Home | Search | Help
OST by Number | OST by Order | OST by Carrier | OST by Subject | OST by Day
OIA by Carrier/Subject | OIA by Day | FAA by Number | FAA by Subject | FAA by Day
Carrier Financials | Charter Office | Answer/Reply Calendar
Updated:
Virgin America, Inc. Filings - 2006
Counsel: John Mietus, 301-571-9334, john@mietuslaw.com
Virgin America 2005 Filings
Virgin America 2007 Filings
Virgin America 2008 Filings
|
OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
January 4, 2006 Confidentiality Affidavit for AirTran Airways - Margaret Crawford Counsel: AirTran
January 4, 2006 Confidentiality Affidavits for Allied Pilots Association - Edgar James and Marie Chopra Counsel: APA
January 4, 2006 Confidentiality Affidavits for United Air Lines - Julie Oettinger, Bruce Rabinovitz, David Heffernan, Jonathan Moss, and Kenneth Hines Counsel: United
January 3, 2006 Confidentiality Affidavit for US Airways - James Walsh Counsel: US Airways
OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
January 5, 2006 Confidentiality Affidavits for the Transportation Trades Department, AFL-CIO - Larry Willis and Edward Wytkind Counsel: AFL-CIO
January 4, 2006 Confidentiality Affidavit for United Air Lines - Conor McAuliffe Counsel: United
January 5, 2006 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 6, 2006 Business and Civic Support Letters OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 6, 2006 Motion of Air Gumbo, Inc. to Support Application of Virgin America, Inc. Air Gumbo, Inc., requests that the application of Virgin America, Inc., to the Department of Transportation for a Certificate of Public Convenience and Necessity authorizing it to engage in interstate scheduled air transportation of persons, property, and mail, be processed by a simplified, non-hearing expedited procedure pursuant to Subpart Q of the Department’s Procedural Regulations, upon a successful determination by the Department that Virgin America, Inc., has meet the U.S. citizen requirement. As a starting-up airline our self, Air Gumbo, Inc. believes that the grant of the requested authority would be consistent with the competitive spirit of the Department, as well as the Department and Congressional policy as exemplified by the signing of The Wendell H. Ford Aviation Investment and Reform Act on April 5, 2000. AIR GUMBO, INC. respectfully requests that the Department grant Virgin America, Inc., an expedited process and grant any other relief as it may find to be in the public interest. Counsel: Air Gumbo, Ralston Champagnie, 337-781-0034, ralston@airgumbo.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 11, 2006 Motion of Virgin America to Enforce Order 2005-12-13 On January 5-6, 2006, three individuals filed confidentiality affidavits that do not comply with the Access Order because they do not state that the individual is acting as counsel or an outside, independent expert. Virgin America urges the Department to review, for compliance with the Access Order, all affidavits submitted by individuals seeking access to the Confidential Materials. It further moves the Department to immediately suspend the access of Mr. Edward Wytkind to the Confidential Materials." Mr. Wytkind is the President of the Transportation Trades Department, AFL-CIO, which formally opposed Virgin Americas application on December 21, 2005. His affidavit does not state that he is counsel for TTD, nor even that he is a lawyer; Virgin America understands he is not. Thus, he is not within the classes of individuals authorized by the Access Order, and longstanding Department practice, to review and use confidential materials in the context of a Department proceeding. The affidavits of United Airlines' Conor McAuliffe and Julie Oettinger also do not comply with the Access Order, as their affidavits do not state that they act as counsel for United Airlines. Mr. McAuliffc's affidavit does indicate that he is a member of the Illinois bar, and Virgin America understands that Ms. Oettinger also is licensed to practice law. Without conceding that these individuals are acting specifically as counsel to United in this proceeding, Virgin America does not oppose their continued access due to their status as attorneys and the other representations in their affidavits. Counsel: DLA Piper Rudnick, John Mietus, 202-861-6466, john.mietus@dlapiper.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
December 16, 2005 Support Comments of Applied Biosystems I am writing on behalf of Applied Biosystems to strongly urge swift approval of Virgin America's certification to offer interstate air service. By: Applied Biosystems, Nicholas Wong
January 11, 2006 Support Comments of Dallas/Ft. Worth International Airport The Dallas/Fort Worth International Airport is writing this letter in support of Virgin America's application in Docket OST-2005-23307 for a Certificate of Public Convenience and Necessity as a new U.S. airline to engage in scheduled interstate air transportation. We urge that Virgin America be granted this certificate so that it may commence its planned service as early as possible in 2006, and so that it can begin service at DFW Airport sometime thereafter. By: DFW Airport, Jeffrey Fegan OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 11, 2006 Support Comments of Nibbi Brothers Construction The purpose of this correspondence is to request that Virgin America be granted this certificate using simplified procedures so that it may commence service as early as possible in 2006. By: Nibbi Bros., Larry Nibbi OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 13, 2006 Re: Confidentiality Affidavits for Northwest Airlines - Megan Rae Rosia and Peter Kenney Counsel: Northwest, Megan Rae Rosia OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
January 11, 2006 Re: Confidentiality Affidavits for Federal Express - Nancy Sparks Counsel: FedEx
January 17, 2006 In a Motion dated January 11, 2006 Virgin America asks the Department to deny access of Confidential Materials to Edward Wytkind, President of TTD. For reasons stated below, allowing Mr. Wytkind access to these materials is necessary for TTD to fully evaluate this application, is not inconsistent with the Department's purpose in issuing Order 2005-12-13, and will not cause Virgin America undue harm. Virgin's motion should therefore be denied. While it is correct that Mr. Wytkind is not a lawyer, he is required by his position as President to oversee and direct our policy and regulatory activities and signs off on positions taken by TTD. This would include our ultimate position taken in this proceeding. Counsel: TTD, Larry Willis, 202-628-9262, larryw@ttd.org OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 23, 2006 Confidentiality Affidavit for American Airlines - Gary Kennedy Counsel: American Order 2006-1-21 Issued and Served January 26, 2006 Order on Requests for Expanded Access and In Camera Review of Documents By this Order, the Department orders an in camera review of certain documents and information that the applicant either redacted or omitted from its confidential submission filed on December 13, 2005. The Department will review the documents and information and place a Notice in the docket should we determine that any materials are deemed relevant to our determinations in this matter. If we find that the information is relevant, we will require that the information be filed in the record. Conversely, if we initially determine that the reviewed materials are not relevant to our determination, we will not require the filing of the materials in the docket, while reserving our right subsequently to determine, at any time in view of further analysis, that the previously reviewed information is relevant, and therefore the applicant must submit it in the docket. The applicant then may seek confidential treatment of this material under Rule 12. By: Michael Reynolds
OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 26, 2006 Confidentiality Affidavit for Frontier Airlines - Edward Faberman Counsel: Wiley Rein OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger January 27, 2006 Confidentiality Affidavit for Frontier Airlines - David Sislowski Counsel: Wiley Rein OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
December 16, 2005 The purpose of this correspondence is to request that Virgin America be granted this certificate using simplified procedures so that it may commence service as early as possible in 2006. By: Lora Bermani
December 16, 2006 Comments of City of Foster City, California I am writing on behalf of the City of Foster City to strongly urge swift approval of Virgin America’s certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: Mayor, Linda Koelling
December 19, 2005 Comments of Electronic Arts, Inc. I am writing on behalf of Electronic Arts Inc. to strongly urge swift approval of Virgin America’s certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: EA, Curtis Wilhelm
December 16, 2005 Comments of the Peninsula Policy Partnership I am writing on behalf of the Peninsula Policy Partnership, a public-private collaborative representing local government, labor, education, transportation, environmental and business leaders, to strongly urge swift approval of Virgin America's certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: PPP, Deberah Bringelson
December 15, 2005 Comments of the San Francisco Chamber of Commerce The purpose of this correspondence is to request that Virgin America be granted this certificate using simplified procedures so that it may commence service as early as possible in 2006. By: SFCC, Steven Falk
December 16, 2005 I am writing on behalf of SAMCEDA, the voice of business on the San Mateo Peninsula, to strongly urge swift approval of Virgin America's certification to offer interstate air service. Virgin America is a new U. S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: SAMCEDA, Deberah Bringelson
January 19, 2006 The purpose of this letter is to support the application of Virgin America for a Certificate of Public Convenience and Necessity and requested authorization from the Department of Transportation to engage in scheduled interstate air transportation. My company and I frequently use air transportation for business purposes. The use of and existence of so-called “low cost airlines” is of significant assistance in the control of transportation costs, keeping our company competitive in the world market. I believe it is clear that many of the existing U.S. carriers have been unsuccessful in the marketplace due to a poorly executed business plan. Shielding them from competition is not fair to the consumer. If they cannot get their house in order, they should be allowed to fail. U.S. commercial aviation needs fair competition to remain healthy. We believe that Virgin America will provide that competition. The City of Tampa has open gates at our terminal due to the failure of some airlines and the fact that the major carriers are cutting back service. Virgin America’s growth into the market should help fill those gates. By: Tampa Tank, Calvin Reed
December 16, 2005 Comments of Town of Colma, California I am writing on behalf of the Town of Colma to strongly urge swift approval of Virgin America's certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: Mayor, Helen Fisicaro
December 16, 2005 I am writing on behalf of the Wentz Group Corporation to strongly urge swift approval of Virgin America's certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: Bradley Wentz OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
December 20, 2005 Comments of the County of San Mateo, California On behalf of the San Mateo County Board of Supervisors, I ask for your swift approval of Virgin America's certification to offer interstate air service. Virgin America is a new U.S. owned and operated start-up airline based in San Mateo County (docket number OST-2005-23307). Last year, the Bay Area Economic Forum recognized the desirability of expanding domestic service at SF0, particularly by low‑cost carriers: Increasing routes and carriers will expand options and stimulate competition in the local air service market, meeting key objectives in segments of the region's travel community. By: Richard Gordon
December 19, 2005 I am writing on behalf of Emerald Fund to strongly urge swift approval of Virgin America’s certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: S. Osborn Erickson
December 21, 2005 Comments of the Gilroy Economic Development Corporation I am writing on behalf of Gilroy Economic Development Corporation to strongly urge swift approval of Virgin America’s certification to offer interstate air service. Virgin America is a new U.S. owned and operated start up airline based in San Mateo County and its docket number is OST-2005-23307. By: Larry Cope
