Docket 50326 / US-Russia Overflight / May 30, 1997

1. Annex 4 of the U.S.-Russia Air Transport Agreement provides that U.S. carriers collectively may overfly and stop for non-traffic purposes on a total of 28 flights per week (14 flights eastbound and 14 flights westbound) between points in Europe and the Indian subcontinent on approved Air Traffic Services (ATS) routings. /1

2. Historically, the ability of U.S. carriers to utilize Russian overflights to the Indian subcontinent has been limited since the most direct routings also involve overflying Afghanistan or Iraq, where U.S. overflying has been restricted due to security concerns.

3. On May 15, 1997, the FAA published an amendment to SPAR No. 67 which allows operations by U.S. carriers over the Wakhan Corridor area of Afghanistan. 62 Fed. Reg. 26890. The FAA's lifting of its restriction on overflying Afghanistan, while limited to the Wakhan Corridor, will enable U.S. carriers finally to utilize the valuable Russian overflight rights to/from the Indian subcontinent.

4. Both Northwest and United have applications pending in this proceeding for allocation of 14 weekly Russia overflight frequencies each. Like United, Northwest intends to utilize 14 weekly Russia frequencies to operate daily service to/from India via the Wakhan Corridor airspace. In addition, it appears that Polar Air Cargo was allocated on a nendente lite basis a single Russian overflight frequency to operate one weekly eastbound flight between Helsinki, Finland and Karachi, Pakistan. To the extent Polar Air Cargo still is interested in a single Russian

1/ U.S. carriers also may operate such overflights on 14 flights per week (7 eastbound and 7 westbound) between points in Europe and the countries of the Asia Pacific Region on approved ATS routings. These rights are not at issue in this proceeding.

overflight frequency, the 28 frequencies available for service between Europe and the Indian subcontinent already are oversubscribed by at least one. Moreover, Delta and Tower historically have utilized Europe-Indian subcontinent Russia overflight rights.

5. In the event the 28 available Russian overflight frequencies for services to/from the Indian subcontinent are oversubscribed, a competitive proceeding will be necessary in order for the Department to make a public interest determination regarding the best allocation of the available frequencies. As the Department is well aware, due process and fair play require that when competing applications are, as a practical and economic matter, mutually exclusive, those applications must be considered contemporaneously. Ashbacker Radio Co. v. FCC, 326 U.S. 327, 333 (1945); Northwest Airlines. Inc. v. CAB, 194 F.2d 339 (D.C. Cir. 1952); Delta Airlines Inc. v. CAB, 228 F.2d 17, 21 (D.C. Cir. 1955).

Moreover, Ashbacker is "a rule of substance and not . . . a mere prescription of form." Delta, 228 F.2d at 21. To the extent there are requests for more than 28 one-way Russia overflight frequencies for services to/from the Indian subcontinent grant of United's request for immediate allocation of 14 such frequencies will confer a practical advantage to United in any comparative proceeding. To grant frequencies to United, even on a pendente lite basis, would violate principles of fair play. The Department instead should conduct a comparative proceeding on an expedited basis and allocate the available frequencies on a long-term basis.

The Department should not act upon United's Motion for Immediate Action until a determination is made as to whether the 28 available Europe-Indian subcontinent Russia overflight frequencies are oversubscribed. To the extent such frequencies are not oversubscribed, the Department promptly should allocate the 28 available frequencies to Northwest and United (14 weekly frequencies each). If the frequencies prove to be oversubscribed, however, the Department should deny United's Motion for Immediate Action and promptly institute an expedited comparative proceeding to determine the best allocation of these limited U.S. aviation rights.

Respectfully submitted,

Megan Rae Poldy

Associate General Counsel

NORTHWEST AIRLINES, INC.

901 15th Street, N.W.

Suite 310

Washington, D.C. 20005

(202) 842-3193

May 30, 1997