Rоger E. WOOLSEY, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents.
No. 91-4904.
United States Court of Appeals, Fifth Circuit.
June 23, 1993.
993 F.2d 516
Edmund J. Averman, III, Atty., Peter J. Lynch, Manager, Enforcement Proceedings Branch, Washington, DC, for National Transp. Safety Bd. & FAA.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
GOLDBERG, Circuit Judge:
We embark on a journey into the lofty area of aviation safety regulation. Previous navigators have left powerful beacons along the way to guide us. The law in this area is not too far up in the air. We may encounter a few clouds of doubt, but they will dissipate. We anticipate a smooth flight before descending to our final destination.
Roger E. Woolsey appeals an order of the National Transportation Safety Board (NTSB) which affirmed the FAA‘s revocation of his commercial pilot‘s certification due to his failure to comply with the safety requirements for pilots operating aircraft for a common carrier under Part 135 of the Federal Aviation Regulations (FAR),
Roger E. Woolsey is president of Prestige Touring, Inc. (PTI), a small air carrier which specializes in transporting musicians. Prior to entering into an agreement to transport the country musician Reba McEntire for a minimum of several hundred hours per year, PTI marketed itself primarily to rock musicians, with whom it had at least twenty-five contracts in 1990.1 Although Woolsey claims that PTI makes individualized decisions in particular cases whether and on what terms to serve [and] does not furnish transportation indiscriminately, but furnishes it only to those with whom it sees fit to contract, there is no evidence that PTI ever turned away anyone in the music industry who applied to it for air transportation and was willing to pay its fee.
Woolsey became aware in the late 1980s of the fact that most country musicians travel by bus, and he determined to take advantage of that largely untapped market. In 1989, Woolsey sent Reba McEntire‘s manager (who is also her husband) information about the services offered by PTI. Although PTI engaged in self-promotion in a major periodical read by many in the music industry, Woolsey considered it important to make direct contact with stars like McEntire in order to expand from rock into the country music segment of the music industry.
Shortly after the press kit sent by PTI to McEntire‘s manager arrived, an agreement was negotiated by Reba‘s Business, Inc. (Reba‘s Business) and PTI, whereby PTI agreed to transport McEntire and her
Woolsey claims that all of the lease agreements between PTI and Reba‘s Business were intentionally designed so as to comport with the requirements of FAR Part 91, not FAR Part 135. He contends that these leases constituted time sharing agreements, which are governed under FAR Part 91 if they involve private or contract carriers. Thus, whether or not the leases comport with the requirements of FAR Part 91, the crucial question remains whether PTI acted as a common carrier with respect to the flights in question.
When another PTI airplane for which Reba‘s Business had contracted crashed,4 Reba‘s Business ceased doing business with PTI. On July 5, 1991, a Federal Aviation Administration (FAA) Administrator issued an emergency order revoking Woolsey‘s commercial pilot certificate due to his alleged violation of Section 91.13(a) of the Federal Aviation Regulations,
On July 24, 1991, after an evidentiary hearing, an administrative law judge orally affirmed the FAA Administrator‘s decision. Petitioner appealed to the National Transportation Safety Board, which on Aug. 28, 1991, issued an opinion affirming the administrative law judge‘s decision with respect to the revocation of Woolsey‘s license. The NTSB refused to affirm the administrative law judge‘s finding that the intentional engine stoppage constituted careless or reckless endangerment of the life or property of others,7 nevertheless concluded that the sanction of revocation is clearly appropriate where, as here, respondent operated as pilot in command of fifty-three flights with paying passengers, to whom he owed a high standard of care, and when he did not have the necessary training, examinations and check rides required of him under Part 135 [which applies to common carriers]. The NTSB based its finding that PTI was a common carrier on the definition of that term provided in FAA Advisory Circular No. 120-12A.
DISCUSSION
I. THE ADMINISTRATIVE LAW JUDGE‘S ADMISSION OF EVIDENCE OF PTI‘S MARKETING EFFORTS
Woolsey claims that the NTSB erred in affirming the administrative law judge‘s admission into evidence of Exhibits A-9 through A-15, which were offered by the FAA to show that PTI had held itself out to the public.9 Woolsey contends that these exhibits should not have been admitted because they were not authenticated by any witness with personal knowledge of them. He further contends that the failure to authenticate the documents by presenting their authors or signatories as witnesses deprived him of the right to confront and cross-examine witnesses against him.
