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Brcnl R. Cole 

Law Offices of Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Attorneys for Smith Cable Systems, Inc. 

RECEIVED 

SEP - 7 2011 

HEARING DOCKei 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

In the matter of: 

Smith Cable Systems, inc. 

NATIONAL TRANSPORTATION SAFETY BOARD o^p 

rn-^ m 

) 

) FAA Docket No. CPO9AfcOO0f'2 

) 

) DMS NO. FAA-2009-0976 

APPLICATION FOR THE AWARD OF ATTORNEY FEES AND 

EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT OF 1980 

Smith Cable Systems, Inc. ("Smith Cable"), by and through counsel the Law 

Offices of Marston & Cole, P.C, makes application for the award of attorneys fees and 

costs associated with Notice of Proposed Civil Penally tiled by the Federal Aviation 

Administrator ("Administrator"). The applicant was the prevailing party in this litigation 

and the position taken by the Administrator was not substantially Justified in accordance 

with the facts or the law. For the reasons set forth below, the applicant requests that an 

award against the FAA in the amount of $17,019.09. 

I. FACTS 

The Administrative Law .Judge has previously heard testimony is familiar with the 

facts of this case. The events occuiTcd on or about September 15, 2008. Later Smith 

Application for the Award of Anomey Fees and 

Expenses under the [Iqual Access lo Justice Act of 1980 

//;/•(.'.- Smith CaNuSvsfenis. Inc.. DMS No. FAA-2009-0976 

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Cable received a Letter of Investigation later that month. Tr. at 180-2. On December 3, 

2008, the Administrator filed a Notice of Proposed Civil Penalty proposing a civil penalty 

in the amount of $60,000 for allegedly offering hazardous materials for transportation 

without proper labeling. See Exhibit A. The parties met for an informal conference on 

March 10, 2009. No resolution between the parties was reached. 

On April 22, 2009, Respondent's counsel sent a letter to FAA counsel outlining 

the weaknesses of the government's case. See LxJiibil B. This letter noted the obvious 

evidentiary problems with the case including the fact that Investigator Dielz failed to 

interview the transportation company that actually took the respondent's property to 

Alaska Air Cargo for shipment. After noting all the evidentiary problems, the letter 

states, "[i]n light of these facts, it would seem that the FAA would have a very difficult 

time proving by a preponderance of evidence that Smith Cable delivered hazardous 

materials for air transportation without appropriate notification or marking." Then again 

on August 31, 2009, Respondent's counsel delivered another letter to FAA noting the 

problems and providing the sworn aftldavii of Todd Linne, one of the witnesses at trial, 

attesting to the fact that their crew had not shipped hazardous materials. The letter points 

out that Mr. Fiaiek concurred with the facts set out in this letter. This letter plainly states 

that insufficient evidence exists to support the claims of wrong doing by the government 

to the necessary standard. See Exhibit C. 

In response to these letters, the government disregarded these admonitions and 

simply inoved forward with the investigation. Investigator Dielz testified he interviewed 

Application for the Award of Attorney Fees and 

Expenses under the Fqual Access to Justice Act of 1980 

Jure: Smith CableSysieim. Inc.. DMS No. FAA-2009-0976 

Page 2 of 8 
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the transportation company workers on September 4 and 14, 2009 respectively. On 

October 1, 2009, the Administrator filed its Final Notice of Proposed Civil Penalty which 

proposed the same $60,000 civil penalty for the alleged violations. See Exhibit D. Smith 

Cable entered its Request for Hearing on October 15, 2009, and the Administrator filed 

its formal Complaint on October 20, 2009. See Exhibits E and F. In later discussions, 

FAA counsel informed Respondent's counsel that he would not accept a settlement or 

dismiss the ease and he intended to move forward with the case against Respondent in 

order to educate the Hazmat investigator on the dedciencies of his case. On November 

18, 2009, counsel for Respondent again wrote FAA counsel imploring him to dismiss the 

case against the Respondent. See Exhibit G. This letter points out the Respondent 

viewed the rationale for pursuing this case in spite of the evidentiary obstacles as 

improper with "signitlcant adverse consequences against my client in defending against 

this meriiless case.'" The letter noted the government would ultimately fail to prove its 

case and the Respondent would seek actual and full attorney fees and costs under the 

provisions of the Equal Access to Justice Act. 'fhis request was ignored. 

An Administrative Flearing was held June 25, 2010 at 9:00 am before the 

Administrative Law Judge Goodwin. The second half of the hearing was not held until 

February 8, 2011. After the parties submitted written summaries of their respective 

positions, a written decision labeled "Initial Decision of Administrative Law Judge 

Richard C. Goodwin" was issued, fhis decision found that the FAA had failed to prove 

Application for the Award of Attorney Fees and 

Expenses under the Equal Access to Justice Act o f 1980 

In re: Smith Cable Systems. Inc.. DMS No. FAA-2009-0976 

Page 3 of 8 
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Respondent committed any violations and dismissed the Complaint. The FAA has 

determined it will not appeal this decision. 

As the letter dated November 18, 2009 pointed out, this was a meritless case that 

should never have been brought. As a consequence. Respondent seeks full fees and costs 

under the EAJA. 

n. APPLICABLE LAW 

The Equal Access to Justice Act. 5 U.S.C. §504, provides for the award of 

attorney fees and other expenses to eligible individuals who arc parties lo certain 

administrative proceedings before the National Transportation Safety Board. The 

Respondent is an eligible party. See Exhibit 1. 49 CFR § 826 sets out the implementation 

of rules governing making awards under this statute. 49 CFR § 826.5 sets the standard 

for making awards; 

(a) A prevailing applicant may receive an award for fees and expenses 

incurred in connection with a proceeding, or in a significant and discrete 

substantive portion of the proceeding, unless the position of the agency 

over which the applicant has prevailed was substantially justified. The 

burden of proof that an award should not be made to an eligible prevailing 

applicant is on the agency counsel, who may avoid an award by showing 

that the agency's position was reasonable in law and fact. 

Under 46 CFR § 826.6(a), awards are based on rates customarily charged by persons 

engaged in the business of acting as attorneys, even if the services were made at a 

reduced rate to the applicant. An award may also include the reasonable expenses of an 

attorney if the attorney ordinarily charges separately for such expenses. 

AppMcation for the Award of Attorney Fees and 

Expenses under the Equal Access to Justice Act of 1980 

hire: Smith Cable Systems. Inc.. DMS No. FAA-2009-0976 

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The Respondent is clearly the prevailing party in this litigation. It contested the 

Final Notice of Proposed Civil Penalty, denied liability in its Answer to the Complaint 

and requested a hearing on the matter. The hearing officer ruled in Respondent's favor 

and dismissed the complaint. There can be no argument on who the prevailing party is in 

this case. 

In order to determine whether fees and costs are awardable under the Equal 

Access To Justice Act ("EAJA"), there must first be a finding that the government was 

not substantially justified in pursuing its complaint. 5 USC § 504(a)(1); Application of 

Smitfh NTSB Order No. EA-3648 at 2 (1992). The United States Supreme Court has 

defined the term "substantially justified" to mean that the government must show that its 

position is reasonable in both fact and law. Pierce v. Unden\'ood, 487 US 552, 565 

(1988); see also Application US Jet, Inc., NTSB Order No. EA- 3817 (1993). Such a 

determination of the reasonableness involves an initial assessment of whether sufficient, 

reliable evidence exists lo pursue the matter. Catskill Ainvays, Inc., 4 NTSB 799, 800 

(1983) (st-ating that Congress intended the EAJA awards lo dissuade the government from 

pursuing weak or tenuous cases.) 

In this case, the facts do not support a finding that the FAA was substantially 

justified in pursuing these claims against the respondent. No less than three times, 

counsel for Respondent wrote to counsel for the FAA and warned that the evidence did 

not support the claims, and the government would not win at a hearing on the issues. In 

response to this, the government ignored the warnings and continued to try to create a 

Application for the Award of Attorney Fees and 

E.xpenses under the Equal Access to Justice Act of 1980 

hire : Smith Cable Systems. Jnc , DMS No. FAA-2009-0976 

Page 5 of 8 
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case where none existed. Investigator Dietz tried to talk to the person who transported 

the items and was unable to do so. The government ignored the statements of the 

employees denying shipment of hazardous materials, even though one was signed under 

oath. When confronted with this evidence, counsel for the FAA refused to dismiss the 

ease and simply stated that going forward to hearing would teach the investigators to do 

their jobs better in the future, fhe Respondent should not have to pay an attorney 

$15,815 dollars to defend itself against a meritless lawsuit in order to "teach" government 

inspectors how to do a better job. If an investigator docs a poor job, the duly of the 

attorney is to dismiss the ease, not force a public litigant to defend itself against a 

proposed fine of $60,000 in a meritless case. The FAA clearly knew the problems their 

case faced from the beginning. For whatever reason, they simply chose to ignore these 

problems and proceed ahead. The FAA did so at its own peril—that is, it did not have 

"substantial justification" to pursue this case, and it should therefore be required to pay 

the respondent's attorney fees and costs. 

As noted in the attached affidavit of counsel with attachments supporting the 

claims, the total fees incurred were $15,815 and total costs incurred were $1,209. See 

Affidavit of Counsel. Counsel for Respondent charged $200 per hour to provide 

representation in this matter. 1 he basis for the total fees and costs are set forth in the 

monthly bills based on time slips which were prepared simultaneously with the work 

performed. The Respondent is requesting full fees because of the need to send a message 

to the FAA that it should not be pursuing weak or tenuous cases. See Catskill Airways. 

Application for the Award of Anomey Fees and 

E.xpenscs uncier ihe Equal Access to Justice Act of 1980 

!nre: Smith Cable Systems. Inc., DMS No. FAA-2009-0976 

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Mr., 4 NfSB799, 800 (1983). That is exactly what the FAA did in this case despite 

numerous written and spoken warnings from counsel for Respondent to the contrary. In 

addition, it is outrageous that the FAA counsel simply ignored the facts in front of him 

and pursued this cause of action simply to "teach the investigators" a lesson at the 

expense of the Respondent. This is truly the type of improper discretion that should be 

frowned upon and penalized to ensure it does not happen in the future. 

For these reasons, the Respondent requests full attorney fees and costs in the 

amount of $17,019.09. No other award will sufficiently ensure that this type of behavior 

will not occur in the future. 

DATED this / ^ day of September, 2011. at Anchorage, Alaska. 

LAW OFFICES OF MARSTON & COLE, P.C. 

