UNITED STATES DEPARTMENT OF TRANSPORTATI 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

y S E i W E, 

B - 1 2010 

AWPORT/ENVIRONMEKTAL 

LAW. AGc-eon 

HELIOPS, LLC, 

Complainant, 

NORWOOD MEMOEQAL AIRPORT and 

NORWOOD AIRPORT COMMISSION, 

Respondents. 

Docket No. 16-09-10 

RESPONDENTS' REBUTTAL TO COMPLAINANT'S REPLY 

L INTRODUCTION 

Pursuant to 14 C.F.R. § 16.23(f) and the January 15,2010 letter from the Federal 

Aviation Administration ("FAA") Office of the Chief Counsel, Airports Law Branch, the 

Respondents, the Norwood Memorial Airport ("Norwood Airport") and Norwood Airport 

Commission ("Airport Commission"), hereby provide a Rebuttal to the Complainant, 

Heliops, LLC's ("Heliops"), Reply. (Collectively, Norwood Airport and the Airport 

Commission are referred to as "Respondents"). 

As stated below, Heliops' Complaint is untimely because Heliops failed to invoke 

the 14 C.F.R. Part 13 informal complaint procedures. In addition, the factual arguments 

in Heliops' Reply are unsupported by documents and/or verification. Nevertheless, the 

Airport Commission has uniformly and properly applied the applicable Norwood Airport 

Minimimi Standards ("Minimum Standards") and General Regulations for Norwood 

Memorial Airport ("General Regulations") to Heliops' Part-91 commercial operations, 

and Heliops lacks standing to challenge the application of the Minimum Standards to 

Part-135 commercial operations. In addition, Heliops mischaracterizes the underlying 
March 24, 2009 incident and applicable security requirements. In the interests of 

economy and efficiency, the Respondents refer to and incorporate herein the arguments 

contained in their previously filed Answer, Partial Motion to Dismiss, and Affirmative 

Defenses. 

IL ARGUMENT 

A, 14 C.F.R. Procedures 

As a starting point, 14 C.F.R,, § 13.1(a), states that "[a]ny person who knows of a 

violation of the Federal Aviation Act of 1958, as amended,... the Airport and Airway 

Development Act of 1970, the Airport and Airway Improvement act of 1982, the Airport 

and Airway Improvement Act of 1982 as amended by the Airport and Airway Safety and 

Capacity Expansion Act of 1987, or any rule, regulation, or order issued thereunder, 

should report it to appropriate personnel of any FAA regional or district office." 

(Emphasis added). FAA personnel evaluate such reports in order to determine whether 

additional investigation or enforcement is warranted. 14 C.F.R., § 13.1(b). 

It does not appear that Heliops made a preliminary report to the FAA Regional 

Office for the New England Region as contemplated by 14 C.F.R., § 13.1(a)(1), however. 

Because it bypassed such informal resolution and instead filed a 14 C.F.R. Part 16 

Complaint with FAA Headquarters, Heliops has failed to exhaust its administrative 

remedies. 

In addition, 14 C.F.R., § 16.23 required Heliops' Reply to "be accompanied by 

supporting documentation" upon which it relies. Yet, Heliops' Reply consists of seven 

(7) pages of argument, without any supporting documentation or verification. Therefore, 
the FAA should dismiss Heliops' factual arguments as baseless and devoid of proper 

support. 

R Heliops' Operations 

In its Reply Brief, Heliops argues at length about a perceived lack of uniformity 

involving Part-135 commercial operators. However, Heliops does not contend that it is a 

Part-135 commercial operator. Rather, Heliops has held itself out to the Airport 

Commission as a Part-91 commercial operator at all relevant times. (Answer Ex. K.) 

Because Heliops is only a Part-91 commercial operator, Heliops' arguments involving the 

provisions in the Minimum Standards and General Regulations applicable to Part-135 

operators amount to comparing apples to oranges, and constitute a red herring. 

Additionally, Heliops lacks standing to challenge the Minimum Standards applied to 

Part-135 commercial operators, given that it does not conduct such services at Norwood 

Airport. 