The NTSB has not adopted rules of evidence. In 1986, the Administrative Conference of the United States adopted recommendations which stated that it would be improper to require agencies to apply the Federal Rules of Evidence. Recommendation 86-2,
Although we note that a slightly lower standard for admission of documentary evidence applies in administrative proceedings than in the federal courts, we find that admission of the documents in question would have been proper under the Federal Rules. Woolsey contends that an FAA official‘s testimony that he had requested and received the documents during the course of his investigation was insufficient under Fed.R.Evid. 901(b)(1) to assure that the documents are authentic. He also claims that since neither the publishers nor the authors of the telephone books, periodicals, cancelled checks, letters, lease agreements and press kits testified, he was deprived of the right as an accused to confront and cross-examine witnesses against him. The FAA counters that there was no danger that the documents were not what they were claimed to be, and that Mr. Woolsey hаd every opportunity to cross-examine the FAA investigators who testified as to the method by which the documents were obtained and stored prior to the hearing. Mr. Woolsey did not claim that any of the documents allegedly signed by his employees contained forged signatures.
Exhibits A-9 and A-10, which consist of articles and self-promotional statements made by PTI in the weekly magazine Performance International, are self-authenticating documents under Fed.R.Evid. 902. While Woolsey appears to admit for the first time in his Reply Brief that the documents are self-authenticating, he attempts to maintain the claim that they should not have been admitted by arguing that they were irrelevant. Specifically, Woolsey claims that the self-promotional articles in Exhibits A-9 and A-10 pertained to service provided by PTI on a turboprop airplane, operation of which is governed by FAR Part 125, and not by FAR Part 91 or 135. We find this argument unpersuasive, because the exhibits do not specifically refer to any particular type of aircraft.
We find that there was no error in the admission of Exhibits A-11 through A-15. We believe there was adequate assurance of authenticity for documents A-11 through A-15 to be admitted. All of these documents pertain to solicitation of business by PTI.10 The documents were requested by, and sent to, FAA investigators, who were available to testify about the method in which the documents were obtained and kept by the FAA, and why it was reasonable to consider them authentic.11 There is no evidence that the signatures on the documents were forged or that the documents were otherwise falsified; nor is there any evidence that the documents, once received by the FAA investigators, ever left the investigators’ hands. Fed.R.Evid. 901(a) provides that, The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The Advisory Notes following Fed.R.Evid. 901 state that testimony of witnesses having personal knowledge, broadly construed, can support the authenticity of a document.12 We do not believe that
Even if admission of any of the documents in Exhibits A-11 through A-15 was error, it was harmless. There was additional evidence on which the administrative law judge and the NTSB could have based the decision to affirm the FAA‘s revocation of Mr. Woolsey‘s commercial pilot certification. There was evidence presented that PTI actively solicited McEntire‘s business by sending her letters and brochures; engaged in self-promotion in periodicals available to the general public;13 publicly listed the names of scores of its clients in the music industry;14 and advertised in the yellow pages of the telephone book.15 We consider this to be substantial evidence supporting the view that PTI held itself out to the public as a common carrier.16
II. DEFINITION OF COMMON CARRIAGE WITH RESPECT TO AIR CARRIERS; APPLICATION OF PART 135 IN THE INSTANT CASE
Woolsey contends that the contracts or leases for air transportation signed by himself and country music singer Reba McEntire were designed with an eye to compliance with the requirements of FAR Part 91.17 The Federal Aviation Administration (FAA), however, contends that the more stringent safety requirements of FAR Part 13518 apply. The FAA admits that the flights in question in this case would be governed by Part 91 had PTI not advertised its services and actively solicited business. The FAA contends, however, that PTI held itself out to a definable segment of the general public as being available for air carriage for compensation, and that PTI was for that reason a common carrier. FAR Part 91 specifiсally excludes common carriers from
In response to potential confusion as to the meaning of the term common carrier under the Federal Aviation Act, the Federal Aviation Administration issued Advisory Circular No. 120-12A (Advisory Circular) on April 24, 1986. The Advisory Circular provides FAA employees and members of the aviation industry with general guidelines for determining whether current or proposed transportation operations by air constitute private or common carriage. Advisory Circular at 1. The Advisory Circular defines a common carrier as one which holds itself out to the public as being willing to transport persons or property for compensation, to the extent that its facilities permit.
