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UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

SMITH CABLE SYSTEMS, INC. 

Respondent. 

FAA DOCKET No. CP09AL0012 

(Civil Penalty Action) 

DMS No. FA^-2009-0976 

INITIAL DECISION 

OF ADWIINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: The Complainiint failed to prove a violation. The Complaint is dismissed. 

I. Background 

Respondent Smith Cable Systems, Inc. ("Smith Cable" or "Respondent") 

installs cable and telephone systems, gas lines, and the like throughout the State 

of Alaska (Tr. 294-95, 303-04). The parties agree that on September 10, 2008, it 

offered to Alaska Airlines in Ketchikan, AK a shipment of tools and other 

materials for air transportation to Fairbanks, AK. The parties differ about what 

the shipment contained. 

According to Complainant, the Federal Aviation Administration 

("Complainant," "the FAA," or "the agency"), the shipment included tw/o 16.4-

ounce cylinders of propane fuel and a 12-ounce can of aerosol spray paint (Tr. 

22). Propane fuel and spray paint are regulated items. They are defined as 

hazardous materials (see Hazardous Materials Table following 49 C.F.R. 

§172.101). 
Smith Cable had given no indication that the shipment contained 

dangerous goods.' The items had been undeclared. "Undeclared" means that 

the shipment had not met marking and labeling requirements for the air 

transportation of hazardous materials. Emergency response information also was 

lacking. 

This incident led the Federal Aviation Administration (hereinafter 

"Complainant," "FAA," or "agency") to prefer the charges at issue. The agency's 

Complaint alleges that Respondent violated sixteen provisions of the Department 

of Transportation's Hazardous Materials Regulations ("HMRs"); 49 CFR 

§§171.2(e), 172.200(a), 172.201(d), 172.202(a)(1)-(a)(3), 172.202(a)(5), 

172.203(f). 172.204(a), 172.204(c)(2), 172.204(c)(3), 172.300(a). 172.301(a), 

172.400(a). 172.604(a), and 173.27(b)(1). The agency seeks a total civil penalty 

of $60,000 (Tr. 25-26). 

Respondent denied the charges. It maintained that while it tendered 

certain items to Alaska Airlines at Ketchikan for transportation to Fairbanks on 

the day named in the Complaint, neither propane cylinders nor paint were part of 

the shipment. Smith Cable had offered no hazardous materials ("hazmats"), it 

says. Respondent asserted that Complainant cannot meet its burden of proof 

(Tr. 27, 37). 

I held a hearing on June 25, 2010, in Anchorage, AK. The hearing was 

suspended at the end of the day and resumed by telephone on February 8, 2011. 

Briefs have been filed and the case is ready for decision. 

The burden of proof rests with the agency. For it to prevail, it must 

establish proof of the violations alleged by a preponderance of the reliable, 

probative, and substantial evidence (14 C.F.R. §§13.223 and 13.224; Toyota 

Motor Sales, FAA Order No. 94-28, pp. 6-7, 1994 FAA Lexis 275, p. 10 

(September 30, 1994)). 

II Discussion 

A. Complainant's Testimony 

^^laska^ALrlines.eniployees Stephen Camp and Timothy Cook testified for 

Complainant. Both are ramp agents in Ketchikan. A ramp agent loads and 

unloads aircraft (Tr. 41 , 67, 85). I found both Camp and Cook to be credible 

witnesses. 

Mr. Camp testified that on September 10, 2008, he was bringing a 

shipment of cargo to an Alaska Airlines cargo warehouse. The shipment, 

' The lemi "dangerous goods," as used in the International Civil Aviation Organization (ICAO) rechnical 

Instructions, is interchangeable with the temi "hazardous material" as defined in 49 C.F.R. §171.8. See 

ahoTv.Sl. 
consisting of 24 items, had been delivered to an aircraft in order to be flown out, 

but had been removed prior to flight for undetermined reasons. (Possibly the 

cargo hold was already full, or the flight had been cancelled). It was not known 

who, or what entity, had initially tendered the items for transport. By the time 

Camp got them they had already been loaded onto pallets for transfer to the 

warehouse. On the way there one of the items, a camp stove or beach 

barbecuer, fell off a pallet and broke open. Two propane tanks fell out. Camp 

knew these were considered hazmats. Propane was not permitted on aircraft at 

all. He picked up the items and continued to the warehouse (Tr. 42-44, 47-49, 

67-72. 75, 92-93, 97-99, 120-21, 124-25, 143-44). 

