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OST Docket Filings for February 22, 2002 |
Last Updated 02/24/02 09:22 AM
Applications and Renewals:
Aero Honduras - U.S.- Honduras Scheduled | Arrow - U.S.- Ecuador Withdraw | Gemini - U.S.- Colombia Renewal
Evergreen (2)- U.S.- Russia/U.S.- Thailand Dormancy Waiver | Interim Slots at LGA - Supplement of Champlain
Answers and Replies:
Categories of Airline Delays - Comments of ASTA | Warsaw Agreement
U.S.- Brazil (3)- Answers of American/Continental/Georgia Parties to Delta's Temporary Frequency Request
U.S.- U.K. Alliance (7)- Comments of Continental/Delta/FedEx/Northwest, United/bmi/Austrian/Lauda/Lufthansa/SAS, US Airways and Virgin
Notices of Action Taken:
Notices and Orders:
IATA | Legend Airlines - Revoking Certificate
| OST-02-11672 | February 22, 2002 | Application for Exemption |
U.S.- Honduras Scheduled Combination Air Service |
| Table of Contents | |||
| Exhibit 1-3: Applicant, Proposed Operations | |||
| Exhibit 4: Key Personnel | |||
| Exhibits 5-6: Ownership, Status | |||
| Exhibits 7-8: Insurance, License | |||
| Exhibits 9-12: Operating History, Aircraft, Maintenance, Agreements | |||
| Exhibit 13: Financials | |||
| Exhibits 14-18: History of Safety, Tariff Violations, Accidents (to be supplied) | |||
| Service List |
Aero Honduras plans to initiate its U.S. scheduled and charter operations with B-727-200 combination aircraft wet leased from a U.S.-flag carrier. Aero Honduras plans to initially operate scheduled combination service from San Pedro Sula and Tegucigalpa, Honduras to the U.S. point Miami, FL.
All U.S. - Honduras scheduled service between the U.S. and Honduras is currently provided by U.S. or third country flag carriers: American; Continental; TACA (El Salvador); Iberia (Spain); See: OAG Flight Guide, Worldwide Ed., February 2002. Aero Honduras was formed in order to serve as an independent, Honduran-flag, scheduled combination airline operating flights from Honduras to the U.S. Grant of this application is therefore in the public interest.
Counsel: Aero Honduras, Pierre Murphy, 202.822.8050, pmurphy@lopmurphy.com
| OST-99-5900 | Filed February 6, 2002 Issued February 22, 2002 |
Notice
of Action Taken |
U.S.- Mexico Charter Taxi |
Exemption to permit the applicant to continue to conduct passenger charter operations between Mexico and the United States, and other passenger charter operations in accordance with 14 CFR Part 2 12, using small equipment.
By: Paul Gretch
| OST-96-1039 | February 22, 2002 | Motion for Leave to File and Withdrawal of
Application Renewal of Frequency Allocation |
U.S.- Ecuador, Scheduled All Cargo |
| Service List |
Counsel: Arrow, Pierre Murphy, 202.822.8050, pmurphy@lopmurphy.com
Categories of Airline Delays and Cancellations
| OST-00-8164 | February 22, 2002 | Comments
of the American Society of Travel Agents |
Categories of Airline Delays and Cancellations |
We believe that the proposed rule is a valuable first step in removing the cloud of public suspicion and concern that surrounds the issue of flight delays and their real causes. The problem is large and cannot be resolved in one step. Overall we support adoption of the rule. Our only quarrel with the rulemaking lies not in the rule but in the notice, where DOT observes "one of our aims in developing the causal reporting system is to require minimal change to the air carriers internal tracking systems." While we share the view that government regulation in this and other areas should be a minimally intrusive as possible, we do not accept the implication that flight delay reporting must be largely limited by whatever the carriers are doing today to collect information for their own purposes. The public interest in knowing what causes delays must supercede airline interests in avoiding collection of data they themselves may not use.
By: ASTA, Paul Ruden
Evergreen International Airlines, Inc.
| OST-96-2025 | February 22, 2002 | Application
for Waiver of Dormancy Condition |
U.S.- Russia All-Cargo Frequency Allocation |
| Service List |
Hereby applies for waiver of the 90-day dormancy condition to its allocation of three weekly all-cargo frequencies between Anchorage, on the one hand, and Khabarovsk, Petropavlovsk, Vladivostok and Yuzhno-Sakhalinsk, Russia, on the other.
