BEFORE THE UNITED ST A TES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

AIR TRANSPORT ASSOCIATION 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 of Portland ("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 or irrelevant to the matter under 

investigation in this proceeding. 1 

With their Motion, Complainants submit a letter from FAA Chief Counsel Reginald C. 

Govan dated November 17, 2016 (the "Govan Letter") and a petition for review of that letter 

filed in the Eleventh Circuit Court of Appeals by a number of local governments in the State of 

Georgia. Complainants argue that the Govan Letter is relevant because "it acknowledges, on 

1 The Port incorporates all of the arguments made in, and exhibits submitted with, its Answer and its Rebuttal, and 

reiterates those arguments as if restated herein. To the extent Complainants raise new allegations in their Motion 

that are not expressly addressed herein, such allegations are hereby denied. 
behalf of FAA, that one of the key statutes prohibiting diversion of aviation-generated revenues 

-49 U.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 of Portland, 

Oregon." Motion at 1 (emphasis omitted).2 

Complainants are wrong. First, the Govan Letter does not purport to speak "on behalf of 

FAA," as Complainants claim. Rather, the Govan Letter "represents the present view of the 

FAA's Office of Chief Counsel" 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 not before the agency in this 

proceeding: whether proceeds from local taxes on aviation fuel imposed by local governments 

that do not own or operate 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 

of Portland on the Port, a ratepayer of the City of Portland by virtue of the Port's possessory 

interest in airport land located wholly within the limits and jurisdiction of the City of Portland. 

Complainants take one sentence from the Govan Letter and, using it out of context, 

change it by substituting their own words to make it reach their preferred 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 of and circumstances relating to the issuance of the 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 of Portland utility charges are akin to local 

fuel taxes. Answer at 33 (conceding the notion that "Congress spoke to and limited the authority of local taxing 

authorities on aviation fuel"); Rebuttal at 14 n.13 (explaining, in response to Complainants' concern of sponsor 

abuse, that non-sponsor fuel taxes are the only non-sponsor charges expressly referenced in 49 U.S.C. §§ 47133, 

47107(b)). 

2 
The Port's use of airport revenue to pay for the City of Portland's utility fees does not 

violate Federal airport revenue use restrictions. Complainants' Motion is just 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 & MCDIARMID LLP 

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 of Portland 

3 
Certificate of Service 

I hereby certify that I have today, the 3rd day of March, 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 

Doug Mullen, Esq. 

Assistant General Counsel 

Air Transport Association of America, Inc. 

d/b/a Airlines for America 

1275 Pennsylvania Avenue, N.W. 

Suite 1300 

Washington, D.C. 20004 

(202) 626-4234 

Email: dberg@airlines.org 

dmullen@airlines.org 

Counsel for Complainants 

Roy Goldberg, Esq. 

Steptoe & Johnson LLP 

1330 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 429-8028 

Email: rgoldberg@steptoe.com