Mr. Woolsey was aware of the definition of common carriage provided by the FAA in its Advisory Circular. However, Mr. Woolsey contends that PTI not only did not hold itself out to the public, but that the definition of common carriage contained in the Advisory Circular is too broad, does not have the force of law because it was not promulgated as a regulation under the Administrative Procedure Act, and is inconsistent with the common law definition of a common carrier. Woolsey claims that the common law defines a common carrier as one which (1) holds itself out to the public as willing to carry anyone who applies so long as there is room in the aircraft, (2) at a uniform priсe applicable to all who apply. He claims that PTI furnished air transportation only to those with whom it saw fit to contract, as a private or contract carrier, and . . . any . . . holding out was no more than an invitation to negotiate such contracts on a case-by-case basis, without any evidence of uniformity of charges or willingness to carry all persons applying so long as there is room in the aircraft.
Instead of focussing on whether PTI held itself out to the public, Mr. Woolsey discusses at length the nature of PTI‘s contracts with Reba‘s Business; the fact that Ms. McEntire was given exclusive use of a PTI airplane; and the fact that the contract was not for a single or even several flights, but for a year‘s term. In so doing, he hopes to establish that the agreement at issue here was not a charter agreement, but a time sharing agreement under FAR Part 91;19 that the airplane known by air traffic controllers across the nation as Reba Jet was more like a private airрlane than an airplane owned by a common carrier and chartered by a private party.
Woolsey notes that many of the cases defining common carriage as the FAA does are cases relating to economic regulation of air carriers, as opposed to safety regulation of air carriers. He contends that any relevance these cases might have had in the area of aviation safety was decimated in 1988 by Congress’ abolition of the Civil Aeronautics Board and repeal of economic regulations affecting air carriers. Airline Deregulation Act of 1978,
We do not address the legal sufficiency of the Advisory Circular, for we find that the definition of common carrier provided therein is in relevant respect the same as that found at common law. Contrary to the assertion of Mr. Woolsey, the FAA does not seek to broaden the definition of common carriage. Mr. Woolsey seeks to narrow that definition in a manner inconsistent with the case law. He would have us hold that an air carrier engages in common carriage only when it transports all members of the public at the same рrice whenever it has room on its airplanes. Although there is some support for the view that a common carrier must deal on the same terms and conditions with all of its customers, see, e.g., Semon v. Royal Indemnity Co., 279 F.2d 737 (5th Cir.1960) (charter of a fishing boat found to constitute private or contract carriage where there was no evidence of holding out), we are aware of no cases actually applying such a restrictive test to air carriers.21
The Advisory Circular correctly points out that the crucial determination in assessing the status of a carrier is whether the carrier has held itself out to the public or to a definable segment of the public as being willing to transport for hire, indiscriminately. Las Vegas Hacienda, Inc. v. Civil Aeronautics Bd., 298 F.2d 430 (9th Cir.), cert. denied, 369 U.S. 885, 82 S.Ct. 1158, 8 L.Ed.2d 286 (1962); East Coast Flying Serv. Enforcement Proceeding, 46 C.A.B. 640 (1967); M & R Inv. Co., Inc. v. Civil Aeronautics Bd., 308 F.2d 49 (9th Cir.1962); Arrow Aviation, Inc. v. Moore, 266 F.2d 488 (8th Cir.1959); Southeastern Aviation, Inc. Enforcement Proceeding, 32 C.A.B. 1281 (1961); Consolidated Flower Shipments, Inc., 16 C.A.B. 804 (1953), aff‘d, Consolidated Flower Shipments v. Civil Aeronautics Bd., 213 F.2d 814 (9th Cir.1954); Intercontinental Enforcement Proceeding, 41 C.A.B. 583 (1965). The test is an objective one, relying upon what the carrier actually does rather than upon the label which the carrier attaches to its activity or the purpose which motivates it. Las Vegas Hacienda, 298 F.2d at 434.