Grant of this waiver would be in the public interest based on the same considerations that led to issuance of the blanket waiver conferred by Order 2001-11-15, namely, the market disruption and drastic schedule adjustments that resulted from the events of September 11. The adverse impact of these events continues to be felt in the U.S.-Russia all-cargo market and has made resumption of Evergreen's freighter services uneconomical for the foreseeable future. Evergreen intends to reenter this market and anticipates that day will come well before expiration of the additional period of waiver it requests herein, which will afford Evergreen the flexibility it needs to resume service as soon as economic conditions warrant.
Counsel: Steptoe Johnson, David Coburn, 202.429.8063
| OST-01-8879 | February 22, 2002 | Application
for Waiver of Dormancy Condition |
U.S.- Thailand All-Cargo Frequency Allocation |
| Service List |
Grant of the waiver would be in the public interest for the same reasons that led the Department to grant the blanket waiver conferred by Order 2001-11-15, namely, the severe market disruption and drastic schedule adjustments that resulted from the events of September 11. The adverse impact of these events continues to be felt in the U.S.-Thailand all-cargo market and have made resumption of Evergreen's freighter services uneconomical for the foreseeable future. Evergreen intends to reenter this market and anticipates that day will come well before expiration of the additional period of waiver it requests herein. Extension of the waiver period will afford Evergreen the flexibility it needs to resume service as soon as economic conditions warrant.
Counsel: Steptoe Johnson, David Coburn, 202.429.8063
| OST-99-6633 | February 22, 2002 | Application for Renewal of Exemption |
U.S.- Colombia |
| Service List |
Hereby applies for renewal of its exemption that authorizes it to engage in the scheduled and charter foreign air transportation of property and mail between the United States and Columbia. The Department first granted this exemption to Gemini on March 30, 2000, by a Notice of Action Taken in this docket. The exemption is consistent with the 1956 Air Transport Agreement between the United States and Colombia, as most recently amended pursuant to amendments agreed upon in March of 2000. Under the amended Agreement, there are no limitations on the number of carriers that may operate all-cargo service between the United States and Colombia nor are there any limits on frequency or type of aircraft.
Counsel: Roller Bauer, Moffett Roller, 202.331.3300
Interim Slot Rules at LaGuardia Airport
| OST-00-7175 | February 21, 2002 | Supplemental
Certification of Champlain Enterprises |
Interim Slot Rules at LaGuardia Airport (Exemptions for Air Service to Small and Nonhub Airports --Limited to Aircraft with a Seating Capacity of Less Than 71) |
Hereby submits its certification for an exemption from 14 CFR Part 93, under 49 USC 41716, to recertify two Air 21 slots for service to Albany, NY that were previously certified for service to Buffalo, New York and Madison, Wisconsin. Champlain Enterprises will operate with 19 seat, Stage 3 compliant Beech 1900D aircraft. These flights will be operated as Continental Connection®, operated by CommutAir.
By: Champlain, Joel Raymond
Counterpart to Warsaw Agreement
| OST-95-236 | February 21, 2002 | Counterpart
to Agreement of European Aviation Air Charter Limited |
Warsaw Agreement |
By: European Aviation Air Charter Limited, Graham Mimms
| Order 02-2-16 OST-98-3667 |
Issued February 22, 2002 Served February 27, 2002 |
Order
Revoking Certificate |
Dulles- Dallas/Ft. Worth - Chicago |
| Service List |
It has now been over one year since Legend ceased all air carrier operations. To date, the carrier has not filed an application to resume operations, nor do we have any other information that would lead us to conclude that it plans to resume operations any time soon.Under these circumstances, we will revoke, without prejudice, Legend's certificate for reason of dormancy.
By: Randall Bennett
U.S.- Brazil Combination Frequencies
| OST-02-11627 | February 22, 2002 | Answer
of American Airlines |
U.S.- Brazil Combination Frequencies; Atlanta- Rio de Janeiro |
| Service List |
American does not object, provided that the Department contemporaneously grants American's application for a dormancy waiver, submitted on February 15, 2002 in OST-19996284, with respect to two New York (JFK)-Rio de Janeiro weekly frequencies, through January 8, 2003. Otherwise, American objects to Delta's application.