January 18, 2006 Comments of the Metropolitan Washington Airports Authority I am writing in support of the application of Virgin America, Inc. for a certificate authorizing it to operate scheduled air transportation (Docket OST-2005-23307). Virgin America has applied for authority to begin operations as a low cost carrier. Its business plan is based on scheduled, long-haul, domestic service using new Airbus A320 and A319 aircraft. Within twelve months of its initial operation, it intends to operate 17 of these aircraft to some of the nation's top metropolitan areas. The carrier intends to focus on high quality customer service, as well as reasonable prices. By: James Bennett OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
December 19, 2005 Support of Borel Private Bank & Trust Company I am writing on behalf of Borel Private Bank & Trust Company to strongly urge swift approval of Virgin America's certification to offer interstate air service. By: John Conover
December 16, 2005 Support of Greater Bay Bancorp On behalf of Greater Bay Bancorp I strongly urge swift approval of Virgin America's certification to offer interstate air service. By: Duncan Matteson
December 22, 2005 The purpose of this correspondence is to request that Virgin America be granted this certificate using simplified procedures so that it may commence service as early as possible in 2006. By: Louis Meunier
December 22, 2005 Support of Mills-Peninsula Health Services I am writing on behalf of Mills-Peninsula Health Services, a Burlingame based organization of over 2500 employees to strongly urge swift approval of Virgin America's certification to offer interstate air service. By: Robert Merwin
December 16, 2005 The purpose of this correspondence is to request that Virgin America be granted this certificate using simplified procedures so that it may commence service as early as possible in 2006. By: Lynn Bunim, 415-778-1220, lynn.bunim@sbc.com
December 19, 2005 Support of Sequoia Union High School District On behalf of Sequoia Union High School District I strongly urge swift approval of Virgin America's certification to offer interstate air service. By: Superintendent, Patrick Gemma OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger February 10, 2006 Virgin America's application has been complete at least since its supplemental filing on December 13, 2005. Indeed, in first addressing the Motion of Continental Airlines, Inc. to stay this proceeding, the Department "recognize[d] the efforts made by the applicant to submit, together with their application, information and supporting documentation relevant to analysis of an air carrier fitness application." Virgin America's Confidential Materials have been accessible to counsel and outside experts for interested parties since that order was issued over six weeks ago; thus, Virgin America respectfully believes it is appropriate for the Department to set a date for interested parties to answer the application and for Virgin America to reply. Counsel: DLA Piper Rudnick, William Evans, 202-861-6459, bill.evans@dlapiper.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger February 21, 2006 Far from being complete, Virgin America's application contains huge gaps relating to both ownership and control of the applicant. Before the Department can determine that the application is complete the record must be supplemented by the additional information and data requested by Delta, Continental and others. Virgin America's application and its Confidential Material raise more questions than answers about the critical issues of whether or not "actual control" of Virgin America resides with non‑U.S. citizens. Also unclear on the basis of the current incomplete record the extent to which foreign entities own the applicant. As Delta noted in its December 20, 2005 Answer, Virgin America's application and the exhibits attached thereto confusingly describe a complex web of debt and equity investments that, when closely examined, suggest that Virgin America had been, currently is and will in the future be funded and controlled principally by foreign entities. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
February 22, 2006 Answer of Air Line Pilots Association to the Motion of Virgin America to set Answer Date Virgin America has asked the Department to establish a date for interested parties to file answers to its application for a certificate of public convenience and necessity. DOT has already done what Virgin is requesting. In Order 2005-12-13 the Department decided that answers to Virgin's application would be due 14 days after the Department rules on Continental Airlines' December 16, 2005 motion requesting that the Department require Virgin to supplement the record by filing certain additional information. That information, and the information requested in Continental's February 13, 2006 supplement to its earlier motion, is clearly necessary for the parties and the Department to evaluate whether Virgin meets the fitness and citizenship standards of the federal aviation statutes. ALPA believes, indeed, that the 14-day period established by the Department is excessively abbreviated given the quantity of additional material likely to be required by the Department. ALPA also believes that the number of days for filing answers should run not from when the Department rules on Continental's motion but from the date the Department determines that Virgin has supplied all the required information. For these reasons, to the extent that Virgin is asking for a date to be set before DOT rules on Continental's motion (as supplemented), the Applicant's motion should be denied. Counsel: ALPA, Jerry Anker, 202-797-4086, jerry.anker@alpa.org
February 22, 2006 Answer of American Airlines to Motion of Virgin America Virgin America's application is far from complete, and its motion should be denied. Virgin America asserts that Continental's "primary arguments" for deferring the answer date had to do with the "holiday season" in December. To the contrary, the primary focus of Continental's motion of December 16 - and of American, Delta, and others supporting Continental's motion - is that the Department should order Virgin America to submit far more information in connection with its application. There is no set time limit on the Department's decisional process to deem an application complete. For example, in the recent SkyTeam antitrust immunity docket (OST-2004-19214), the application was initially submitted on September 24, 2004 and not deemed complete until scheduling Order 2005-6-1 was issued on June 3, 2005. Careful deliberation by the Department on the information to be required from Virgin America is likewise warranted here, particularly in light of ongoing developments with respect to the NPRM on actual control pending in OST-2003-15759 and a potential U.S.-EU agreement that could result in U.S.-U.K. open skies. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
February 22, 2006 Answer of Continental Airlines Virgin America's audacity in asking the Department to expedite action on Virgin America's application when Virgin America has failed to provide any of the additional information requested by Continental and other parties, including documents, information and agreements. Perhaps most outrageous is Virgin America's failure to even mention its new chairman, much less provide information about its new chairman, who is already heavily involved in at least two other airlines that are potential competitors of Virgin America. Because of the extraordinary foreign control issues raised by Virgin America's application and the exceptionally complex ownership structure established to mask that control, the Department must require Virgin America to submit the additional documents already requested and take the time necessary to scrutinize Virgin America's governance and control rather than rushing to judgment as if this case were a simple new entrant fitness proceeding. Continental urges the Department to deny Virgin America's motion to establish a new answer date and to grant the requests by Continental and other parties for additional information and documents. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com
February 22, 2006 While Virgin America disregards the due process reasons for the continued suspension of the answer, they are paramount. The key issue here is whether, as Virgin America contends, the applicant meets the Department's U.S. citizenship standard and, more particularly, whether Virgin America is under the actual control of U.S. citizens. The Department's regulations require that interested parties, including existing U.S. airlines and labor unions, have full information in order to present informed comments with respect to this proposition. Without such information, interested parties will be denied a meaningful opportunity to analyze and comment on the application and the Department will be denied the benefit of such comments in reaching its determination. Counsel: Northwest, Megan Rae Rosia, 202-842-3193 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
February 23, 2006 American Airlines, Inc. hereby answers in support of the supplemental motion submitted on February 13, 2006 by Continental Airlines, Inc. requesting that the Department order Virgin America, Inc. to provide additional information and documents in connection with its application in this docket for a certificate as a United States citizen air carrier. Virgin America's claim of U.S. citizenship rests on an exceedingly complex web of transactions and agreements involving multiple individuals, corporations, partnerships, investors, and other entities of various nationalities - a web that cannot be untangled absent additional information. But what is crystal clear is that Virgin America was conceived, designed, equipped, staffed, and funded by Sir Richard Branson, a non-U.S. citizen, and the Virgin Group of companies, likewise non-U.S. citizens. Virgin America's operations are subject to a Virgin Group branding agreement and to plans that were obviously adopted long in advance of the initial closing in November 2005 purportedly shifting control of Virgin America to hedge fund investors. In these unique circumstances, as well as the fact that the U.K. is a non-open skies country, the Department should not proceed with Virgin America's application until additional information and documents are submitted. The Department should grant Continental's initial motion of December 16 and its supplemental motion of February 13, and should issue a ruling under Order 2006-1-21, January 26, 2006 with respect to in camera review of redacted and withheld documents. A procedural schedule should not be established until Virgin American has complied with all evidentiary requirements. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
February 23, 2006 Continental's supplement to its previous motion requests that the Department require Virgin America to submit additional information and documents to fill in the many gaps in the record which became apparent from the confidential documents. As Continental correctly points out, the confidential documents do not resolve the key issues of ownership and control, but rather raise even more questions. The additional information and documents requested by Continental in its proposed supplemental evidence request are required to develop an adequate record concerning which entities actually own the Applicant and whether the Virgin Group will continue to have the ability to exercise "actual control" over Virgin America. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com
February 23, 2006 Northwest Airlines, Inc. hereby answers in support of the Supplement of Continental Airlines, Inc. filed on February 13, 2006, asking the Department to require Virgin America, Inc. to submit additional documents and information related to its application. Northwest has reviewed the confidential documents previously submitted by Virgin America, and Northwest agrees that the current record raises significant questions about the structure and foreign control (past, present and future) of Virgin America. More information, as requested by Continental and others must be provided by Virgin America before the Department requires interested parties to file answers to the application. Counsel: Northwest, Megan Rosia, 202-842-3193, megan.rosia@nwa.com
February 22, 2006 Confidentiality Affidavits for Alaska Airlines - Thomas O'Grady, Edward Sauer, Marshall Sinick Counsel: Squire Sanders OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger February 23, 2006 Confidentiality Affidavit for Delta Air Lines - Jonathan Echmalian Counsel: Hogan & Hartson OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
March 3, 2006 Supplement No. 1 to Application - Bookmarked Virgin America Inc. respectfully supplements its application, filed December 8, 2005 in the above-captioned docket, for a certificate of public convenience and necessity. As the Department is now aware, Donald J. Carty recently was named Chairman of Virgin Americas Board. Accordingly, Virgin America would like to provide additional updates on the information contained in its application.