The cases which Woolsey cites in support of his definition of common carriage are distinguishable. Most of these cases involve definitions of common carriage developed outside the context of aviation law. See, e.g., Terminal Taxicab v. Dist. of Columbia, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984 (1916) (taxicabs); Semon, 279 F.2d 737 (fishing boat); Home Ins. Co. v. Riddell, 252 F.2d 1 (5th Cir.1958) (trucks). We agree with the Ninth Circuit that these cases are inapposite:
It would be wholly unjustified simply to assume that the [disputed] terms are to have the precise meaning attached to them in the definitions of the Motor Carrier Act and in the case law under that statute. . . . We have been warned of the impropriety of assuming that Congress intended that judicial precedents and rules of interpretation applicable to the regulation of other forms of transportation were to be applied to the regulation of transportation by air: However useful parallels with older forms of transit may be in adjudicating private rights, we see no reason why the efforts of
the Congress to foster and regulate development of a revolutionary commerce that operates in three dimensions should be judicially circumscribed with analogies taken over from two-dimensional transit.
Las Vegas Hacienda, 298 F.2d at 437, 439 n. 31 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 108, 68 S.Ct. 431, 434-35, 92 L.Ed. 568 (1948)).
The few cases cited by Woolsey which do concern aviation law are either distinguishable or only weakly support his argument in dicta. See, e.g., Jackson v. Stancil, 253 N.C. 291, 116 S.E.2d 817 (1960) (where appellant did not list his business in the telephone book or advertise in any other fashion, and was affirmatively sought out by a former flying student for a single incident of transportation, appellant engaged in private or contract carriage; quoting with approval two early commentators who advanced test for common carriage involving holding out, uniform tariffs, and willingness to serve all persons aircraft can accommodate, but applying more multifaceted test for common carriage in which holding out was dispositive factor); Seven Seas Airlines, Inc., Enforcement Proceeding, 34 C.A.B. 45 (June 26, 1961) (noting in dicta that if a carrier is not required to dedicate or assign to the exclusive use of certain patrons any particular equipment or if there is nothing to prevent a carrier from hauling with any such equipment, it has been held that the carriage is common; but not stating that dedication of an airplane to the exclusive use of a single party necessarily would constitute private or contract carriage); Scarborough v. Aeroservice, Inc., 155 Neb. 749, 53 N.W.2d 902 (1952) (owner of a school for airplane mechanics, who agreed to transport one of his students on a single 45-minute flight, was private carrier).
There was substantial evidence, even excluding Exhibits A-11 through A-15, on which the administrative law judge and the NTSB could conclude that PTI had held itself out as being willing to serve all members of the music industry who were able to pay for its services.22 Although Woolsey claims that PTI was discriminating about whom it would serve, there is no evidence that PTI ever turned away any member of the music industry who was able to pay PTI‘s fees. On these facts alone, the NTSB was justified in concluding that PTI acted as a common carrier.
Woolsey claims that because PTI does not utilize uniform tariffs, it is not a common carrier.23 While most common carriers do utilize uniform tariffs applicable tо all who apply for service, we agree with the FAA that the absence of tariffs or rate schedules, transportation only pursuant to separately negotiated contracts, or occasional refusals to transport, are not conclusive proof that the carrier is not a common carrier. Advisory Circular at 1. See East Coast Flying Serv., 46 C.A.B. at 644; Southeastern Aviation, 32 C.A.B. at 1284-85. The existence of a contract negotiated for a special price does not alone suffice to make the carrier a private carrier. See, e.g., Las Vegas Hacienda, 298 F.2d at 434; Intercontinental, 41 C.A.B. at 601-02; Southeastern Aviation, 32 C.A.B. at 1285.
What is crucial is that the common carrier defines itself through its own marketing efforts as being willing to carry any member of that segment of the public which it serves.24
Woolsey claims he structured the contract between PTI and Reba‘s Business, Inc., in order to make it comport with the requirements of FAR Part 91.501 (subpart F),
Because we have affirmed the finding of the NTSB that the aircraft used for the flights in question were operated by Woolsey in common carriage, we find that Mr. Woolsey‘s claim that he intended to bring these operations under Part 91 is unavailing. The objective conduct of PTI, holding out its services to the music industry and actually serving scores of different musicians, makes PTI‘s operations subject to FAR Part 135. The subjective intentions of Woolsey are not controlling. It is the objective conduct of himself and his corporation which bring their actions under FAR Part 135. Las Vegas Hacienda, 298 F.2d at 434. See also Consolidated Flower Shipments, 16 C.A.B. at 805 ([A] carrier cannot divest itself of its common-carrier status by the simple expedient of entering into an agreement with its customers purporting to relieve itself of its normal liability). The Federal Aviation Regulations are primarily designed to protect the public safety, and not the private contractual aspirations of given parties.
CONCLUSION
We have arrived at our destination: AFFIRMED.