Attomcvs for Smith Cable Svstems. Inc. 

Bv: / Vl ) 

n 

Brent R. Cole 

AK State Bar No. 8606074 

-Application for the Award of Attorney Fees and 

Expenses under the Equal Access lo Jusiice Act of 1980 

/nre: Smith Cable Systems. Inc. DMS No. FAA-2009-0976 

Page 7 of 8 
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Ch:R riFICAT K OK SLRVICt : 

This is to certify ihai uii this ^-A/C 

20! 1. ;i iruc and correct copy of ihc foregoing docuineni 

WIJS 

Mailed 

day o( Sepleiiiber, 

I land-deiivcrcd 

D i'a-Ncd 

to ihe following: 

Original and one cofiy: 

Ailenlioii: lleariiig Dockel Clerk. AGC-'130 

Wilbur Wright liiiilding—Suite 2WI0(10 

Federal Aviation Administration 

800 Independence Avenue. SW 

Washington, D C 20591 

One cofiy: 

Craig Wni. Black. Fsq 

OfUcc of ihc Regiotial Counsel 

222 VVest7lh Avenue. #/l4 

Anchnratic. A K 99513-7587 

Fax: 271-2800 

The Honorable Kiehiird C. Goodwin 

Office o f Hearings. M-20 

U.S. Ocpadnicnl of'Iransportaiion 

Fast liuilding GroutidEimTT'Rooin £12-320 

1200 New .Icrsev^Jrtvnuc. S.F. 

Washington, 

Fa.x; 202jaff6-: 

Application for (he Award of Attorney Fees and 

E.xpenses under the Equal Access to Justice Act of 1980 

hire. Smith Cable Systems. Inc., DMS No. FAA-2009-0976 

Page 8 of 8 
(d 

U. S. Department Alaskan Region 222 W. 7th Avenue # 14 

of Transportation Office of the Regional Cojnsel Anchorage, Alaska 99513-7587 

Federal Aviation PH (907) 271 -5269 

Adrainbtration FAX: (907)271-2800 

CaseNo.2008AL70008l 

DEC - 3 2008 

CERTIFIED MAIL—RETURN RECEIPT REQUESTED 

Ronald G. Smith, President 

Smith Cable Systems, inc. 

P.O.Box 111565 

Anchorage. AK 99511 

NOTICE OF PROPOSED CIVIL PENALTY 

It appears on the basis of our report of investigation that: 

1. On or about September 10, 2008, Smith Cable Systems, Inc., (Smith Cable Systems) 

knowingly offered to Alaska AirliBOS-a-ahi'pment containing hazardous material for 

transportation by air on a gas^^ger aircraft fro'iSiRKi^hikan, Alaska, to Fairbanks, Alaska. 

2. The above shipment ^\S?as offered to Alaska Airlines on Air Waybill No. 027 7471 2632. 

3. The above shipmerit consisted of 24 pieces, and is described^on the air waybill as "Tools." 

The air waybill is'^marked to indicate that the shipment does rfot contain dangerous goods. 

4. Included in the aBove shipment were two 16.4-ounce cylinders^ of Coleman Propane Fuel and 

a 12-ounce can ql;Bremium D6cor spray paint. • 

5. Coleman Propane'^:Uel is classified.as a hazardous material-.uVider § 172.101 of the United 

States Department of Jrahsportation Hazardous Materials^Rtgulaiions (HMR), 49 C.F.R. 

Chapter I, Subchaptets.C (Parts 171-80). Its proper shij^ping name is "Petroleum gas, 

liquefied." It is in hazaTd^elass 2.1, and has an as si gne^identifi cation number of UN 1075. 

Column 9A of the § 172.1 Of ^toble provides that,it'is'forbidden on passenger aircraft. 

Exhibit A, Page 1 of 4 
6. Premium D6cor spray paint is classified as a hazardous material under the FfMR. Its proper 

shipping name is "Aerosols, flammable." It is in hazard class 2.1, and has an assigned' 

identification number of UN1950. 

7. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration 

for Dangerous Goods. 

8. Smith Cable Systems offered the above-described shipment of hazardous material for 

transportation by air when the shipping papers did not contain the proper shipping name of 

each hazai'dous material; the hazard class of each hazardous material; the assigried 

identification number of each hazardous material preceded by "UN" or "NA," as applicable; 

the total quantity by weight or volume of each hazardous material covered by the description; 

and the basic description of each hazardous material shown in sequence. 

9. Smith Cable Systems offered the above-described hazardous material for transportation 

without including in the shipping papers an emergency response telephone number as 

prescribed in Subpart G of Part 172 of the'HMR. 

10. Smith Cable Systems offered the above-described hazardous material for transportation by 

air when it had not certified that each hazardous material was in accordance with the HMR 

by printing the certification set forth in § 172.204(a) or § 172.204(c)(1) of the HMR on the 

shipping papers. 

11. Smith Cable Systems offered the above-described hazardous material for transportation by 

air without providing two (2) copies of the required shipper's certification. 

12. Smith Cable Systems offered the above-described hazardous materials for transportation by 

air when the boxes were not marked or labeled in any manner that would indicate the 

hazardous nature of their contents. 

13. Smith Cable Systems offered the above-described shipment for transportation by air when 

the shipment was not marked with the pipper shipping name and the assigned identification 

number of each hazardous material contained in it, and the required markings in English 

were not printed on or affixed to the surface of the shipment. 

14. Smith Cable Systems offered the above-described shipment for transportation by air when 

no "Flammable gas"or "Cargo aircraft only" labels were affixed to the shipment. 

Based on the foregoing facts and circumstances, Smith Cable Systems violated the following 

Department of Transportation Hazardous Materials Regulations: 

(a) Section 171.2(e) in that Smith Cable Systems offered hazardous material for 

transportation in commerce within the United States when each material was not 

properly classed, described, packaged, marked, labeled, and in condition for shipment 

as required or authorized by applicable requirements of the HMR, or an exemption, 

Exhibit A, Page 2 of 4 
special permit, approval, or registration issued under the HMR or Subchapter A of 

Chapter 1 of Title 49, Code of Federal Regulations. 

(b) Section 172.200(a) in that Smith Cable Systems offered hazardous material for 

transportation without properly describing each material on the sliipping papers. 

(c) Section 172.201(d) in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers an emergency response 

telephone number as prescribed in Subpart G of Part 172 of the HMR. 

(d) Section 172.202\a)(l) in that Smith Cable Systems offered hazardous material for 

transportation without including the proper shipping name in the shipping papers. 

(e) Section 172.202(a)(2) in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers the hazard class or division 

prescribed for the material. 

(f) Section 172,202(a)(3) in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers the identification number 

prescribed for the material. 

(g) Section 172.202(a)(5) in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers the total quantity of the 

hazardous material covered by the description. 

1 

(h) Section 172.203(f) in that Smith Cable Systems offered hazardous material for 

transportation by air without including in the shipping papers a statement indicatiiig 

that the shipment is within the limitations prescribed for cither passenger and cargo 

aircraft or cargo aircraft only. 

(i) Section 172.204(a) in that Smith Cable Systems offered hazardous material for 

transportation without the required shipper's certification. 

G) Section 172.204(c)(2) in that Smith Cable Systems offered hazardous material to an 

aircraft operator for transportation by air and did not provide two copies of the required 

shipper's certification. 

(k) Section 172.204(c)(3) in that Smith Cable Systems offered a hazardous material for 

transportation by air without including the statement, "I declare that all of the 

applicable air transportation requirements have been met." 

(1) Section 172.300(a) in that Smith Cable Systems offered hazardous material for 

transportation when the shipment was not marked with the proper shipping name and 

identification number for its contents. 

Exhibit A, Page 3 of 4 
(m) Section 172.301(a) in that Smith.Cable Systems offered for transportation a hazardous 

material in a non-bulk package when the package was not marked with the proper 

shipping name and identification.number (preceded by "UN" or "NA," as appropriate) 

for the material as shown in the § 172.101 Table. 

(n) Section 172.400(a) in that Smith Cable Systems offered a shipment containing 

hazardous material for transportation when the shipment was not properly labeled as 

specifiedin§ 172.101 and subpart E of part 172 of the HMR. 

(o) Section ] 72.604(a) in that Smith Cable Systems offered a shipment containing 

hazardous material for transportation and failed to provide an emergency response 

telephone number, including the area code or international access code, for use in the 

event of an emergency involving the hazardous material. 

(p) Section 173.27(b)(1) in that Smith Cable Systems offered material for transportation by 

air aboard a passenger aircraft when Column 9a of the § 172.101 table indicates the 

material offered is forbidden in transportation on passenger-carrying aircraft. 

In accordance with Section 5123(a)of Chapter 51, Title 49 of the United States Code of 

Transportation, [49 U.S.C. § 5123(a)], Smith Cable Systems is liable for a civil penalty of not 

less than $250 ($450 for training violations), nor greater than $50,000 (or $100,000 for violations 

resulting in death, serious illness, oi: severe injury to any person, or substantial destruction of 

property), for each violation of the regulations. Afterreviewing our investigative file, we 

propose to assess a civil penalty in the amount of $60,000.00 for these violations. 

Enclosed is information on Smith Cable Systems* options in responding to this notice. The 

options include participating in an informal conference with an FAA attorney and submission of 

information to the FAA for consideration. Smith Cable Systems must submit, in writing, its 

choice of the alternatives explained on the enclosed information form, on or before 30 days after 

it receives this Notice. If Smith Cable Systems fails to submit its choice within that time, it will 

have no further right to participate in the informal procedures. 

Please direct all communication in this matter to the undersigned, Office of Regional Counsel, 

AAL-7, 222 West 7*" Avenue, Box 14, Anchorage, Alaska 99513-7587. 

HOWARD L. MARTIN, JR 

Regional Counsel 

By: 

Glenn H. Brown 

Senior Attomey 

Enclosures: Information Sheet 

Reply Form 

FAR 13.16 and Subpart G of Part 13 

Exhibit A, Page 4 of 4 
LAWOrpICESOF 

MARSTON & COLE, P.C. 

ERIN B. MARSTON HI N STREET. SUITE 108 

TELEPHOftE (907) 2T7-M01 

BRENT R. COLE ANCHORAGE, ALASKA 99501-IlJS 

TELECOPIER (907) 177-8003 

cole(5iPObon.»l«ska.iict 

April 22, 2009 

VIA FACSIMILE: (907) 271-2800 

Glcim Brown, Esq. 