Counsel: DLA Piper Rudnick, William Evans, 202-861-6459, bill.evans@dlapiper.com
Motion for Confidential Treatment Under Rule 12 Virgin America Inc. respectfully moves the Department to withhold from public disclosure certain proprietary, commercially-sensitive, and confidential business and personal information. This information is being submitted in the form of a revised Confidential Exhibit and Confidential Documents supporting Virgin America's certificate application in the above-captioned docket. On December 13, 2005 Virgin America submitted Confidential Exhibits and also submitted voluntarily, as Confidential Documents, copies of substantially all the transaction documents associated with Virgin America's initial capitalization on November 21, 2005. By Order 2005-12-13 dated December 23, 2005, the Department granted those Confidential Exhibits and Documents interim confidential treatment and made them available to counsel and outside experts for interested parties. The recent appointment of Donald J. Carty as Chair of the Virgin America Board of Directors, and his investment in the airline, has led to a second set of transaction documents that Virgin America is filing with this Motion. These sensitive business documents are relevant to the Department's review of Virgin America's U.S. citizenship, but their public disclosure would cause substantial harm to Virgin America's competitive position by disclosing details of its financing. Counsel: DLA Piper Rudnick, John Mietus, 202-861-6466, john.mietus@dlapiper.com
March 6, 2006 Confidentiality Affidavit of Continental Airlines - Johnetta Jackson Counsel: Crowell & Moring OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger March 6, 2006 Confidentiality Affidavit of Alaska Airlines - Keith Loveless Counsel: Alaska Airlines OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger March 7, 2006 Confidentiality Affidavit of Northwest Airlines - Glenn Fuller Counsel: Northwest Airlines OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger March 1, 2006 Support of Miami-Dade Aviation Department The Miami-Dade Aviation Department, operator of Miami International Airport, fully encourages the U.S. Department of Transportation to grant Virgin America authority to commence domestic air operations within the United States. By: Jose Abreu OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
April 4, 2006 Public Supplement No. 2 of Continental Airlines to Motion for Additional Information and Documents - Bookmarked Almost four months after filing its initial application and two months after urging the Department, to expedite action on its then-incomplete application, Virgin America still has not provided the additional information requested by Continental and other parties necessary to evaluate the extraordinary foreign control issues raised by the application or satisfied basic information requirements applicable to new entrants. Continental's review of Virgin America's Supplement No. 1 and the additional confidential documents submitted by Virgin America on March 3, 2006 confirms that the record still remains woefully incomplete. Not only do the substantial questions previously raised by Continental and other parties (including AFL-CIO TTD, ALPA, American, APA, and Delta) about the applicant's exceptionally complex ownership structure and future control and the bona fides and independence of its U.S. investors remain unanswered, but Virgin America's March 3 submissions raise additional questions that require explanation before other parties are able to respond to the application. Accordingly, Continental renews its requests of December 16, 2005, February 13, 2006 and February 22, 2006 for additional information and documents from Virgin America and supplements those requests with additional requests based on the March 3 submissions. In view of the unprecedented foreign control issues raised by Virgin America's application and Virgin America's continuing failure to clarify the complex ownership structure established to mask that control or demonstrate that its U.S. investors should be considered owners of equity, the Department should, at a minimum, require Virgin America to submit the additional documents and information previously requested as well as the evidence outlined in this Supplement No. 2 and on Appendix A to this Supplement No. 2 before setting an answer date for Virgin America's pending application. Counsel: Continental and Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com
April 4, 2006 Motion of Continental Airlines for Confidential Treatment Pursuant to Rule 12 of the Department's Rules of Practice, Continental moves to withhold from public disclosure the confidential version of its second supplement to its motion for additional information and documents from Virgin America submitted to the Department today. Continental's confidential Supplement No. 2 contains information from documents for which access has been limited by the Department's confidential treatment rules and Order 2005-12-13. Accordingly, Continental asks for confidential treatment of the confidential version of its supplement submitted today to the Department. Continental's confidential supplement is being served only on counsel for the applicants and other counsel who have submitted valid confidentiality affidavits in this docket. Counsel: Continental and Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com Order 2006-4-15 Issued and Served April 13, 2006 Order Requesting Additional Information - Bookmarked The Department has reviewed Virgin America’s application, including the confidential record and the supplemental information filed on March 3, 2006. Based on our initial review of this material, we have determined that additional and/or clarifying information is needed before we can make a fitness determination in this matter. Therefore, we direct Virgin America to file the supplementary material identified in the Information Request attached as Appendix A to this Order. Further, in reviewing Continental’s motions requesting additional information, we have concluded that only some of the questions are relevant to our fitness determination. In its December 13, 2005, confidential submission, the applicant redacted certain material that it deemed not relevant to the Department’s fitness determination. As previously noted, we directed Virgin America to submit a copy of the unredacted documents and information to the Department for an in camera review. Based on our in camera review, we find that certain of these materials are relevant to our fitness determination. Therefore, we direct Virgin America to file those documents identified in Appendix B of this Order in the record of this case. By: Michael Reynolds
April 13, 2006 Although the Department today issued Order 2006-4-15 directing the applicant to submit additional information, that Order did not mention much less address Continental's Supplement No. 2 filed on April 4, 2006. Continental is correct in asserting that Virgin America's Confidential Documents filed on March 3, 2006 fail to resolve the large gaps in the record concerning, and indeed raise even more questions about, the central issue in this proceeding as to whether non-U.S. citizens are in "actual control" of the applicant. Also unclear on the basis of the current incomplete record is the extent to which foreign entities own the applicant. Counsel: Delta and Hogan & Hartson, Robert Cohn, 202-637-4999 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
Ex-Parte Letter to James Bennett, Washington Airports Authority OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger February 14, 2006 Ex-Parte Letter to Senator Russell Feingold By: Michael Reynolds OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger April 24, 2006 Petition of Virgin America for Partial Reconsideration of Order 2006-4-15 Virgin undertook steps to bring the concept of a new, low‑fare, U.S. air carrier to reality. Virgin was fully cognizant of the fact that under applicable U.S. federal aviation law, U.S. investors must hold actual and constructive control of any domestic air carrier. As a result, it solicited, directly and through financial advisors and representatives, interested U.S. investors who would be willing to participate in and fund the project and exercise actual control over the airline. The current members of VAI Partners LLC were among the U.S. investors solicited. Virgin America has already provided the Department and other parties with an extensive record of materials. In its view, the imminent filing of Supplement No. 2 and the stipulations proposed above will address the issues underlying Order 2006-4-15 and allow this proceeding to move forward. Only those airlines who fear competition from a well-capitalized, low-cost, high-quality U.S. airline have any reason to prolong this proceeding. Counsel: Virgin America and DLA Piper Rudnick, William Evans, 202-861-6459, bill.evans@dlapiper.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger April 25, 2006 Supplement No. 2 to Application - Bookmarked Virgin America Inc. respectfully supplements its December 8, 2005 application for a certificate of public convenience and necessity by responding to the Department's requests in Order 2006-4‑15. Order 2006-4-15 is the Departments first request for additional information in this matter. Given the extraordinary efforts that certain legacy airlines (future competitors of Virgin America) have taken to slow the Department's processing and burden the record with irrelevant information, Virgin America appreciates the opportunity to provide the Department with answers to its questions about the Virgin America application. The depth of Virgin America's preparation, and the eagerness of its management and investors for the airline to begin service, has not been lost on legacy carriers like Continental, American, United, Delta, and Northwest which have sought, through dilatory tactics and other means, to delay this proceeding and impede Virgin America's ability to offer the public low-priced, high-value service. Not surprisingly, these legacy carriers have proposed or supported egregious information requests that have little to do with legitimate concerns about citizenship and largely ignore the airline's fitness, willingness, and ability to compete in the marketplace. Virgin America is gratified that the Department's Order largely rejected these machinations and focused instead on developing the record necessary to issue a certificate to Virgin America. To be sure, Virgin America understands that the Department has a statutory responsibility to satisfy itself that an applicant is owned and controlled by U.S. citizens. Virgin America believes this determination can and should be a straightforward process in which the Department reviews the information Virgin America has submitted, expresses any citizenship concerns it may have, and works with Virgin America to address and resolve any such concerns. While competitors will no doubt continue trying to link Virgin America to irrelevant issues and otherwise attempt to slow the Department down, the company remains optimistic that the Departments final development of the record will be conducted in an expeditious manner. Virgin America strongly believes that a well-capitalized, well-led, and U.S.-controlled airline is entirely consistent with the Department's deregulation goals of increased competition, new service, and acting in the public interest. The Federal Aviation Administration is moving expeditiously through its safety and technical certification of Virgin America. Accordingly, Virgin America requests that the Department move forward in tandem with its sister agency and reject attempts by competitors to impede appropriate progress and a timely review of Virgin America's application. Counsel: DLA Piper Rudnick, William Evans, 202-861-6459, bill.evans@dlapiper.