DeMOSS, Circuit Judge, dissenting:
In my opinion, the flight in this case has been long and bumpy, our instruments did not work well, and I think we have landed at the wrong airport. I write this dissent to explain why.
I. Who is a common carrier and when is common carriage not involved?
The fundamental problem in this case is one of definitions. Neither Congress nor the
Second, I think the meaning that the agency gives to the term common carriage in this case is fundamentally inconsistent with other terms that are defined by the statute and by the published regulations.
As I read the definitions set forth in the statute (
A. Air carrier is one who engages in air transportation.
B. Air transportation means interstate air transportation, overseas air transportation, or foreign air transportation, or the transportation of mail by aircraft.
Each of interstate, overseas, and foreign air transportation are defined to be the carriage by aircraft of persons or property as a common carrier for compensation or hire (underlining added) plus the individual geographical definition.
C. Air commerce means:
- Interstate air commerce;
- Overseas air commerce;
- Foreign air commerce; or
- Operation or navigation of an aircraft within a federal airway or directly affecting or endangering safety in interstate, overseas, or foreign air commerce.
D. Each of interstate air commerce, overseas air commerce, and foreign air commerce are defined as the carriage by aircraft of persons or property for compensation or hire, plus the geоgraphical definition pertinent to each one.
E. The regulations (but not the statute) contain the definition of commercial operator as a person who for compensation or hire engages in carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under Part 375. (underlining added.)
Under this definitional structure, it is open, obvious, and clear to me that the fundamental distinction between air carrier and air transportation on the one hand, and commercial operator and air commerce on the other hand, is that the first two involve carriage as a common carrier.
Now to this set of definitions, the National Transportation Safety Board (NTSB) on page 6 of its opinion in this case would add the definition of common carriage as
. . . the four elements of common carriage are:
- a holding out of a willingness to
- transport persons or property
- from place to place
- for compensation.
However, the NTSB‘s definition wipes out the statutorily created distinction between air transportation and air commerce; and it runs contrary to it‘s own definition of commercial operator which expressly points out that a commercial operator is one who acts other than as an air carrier. Elements (2), (3), and (4) of the NTSB definition set out above, are the same elements referred to in the definition of both air transportation and air commerce; and the new definition creates a seemingly unanswerable conundrum for a commercial operator:
How can I engage in my business of carrying persons or property for compensation or hire as a commercial operator in air commerce, if by simply holding myself out to prospective customers I become engaged in common carriage which makes me an air carrier subject to regulation under entirely different sets of regulations?
II. How does § 91.501 interrelate with § 135.1 of the applicable regulations?
Much of the argument and discussion in this case relates to this question which is a riddle wrapped in another conundrum. Assuming that the airplanes piloted by Woolsey meet the test of being turbojet powered, multiengined, civil airplanes as defined in paragraph (a) of § 91.501, the first sentence of subparagraph (a) makes clear that the operation of these airplanes is covered by the rules in this subpart, [§§ 91.501-91.533] . . . in addition to those prescribed in other subparts of this part, [i.e. Part 91]. Consequently, § 91.5 in subpart A of Part 91 is clearly applicable to these planes and requires compliance by the pilot in command with the requirements of § 61.58 of this chapter. Section 61.58 establishes rules for periodic proficiency checks or flight checks which are similar to, but perhaps not identical with, provisions for periodic flight testing in Part 135. The Board, however, accuses Woolsey of failing to comply with the Part 135 provisions. Consequently, even if Woolsey were correct in his argument that the time sharing agreement in this case relieved him of the necessity of complying with the periodic performance checks in Part 135 as charged by the NTSB, he would still have to comply with § 91.5 and § 61.58. The record fails to show whether Woolsey did in fact comply with § 61.58 and whether the NTSB‘s complaint is really only as to the timing of getting those rechecks under the more frequent requirements of Part 135. If that were in fact the case, then the sanction of license revocation levied upon Woolsey is grossly out of proportion to the nature of the wrong that he committed. A suspension of his license for a fixed period of time or a money fine would have been the appropriate penalty if he did in fact get retested on the § 61.58 schedule rather than the Part 135 schedule. On the other hand, if Woolsey was not retested at all for periods of time longer than those required under § 61.58, then his contention that the time sharing agreement eliminates the applicability of Part 135, even if correct, would still leave him in noncompliance with §§ 91.5 and 61.58.