FAA Legal Department 

222 West 7th, #14 

Anchorage, AK 99513 

Re: Smith Cable Systems- FAA investigation 

Your File No.: 2008AL700081 

OurFileNo.: 1092.001 

Dear Glenn: 

Thank you for meeting with me recently regarding the FAA's proposed civil fine against 

my client. Smith Cable Systems, Inc. ("Smith Cable"). I have done some further investigation of 

this matter and believe you should consider meeting with me again to discuss the propriety of 

pursuing this claim against my client. Since we met, I have interviewed employees of Smith 

Cable Systems who were responsible for transporting company equipment out of Ketchikan to 

Anchorage and Fairbanks, the manager of Aerl, the company who transported my client's 

property to Alaska Air Cargo, and Tim Cook,' the person who wrote to the report to FAA 

regarding the discovery of propane cylinders. 

My investigation leads me to believe that it is far from clear that my client is responsible 

for delivering a hazard substance for air transportation without proper notification. This 

investigation has revealed the following: 

1) My diem completed a job in Ketchikan and was scheduling to transfer its 

equipment on to Fairbanks at or near the beginning of September 2008. An employee for Smith 

Cable arranged for certain items to be picked up by Aerl, a small company in Ketchikan that 

picks up freight in town and delivers it across the bay on the ferry to Alaska Air Cargo. This 

same employee also artanged for a truck and trailer and certain other equipment to be shipped 

via the Alaska Marine Highway to avoid hazmat registration issues. This is confirmed in a 

' After speaking initially wiih Mr. Cook, he decided that he felt uncomfortable and wanted to talk to bis supervisor 

before proceeding. He later called mc back and left a message that I would have to contact his supervisor for further 

information. I have left several messages with his supervisor, but he has not called me back. 

Exhibit B, Page 1 of 3 
Glenn Brown, Esq. 

Page 2 of 3 

April 22, 2009 

memorandum written several days prior to the attempted shipment. It was my client's 

expectation that none of the hazardous materials were to be shipped via aircraft from Ketchikan. 

2) On the morning scheduled for pickup, employees for Smith Cable prepared two 

pallets of tools, luggage, and other equipment for pickup by Aerl. No hazardous materials were 

packaged on these pallets. These pallets were available for pick up when the Aerl employee 

arrived that morning. Unfortunately, he had no way of lifting the two pallets up and placing 

them in the bed of the truck. For that reason, both Smith Cable employees had to unstrapped all 

the materials on the pallet and individually load the equipment and tools in the back of the truck. 

Both employees were unhappy about having to undue what they had been working on the past 

several hours and have a vivid recollection of this process. 

3) Both employees were familiar with hazmat requirements and would not have 

placed the propane cylinders with this load. A manager with Aerl confirmed that her staff knows 

not to accept or deliver propane cylinders to Alaska Air Cargo without proper notification. 

4) The Aeri manager could not tell me who the employee was who picked up this 

particular load because of their high rate of turnover. No Smith Cable employees were present 

when this load was delivered lo Alaska Air Cargo. The manager remembers being called by 

Alaska Air Cargo because the air way bill had not been signed. She believes she contacted 

Smith Cable and confirmed there were no hazardous materials on board. She then signed the air 

way bill that was presented to Alaska Air Cargo and which you have provided to us in discovery. 

5) Smith Cable employees were not involved in placing their equipment on a pallet 

at Alaska Air Cargo. There is no information of who did this, when they did this, and where they 

picked up the materials for the pallet. We have been informed that a pallet containing Smith 

Cable equipment was transported to be loaded aboard a jet leaving Ketchikan, but was later' 

returned for reasons imknown. It was during the time that this pallet was being returned that two 

16.4 ounce propane cylinders and one can of paint were discovered urunarked. Apparently, no 

pictures were taken of this event, and none of the items were preserved for fingerprinting. I am 

not aware that there were any identification marks on the seized items that would indicate they 

belonged to Smith Cable. 

6) Smith Cable employees did not use or purchase any spray paint during their work 

in Ketchikan. 

In light of these facts, it would seem that the FAA would have a very difficult time proving by a 

preponderance of evidence that Smith Cable delivered hazardous materials for air transportation 

without appropriate notification or marking. 

As I indicated in our meeting, that the FAA's original proposal contemplating a $60,000 

fine was extremely punitive and out of line with the actual harm in this particular case and the 

strength of the FAA's case. We discussed a reduced payment of $20,000. 1 asked if there were 

Exhibit B, Page 2 of 3 
Glenn Brown, Esq. 

Page 3 of 3 

April 22, 2009 

any similar types of cases with similar events and similar proposed fine so that I could convince 

my client that this proposed settleinent was reasonable. I am looking forward to receiving this 

information from you. 

1 will tell you, however, that I have been discussing this proposed fme with my partner, 

Erin Marston. He reminded me of a settlement that he entered with you under facts that, on their 

face, are significantly more disturbing than here. His case involved the shipment of an engine 

that contained gasoline. The shipper apparently forgot to drain all the fijel and, as a resuh, the 

plane carrying passengers was forced to turn around and land after the passengers complained of 

gasoline odors coming from the cargo area. In that case, an equally dangerous hazardous 

material was not declared, a shipment actually occurred, passengers were actually put in danger 

and discomfort, and significant costs were incurred in remming a return to the airport to remedy 

the situation. My understanding is that under those circumstances, the FAA agreed to a fine of 

$10,000 to be paid over a period of years. 

My client has learned a significant and valuable lesson, and I expect that it is unlikely an 

event like this will repeat itself Please contact me after you have had a chance to review this 

letter to discuss the possibility of another meeting. As always, thank you again for your time and 

consideration in the handling of this matter. 

Very truly yours, 

MARSTON & COLE, P.C. 

--^^CL 

Brent R. Cole 

BRC: 

cc; Client 

Exhibit B, Page 3 of 3 
L>W OFFICtS OF 

MARSTON & COLE, P.C. 

ERIN B. MARSTON 811 N STREET, SUn K 208 

TELEPHONE (M?) 177-8001 

BRENT R. COl.E ANCHORAGE, ALASKA 99501-2136 

TELECOPIER (907) J77-R0OI 

colefijpQbOi.alanka.nfi 

August 31, 2009 

V U FACSIMILE: (907)271-2800 

Glenn Brown, Esq. 

FAA Legal Department 

222 West 7th, #i4 

Anchorage, AK 99513 

Re: Smith Cable Systems- FAA investigation 

Your File No.: 2008AL700081 

OurFileNo.: 1092.001 

Dear Glenn: 

I received your telephone message and will call you after you have had a chance to review this 

letter. As I indicated in our previous correspondence, our investigation has revealed that Smith Cable was 

not responsible for packaging any of the items on the pallet that is at issue. I spoke with Todd Linne, one 

of the individuals responsible for packing Smith Cable Systems, Inc.'s materials for shipment from 

Ketchikan to Fairbanks. A copy of Mr. Linne's statement about what happened with those materials is 

attached. We also contacted Tom Fiaiek who was working with Mr. Linne at the time. Although we 

spoke with him and sent him a similar statement for his signature, he has never sent his signed statement 

back to us. This is why I have been delayed in responding to you. 

As I noted earlier, the FAA cannot prove by a preponderance of evidence that Smith Cable 

delivered hazardous materials for air transportation without appropriate notification or marking. The 

items for transportation were placed on the pallet by either Aerol employees or Alaska Air Cargo 

employees, not Smith Cable employees. It was an Aerol employee who signed the airway bill, not a 

Smith Cable employee. There are no markings or fingerprints that link these hazardous substances to 

Smith Cable. Under these circumstances, it is difficult to understand how the FAA could prevail at a 

hearing. If I am mistaken, please contact mc and explain your thoughts. 

Thank you for your patience. If 1 can be of further assistance, please feel free to contact me. 

Very truly yours, 

MARSTON & COLE, P.C. 

Brent R. Cole 

BRC: 

cc: Client 

Enclosure 

Exhibit C, Page 1 of 4 
AFFIDAVIT OF TODD LINNE 

STATE OF MISSOURI ) 

) ss 

COUNTY OF TgVA S ) 

Todd Linne, being first duly sworn, deposes and says: 

1. In the summer of 2008» I was employed by Smith Cable Systems, Inc. 

("Smith Cable "). Smith Cable contracted to perform work in Ketchikan, Alaska, that 

summer. I have worked for Smith Cable for / years. During that time, I was made 

aware of and familiar with rules and regulations applicable to the transportation of 

hazardous materials on aircraft ("Hazmat"). 

2. At the beginning of September 2008, our job was finishing up and we 

began the process of packing up our equipment and shipping it to either Fairbanks (where 

our next job was) or Anchorage (where our home base was). Our company was sending 

some items via air cargo to Fairbanks and some things via the maritime highway. 1 

assisted in the demobilization of the company's equipment and its preparation for 

shipment to various destinations. 

3. On September 10, 2008^ my co-worker Tom /-,tX I e K and I were advised 

to get a pallet of items ready to be shipped air cargo. We spent nearly two hours in the 

morning working in the rain preparing materials for shipment from Ketchikan to 

Fairbanks. We knew this material was going to be shipped air cargo, and we knew it 

could not contain hazardous materials without certain required notification. We placed 

Affidavit of Todd Linne Page 1 of 3 

Exhibit C, Page 2 of 4 
all the items on the pallet and secured them in preparation for the pick up. I would not 

have placed propane canisters or spray cans on this pallet because I knew that this pallet 

was being transferred for air cargo to Fairbanks, and these are hazardous substances that 

must be reported. 

4. An employee of Aeri, a local company which picks up and delivers items 

for air cargo, arrived around 9:00 am with a box truck to pick up the shipment. The 

employee had no way to pick up the pallet load and place it in the back of the truck. We 

expected him to have a forklift or similar tool to load the pallet into the back of his truck. 

Because we did not have a forklift, we had to unload the entire pallet and load all the 

items by hand into the back of the truck. We did not place propane cylinders into the 

back of the truck* nor did we place any aerosol spray cans in the bed. The employee 

assisted us in placing the items in the back of his truck. 

5. We never saw the load of items again. I do not know how they got from 

the back of the truck onto a pallet in the Alaska Air Cargo buildingv I understood that the 

Aerl employee was responsible for placing the items on the pallet at the building. 

6. I have no idea how an aerosol paint can or gas cylinder got into the 

materials that were shipped to Fairbanks for Smith Cable Systems. Tom and I handled 

everything that was supposed to be shipped, and the paint can and gas cylinders were not 

part of Smith Cable Systems* shipment. 