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger April 26, 2006 Motion for Confidential Treatment Virgin America Inc. respectfully moves the Department to withhold from public disclosure certain proprietary, commercially-sensitive, and confidential business and personal information. This information is being submitted in the form of Confidential Exhibits and Confidential Documents supporting Virgin America's certificate application in the above-captioned docket; in addition to the Exhibits and Documents identified in the attached Index, Virgin America also is refiling confidentially, pursuant to Appendix B of Order 2006-4-15, unredacted versions of pages VAM00422, VAM00425, and VAM00459 of the Confidential Documents. On December 13, 2005 Virgin America submitted Confidential Exhibits and also submitted voluntarily, as Confidential Documents, copies of substantially all the transaction documents associated with Virgin America's initial capitalization on November 21, 2005. By Order 2005-12-13 dated December 23, 2005, the Department granted those Confidential Exhibits and Documents interim confidential treatment and made them available to counsel and outside experts for interested parties. Disclosure of these newly-filed, sensitive business documents and materials, which respond to the requests in Appendices A and B of Order 2006-4-15 and related to the earlier material granted interim confidential treatment, would cause substantial harm to Virgin America's competitive position by disclosing details of its financing and business activities and those of its investors and suppliers. Counsel: DLA Piper Rudnick, John Mietus, 202-861-6466, john.mietus@dlapiper.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger May 2, 2006 Confidentiality Affidavit for American Airlines - William Ris Counsel: American, William Ris, 202-496-5650, will.ris@aa.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
May 4, 2006 Answer of American Airlines to Petition for Reconsideration of Order 2006-4-15 - Bookmarked American Airlines, Inc. hereby answers in opposition to the petition submitted on April 24, 2006 by Virgin America, Inc. for reconsideration of Order 2006-4-15, April 13, 2006, requiring the submission of additional documents and information. The petition should be denied, and the Department should defer processing Virgin America's application pending full compliance with Order 2006-4-15. Virgin America seeks to thwart the Department's fact-finding obligations under the U.S. citizen actual control statute, 49 USC 40102 (a) (15), by offering up vague, incomplete, and self-serving stipulations devised to minimize the pervasive and on-going presence of Sir Richard Branson and the Virgin Group in every aspect of Virgin America's proposed operations. Based on the public record and on the confidential information that the applicant has submitted to date, Virgin America is and will remain under the actual control of Sir Richard and the Virgin Group, notwithstanding the recruitment of additional investors. The petition for reconsideration, if granted, would prevent the Department and interested parties from reviewing the full panoply of contracts, agreements, understandings, commitments, side letters, communications, and other highly relevant evidence that we believe will conclusively establish on-going actual control of Virgin America by non-U.S. citizens. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
May 4, 2006 Answer of Delta Air Lines to Petition for Reconsideration of Order 2006-4-15 Delta hereby files this answer in opposition to the petition filed by Virgin America Inc. seeking reconsideration of Order 2006-4-15, which directed Virgin to submit additional documents and information. Specifically, Virgin asked the Department to eliminate Information Request 1(c) in Appendix A of Order 2006-4-15 and, in lieu thereof, Virgin offers proposed "stipulations" which it plans to submit in response to Information Request 11. Virgin's petition is without merit and is inconsistent with long-standing Department citizenship precedent. Its proposal to substitute stipulations in place of documentary evidence is unprecedented. The petition for reconsideration should be denied. The Department was entirely correct in directing Virgin to submit documents to or from Sir Richard Branson with respect to matters involving the applicant's formation, operations, management, or services. In fact, Information Request 1(c) is too narrow and should be revised to include documents to or from any member of the Virgin Group of Companies, not just Sir Richard Branson. It should not be limited to documents only to or from Sir Richard Branson because this limitation risks omission of key evidence relating to activities conducted on behalf of Sir Richard Branson by his U.K. controlled companies that make up the Virgin Group. Thus, Delta urges the Department to expand the scope of Information Request 1(c). Contrary to Virgin's petition, there is no sound basis for deleting Information Request 1(c) or for allowing Virgin to substitute its own self-serving characterizations of evidence in so-called "stipulations" in place of solid documentary evidence. Delta does not disagree that this case will involve an examination of the "current" citizenship of Virgin. However, the fact that the issue in this proceeding involves an examination of the "current" citizenship of Virgin in no way undercuts the importance of reviewing evidence (not self-serving stipulations) relating to prior activities through which the current applicant's business plans, operations, management, services, cooperative arrangements, branding agreements, etc. have been developed and established. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
April 20, 2006 Re: Letter in Support from Governor of California A bipartisan group of federal, state and local legislators including, US Senator Dianne Feinstein, California State Senator Jackie Speier and San Francisco Mayor Gavin Newsom have joined with me in the successful effort to attract Virgin America to California. I urge you to take every appropriate step to expeditiously review and approve Virgin's application. By: Arnold Schwarzenegger OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
May 4, 2006 Public Answer of Continental Airlines to Petition for Partial Reconsideration of Order 2006-4-15 - Bookmarked Virgin America has only itself to blame that its application remains pending before the Department with no answer date set. Five months after filing its application and more than two months after asking the Department to set an answer date, Virgin America still refuses to provide the critical information related to its ownership and control necessary to evaluate its citizenship. Rather than respond fully to the Department's April 13, 2006 Information Requests, Virgin America has elected to submit a woefully incomplete supplement to its original application and an unprecedented request that the Department accept a one-sentence statement plus three self-serving stipulations in lieu of production of the many relevant documents necessary to evaluate its ties with the Virgin Group. Virgin America's unwillingness to produce documents demonstrating the full extent of its relationship with and dependence on the foreign Virgin Group, coupled with Virgin America's acknowledgement of past control by the Virgin Group and the significant questions about current foreign control (and ownership) raised by the existing record, cast doubts on its current citizenship and underscore the need for the Department and interested parties to review more not less, information than requested by Order 2006-4-15. Extremely limited excerpts from Virgin America's "business plan" - which Virgin America has battled to keep entirely secret for almost five months after it submitted other confidential documents - only reinforce these doubts. Although only 3 pages of the "business plan" have been entered into the (confidential) record (and only then within the past 10 days), these snippets are remarkably revealing: they strongly suggest that CONFIDENTIAL. For example, one of the three pages made available from the "business plan" actually appears to be a CONFIDENTIAL. The implication is clear: CONFIDENTIAL. In fact, the Virgin Group has done just that by giving the Fund Investors CONFIDENTIAL Substantial doubts about the role of the foreign Virgin Group rightfully abound. Accordingly, the Department should (1) reject Virgin America's attempt to limit Information Request 1(c) in Order 2006-4-15, (2) direct Virgin America to comply fully with the April 13 Information Requests, (3) clarify and modify the April 13 Information Requests and (4) order Virgin America to provide additional evidence. Additionally, if the Department considers Virgin America's request to accept stipulations rather than real evidence related to foreign control, the Department should adopt the stipulations proposed by Continental in Section I.A.2, infra, rather than those offered by Virgin America. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com
May 4, 2006 Continental Airlines Motion for Confidential Treatment Continental moves to withhold from public disclosure the confidential version of its Answer to Virgin America's Petition for Partial Reconsideration and Motion for Clarification and Additional Evidence submitted to the Department today. Continental's confidential Answer/Motion contains information from documents for which access has been limited by the Department's confidential treatment rules and Order 2005-12-13. Accordingly, Continental asks for confidential treatment of the confidential version of its Answer/Motion submitted today to the Department. Continental's confidential Answer/Motion is being served only on counsel for the applicants and other counsel who have submitted valid confidentiality affidavits in this docket. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger March 14, 2006 Re: Ex-Parte Communication with California Governor Schwarzenegger On March 14, 2006, I spoke by telephone to California Governor Arnold Schwarzenegger regarding the application of Virgin America for a certificate from the Department of Transportation to engage in scheduled air transportation. Governor Schwarzenegger expressed his support for the application of Virgin America and indicated that it was important economically for the State of California. During the conversation, I noted to Governor Schwarzenegger that I was prohibited from discussing the merits of the case because it is a contested matter. By: Maria Cino OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
May 10, 2006 Motion to Strike Material Filed by Continental Airlines Virgin America Inc. respectfully moves the Department to strike sections II and V of the May 4, 2006 "Answer of Continental Airlines, Inc. to Petition for Partial Reconsideration of Order 2006-4-15 and Motion for Clarification and Additional Evidence." Not only is the entire pleading a transparent and renewed attempt to stall this regulatory proceeding, but these sections specifically respond to and request reconsideration of provisions of an Order that the Department issued on April 13, 2006. As such, these sections constitute a petition for reconsideration of that Order, and they should have been filed, pursuant to Rule 14(a) of the Department's Rules of Practice, 14 C.F.R. § 302.14(a), not later than Monday, April 24, 2006. If Continental did not agree with the Department's decisions about those requests in this proceeding, it should have filed a petition for reconsideration no later than April 24. Continental's now-belated attempt to bootstrap those requests and arguments into a separate, formal response to Virgin America's April 24 petition is without merit. Accordingly, Virgin America respectfully requests that the Department recognize that Continental's continuing efforts to hinder this proceeding are out of order and a clear violation of the Department's Rules of Practice, and, thus, that Continental's late-filed disagreements with Order 2006-4-15 should be stricken from the record. Counsel: DLA Piper Rudnick, William Evans, 202-861-6459, bill.evans@dlapiper.com