III. Must the government prove that the airplanes and flights in questions were governed by Part 135 or is it sufficient that the government simply prove that Prestige Touring was not entitled to the benefits of 91.501?
On page 6 of its opinion, the Board stated:
The law judge found that, notwithstanding respondent‘s claims that he strived to conform to the requirements of Section 91.501, the overwhelming evidence established that these operations were governed by Part 135 because Prestige Touring, Inc. failed to meet the threshold requirement of not being common carriage. We agree.
From the same opinion on page 2, it appears that Woolsey was charged with careless or reckless operation of an airсraft in violation of § 91.13(a)
. . . by serving as pilot in command on 53 flights for compensation or hire, without meeting the training and examination requirements of §§ 135.293(a) and (b), 135.297(a), 135.299(a), and 135.343.
Clearly, these are not criminal proceedings. They are quasi-judicial in nature and result in the imposition of sanctions based on past actions. The Board therefore should have to prove that the flights in question were covered by Part 135. From this perspective, the finding of the law judge on page 6 of the opinion quoted above is just flat wrong. The mere fact that Prestige Touring may have failed to meet the threshold requirement of not being common carriage [which is part of § 91.501] certainly does not establish that Part 135 is applicable to the flights in question. As set forth § 135.1(a), the rules in Part 135 govern:
- Air taxi operations conducted under the exemption authority of Part 298 of this Title;
The transportation of mail by aircraft conducted under a postal service contract awarded under § 5402(c) of Title 39, U.S.C. ;- The carriage in air commerсe of person or property for compensation or hire as a commercial operator (not an air carrier) in aircraft having a maximum seating capacity of less than 20 passengers or a maximum payload capacity of less than 6,000 lbs., or the carriage in air commerce of persons or property in common carriage operations solely between points entirely within any state of the United States, the aircraft having a maximum seating capacity of 30 seats or less and a maximum payload capacity of 7,500 lbs. or less.
In my view, none of these subparagraphs apply to the airplanes and flights which Woolsey served on as pilot in command. The first subparagraph relates to air taxi operators; and § 298.3(b) clearly states:
. . . a person who does not observe the conditions set forth in paragraph (a) of this section shall not be an air taxi operator within the meaning of this part with respect to аny operations conducted while such conditions are not being observed.
One of the conditions in paragraph (a) was registration with the Board in accordance with subpart (c). Nothing in the record makes reference to the registration by Prestige Touring with the Board under subpart (c) of Part 298.
Similarly, subparagraph (2) of § 135.1(a) regarding transportation of mail is not applicable because there was clearly nothing referencing the carriage of mail on any of the flights which Woolsey commanded.
There are two distinct and separate sentences to subparagraph (3) joined by the disjunctive or. The second of these sentences relating to the carriage of persons in common carriage operations solely between points entirely within any state (emphasis added) of the United States might possibly be applicable to some of the flights which Woolsey commanded, but that is not developed in the record. That leaves the first sentenсe of subparagraph (3) as the only portion of § 135.1(a) that might apply; and here we meet again the definitional conundrum involved in this case. Assuming that the seating and payload capacities of the airplanes which Woolsey flew meet the limitations of the first sentence of subparagraph (3), the conundrum arises from the words as a commercial operator (not an air carrier) in this first sentence; and the definition which the Board uses to show that § 91.501 did not apply comes back to shoot the Board in the foot. The Board cannot have its cake and eat it too, and if the holding out by way of advertising and Yellow Pages listings caused Prestige‘s operations to be common carriage for purposes of 91.501, then Prestige cannot also be a commercial operator (not an air carrier) for purposes of subparagraph (3) of § 135.1(a).
In conclusion, I have to say that my gut reaction to this case is that the FAA decided to make a scaрe goat out of Woolsey because of the crash of the other aircraft carrying Reba McEntire‘s band. For the reasons set forth herein, I am unable to concur with my distinguished colleagues. I would reverse and remand for rehearing.
Kathy D. TOBIN, Plaintiff-Appellee (91-6413), Plaintiff-Appellant (91-6478), v. ASTRA PHARMACEUTICAL PRODUCTS, INC., Defendant-Appellant (91-6413), Duphar B.V., Defendant-Appellee (91-6478).
Nos. 91-6413, 91-6478.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 1, 1992.
Decided April 16, 1993.
Rehearing Denied in No. 91-6413 May 13, 1993.