Affidavit of Todd Linne Page 2 of 3 

Exhibit C, Page 3 of 4 
7. We did not use any aerosol spray paint on oiu" job and I am not aware of 

our company buying or using such a product on this job. 

rSjpAA CV- 1^kJV^-^v^-Q. ' -

TODD LINE 

±fc^ 

SUBSCRIBED AND SWORN to before me this S "^ v of June, 2009. 

Notary Public in arid for Missouri 

My conmiission expires: Ih^Sl Q 

AMANDA F. WADE 

Noiary Publtc - Notaty Seal 

Stale of Missouri 

Commissioned for Texas County 

My Commrssion Expires: November 25.2010 

Commission Number 06392756 

Affidavit of Todd Linne Page 3 of3 

Exhibit C, Page 4 of 4 
o 

U. S. Department Alaskan Region 222 W. 7th Avenue #14 

of Transportation Office of the Regional Counsel Anchorage, Alaska 99513-7587 

Federal Aviation PH: (907) 271-5269 

AdmEniitration FAX: (907) 271-2800 

CaseNo.2008AL700081 

CERTIFIED MAIL—RETURN RECEIPT REQUESTED 

OCT - 1 2009 

Ronald G. Smith, President 

Smith Cable Systems^ Inc. ,-v;^0 

through counsel iji^t*^ „Q 

Brent R.Cole Q'i'^^ 

Marston & Cole, P.C. ' 0^^ n\ t*^'^' 

821 N Street, Suite 208 -i-O^V?*^ 

Anchorage, AK 99501-2136 IJ^"^*^'' 

FINAL NOTICE OF PROPOSED CIVIL PENALTY 

On December 3,2008, Smith Cable Systems, Inc., (Smith Cable Systems) was advised through a 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $60,000. We have considered the information submitted in response to this Notice. 

After considering all the evidence in this matter, it appears thai: 

1. On or about September 10, 2008, Smith Cable Systems, Inc., (Smith Cable Systems) 

knowingly offered to Alaska Airlines a shipment containing hazardous material for 

transportation by air on a passenger aircraft from Ketchikan, Alaska, to Fairbanks, Alaska. 

2. The above shipment was offered to Alaska Airlines on Air Waybill No. 027 7471 2632. 

3. The above shipment consisted of 24 pieces, and is described on the air waybill as "Tools." 

The air waybill is marked to indicate that the shipment does riot contain dangerous goods. 

4. Included in the above shipment were two 16.4-ounce cylinders of Coleman Propane Fuel and 

a 12-ounce can of Premium D^cor spray paint. 

Extiibit D, Page 1 of 5 
5. Coleman Propane Fuel is classified as a hazardous material under § 172.101 of the United 

States Department of Transportation Hazardous Materials Regulations (HMR), 49 C.F.R. 

Chapter I, Subchapter C (Parts 171 -80). Its proper shipping name is "Petroleum gas, 

liquefied." It is in hazard class 2.1, and has an assigned identification number of UN1075. 

Column 9A of the § 172.101 table provides that it is forbidden on passenger aircraft. 

6. Premium Decor spray paint is classified as a hazardous material under the HMR. Its proper 

shipping name is "Aerosols, flammable." It is in hazard class 2.1, and has an assigned 

identification number of UN 1950. 

7. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration 

for Dangerous Goods. 

8. Smith Cable Systems offered the above-described shipment of hazardous material for 

transportation by air when the shipping papers did not contain the proper shipping name of 

each hazardous material; the hazard class of each hazardous material; the assigned 

identification number of each hazardous material preceded by "UN" or "N A," as applicable; 

the total quantity by weight or volume of each hazardous material covered by the description; 

and the basic description of each hazardous material shown in sequence. 

9. Smith Cable Systems offered the above-described hazardous material for transportation 

without including in the shipping papers an emergency response telephone number as 

prescribed in Subpart G of Part 172 of the HMR. 

10. Smith Cable Systems offered the above-described hazardous material for transportation by 

air when it had not certified that each hazardous material was in accordance with the HMR 

by printing the certification set forth in § 172.204(a) or § 172.204(c)(1) of the HMR on the 

shipping papers. 

11. Smith Cable Systems offered the above-described hazardous material for transportation by 

air without providing two (2) copies of the required shipper's certification. 

12. Smith Cable Systems offered the above-de scribed hazardous materials for transportation by 

air when the boxes were not marked or labeled in any manner that would indicate the 

hazardous nature of their contents. 

13. Smith Cable Systems offered the above-described shipment for transportation by air when 

the shipment was not niarked with the proper shipping name and the assigned identification 

number of each hazardous material contained in it, and the required markings in English 

were not printed on or affixed to the surface of the shipment. 

14. Smith Cable Systems offered the above-described shipment for transportation by air when 

no "Flammable gas" or "Cargo aircraft only" labels were affixed to the shipment. 

Exhibit D, Page 2 of 5 
Based on the foregoing facts and circumstances. Smith Cable Systems violated the following 

Department of Transportation Hazardous Materials Regulations: 

(a) Section 171.2(e) in that Smith Cable Systems offered hazardous material for 

transportation in commerce within the United States when each material was not 

properly classed, described, packaged, marked, labeled, and in condition for shipment 

as required or authorized by applicable requirements of the HMR, or an exemption, 

special permit, approval, or registration issued under the HMR or Subchapter A of 

Chapter 1 of Title 49, Code of Federal Regulations. 

(b) Section 172.200(a) in that Smith Cable Systems offered hazardous material for 

transportation without properly describing each material on the shipping papers. 

(c) Section 172.201(d) in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers an emergency response 

telephone number as prescribed in Subpart 0 of Part 172 of the HMR. 

(d) Section 172.202(a)(1) in that Smith Cable Systems offered hazardous material for 

transportation without including the proper shipping name in the shipping papers. 

(e) Section 172.202(a)(2) in that Smith Cable Systems offered hazardous material for 

U-ansportation without including in the shipping papers the hazard class or division 

prescribed for the material. 

(f) Section 172.202(a)(3) in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers the identification number 

prescribed for the material. 

(g) Section 172.202(a)(5} in that Smith Cable Systems offered hazardous material for 

transportation without including in the shipping papers the total quantity of the 

hazardous material covered by the description. 

(h) Section 172.203(f) in that Smith Cable Systems offered hazardous material for 

transportation by air without including in the shipping papers a statement indicating 

that the shipment is within the limitations prescribed for either passenger and cargo 

aircraft or cargo aircraft only. 

(i) Section 172.204(a) in that Smith Cable Systems offered hazardous material for 

transportation without the required shipper's certification. 

(j) Section 172.204(c)(2) in that Smith Cable Systems offered hazardous material to an 

aircraft operator for transportation by air and did not provide two copies of the required 

shipper's certification. 

Exhibit D, Page 3 of 5 
(k) Section 172.204(c)(3) in that Smith Cable Systems offered a hazardous material for 

transportation by air without including the statement, "I declare that all of the 

applicable air transportation requirements have been met." 

(1) Section 172.300(a) in that Smith Cable Systems offered hazardous material for 

transportation when the shipment was not marked with the proper shipping name and 

identification number for its contents. 

(m) Section 172.301(a) in that Smith Cable Systems offered for transportation a hazardous 

material in a non-bulk package when the package was not marked with the proper 

shipping name and identification number (preceded by "UN" or "NA," as appropriate) 

for the material as shown in the § 172.101 Table. 

(n) Section 172.400(a) in that Smith Cable Systems offered a shipment containing 

hazardous material for transportation when the shipment was not property labeled as 

specified in § 172.101 and subpart E of part 172 of the HMR. 

(o) Section 172.604(a) in that Smith Cable Systems offered a shipment containing 

hazardous material for transportation and failed to provide an emergency response 

telephone number, including the area code or international access code, for use in the 

event of an emergency involving the hazardous material. 

(p) Section 173.27(b)(1) in that Smith Cable Systems offered material for transportation by 

air aboard a passenger aircraft when Column 9a of the § 172.101 table indicates the 

material offered is forbidden in transportation on passenger-carrying aircraft. 

In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States Code of 

Transportation, [49 U.S.C. § 5123(a)], Smith Cable Systems is liable for a civil penalty of not 

less than $250 ($450 for training violations), nor greater than $50,000 (or $100,000 for violations 

resulting in death, serious illness, or severe injury to any person, or substantial destruction of 

property), for each violation of the regulations. After reviewing our investigative file, which 

includes the information presented during and after the informal conference on April 3, 2009, we 

propose to assess a civil penalty in the amount of $60,000.00 for these violations. 

Unless Smith Cable Systems mails or personally delivers its request for a hearing, in writing, in 

this matter on or before 15 days after Smith Cable Systems receives this Final Notice, we will 

issue an Order Assessing Civil Penalty, and Smith Cable Systems will have no further right to a 

hearing. If Smith Cable Systems does not submit a written request for a hearing, it must pay the 

proposed civil penalty. 

A request for a hearing must be sent to the Federal Aviation Administration, 800 Independence 

Ave., S.W., Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430, Wilbur 

Wright Building—Suite 2W1000, and a copy must be sent to the undersigned FAA attomey. 

The request must be dated and signed, in accordance with § 13.16 of the Federal Aviation 

Regulations (14 C.F.R. § 13.16), sent to you with the Notice of Proposed Civil Penalty. Smith 

Cable Systems may pay the proposed penalty by submitting a check or money order payable to 

Exhibit D, Page 4 of 5 
the Federal Aviation Administration to the undersigned. In the alternative. Smith Cable Systems 

may pay the civil penalty with a credit card over the Internet. To pay electronically, visit the 

web site at https://www.pav.£ov/pavgov/forms/formlnstance.html Enter "FAL-FINE1" in the 

block for "Search Public Fonns," and click on "Go." Then select "FAA Civil Penalty 

Payments—FAA Alaskan Region," and follow directions. If Smith Cable Systems pays 

electronically, please notify the undersigned that such a payment has been made. 

HOWARD L. MARTIN, JR 

Regional Counsel 

By: a^ 

Glenn H. Brown 

Senior Attomey 

Exhibit D, Page 5 of 5 
^ 00 

c^ if 

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< ^ r ^ 

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ni o /-^ 

5 °^£ 

-g e^ 

c 

Brent R. Cole 

Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Attorneys for Smith Cable Systems, Inc. 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

NATIONAL TRANSPORTATION SAFETY BOARD 

Tn re: Smith Cable Systems, inc. 

