UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

In the Matter of: HELICOPTER FLITE, INC.

FAA Order No. 2011-11

Docket No. CP09EA0015

FDMS No. FAA-2009-05791

Served: November 22, 2011

FAA’S PETITION FOR MODIFICATION OF 

FAA ORDER NO. 2011-6 GRANTED IN PART2

I. Introduction

In FAA Order No. 2011-6, the Administrator held that Complainant FAA had 

failed to prove that Helicopter Flite violated Section 135.25(b) of the Federal Aviation 

Regulations (FAR), 14 C.F.R. § 135.25(b). That regulation provides, in pertinent part, 

“Each certificate holder must have the exclusive use of at least one aircraft that meets the 

requirements for at least one kind of operation authorized in the certificate holder’s 

operations specifications.” The Administrator explained in the decision that a violation 

of Section 135.25(b) required evidence of operation by the certificate holder when it did 

not have an exclusive use aircraft.

 

1 Generally, materials filed in the FAA Hearing Docket (except for materials filed in 

security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. 

§ 13.210(e)(1). 

2 The Administrator’s civil penalty decisions, along with indexes of the decisions, the 

rules of practice, and other information, are available on the Internet at the following address: 

www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/AGC400/Civil 

_Penalty/. See 14 C.F.R. § 13.210(e)(2). In addition, Thomson Reuters/West Publishing 

publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS 

(TRANS library) and WestLaw (FTRAN-FAA database). For additional information, see the 

Web site.
2

The Complainant filed a petition for modification. In the petition, the 

Complainant requested that the Administrator:

1. Clarify that a carrier can be found to be in noncompliance with Section 135.25 

when it lacks an exclusive use aircraft even if the carrier does not conduct Part 

135 operations during that period;

2. Modify the order to explain the safety bases for the exclusive use requirement 

in Section 135.25;

3. Find that Helicopter Flite was in violation of Section 135.25(b) between 

February 12, 2008, and September 15, 2008, during which time it did not have 

an exclusive use aircraft; and

4. Hold that the agency may impose a civil penalty in appropriate circumstances 

for a violation of Section 135.25(b), although the agency is no longer seeking 

a civil penalty against Helicopter Flite in this case. 

(Petition at 17-18.)3 The Complainant wrote further that the agency is no longer seeking 

a civil penalty against Helicopter Flite.

Upon further consideration of the issues present, the petition is granted in part as 

explained below. The Complainant correctly pointed out that FAA Order No. 2011-6 

blurred the boundaries between the elements necessary to prove noncompliance with 

Section 135.25 and guidance regarding the imposition of an appropriate sanction, if any. 

Hence, FAA Order No. 2011-6 is modified to hold as follows:

 

3 Helicopter Flite filed a petition to quash the petition to modify FAA Order No. 2011-6, 

arguing that the Complainant failed to file a notice of appeal within 10 days of the issuance of the 

initial decision. The petition to quash is denied. The FAA had 30 days from the date of issuance 

of FAA Order No. 2011-6 in which to file a petition for modification under 14 C.F.R. § 13.234, 

plus an additional 5 days under the “mailing rule,” 14 C.F.R. § 13.211(e). Hence, the 

Complainant had a total of 35 days in which to file a petition for reconsideration or modification. 

The Complainant filed its petition in a timely fashion on July 13, 2011, 30 days after the issuance 

of FAA Order No. 2011-6. Contrary to Helicopter Flite’s argument, the Complainant was not 

required to file a notice of appeal within 10 days of the date of issuance of FAA Order No. 

2011-6 because the requirement to file a notice of appeal is limited to appeals from initial 

decisions issued by administrative law judges (see 14 C.F.R. § 13.233(a)) and does not apply to 

petitions to reconsider or modify a decision by the Administrator under 14 C.F.R. § 13.234. 
3

1. A finding that a certificate holder is not in compliance with Section 135.25(b) 

does not require proof that the certificate holder operated any aircraft during 

the time period in which it lacked an exclusive use aircraft;

2. A certificate holder which does not have exclusive use of at least one aircraft 

that meets the requirements for at least one kind of operation authorized in the 

certificate holder’s operations specifications is not in compliance with Section 

135.25(b);

3. Helicopter Flite was not in compliance with Section 135.25(b) between 

February 12, 2008, and September 15, 2008, when it did not have an exclusive 

use aircraft; and

4. No civil penalty is assessed.

II. The Case

Briefly, the pertinent facts in this case are as follows. Air Chopper, LLC, a 

holding company, leased a helicopter, identification number N407Z, to Helicopter Flite 

on November 12, 2007, giving Helicopter Flite exclusive use of N407Z. The FAA

approved the addition of N407Z to Helicopter Flite’s operations specifications on

January 30, 2008. At the time, Helicopter Flite only had exclusive use of this one 

helicopter. Under its operations specifications and under 14 C.F.R. § 13.25(b), 

Helicopter Flite was required to have the exclusive use of at least one aircraft that met the 

requirements for at least one kind of operation authorized in the certificate holder’s 

operations specifications. 

