UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

HELIOPS, LLC 

Complainant 

V. 

NORWOOD MEMORIAL AIRPORT; 

NORWOOD AIRPORT COMMISSION 

Respondents 

Docket No. 16-09-10 

PARri6E)0CKETS 

REPLY BRIEF 

L INTRODUCTION 

The Complainant, Heliops, LLC ("Heliops"), files this Reply Brief in response to the 

Respondents' (collectively "Norwood Memorial") Answer, Partial Motion to Dismiss, and 

Affirmative Defenses (hereinafter "Answer"). Notwithstanding the length of Norwood 

Memorial's Answer, this Reply will focus primarily on only a handful of key points. First, 

because Heliops is not based out of Norwood Memorial, Heliops and the based commercial 

operators (Blue Hill Helicopters and Aerial Productions) are not "similarly situation" for 

purposes of determining whether the tie-down/hanger and office space requirements should 

apply to Heliops and comparably situated operators. Second, Norwood Memorial appears to be 

arguing that Part 135 operators cannot perform pick-ups and drop-offs unless they meet the 

physical presence requirements — a position that would certainly come as a surprise to any 

number of charter operations across the country, whose entire purpose is the flexibility of 

dropping off and picking up passengers at various locations. It is also inconsistent with its own 

regulations. If Norwood Memorial does not require transient commercial Part-135 operations to 
have a physical presence at Norwood Memorial, but requires transient Part-91 commercial 

operators to have one, that would be an arbitrary and economically discriminatory position. 

Third, Norwood Memorial makes a number of factual allegations that are neither apposite nor 

accurate. 

11. ARGUMENT 

1. Heliops and Blue Hill Helicopters and Aerial Productions Are Not Similarly 

Situated For Purposes of the Regulations At Issue. 

Norwood Memorial appears to insist that Heliops is comparably situated to certain 

commercial operators based out of Norwood Memorial because Norwood offers similar 

commercial services based out of Norwood. This argument lacks merit for two reasons. First, 

despite Norwood Memorial's assertion to the contrary, Heliops is not "based" out of Norwood 

Memorial. Indeed, that is the reason this dispute exists: because Heliops is not based out of 

Norwood Memorial, it makes no sense for Heliops to be required to meet all of the same 

requirements as those operators that are based out of Norwood. The fact that Heliops notes in its 

advertisements that Norwood is one of the locations from which passengers may be picked up 

does not transform Norwood Memorial into Heliops's "base." Presumably major commercial 

Part-135 operations, such as NetJets, may, from time to time advertise the various locales 

available for the pick-up and drop-off of potential customers; that fact would not render these 

various locations NetJets bases. 

Moreover, although Norwood Memorial asserts that Heliops's use of the airport is not 

episodic, that is precisely what it is. Norwood Memorial does not specify how many Part-91 and 

other runs Blue Hill Helicopters and Aerial Productions make, but presumably it is a number that 

greatly exceeds the twenty Part-91 flights performed by Heliops. Nor does characterizing 

Heliops' operation as a "shadow" or "gypsy" operation advance the argument. 
Second. Heliops is not similarly situated to the based operators for purposes of the tiedown and office space requirements. The fact that the underlying commercial activity may be 

the same has no bearing on the fact that it simply makes no sense to impose upon episodic users 

the same physical presence requirements that apply to regular users.' Blue Hill Helicopters and 

Aerial Productions, which are based out of Norwood Memorial, make greater demands on 

resources than do more episodic users. Moreover, it makes sense for operations based out of an 

airport to make an investment in establishing a physical presence. For operators such as Heliops, 

it makes no sense at all. Heliops is not looking for special treatment, and would be pleased to 

comply with reasonable requirements that bear some relation to the actual use it makes and 

would anticipate making of the airport. 

