March 23, 2010

DOT Docket Office

Attention: Angelia Ames, and

Ms. Laura Remo

U.S. Department of Transportation

1200 New Jersey Avenue, SE

Washington, DC 20590

RE: Motion to file an otherwise unauthorized document and NACA response to Docket # OST2009-0311, Application of CSI Aviation Services for an Emergency Exemption; DOT Order 2010-

3-21; and Capital Aviation Objection dated March 18, 2010

Dear Ms. Remo:

In accordance with 14 CFR 302.6(c), National Air Carrier Association (NACA) requests leave to file an 

otherwise unauthorized document in response to objections filed by Capital Aviation, Inc. and Capital 

Airways, LLC late March 18, 2010 in the matter in caption. NACA was not served with Capital 

Aviation’s objection, but NACA believes Capital Aviation’s filing raises significant new issues in public 

law, federal regulations, and public policy, and its filing will benefit the Department’s consideration. The 

Department is well aware that NACA was a party in the proceedings on the CSI application for 

emergency exemption (Docket # OST-2009-0311) that resulted in the DOT’s Order to Show Cause, OST2010-3-21. 

NACA continues to object to the approval of the CSI application for all the reasons previously stated. We 

have grave concerns with the apparent claim by the General Services Administration (GSA) that Federal 

Acquisition Regulations take precedence over DOT’s authority to require certification prior to holding out 

to the public. We do not believe it is in the public interest to grant indirect air carrier status to brokers for 

government charters until public hearings are held to review GSA’s claims. However, as the Order to 

Show Cause is final in reference to those issues, we will pursue those concerns through other avenues 

available to us.

NACA fully supports the Department’s language in Order 2010-3-21 that states, “The brokers may only 

enter into agreements with air carriers that hold the requisite authority to engage in air

transportation” and footnote 9, which further clarifies that brokers may not enter into agreements 

with “carriers” operating under 14 CFR Part 125. While Part 125 operators are not “carriers”, 

the Department does clarify their intent with that footnote.

NATIONAL AIR CARRIER ASSOCIATION

1000 Wilson Boulevard, Suite 1700

Arlington, VA22209

Ph: (703) 358-8060 Fax: (703) 358-8070

www.naca.cc
Motion to file an otherwise unauthorized document

Order to Show Cause 

Docket OST-2009-0311

Page 2 of 3

Capital Aviation states on page 4 of its objection that there is no legal or rational basis for DOT 

to bar brokers from arranging air transportation with Part 125 operators for GSA schedules or 

government agency contracts. It further chastises the Department for not having regulatory 

authority over Part 125 operations. These statements by Capital Aviation defy the very concepts 

of Part 125 certification. In particular, they ignore the fact that 14 CFR Part 125 is only 

applicable to operations when common carriage is not involved. Thus, Part 125 operators are 

restricted to “non-common carriage.” Non-common carriage is defined at 14 CFR 119.3 as “an 

aircraft operation for compensation that does not involve a holding out to others [emphasis 

added]. 

To add further emphasis to this requirement, Section 119.5(k) states, “No person may advertise 

or otherwise offer to perform an operation subject to this part unless that person is authorized by 

the Federal Aviation Administration to conduct that operation.” Thus, Part 125 operators may 

not advertise or solicit from anyone, public or private. Providing air operations through a broker 

is “holding out” as the broker is clearly soliciting a government contract in this case. 

Furthermore, Section 119.5(h) states, “Persons issued an Operating Certificate authorizing noncommon or private carriage shall not conduct any operation in common carriage.” Only direct 

air carriers holding Air Carrier Certificates may conduct common carriage. Section 119.5(i) 

states, “No person may operate as a direct air carrier without holding appropriate economic 

authority from the Department of Transportation.” 

Thus, while it may surprise Capital Aviation, Part 125 operations contracted through a broker is 

now and always has been a violation of Federal Aviation Regulations. That same Federal 

Aviation Regulation requires DOT economic authority to hold out for air transportation. While 

Capital Aviation, a broker without DOT economic authority, may not know the FAA regulations, 

Capital Airways is required to know them. We implore both DOT and FAA to hold all persons 

accountable for federal regulations.

Capital Aviation conveniently overlooks requirements in its contracts with the government of 

which Capital Airways may not be aware. The U.S. Immigration and Customs Enforcement 

(ICE) contract statement of work states that the contract is for “Air Transportation.” “Air 

transportation” includes the transportation of passengers or property by aircraft as a common carrier for

compensation. As noted above, common carriage in the context of air service consists of the provision or 

holding out of transportation by air. From the standpoint of the requirements of section 41101, the 

holding out of air service, as well as the actual operation of that service, constitutes “engaging” in air 

transportation.

The ICE contract is also dependent upon the vendor holding a GSA schedule and abiding at all times with 

the detailed requirements of the GSA contract. The language of the Capital Aviation GSA contract SIN 

599-5 Statement of Work, also held by CSI and other brokers, from its very drafting approximately 18 

months ago, has called for “air transportation” and specifies that the operations must be provided by
Motion to file an otherwise unauthorized document

Order to Show Cause

Docket OST-2009-0311

Page 3 of 3

subcontractors that must be certificated under 14 CFR parts 121 and/or Part 135. (See SIN 599-5 

statement of work, section entitled Requirement for Operators, paragraph 2). NACA is well aware that 

this GSA contract standard existed prior to DOT’s investigation of the broker violations that brought 

about CSI’s application for indirect air carrier status. Thus, contrary to Capital Aviation’s assertion, 

DOT’s recent investigations did not create anything new under these government contracts.

Capital Aviation states that its “affiliate” Capital Airways has flown more than 3,000 flights for U.S. 

Customs and Immigration Enforcement (ICE). However, Capital Aviation does not explain under what 

authority these contracts were operated. The ICE Statement of Work, as noted above, calls for air 

transportation, and, as noted above, that air transportation can only be provided as common carriage by a 

part 121 or 135 Air Carrier Certificate holder. Thus, there could not have been a legal direct contract 

between ICE and Capital Airways, a Part 125 operator restricted to non-common carriage. If the 

transportation was in a subcontract through a broker that was “holding out”, then neither the broker nor 

the operator was qualified under DOT and/or FAA regulations to do so.

The issues and this objection by Capital Aviation only further emphasize the problems in permitting GSA 

599-5 to exist without extensive revision and training of agency contracting officials to bring it into 

compliance with existing laws and regulations pertaining to air carrier certification. Issuance of a new 

DOT Order for future use does not relieve non-certificated entities from wrong-doing in the past. 

We respectfully request the following steps by the Department: (1) continue to investigate both prior and 

existing violations of DOT and FAA regulations revealed in the CSI application and Capital Aviation’s

objection; (2) hold those responsible who are clearly in violation; (3) cause GSA to modify the language 

of SIN 599-5 to clarify the details of the new Order 2010-3-21; and, (4) cause GSA to distribute training 

materials through its web site for agency contract officers and persons attempting to contract with GSA to 

provide air transportation.

Respectfully Submitted,

A. Oakley Brooks

President