BEFORE THE DEPARTMENT 

### OF TRANSPORTATION

WASHI NGTON, 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, Community

AI R 7th Floor, 150 John Street Toronto M5V 3E3 Work: (416)598

- 0544 (direct) Cell: (416)835

- 4384 Fax: (416)598

- 3484 August 18, 2011 Introductio n Porter Airlines filed an exemption renewal application in this docket on June 24, 2011. Community

AIR (CAI R) answered on July 8, 2011. On July

18, 2011, Porter Airlines replied to the CAIR July

8 filing claiming that the points CAI R raised were without merit. CAI R responded further (July 26, 2011) countering with details why CAI R’s observations had merit. On August 2, 2011, Porter Airlines moved to have CAI R’s July 26 response dismissed on technical grounds. CAIR will argue in this filing why the De partment of Transportation (the Department) should consider Porter Airlines’ Motion to Strike very

carefull y, 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, CAI R appreciates the openness with which the Dep artment operates. However, CAIR is disappointed that Porter Airlines has lowered itself to name

calling and character assassination in impugning motives for CAIR’s participation in these proceedings. CAIR feels that these actions are unworthy of an airl ine that prides itself on its refinement. Porter Airlines in its motion cites a number of regulations as grounds to dismiss CAI R’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 repeatedl y stated CAIR is a community

group and as such we rel y solely on volunteer research and writing. To date CAIR has corresponded with DOT analy st Robert J. Finamore as up until now CAI R 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 CAI R asks that the Department consider accepting July 26 response based on the substantive issues it raised. Substantive I ssues In May 2005, Porter Airlines and the Toronto Port Authority (TPA) signed an Commercial Carrier Op erating 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 L isa Raitt, the then CEO of the Toronto Port Authority , the owner/op erator 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 cop y of correspondence to US Airway s as proof. CAI R 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 con cern is based on a 2003 Memorandum of Understanding between the two parties as determined b y a Canadian f ederal government fact finder , and a 2010 report of a court proceeding that directl y 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 wa s incorrect, and possibly , intended to mislead y our Department.CAI R furthermore contends that Porter Airline s’ fitness grounds deserve review based on

its trans border loa d factors, debt levels as of March 2010 (the last date that its financial informati on was publically available) and lender’s requirement that Porter Airlines meet a 60% trans border usage requirement on its mortgaged aircraft. CAI R’s July

26 submission containing details of the foregoing is attached for the reader’s convenience. Conclu sion CAI R 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 Porte r Airlines address them substantively

.

Brian Iler Chair, Community

AI R 7th Floor, 150 John Street Toronto M5V 3E3 Work: (416 )598

- 0544 (direct) Cell: (416)835

- 4384 Fax: (416)598

- 3484 http://www.community air.org/