2, Norwood Memorial's Arguments Regarding Part-135 Operators Are Unavailing 

Norwood Memorial suggests that all Part-135 operators must establish a physical 

presence at Norwood Memorial. (Answer, at 25). This is not correct. Norwood Memorial's 

own Minimum Standards and General Regulations suggest that commercial Part-135 operators 

that are not based out of Norwood Memorial do not need to comply with the office space and tiedown requirements. Despite the broad language set forth in the Minimum Standards, Part III of 

the Minimum Standards contains a "Special Note" pertaining to "transient operators," specifying 

that they require a commercial permit for certain operations. (Answer, Exhibit B, at 6). This 

"Special Note" can only be taken to mean that transient operators are treated differently than 

' Norwood Memorial's reference to Jimsair Aviation Servs., Inc. v. San Diego County RegAirport Authority. FAA Docket No. 16-06-08 (Apr. 12, 2007), is inapposite. In that case, the 

Complainant, the airport tenant, objected that non-tenants were allowed to provide similar 

services, but did not have to "pay rents or concession fees." The tenants and non-tenants were 

similarly situated with respect to having to pay fees, and the airport should have required the 

non-tenant to pay fees, but Jimsair did not hold that tenants and non-tenants had to be treated 

identically in all respects simply because they performed the same services. 
based operators, which, of course, would make perfect sense. The General Conditions, in turn, 

sets forth the conditions for the allowance of a permit (including meeting the Minimum 

Standards), but then specifies that these requirements are not intended to include, inter alia, 

"transient users operating under FAR Part 135. Air Taxi." (Answer, Exhibit C, at 13 (emphasis 

supplied)). Thus, the applicable rules expressly envision Part-135 operations that do not comply 

with the tie-down and office space requirements. Indeed, transient commercial Part-135 

operators do use Norwood Memorial. This being the case, the question — which Norwood 

Memorial has not answered — is why transient commercial Part-91 operations are required to 

have a physical presence at Norwood Memorial, but not transient commercial Part-135 

operators. 

If Norwood Memorial did impose a physical requirement upon transient commercial 

Part-135 operations, this would be an unfair burden on an entire industry that relies upon 

flexibility. Operators such as MarquisJet, Netjets, and Sentient all pick up and drop off 

passengers in airports all around the country; and often all around the globe. These operators do 

not have bases in all these locations, and their businesses would soon ground to a halt were such 

a requirement imposed. Needless to say, economic competition would be ill-served by imposing 

these sorts of burdens. The standards imposed by an airport should bear some relation to the 

uses made of these airports, with different uses, and, notably, varying frequency of use, calling 

for some difference in treatment. 

Norwood Memorial should not be able to hide behind a mantra of across-the-board 

consistency to impose requirements that sweep entirely too broadly and make no sense as applied 

^ If this is in fact its position; the lengthy Answer, though replete with material, is somewhat 

opaque on this and any number of points. 
to a certain class of operators, particularly where operators that have comparable impact on the 

airport (the Part-135 operators) do not have to bear such burdens. 

3. The Answer Contains a Number of Factual Allegations That Are Inapposite and 

Inaccurate. 

The Answer alleges an "after hours" incident on March 24, 2009. (Answer, at 9-10). It 

is difficult to understand how this alleged transgression bears on the matters at hand, and it 

should be observed that despite these alleged issues, it would appear that Norwood Memorial 

would welcome Heliops if it complied with the tie-down/hanger and office space requirements. 

(Answer, Exhibit H). In any case, Norwood Memorial's account of the "after hours incident" is 

not accurate. 

First, there is no such thing as "after hours." Although Norwood Memorial's Control 

Tower is manned by the FAA part time, like most small general aviation airports, it is open to the 

public 24 hours a day, 7 days a week. The Flight Level FBO is open from approximately 

6:00AM to 9:00PM as long as Flight Level personnel are on-site. The function of the FBO is to 

provide services to airport customers. The FBO is not responsible for security at the airport, but, 

like the pilots, the FBO contributes to security by following voluntary TSA guidelines when it is 

open. When the FBO is closed access is through a locked gate that may be opened from the 

inside. This same type of gate system is used at many small general aviation airports in 

Massachusetts. 