It is axiomatic that Part-91 and Part-135 operations present different types of 

issues for regulatory authorities and, consequently, are subject to separate federal and 

local requirements. (See Answer Ex. B at 4, 5, 7.) Therefore, the only issue before the 

FAA is the application of the Minimum Standards and the General Regulations to 

Heliops as a Part-91 commercial operator, specifically the office space and 

hangar/commercial tie-down requirements. 

Moreover, Heliops' arguments concerning the nature and extent of its operations 

at Norwood Airport are conflicting and inconsistent. Heliops uses the term "episodic" to 

describe its use of Norwood Airport, but then contradicts this label by conceding that it 

"had used this ramp area manv times before with permission of the FBO so it was not 
uncommon to do so." (Reply at 2, 6) (emphasis added). The term "episodic" is also 

inconsistent with Heliops' own admission that it has been flying into and out of Norwood 

Airport for five (5) years. (Answer Ex. F.) Heliops conducted twenty (20) flight 

operations out of Norwood Airport during 2008 alone. (Complaint at 3.) There is no 

upper restriction on the total number of commercial operations that Heliops may conduct 

out of Norwood Airport during any given year, particularly given its print and Internet 

advertisements listing Norwood Airport as a point of origin or destination. (Answer Ex. 

D.) Instead, Heliops is only constrained on its usage of Norwood Airport based upon 

customer demand. Heliops' usage of Norwood Airport cannot be viewed in a vacuum or 

on the basis of isolated incidents, but instead as part of an ongoing satellite or shadow 

base of operations. Accordingly, Heliops cannot hold itself out as an "episodic" user of 

Norwood Airport for commercial operations. 

The Airport Commission is merely requiring Heliops to adhere to the applicable 

provisions in the Minimum Standards and General Regrolations applicable to Heliops' 

Part-91 commercial operations. This approach is consistent with FAA Advisory Circular 

(AC) 150/5190-7, Minimum Standards for Commercial Aeronautical Operations, which 

states as follows: "The airport sponsor's purpose in imposing standards is to ensure a 

safe, efficient and adequate level of operation and services is offered to the public." FAA 

AC 150/5190-7 at 3. In turn, the Airport Commission adopted Minimum Standards for 

various types of commercial operators based upon the type of commercial activity, which 

it has applied uniformly to Heliops and other similarly situated commercial operators. As 

discussed in more detail in the Respondents' Answer, the business presence requirements 

were created in order to create accountability, reliability and trustworthiness on the part 
of commercial operators and to reduce uncertainties by the flying public, all in light of 

the Airport Commission's past experience (including incidents with sightseeing tornoperators) with such operations at Norwood Airport. (Answer at 21.) 

Heliops wants to create an exception to the Minimum Standards and General 

Regulations based upon its purported frequency of use of Norwood Airport, yet no such 

exception exists in the Minimum Standards as adopted by the Airport Commission. 

Rather, Heliops conducts commercial activities into and out of Norwood Airport, to wit, 

sightseeing, aerial photography and surveying, and the Airport Commission has applied 

the operative Minimum Standards and General Regulations accordingly. It is reasonable 

to expect Heliops to comply with all applicable Minimum Standards and General 

Regulations because it is using Norwood Airport for commercial (i.e. revenue-producing) 

activities. Indeed, the Airport Commission considered, and ultimately denied, Heliops' 

request for a waiver from the office space and hangar/commercial tie-down requirements. 

The Airport Commission cannot be faulted for creating a level playing field for all 

commercial operators performing a specific type of commercial activity, and for the 

consistency in its application of the Minimum Standards and General Regulations. 

Heliops also contests the "Special Note" for "transient operators" appearing in 

Part III (Flight Instruction, Aircraft Rental, Sales and Sightseeing Flights) of the 

Minimum Standards. Specifically, this "Special Note" states that "[t]ransient commercial 

flight operators are not authorized to use the airport as a base of operations to pick up 

students or clients; to advertise and/or use the airport as a point of origin or destination 

vsathout first obtaining from the NAC [i.e. the Airport Commission] a commercial 

permit." (Answer Ex. B at 6.) Stated otherwise, not all fransient commercial operators 
are required to obtain commercial permits, just those that use Norwood Airport as a base 

of operations for picking up students or clients, advertise Norwood Airport as a point of 

origin or destination, or use Norwood Airport as a point of origin or destination. 