May 8, 2006 Ex-Parte Letter to Senator Dianne Feinstein Thank you for your letter of March 15 to Secretary Mineta, supporting Virgin America's application for authority to engage in interstate scheduled air transportation. Because Secretary Mineta is recused from this proceeding, I am responding on behalf of the U.S. Department of Transportation. The status of this public proceeding is that Virgin America has applied for a certificate to provide air transportation. It has submitted information to support its application. Various parties to the proceeding have filed pleadings in the public docket. After review of the information submitted by Virgin America and the pleadings in the docket, on April 13, as is the normal process, the Department issued Order 2006-4-15, directing Virgin America to file additional evidentiary material that we determined necessary for the processing of the application. With respect to your request that the Department set a timeline for processing this application, I can assure you that, once Virgin America has submitted all necessary information for the Department to determine that the application is substantially complete, we will publicly issue a procedural schedule for deciding this matter. As this proceeding is pending, I am sure you understand that I cannot comment on the merits of Virgin America’s application. I assure you that the Department will give full consideration to Virgin America’s application and all comments on the record in the docket. By: Maria Cino OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
May 15, 2006 As American stated in its answer filed on May 4, 2006 to Virgin America's petition for reconsideration of Order 2006-4-15, the Department should not proceed with Virgin America's application absent a complete evidentiary record, particularly in light of Sir Richard Branson's explicit public statements on control. Continental's motion should be granted in its entirety so that the Department can reach an informed decision based on all the facts and circumstances of Virgin America's ownership, financial, management, and operational structure; how that structure came about; and the extent of on-going non-U.S. citizen involvement in and influence over the applicant. Virgin America's motion to strike Continental's motion for additional evidence should be denied. Contrary to Virgin America's allegation, Continental's motion is not a late‑filed petition for reconsideration, but is a legitimate response to the vague and incomplete stipulations and the minimal number of confidential documents offered up by Virgin America with its petition on April 24, 2006. Virgin America has called Continental's motion "out of order" in the media, but it is Virgin America's conscious decision to stonewall the Department's evidentiary requests and derail the fact-finding process that is out of order. Given the unique circumstances of the dominant roles played by Sir Richard and the Virgin Group in Virgin America, coupled with Sir Richard's public statements on control, the Department should engage in the most exacting scrutiny of this application. In the SkyTeam antitrust immunity docket, OST-2004-19214, the application was filed on September 24, 2004 and deemed complete on June 1, 2005, some eight months later. As was the case in that docket, the applicant here appears unwilling to submit relevant evidence, even in the face of an explicit order directing that it do so. Virgin America should not be heard to complain about delay when it has refused to submit required information. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
May 15, 2006 Consolidated Answer of Northwest Airlines There are critical public interest reasons to assure the record is complete in this case. Under existing law and DOT policy, the Department must determine that Virgin America is owned and actually controlled by U.S. citizens. See, 49 U.S.C. 40102(a)(15). In that regard, the Department must carefully consider the degree of control exerted over Virgin America by U.K. nationals of the Virgin Group, as well as assessing the independence of Virgin America's key U.S. management personnel who may be "beholden" to U.K. interests. As detailed in American's May 4 Answer to Virgin America's Petition for Reconsideration of Order 2006-4-15, Sir Richard Branson has directly and repeatedly asserted that the Virgin Group would not offer a Virgin branded domestic product in the United States unless they were in control of the carrier. Counsel: Northwest, Alexander Van der Bellen, 202-842-3193
May 15, 2006 With the April 25, 2006 filing of its Supplement No. 2, Virgin America believes its application is substantially complete. Thus, under 49 U.S.C. § 41108(b) and Rules 211(b) and 220, Virgin America believes it is appropriate for the Department to issue a procedural order and rule on Virgin America's application while adhering to strict deadlines. Unfortunately, opponents would have the Department place itself in an untenable situation where it could not meet those deadlines. Continental, in particular, seems to take its cues for information requests from antitrust immunity proceedings and typical civil litigation, where there is no analogous, statutory deadline for governmental action. Continental suggests that the review and production should take place worldwide, at all Virgin-branded entities, and involve documents generated over a 2 1/2-year period. Material produced as a result of the global exercise that Continental envisions would then need to be reviewed by the Department, draining substantial government resources. Such a review and production would be exceedingly burdensome; however, it ultimately will not assist the Department in "resolving the issues at stake" in the proceeding, one of the factors used in discovery related jurisprudence. It is worth noting that Continental and American have used their answers to the Department's Order as a means by which they wish to add additional material to the record and to make substantive arguments concerning Virgin America's application. It is simply disingenuous to claim that there still is not enough information to set a date for substantive answers while proceeding to answer the application at the same time. Counsel: DLA Piper Rudnick, William Evans, 202-861-6459, bill.evans@dlapiper.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger May 16, 2006 Answer of Delta Air Lines to Motion of Virgin America to Strike Virgin's motion is without merit and should be denied. Conspicuously absent from Virgin's motion is any discussion of the merits of Continental's request for information and any explanation of why the documents and information requested by Continental would not be relevant to the critical ownership and control issues in this proceeding. Instead, Virgin uses its motion to vent about delays and to assert alleged and erroneous procedural problems with Continental's request. Virgin can only blame itself for the delays in processing its application. Instead of being forthright and open, it has submitted a confusing and constantly changing array of information while strenuously hiding relevant information and documents from the Department and interested parties by trying to substitute its own self-serving "stipulations" in lieu of hard evidence. There is nothing impermissible about Continental's request that the Department direct Virgin to submit additional information relevant to the ownership and actual control issues. Continental has demonstrated that the requested information would be highly relevant to these determinations. Virgin's Motion makes no effort to refute that showing. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
May 16, 2006 Confidentiality Affidavits of Northwest Airlines - Alexander Van der Bellen and Andrea Newman OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
May 19, 2006 Answer of Air Line Pilots Association to Motion of Virgin America to Strike Virgin's history and structure raise serious questions about whether actual control of the company may be in foreign hands. Virgin is willing to stipulate that foreign entities affiliated with Mr. Richard Branson prepared its initial business plan, hired several of its key managers and officers, facilitated the creation of some of its basic infrastructure, and directly solicited U.S. investors for the company. All this airline creation activity comes against the backdrop of repeated statements by Mr. Branson that he would not place the Virgin brand on a U.S. airline that he or his affiliated foreign companies could not control. Continental has carefully explained the connection between each of its requests in its May 4 Motion for Clarification and Additional Information and the citizenship assessment that must be made. While the requests are lengthy and detailed, Virgin's genesis and extraordinarily complex -- and rather opaque -- ownership structure dictate that the additional information be supplied. Indeed, there are certain critical subjects -- such as the role of Mr. Donald Carty in Virgin and his relationship with other aeronautical entities, and the extent to which Virgin's business plan reflects the past and intended future involvement of Mr. Branson or his affiliates in the key economic decisions of the company -about which little information has been produced so far. Continental has demonstrated that the requested information is germane to an evaluation of its citizenship. Accordingly, Virgin's Motion to Strike should be denied. Counsel: ALPA, Russ Bailey, 202-797-4086, russell.bailey@alpa.org
May 19, 2006 Answer of Continental Airlines to Motion to Strike Virgin America "doth protest too much." Five months after Virgin America submitted its application, Virgin America still has failed to provide all the information required by the Department's rules, much less the additional information necessary to analyze the extraordinary ownership and control structure devised by the Virgin Group. If Virgin America has nothing to hide, why is Virgin America stonewalling the Department on producing the evidence needed to fill the huge gaps in the record and to counter its foreign founder's vow "never" to get involved in a Virgin-branded company "unless we could control and protect the Virgin name"? Why does Virgin America continue to blame others for the delay caused by its own refusal to comply with the Department's Information Request and the requirements of 14 C.F.R. Part 204? As American, Delta and Northwest have shown in their opposition to Virgin America's Motion to Strike, Virgin America's attacks on other carriers cannot hide the fact that the current record lacks critical evidence needed to assess whether Virgin America will be able to meet the "actual control" requirement in 49 U.S.C. § 40102(a)(15). Based on its current capital, Virgin America is clearly not now a U.S. citizen, and it is presumptuous for Virgin America to insist that the Department rush to judgment before Virgin America meets the most rudimentary ownership requirements and without providing sufficient information about its projected ownership and control, including information requested by Continental. The Department should deny Virgin America's baseless motion to strike and should grant Continental's motion of May 4. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger May 26, 2006 Confidentiality Affidavit of Delta Air Lines - Patrick Rizzi Order 2006-7-14 Issued and Served July 12, 2006 Order Establishing Procedural Dates and Directing Comment We have carefully reviewed the record in this proceeding and now believe that it contains sufficient information upon which to base a decision. We will, therefore, declare Virgin America's application to be substantially complete and establish procedural dates for deciding this case. To provide all interested parties sufficient time to analyze adequately and comment fully on all material in the public and non-public record, interested parties should file answers to Virgin America's application no later than twenty-one calendar days from the service date of this order, with replies due no later than fourteen calendar days after the last day for filing answers. By: Michael Reynolds OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger July 14, 2006 Counsel of record for Virgin America, the applicant in this proceeding, now practice at a new law firm. Counsel: John Mietus, 301-571-9334, john@mietuslaw.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger July 14, 2006 Confidentiality Affidavits of US Airways Group - Mark Burgoz, Janet Dhillon, Ann Halton Counsel: US Airways, Benjamin Slocum OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger July 20, 2006 Confidentiality Affidavit - Counsel for Continental Airlines - Gerald Murphy OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
