BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

________________________________________

 )

Application of ) 

 )

PORTER AIRLINES INC. ) 

 )

For an exemption pursuant to 49 U.S.C. § 40109 ) Docket No. OST-2007- 27402

and a foreign air carrier permit pursuant to )

49 U.S.C. 9 41302 (Canada - U.S.) )

________________________________________)

COMMUNITY AIR’S RESPONSE TO PORTER’S MOTION TO STRIKE

Communications with respect to this document should be sent to:

Brian Iler

Chair, CommunityAIR

7th Floor, 150 John Street

Toronto M5V 3E3

Work: (416)598-0544 (direct)

Cell: (416)835-4384

Fax: (416)598-3484

August 18, 2011

Introduction

Porter Airlines filed an exemption renewal application in this docket on June 24, 2011. 

Community AIR (CAIR) answered on July 8, 2011. On July 18, 2011, Porter Airlines 

replied to the CAIR July 8 filing claiming that the points CAIR raised were without 

merit. CAIR responded further (July 26, 2011) countering with details why CAIR’s 

observations had merit. On August 2, 2011, Porter Airlines moved to have CAIR’s July

26 response dismissed on technical grounds. CAIR will argue in this filing why the 

Department of Transportation (the Department) should consider Porter Airlines’ Motion 

to Strike very carefully, reject it and require Porter Airlines to respond to the substantive 

issues raised in the CAIR July 26 filing.
Porter Airlines’ Technical Grounds

In echoing Porter Airlines’ understanding of the Department’s provision of liberal access 

to its dockets in the interest of giving the public a voice and an opportunity to participate 

in public proceedings, CAIR appreciates the openness with which the Department 

operates. However, CAIR is disappointed that Porter Airlines has lowered itself to namecalling and character assassination in impugning motives for CAIR’s participation in 

these proceedings. CAIR feels that these actions are unworthy of an airline that prides 

itself on its refinement.

Porter Airlines in its motion cites a number of regulations as grounds to dismiss CAIR’s 

July 26 response. We have examined these and other regulations and while each of those 

cited allows for the possibility of a challenge it appears that the over all tenor of 

14 CFR - Code of Federal Regulations - Title 14: Aeronautics and Space is one that 

allows for appeals and special rulings. As Porter Airlines has repeatedly stated CAIR is a 

community group and as such we rely solely on volunteer research and writing. 

To date CAIR has corresponded with DOT analyst Robert J. Finamore as up until now 

CAIR was unaware of 14 CFR and Mr. Finnamore’s name was identified in the DOT’s 

June 20, 2008 Notice of Action Taken. See attached. With this in mind CAIR asks that 

the Department consider accepting July 26 response based on the substantive issues it 

raised.

Substantive Issues 

In May 2005, Porter Airlines and the Toronto Port Authority (TPA) signed an 

Commercial Carrier Operating Agreement that reportedly gave Porter Airlines exclusive 

access to a number of slots and routes on a non-competitive basis. That document should 

be produced as the best evidence available of just what was agreed upon.

On February 26, 2007, Porter Airlines applied for an exemption and foreign air carrier 

permit under the U.S. – Canada Open Skies Agreement..

On June 20, 2008, the Department granted an exemption citing a letter from Lisa Raitt, 

the then CEO of the Toronto Port Authority, the owner/operator of the Toronto City

Centre Airport (TCCA) now the Billy Bishop Toronto Centre Airport as evidence that 

U.S. carriers had access to the TCCA. Ms Raitt offered a copy of correspondence to US 

Airways as proof.

CAIR is concerned that the 2005 CCOA between Porter Airlines and the TPA may have 

contravened Article 5, Fair Competition, Sections 1 and 2 of the U.S. - Canada Open 

Skies Agreement. Our concern is based on a 2003 Memorandum of Understanding 

between the two parties as determined by a Canadian federal government fact finder, and 

a 2010 report of a court proceeding that directly contradicts Ms. Raitt’s 2008 assurance.

Only an examination of the 2005 agreement can determine whether the original 

exemption granted was founded upon information that was incorrect, and possibly, 

intended to mislead your Department.
CAIR furthermore contends that Porter Airlines’ fitness grounds deserve review based on 

its trans border load factors, debt levels as of March 2010 (the last date that its financial 

information was publically available) and lender’s requirement that Porter Airlines meet 

a 60% trans border usage requirement on its mortgaged aircraft.

CAIR’s July 26 submission containing details of the foregoing is attached for the reader’s 

convenience.

Conclusion

CAIR submits that it has presented substantive issues that that touch upon the legitimacy

of Porter Airlines’ exemption under the U.S. – Canada Open Skies Agreement. We also 

submit that there are serious questions about Porter Airlines’ fitness, that merit inquiry. 

Rather than have these matters cast aside on technical grounds, we urge the Department 

to require that Porter Airlines address them substantively.

Brian Iler

Chair, CommunityAIR

7th Floor, 150 John Street

Toronto M5V 3E3

Work: (416)598-0544 (direct)

Cell: (416)835-4384

Fax: (416)598-3484

http://www.communityair.org/