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## 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 DIS MISS 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

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## 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, L LC (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 app lication 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 fil ed its requi red 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 ope rations of Scott and find that it regularly offers service operated pursuant to a published schedule in markets other than Ketchikan Klawock. These services should have been included in the service proposal and sufficient financial strength shown to opera te 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 t his 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 (App endix 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 purc hase 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 vio lates 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 brough t 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 transportati on 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 sh ould 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 p rejudice 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 d ay 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