OST-97-2058
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OST-97-2058
American Airlines, Inc. and British Airways PLC (Antitrust Immunity / Exemptions, Certificate Authority, Foreign Air Carrier Permit, and Statements of Authorization)
Order 97-5-13 | OST-97-2058 | OST-97-2054 / 2055 / 2056 / 2057 | Issued and Served May 16, 1997
We direct American Airlines, Inc. and British Airways PLC to provide the additional information and evidence described in the attachment to this order.
Attachment – Additional Request for Information and Evidence
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc (Joint Application, Antitrust Immunity)
OST-97-2058 | May 20, 1997 (Dated May 19, 1997)
Letter from
John Coleman, Office of Aviation Analysis, to Counsel for American
We direct American Airlines to submit the documents identified in the carrier's index as items II.6 and 15, and III.31, 32, 33 and 34 to Regis P. Milan of my staff (202.366.2349, Room 64011) for review. We note that items III.33 and 34 correspond to your joint partner's Vaughn index items 23 and 4, respectively.
Letter from
John Coleman, Office of Aviation Analysis to Counsel for British Airways
We direct British Airways to submit the documents identified in the carrier's index as items 1, 4, 23, 25, 64 and 65 to Regis P. Milan of my staff(202.366.2349, Room 6401 I) for review. We note that items 4 and 23 correspond to your joint partner's Vaughn index items III.34 and 33, respectively.
By: John Coleman, Director Office of Aviaiton Analysis
American Airlines, Inc. and British Airways PLC (Antitrust Immunity)
OST-97-2058 | May 22, 1997
Confidentiality
Affidavit for Northwest Airlines
Counsel: Northwest, Megan Rae Poldy, 202-842-3193
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 23, 1997
Motion of Trans
World Airlines for Modification and Clarification of Order 97-5-13
By Order 97-5-13, the Department has required American Airlines and British Airways to explain and update several of the documents that they had previously submitted to the Department on a confidential basis. TWA hereby requests that the Order be clarified or, if necessary, modified in three respects.
Counsel: TWA and Richard Fahy, 202-457-4764
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | June 2, 1997
Letter to Counsel for American and British Airways
On May 22, 1997, the Department's Documentary Services Division, SVC-121.30, verified that the Joint Applicants had failed to provide an index for their confidentially filed materials. Therefore, in order to facilitate review of these materials by any interested party, we find it appropriate to direct the Joint Applicants to submit, within three business days, a subject-index to documents that identifies each of the following elements for all submitted materials filed under Rule 39: (1) based on the Department's November 26, 1996, advisory memorandum to the Joint Applicants, the evidence request item (by number and description) that the materials are responsive to; (2) the associated box number; and (3) the associated Bates number or range. While we have specified three descriptive elements to be employed in developing an index, our interest in this matter is to facilitate prompt and lull review of these materials by interested parties. For this reason, if the Joint Applicants can craft a more "user-friendly" index, we fully encourage and endorse the applicants' efforts. The above three categories, however, must be included.
By: John Coleman, Director Office of Aviation Analysis
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | June 4, 1997
Given the manifestly disparate treatment that the Department has accorded to American and British Airways, TWA's demand for still more material, and its request that the Department make an a priori determination that much of this new evidence, including detailed traffic analyses, cannot be accorded confidential treatment, is particularly troubling. The Department should deny TWA's motion. Specifically, the Department should not rule on the confidentiality of additional data in advance of its submission. The Department should not require the distribution of confidential information on floppy disks. And the Department should not add more citypairs to the immensely burdensome item 19 (simulated CRS displays).
Counsel: American, Carl Nelson, 202-496-5647 / British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | June 9, 1997
Motion for
Leave to File and Reply of Trans World Airlines
TWA hereby moves for the to file this reply as an otherwise unauthorized document in this proceeding. American and British Airways' Answer, dated June 4, 1997, has raised one valid argument in response to TWA's Motion for Modification and Clarification of Order 97-5-l 3. However, the problem can be easily resolved while still requiring the information requested by TWA. No party will be damaged by this filing because TWA is proposing a means to resolve the applicants' problems with production of the CRS displays.