Commercial permit holders must comply with all of the applicable Minimum Standards. 

(Answer Ex. C at 12.) 

The Airport Commission disputes that Heliops is a fransient commercial flight 

operator and instead contends that Heliops uses Norwood Airport as a shadow base of 

operations based upon the frequency and extent of its commercial activities at Norwood 

Airport, and its advertisements, as described supra. In fact, Heliops even represented to 

the Airport Commission that it intended to use Norwood Airport as a satellite base of 

operations. (Answer Ex. F.) Thus, Heliops cannot cloak itself under the "fransient" 

label. 

Assuming, for the sake of argument only, that Heliops is a fransient commercial 

operator, Heliops has not complied with the foregoing "Special Note" because it never 

obtained a commercial permit from the Airport Commission. In that regard, Heliops has 

used Norwood Airport to pick up and/or drop off clients and has used Norwood Airport 

as a point of origin or destination, as even reflected by the March 24, 2009 incident 

referenced in the Respondents' Answer and Heliops' ovra representations. (Complaint at 

3; Answer Ex. F.) Heliops has even advertised to the general public that it flies into and 

out of Norwood Airport for its commercial operations. (Answer Ex. D.) These are 

precisely the types of activities that frigger the commercial permit requirement for 

fransient commercial operators under the "Special Note." 
In summary, Heliops cannot contest the Minimum Standards applied to Part-135 

commercial operators, when its own commercial activities at Norwood Airport are 

limited to Part-91 commercial activities. Heliops cannot selectively describe the extent 

and frequency of its operations in a manner so as to evade compliance with the Minimum 

Standards and General Regulations. Rather, given the nature of its commercial activities, 

Heliops is subject to the Minimum Standards and General Regulations that the Airport 

Commission has attempted to uniformly and consistently apply, including the office 

space, hangar/commercial tie-down, and commercial permit requirements. 

C Security Requirements 

Finally, Heliops disputes the March 24, 2009 incident and, curiously, suggests 

that compliance with security guidelines is voluntary and limited to the Treinsportation 

Security Administration. This argument overlooks the fact that Norwood Airport is 

subject to the concurrent jurisdiction of the Aeronautics Division of the Massachusetts 

Department of Transportation and its predecessor, the former Massachusetts Aeronautics 

Commission ("MAC"). See Mass. Gen. Laws ch. 6C, § 60; Mass. Gen. Laws ch. 90, §§ 

35-52. 

In response to the terrorist attacks on September 11, 2001, MAC Security 

Directive AD - 001a created minimum security standards, including a requirement that 

airport sponsors take all necessary actions to prevent unauthorized access of persons into 

imauthorized areas on airport property and a list of various actions that an airport sponsor 

must take, without exception. (Answer Ex. M at 2-3.) For example, airport sponsors 

were required to install access control devices on fence gates leading into the aircraft 

operating area ("AOA") and to require the use of identification badges for those persons 
seeking to access or move within the AOA. (Id at 3; Answer Ex. N.) In addition, MAC 

Security Directive AD - 001a directed all public use airports to develop and implement a 

security plan. (Answer Ex. M at 5.) 

Norwood Airport is subject to MAC Security Directive AD - 001a and the MACapproved the Airport Commission's security plan ("Security Plan"). The Airport 

Commission's security badge holders, commercially permitted businesses, and lessees 

(including FlightLevel Aviation) must comply with the Security Plan, and its 

corresponding security procedures. (See id^ at 2) (stating that reasonable measures to 

monitor and protect airport users and property may include "[r]equiring tenants to 

develop their own security plan and to comply with the sponsor's airport security plan"). 

