Order 2010-11-23

 UNITED STATES OF AMERICA

 DEPARTMENT OF TRANSPORTATION

 OFFICE OF THE SECRETARY

 WASHINGTON, D.C.

Issued by the Department of Transportation

On the 19th day of November, 2010

New Flight Solutions, Inc., d/b/a New Flight 

Charters Docket 2010-0005

Violations of 49 U.S.C. §§ 41101 and 

41712 and 14 CFR Part 399 Served November 19, 2010

CONSENT ORDER

This order concerns apparent violations by New Flight Solutions, Inc., d/b/a New Flight 

Charters, (New Flight) of the Department’s aviation licensing requirements, 49 U.S.C. 

§ 41101, and 49 U.S.C. § 41712, which prohibits ticket agents and air carriers from engaging 

in unfair and deceptive trade practices and unfair methods of competition. This order also 

concerns New Flight’s separate and distinct violation of 14 CFR 399.80(a), which proscribes 

certain practices by ticket agents that constitute unfair and deceptive practices and unfair 

methods of competition. This order directs New Flight to cease and desist from such further 

violations and assesses New Flight a compromise civil penalty of $40,000.

APPLICABLE LAW

Citizens of the United States1 are required under 49 U.S.C. § 41101 to hold economic 

authority2

 

1 A “citizen of the United States” includes a corporation organized in the United States that 1) meets 

certain specified standards regarding the citizenship of its president, officers and directors, and holders of its 

voting interest and 2) is under the actual control of citizens of the United States. 49 U.S.C. § 40102(a)(15).

from the Department, either in the form of a “certificate of public convenience and 

2 This authority is separate from any safety authority required by the Federal Aviation Administration.
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necessity” or in the form of an exemption3 from the certificate requirement, to engage directly 

or indirectly in air transportation. “Air transportation” is the transportation of passengers or 

property by air as a common carrier between two places in the United States or between a 

place in the United States and a place outside of the United States or the transportation of mail 

by air.4 In the context of aviation, a “common carrier” is a person or other entity that, for 

compensation or hire, holds out and/or provides public transportation by air between two 

points.5

Air charter brokers that do not have economic authority may not hold out air transportation. 

Such conduct constitutes “engaging” in air transportation and violates 49 U.S.C. § 41101.6

Under the Department enforcement case precedent, violations of section 41101 also constitute 

an unfair and deceptive practice and unfair method of competition in violation of 49 U.S.C. 

§ 41712.7 Furthermore, as ticket agents pursuant to 49 U.S.C. § 40102(a)(45), air charter 

brokers may not create the false impression that they are direct air carriers when they are not. 

Such misrepresentations violate 14 CFR 399.80(a) and, like violations of section 41101, are 

also considered by the Department to violate 49 U.S.C. § 41712.8

BACKGROUND

New Flight is a Wyoming corporation that specializes in air charter broker services. It does 

not hold economic authority from the Department, nor does it operate aircraft as a common 

carrier.

 3 For example, exemptions may take the form of direct air carrier authority as an air taxi pursuant to 14 

CFR Part 298 (limited to aircraft originally designed for 60 passenger seats or fewer) or indirect air carrier 

authority as a public charter operator pursuant to 14 CFR Part 380. An entity or person who is directly engaged 

in the operation of aircraft that are used to provide air transportation is a “direct air carrier.” An entity or person 

who is not a direct air carrier, but solicits in his or her own right members of the public to purchase air 

transportation, is an “indirect air carrier.”

4 49 U.S.C. §§ 40102(a)(5), (a)(23), and (a)(25).

5 See Woolsey v. National Trans. Safety Bd., 993 F.2d 516, 522-23 (5th Cir. 1993).

6 From the standpoint of the requirements of section 41101, the holding out of air service, as well as the 

actual operation of air service, constitutes “engaging” in air transportation. Prior to 1994, when Title 49 of the 

United States Code was recodified and simplified, 49 U.S.C. § 41101 stated that no carrier could “engage” in air 

transportation without appropriate authority. Although the wording of section 41101 now states that what is 

prohibited is “providing” air transportation without authority, Congress made clear when it recodified Title 49 

that in doing so it did not intend any substantive change to the statute. Act of July 5, 1994, Pub. L. 103-272, 

§ 6(a), 108 Stat. 745, 1378.

7 See, e.g., OneSky Network, LLC, Violations of 49 U.S.C. § 41101 and 41712 and 14 CFR Part 399, 

Order 2007-6-1 (June 4, 2007).

8 See, e.g., Imperial Jets, Inc., Violations of 49 U.S.C. § 41101 and 41712 and 14 CFR Part 399, Order 

2007-4-7 (April 6, 2007).
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An investigation of New Flight’s Internet advertising practices by the Office of Aviation 

Enforcement and Proceedings (Enforcement Office) revealed violations of 49 U.S.C. 

§§ 41101 and 41712 and 14 CFR 399.80(a). Specifically, New Flight’s Internet website 

contained statements that reasonably could have led a consumer to conclude that New Flight 

is a direct air carrier, which it is not. Individually and in aggregate, these statements strongly 

implied that New Flight operated aircraft in providing on-demand air charter services. 

Through these statements on its Internet website, New Flight held out direct air transportation 

when it did not have proper economic authority, thereby violating 49 U.S.C. §§ 41101 and 

41712 and 14 CFR 399.80(a).