As for Heliops' conduct and the conduct of its customers, the facts are these: Heliops 

pilot met its customers at Norwood Airport and escorted them to the aircraft. While sitting in the 

Norwood parking lot, one of the customers had been questioned by the Norwood Police because 

the car was running and no lights were on (it was a cold night). No police report was "filed." It 

was just logged as having been checked. Because the FBO was closed, the Heliops Pilot 
escorted the customers to the aircraft from the outside fence gate, as is the normal procedure. 

Heliops used the ramp area close to the gate because it was dark and the lighting was 

significantly better than the poorly lit helicopter parking circles or helipad. The ramp was 

deserted except for a single small airplane on the side. Heliops had used this ramp area many 

times before with permission of the FBO so it was not uncommon to do so. 

Heliops had a Safety Man (student pilot) to help conduct the video operation. The first 

flight was to video a take-off and a landing to splice into the final product. For this flight, the 

Safety Man, two videographers and two technicians stayed on the ground and the pilot and 

"talent" took off, hovered in a large circle and landed. The purpose of the second flight was to 

depart the airport, video the flight over Boston, and return to the airport. 

Prior to departure for this flight, the pilot instructed the Heliops's Safety Man, one 

videographer and one technician to exit through the fence gate, which they did. There was no 

one inside the fence during the flight. The pilot, one videographer, one technician and the 

"talent" were on board the helicopter. 

When this flight was complete, the pilot landed, shut down, and escorted the 3 passengers 

to the fence gate. The Safety Man was let back through the gate, the gate was closed and locked 

and the Pilot and Safety Man returned to the aircraft, pre-flighted, and departed Norwood to 

return to the Heliops base of operations at Plymouth Airport. In sum, nothing improper or unsafe 

had occurred. 

In the interest of space, Heliops will make one additional observation: Norwood 

Memorial has suggested that Heliops is seeking a "blanket waiver" beyond the office space and 

tie-down requirements. (Answer, at 21). This assertion is puzzling. As Mr. Maguire's letter of 
August 13, 2009 (Answer, Exhibit L) makes plain, nobody was confused as to what Heliops was 

seeking: a waiver of the office and tie-down/hanger space requirements. 

With respect to the other arguments previously made by Heliops, including those relating 

to the dormant Commerce Clause, Heliops rests on its prior submission. 

IV. CONCLUSION 

For the foregoing reasons, the Complainant, Heliops, LLC, respectfijlly suggests that this 

matter warrants, at the very least, further investigation, and asks that the Commission's order 

denying Heliops a permit or waiver be reversed and that Heliops be permitted to undertake Part 

91 commercial flight operations out of Norwood Memorial, notwithstanding the fact that Heliops 

does not maintain a physical presence at the airport. 

Respectfully Submitted, 

HELIOPS, LLC, 

By its attorneys. 

Kevin C. Cain (BB€) #550055) 

Timothy M. Pomarole (BBO #660827) 

Peabody & Arnold LLP 

Federal Reserve Plaza 

600 Atlantic Avenue 

Boston, MA 02110 

(617)951-2100 

kcain@peabodyarnold.com 

tpomarole@peabodyamold.com 

December 4th, 2009 
CERTIFICATE OF SERVICE 

I, Timothy M. Pomarole, certify that on December ^ ^,2009,1 served a copy of the foregoing 

document via e-mail and first-class mail to: 

Michael C. Lehane, Esquire 

Brandon H. Moss, Esquire 

Murphy, Hesse, Toomey & Lehane, LLP 

300 Crown Colony Drive, Suite 410 

Quincy, MA 02169 

mlehane@mhtl.com 

bmoss(?/^;mhtl.com 

Timothy M. Pomarole 

PABOS2:TPOMARO:714065_I 

15483-93949