Camp and his fellow ramp agent, Mr. Cook, decided to go through the rest 

of the shipment to see what other items of interest might be there. Cook soon 

found a can of aerosol spray paint (Tr. 49-50, 75-76, 89, 94-96, 102-05, 122, 

142; Exhs. C-1 through C-4). Both ramp agents were aware that this also was a 

dangerous good. 

No markings indicating the nature of these materials were present (Tr. 52-

55; Exhs. C-1 through C-4). They were placed aside. The rest of the shipment 

customarily would have been transported on the next flight to Fairbanks (Tr. 77, 

100-01, 138-39). 

FAA special agent Jeffrey Deitz, a hazardous materials specialist and 

Complainant's investigator in this matter, also testified for Complainant. He 

stated that he began his investigation after receiving an Alaska Airlines document 

entitled "Air Cargo Dangerous Goods Irregularity Report" ("Irregularity Report") 

from a cargo agent the day after the incident.^ 

Agent Deitz testified that he spoke to a representative of a company called 

Aero Services, Inc. ("Aero"). Aero, the evidence showed, was an expediter in 

Ketchikan hired by Smith Cable to deliver its cargo to Alaska Airlines.^ According 

to agent Deitz, the Aero representative told him that the person who had picked 

up Smith Cable's shipment was an Aero employee named Jessica Freeman (Tr. 

209, 275). Deitz talked to Ms. Freeman. She did not remember the shipment 

(Tr. 210, 278;Exh. C-13). 

Agent Deitz sent a Letter of Investigation ("LOI") to Smith Cable a few 

days after he began looking into the incident (Exh. C-9; Tr. 180-82). In response 

he received a call from Respondent's president, Ron Smith. Mr. Smith told agent 

Deitz that he did not know whether Smith Cable had shipped the hazmats in 

question. He promised to investigate and get back to Deitz. Smith, however, 

' I admitted the report, identified as Exhibit C-6, into evidence only to show that it had triggered agent 

Deitz' investigation. Tr. 161-62. I found Ihat adequate foundation for the report's findings was lacking. 

The identity of the cargo agent was never determined, and the basis for the information in the repon -

including the identification of Smith Cable as the shipper-was not testified to. Tr. Ill , 143-44. 

' This company is sometimes identified in the eshibits and transcript as "Aerl" or "Arrow," but it is clear 

that it is properly called Aero. 
failed to call (Tr. 183-84, 254-55). So Deitz called him. In their second telephone 

conversation Smith acknowledged that the items Smith Cable had shipped 

included a gas grill. Deitz did not ask Smith directly about whether Respondent 

had shipped propane. 

Agent Deitz concluded that Smith had admitted shipping the hazmats in 

question. Deitz later testified that the basis for his conclusion was that he had 

been "left with the impression" that that is what Smith had said. He clarified that 

Smith had not actually said that Respondent had shipped the items." 

B. Respondent's Testimony 

Ron Smith, Smith Cable's chief, testified for Respondent. 1 found his 

testimony to be forthright and honest. 

Mr. Smith identified the principal workers on the Ketchikan cable job as 

Todd Linne and Tom Fialek. Smith had not personally overseen the job. When it 

concluded, Linne and Fialek shipped everything except a bucket truck to the site 

of the next job, Fairbanks. The truck was shipped on the Alaska Marine Highway 

to the town of Whittier, to eventually go to Fairbanks (Tr. 296-97, 301-05, 327). 

The men themselves flew to Fairbanks (Tr. 304). 

Mr. Smith added that he had never had a hazmat "problem" (Tr. 301-02). 

