BEFORE THE U.S. DEPARTMENT OFTRANSPORTATION WASHINGTON, D.C.

Application of ) ) CSI AVIATION SERVICES,INC. ) Docket OST-2009-0311 ) for an emergency exemption ) pursuant to 49 U.S.C. § 40109 ) and 14C.F.R. § 302.1 1. )

OBJECTIONSBY MIAMI AIR INTERNATIONAL,INC. TO ORDER TO SHOW CAUSE ON CSIAVIATION SERVICES,INC. APPLICATIONFOR AN EMERGENCYEXEMPTION Communications with respect to this document should be sent to: Ross Fischer, CEO James W. Tello MIAMI AIR INTERNATIONAL, INC. LAW OFFICES OFJAMES W. TELL0 P.O. Box 660880 1025 Connecticut Avenue, NW Miami, FL 3266-0880 Suite 1000 rfischer@,miamiair.com - Washington, DC 20036 Phone: 202-399-191 8 Fax: 202-478-0244 jamestello@,earthlink.net Counsel for MIAMI AIR INTERNATIONAL,INC. March 19,2010BEFORE THE U.S. DEPARTMENT OFTRANSPORTATION WASHINGTON,D.C.

Application of 

### 1 ) CSIAVIATION SERVICES,INC. 

## 1 Docket OST-2009-0311 

## 1 for an emergency exemption 

## 1 pursuant to 49 U.S.C. 

## 5 40109 

## 1 and 14 C.F.R. tj 302.11. 

## 1

March 19,201 0 OBJECTIONSBY MIAMI AIR INTERNATIONAL, INC. TO ORDER TO SHOW CAUSE ON CSI AVIATION SERVICES,INC. APPLICATION FOR AN EMERGENCYEXEMPTION On March 16,2010, the Department issued by OST Order 20 10-3-2 1, an order to show cause tentatively grantingthe request of CSI Aviation Services, Inc. ("CSI") for exemption authority to engage in domestic and foreign indirect air transportation of persons, property and mail pursuant to contracts arranged under the General Services Administration (GSA) Schedule Special Item Number (SIN) 599-5, Air Charter ServicesBrokers. That order required that any objections be filedno later than, March 19, 201 0. Capital Aviation, Inc. and Capital Airways, LLC (collectively, "Capital") responded with objections served late March 18,20 10that were received by Miami Air International, Inc. ("Miami Air") on March 19,2010. Miami Air hereby files its objections to the order to show cause and its answer to the objections of Capital as follows:Objections by Miami Air International, Inc. to Order to Show Cause Docket OST-2009-0311 Page 2 of5 

### 1.In the course ofproceedings onthe application of CSI, Miami Air voiced its opposition to the issuance of the emergency exemption requested by CSI on a number of grounds. Miami Air continues to object to issuance ofthat emergency exemption and adopts its previous arguments in support ofthat objection by this reference.

2. In its filing, Capital introduced a new focus on the Department's failureto include the use by brokers of FAR 125carriers in the exemption authority it proposes to issue. Thebrokers may only enter into agreements with air carriers that hold the requisite authority to engage in air transportation; [Footnote 9.1



### .... [Footnote 9.1 Brokers may not enter into agreements with carriers operating under 14CFR Part 125,asthese carriers may not engage in common carriage operations in airtransportation, either directly or indirectly through air charter brokers. OST Order 2010-3-21 (Order to Show Cause), page 5.

Tothis claim, Capital argues, among other things that theDepartment did not adequately support its analysis that FAR 125carriers could not be used by the authorized brokers. As wewill explain, Miami Air submits that the law inthis area is so clear that no further analysis by the Department was necessary.

3. In its original "Application ofCSIAviation Services, Inc. for an Emergency Exemption," ("Application"), CSI asked that, "pursuant to 49U.S.C. fj40109



### . . 

### . " the Department grant it an "emergency exemption from 49U.S.C. 

### 9 41101and 14C.F.R. parts 212 and 380, to the extent necessary to continue to perform under General ServicesObjections by Miami Air International, Inc. to Order to Show Cause Docket OST-2009-0311 Page 3 of 5 Administration ("GSA") Contract GS-33F-0025V, Special Item Number ("SIN") 599-5, Air Charter Services-Brokers." Thus, in its concession that it is an "indirect air carrier" that is engaged in "air transportation" indirectly, CSI asked for authority to engage in common carriage. 49 USC Subsections 40 102(a)(5), (23) and (25). As a result, in issuing authority to an indirect air carrier by exemption from the statutory requirement that a certificate be required for such operations (49 USC Section 4 1101) and from regulations issued in furtherance ofthose statutory provisions, the Department simply conformed to the limits both of its statutory mandate and ofthe specifications ofthe request made to it by the applicant.

4. That view is also supported by the requirements ofregulations cited. Only U.S. certificated air carriers may operate the charter forms authorized by sections 212.1,296.1, 297.1 and 380.10(d). It should also be noted that wet leases to authorized air carriers from other authorized air carriers are the limits ofthe scope ofthat regulation (section 212.4(b)(l)), and air carriers by definition are common carriers (49 USC Subsections 40102(a)(2), (5), (23) and (25)). A so-called "private carrier" may not wet lease to an air carrier (by definition a common carrier) because that would comprise a holding out to a segment ofthe general public.