July 27, 2006 Supplement No. 3 to Application - Bookmarked Virgin America Inc. respectfully supplements its December 8, 2005 application for a certificate of public convenience and necessity to advise the Department of new developments and information concerning the applicant. Each of the two investors in Virgin America has substituted a new director to replace a director who has departed. Brief biographical information on the new directors is provided below, and resumes are provided in Exhibit 7b. The substitution of these two directors does not alter the compliance information provided in sections l, m, o, p, and q of Exhibit 1 to the Application. Virgin America also has obtained $2.5 million in additional, temporary financing from Virgin Management Limited. A promissory note signed by Virgin America on July 2, 2006, and related documents affirmed by the Board on July 11, are contained in new Confidential Documents filed under seal with a motion for confidential treatment. Finally, Virgin America is pleased to submit for the record, as Exhibit 27, a July 25, 2006 study by the Campbell-Hill Aviation Group, Inc. entitled "Virgin America's Benefits to U.S. Consumers." The study quantifies how the introduction of low-fare service by Virgin America could reduce market fares, increase service frequency and capacity, and stimulate new passenger traffic. Counsel: John Mietus, 301-571-9334, john@mietuslaw.com July 27, 2006 Motion for Confidential Treatment Virgin America Inc. respectfully moves the Department to withhold from public disclosure certain proprietary, commercially-sensitive, and confidential business information. This information is being submitted in the form of additional Confidential Documents supporting Virgin America's certificate application in the above-captioned docket. Supplement No. 3 to Virgin America's application in the above-captioned docket indicates that the applicant has received $2.5 million in additional, temporary debt funding to support its pre-certification activities. New pages VAM1184-VAM1200 contain the corresponding Promissory Note (1184-1190) and forms of a Board Resolution by Written Consent (1191-1193) and of a Consent and Waiver (1194-1200) as they were approved. Because these documents contain confidential business information relating to the applicant's funding, their disclosure would cause substantial harm to Virgin America's competitive position by disclosing details of its financing activities. Counsel: John Mietus, 301-571-9334, john@mietuslaw.com
July 26, 2006 Support of San Mateo County Convention and Visitors Bureau The San Mateo County Convention & Visitors Bureau would like to go on record in support of DOT approval for Virgin America. This U.S. company will fly between major U.S. cities and popular domestic destinations, generating a positive economic impact for America. In our area (SFO), which has still not recovered from 9/11, Virgin America will generate thousands of jobs and give a tremendous boost to tourism efforts. By: Anne LeClair OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger July 27, 2006 Answer of San Francisco in Support of the Application Expeditious DOT review and approval of Virgin America's application to begin operations at SFO is a key priority - for San Francisco, for the state of California, and for the U.S. traveling public seeking competitive, low-cost service. The Bay Area strongly supports the application, from both an economic and a travelers' point of view. San Francisco respectfully urges the Department to act promptly and favorably on the Virgin America application. By: John Martin OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger July 31, 2006 Confidentiality Affidavits of Continental Airlines - Jean Baxley and Charles Hwang OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
August 1, 2006 Support of Denver International Airport Denver International Airport encourages the US Department of Transportation to give Virgin America all consideration in its effort to start domestic operations in the United States. We believe Virgin America's application should be approved in that it will be a new, high quality, low cost airline that will enhance the economic competitiveness, create direct economic benefits and enhance the quality of life of many Americans. By: Turner West
July 31, 2006 Support of the Greater Orlando Aviation Authority On behalf of the Greater Orlando Aviation Authority, I am writing to support Virgin America’s pending application for certification to operate as a US domestic carrier. Orlando International stands ready to welcome Virgin America should it choose to serve Florida’s largest passenger airport. By: Steve Gardner, 407-825-2001 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
August 2, 2006 Answer of Air Line Pilots Association in Opposition - Bookmarked The ALPA hereby answers the application of Virgin America. Because Virgin America is under the control of the Virgin Group, a foreign entity, the application should be denied. ALPA submits that each one of the devices discussed above would, by itself, require a determination that the Virgin Group controls Virgin America. Taken together, and as a "totality of the circumstances," they simply dictate that the conclusion that Virgin America is not a "citizen of the United States" under the aviation statutes. Accordingly, the application of Virgin America for a certificate of public convenience and necessity should be denied. Counsel: ALPA, Russell Bailey, 202-797-4086, russell.bailey@alpa.org
August 2, 2006 Motion of ALPA for Confidential Treatment ALPA moves to withhold from public disclosure the confidential version of its Answer to Virgin America's Application for a Certificate of Public Convenience and Necessity. In accordance with Rule 12, ALPA is submitting copies of its confidential Answer to the Department separately in a sealed envelope bearing the caption for this case and marked "Confidential Treatment Requested Under 301.12.'' ALPA's confidential Answer contains information from documents for which access has ALPA's confidential Answer is being served only on counsel for the applicants and other counsel who have submitted valid confidentiality affidavits in this docket. ALPA is submitting in this docket a version of the Answer with the confidential portions redacted and serving it on counsel for the applicants and all other persons listed on the attached service list. Counsel: ALPA, Russell Bailey, 202-797-4086, russell.bailey@alpa.org
August 2, 2006 Motion of American Airlines to Dismiss or Hold in Abeyance and Answer - Bookmarked Virgin America cannot deny that Mr. Reid was selected as president in April 2004 by foreign interests when the applicant was in every respect the creature of Sir Richard Branson and the Virgin Group, and lacked even the pretense of U.S. investors. Indeed, Mr. Reid, in an interview earlier this year, acknowledged that he was chosen in 2004 by Virgin USA - a non-U.S. citizen entity - "[s]o you could say ultimately I was hired by Richard [Branson] " Accordingly, since Virgin America does not have a U.S. citizen president, its application should be dismissed for failure to satisfy one of the most fundamental requirements of 49 USC 40102 (a) (15) and 14 CFR Part 204. As a matter of sound policy, the Department should not entertain a proposal from an applicant at a time when more than 90% of its funding has been provided by foreign interests. If Virgin America wishes to engage the resources of the Department in considering its application, it should come forward with the proposed equity positions of its alleged U.S. investors fully paid up. The pending application should be dismissed, and refiling should be accepted only in the event that the proposed second closing with the hedge fund investors has been consummated. The Department is now in the final stages of a rulemaking proceeding (OST-2003-15759) which may result in a revised interpretation of "foreign control" that would be highly relevant in this docket. The conclusion of the rulemaking may occur within the next few weeks. In filing its application last December, Virgin America acknowledged the existence of the foreign control NPRM, but asked that its proposal be considered under "existing laws and regulations." If Virgin America's application is not dismissed, and if the Department adopts a new policy on foreign control, the Department should request comments from interested parties on whether Virgin America's application should be judged under former precedent or under the new rule. If the Department decides to consider Virgin America under the new rule, interested parties should be provided a full opportunity to submit further answers and objections. While we do not know the precise details of the final rule on foreign control that the Department may adopt, we believe that Virgin America would fail to qualify as a U.S. citizen under any standard, as we would demonstrate should a new rule be issued and applied in this docket. Accordingly, Virgin America's application, if not dismissed outright, should be held in abeyance until the conclusion of the Department's foreign control rulemaking now pending in OST-2003-15759. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
August 2, 2006 Motion of American Airlines for Confidential Treatment American Airlines, Inc., under 14 CFR 302.12, hereby moves the Department for confidential treatment of the accompanying confidential motion and answer to Virgin America Inc. Our confidential motion and answer makes reference to confidential materials submitted in this docket by Virgin America. This material is protected from public disclosure by Order 2005-12-13, December 23, 2005. Consistent with that order, we will provide our confidential motion and answer only to holders of valid confidentiality affidavits on file in this docket. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