MITIGATION

In mitigation and explanation, New Flight states that at the time of the alleged violations it 

was the contracted exclusive agent for an air carrier, owned a charter aircraft operated by an 

air carrier, and brokered aircraft for clients. Upon request New Flight provided supporting 

documentation and information to the DOT. New Flight states that it believed the 

representations on its website and advertisements were truthful and accurate, that it was not 

representing itself as an air carrier or as a party exercising operational control over charter 

aircraft, and that it had clearly stated its functions and relationships in its advertisements and 

on website pages in large print. New Flight states that it was immediately responsive to the 

DOT and promptly modified its website upon receipt of requested guidance from the 

Department. 

DECISION

The Department and its Federal Aviation Administration (FAA) require all direct air carriers 

to meet rigorous licensing requirements prior to commencing service and continuing 

thereafter to ensure the safety of their operations and to protect the rights of consumers. 

Allowing air charter brokers that do not have operational control of aircraft to hold out as 

though they are direct air carriers that do, has the effect of circumventing these requirements 

and therefore denying members of the public the protections that these requirements are 

designed to afford. It also hinders the ability of consumers to make informed decisions about 

the safety and financial viability of the direct air carrier they will be using.

The Enforcement Office has carefully considered the facts of this matter, including those 

provided by New Flight Solutions, Inc., d/b/a New Flight Charters, and believe that 

enforcement action is necessary. The Enforcement Office and New Flight Solutions, Inc., 

d/b/a New Flight Charters, have reached a settlement of this matter in order to avoid litigation. 

Without admitting any violation of the regulations, New Flight Solutions, Inc., d/b/a New 

Flight Charters, consents to the issuance of an order to cease and desist from further violations 

of 49 U.S.C. §§ 41101 and 41712 and 14 CFR 399.80, and to the assessment of $40,000 in 

compromise of potential civil penalties. This compromise assessment is appropriate in view 

of the nature and extent of the violations in question, serves the public interest, and establishes 

a deterrent to future similar unlawful practices by New Flight Solutions, Inc., d/b/a New 

Flight Charters, and other air charter brokers and ticket agents.

This order is issued under the authority contained in 49 CFR 1.57a and 14 CFR 385.15.
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ACCORDINGLY,

1. Based on the above discussion, we approve this settlement and the provisions of this 

order as being in the public interest;

2. We find that New Flight Solutions, Inc., d/b/a New Flight Charters, violated 49 U.S.C. 

§ 41101, as described above, by engaging in air transportation without appropriate 

economic authority;

3. We find that New Flight Solutions, Inc., d/b/a New Flight Charters, violated 14 CFR 

399.80(a), as described above, by misrepresenting itself as a direct air carrier;

4. We find that, by engaging in the conduct described in paragraphs 2 and 3, above, New 

Flight Solutions, Inc., d/b/a New Flight Charters, engaged in an unfair and deceptive 

practice and an unfair method of competition in violation of 49 U.S.C. § 41712;

5. We order New Flight Solutions, Inc., d/b/a New Flight Charters, to retain copies of all 

advertising material, including newspaper advertisements and print-outs of all versions 

of its Internet website, that it has caused to be published in the one year period 

following the service date of this order and, upon request, to provide those copies to 

the Office of Aviation Enforcement and Proceedings;

6. We order New Flight Solutions, Inc., d/b/a New Flight Charters, and all other entities 

owned and controlled by or under common ownership with New Flight Solutions, 

Inc., d/b/a New Flight Charters, and its successors and assignees, to cease and desist 

from further violations of 49 U.S.C. §§ 41101 and 41712 and 14 CFR 399.80(a). 

Failure to comply with this cease and desist provision shall subject New Flight 

Solutions, Inc., d/b/a New Flight Charters, and all other entities owned and controlled 

by or under common ownership with New Flight Solutions, Inc., d/b/a New Flight 

Charters, and its successors and assignees, to further enforcement action;

7. We assess New Flight Solutions, Inc., d/b/a New Flight Charters, a compromise civil 

penalty of $40,000 in lieu of civil penalties that might otherwise be assessed for the 

violations described in ordering paragraphs 2, 3 and 4, above. Of this total penalty 

amount, $20,000 shall be due and payable in 5 equal installments of $4,000 each. The 

first payment of $4,000 shall be due and payable within 30 days of the date of issuance 

of this consent order. The second payment of $4,000 shall be due and payable on 

February 18, 2011. The third payment of $4,000 shall be due and payable on May 9, 

2011. The fourth payment of $4,000 shall be due and payable on July 28, 2011. The 

fifth payment of $4,000 shall be due and payable on October 16, 2011. The remaining 

$20,000 shall become due and payable immediately if New Flight Solutions, Inc., 

d/b/a New Flight Charters, violates this order’s cease and desist or payment provisions 

during the 12 months following the service date of this order; and

8. We order New Flight Solutions, Inc., d/b/a New Flight Charters, to pay the 

compromise civil penalty assessed in ordering paragraph 7, above, by wire transfers

through the Federal Reserve Communications System, commonly known as “Fed 

Wire,” to the account of the U.S. Treasury. The wire transfers shall be executed in 
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accordance with the instructions contained in the Attachment to this order. Failure to 

pay the compromise penalty assessment as ordered will subject New Flight Solutions, 

Inc., d/b/a New Flight Charters, to an assessment of interest, penalty, and collection 

charges under the Debt Collection Act, and to possible enforcement action for failure 

to comply with this order.

This order will become a final order of the Department 10 days after its service unless a 

timely petition for review is filed or the Department takes review on its own initiative.

BY:

ROSALIND A. KNAPP

Deputy General Counsel

(SEAL)

An electronic version of this document is available at

www.regulations.gov