On February 12, 2008, Air Chopper sold N407Z to Pumpco, Inc., terminating the 

exclusive use lease with Helicopter Flite.4 On September 15, 2008, Helicopter Flite 

informed FAA inspectors5that it did not have exclusive use of N407Z.

 

4 The lease provided that “both parties understand and agree that in the event the said 

helicopter is sold by Air Chopper, LLC, then this Lease shall automatically terminate.” (Exhibit 

A-6.) As the Administrator wrote in FAA Order No. 2011-6, “[i]t may fairly be questioned 

whether a lease with a provision like this one satisfies Section 135.25(c)’s requirement for a 
4

Subsequently, the Complainant initiated an $11,000 civil penalty enforcement 

action against Helicopter Flite, alleging that Helicopter Flite had violated Section 

135.25(b). The Complainant’s argument for an $11,000 civil penalty was based upon 

sanction guidance which provided that a moderate or maximum civil penalty is 

appropriate for an operation contrary to operations specifications involving “likely 

potential or actual adverse effect on safe operation.” FAA Order No. 2150.3B, FAA 

Compliance and Enforcement Program, Appendix B, Figure B-1-c.6 After a hearing, the 

administrative law judge (ALJ) issued a written initial decision, holding that Helicopter 

Flite had violated Section 135.25(b) and assessing an $11,000 civil penalty.

Helicopter Flite appealed from the initial decision, arguing that there was no 

evidence that it had operated contrary to its operations specifications during the time 

period when it did not have an exclusive use aircraft, and, therefore, under the sanction 

guidance, it had not violated the regulation.7 In its reply brief, the Complainant continued 

to argue that an $11,000 civil penalty was appropriate. In FAA Order No. 2011-6, the 

 

written agreement giving the certificate holder sold possession, control and use for flight for at 

least 6 consecutive months.” FAA Order No. 2011-6, at 5, n.8.

5 The FAA inspectors were at Helicopter Flite’s hangar, conducting a conformity 

inspection of another helicopter, N407JG, which Helicopter Flite wanted to add to its operations 

specifications. N407JG was added to Helicopter Flite’s operations specifications in October 

2008. (Tr. 45.)

6 The guidance also provides that a minimum civil penalty is appropriate when an air 

carrier operates in technical noncompliance with its operations specifications.

7 Helicopter Flite conflated the regulations with the sanction guidance. The questions to 

ask in a civil penalty action are first, was there a violation of the FAR, and if so, what is the 

appropriate civil penalty under the sanction guidance. While the agency’s sanction guidance is 

comprehensive, it is conceivable that there may be a violation of the FAR for which there is no 

appropriate sanction guidance at which point, it will be necessary for an ALJ or the Administrator 

to determine what, if any civil penalty, should be assessed. Assuming the judicious exercise of 

prosecutorial discretion by agency attorneys, cases in which a violation is found but no civil 

penalty is appropriate should be very rare.
5

Administrator found that the Complainant had not proven that Helicopter Flite violated 

Section 135.25, and therefore, did not assess a civil penalty. 

In the petition to modify, the Complainant argued that Helicopter Flite violated 

Section 135.25(b) but conceded, without explanation, that a civil penalty is not 

appropriate in this matter. The Complainant wrote that there are “areas of confusion” in 

FAA Order No. 2011-6, pointing to alleged inconsistencies in language on pages 2 and 9-

10. On page 2 of that order, the Administrator wrote that no violation of Section 

135.25(b) had been proven, as follows:

... it is held that in the absence of evidence of operation, a certificate holder 

cannot be found to have violated Section 135.25(b). Consequently, the FAA 

failed to prove that Helicopter Flite violated Section 135.25(b) because the FAA 

did not introduce any evidence that Helicopter Flite or any other entity operated 

the helicopter in question8after the helicopter was sold.

 

8 The Complainant suggested that another problem exists with the passage on page 2, as 

follows:

We do not believe that the FAA Decisionmaker intended to suggest that one of the 

necessary elements of a Section 135.25(b) violation is that the actual aircraft “in 

question” (i.e., the aircraft listed on the operations specifications as the “exclusive use” 

aircraft) was operated by the Respondent carrier or by another operator. Whether the 

listed exclusive use aircraft is operated or not by anyone is not relevant to whether the 

Respondent carrier had an exclusive-use aircraft in its exclusive possession and control 

for the requisite period.

(Petition at 3.) The Complainant agrees, however, that “the use of nonexclusive use aircraft by 

the Respondent carrier itself, during a period when it no longer had an exclusive-use aircraft, 

might be relevant to whether enforcement action should be taken or not and might be relevant as 

to the nature of the enforcement action (e.g., certificate action versus civil penalty.)” (Petition at 

3.) 