Accordingly, there will be a total of 15 (not 18) unused U.S.-Brazil weekly frequencies -- four held by American, four held by Continental, and seven held by United. Of these 15 unused frequencies, two (JFK-Rio de Janeiro) of American's four are subject to a 90-day dormancy condition, and two are not; Continental's four (New York/Newark-Rio de Janeiro) are subject to a 90-day dormancy condition; and United's seven are not subject to a 90-day dormancy condition. Nonetheless, if Delta attempts to parlay its temporary request into a permanent reallocation, all frequencies not being used, whether or not they are subject to an explicit 90-day dormancy condition, should be placed in issue.
American also wishes to note that Delta's Attachment is incorrect. American will in fact be operating 45 (not 42) weekly frequencies as of the summer of 2002 (DFW-Sao Paulo, seven; JFK-Rio de Janeiro, five; JFK-Sao Paulo, seven; MiamiRio de Janeiro, 12; and Miami-Sao Paulo, 14).
Counsel: American, Carl Nelson, 202.496.5647, carl.nelson@aa.com
| OST-02-11627 | February 22, 2002 |  Answer
of Continental Airlines |
U.S.- Brazil Combination Frequencies; Atlanta- Rio de Janeiro |
With 18 Brazil frequencies currently unused, Delta should be permitted to continue its Atlanta-Rio de Janeiro service using what Delta describes as an "allocation from an unspecified source" until notice has been given that all of the unused Brazil frequencies will be required for authorized operations. Requiring at least 90 day's notice to Delta and the Department should allow sufficient time to resolve any issues raised when all frequencies are required for authorized Brazil operations. With so many frequencies currently unused, granting the Continental and American requests for waivers of the dormancy conditions applicable to their frequencies is also appropriate. For these reasons, Continental urges the Department to grant Continental's waiver application promptly, and Continental has no objection to the continued temporary award of four Brazil frequencies to Delta, under the conditions described above, for its Atlanta-Rio de Janeiro service.
Counsel: Crowell Morning, Bruce Keiner, 202.264.2500, rbkeiner@crowell.com
| OST-02-11627 | February 22, 2002 | Answer
of The Georgia and Atlanta Parties |
U.S.- Brazil Combination Frequencies; Atlanta- Rio de Janeiro |
Atlanta has already proven itself as a highly successful gateway to Brazil, and currently enjoys daily nonstop service by Delta to both Rio de Janeiro and Sao Paulo. Atlanta can readily support the continuation of daily nonstop service to Rio de Janeiro, and Delta has indicated its willingness to maintain this service, so long as it receives the necessary frequency allocation. The strength of the Atlanta gateway, backed by Delta's extensive connecting complex at the Hartsfield Atlanta International Airport, has enabled travelers and shippers across the country to enjoy important new travel options to Rio de Janeiro this winter -- at a time when carriers have retrenched Brazil services at other gateways across the country.
By: Metro Atlanta, HollyBeth Anderson, 404.586.8462, handerson@macoc.com
| OST-01-11029 | February 22, 2002 | Comments of
Continental Airlines |
U.S.- U.K. Alliance |
The time has come for the Department to dismiss the applications of American' and British Airways for antitrust immunity and codeshare authority, dismiss or deny the applications of United, bmi and their Star Alliance partners for antitrust immunity and codeshare authority and terminate the U.S.-U.K. Alliance Case. Any other action would be unwise, arbitrary and capricious. Continental has opposed the proposed de facto merger between British Airways and American on U.S.-U.K. routes because of that alliance's extraordinary anticompetitive impact on London Heathrow-U.S. routes. Continental also opposed the proposed de facto merger between Star Alliance partners bmi and United because of the combined anticompetitive effect of that alliance with the British Airways/American alliance. Continental continues to oppose both antitrust immunity and transatlantic codesharing between United and bmi at London Heathrow because that airport is not open to Continental and other airlines since competitive slots and facilities are not, and will not be, available at London Heathrow. Unless and until London Heathrow is truly open to new entry, no further codesharing among London Heathrow incumbents, be it American/British Airways or United bmi, could be justified.
