The opinion of the court was delivered by: KAUFMAN
Plaintiff moves to enjoin defendant pendente lite from operating, and from holding itself out to the public as operating, regular flights as a common carrier between certain points on the east and the west coasts of the United States.
The action is brought for similar permanent relief.
The moving papers allege that plaintiff is an air carrier engaged in air transportation between New York City and Los Angeles, pursuant to certificates of public convenience and necessity granted by the Civil Aeronautics Board (hereinafter referred to as the 'Board') for regularly scheduled operation between said points; that defendant holds no certificate of public convenience and necessity to engage in air transportation, but is an 'Irregular Air Carrier' and the holder of Letter of Registration, No. 826, issued under Section 292.1 of the Economic Regulations of the Board. It is then alleged, in substance, that defendant is engaged, and is holding out to the public that it engages, in air transportation between New York City and Los Angeles with a degree of regularity which is not permitted to Irregular Air Carriers; that by its aforesaid actions defendant has exceeded the limits of its authority under Section 292.1 of the Economic Regulations and has thereby forfeited the exemption conferred on Irregular Air Carriers from the requirement of a certificate of public Convenience and necessity. Consequently, it is claimed, defendant's operations without such a certificate are illegal and should be enjoined.
There is no dispute as to the number and frequency of defendant's flights, but defendant claims that by virtue of their nature then do not constitute operations of a regularity in excess of those permitted to Irregular Air Carriers.
Apart from the merits, two questions are presented by the motion: first, whether or not plaintiff is 'a party in interest' within the meaning of Section 1007(a) of the Civil Aeronautics Act, 49 U.S.C.A § . 647(a), which gives any 'party in interest' the right to apply to the appropriate District Court of the United States for an injunction against violation of the Act; and second, whether or not the Court has jurisdiction of the action.
The papers show that plaintiff, a certificated air carrier, and defendant, the holder of a Letter of Registration as an Irregular Air Carrier, are competing in air transportation between the points involved. This, in my opinion, is sufficient to make plaintiff a 'party in interest' within the meaning of Section 1007(a) of the Act. Flying Tiger Line v. Atchison T. & S.F. Ry. Co., D.C., 75 F.Supp. 188.
Section 401(a) of the Act, U.S.C., Title 49, Section 481(a), 49 U.S.C.A. § 481a, provides:
'(a) No air carrier shall engage in any air transportation unless there is in force a certificate issued by the Board authorizing such air carrier to engage in such transportation.'
Section 1007 of the Act, U.S.C., Title 49, Section 647, 49 U.S.C.A. § 647, provides that if any person violates any provision of the Act,or any regulation thereunder, or any term, condition, or limitation of any certificate or permit issued thereunder, 'the Board, its duly authorized agent, or, in the case of a violation of section 481(a) of this chapter, any party in interest, may apply to the (appropriate) district court of the United States,' for the enforcement thereof, 'and such court shall have jurisdiction to enforce obedience thereto by a writ of injunction or other process, mandatory or otherwise * * * .'
If the foregoing were the only provisions to be considered, it would be clear that an air carrier may not engage in air transportation without a certificate of convenience and necessity, and that if it should do so, any party in interest could apply to the appropriate District Court of the United States for an injunction.
There are, however, other provisions which m st be considered.
Section 416(a) of the Act, U.S.C., Title 49, Section 496(a), 49 U.S.C.A. § 496(a), authorizes the Board to establish classifications or groups of air carriers, as the nature of the services performed by them shall require, and also to establish such rules and regulations pursuant to and consistent with the provisions of the Act, to be observed by each such class or group, as the Board finds necessary in the public interest. This section, in subdivision (b), authorizes the Board in certain circumstances to 'exempt from the requirements of this subchapter or any provision thereof, * * * any air carrier or class of air carriers, if it finds that the enforcement of this subchapter or such provision * * * is or would be an undue burden on such air carrier or class of air carriers by reason of the limited extent of, or unusual circumstances affecting, the operations of such air carrier or class of air carriers and is not in the public interest.'
Acting under this authorization, the Board promulgated Section 292.1 of its ...