Counsel: TWA and Richard Fahy, 202-457-4764
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | July 3, 1997
The index is provided in two formats. Format 1 is sorted in Bates range order, and shows for each Bates range the box number, folder number, and RFP (request for production) number in the Department's memorandum of November 26, 1996 (copy attached). Format 2 is sorted in RFP number order, and shows for each RFP number the Bates range, box number, and folder number. The description of each RFP number is provided in the attached memorandum.
Attachment A | Index of Confidential Materials
In response to your letter of June 2, 1997, attached is an index for the documents confidentially filed by British Airways Plc in Docket OST-97-2058. As directed, the index identifies the documents responsive to each of the Department's nine separate evidence requests by Bates range and box number.
Counsel: American, Carl Nelson / British Airways and Sullivan Cromwell
Editor’s Note: Will be available as soon as the Docket Section scans the correspondence
American Airlines, Inc. and British Airways Plc
OST-97-2058 | June 9, 1997 | Entered into Docket Imaging System July 9, 1997
Letter from Magic
of Travel in Opposition
By: William Cunningham
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | July 14, 1997
Re: Joint
Application – Confidentiality Affidavit of Robert DeHaan, Counsel to US Airways
Counsel: Zuckert Scoutt, Richard Mathias, 202-298-8660
OST-97-2058 | OST-97-2054, 2055, 2056, 2057 | OST-96-1700 | July 18, 1997
Motion of Continental
Airlines to Require Supplemental Information Submission
American has announced that it is investing in and entering into an alliance with Aerolineas Argentinas and Austral, and that it and its proposed partner, British Airways, have entered into alliances with Iberia. Additionally, SEPI has announced that there may be further investment in Iberia by both American and British Airways. These alarming announcements indicate that there will be significant expansion in the global mega-alliance planned by American and British Airways. Combining American, one of the largest U.S. airlines, with British Airways, Aerolineas Argentinas, Iberia, Austral, and the TACA Group will perpetuate American's stranglehold on the U.S.-Latin America market, ally all the carriers providing any significant services between Miami and Central America, permit the alliance to dominate the U.S.-Spain and U.S.-Argentina markets, and preempt future alliances between other carriers that might seek to compete in these markets. Worse still, if American and British Airways were themselves allowed to combine and given immunity from the antitrust laws, incorporating these other carriers into their quest for global domination would allow them to crush competitors throughout the U.S., Europe and Latin America. The Department must not endorse the American/British Airways effort to squelch competition on a piecemeal basis without considering the interrelationships among these alliances, particularly when they intersect at American's Miami mega-hub.
Counsel: Continental and Crowell Moring, Bruce Keiner, 202-624-2500
OST-97-2058 | OST-96-1700 | July 24, 1997
Answer of Trans
World Airlines
Continental has adequately outlined the monopoly power that will be created by both American and British Airways adding Iberia to their alliances. American and Iberia are the sole carriers between Miami and Madrid. American and Aerolineas Argentinas are the two major carriers between the U.S. and Argentina. American, which already has an alliance with the national carriers of Central America, would also combine with the only other carrier offering a full pattern of service between Miami and that area. Addition of an Iberia Alliance to AA/BA will give American monopoly control of its two major Miami - Europe routes -London and Madrid. Clearly, this important new development requires that the Department collect additional information before proceeding with either the AA/BA or AA/TACA alliances.
Counsel: TWA and Richard Fahy, 202-457-4764
American Airlines, Inc. and British Airways Plc (Antitrust Immunity, Exemptions, Certificate Authority, Statements of Authorization)
OST-97-2058 | OST-97-2054, 2055, 2056, 2057 | July 25, 1997
Response of
American Airlines to Order 97-5-13
American Airlines, Inc. hereby responds to Order 975-13, May 16, 1997, which requires the submission of supplemental and updated exhibits and documents in connection with the captioned applications.
Re: American Airlines and British Airways
Editor's Note: Above Items Available in PDF on July 28th
Counsel: American, Carl Nelson, 202-496-5647
Response of
British Airways to Order 97-5-13
British Airways Plc ("British Airways") hereby responds to the Department of Transportation (the "DOT" or "Department") Order No. 97-5-13, dated May 16, 1997, requesting additional information and evidence from both British Airways and American Airlines, Inc.