There is a simple explanation for the Administrator’s reference to the aircraft “in 

question” [N407Z] on page 2 of FAA Order No. 2011-6. First, N407Z was the only aircraft listed 

on Helicopter Flite’s operations specifications, and the Administrator assumed that in the absence 

of contrary evidence, Helicopter Flite would not have operated an aircraft under Part 135 that was 

not listed on its operations specifications in violation of Section 119.5(g). Second, the FAA 

inspector testified, albeit confusingly and unconvincingly, that there is the potential for 

inadequate maintenance when an aircraft is not in the exclusive control of the certificate holder 

carrier. (Tr. 73-74.) The FAA did not set forth evidence or argument at the hearing to suggest 

that a violation of Section 135.25(b) may reveal safety concerns regarding operators generally or 

Helicopter Flite, in particular. 
6

(Initial Decision at 2.) The Complainant argued that the above-quoted statement on page 

2 is inconsistent with the Administrator’s statement on pages 9-10 of FAA Order 

No. 2011-6 that “it makes no sense” to enforce the requirement contained in Section 

135.25(b) by imposing a civil penalty unless there is evidence that the certificate holder 

continued to operate during the time period that it did not have exclusive use of at least 

one aircraft. The Administrator explained:

If there is no implicit operation requirement, then, for example, the FAA could 

assess a civil penalty once a certificate holder’s exclusive use aircraft was 

destroyed by a fire or natural disaster. Likewise, a certificate holder would not be 

able to sell its exclusive use aircraft and use the proceeds to purchase another

aircraft without being in violation of Section 135.25(b).

According to the Complainant, the Administrator in this passage on pages 9-10 seemed to 

find that the evidence established a technical violation of Section 135.25(b), but as a 

matter of enforcement policy, evidence of operation is necessary to support imposition of 

a civil penalty. The Complainant suggested that this passage could also be read as 

guidance regarding when other enforcement action would be appropriate, such as a 

“remedial” certificate action. According to the Complainant, however, evidence of 

operation is not necessary to prove that a commercial operator or air carrier violated 

Section 135.25(b). 

III. Analysis 

Section 135.25(b) sets forth a requirement for applicants for, and holders of,

certificates issued under Part 119 that authorize operations under Part 135. This 

requirement is that “[e]ach certificate holder must have the exclusive use of at least one 

aircraft that meets the requirements for at least one kind of operation authorized in the 

certificate holder’s operations specifications.” Section 135.25(b) is, by its wording, a 
7

prerequisite for issuance of a certificate under Part 119, entitling a commercial operator 

or air carrier to operate under Part 135. It is also a requirement to continue to hold such a 

certificate. An applicant for, or holder of, such a certificate must either have exclusive 

use of an aircraft as the owner or have a lease that gives it exclusive use of an aircraft for 

at least six consecutive months. 14 C.F.R. § 135.25(c). 

As worded, Section 135.25(b) does not contain an element of operation. If the 

drafters of this regulation had intended to include an element of operation, the regulation 

would have been worded “no certificate holder may operate unless it has the exclusive 

use of at least one aircraft ....”9 Further, if Section 135.25(b) is read as including an 

implicit operation component, then the FAA might not be able to deny an application for 

a certificate under Part 119 to an applicant seeking to operate under Part 135 which does 

not have an exclusive use aircraft.10

Operation without an exclusive use aircraft is a separate violation of the FAR. If 

the holder of a Part 119 certificate conducts operations under Part 135 in noncompliance 

with Section 135.25(b), then that operation would be a violation of 14 C.F.R. § 119.5(g). 

Section 119.5(g) prohibits operations contrary to a certificate holder’s operations 

specifications, and the requirements of Section 135.25(b) are incorporated in the 

operations specifications of certificate holders authorized to operate under Part 135.

 

9

For example, see Section 135.25(a), which provides: “... no certificate holder may 

operate an aircraft under this part unless that aircraft – (1) Is registered as a civil aircraft of the 

United States and carries an appropriate and current airworthiness certificate issued under this 

chapter; and (2) Is in an airworthy condition and meets the applicable airworthiness requirements 

of this chapter, .... 14 C.F.R. § 135.25(a).

10 The Complainant stated that Section 135.25(b) “can have a prophylactic safety effect 

when used to deny fly-by-night applicants for a part 119 certificate to conduct part 135 operations 

....” (Petition at 5). 
8

Depending upon the circumstances, a civil penalty action for operation contrary to 

operations specifications due to noncompliance with Section 135.25(b) may be 

warranted. 