Smith Cable employees were aware that it was improper to ship propane 

canisters (Tr. 306). He acknowledged, however, that employees on a job 

sometimes will purchase a small stove for cooking (Tr. 307). And these 

employees did allow that they had a stove on the truck (Tr. 313, 317, 321). But, 

Smith said, a stove that had been shipped to Fairbanks was not theirs. It must 

have belonged to another crew (Tr. 313-14). Someone else's freight could have 

been mixed up with Smith Cable's, he said (Tr. 318-19). Smith also denied that 

the employees would have.any need for spray paint (Tr. 307-08). Spray paint 

would not normally be found on a bucket truck because it is not needed or used 

on a job (Tr. 308, 334). 

Mr. Smith's testimony about his second phone conversation with agent 

Deitz differed in important respects from Deitz'. He might have told agent Deitz, 

he said, that the possibility existed that his employees had shipped propane. He 

did not know if they had. He would not necessarily have known if they had 

picked up a personal item and shipped it, he acknowledged (Tr. 317, 333). Smith 

concluded that could not be "100 per cent sure" that Smith Cable did not commit 

the infractions (Tr. 319). 

•* Ir. 184-85, 258-59, 262-63; Exhs. C-10, C-11, C-14. Exhibit C-14, a statement prepared by agent Deitz, 

contains a typographical error in slating that his second telephone conversation with Ron Smith look place 

on September 27. 2008. The statement should read October 27, 2008. Tr. 256-57, 272-73. 
Annie Afusia was Respondent's second witness. She was credible. Ms. 

Afusia made Smith Cable's travel and other logistical arrangements. Ms. Afusia 

testified that Linne and Fialek were working in Ketchikan in the summer of 2008, 

and when the job concluded, they and their equipment were to go to Fairbanks 

(Tr. 393-94). She ai"ranged with Alaska Airlines for two or three pallets of 

equipment and luggage to be transported from Ketchikan (Tr. 394). She further 

arranged for the boom truck and some other equipment to be transported by ferry 

on the Alaska Marine Highway. The employees flew to Fairbanks (Tr. 394-95). 

Ms. Afusia also had located the expediter, Aero, to pick up the Fairbanks-bound 

materials in Ketchikan and bring them to Alaska Airlines air cargo (Tr. 395; Resp. 

Exh. A). Ms. Afusia did not want to ship any hazardous materials by airplane on 

account of the paperwork involved (Tr. 396). She did not recall a propane stove 

being shipped as part of the cargo (Tr. 398). 

Afusia identified the air waybill issued by Alaska Airlines respecting Smith 

Cable's shipment of the pallets to Fairbanks (Resp. Exh. B; Tr. 399-400). She 

could not identify the signature, however (Tr. 400). She testified that she did not 

authorize Aero to move hazardous materials on this air waybill (Tr. 401). 

Finally, the workers on the job, Todd Linne and Tom Fialek, testified for 

Respondent. I found them credible as well. Mr. Linne stated that in all the jobs 

he has done over 25 years, he has never used spray paint (Tr. 414). He did 

purchase a propane stove in order to cook hamburgers, hot dogs, and the like 

(Tr, 415). He also remembered that at the end of the job, the truck was to go by 

ferry, and the equipment was to be flown (Tr. 417). 

Mr. Linne testified that no camping stove or similar item was on the pallets 

that he had loaded preparatory to transfer to the expediter (Aero) in Ketchikan 

(Tr. 418-19). He remembered that he, Mr. Fialek, and Aero's driver transferred 

the contents of the pallets by hand in the pouring rain to an Aero cargo truck after 

failing to convince the young man driving the vehicle to obtain equipment which 

would lift the pallets. Linne was able to see what items ended up in the truck. 

They did not contain his stove, propane tanks, or spray paint, he said. He was 

"very well aware," he testified, that he could not ship propane (Tr. 419-21, 427, 

429). Messrs. Linne and Fialek eventually flew to Fairbanks (Tr. 422). Linne did 

not recall a stove in the shipment they unloaded at the other end in Fairbanks 

(Tr. 423-24; Resp. Exh. C). 

