4 

J 

SERVED JUNE 22, 2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

SMITH CABLE SYSTEMS, INC. 

FAA DOCKET No. CP09AL0012 

(Civil Penalty Action) 

DMS FAA-2009-0976 

ORDER ON MOTIONS 

The date of the hearing was determined on January 13, 2010 {see Notice of Hearing 

Dates). That order set the case for June 25, 2010, in Anchorage, AK. 

We deal with two, related, motions. The first was filed by Complainant Federal Aviation 

Administration ("Complainant" or "the FAA"). On June 17, 2010, the FAA filed an "Expedited 

Motion to Permit Telephonic Testimony" by two of its key witnesses, Tim Cook and Stephen 

Camp ("Motion to Permit"). The FAA represents that it is very inconvenient for Messrs. Cook 

and Camp, cargo handlers employed by Alaska Airlines, to travel from their base in Ketchikan, 

AK, to the hearing site in Anchorage. Complainant states that, under nearly all scenarios, the 

witnesses would need a day to travel to Anchorage and another day to return to Ketchikan, in 

addition to a day spent in Anchorage for the hearing - three days in all. Complainant 

additionally states that it has been informed that the absence of Cook and Camp for three days 

from their place of employment would cause Alaska Airlines' Ketchikan cargo operations to 

suffer "significant adverse consequences," it being the height of the tourist season. The FAA 

adds that it prepared to present the witnesses in person if that is the ruling of the undersigned. 

No answer from Respondent Smith Cable Systems, Inc. ("Respondent") has been 

received. However, the FAA states that Respondent stated to it that Respondent would oppose 

the Motion to Permit. 
The Motion to Permit is denied. Complainant offers no reason why it waited more than 

five months, and until the week before the hearing, before asking for this relief. At this late 

juncture, its prayer simply is not sufficiently compelling. Additionally, taking the testimony of 

these witnesses by telephone would compromise the fundamental right of due process of law. 

Against this background, and absent consent by the non-moving party, I cannot grant the relief 

requested. '' 

The second motion was filed jointly by Alaska Airlines, Inc., ("Alaska"), and the 

aforementioned cargo handlers, Tim Cook and Stephen Camp. On June 18, 2010, Alaska filed a 

"Motion to Quash or Modify Civil Penalty Subpoenas" ("Motion to Quash") issued to Cook and 

Camp.' In support of its motion, Alaska makes essentially the same arguments discussed with 

respect to Complainant's Motion to Permit. It adds that it "fully support[s]" the FAA's motion. 

At the same time, it offers alternatives if the FAA's motion is not granted. ^ Alaska suggests the 

following modifications to the subpoena: either 1) Camp and Cook appear by video conference; 

2) the subpoena for one of them be quashed, arguing that the testimony of both is duplicative; or 

3) if both must appear, the parties be required to complete their examination of both by 11:00 

a.m. on June 25, so that Cook and Camp might return to Ketchikan that day and miss two days, 

rather than three days, of work. 

No answers to the Motion to Quash were received.^ 

The Motion to Quash is granted insofar as it requires the witnesses, Tim Cook and 

Stephen Camp, to appear at the hearing on June 25. The hearing will take place in all respects at 

the time and place scheduled, except that Messrs. Cook and Camp will not be required to appear 

at that pomt. The testimony of Cook and Camp will be taken at a later date, under conditions to 

be determined. Parties will be permitted to present rebuttal testimony in light of either Cook's or 

Camp's testimony. 

At the hearing, the parties should be prepared to argue how the testimony of Cook and 

Camp can be taken in a manner agreeable to them, Alaska Airlines, and the undersigned. Among 

the possibilities are (as suggested by Alaska) appearance of these witnesses by videoconference at 

a place to be determined. Another is to reconvene the hearing in Seattle, which is, according to 

the FAA's Motion, on at least one of Alaska Airlines' Ketchikan routings. A third possibility is 

to take the witnesses' testimony by deposition and submit the result into evidence. 

In sum, it is hereby ordered as follows: 

1) FAA's Expedited Motion to Permit Telephonic Testimony is DENIED; 

2) The Motion of Alaska Airlines, Inc., Stephen Camp, and Tim Cook to Quash or 

Modify Civil Penalty Subpoenas is GRANTED as explained in the order; 

3) The hearing will take place as scheduled, but without the testimony of Messrs. Camp 

and Cook; and 

' The motion was filed jointly by Alaska Airlines, Inc., Tim Cook, and Stephen Camp, but for simplicity's 

sake, I will refer to the joint movants as "Alaska." 

^ Alaska also states that if the FAA's motion is granted, it withdraws its motion. Since I have in this order 

denied FAA's motion, Alaska's motion remains live. 

^ Answers to motions normally are required no later than 10 days following filing (13.218(d)), but both 

motions under consideration were filed less than 10 days prior to hearing. 
4) The testimony of Messrs. Camp and Cook will be taken at a later date and under 

conditions to be determined. 

SO ORDERED. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 
FAA Docket No. CP09AL0012 

(Civil Penalty Actiun) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Ronald G. Smith, President 

Smith Cable Systems, Inc. 

Through Counsel 

Brent R. Cole, Respondent's Counsel 

Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501-2136 

TEL: 907-277-8001 

FAX: 907-277-8002 

Glerm H. Brown, Complainant's Counsel 

Senior Attorney, Office of the Regional Counsel, AAL-7 

Alaskan Region 

Federal Aviation Administration 

222 West 7* Avenue, #14 

Anchorage, AK 99513-7587 

TEL: 907-271-5271 

FAX: 907-271-2800 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Groimd Floor, Room EI2-320 

Washington, DC 20590 

TEL: Attorney-Advisor 202-366-2139 

Legal Assistant 202-366-5121 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.