Motion of
British Airways for Confidential Treatment
Counsel: British Airways and Sullivan Cromwell, Richard Sauer, 202-956-7500
Continental argues that the mere announcement of distinct transactions which may or may not occur and which are independently subject to Department approval somehow justifies its request to require additional information from the parties in the TACA/American proceeding. Continental's motion is predicated on American's announcement that it is investing in and entering into an alliance with Aerolineas Argentinas and Austral, that American and its proposed codeshare partner, British Airways, have entered into alliances with Iberia, and that there may possibly be further investment in Iberia by American and British Airways. It is the TACA Group's understanding that these transactions are mere proposals which have not yet been effected and would require Department approval in any event. Should these transactions occur, and should formal authorization and approval be sought, the Department can and will have ample opportunity to examine the actual transactions presented to it in those proceedings. It is inappropriate, to put it mildly, for the Department to further delay the TACA/American proceeding to seek additional information on the basis of mere announcements of proposed -and entirely distinct -- occurrences where the record in this proceeding is already overburdened.
The TACA Group carriers flatly state that none of them, individually or collectively, is a party to anv of the proposed transactions of which Continental complains involving American and Aerolineas Argentinas, Austral, Iberia, and/or British Airways. Moreover, the existing codeshare agreement between the TACA Group carriers and American, dated June 21, 1996, does not impose any obligation on the TACA Group carriers to enter into any type of codeshare arrangement or other alliance with any other carrier, including Aerolineas Argentinas, Austral, Iberia or British Airways. The TACA Group, therefore, has no documents or information responsive to Continental's proposed requests.
Counsel: Squire Sanders and Mullenholz Brimsek
OST-97-2058 | OST-97-2054, 2055, 2056, 2057 | OST-96-1700 | July 29, 1997
Answer of American
Airlines to Motion of Continental Airlines
American has no plans to include Iberia in American's code-sharing agreement with the TACA Group. Nor does American have any plans to include Aerolineas (or Austral) in the American/British Airways alliance, or in American's code-sharing agreement with the TACA Group. These are entirely separate matters, and should be considered by the Department in separate proceedings as they are submitted for approval. If Continental's tactic were to prevail, the Department would rarely conclude any proceedings involving cooperative arrangements between carriers, particularly where, as here, the initial applications have been subjected to protracted delays in processing.
Counsel: American, Carl Nelson, 202-496-5647
As Delta has already pointed out in the American-TACA proceeding, American's principle reason for entering into an alliance with the TACA Group is to further entrench its already dominant position in the U.S.-Central American marketplace. American and the TACA carriers are each other's principle competitors to and from the United States. The evidence in the American-TACA docket indicates that American's primary impetus in creating the alliance is to eliminate competition with its principal Central American competitors. American's plan to join forces with Aerolineas Argentinas, its largest competitor between the United States and Argentina, represents American's latest effort to strengthen its dominant position and solidify its stranglehold over U.S.Latin American markets.
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
Answer of
the City of Houston and the Greater Houston Partnership
Houston continues to object to American's emergence as the "chosen instrument" of U.S. aviation policy in Latin America. American is creating precisely the type of competitive stranglehold on this market that Pan American held until two decades of government pressure fmally introduced competition. Unless the Department acts quickly and decisively, the U.S. - Latin American market will retrogress to an anti-competitive, anti-consumer monopoly, just as it was prior to the mid-1960's. It now has come full circle. American is attempting to reinvent the chosen instrument policy rejected more than fifty years ago through a network of alliances, joint ventures, and equity investments which would have made Juan Trippe, Pan American's legendary founder, proud. Continental's motion sets forth the naked numbers with respect to American's dominance, but it goes beyond numbers. Houston's future as a major gateway to Latin America depends in large part on the Department's commitment to maintaining competition in these markets. A "chosen instrument" also means "chosen," and therefore highly limited, gateways. Houston's concern is obvious, but it should be of concern to every other major hub airport in the U.S. with the exception of Miami and Dallas/Ft. Worth.