August 2, 2006 Answer of Continental Airlines - Bookmarked Virgin America is a foreign funded, owned and controlled would-be airline masquerading as a U.S. airline applicant. Although Virgin America continues to defy the Department's evidence requests in Order 2006-4-15, Virgin America's own documents and pronouncements from Sir Richard Branson and Fred Reid, Virgin America's president/CEO, show conclusively that Virgin America does not meet the U.S. citizenship test in 49 U.S.C. 5 40102(a)(15)(C) because (1) the Virgin Group has complete and actual control over Virgin America, (2) Virgin America does not comply with the ownership requirements of the U.S. citizenship test (in part because the Virgin Group in actuality has ownership CONFIDENTIAL of Virgin America's equity CONFIDENTIAL basis, and potentially substantially more, through a labyrinth CONFIDENTIAL, (3) Virgin America's president/CEO cannot be considered a U.S. citizen and (4) less than two-thirds of Virgin America's board of directors are U.S. citizens. The Virgin Group's control over Virgin America is so pervasive that Virgin America would not even qualify as a U.S. airline under the Department's proposal to expand permissible foreign control of U.S. airlines for investors from open skies countries, even if those standards could ever be applied to investors from a country like the United Kingdom, when access to its most important airport (London Heathrow) is unavailable to new U.S. carriers. While the foreign control shown by the current record is impermissible by any standard, it is just the tip of the iceberg. If Virgin America had deigned to comply with Order 2006-4-15 and produced the additional, highly probative evidence ordered by the Department and requested by other parties, the full extent of the foreign Virgin Group's control would be even more evident. Since Virgin America fails the test for U.S. citizenship, Continental opposes Virgin America's application for certificate authority and urges the Department to deny it. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com
August 2, 2006 Motion of Continental Airlines for Confidential Treatment Continental moves to withhold from public disclosure the confidential version of its answer to Virgin America's application submitted to the Department today. In accordance with Rule 12, Continental is submitting copies of its confidential answer to the Department separately in a sealed envelope bearing the caption for this case and marked "Confidential Treatment Requested Under 302.12." Continental's confidential answer contains information from documents for which access has been limited by the Department's confidential treatment rules and Order 2005-12-13. Accordingly, Continental asks for confidential treatment of the confidential answer submitted today to the Department. Continental's public version of its answer contains the word "CONFIDENTIAL" to show where confidential information has been removed. The public version of the answer is being filed in this docket and served on counsel for the applicants and all other persons listed on the attached service list. Continental's confidential answer is being served only on counsel for the applicant and other counsel who have submitted valid confidentiality affidavits in this docket. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com
August 2, 2006 Answer of Dallas/Ft. Worth International Airport in Support of Application By Order 2006-7-14 the Department found Virgin America’s Certificate Application complete, and directed interested parties to answer by this date. The Dallas/Fort Worth International Airport hereby answers in support of Virgin America’s application for a Certificate of Public Convenience and Necessity as a new U.S. airline to engage in scheduled interstate air transportation. We urge that the Department grant Virgin America this certificate so that it may commence its planned service as soon as possible, and so that it can begin service at DFW Airport thereafter in 2007. By: Jeffrey Fegan, 972-574-3200, jfegan@dfwairport.com
August 2, 2006 Answer of Delta Air Lines in Opposition - Bookmarked Delta hereby answers the application of Virgin America Inc. for a certificate of public convenience and necessity. For the reasons explained below, Virgin has failed to meet its burden of demonstrating that it is a "citizen of the United States." The record demonstrates that Virgin had been, currently is, and will be in the future funded and controlled principally by foreign entities. Therefore, on the basis of the current record, the Application should be denied. If the Department is not prepared to deny the Application based on the current record, given the complexity of the foreign ownership and control relationships between Virgin and the U.K. Virgin Group of companies, and the disputes of material facts concerning both ownership and control, this is one of those rare cases in which any further consideration of the citizenship issue should be conducted on the basis of formal evidentiary procedures. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com
August 2, 2006 Motion of Delta Air Lines for Confidential Treatment Delta moves to withhold from public disclosure the confidential version of its Answer to the Application of Virgin America Inc. Delta’s confidential Answer contains information for which Virgin America has requested confidential treatment and for which access has been limited by the Department’s confidential treatment Order 2005-12-13. Therefore, Delta asks for confidential treatment of the confidential version of its Answer submitted today to the Department. Delta’s Confidential Answer will only be provided to counsel for the applicants and other counsel and outside experts who have submitted confidentiality affidavits in this docket. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com
August 2, 2006 Answer in Opposition of US Airways Group - Bookmarked US Airways believes that VAM's application should be denied/dismissed because the supporting documents demonstrate that VAM does not satisfy the statutory requirements for DOT to grant the requested economic authority. Specifically, VAM neither 1) meets the statutory test for non-US equity; nor 2) provides unambiguous proof that VAM will be substantially controlled by US citizens. US Airways chooses to focus its comments on VAM's foreign equity levels which result in an ownership capital structure that is non-compliant with US law. While the issue of control by US citizens is no less important, US Airways believes the shortcomings of VAM's application have been well-documents by other carrier and labor unions, and US Airways fully supports those views. Moreover, given the fatal flaws in VAM's capital structure, the Department can dismiss/deny VAM's application on the basis of defective capital structure alone. Finally, US Airways believes that the Department should take into account the important policy considerations associated with this proceeding. VAM was founded by British citizens and is backed by British investors. Given the lack of US carrier access to the leading UK airport - London Heathrow - DOT should not enable UK citizens, including the owner of the Virgin Atlantic - a Heathrow incumbent - to enjoy enhanced access to the United States aviation marketplace, while all but two US carriers have no operating access to LHR. Counsel: US Airways, Howard Kass, 202-328-5153, howard_kass@usairways.com
August 2, 2006 Motion of US Airways for Confidential Treatment US Airways respectfully moves to withhold from public disclosure the confidential version of its Answer in Opposition submitted to the Department today. In accordance with Rule 12, US Airways is submitting copies of its confidential Answer to the Department separately in a sealed envelope bearing the caption for this case and marked "Confidential Treatment Requested Under § 302.12." US Airways' confidential Answer contains information from documents for which access has been limited by the Department's confidential treatment rules and Order 2005-12-13. US Airways' public version of its Answer contains the bracketed word "REDACTED" to show where confidential information has been removed. US Airways' confidential Answer is being served only on counsel for the applicants and other counsel who have submitted valid confidentiality affidavits in this docket. US Airways is submitting in this docket a version of its Answer with the confidential portions redacted. This redacted version of its Answer is being served on counsel for the applicants and all other persons on the attached service list. Counsel: US Airways, Howard Kass, 202-328-5153, howard_kass@usairways.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger August 3, 2006 Notice of Substitution of Counsel PLEASE TAKE NOTICE that Kenneth P. Quinn, Jennifer E. Trock, and David M. Endersbee are hereby substituted for John Mietus and William Evans as counsel of record for Virgin America in this proceeding. Accordingly, please substitute the above‑named counsel for Virgin America on the service list to receive all orders, notices, pleadings, correspondence, and other documents in this proceeding. Counsel: Pillsbury Winthrop, Kenneth Quinn, 202-663-8000, kquinn@pillsburylaw.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled August 8, 2006 Motion of Virgin America to Modify Procedural Dates Assocaited with the Motion of American Airlines Virgin respectfully requests that the Department extend the due date for answers to American's motion to coincide with the due date for replies to the answers filed in accordance with Order 2006-7-14, that the answer period to this motion be shortened, and that the Department promptly grant the relief requested herein. Virgin America's counsel has contacted American's counsel, and has been informed that American does not object to this motion. American's motion raises some of the same issues as will be addressed in Virgin America's consolidated reply. One consolidated reply to all answers and to American's motion is more efficient than both an answer and a reply addressing the same issues, and will provide a more substantial and complete record upon which the Department may rely when it considers American's motion. Counsel: Pillsbury Winthrop, Kenneth Quinn, 202-663-8000, kquinn@pillsburylaw.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger Served August 10, 2006 Notice Extending Answer Period On August 2, 2006, American Airlines. Inc. filed an answer in response to the application filed by Virgin America Inc., urging the Department to deny the application, together with two Motions moving that the Department dismiss or, in the alternative, hold in abeyance such application. Part 302 of the Department's regulations, provides, among other things, that replies to answers to applications shall be filed within fourteen calendar (lays after the filing of the answer, and that answers to motions shall be filed within seven calendar days after the service date of such motions. On August 8, 2006, Virgin America filed a motion requesting that the Department extend the due date for answers to American's motion to coincide with the due date for replies to the answers filed to its application, i.e., by August 16, 2006, and shorten the answer period to its motion to August 10, 2006. In support of its request, Virgin America states that the issues raised by American's motion will he addressed in the company's consolidated reply to all answers filed to its application, and believes that consolidating its reply, to include the issues noted by American, will provide the Department with a more substantial and complete record. Virgin America also noted that American did not object to its motion. We have reviewed Virgin America's request and find it appropriate in this matter to extend the answer period to respond to American's motions to August 16, 2006, and shorten the answer period for Virgin America's motion to August 11, 2006, in order to promote administrative efficiency. By: Todd Homan OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger August 15, 2006 Supplement No. 4 to Application Delays and associated costs that have resulted from of our opponents dilatory legal tactics have made it necessary for Virgin America to obtain $52,956,387.56 in additional, temporary financing. A Promissory Note signed by Virgin America on August 9, 2006, and related documents affirmed by the Board on August 9, 20061 are contained in new Confidential Documents filed under seal with a Motion for Confidential Treatment. Counsel: Pillsbury Winthrop, Kenneth Quinn, 202-663-8000 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger August 15, 2006 Motion for Confidential Treatment Virgin America Inc. respectfully moves the Department to withhold from public disclosure certain proprietary, commercially-sensitive, and confidential business and personal information. This information is being submitted in the form of Confidential Exhibits and Confidential Documents supporting Virgin America’s certificate application in the above-captioned docket. Virgin America is filing with this motion Supplement No. 4 to Application of Virgin America Inc., which includes three financial documents. These sensitive documents are relevant to the Department’s review of Virgin America’s Application, but their public disclosure would cause substantial harm to Virgin America’s competitive position by disclosing details of its business and financial activities. Counsel: Pillsbury Winthrop, Kenneth Quinn, 202-663-8000, kquinn@pillsburylaw.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