The Complainant wrote that “in the absence of the operation of any aircraft ... it 

is not readily obvious why the FAA, and its predecessor agencies, decided that safety in 

air commerce required the adoption of this type of regulation.”11 (Petition at 4.) The

Complainant contended that “Section 135.25(b) can serve as an early-warning system 

that an existing part 135 operator that has no exclusive-use aircraft might have problems 

conducting a safe and compliant part 135 operation.” (Petition at 5.) It is hard to know 

what to make of this argument because such clues alone would not warrant punitive or 

remedial legal enforcement action, although they might justify investigation.

The Complainant discussed what it referred to as two “safety bases” for Section 

135.25(b): (1) “The Best-Use-of-FAA-Safety-Inspectors-for Certification-and Oversight 

 

11 To support its position that Section 135.25 is based upon safety considerations and 

does not include an operational component, the Complainant attached several historical 

documents, including a letter written by Brock Adams, the Secretary of Transportation, to 

Congressman Parren J. Mitchell in 1977 regarding an order of revocation issued against Aire 

Cardinal International. Aire Cardinal had lost its two exclusive use aircraft, no longer employed 

required full-time personnel, and was not in operation. Aire Cardinal appealed to the National 

Transportation Safety Board (NTSB), and the certificate action was pending before the NTSB at 

the time of this letter. In this action, the FAA alleged that Aire Cardinal violated Section 

121.155, which at the time, prohibited any supplemental air carrier or commercial operator from 

using any aircraft unless it had exclusive use of that aircraft, and required supplemental air 

carriers and commercial operators to have exclusive use of at least one aircraft. 14 C.F.R. 

§ 121.155 (1977). Adams wrote in the letter that the exclusive use requirement in then Section 

121.155, along with the requirement to retain key management and operations personnel, are 

“paramount safety considerations fully consistent with a commercial operator’s legal obligation 

to conduct operations with the highest degree of safety.” (Letter to Congressman Parren J. 

Mitchell dated July 13, 1977, at 2.) However, this claim seems exaggerated in light of the FAA’s 

decision to delete Section 121.155 in 1981, at which time the FAA explained in the Federal 

Register, “[t]his updating of the Federal Aviation Regulations eliminates, without any derogation 

in safety, an unnecessary economic burden which the present rule imposes on this segment of 

aviation.” 46 F.R. 35611 (July 9, 1981) (emphasis added). 
9

Theory;” and (2) “The More-Meaningful-Data Theory.” The first theory, as described by 

the Complainant, is premised upon the need to use scarce agency resources judiciously. 

Under this theory, Section 135.25(b) serves the public interest because the FAA’s safety 

inspectors are able to devote their efforts to certifying and overseeing viable businesses, 

rather than also having to certify and oversee applicants without the means and intent to 

stay in business more than briefly. The Complainant wrote, “[i]f too many fly-by-night 

operations got certificated, safety problems that could otherwise be identified and 

corrected by FAA inspectors after inspecting real, going-concern part 135 operators, 

might be missed.” (Petition at 13.) 

The “more-meaningful-safety-data theory,” as set forth by the Complainant in the 

petition, is premised on the assumption that FAA inspectors conducting oversight of a 

certificate holder would get a more meaningful picture of the operator’s maintenance 

practices and willingness to comply with safety rules if the operator or carrier had at least 

one exclusive use aircraft in at least 6-month increments.

These theories may justify the decision of the FAA and its predecessors years ago 

to promulgate Section 135.25(b) (and the earlier iterations of this rule). Further, these 

theories would support the denial of an application to a prospective operator under Part 

135 if the applicant did not have exclusive use of an aircraft. Depending upon the totality 

of the circumstances, these theories may support a remedial suspension or revocation 

action in cases of noncompliance with Section 135.25(b). It is unlikely that any punitive 

enforcement action – civil penalty or certificate suspension – would be warranted if a 

certificate holder lost its exclusive use aircraft through no fault of its own, such as due to 
10

theft, fire or a natural disaster, and if the carrier is working diligently to replace its 

exclusive-use aircraft. 

The Administrator expects the agency attorneys to exercise sound prosecutorial 

discretion when initiating enforcement actions. It is perturbing that in this case, the 

Complainant argued both before the ALJ and the Administrator that an $11,000 civil 

penalty was appropriate under FAA Order No. 2150.3B, Appendix B, Figure B-1-c. That 

guidance clearly did not apply because it pertains to operation contrary to operations 

specifications with likely potential or actual adverse effect on safe operation. Regardless, 

the Administrator makes no finding in this order regarding whether any civil penalty 

would be appropriate in this action because the agency attorney has taken that issue off 

the table. 

IV. Conclusion

FAA Order No. 2011-6 is modified as explained in this order. No civil penalty is 

assessed.

[Original signed by J. Randolph Babbitt]

J. RANDOLPH BABBITT

ADMINISTRATOR

Federal Aviation Administration