Counsel: Leftwich Douglas, Frederick Douglas, 202-434-9100
American's announced plan to acquire an ownership stake in Aerolineas Argentinas, Iberia, and Austral and to enter into code-sharing alliances with these carriers is only the latest in a series of unprecedented alliance relationships American has announced over the past year with a number of its principal foreign-flag competitors in key international markets where American is already the dominant U.S. airline. In addition to its proposed alliance with the TACA Combine, American is seeking immunity from the antitrust laws to implement an alliance with British Airways, and Departmental approval for an alliance with Avianca, despite the fact that American is already one of only two U.S. carriers authorized to serve London's Heathrow Airport, and holds more authority in the entry-restricted U.S.-Colombia market than its only U.S.-flag competitor. American has already obtained approval to implement alliances with TAM for service to Brazil, where American holds more frequencies by a considerable margin than any of its U.S.-flag competitors, and with Aero California for service to Mexico.
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | Served July 31, 1997
Notice
Granting Access to Documents
We will rule on the merits of the Rule 39 Motion by subsequent order. In the meantime, to afford interested parties prompt access to this information under conditions agreed to by the Joint Applicants and imposed by the Department under similar recent circumstances, we will grant immediate interim access to these materials to counsel and outside experts for interested parties who file or who have previously filed appropriate affidavits with the Department in advance. Moreover, we find it appropriate to grant interim access to any subsequent materials filed in this docket under a Rule 39 Motion to counsel and outside experts for interested parties who file or who have previously filed appropriate affidavits with the Department in advance, unless the party filing the motion objects.
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | July 31, 1997
Confidentiality
Affidavits for GKMG Consulting Services
Counsel: Galland Kharasch
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | OST-97-2054, 2055, 2056, 2057 | August 4, 1997
Further
Response of American Airlines to Order 97-5-13
American Airlines, Inc., under 14 CFR 302.39, hereby moves that the Department withhold Exhibits 15, 16.5, 16.6, 16.7, 17.5, 17.6, and 17.7 from public disclosure. These exhibits are being submitted in further response to Order 97-513, May 16, 1997.
Counsel: American, Carl Nelson, 202-857-4246
Answer of Trans
World Airlines
The applicants' request for in camera treatment is an insult to every attorney and consultant for other parties to this proceeding. They have all filed affidavits, as required by the Department, affirming that they will keep the information confidential, share it only with others who have filed similar affidavits, and use it only for purposes of participating in this proceeding. Attorneys and consultants for other parties have had access on a confidential basis to the documents that have already been submitted by American and British Airways. TWA has seen no information in the numerous trade press articles on the alliance that would indicate that any person who has filed an affidavit has violated their representation to the Department. There is no basis for believing that any sensitive information in the in camera documents will be given either to the press or to airline operating personnel.
Counsel: TWA and Richard Fahy, 202-457-4764
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | August 5, 1997
Motion for Leave to File and Consolidated Reply of British
Airways to Answers of TWA, United, City of Houston and Delta (OST-97-2058 and
OST-96-1700, American and TACA)
As for the requested evidentiary hearing, British Airways suggests that the only purpose of such a hearing can be to delay this proceeding unnecessarily. Certainly there is no additional relevant information that would be produced by such a hearing. The extensive evidence requested and produced already provides a more than adequate record for the Department's consideration of this matter.
Counsel: British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
Consolidated Answer of Continental Airlines
The Joint Applicants' brazen attempt to deny interested parties access to clearly relevant material shows precisely why the Department must set this case for a full, oral evidentiary hearing. Simply ordering the Joint Applicants to comply with the Department's previous orders for production of all relevant documents for review by interested parties will not guarantee a full and fair airing of all public interest and competition issues in this unprecedented case. As TWA has recently explained, the documentary record can be manipulated by the Joint Applicants, and only oral testimony, subject to cross examination, can fully answer the key issues raised by the Joint Applications. These issues include the motive for and strategic goals of the Joint Applicants in this and related alliances and investments, additional alliances and investments contemplated by the Joint Applicants and the availability of less anticompetitive alternatives.
Counsel: Continental and Crowell Moring, Bruce Keiner, 202-624-2500
Consolidated Answer of United Air Lines
The documents containing relevant information which American and BA seek to exclude fall into four broad categories: other potential alliance partners, impact of slot divestiture, impact on competition and materials prepared for U.K. regulators. In addition, American and BA now attempt to exclude recent versions of documents they have previously filed under Rule 39. Each of these categories of excluded documents and data is considered separately below.
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
Consolidated Answer of US Airways, Inc.
