BEFORETHE UNITED STATES OFAMERICA DEPARTMENT OFTRANSPORTATION FEDERALAVIATION ADMINISTRATION

AIR TRANSPORTASSOCIATION OF AMERICA, INC. d/b/a AIRLINES FOR AMERICA, et al. Complainants,
v. PORT OF PORTLAND, OREGON, Respondent. Docket No. 16-16-04

ANSWER IN OPPOSITION TO MOTION TO SUPPLEMENT THE RECORD
Pursuant to 14 C.F.R. § 16.19(c), Respondent, the Port ofPortland ("Port"), submits this Answer in opposition to Complainants' Motion to Supplement the Record dated February 21, 2017 ("Motion"). The Motion should be denied because the material that Complainants seek to introduce into the record lacks probative value and is inapposite orirrelevant to the matterunder investigation in this proceeding. 1 With their Motion, Complainants submit a letterfrom FAA ChiefCounsel Reginald C. Govan dated November 17, 2016 (the "Govan Letter") and a petition for review ofthat letter filed in the Eleventh Circuit Court ofAppeals by a number oflocal governments in the State of Georgia. Complainants argue that the Govan Letter is relevantbecause "it acknowledges, on

1The Port incorporates all ofthe arguments made in, and exhibits submitted with, its Answer and its Rebuttal, and reiterates those arguments as ifrestated herein. To the extentComplainants raise new allegations in their Motion that are not expressly addressed herein, such allegations are hereby denied.behalfofFAA, that one ofthe key statutes prohibiting diversion ofaviation-generated revenues -49U.S.C. 47133

- applies not only to airport operators and governmental sponsors, but also to local governments which do not own or operate an airport, including the City ofPortland, Oregon." Motion at 1 (emphasis omitted).2 Complainants are wrong. First, the Govan Letter does not purport to speak "onbehalfof FAA," as Complainants claim. Rather, the Govan Letter "represents the present view ofthe FAA's Office ofChiefCounsel"based on the narrow facts previously put forward by the addressees and, therefore, is "advisory" and "does not constitute a final agency action." Govan Letter at 6. More importantly, the Govan Letter addresses an issue notbefore the agency in this proceeding: whetherproceeds from local taxes on aviation fuel imposedby local governments that do not own oroperate an airport may be used for non-aviation purposes. Rather, the issue before FAA is whether the Port may use airport revenue to pay utility fees assessed by the City ofPortland on the Port, aratepayer ofthe City ofPortland by virtue ofthe Port's possessory interest in airport land located wholly within the limits andjurisdiction ofthe City ofPortland. Complainants take one sentence from the Govan Letter and, using it out ofcontext, change it by substituting their own words to make it reach theirpreferred conclusion. Motion at 5. This manufactured evidence merely rehashes a previous argument, see Reply at 17-18, and does not require further response from the Port.3

2 The single relevance that Complainants give to the Eleventh Circuit Petition is that "it provides context to the significance, meaning ofand circumstances relating to the issuance ofthe Govan Letter." Motion at 2. Thus, to the extent that the Govan Letter is inapposite to the issues under investigation in this proceeding, the Eleventh Circuit Petition is entirely irrelevant. 3 The Port already has addressed Complainants' arguments that the City ofPortland utility charges are akin to local fuel taxes. Answer at 33 (conceding the notion that "Congress spoke to and limited the authority oflocal taxing authorities on aviation fuel"); Rebuttal at 14 n.13 (explaining, in response to Complainants' concern ofsponsor abuse, that non-sponsor fuel taxes are the only non-sponsor charges expressly referenced in 49 U.S.C. §§ 47133, 47107(b)). 2The Port's use ofairport revenue to pay for the City ofPortland's utility fees does not violate Federal airportrevenue use restrictions. Complainants' Motion isjust an attempt to have another swing at the Port's arguments, and should be denied.

March 

### 3, 2017 Respectfully submitted,

Pablo 0. Ntiesch Peter J. Hopkins Anjali G. Patel Jessica R. Bell SPIEGEL& MCDIARMIDLLP 

### 1875 Eye Street, N.W. Suite 

### 700 Washington, D.C. 

### 20006 Email: pablo.nuesch@spiegelmcd.com Phone: 

### (202)879-4000 Fax: 

### (202)393-2866 Attorneys for the Port ofPortland

3Certificate ofService

I hereby certify that Ihave today, the 3rd day ofMarch, 2017, caused the foregoing Answer in Opposition to Motion to Supplement the Record to be served electronically by or via email, on the following:
David Berg, Esq. Vice President & General Counsel DougMullen, Esq. Assistant General Counsel AirTransport Association ofAmerica, Inc. d/b/a Airlines for America 1275 PennsylvaniaAvenue, N.W. Suite 1300 Washington, D.C. 20004 (202) 626-4234 Email: dberg@airlines.org dmullen@airlines.org Counselfor Complainants Roy Goldberg, Esq. Steptoe & Johnson LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-8028 Email: rgoldberg@steptoe.com