Tom Fialek, the other contract worker, also testified that no reason existed 

to use spray paint on the job (Tr. 440). He also stated that he was aware that 

shipping propane without declaring it was improper (Tr. 442). Fialek recalled that 

other items were already in the Aero truck before they started loading up in the 

rain in Ketchikan (Tr. 444). Further, he was sure that he had seen everything 

that had been loaded onto the pallets for transfer to the truck, and he stated 

forcefully that a stove was not among them (tr. 444-45, 452). He did not see the 

truck go to the Alaska Airlines cargo facility (Tr. 446). When he went to pick up 
the equipment in Fairbanks, no stove was there (Tr. 446-47). And Alaska 

Airlines, from whom he received the shipment, did not say anything to him about 

any hazardous materials being on the shipment (Tr. 441-42). Fialek did, 

however, acknowledge that he and Linne used a propane-fueled camp stove in 

their work in the Southeast Alaska area, including Ketchikan (Tr. 448). 

Ilj. Decision 

The Complainant did not show that Smith Cable shipped the hazardous 

materials. It failed to tie Smith Cable to the offending shipment sufficiently to 

warrant finding that Respondent violated the FARs cited. In these . 

circumstances, I find and conclude that the agency did not carry its burden of 

proving the violations. • I will dismiss the complaint. 

It was proved that Smith Cable tendered to Alaska Airlines certain 

materials and equipment at Ketchikan for air transportation to Fairbanks. The 

evidence also showed that, on the same day, Alaska Airlines ramp agents 

uncovered undeclared propane tanks and spray paint, hazardous materials, in 

Ketchikan which had been part of a larger shipment tendei'ed for flight. 

Documents connected Smith Cable to the dangerous goods. But Complainant 

was unable to demonstrate a nexus to Smith Cable sufficient to show that the 

company tendered or was otherwise responsible for the goods' attempted 

shipment and was thus liable for the violations flowing therefrom. 

The hazardous materials were tied to Smith Cable by two Alaska Airlinesgenerated documents: an air waybill identifying Smith Cable as the entity 

tendering the shipment in which the goods were discovered (Tr. 107-08; Resp. . 

Exh. B), and an "Air Cargo Dangerous Goods Irregularity Report" ("Irregularity 

Report") tying Respondent specifically to the propane tanks and spray paint 

found by the ramp agents in Ketchikan (Exh. C-6). There also vvere photographs 

taken of the offending cargo (Exhs. C-1 through C-4). These documents may 

suggest that Smith Cable tendered the shipment and is responsible for the FAR 

violations attendant thereto. Certainly it is understandable that, based at least in 

part on those materials. Complainant would open and proceed with an 

enforcement action. But closer examination suggested substantial problems with 

these documents' probative value.- A signature on the air waybill purporting to be 

that of a Smith Cable representative, certifying that the shipment did not contain 

dangerous goods, could not be identified (Tr. 223, 400). Respondent denied 

making the endorsement. I ruled that the document lacked foundation (Tr. 224). 

The Irregularity Report also had foundational problems. The cargo agent said to 

be responsible for preparing it could not be determined. No evidentiary basis for 

naming Smith Cable as the offending shipper was shown. In view of these 

circumstances, I ruled (as noted earlier) that the Irregularity Report could be used 

only to show that it triggered agent Deitz' investigation. It could not be cited for 

the truth of the statements contained therein {see I.D., p. 3 and n. 2). The 

photographs of the hazmats, further, proved little. They do not identify who 
owned or shipped the dangerous goods.^ The evidence also showed that the 

goods were widely available and, therefore, not traceable without further 

information. A camp stove and spray paint could have been obtained at any 

number of retail outlets in Ketchikan (Tr. 132-34). The stove from which the 

propane tanks had purportedly fallen could not be independently identified 

because it not been preserved or photographed (Tr. 247-48, 314-15). Moreover, 

no one was able to identify who had initially dropped off the offending shipment 

(Tr. 120-21). 

The discussion above indicated significant problems with the provenance 

of the offending materials. It could not be determined with adequate reliability 

who or what entity had introduced the propane canisters and spray paint into the 

stream of air transportation to Alaska Airlines. Further, there was additional 

evidence creating significant doubt that Respondent had shipped the dangerous ' 

goods. Smith Cable witnesses credibly denied that they had shipped such 

goods. 

The evidence showed that the Smith Cable contract employees in 

Ketchikan, Linne and Fialek, had in fact used a stove-type device fueled by 

propane during their job. But all the Smith Cable witnesses with knowledge of 

the shipment at issue denied that hazardous materials were a part of it. Ms. 