As demonstrated above, the overwhelming majority of the documents that American and British Airways seek to obscure from necessary scrutiny in this proceeding are unquestionably relevant. The Joint Applicants have demonstrated no reason why the Department should exempt clearly relevant documents from review, subject to the protections of Rule 39. These procedures have repeatedly proved effective in maintaining the strictures of confidentiality while at the same time affording interested parties the opportunity to participate meaningfully in a proceeding of immense importance to them.
Counsel: US Airways and Zuckert Scoutt, Richard Mathias, 202-298-8660
American Airlines, Inc. and British Airways PLC (Antitrust Immunity)
OST-97-2058 | August 6, 1997
Motion for Leave to File Reply of Delta Air Lines
Delta agrees with the answering carriers and objects to the requests of American and British Airways to withhold and/or redact the information and evidence responsive to the Department's request contained in Order 97-5-13. The current requests should be denied for the same reasons Delta previously stated in opposition to an earlier request by the Joint Applicants to withhold and redact documents (see Comments of Delta Air Lines dated April 16, 1997). As was the case previously, the Joint Applicants are seeking to withhold or redact information or documents that have direct bearing on and relevance to the Department's public interest and competitive analysis in this case. The Department confirmed the relevance and materiality of these documents in Order 95-5-13 as well as in the Department's November 26 Memorandum to counsel to the Joint Applicants directing the submission of information and evidence. The Joint Applicants' unilateral decision to ignore the Department's findings on relevancy and materiality should not be countenanced. The Joint Applicants have failed to demonstrate that the withheld/redacted documents are not relevant and that the Department's confidentiality procedures are insufficient to protect the applicants' competitive and commercial interests.
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
American Airlines, Inc. and British Airways PLC (Antitrust Immunity)
OST-97-2058 | August 11, 1997
Supplemental Response of British Airways to
Order 97-5-13
British Airways Plc ("British Airways") hereby supplements its response of July 25, 1997 to the Department of Transportation (the 'DOT" or "Department") Order No. 97-5-13, dated May 16, 1997, requesting additional information and evidence from both British Airways and American Airlines, Inc.
Motion of British Airways for Confidential
Treatment
Counsel: British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
American Airlines, Inc. and British Airways PLC (for approval of anti-trust immunity for alliance agreement)
Order 97-9-4 | OST-97-2058 | Issued and Served September 5, 1997
Scheduling Notice, Determination on Various Motions, and Other
Matters Under 14 C.F.R. 302.39
On January 10, 1997, American Airlines, Inc. ("American") and British Airways PLC ("BA") (hereinafter "the Joint Applicants") filed in Docket OST-97-2058 an application for approval of and antitrust immunity for an "alliance agreement" (referred to also as "the Alliance") under 49 U.S.C. §§ 41308 and 41309. The Joint Applicants also filed a motion under Rule 39 of the Department of Transportation's (hereinafter "the Department" or "DOT") regulations, 14 C.F.R. ~ 302.39, for confidential treatment of documents submitted in support of that application. Concurrently, American and BA filed applications in Dockets OST-972054, 2055, 2056, and 2057 for exemption and certificate/permit authority, to operate between the United States and the United Kingdom and beyond to numerous third countries, as well as an undocketed joint application for statements of authorization to engage in code-share activities.
By: Charles Hunnicutt
American Airlines, Inc. and British Airways PLC (antitrust immunity for alliance agreement)
OST-97-2058 | September 9, 1997
Joint Motion for an Extension of Time Concerning Documents
Required by Order 97-9-4
American Airlines, Inc. and British Airways PLC hereby jointly move that the Department grant an extension of time until September 19, 1997 for responding to Order 97-9-4, September 5, 1997, with respect to certain highly sensitive documents that American and British Airways had identified for in camera review. By Order 97-9-4, the Department required the joint applicants to submit such documents in the docket within three business days, or by September 10, 1997.