FAA Case No. 2008AL700081 

REQUEST FOR HEARING 

Smith Cable Systems, Inc., by and through its attorneys of record, Marston & 

Cole, P.C, pursuant to Subpart G of Part 13 of the Federal Aviation Regulations, requests 

a hearing in this matter to be held in Anchorage, Alaska. 

DATED this [^ day of October, 2009, at Anchorage, Alaska. 

MARSTON & COLE, P.C. 

Attorneys for Smith Cable Systems, Inc. 

Brent R. Cole 

AK State Bar No. 8606074 

Request for Hearing 

hire: Smith Cable Systems. Inc., 2008AL700081 

Page 1 of 2 

Exhibit E, Page 1 of 1 
F\BRC\l092.00i\Smiih- FAA Ha7.ardous 

Matcrials\PLED\Rcqucsl for Hcanng.doc 

CERTIFICATE OF SERVICE 

This is to certify that on this /O/ y day of October, 

2009, a true and corrcci copy of the foregoing document 

was y ^ 

S . . Mailed 

• Hand-delivered 

r~| Kaxed 

loihe following: 

Glenn H. Brown, Esq. 

Office of the Regional Counsel 

222 West 7th Avenue, #14 

Anchorage, AK 99513-7587 

Fax: 271-2800 

Hearing Docket, Federal Aviation Administration 

ATTN: Hearing Dock 

800 Indcpendcncf^cnuc, SW/ 

Room924A ^ '^ 

WashinRlatf, DC205 

Request for Hearing 

In re: Smith Cable Systems, Inc., 2008AL7O0O81 

Paee 2 of 2 ExhibitE, Page2of 2 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

IsECEiVED 

OCT 2 3 2009 

^Ji-\;;ST0^4 & COLE, P.C. 

In the Matter of: 

Smith Cable Systems, Inc. 

Judge Not Assigned 

FAA Docket No. Unassigned 

Docket Date It ltof{9l 

Initials 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. § 13.208), and states as follows: 

I. 

On December 2, 2008, Respondent was advised through a Notice of Proposed Civil 

Penalty that the FAA proposed to assess a civil penalty in the amount of $60,000. On 

October 1, 2009, a Final Notice of Proposed Civil Penalty in the amount of $60,000 was 

issued. On October 15, 2009, Respondent submitted a written request for a hearing. 

II. 

1. On or about September 10, 2008, Respondent knowingly offered to Alaska Airlines a 

shipment containing hazardous material for transportation by air on a passenger aircraft 

from Ketchikan, Alaska, to Fairbanks, Alaska. 

2. The above shipment was offered to Alaska Airlines on Air Waybill No. 027 7471 2632. 

Exhibit F, Page 1 of 9 
3. The above shipment consisted of 24 pieces, and is described on the air waybill as "Tools." 

The air waybill is marked to indicate that the shipment does not contain dangerous goods. 

4. Included in the above shipment were two 16.4-ounce cylinders of Coleman Propane Fuel 

and a 12-ounce can of Premium D6cor spray paint. 

5. Coleman Propane Fuel is classified as a hazardous material under § 172.101 of the United 

States Department of Transportation Hazardous Materials Regulations (HMR), 49 C.F.R. 

Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Petroleum gas. 

Liquefied." It is in hazard class 2.1, and has an assigned identification number of 

UN1075. Column 9A of the § 172.101 table provides that it is forbidden on passenger 

aircraft. 

6. Premium D^cor spray paint is classified as a hazardous material under the HMR. Its 

proper shipping name is "Aerosols, flammable." It is in hazard class 2.1, and has an 

assigned identification number of UN 1950. 

7. At all times mentioned herein, the shipment was not accompanied by a Shipper's 

Declaration for Dangerous Goods. 

8. Respondent offered the above-described shipment of hazardous material for transportation 

by air when the shipping papers did not contain the proper shipping name of each 

Exhibit F, Page 2 Of 9 
hazardous material; the hazard class of each hazardous material; the assigned 

identification number of each hazardous material preceded by "UN" or "NA," as 

applicable; the total quantity by weight or volume of each hazardous material covered by 

the description; and the basic description of each hazardous material shown in sequence. 

9. Respondent offered the above-described hazardous material for transportation without 

including in the shipping papers an emergency response telephone number as prescribed 

in Subpart G of Part 172 of the HMR. 

10. Respondent offered the above-described hazardous material for transportation by air 

when it had not certified that each hazardous material was in accordance with the HMR 

by printing the certification set forth in § 172.204(a) or § 172.204(c)(1) of the HMR on 

the shipping papers, 

11. Respondent offered the above-described hazardous materials for transportation by air 

without providing two (2) copies of the required shipper's certification. 

12. Respondent offered the above-described hazardous materials for transportation by air 

when the boxes were not marked or labeled in any manner that would indicate the 

hazardous nature of their contents. 

Exhibit F, Page 3 of 9 
III. 

I. By reason of the foregoing facts and circumstances, Respondent violated the following 

Department of Transportation Hazardous Materials Regulations; 

(a) Section 172.2(e) in that Respondent offered hazardous material for 

transportation in commerce within the United States when each material was not 

properly classed, described, packaged, marked, labeled, and in condition for shipment 

as required or authorized by applicable requirements of the HMR, or an exemption, 

special permit, approval, or registration issued under the HMR or Subchapter A of 

Chapter 1 of Title 49, Code of Federal Regulations. 

(b) Section 172.200(a) in that Respondent offered hazardous material for 

transportation without properly describing each material on the shipping papers. 

(c) Section 172.201(d) in that Respondent offered hazardous material for 

transportation without including in the shipping papers an emergency response 

telephone number as prescribed in subpart G of part 172 of the HMR. 

(d) Section 172.202(a)(1) in that Respondent offered hazardous material 

for transportation without including the proper shipping name in the shipping papers. 

Exhibit F, Page 4 of 9 
(e) Section 172.202(a)(2) in that Respondent offered hazardous material 

for transportation without including in the shipping papers the hazard class or division 

prescribed for the material. 

(f) Section 172.202(a)(3) in that Respondent offered hazardous material 

for transportation without including in the shipping papers the identification number 

prescribed for the material. 

(g) Section 172.202(a)(5) in that Respondent offered hazardous material 

for transportation without including in the shipping papers the total quantity of the 

hazardous material covered by the description. 

(h) Section 172.203(f) in that Respondent offered hazardous material for 

transportation by air without including in the shipping papers a statement indicating that 

the shipment is within the limitations prescribed for either passenger and cargo aircraft 

or cargo aircraft only. 

(i) Section 172.204(a) in that Respondent offered hazardous material for 

transportation without the required shipper's certification. 

Exhibit F, Page 5 of 9 
(j) Section 172.204(c)(2) in that Respondent offered hazardous material to 

an aircraft operator for transportation by air and did not provide two copies of the 

required shipper's certification. 

(k) Section 172.204(c)(3) in that Respondent offered hazardous material 

for transportation by air without including the statement, "I declare that all of the 

applicable air transportation requirements have been met." 

(1) Section 172.300(a) in that Respondent offered a hazardous material for 

transportation when the shipment was not marked with the proper shipping name and 

identifications number for its contents. 

(m) Section 172.301(a) in that Respondent offered for transportation a 

hazardous material in a non-bulk package when the package was not marked with the 

proper shipping name and identification number (preceded by "UN" or "NA," as 

appropriate) for the material as shown in the § 172.101 Table. 

(n) Section 172.400(a) in that Respondent offered a shipment containing 

hazardous material for transportation when the shipment as not properly labeled as 

specified in § 172.101 and subpart E of part 172 of the HMR. 

Exhibit F, Page 6 of 9 
(o) Section 172.604(a) in that Respondent offered a shipment containing 

hazardous material for transportation and failed to provide an emergency response 

telephone number, including the area code or international access code, for use in the 

event of an emergency involving the hazardous material. 

(o) Section 173.27(b)( I) in that Respondent offered material for 

iransportafion by air aboard a passenger aircraft when Column9a of the § 172.101 table 

indicates the material offered is forbidden in transportation on passenger-carrying 

aircraft. 

IV. 

1. Under 49 U.S.C. § 5123(a), Respondent is liable for a civil penalty of not less than $250 

($450 for training violations), nor greater than $50,000 (or $100,000 for violations resulting 

in death, serious illness, or severe injury to any person, or substantial destruction of 

property), for each violation of the regulations. 

2. Under the facts and circumstances of this case, a civil penalty of $60,000 is appropriate. 

Exhibit F, Page 7 of 9 
WHEREFORE, the Federal Aviation Administration, by counsel, respectfully requests 

that the administrative law judge enter an order that Respondent be assessed a civil penalty in the 

amount of $60,000. 

RESPECTFULLY SUBMITTED this jG'^ ^ day of October 2009. 

HOWARD L.MARTIN, JR. 

Regional Counsel 

By: 6^ 

Glenn H. Brown 

Senior Attomey 

Section;! 

deemed art 

Exhibit F, Page 8 of 9 
CERTIFICATE OF SERVICE 

Re: Smith Cable Systems, Inc. 

CaseNo. 2008AL700081 

FAA Docket No. To Be Assigned 

I hereby certify that on this date I served a copy of the FAA's Complaint and a copy of the 

foregoing letter by placing them in the United Stales Mail, postage-prepaid, certified mail, return 

receipt requested, addressed as follows: 

Ronald G. Smith, President 

Smith Cable Systems, Inc. 

Through counsel 

Brent R. Cole, Esq. 

Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501-2136 

I further certify that on this date I have servedthe original of the foregoing letter and the original 

and one copy of the FAA's Complaint by postage-prepaid, certified mail, return receipt 

requested, addressed as follows; 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

^^^^^'^^h^^iSuJ^^^'-^ . ^^ij2n^oo9 

Office of the Regional Counsel^ yj Date 

222 West 7th Avenue #14 

Anchorage, Alaska 99513-7587 

Exhibit F, Page 9 of 9 
lAW OFFICES OF 

MARSTON & COLE, P.C. 

ERIN B. MARSTON 821 N STREET, SUITE 108 

TELEPHONE (W7) 2T74001 

BRENT R. COl.E ANCHORAGE. ALASKA 99501-3136 

TELECOPIER {907) 277-8003 

coleigpoboi.8lflika.iitt 

November 18,2009 

VIA FACSIMILE: (907)271-2800 

Glenn Brown, Esq. 

