Scott provides a large volume 

of these services in addition to the flights between Ketchikan International Airport and 

the Klawock airport. These services should have been included in its service proposal, 

and the expenses involved in those services should have been included in estimating the 

financial reserves necessary for fitness.
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It may be that Scott has chosen not to comply with the requirements of 14 CFR 204.3 

because it has no incentive to make public the true extent of its operations. The Office 

of Aviation Enforcement has granted Scott a waiver from prosecution of its ongoing 

violations during the pendency of its application. By not filing the required information, 

Scott is stringing out the application process. Indeed there is no incentive at all for Scott 

to comply ever as long as it enjoys the forbearance of Enforcement.

The Ketchikan Carriers do not believe that Enforcement anticipated Scott simply 

stonewalling the process and effectively continue to operate without a certificate 

through willful delay. The only way to end this travesty is to dismiss the application of 

Scott without prejudice. This will allow Scott to file a fully compliant application, if it 

chooses, and avoid further waste of valuable staff time for Fitness and Enforcement. It 

has been over year since Scott violations were first brought to the attention of the 

Department, four months since the regulatory deficiencies in Scott’s application were 

specifically documented, and over three months since the last filing by Scott after its 

deficiencies were documented.

In this case, justice delayed is truly justice denied. At every turn Scott has shown a 

disregard for the regulatory process while trying to blame others for its deficiencies. It 

even continues to claim that it is engaged solely in intrastate transportation when the 

vast majority of its passengers originate and terminate their journeys outside the state 

of Alaska without a break in journey. The D.O.T. and F.A.A. standards are long 
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established and very clear. Scott has benefit of D.C. counsel, so there should be no 

misunderstanding of requirements or regulations.

WHEREFORE, the Ketchikan Carriers respectfully request that the application of Scott 

Air, LLC d/b/a Island Air Express for a certificate of public convenience and necessity be 

dismissed without prejudice for lack of prosecution and material and fatal deficiencies in 

the information provided in the application.

Respectfully submitted,

Pacifc Airways, Inc. & PM Air, LLC

____________________

By Hank Myers, authorized representative

June 4, 2013

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing Motion to Dismiss 

upon all persons served by Scott Air, LLC for its original application by first class mail.

____________________

Hank Myers

June 4, 2013
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Appendix A

Page 1 of 2

0

Travel to and from El Capitan Lodge is quite easy. All of our guests fly to Ketchikan, Alaska just an hour 

and a half by jet from Seattle, Washington.

GETTING TO AND FROM KETCHIKAN: Alaska 

Airlines services Ketchikan with several flights daily. Your flight should be booked to arrive into Ketchikan 

the day before your fishing package begins. Your returning flight from Ketchikan to your home destination 

should be scheduled to depart Ketchikan no earlier than 12:00 pm on the day you depart the lodge.

ARRIVALS KETCHIKAN AIRPORT: Ketchikan International Airport is located on an island 1/4 mile outside 

Ketchikan with continual ferry service between the island and Ketchikan. Upon arrival in Ketchikan, proceed 

to the lower level of the airport and check in with the shuttle representative holding the “El Capitan Lodge” 

sign or at the Island Air Express ticket counter. The shuttle representative will be waiting near the baggage 

claim area. After claiming your luggage, the Shuttle, located curbside just outside the airport doors, will 

transport you on the short five minute ferry crossing to the Cape Fox Lodge.
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Appendix A

Page 2 of 2

ACCOMMODATIONS IN KETCHIKAN: El Capitan Lodge has arranged for the Cape Fox Lodge to 

accommodate all of our guests with discounted room rates. Guests also receive a 10% discount in the Heen 

Kahidi dining room (discount doesn’t apply to alcohol) and at the Numshee Coffee Shop during their stay. 

Upon arrival from the airport to Cape Fox Lodge, you will be greeted by their friendly staff and checked into 

your room. Reserve your room today!

MORNING DEPARTURE TO LODGE: Accommodations at Cape Fox Lodge and seaplane transportation 

to/from the lodge are arranged by El Capitan Lodge prior to guest arrival. Van Shuttle service departs the 

Cape Fox Lodge between 5:20am and 6:30am. Upon arrival at the Lodge, a light breakfast will be served as 

your licenses and rain gear are issued for your first day of fishing. A travel itinerary is sent prior to your 

arrival.

DEPARTURES FROM LODGE: On departure day, guests can expect to depart the lodge between 6:30 am 

– 8:00 am. The direct flight to Ketchikan International Airport will arrive approximately 40 minutes after 

departure from the lodge. Upon arrival, guests proceed to the Ketchikan Airport terminal where baggage and 

fish boxes can be checked in at the Alaska Airlines ticket counter.

Scheduling & Information

Accommodations in Ketchikan

Seaplane Service to the Lodge
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Appendix B

Page 1 of 1

S

The above and map are on the “Destinations” page of the Island Air Express

website.

http://www.islandairx.com/destinations.html