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POINT II

THE FINDING THAT NYA SHOULD NOT BE ELIGIBLE FOR SUBSIDY SINCE ITS CHANCES OF SURVIVAL ARE GOOD, IS BASED ON MAJOR ERRORS OF FACT AND LAW

A. The examiner Committed Legal Error in Applying an Erroneous Standard. 

The statutory focus of this case is not "survival" but public convenience and necessity. To frame the issue in terms of "survival" is not responsive to the basic statutory language; it is an evasion of the responsibilities imposed on the Board by the Act. The Examiner erred by basing his ultimate judgment on narrow criteria which is a stranger to both the objectives and the language of the Act. 

The issue of subsidy eligibility is governed by the provisions of Section 401 and the definition of public convenience and necessity in Section 201. Section 401 requires that the Board "shall...issue a certificate authorizing the transportation covered by an application" if it finds "...that such transportation is required by the public convenience and necessity." 5/ Section 102 requires that the Board "shall consider... as being in accordance with the public convenience and necessity" the "development of an air transportation system poorly adapted to the present and future needs of the foreign and domestic commerce of the United States and the postal service, and of the national defense," and regulation in such manner as to "foster sound economic conditions." (Underscoring supplied)

The courts have made it clear that in measuring public convenience and necessity, "the Board must weigh all criteria found in the Act which gives substance and vitality to the Congressional mandate policy set forth in Section 2 of the Act." Continental Southern Airways v. CAB, 19 F.2d 397 at 402 (1952). 


5/  This language embraces the authorization for mail services which is the statutory basis for subsidy eligibility.