FAA Legal Department 

222 West 7th, #14 

Anchorage, AlC 99513 

Re: Smith Cable Systems- FAA investigation 

DMS No. FAA-2009-0976 

Your File No.: 2008AL700081 

OurFileNo.: 1092.001 

Dear Glenn: 

Enclosed is a copy of Smith Cable Systems, Inc.'s answer to the FAA*s complaint in the 

above-referenced matter. Unfortunately, you have determined to move forward in this case even 

in light of our conversations and disclosures which have pointed out the inherent weaknesses of 

the government's case. As noted in my letter to you dated August 31, 2009, the government 

cannot and will not be able to prove in this case that my client improperly transported hazardous 

materials. 

1 have expressed my concern that your decision to move forward in order to educate the 

Hazmat investigators of the deficiencies of their case will have significant adverse consequences 

against my client in defending against this meritless case. You can be assured that when the 

government fails to prove its case, wc will seek actual and full attomey fees and costs under the 

provisions of the Equal Access to Justice Act. Please reconsider your position so we can avoid 

the unnecessary legal costs associated with the prosecution of this case. If you have any 

questions, please feel free to contact me. 

Very truly yours, 

MARSTON & COLE, P.C. 

L 

Brent R. Cole 

BRC:ksg 

cc: client 

Exhibit G, Page 1 of 1 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

January 16.2009 

Invoice No: 00087 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

1/05/2009 

1/06/2009 

1/14/2009 

BRC Meeting with client; review letters; attempt to contact TAA 

BRC Multiple telephone conference.^ with FAA officials regarding 

propo.sed fine 

EFG Reviewed di.scover>' to forward to client 

For professional seiA'iccs rendered 

Hours 

1.10 

Amount 

0.40 

0.50 

0.20 

$80.00 

$100.00 

$15.00 

$195.00 

Total New Charges 

Previous Balance 

$195.00 

$0.00 

BALANCE DIJE $195.00 

As a service lo our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby auihori/e Marston & Cole, PC. to charge $ 

Mastercard/Visa (please circle which card). My card nuinbcr is 

an expiration date of . 

Dated this day ol" . 2008. 

dollars on mv 

with 

Signature 

Exhibit H, Page 1 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

February 18,2009 

Invoice No: 00221 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.00! 

Professional services 

2/12/2009 BRC Review documents; contact opposing counsel lo schedule 

informal hearing; email client 

For professional services rendered 

Hours Amount 

0.80 $160.00 

0.80 $160.00 

Total Ne\*.'Charges 

Previous Balance 

2/06/2009 Payment in full of outstanding invoice. Thank you. 

$160.00 

$195.00 

$-195.00 

Total Payments and Credits 

BALANCE DIJT 

$-195.00 

$160.00 

As a service to our client.'^ you may now pay for legal services with your Visa/Masicrcard Express 

charge cards. 

I hereby auihorizi; Manston & Cole, P.C. to charge $ 

Mastercard/Visa (please circle which card). My card number is 

dollars on niv 

with 

ExhibitH, Page2of 35 
Ronald Smith Paee No • 

February 18,2009 

an expiration date of . 

Dated this dav of . 2009. 

Signature 

ExhibitH, Page 3 Of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

March 15,2009 

Invoice No: 00433 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Previous Balance $160.00 

3/06/2009 Payment- thank you. S-160.00 

Total Payments and Credits $-! 60.00 

BALANCE DUE $0.00 

**.K t** *******v]SA/MASTERCARD***************** 

As a service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & Cole. P.C. to charge $ 

Mastercard/Visa (please circle which card). My card number is 

an expiration dale of . 

dollars on my 

with 

Dated this day of . 2009. 

Signature 

ExhibitH, Page 4 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 1 1 1565 

Anchorage, AK99511 

April 17,2009 

Invoice No: 00568 

Fed. Tax Id. No. 92-0152597 

Case mailer: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

3/17/2009 

3/27/2009 

3/30/2009 

4/01/2009 

4/03/2009 

4/07/2009 

4/08/2009 

4/16/2009 

4/17/2009 

4/17/2009 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

Telephone conference with opposing counsel regarding 

scheduling informal conference; email update to client 

Attempts to contact opposing counsel regarding settling up 

informal conference 

Telephone conference with Ms. Soren.wn: attempts to contact 

Mr. Brown: draft letter to Mr. Brown to set up a meeting 

Multiple telephone conferences to arrange for infonnal meeting 

Review penally mairi.x; travel tn and attend iiifonnal hearing; 

telephone conference with client 

Attempts to contact Mr. Linne 

Drafl and revise letter to opposing counsel; telephone 

conferences with persons involved in shipping 

Attempts to contact witnesses; contact employee regarding 

shipment and interview; contact Aerl worker in Ketchikan; drall 

email letter lo client 

Review and respond to client's email 

Attempts to contact Mr. Cook; review and revise draft letter to 

Mr. Brown 

Hours 

0.20 

0.30 

0.50 

0.30 

1.80 

0.20 

0.60 

Amount 

$40.00 

$60.00 

$100.00 

$60.00 

$360.00 

$40.00 

$120.00 

.70 $340.00 

0.20 $40.00 

110 $220.00 

For professional services rendered 6.90 Sl.380.00 

Total New Charges 

Previous Balance 

$1,380.00 

$0.00 

BAl-ANCEDUE $1,380.00 

Exiiibit H, Page 5 of 35 
Ronald Smith P^opNn • 

April 17, 2009 i age [No.. 

• ••••••••••••••••yjj^y^^^j^YERCARD***************** 

As a service to our clients you may now pay for legal services with your Visa/Mastercard E.\press 

charge cards. 

I hereby authorize Marston & Cole, P.C. to charge $ dollars on my 

Ma.'itercard/Visa {please circle which card). My card number is with 

an expiration dale of . 

Dated this dav of . 2009. 

Signature 

Exhibit H, Page 6 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 1 11565 

Anchorage, AK 99511 

June 18,2009 

Invoice No: 00871 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

4/07/2009 

4/17/2009 

4/29/2009 

5/04/2009 

5/29/2009 

6/11/2009 • 

KSG 

BRC 

BRC 

BRC 

BRC 

KSG 

Telephone call to T. Linne regarding his affidavit; e-mail to T. 

Lmne. 

Contact with Mr. Cook re speaking with super\'isor; draft email to 

client 

Telephone conference with opposing attorney 

Update client on status; begin preparation of witness statements 

Continue drafting affidavits for employees 

i*reparc affidavit for T. Fiaiek and e-mail for his review. 

For prolessional services rendered 

Hours 

0.30 

0.40 

Amount 

$22.50 

$80.00 

0.30 

0.50 

0.80 

0.40 

$60.00 

$100.00 

$160.00 

$30.00 

2.70 S452.50 

Total New Charges 

i*revious Balance 

4/30/2009 Payment in full of outstanding invoice- thank you. 

$452.50 

$1,380.00 

$-1,380.00 

Total Pavmenis and Credits $-1,380.00 

BALANCE DUE $452.50 

ExhibitH, Page 7 Of 35 
Ronald Smith Page No • 

June 18.2009 ^ 

As a service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

1 hereby authorize Marston & Cole. P.C. to charge $ dollars on my 

Mastercard/Visa {please circle which card). My card number is with 

an expiration date of . 

Dated this day of . 2009. 

Signature 

ExhibitH, Page 8 Of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, A K 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Sj'stems, Inc. 

POBox 111565 

Anchorage, AK 9951 I 

July 20, 2009 

Invoice No: 01005 

Fed. Tax Id. No. 92-0152597 

Case mailer: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

6/25/2009 

6/26/2009 

6/30/2009 

KSG 

KSG 

KSG 

Hours 

E-mail to 1~om 1-ialek regarding affidavit. 

Telephone call to R. Smith; e-mail to L. Sorenson. 

Telephone call to Toin Fiaiek; e-mail statement for review. 

For proressional ser\'ices rendered 0.40 

Amount 

0.10 $7.50 

0.10 $7.50 

0.20 $15.00 

$30.00 

Expenses 

Start Dale 

7/07/2009 

Description 

Courier Service 

Charges 

$5.00 

Total E.\pen,ses 

Total New Charge.-; 

Previous Balance 

7/02/2009 Payment in full of oustanding balance- thank you. 

$5.00 

S25.00 

$452.50 

$-452.50 

Total Payments and Credits 

BALANCE DUE 

$-452.50 

$35.00 

ExhibitH, Page 9 Of 35 
Ronald Smith p^^^ ^^^ . 

July 20, 2009 

As a service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & Cole, P.C. to charge $ dollars on my 

Mastercard/Visa {please circle which card). My card number is ^ with 

an expiration date of . 

Dated this day of . 2009. 

Signature 

ExhibitH, Page 10 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems. Inc. 

POBox 111565 

Anchorage, AK 99511 

September 15,2009 

Invoice No: 01341 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

Hours 

7/22/2009 

8/31/2009 

KSG 

BRC 

Review contacts with T. Fiaiek; telephone call and leave message. 

Multiple telephone conferences with opposing attorney; finalize 

letter lo opposing attomey 

For professional services rendered 

0.10 

1.00 

1.10 

Amount 

$7.50 

$200.00 

$207.50 

Total New Charges 

Previous Balance 

8/13/2009 Payment- thank you. 

$207.50 

$35.00 

$-35.00 

Total Pavtnents and Credits 

BAEANCEDUt: 

$-35.00 

$207.50 

As a service lu our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & (-'ole, P.C. lo charge $_ dollars on my 

ExhibitH, Page 11 of 35 
Ronald Smith Page No.: 

September 15,2009 

Mastercard/Visa (please circle which card). My card number is with 

an expiration datcol' . 

Dated this day of , 2009. 

Signature 

ExhibitH, Page 12 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Atichorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

October 19,2009 

Invoice No: 01482 

Fed.Taxld. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

9/22/2009 

9/25/2009 

9/28/2009 

BRC 

BRC 

BRC 

Multiple telephone conferences regarding further FAA 

investigation; review new interviews 

Lciwc message with client 

Multiple telephone conferences regarding possible resolution 

For professional services rendered 

Hours 

0.50 

0.20 

0.70 

Amount 

$100.00 

$40.00 

$140.00 

.40 $280.00 

Total New Charges 

Previous Balance 

10/15/2009 Payment- thank vou. 

$280.00 

$207.50 

$-207.50 

Total Payments and Credits 

BALANCE DUE 

As a service to our clients you inav now pay for legal services with your Visa/Mastercard E.xpress 

charge cards. 

$-207.50 

$280.00 

ExhibitH, Page 13 of 35 
Roncild Smith p ^ . 

October 19, 2009 i-a^eiNo.. 