August 16, 2006 Consolidated Answer and Reply of Continental Airlines Continental supports American's motion to dismiss Virgin America's application and opposes both American's motion to hold Virgin America's application in abeyance pending completion of the foreign control rulemaking in Docket OST-2003-15759 and Delta's fall-back suggestion that the Department consider instituting a formal evidentiary proceeding on Virgin America's application. As the answers filed by Continental, ALPA, American, Delta, and US Airways show, Virgin America fails to qualify as a U.S. citizen under both the Department's current citizenship test and the proposed foreign control rule. To avoid wasting valuable Department resources and rewarding Virgin America's defiance of the Department's requirements, the Department should dismiss or deny Virgin America's application now. Unless the Department dismisses or denies Virgin America's application now, interested parties must have at least 21 days to answer Virgin America's eleventh hour amendment to its application, submitting agreements dated a week ago that Virgin America waited until yesterday to file. Virgin America has no one but itself and the foreign interests controlling it to blame for the timing of this proceeding: this case is about enforcing the rules other new entrants abided by but Virgin America continues to flout, not about competition. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2500, rbkeiner@crowell.com
August 16, 2006 Consolidated Reply of Virgin America - Bookmarked In accordance with Order 2006-7-14, Virgin America Inc. hereby submits the following Consolidated Reply to the Answers filed by Continental, American, Delta, US Airways, and the ALPA, and to American’s motion to dismiss VX’s application or, in the alternative, to hold it in abeyance pending a final rule in the Department’s “actual control” rulemaking. For the reasons stated herein, and in VX’s initial application and in its supplemental filings, the Department should issue an Order to Show Cause finding that VX is a citizen of the United States and is fit, willing, and able to provide interstate scheduled air transportation, and should be granted a certificate of public convenience and necessity. Not surprisingly, VX’s Application has run into fierce opposition from a handful of legacy carriers and a pilot’s union. These Opposing Parties seek to preserve the status quo, prevent viable new competition, or—in the case of Continental—simply attempt to abuse agency process with an 83-page anti-competitive diatribe that rails against basic minority investor protections, while seeking more delay, more documents, and unnecessary process. The Department should recognize the filings of the Opposing Parties for what they are: (1) thinly disguised efforts to prevent consumers from enjoying new competition and service; (2) blatant attempts to use this proceeding to pursue irrelevant aspirations to gain greater access to London’s Heathrow Airport; or (3) part of a lobbying campaign, apparently now successful, to prevent the Department from finalizing its proposed rulemaking on airline citizenship. As Virgin America has stated repeatedly, its Application is not predicated on any Departmental effort to formally relax via rulemaking its existing airline ownership rules. Counsel: Pillsbury Withrop, Kenneth Quinn, 202-663-8000, kquinn@pillsburylaw.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
August 23, 2006 Re: Completion of Exhibit 30, Consent, Waiver and Release Agreement The attached document contains the two additional signatures referenced in footnote one of Virgin America Inc.'s Supplement No. 4 to Application of Virgin America, Inc. filed August 15, 2006. As the submission of this page now completes Exhibit 30, Consent, Wavier and Release Agreement, dated 08/09/2006, we respectfully request that you extend the confidential treatment requested in VX's Motion for Confidential Treatment Under Rule 12 dated August 15, 2006 to this page. For your convenience, we have also attached an updated index of pages to VX's Motion for Confidential Treatment dated August 15, 2006. Counsel: Pillsbury Winthrop, Jennifer Trock, 202-663-9179
Motion of Virgin America for Leave to File and Reply to Answer of Continental Airlines Continental's answer to American's motion is nothing more than a thinly disguised attempt to repeat ‑ now for the 9th time in its substantive pleadings ‑ requests for additional information. By finding that VX's application "contains sufficient information upon which to base a decision," the Department denied Continental's multiple requests on July 12, 2006. In the more than seven days since VX filed its Fourth Supplement, no other party has either filed a motion for leave to respond to the Fourth Supplement or requested more time to do so. For the reasons stated in VX's Consolidated Reply, VX urges the Department to promptly: (1) deny American's motion to dismiss or hold this proceeding in abeyance; (2) deny Delta's request for an evidentiary hearing; and (3) refuse to entertain any further replies to VX' s Fourth Supplement or Consolidated Reply. Counsel: Pillsbury Winthrop, Kenneth Quinn, 202-663-8000 OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
August 25, 2006 Public Motion of American Airlines for Leave to File and Response to Reply of Virgin America If the alleged U.S. investors actually owned and controlled Virgin America, one would expect them - and not the U.K. Virgin Group - to provide at least some of the additional interim financial for Virgin America during the application process. Their unwillingness to do so - or to pay in their full equity contribution - strongly suggests that the alleged U.S. investors understand what the record makes clear: Virgin America fails to meet the standards for U.S. citizenship under Federal law, and will not receive the Department's approval. The $52.9 million infusion of additional cash from the U.K. Virgin Group shows once again that Virgin America remains almost totally dependent on foreign funding, and proves that the enterprise is not a U.S. citizen. The U.K. Virgin Group is the sole source of virtually all of Virgin America's capital. The alleged U.S. investors have again declined to contribute toward the applicant's cash needs. The additional $52.9 million is being furnished not by lending institutions, but by those in true control - U.K. citizens. Virgin America is a de facto subsidiary of the U.K. Virgin Group, proving the truth of Sir Richard's statement in 2004 that "we'd never get involved in a company unless we could control it."
August 25, 2006 Motion of American Airlines for Confidential Treatment Our confidential motion and response makes reference to confidential materials submitted in this docket by Virgin America. This material is protected from public disclosure by Order 2005-12-13, December 23, 2005. Consistent with that order, we will provide our confidential motion and response only to Virgin America and to holders of valid confidentiality affidavits on file in this docket. Counsel: American, Carl Nelson, 202-496-5647
August 25 ,2006 Motion of Delta Air Lines for Leave to File and Response to Reply of Virgin America Virgin America's Consolidated Reply is a well written piece of legal legerdemain which ignores history, obfuscates the facts, and distorts the true control relationships between foreign entities and the applicant. The reality is that Virgin America's latest submissions do not rebut the substantial evidence demonstrating that Virgin America is both owned and actually controlled by foreign entities. No lengthy discussions about the nuances of corporate law and organizational structure can change the fact that Virgin America's funding, creation, development, market brand, business plan, aircraft fleet, investors, foreign directors and management team were all developed by, and funnel down from, the foreign Virgin Group and Sir Richard Branson. This is not a case where the foreign entities which created and developed the applicant sold-out and left the scene. Instead, they remain deeply entrenched at all levels of the company, from financing (both debt and equity), to marketing (through the Virgin brand), to the business plan, to the management team. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com
August 25, 2006 Motion of Delta Air Lines for Confidential Treatment Delta’s confidential Response contains information for which Virgin America has requested confidential treatment and for which access has been limited by the Department’s confidential treatment Order 2005-12-13. Therefore, Delta asks for confidential treatment of the confidential version of its Response submitted today to the Department. Delta’s Confidential Response will only be provided to counsel for the applicants and other counsel and outside experts who have submitted confidentiality affidavits in this docket. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger August 28, 2006 Motion for Leave to File and Response of US Airways to Reply of Virgin America On August 2, 2006, US Airways Group filed its Answer in Opposition in this docket. Those comments focused not only on the nonconformance of Virgin America's capital structure with U.S. law, but also on the fact that this case involves a predominance of investors from a nation, the U.K., which severely restricts U.S. airlines' market access by means of an highly protectionist air service bilateral. VAM's dismissal of the latter fact as "irrelevant" is without merit, and requires this brief response. VAM offers no convincing support for its claim that the UK's highly-restrictive approach to US carrier market access - especially at the most critical airport, London Heathrow - should be irrelevant to the Department's review of this application. The cases on which VAM relies for this proposition - Pacific Southwest (Order 1980-3-26) and Legend Airlines (Order 1998-12-29) - are simply not applicable to a certificate/fitness evaluation. US Airways urges the Department to reject VAM's efforts to discount the state of US-UK bilateral relations as somehow not germane to the evaluation of VAM's certificate. Counsel: US Airways, Howard Kass, 202-326-5153, howard_kass@usairways.com OST-2005-23307 - Certificate of Public Convenience and Necessity - Interstate Scheduled Passenger
August 30, 2006 |