TH

May 9, 2

Docket S

U.S. Dep

1200 New

Washing

To whom

P

Associate

Sincerely

COZEN 

By: M

MWA 

HE ARMY AND N

2012 

Section 

partment of T

w Jersey Av

gton, D.C. 20

Re: 

m it may conc

lease accept 

es, L.L.C. for

y, 

O'CONNOR

Mark W. Atw

NAVY BUILDING

202.912.4800 

Transportatio

venue, S.E. 

0590 

Docket OS

cern: 

for filing a 

r an Exempti

R

wood

A PROFESS

G 1627 I STR

 1.800.540.1355

on 

ST-2012-005

corrected co

ion, filed in t

SIONAL CORPORA

REET, NW SUI

5 202.861.190

53 

opy of the ap

this docket A

ATION 

ITE 1100 WA

05 FAX www.c

ppendix to th

April 6, 2012

ASHINGTON, DC

cozen.com 

Dire

Dire

he Applicatio

. 

C 20006-1605 

Mark W. At

ect Phone 202-46

ect Fax 202-47

matwood@coz

on of Baker’s

twood

63-2513

78-2751

zen.com 

s Bay 
APPENDIX 

Section-by-Section Analysis of the Affinity Group 

(Pro Rata) Charter Rules, 14 CFR § 212.5

 The program of charter flights proposed by Baker’s Bay Associates conforms in 

many respects with the charter rules established for affinity group (pro-rata) charters. In 

certain respects, however, some relief from the rules is required to enable these 

services to be made available to Club members. The following analyzes how the 

proposed operation will conform to these provisions. 

Section 212.5(a)

 Section 212.5(a) requires that the aircraft be chartered by an organization, no 

part of whose business is the formation of groups for transportation or solicitation or 

sale of transportation services, for the purpose of providing air transportation to its 

members and their immediate families. Baker’s Bay was specifically formed as, and 

remains, a resort community, and as required by the first part of Section 212.5(a) is not 

engaged in the business of forming groups for transportation or the sale of 

transportation services. The proposed charters are simply an ancillary service the Club 

wishes to make available for the convenience of its members. 

 Additionally, as mandated by the second part of Section 212.5(a), Baker’s Bay 

intends specifically to provide transportation to its members and their families. Baker’s 

Bay, however, would like to extend these flights to guests of its members, which 

necessitates the Department’s waiver of the member/family limitation of Section 

212.5(a). Examples of guests would include household employees of members, 

relatives of members other than spouses, children and parents, and personal and family 

friends of members. Members who are managers of Baker’s Bay may also invite 

prospective members interested in viewing the properties as their guests. No purchase, 

trade or other form of compensation from a guest will be permitted. 

 In short, there will be no relevant distinction between a member’s immediate 

family and his or her guests, such that this waiver request is in accordance with the 

intent behind Section 212(a) – that the charter transportation be limited to members and 

those closely aligned with them. 

Section 212.5(b)

 Section 212.5(b) provides that the charter must be organized by the organization 

itself or by an agent (not a principal) for the organization or the carrier. This 

requirement is met, since Baker’s Bay Associates will be directly organizing the charters 

itself. 
 2 

Section 212.5(c)

 Section 212.5(c) mandates that no solicitation, sales, or participation may take 

place beyond the bona fide members of the organization and their immediate families 

(spouse, children and parents). It also requires that the permitted solicitation materials 

include a specified disclosure. These requirements are satisfied, except that under the 

requested waiver, passengers on the flights would include guests of Club members 

traveling at no charge to the guests. 

 As explained above, guests would be closely aligned with, and invited by, 

members. Further, no purchase, trade or other form of compensation from any guest 

will be permitted, so that as with the Section 215.5(a) waiver request, there will be no 

relevant distinction between a member’s immediate family and his or her guests. To the 

extent information materials may be provided to members regarding the flights, the 

materials will include the notice specified in Section 212.5(c). 

Section 212.5(d)

 Section 212.5(d) defines bona fide members of the organization as those who 

have not joined the organization merely to travel on a charter flight and who have been 

members of the organization for at least a minimum of six months prior to the 

commencement of a particular flight. These requirements are satisfied, except that 

Baker’s Bay requests that all of its members be allowed to participate in the flights, 

regardless of the member’s length of initial membership. Individuals join Baker’s Bay at 

a substantial price in order to purchase either land or homes within the Baker’s Bay 

community, or, in the case of the limited number of “national” members, to take 

advantage of the Club’s unrivalled recreational opportunities. They clearly have not 

joined the Club simply to procure travel on the proposed charter flights, which is 

presumably the purpose behind the minimum six-month membership requirement of 

Section 212.5(d). Baker’s Bay accordingly requests that the Department waive the 

requirement under Section 212.5(d) that its charterers’ members be Baker’s Bay 

members for at least six months prior to being able to participate in the charter flights. 

Section 212.5(e)

 Section 212.5(d) requires that the charter price due the direct air carrier be 

prorated equally among the charter passengers, excluding children under twelve years 

of age. This requirement is satisfied in that the charter price will be prorated equally 

among Club members participating in the flight, except that the number of family 

members and guests of a particular Baker’s Bay member traveling on the flight will be 

factored into the charter price for that particular member. Accordingly, a waiver is 

necessary from Section 212.5(e) in order to employ this pricing formula. In addition, 

Baker’s Bay accepts to bear, on occasion, a substantial portion of the charter price. 

This will not require any waiver relief, but will simply result in the flights constituting 
 3 

mixed charters as defined in Section 212.2, rather than affinity (pro rata) charters. 

Further, the Club expects to calculate its costs, for purposes of allocation amongst 

participants, on a periodic or seasonal basis, rather than flight-by-flight. Since loads on 

any given flight may vary considerably, and many of the same members will be 

participating in multiple flights, it would be unwieldy, and unfair, to charge different 

amounts for different flights. Thus, adjustments may be made going forward, after it is 

ascertained what the actual costs were per-participant. 

 

Section 212.5(f)

 Section 212.5(f) requires that an air carrier make reasonable efforts to assure 

that the charter passengers meet the eligibility requirements of Section 212.5, and that 

the carrier obtain and keep on file for two years a certification from the organization that 

all passengers are eligible for transportation under Section 212.5. In terms of the first 

mandate, the eligibility requirements of Section 212.5 will be satisfied as modified 

through this requested waiver. Regarding the second requirement, Baker’s Bay will 

maintain records of all its members who use the charter services, and will be happy to 

provide certification of their eligibility if the Department so requires. 

Section 212.8 

 Section 212.8 contains various provisions for protecting charter passengers’ 

payments. The cost of the charter flights will be paid by the members of Baker’s Bay on 

a “per flight basis” to the Club, and any amounts needed to cover the cost of the flights 

not provided by passengers will be paid by the Club itself. The direct carrier will receive 

one payment from Baker’s Bay for each flight which will be placed in its DOT approved 

escrow account. Baker’s Bay therefore requests that the Department waive the 

customer payment protection requirements contained in Section 212.8 for these flights 

beyond the requirement that all funds be place in the carrier’s escrow account as is 

normal for single entity/affinity charters. 

 As Baker’s Bay is a close-knit membership organization, whose members pay 

very substantial initial fees and dues, there is no risk to passenger payments as there 

might be with public charters or bookings of loosely affiliated organizations. It is 

accordingly in the public interest to waive the customer payment protection 

requirements of 14 CFR Section 212.8 and avoid the associated expenses imposed 

therein.