5. It is also quite relevant that the Federal Aviation Administration limits wet leases to other air carriers that hold similar operations specifications under an air carrier certificate issued by that agency. FAR 119.53(b) and (e). That authority does notObjections by Miami Air International, Inc. to Order to Show Cause Docket OST-2009-0311 Page 4 of

### 5 encompass operators that may only provide lift when "common carriage is not involved." FAR 125.1. Even Capital concedes that the "general public" may under certain circumstancesbe transported by the air carriers anticipated to transport persons under the tentatively proposed exemption. Capital,p. 

### 6. That alone is sufficient to forecloseFAR 125 operators. And the broader argument made by Capital that OST has nojurisdiction

or need to issue an exemption at all are both too late and in contradiction to the scope of the CSI application itself.



### 6. An examination of the insightful memo issued by the Department's Enforcement Office (Role ofAir Charter Brokers) also does not favor the position taken by Capital. Review ofthe underlying cases cited by that memo (and many, many more) will showthat a determination of lawful "private carriage" rests on the totality ofthe facts in particular circumstances. The rule most certainly does not allow a certain number of contracts to a particular customer ifthe "private carrier" has many other

customers. The case law rule also has reference tothe manner of "holding out" to the public irrespective ofthe number and nature of customers a "private carrier" may have, among other things. It is not a mechanical,bright-line rule. In any case, the Enforcement memo reference to a certain number of allowable contracts derives from a CAB proceeding that is of doubtful authority in 

### a litigated context this many decades later onthe facts it recites. Accordingly, the Department is not in a position to exempt generally all holders of FAR 125 authority without the requisite individuated investigation and examination of particular operators. Doing sowould clearlyObjections by Miami Air International, Inc. to Order to Show Cause Docket OST-2009-0311 Page 5 of 

### 5 contravene not only the DOT'S own precedent and the law it enforces but defeat the FAA's safety regulatory regime that accords to air carriers the highest level of safety and

to all others a lesser standard. U.S. government personnel will be onthese flights. Like those flights operated for the Department ofDefense by civilian carriers, only carriers certificated to the highest economic and safety standards should be allowed for flights carrying government personnel.

WHEREFORE, Miami Air International, Inc. hereby (1) opposesthe issuance of a final order authorizing brokers to operate as indirect air carriers for GSA contracts or, 

### (2) if the Department were to issue such authority nevertheless, Miami Air opposes the inclusion of FAR 

### 125carriers within that exemption for air transportation under the specified GSA schedule.



### L~FFICES 

### OF JAMES W.

### TELLO Counsel for MIAMI AIR INTERNATIONAL,INC.CERTIFICATE OF SERVICE I hereby certify that on this 19~ day of March 2010, a copy of the foregoing document was served by e-mail on the parties named below.

/ / ~6es'~. Tello David M. Hernandez, Esq. Vedder Price P.C. Counsel for CSI Aviation Services, Inc. dhernandez@vedderprice.com Aaron A. Goerlich Victor 

### H. Smith Garofalo Goerlich Hainbach PC Counsel for Sundowner Oklahoma City, LLC ag;oerlich@,g;g;h-airlaw.com vsmith@,g;gh-airlaw.com John S. Fredericksen Vice President-General Counsel 

### MN Airlines, LLC John.fredericksen@,suncountrv.com - Carl M. Smith, Esq. McGovern & Smith, LLC Counsel for Omni Air International, Inc. Carl.smith@,mcg;overnandsmith.com Ron Priddy, President National Air Carrier Association rpriddy@,naca.cc - Pierre Murphy Law Offices ofPierre Murphy Counsel forUSA 3000 Airlines pmurphy@,lopmurphy.com -Scott Bickford, Chairman Jonathan Tasler, President David McCown, Vice President Air Charter Association ofNorth America C/O Air Planning LLC sbickford@,fl yacana.org itasler@,flvacana.org dmccown@,flyacana.orq Mark A. Robinson Vice President and General Counsel Ryan International Airlines MarkRobinson@,rubloffusa.com Thomas J. Spulak, Esq. King & Spalding LLP Counsel for Falcon Air Express, Inc. tspulak~kslaw.com Mark W. Atwood Sher & Blackwell, LLP Counsel for TEM Enterprises d/b/a Xtra Airways matwood@,sherblackwell.com Robert Binns, Chief Executive Officer Global Aviation Holdings rbinns@,glah.com Gregory 

### P. Cirillo, Esq. Wiley Rein LLP Counsel for Capital Aviation, Inc. gcirillo@,wile~rein.com - Virginia Gregasch General Services Administration Virgiilia.grebasch@,gsa. gov National Business Aviation Association Mike Nichols, VP Operations, Education, Economics National Business Aviation Association 1nnich0ls@,nbaa.org Jonathan Dols, Esq. U.S. Department of Transportation Jonathan.dols~dot.gov -George Wellington U.S. Department ofTransportation George.wellin~ton@,dot. gov Thuy Cooper U.S. Department of Transportation Thuy.Cooper@,dot.gov