Counsel: Continental and Crowell Moring, Bruce Keiner
| OST-01-11029 | February 22, 2002 |
Comments of Delta Air Lines
Microsoft Word |
U.S.- U.K. Alliance |
The Department's well-settled policy is not to grant antitrust immunity to alliances without the existence of an open skies agreement. This policy is reaffirmed in the Show Cause Order. Thus, the tentative approvals in the Show Cause Order were expressly "conditioned on reaching an agreement with the United Kingdom on an Open Skies Agreement." Moreover, the Department made clear that "the proposed action will not be made final without that agreement." This essential predicate cannot and will not be met here. In these circumstances, there is no basis to move forward with the grant of immunity to United/bmi. United's and bmi's request to press the matter to "obtain a final ruling on the merits of their application" is an exercise in futility. The Department should either dismiss that application, as urged by Delta and the other Petitioners in their February 15 Motion, or grant the Joint Applicants wish for a "final ruling" by denying it.
Similarly, there is no basis for approval of any of the proposed codesharing activities between United/bmi or AA/BA, that were contemplated in the Department's tentative decision and premised on the existence of an open skies agreement. The status quo restrictive Bermuda II environment is so radically different from the open skies regime upon which interested parties based their evaluation and comments and upon which the Department based its tentative findings, that the Show Cause Order must be vacated in its entirety. To do otherwise would constitute a violation of Delta's and other parties' due process rights.
Counsel: Shaw Pittman, Robert Cohn, 202.663.8060, robert.cohn@shawpittman.com
| OST-01-11029 | February 22, 2002 | Comments of
Federal Express |
U.S.- U.K. Alliance |
| Service List |
The Department's Show Cause Order' is inconsistent with both U.S. law and economic interests, and endangered U.S. hopes for eliminating the restrictions of Bermuda 2. It should never have been issued. Predictably, its effect was to force American Airlines and British Airways to withdraw their joint application and the U.K. government to defer further discussions. Federal Express Corporation takes no position on the merits of the remaining United/bmi application, other than to note that its continued viability presents the U.S. and U.K. governments with a live, market-driven transaction that requires their resolution. In light of United and bmi's apparent desire to go forward, the Department should take the initiative to restart the open skies talks.
The Show-Cause Order did unnecessary and serious damage to the ability of the United States to conclude an open skies agreement with the United Kingdom - to FedEx's great disappointment. However, since the U.K. government has held out the possibility of continuing the talks, the Department should take all steps necessary to rehabilitate the U.S. position and press for open skies. Time is not the ally of U.S. commercial interests, because the passage of time could require the United States to negotiate with the E.U. members as a bloc with uncertain outcome. The Show-Cause Order proposed conditions so onerous and unfair that American and British Airways abandoned their proposed alliance within hours after it issued.
Counsel: FedEx, Nancy Sparks, 202.756.2461, nssparks@fedex.com
| OST-01-11029 | February 22, 2002 | Comments of Northwest Airlines |
U.S.- U.K. Alliance |
| Service List |
In light of the request by American/BA to dismiss their antitrust immunity application, there is no prospect for an open skies agreement between the United States and the United Kingdom. Thus, a fundamental predicate for favorable action on the United/bmi application - a U.S.-U.K. open skies agreement - cannot be satisfied. Under these circumstances, there is no basis for the Department to proceed with consideration of the United bmi application.
It is the Department's long-standing policy that antitrust immunity will not be granted in the absence of an open skies agreement with the foreign country in question. That has been the policy since the first immunized alliance between Northwest and KLM in 1993, it is the policy that applied to United's own immunized alliances with Lufthansa, SAS, Austrian Airlines and Lauda and it is the policy today.
Counsel: Northwest, Megan Rae Rosia, 202.842.3193
| OST-01-11029 | February 22, 2002 |
Joint Comments of United Air Lines,
British Midland, Austrian, Lauda, Lufthansa and SAS |
U.S.- U.K. Alliance |
As the Joint Applicants demonstrate below, that decision by American and British Airways should not deter the Department from making final its tentative decision in Order 2002-1-12 to approve the joint applications of United and bmi pending in this docket, and the Joint Applicants' request to add bmi to the existing immunized alliance among United, the Austrian Group, Lufthansa, and SAS. In Order 2002-1-12, the Department tentatively found that approving these applications and granting the Joint Applicants antitrust immunity for their proposed alliance agreements poses no risk to competition -- tentative findings that were not dependent upon the conclusion of a new liberalized air services agreement with the United Kingdom. That finding, and the significant benefits to consumers that the alliance will generate, clearly establish that proceeding to finalize the Show Cause Order as applied to the Joint Applicants would be fully consistent with the public interest, notwithstanding the decision by American and British Airways to abandon their own alliance rather than relinquish slots at Heathrow Airport. Moreover, by facilitating the Joint Applicants' ability to coordinate their networks at Heathrow, approval of their applications for immunity and code-share authorizations will enhance significantly United's ability to compete with British Airways and the other Heathrow incumbents on U.S.-Heathrow services. Further, from a competitive as well as a strategic standpoint, a step of even greater significance would be for the Department to indicate its willingness to authorize bmi to operate a limited number of flights between Heathrow and points in the United States on an extra-bilateral basis. Faced with such increased competition from an immunized United/bmi alliance, British Airways and American would be obliged to seriously rethink their opposition to proceeding with their own immunity application, opening the way for the U.S. and the U.K. to conclude a liberalized air services agreement.