I hereby authorize Marston & Cole, P.C. to charge $ dollars on my 

Mastercard/Visa (please circle which card). My card number is ^ with 

an expiration date of . 

Dated this day of . 2009. 

Sinnature 

ExhibitH, Page 14 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

November 16,2009 

Invoice No: 01623 

Fed. Tax Id. No. 92-0152597 

Ronald Smith 

Sinith Cable Systems, Inc. 

PO Bo.x 11 1565 

Anchorage, AK 99511 

Case matter: Smith- FAA Hazardous Maieiials 

OurFileNo.: 1092.001 

Professional services 

Hours Amount 

10/26/2009 BRC Telephone conference with Mr. Martin with the EAA regarding 0.40 $80.00 

complaint and answer; begin preparation of answer 

11/16/2009 BRC Draft and revise answer to complaint 0.70 $140.00 

For professional services rendered 1.10 $220.00 

Total New Charges $220.00 

Previous Balance $280.00 

10/30/2009 Payment- thank vou. $-280.00 

Total Payments and Credits $-280.00 

BALANCE DUE $220.00 

+ ******»* * *f*****YjC^^j^|^^j-J-^np A I^Q********"* ******* 

As a service to OLU' clients you may now pay for legal services with your Visa-'Masiercard Express 

charge cards. 

I hereby authorize .Marston &. Cole, P.C. to chariJc $ dollars on mv 

ExhibitH, Page 15 of 35 
Ronald Smith p^ ^^^. 2 

November 16. 2009 ^ 

Mastercard/Visa (please circle which card). My card number is with 

an e.xpirarjon dale of ^_. 

Dated this day of . 2009. 

Simiatiire 

ExhibitH, Page 16 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, inc. 

POBo.x 111565 

Anchorage, A K 99511 

December 14.2009 

Invoice No: 01752 

Fed. Tax Id. No. 92-0152597 

Case inatter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

1/17/2009 

1/17/2009 

1/18/2009 

I/IS/2009 

1/18/2009 

1/19/2009 

2/10/2009 

KSG 

KSG 

BRC 

KSG 

KSG 

BRC 

BRC 

Revise Answer to FAA's complaint. 

Revise answer to FAA's complaint. 

Draft and revise letter with answer to opposing counsel 

Draft letter to Glenn Brown. 

Serve and tile answer with the FAA 

Telephone conference with opposing supervisor attorney 

regarding case 

Meet with client and discuss legal issues regarding a hearing and 

settlement 

Hours 

For professional services rendered 

o.so 

3.20 

Amount 

O..^0 

0.60 

0.50 

0.20 

0..10 

0.50 

$22.50 

$45.00 

$100.00 

$15.00 

$22.50 

.$100.00 

$160.00 

$465.00 

'Ibtal New Charges 

Previous Balance 

BAL.A.NCE DUH 

$465.00 

$220.00 

$685.00 

*»' + ****** * •* * + **:*y]^^^y]^;^^C^1'£[^(^^pjQ****t-«********••* 

.As a service to our clients you may now pay for legal services with your Visa/Mastercard E.\press 

charge cards. 

I hereby authorize Marston & Ct)le, P.C. to charge $ ^_ ^ 

Mastercard/Visa (please circle which card). My card number is 

an expiration date of . 

dollars on mv 

with 

ExhibitH, Page 17 of 35 
Ronald Smith „ M 

December 14, 2009 ^'S'^^- " 

Dated this day of . 2009. 

Signature 

ExhibitH, Page 18 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

Januai7 3l,20IO 

Invoice No: 02021 

Fed.Taxld. No. 92-0152597 

Case matter: Smith- FAA Ha;;atdous Materials 

OurFileNo.: 1092.001 

Professional services 

1/25/2010 BRC Telephone conference with Mr. Brown regarding settlement 

possibilities (none) and deposition of Mr. Diciz 

1/26/2010 KSG Draft letter to Glenn Brown regarding deposition of J. Dielz. 

For professional services rendered 

Hours 

0.40 

0.20 

0.60 

Amount 

$80.00 

$15.00 

$95.00 

Total New Charges 

Previous Balance 

12/14/2009 Pavmenf- thank vou. 

$95.00 

$685.00 

S-220.00 

12/18/2009 Payment- thank you. $-465.00 

Total Payments and Credits 

BALANCE DUE 

$-685.00 

S95.00 

ExhibitH, Page 19 of 35 
Ronald Smith PaoRNn • 

January31.2010 ^'^'^^ -

As a service to our clients you may now pay for legal services with your Visa/Mastercard F.xpress 

charge cards. 

I hereby ^luthorize Marston & Cole. P.C. to charge $ dollars on my 

Mastercard/Visa (please circle which card). My card number is with 

an expiration date or 

Dated this day of _. 2009. 

Signature 

ExhibitH, Page 20 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage. AK995Ii 

March 15.2010 

Invoice No: 02221 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.; 1092.001 

Professional services 

2/05/2010 

Hours 

KSG Prepare notice of deposition; telephone call to client regarding 

scheduling. 

2/(6/2010 KSG Letter toG. Brown regarding J. Di'etz deposi'tfon. 

2/19/2010 KSG [:-mail to G.Brown. ^ 

2/23/2010 BRC Prepare for deposition 

For professional services rendered 

Amount 

0.30 

0.20 

0.10 

1.00 

$22.50 

$15.0(1 

$7.50 

$200.00 

.60 $245.00 

Toifil New Charges 

Previous Balance 

2/22/2010 Payment in full of outstanding balance- thank you. 

$245.00 

$95.00 

$-95.00 

Total Payments and Credits $-95.00 

BALANCE DUE 

As a service to our clients you may now pay for legal services with your Visa'Mastercard Express 

charge cards. 

$245.00 

ExhibitH, Page 21 of 35 
Ronald Smith PavQ N o • 

March 15.2010 

1 hereby authorize Marston & Cole. P.C. to charge $^ ^ dollars on my 

Mastercard/Visa (pleas^; circle which card). My card number is ^ with 

an expiration date of ^ • 

Dated (hi.s dav of . 2010. 

Si "nature 

ExhibitH, Page 22 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

-Ajichorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, (nc. 

POBox 111565 

Anchoraee. AK 99511 

May 15,2010 

Invoice No: 02569 

Fed.Taxld. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

4/19/2010 

4/27/2010 

4/28/2010 

5/04/2010 

5/04/2010 

5/04/2010 

5/05/2010 

KSG 

BRC 

BRC 

BRC 

BRC 

KSG 

KSG 

Hours 

Prepare and .sen-'e amended notice of deposition of J. Dielz. 

Prepare for deposition 

Prepare for depositions: attend deposition of Mr. Deitz with client 

Finalize discovcE-y requests of the FAA 

Drati discovery requests 

Prepare draft of discovery requests lo FAA. 

Revise discovery requests to FAA. 

For professional services rendered 

Ainount 

0.30 

1.00 

3.50 

0.50 

0.50 

0.50 

0..S0 

$22.50 

$200.00 

$700.00 

$100.00 

$100.00 

$37.50 

S60.00 

7.10 $1,220.00 

Expenses 

Start Date 

3/25/2010 

5/01/2010 

5/05/2010 

Description 

In House Copies 

Deposition fee—J. Deitz 

Postage 

Charges 

$9.80 

$321.50 

$2.44 

Total Expenses $333.74 

Total New Charges 

Previous Balance 

$1,553.74 

$245.00 

ExhibitH, Page 23 of 35 
Ronald Smith Page No • ~> 

May 15. 2010 

3/29/2010 Payment- thank you. $-245.00 

Total Payments and Credits $-245.00 

BALANCE DUE $1,553.74 

**^**^*^**-:****t*ViSA/MASTERCARD***************** 

As a service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & Cole. P.C. to charge $ dollars on my 

M.i.siercardA''i.sa (piea.se circle which card). My card number is whh 

an expiration date of . 

Dated this _ day of . 2010. 

Signature 

ExhibitH, Page 24 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

June 16,2010 

Invoice No: 02804 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

6/04/2010 

6/07/2010 

6/07/2010 

6/14/2010 

6/14/2010 

6/15/2010 

6/15/2010 

For 

KSG 

BRC 

KSG 

BRC 

KSG 

BRC 

Telephone calls to Alaska Airlines legal department regarding 

deposing witnesses. 

Telephone conference with FAA attorney regarding depositions 

of Alaska airline employees 

E-mail lo Alaska Airlines legal department regarding contact with 

employee witnesses. 

'I'elephone conference with opposing counsel regarding offer of 

$7,500 

Telephone call from .Administrative Law Judge's office: revise 

application and subpoena to Aero Services. 

Multiple telephone conferences regarding testimony of Alaska 

Airlines employees 

KSG E-mail client regarding witnesses at hearing. 

professional services rendered 

Hours Amount 

0.30 

0.40 

0.30 

0.40 

0.30 

0.40 

0.20 

$22.50 

$80.00 

$22.50 

$80.00 

$22.50 

$80.00 

SI 5.00 

2.30 $322.50 

Total New Charges 

Previous Balance 

6/14/2010 Payment- thank you. 

$322.50 

$1,553.74 

$-1,553.74 

Total Payments and Credits $-1,553.74 

ExhibitH, Page 25 of 35 
Ronald Smith p ^ . 

June 16,2010 lageiNo.. 

BALANCE DUE $322.50 

*.t*t************Y[5^/[^^5-[-ERCART)*****+*********** 

As a .service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & Cole. P.C. to charge $ dollars on my 

Mastercard/Visa (please circle which card). My card number is with 

an expiration date of . 

Dated this day of . 2010. 

Signature 

ExhibitH, Page 26 Of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 1 11565 

Anchorage, AK 9951 1 

August 3,2010 

Invoice No: 02969 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

6/17/2010 

6/18/20)0 

6/18/2010 

6/21/2010 

6/22/2010 

6/23/20)0 

6/23/2010 

6/24/2010 

6/24/2010 

6/25/2010 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

KSG 

)iRC 

KSG 

BRC 

Draft questions for Alaska Air Cargo employees; review motion 

for telephonic testimony; communicate with client 

Review motions to quash subpoenas; prepare for upcoming 

hearing 

Review and revise questions to Alaska Air Cargo employees 

Multiple telephone conferences with client and opposing counsel 

regarding settlement; attempts to communicate offer to settle for 

$20,000 

Review documents; prepare for hearing 

Prepare for hearing 

Prepare exhibits for hearing; prepare exhibit list. 

Prepare for hearing; inicr\'iew witnesses; 

Prepare and revise letter to C. Black. 