The Airport Commission and its staff must enforce the Security Plan as necessary, and to 

allow Norwood Airport users to violate the Security Plan would defeat its effectiveness 

and create unnecessary and unacceptable risks to the general public. 

The March 24, 2009 incident imderscores the need for all persons on Norwood 

Airport to comply with applicable security requirements, including the Security Plan. 

The reference to "after hours" in the Respondents' Answer refers to the fact that 

FlightLevel is not staffed during the late evening and overnight hours. Yet, the March 

24, 2009 incident occurred on FlightLevel's leasehold. 

Contrary to Heliops' suggestion, all individuals within the AOA must have a 

security badge or be escorted by a badge holder. Heliops tries to provide an alternative 

explanation about the March 24, 2009 incident, but the reality is that Heliops dropped off 

individuals inside the security fence, yet these individuals did not have a security badge 

and were not in the presence of a proper escort. (Answer Exs. E, F, G.) In addition. 
other individuals that Heliops dropped off created a security concern in the Norwood 

Airport parking lot around the same time. (Answer Exs. E, F, G.) Heliops makes no 

suggestion that any of the individuals involved in the March 24, 2009 incident (including 

the Heliops pilot and the Safety Man) either had a security badge or were in the presence 

of an escort at all times while within the fence, as required by MAC Security Directive 

AD - 001 a and the Security. 

There is no excuse or justification for the failure of Heliops to comply with the 

applicable security requirements for Norwood Airport, including the Security Plan. If 

Heliops had the required commercial permit, it is likely that the incident could have been 

avoided because Heliops would have had an incentive to adhere to the Security Plan, or 

else risk the revocation of its commercial permit. In addition, Heliops personnel would 

be eligible for their own security badge(s), rather than be limited to a proper escort by a 

security badge holder, if Heliops had a commercial permit. By complying with the 

business presence requirements, Heliops would have been able to supervise, stand 

accountable for, and prevent the events that took place. 

In summeiry, Heliops mischaracterizes the applicable security requirements for 

Norwood Airport. In any event, the March 24, 2009 incident highlights the significance 

of compliance with the Minimum Standards and General Regulations, particularly given 

their interrelation with security requirements. 

III. CONCLUSION 

For the foregoing reasons, and those stated in its prior Answer, Motion to Dismiss 

and Affirmative Defenses, the Respondents respectfully request that the FAA: (1) dismiss 

Heliops constitutional claim as exceeding the scope of review under 14 C.F.R. Part 16; 
and (2) determine that the Respondents' conduct is reasonable, justified and consistent 

with applicable law, regulations, FAA grant assurances, and the so-called dormant 

Commerce Clause of the United States Constitution. 

Dated: January^, 2010 Respectfiilly submitted. 

The Respondents, 

By Their Att^eys, 

^7f 

Michael C. Lehane, BBO# 292520 

mlehane@mhtl.com 

Brandon H. Moss, BBO# 657461 

bmossfS),mhtl.com 

Murphy, Hesse, Toomey & Lehane, LLP 

300 Crown Colony Drive, Suite 410 

Quincy, MA 02169 

(617)479-5000 

10 
CERTIFICATE OF SERVICE 

I, Brandon H. Moss, hereby certify that I have this day served the foregoing 

Respondents' Rebuttal to the Complainant's Reply on the following persons at the 

following addresses and via the following methods: 

Via Facsimile to (617) 951-2125 and Via First Class Mail: 

Attorneys for the Complainant, Heliops, LLC 

Kevin C. Cain, Esquire 

Timothy M. Pomarole, Esquire 

Peabody & Arnold LLP 

Federal Reserve Plaza 

600 Atlantic Avenue 

Boston, MA 02210-2261 

Via Facsimile to (202) 267-5194 and (202) 267-5769 and 

Via First Class Mail (Executed Original and Three (3) Copies): 

Office of Chief Counsel 

FAA Part 16 Airport Proceedings Docket 

AGC-610 

Federal Aviation Adminisfration 

800 Independence Ave., SW 

Room #925 

Washington, DC 20591 

Date Brandon H. Moss 

534484V1 \ \