Afusia, the logistics coordinator, did not authorize the shipments of such goods. 

She stated, quite believably, that she did not move hazmat shipments by air 

simply because paperwork and attendant requirements made it too much trouble 

to do so. Linne and Fialek each recalled the circumstances of turning their cargo 

materials over to the expediter. Aero, in Ketchikan. Over their objections, they 

unwrapped the palletized items and tossed them individually into the back of 

Aero's truck in the pouring rain. Both stated that a stove was not among the 

items. Fialek insisted that he had seen every piece thrown from Smith Cable's 

pallets into the truck by each of the three participants (Linne, Fialek, and the Aero 

driver) and that the items did not include a stove. Linne added that he did not 

see propane tanks or spray paint either. The ramp agents' testimony was 

compelling especially because I find that the circumstances - frustration at 

having to remove the shrink-wrapping from the items and lift them individually 

into the back of the truck in a heavy rain - were particularly evocative and 

conducive to memory. Respondent witnesses also emphasized that there would 

have been no reason to have spray paint with them. It simply had no use in the 

job. The witnesses also noted that Aero had non-Smith Cable items in the back 

of its truck. This fact created further doubt in Complainant's suggestion that 

Smith Cable shipped the hazmats that the ramp agents uncovered later on. 

What took place after Aero received the materials and before the shipment was 

dropped at the Alaska Airlines cargo warehouse is unknown. 

* 1 accepted into evidence only the photographs themselves, specifically excluding the commentary 

underneath them as lacking sufficient foundation. Tr. 176-78. 
Lastly, agent Deitz' testimony naming a woman, Jessica Freeman, as the 

Aero employee who picked up Smith Cable's shipment in Ketchikan for delivery 

to Alaska Airlines underscores the conclusion that Complainant has not made its 

case. Respondent witnesses Linne and Fialek - the only witnesses who actually 

saw the truck driver - each credibly stated that the Aero driver was a man. This 

glaring contradiction in the parties' accounts of the chain of custody itself 

suggests that the agency has fallen short of showing that the offending shipment 

was tendered by the Respondent. 

I conclude that Complainant has failed to show by a preponderance of the 

reliable and probative evidence that Smith Cable tendered the shipment in which 

dangerous goods were found. Respondent's evidence created significant doubt 

in critical elements of Complainant's proof. Respondent undercut the agency's . 

attempt to trace the offending items back to Smith Cable's tender sufficient to 

fatally damage its proof. The credible denials of Respondent's witnesses cast 

additional doubt on the agency's case. In sum, Complainant has not 

demonstrated that Respondent violated the FARs charged in the Complaint. 

For the reasons stated above, the Complaint is hereby dismissed.^ 

Administrative Law Judge 

Attachment — Service List 

^ This decision may be appealed to the Administrator of the FAA. The notice of appeal must confonn to 

sections 13.210. 13.2II(e)and 13.233 of the Rules of Practice, which require that a notice of appeal l)be 

filed not later than 10 days (plus an additional five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 

20591, Aim: Hearing Docket Clerk, AGC-430, Wilbur Wright Building—Suite WlOOO, or b) delivered 

personally or via expedited courier service to tlic Federal Aviation Adminisiralion, 600 Independence 

Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, D.C. 20591, Atm: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
FAA Docket No. CP09AL0012 

(Civil Penalty Action) 

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, Pfesident 

Smith Cable Systems, Inc. 

Through Counsel 

Brent R. Cole, Respondetif \s Counsel 

Marston & Cole, PC. 

821 N Street, Suite 208 

Anchorage, AK 99501-2136 

TEL: 907-277-8001 

FAX: 907-277-8002 

Glenn H. Brown, Complainan/'s Counsel 

Senior Attorney, Office ofthe Regional Counsel, AAL-7 

Alaskan Region 

Federal Aviation Administration 

222 West 7'" Avenue, #14 

Anchorage, AX 99513-7587 

TEL: 907-271-5271 

FAX: 907-271-2800 

The Honorable Richard C. Goodwin, Administrative taw Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El 2-320 

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 ser\ice in person or by expedited courier, use the following address: Federal 

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

DC 2059L Attention: Hearing Docket Clerk, AGC-430.