Prepare for and attend administrative hearing with client 

Hours Amount 

For professional ser\'ices rendered 

0.60 

0.80 

0.50 

0.80 

1.50 

1.50 

1.20 

4.30 

0.20 

8.00 

19.40 

$120.00 

$160.00 

$100.00 

$160.00 

$300.00 

$300.00 

$90.00 

S860.00 

$15.00 

$1,600.00 

$3,705.00 

Expenses 

Stan Date 

6/29/20)0 

6/29/2010 

7/16/2010 

Description 

Long distance phone calls 

Long distance phone calls 

Transcript of 6-25-10 hearing 

Charges 

$1.60 

$0.90 

$764.00 

Total E.\penses $766.50 

ExhibitH, Page 27 of 35 
Ronald Smith p^ ^^ . -y 

August 3.2010 h •• -

Total New Charges $4,471.50 

Previous Balance $322.50 

7/08/2010 Payment- thank you. $-322.50 

Total Payments and Credits $-322.50 

BALANCE DUE $4,471.50 

As a service to our clients you may now pay for legal services with your Visa/Mastercard E.xpress 

charge cards. 

1 hereby authorize Marston & Cole. P.C. to charge $ dollars on my 

Mastercard/Visa (please circle which card). My card number is with 

an expiration date of . 

Dated this day of ,2010. 

Signature 

ExhibitH, Page 28 of 35 
Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

PO Box 111565 

Anchorage, AK 99511 

November 30, 2010 

Invoice No: 03897 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Profcssionai services 

7/28/2010 

7/28/20)0 

8/09/20)0 

11/16/2010 

BRC 

KSG 

BRC 

BRC 

Hours 

Multiple telephone conferences to arrange for continuance of the 

hearing; review and revise motion to continue 

Prepare motion to continue hearing. 

Begin review of transcript 

Multiple communications regarding new hearingdaie 

For professional services rendered .80 

Amount 

0.50 

0.50 

0.40 

0.40 

$100.00 

$37.50 

$80.00 

$80.00 

$297.50 

Expenses 

Start Date 

7/28/2010 

7/29/2010 

8/30/2010 

Description 

Postage 

Long distance telephone 

In House Copies 

Charges 

$3.44 

$1.50 

$21.60 

Total Expenses 

Total New Charges 

Previous Balance 

$26.54 

$324.04 

$4,471.50 

ExhibitH, Page 29 of 35 
Ronald Smith p^.,^ ^^ . :, 

November 30, 2010 ^ 

8/18/2010 Payment-thank you $-4,471.50 

Total Payments and Credits $-4,471.50 

BALANCE DUE $324.04 

As a .service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & Cole, P.C. to charge $ dollars on my 

Mastercard/Visa (please circle which card). My card number is with 

an expiration date of . 

Dated this day of .2010. 

Signature 

ExhibitH, Page 30 of 35 
Law Offices of Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage. AK 99511 

February 15,2011 

hivoiceNo: 04305 

Fed. Tax Jd. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Pfofessional services 

1/12/2011 

1/28/2011 

2/01/2011 

.2/02/201 1 

2/03/2011 

2/06/2011 

2/07/2011 

2/07/2011 

2/08/2011 

2/08/2011 

2/0S/2011 

KSG 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

KSG 

BRC 

BRC 

KSG 

Hours 

E-mails to P. Matthews and R. Smith regarding scheduling. 

Prepare for and attend meeting with client; telephone conference 

with Ms. Aftisia; attempts to contact other witnesses: review 

prior hearing testimony 

Review file; attempted contact with Mr. Linne; 

Review witness statements and prepare questions 

Respond to opposing counsel regarding exhibit lists; continue 

preparation 

Review transcript in preparation for hearing 

Interview Todd Linne; review hearing transcript; prepare for 

hearing 

Telephone call from A. Afusia; e-mail. 

Review documents and tran.script; telephone conference with 

Smith employees 

Prepare for and attend telephonic hearing: present three 

witnesses 

Telephone calls to witnesses regarding hearing. 

Amount 

For professional services rendered 

0.)0 

1.50 

0.30 

0.40 

0.30 

1.50 

2.50 

0.20 

1.50 

2.50 

0.20 

11.00 

$7.50 

$300.00 

$60.00 

$80.00 

$60.00 

$300.00 

$500.00 

$)5.00 

$300.00 

$500.00 

$15.00 

$2,137.50 

'fotal New Charges 

Previous Balance 

$2,137.50 

$324.04 

ExhibitH, Page 31 of 35 
Ronald Smith 

Febmaiy 15,201! 

Page No.: 2 

12/13/2010 Payment-thank vou. $-324.04 

Total Payments and Credits $-324.04 

BALANCE DUE $2,137.50 

• *** ++* + ** +++ Y[^^/[^|^5-pp|:^Qy^|^Q** ******* ******** 

As a service to our clients you may now pay for legal services with your Visa/Mastercard Express 

charge cards. 

I hereby authorize Marston & Cole. P.C. to charge $ dollars on my 

Ma.stercard/Visa (please circle which card). My card number is ^ .^^_^_ ^^'^l' ' 

an expiration date of . 

Dated this dav of .2011. 

Signature 

ExhibitH, Page 32 Of 35 
Law Offices of Marston & Cole, P.C. 

821 N StreeL Suite 208 

Anchorage. AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Lnc. 

POBox 111565 

Anchorage. AK 99511 

Februat7 28,2011 

Invoice No: 04407 

Fed. Ta.x Id. No. 92-0152597 

Case maUer: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Expenses 

Start Dale 

2/28/2011 

2/28/2011 

Description 

Long distance conference call 

Long distance phone calls 

Total Expenses 

Charges 

$56.01 

$3.90 

$59.91 

Total New Charges 

Previous Balance 

$59.91 

$2,137.50 

BALANCE DUE $2,197.41 

As a Service lo our clients you may now pay for legal services with your Visa/Mastercard E.xpress 

charge cards. 

I hereby authorize Marston & Cole. P.C. to charge $ 

Mastercard/Visa (please circle which card). My card number is 

an expiration date of . 

dollars on my 

uith 

Dated this day of .201 

Signature 

ExhibitH, Page 33 of 35 
Law Offices of Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Ronald Smith 

Smith Cable Systems, Inc. 

POBox 111565 

Anchorage, AK 99511 

July 26, 2011 

Invoice No: 05169 

Fed. Tax Id. No. 92-0152597 

Case matter: Smith- FAA Hazardous Materials 

OurFileNo.: 1092.001 

Professional services 

5/16/2011 

6/08/2011 

6/10/2011 

6/22/2011 

6/23/2011 

6/24/2011 

6/26/2011 

6/27/2011 

BRC 

KSG 

BRC 

BRC 

BRC 

BRC 

BRC 

BRC 

Review closing argument by FAA 

Draft stipulation to e.xtcnd time for closing argument. 

Draft and revise stipulation for extension of closing argument; 

telephone conference vvith opposing counsel 

Review transcript; prepare written closing 

Review transcript; prepare closing argument 

Draft and revise closing argument 

Continue drafting closing arguments 

Continue finalizing final closing argument 

For professional services rendered 

Hours 

0.30 

0.30 

0.40 

1.30 

3.50 

6.00 

3.50 

6.50 

21.80 

Amount 

$60.00 

$22.50 

$80.00 

$260.00 

$700.00 

$1,200.00 

$700.00 

$1,300.00 

$4,322.50 

Expenses 

Start Date 

7/21/2011 

Description 

In House Copies 

Total Expenses 

Charges 

$11.60 

$11.60 

Total New Charges 

Previous Balance 

$4,334.10 

$2,197.41 

ExhibitH, Page 34 of 35 
Ronald Smith 

Julv26. 2011 

Paee No.: 2 

3/04/201 Payment - thank you. 5-2.137.50 

3/11/2011 Payment - thank vou. $-59.91 

Total Payments and Credits $-2,197.41 

BALANCE DUE 

• *********** +  y,5^^,^^5-p£(^(-^(^Q** =4:***t********** 

As a service to our clients you may pay for legal ser\'ices with your Visa/Mastercard Express charge 

cards. 

$4,334.10 

I hereby authorize Marston & Cole. P.C. to charge $ 

Mastercard/Visa (please circle which card). My card number is 

an expiration daty oi' . 

dollars on my 

with 

Dated this dav of .2011. 

Signature 

ExhibitH, Page 35 of 35 
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Brent R. Cole 

Law OfTices of Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501 

(907)277-8001 

Attorneys for Smith Cable Systems, Inc. 

In the matter of: 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

NATIONAL TRANSPORTATION SAFETY BOARD 

) 

Smith Cable Systems, Inc. 

) FAA Docket No. CP09AL00012 

) 

) DMS NO. FAA-2009-0976 

STATE OF ALASKA 

AFFIDAVIT OF RON SMITH 

) ss 

THIRD JUDICIAL DISTRICT ) 

Ron Smith, being first duly sworn, deposes and says: 

1. I am the owner of Smith Cable System, Inc. ("Smith Cable"), an Alaska 

corporation. 

In re: Smith Cable Systems. Inc., DMS No. FAA-2009-0976 

Page I of2 Exhibit I, Page1 of!! 

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2. Smith Cable's net worth does not exceed $7 million and it employs fewer 

than 500 people. 

Ron Smith 

SUBSCRIBED AND SWORN to before me thi her, 2011. 

yJ^tary Public in and for Alaska 

Nly commission expires: ^ ^/^-2^0/ / 

CERTIFICATE OF SERVICE 

This is to oertily thai on thisZ/ft ^ day of September, 

2011, B tnw and correct copy of the foregoing document 

was y 

0 MaUed 

1 I Hand-delivered 

• Faxed 

to the following: 

Original and ODf copy; 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright BuUding—Suite 2W1000 

Federal Aviation Adminisiralion 

800 Independence Avenue, SW 

Washington, DC 20591 

One copy: 

Craig Wm. Black, Esq. 

Office of the Regional Counsel 

222 West 7th Avenue. #14 

Anchorage, AK 99513-7587 

Fax: 271-2800 

The Honorable Richard C. Goodwin 

OfTice of Hearings, M-20 

U.S. Department of Transportation 

East Building Gnjund Floor, Room E12-320 

1200 New J«s^Avenue , S.E,-

WashinepjiCDp 20590 / Y ^ ^ 

K ^ ^ Gustafson 

Affidavit of Ron Smith 

inre: Smith Cable Systems, Inc., DMS No. FAA-2009-0976 

Page 2 of 2 Exhibit I, Page 2 of 

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