SERVED JUNE 1,2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

ISLAND HELICOPTERS INTERNATIONAL, LTD. 

FAA DOCKET NO. CP08SO0013 

(Civil Penalty Action) 

DMS NO. FAA-2008-0693 

ADMINISTRATIVE LAW JUDGE'S ORDER 

ON JURISDICTIONAL ISSUE 

In this case, the Complainant, the Federal Aviation Administration 

(FAA), seeks to recover an $11,000 civil penalty from the Respondent. The 

Respondent is a company formed under the laws of the British Virgin 

Islands and is domiciled on the Island of Tortola. According to the FAA's 

complaint, the Respondent published a web site on which it offered to 

perform helicopter charter flights for hire to various locations, including 

locations in the United States Virgin Islands (i.e., St. Thomas and St. Croix) 

as well as to San Juan in Puerto Rico. At that time, the Respondent did not 

hold authority from the FAA to conduct charter operations for hire. The 

Respondent's activity was alleged to have violated section 119.5(k) of the 

Federal Aviation Regulations (FAR), which reads, "No person may advertise 

or otherwise offer to perform an operations subject to this part unless that 

person is authorized by the Federal Aviation Administration to conduct that 

operation." 

The threshold issue this case presents is whether the FAA may assert 

jurisdiction over a foreign air carrier merely because it advertises that it 

provides service to and from U.S. locations. For reasons that follow, I 

conclude that the FAA has regulatory jurisdiction to do so, at least in the 

circumstances of this case. 
In my pre-hearing order of October 9, 2008,1 asked the Complainant 

to file a memorandum discussing the principle or principles under which it 

believes it has jurisdiction to enforce §119.5(k) over a party who, so far as 

the record shows, has never provided service to a location within the United 

States. The FAA responded to that request in a memorandum laying down " 

the reasons for its position. I am grateful to the agency for its assistance 

with this thorny subject. 

In its memorandum the FAA supplemented the allegations in its 

complaint by pointing out that the chief executive officer of the Respondent 

is a U.S. citizen who hold as U.S.-issued pilot's license. The memorandum 

also states that the aircraft that the Respondent operates are registered in the 

United States, notwithstanding the fact that the Respondent, as operator, 

lacks authority to perform for-hire transportation of passengers. 

It is well-settled that the application of U.S. regulatory statutes to 

activities taking place outside the territorial limits of the United States is a 

fijnction of the intent of Congress when it enacted the statute authorizing the 

particular regulatory action. See EEOC v. Arabian American Oil Co., 499 

U.S. 244, 248 (1991); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). 

In this case, 49 U.S.C. §47701 (a)(5) authorizes the FAA to prescribe 

regulations that it finds necessary to promote safety in air commerce. This 

authorization is broad enough to extend to a foreign air carrier's efforts to 

secure customers for flights into the airspace of the United States. 

In addition, 49 U.S.C. §40105(b)(1)(A) requires the FAA 

Administrator to carry out his or her duties in a manner consistent with the 

obligations of the United States under its international agreements. Among 

those agreements is the Chicago Convention on International Civil Aviation. 

Under Article 32(b) of the Chicago Convention, the United States is 

responsible for the safety of operation of aircraft registered in the United 

States, regardless of where the operations take place. 

It is also worth noting that the Department of Transportation has on 

numerous occasions asserted its regulatory authority over foreign air carriers 

that have advertised on the Internet. On September 24, 1997, the Office of 

Aviation and Proceedings (AEP) issued a notice "to clarify its enforcement 

policy with regard to the advertising of service to and from the U.S. by 

foreign carriers." Advertising of Scheduled Service in Foreign Air 

Transportation, 62 Fed. Reg. 51,175 (Sept. 30, 1997). The notice stated that 
"AEP has in the past applied and will continue to apply the same standards 

to the advertisement of proposed service by foreign air carriers as it 

currently applies .. . to U.S. applicants for certificate authority." The Notice 

concludes that it is an unfair and deceptive practice for a foreign air carrier 

to list or advertise service for which it lacks all requisite authorizations from 

the Department in any medium "reasonably likely" to reach the U.S. public. 

Those media, the Notice indicates, include the Internet. 

In a later case. Air Jamaica, LTD.. Docket No. OST 2008-0031, 2008 

WL 5505463 (Dec. 30, 2008), a foreign air carrier's Internet advertisements 

were held to be out of compliance with a Departmental rule on fiill-fare 

advertising, because the carrier advertised on its Internet website fares that 

did not include certain carrier-imposed fees. Similarly, in Israir Airlines and 

Tourism, LTD., Docket No. OST 2006-23528, 2006 WL 3697750 (Nov. 16, 

2006), the Department took enforcement action against a foreign air carrier 

who was held to have violated the DOT's fiill-fare advertising requirement 

by virtue of, inter alia, omissions in fare quotations found on the Internet. 

The consistent position of this Department, therefore, has been that 

inaccurate or misleading statements on an Internet website may subject a 

carrier to enforcement action under U.S. law. In this case, such action is 

specifically authorized by the statutes which granting the FAA authority to 

impose liability for a civil penalty on persons, no matter where located, who 

violate the FAR. 49 U.S.C. §§46301(a)-46301(d). 

I conclude, therefore, that this enforcement proceeding was well 

within the jurisdiction of the FAA. 

Accordingly, this case will be set for hearing on a date and at a 

location to be determined in a fixture notice by the administrative law judge 

to whom the case is assigned. The parties should prepare for the hearing and 

should, in the interim, exercise their best efforts to arrive at an amicable 

settlement that will render the effort and expense of such a hearing 

unnecessary. 

Isaac D. Benkin 

Administrative Law Judge 
FAA Docket No. CP08SO0013 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Att: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014' 

ONE COPY 

Bradley P. Hanger, President 

Island Helicopters International 

P.O. Box 2900 

East End, Tortola 

British Virgin Islands, West Indies 

TEL: (284)495-2538 

FAX: (954)359-3213 

Raymond Veatch, Esq. 

Federal Aviation Administration 

Office of the Regional Counsel, ASO-7 

Southern Region 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: (404)305-5200 

FAX: (404)305-5223 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building, Ground Floor 

Room E12-358 

Washington, DC 20590 

TEL: (202)366-2132 

FAX: (202)366-7536 

' Service was by U.S. Mall. For service in person or by expedited courier, use the following address: 

Hearing Docket, Federal Aviation Administration, 600 Independence Avenue, S. W., Wilbur Wright Building - Room 

2014, Washington, DC 20591, Att: Hearing Docket Clerk, AGC-430.