Counsel: Wilmer Cutler, Jeffery Manley, 202.663.6670, jmanley@wilmer.com and Silverberg Goldman, Michael Goldman, 202.944.3305, mgoldman@sgbdc.com
| OST-01-11029 | February 22, 2002 | Comments of US Airways |
U.S.- U.K. Alliance |
| Service List |
Now that AA-BA have abandoned their pursuit of an immunized alliance, and an Open Skies agreement is no longer in reach, an underlying predicate for approval of the United/bmi application for antitrust immunity is gone. It would be unacceptable for the Department to give serious consideration to an immunized alliance anchored at slot and capacity restricted Heathrow airport in the absence of meaningful access to Heathrow for non-incumbent U.S. carriers such as US Airways. Clearly, permitting a price-fixing cartel between the second largest carrier in the world and a major slot holder at Heathrow, where competitive, new entry for non-incumbent U.S. tamers is effectively denied, cannot be in the public interest. The only choice for the Department under these circumstances is to dismiss the United/bmi application. Nonetheless, given the enormous benefits of increased, competitive access to Heathrow for U.S. consumers, we believe it is incumbent for the U.S. government to pursue unrelenting diplomatic efforts to achieve this objective.
Counsel: O'Melveny Myers, Joel Stephan Burton, 202.383.5300
| OST-01-11029 | February 22, 2002 | Comments of Virgin
Atlantic Limited |
U.S.- U.K. Alliance |
| Service List |
It is beyond challenge that expanding Virgin Atlantic's transatlantic position materially would promote a competitive market structure, particularly since Virgin Atlantic is widely and correctly perceived as a "disruptive rival." Thus, the DOT's decision to freeze Virgin Atlantic out of its slot allocations not only unfairly promotes U.S. trade and commercial interests; it does so at the expense of fundamental market structure and competition considerations that should have been the DOT's exclusive focus. The Department clearly could have achieved better competitive outcomes in a number of markets by directing LHR slots to Virgin Atlantic, rather than to the U S airlines named in the Show Cause Order. Virgin Atlantic urges the DOT, in such further orders as it may issue herein, to reconsider the marketplace impact of a policy that confines slot and asset divestitures exclusively to U.S. flag carriers. Competition in the marketplace is flag-blind; competition policy should be flag-blind as well.
Virgin Atlantic hopes that the developments before the ECJ and in this Docket that preclude approving these alliances and signing a bilateral "Open Skies" Agreement will liberate both sides of the Atlantic to re-evaluate their approaches to aviation liberalization and pursue true "Open Skies." True Open Skies does not reserve government travel to the carriers of any particular flag. True Open Skies does not close domestic markets to foreign ownership, investment and competition. And, True Open Skies does not countenance anticompetitive mergers and alliances that create monopolies and harm consumers. For the first time in a decade, both governments have a unique opportunity to shed the shackles of outmoded policy templates. The United States and the United Kingdom have been delivered the opportunity to turn the page on stale 20'h Century policies and to open a new page focused on the promise and needs of 21St Century aviation. We earnestly urge both governments to seize the moment. The sooner, the better.
Counsel: Garfinkle Wang, Elliott Seiden, 703.522.0900, eseiden@gandwplc.com
International Air Transport Association
| OST-02-11550 | Filed February 12, 2002 | Approved February 20, 2002 | Approval of Agreements |
| OST-02-11607 | Filed February 15, 2002 | Approved February 20, 2002 | |
| OST-02-11618 | Filed February 19, 2002 | Approved February 22, 2002 | |
| OST-02-11637 | Filed February 20, 2002 | Approved February 22, 2002 |
By: Paul Gretch
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