Counsel: Carl Nelson for American, 202 496 5647; Mark McCall for British Airways, 202 956 7500
American Airlines, Inc. et. al. and The Taca Group Reciprocal Codesharing Services Proceeding / Joint Applications of American Airlines, Inc. and British Airways PLC / Answer of Delta Air Lines, Inc. / Motion of Delta for Confidential Treatment
OST-96-1700 | OST-97-2058 | OST-97-2054 | OST-97-2055 | OST-97-2056 | OST-97-2057 | September 11, 1997
Answer of Delta Air Lines, Inc. to
Supplemental Information Response
Delta hereby files this Answer in response to the Supplemental Information submitted by American and TACA on August 27, 1997. The perfunctory and dismissive responses of American and the TACA Group to the Department's information request do nothing to allay the competitive concerns raised by Delta, Continental and TWA. Indeed, the paucity of information supplied by the American/TACA responses serves only to underscore the need for oral evidentiary proceedings by which the Department can more adequately explore American's true motivations in entering into these additional agreements with Iberia and Aerolineas Argentinas and the true relationships between these arrangements and the proposed American-TACA arrangement.
Motion of Delta Air Lines, Inc. For
Confidential Treatment Pursuant to Rule 39
Delta requests confidential treatment only to the extent required by Order 97-5-4 and the Department's Notice Requiring Supplemental Information dated August 22, 1997. While Delta has no independent objection to the public disclosure of these materials, Delta is filing under seal, accompanied by this Motion, a confidential version of its Answer, which contains references to the confidential information submitted by American.
Counsel: Shaw Pittman, Robert Cohn, 202 663 8060
American Airlines, Inc. and British Airways Plc (Approval and Antitrust Immunity)
OST-97-2058 | Served September 12, 1997
Notice Granting Motion for Extension of Time
We have decided to grant the motion for an extension of time until September 19, 1997 for the applicants to comply with our document demand and for any party to file petitions for reconsideration of our order. Given the time constraints and because this action does not adversely affect any interested party, we are granting the motion without awaiting the time for answers to the Joint Motion. The procedural schedule for filing answers and replies to Order 97-9-4 will be suspended until the issue of the Joint Applicants' in camera documents is resolved. As the Joint Applicants acknowledge, there will be a delay in the procedural schedule for processing this case which is attributable to the applicants, since the date for the submission of answers and replies will not be triggered until the document issue is resolved.
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc. (Antitrust Immunity)
OST-97-2058 | September 18, 1997
Re: Confidentiality Affidavits for Legal Counsel of Delta
Air Lines
Counsel: Shaw Pittman, Alexander Van der Bellen
Re: Confidentiality Affidavits for Legal Counsel of Northwest
Airlines
Counsel: Verner Liipfert, Russell Pommer, 202-371-6000
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | September 19, 1997
British Airways attempted to file documents but, the Docket Room closed at 5:00 / Update 9/22
Petition of American Airlines for
Reconsideration of Order 97-9-4
With respect to potential sources of London/Heathrow slots and slot valuations, our competitors are fully capable of presenting their own analyses, and many have already done so in presentations to the Department; in subcommittee hearings in the Senate and House; at the Office of Fair Trading in London; and at the European Commission in Brussels.
Re: Correspondence from Counsel to Docket Branch
Counsel: American, Carl Nelson, 202-496-5647
In Order 97-9-4 (hereinafter "the Order"), the Department of Transportation (hereinafter "DOT" or "Department") concluded that "this is an exceptional case, posing a unique set of issues" and raising "an enormous degree of regulatory complexity."' Continental Airlines, Inc., Delta Air Lines, Inc., Laker Airways, Inc., Tower Air, Inc., Trans World Airlines, Inc., US Airways, Inc., and United Air Lines, Inc. (hereinafter the "Joint Petitioners") agree. This case is not only extraordinary in terms of its scope and the difficulty of the issues presented, but it almost certainly will become a watershed in terms of international aviation policy. It is fair to say that the decision in this proceeding has the potential to shape the course of air transportation to a degree greater than any that has previously been made by the DOT. The Decisionmaker's deliberations should, therefore, be based upon a comprehensive evidentiary record including testimony provided under oath, subject to cross examination. For these reasons, the Joint Petitioners request the Department to reconsider certain procedural determinations made in Order 97-9-4, and upon such reconsideration adopt alternative procedures better suited to produce the most accurate factual record.
Counsel: Crowell Moring, Bruce Keiner for Continental / Shaw Pittman, Robert Cohn for Delta / Hewes Gelband, Stephen Gelband for Tower / Richard Fahy for TWA / Zuckert Coutt, Richard Mathias for US Airways / Ginsburg Feldman, Joel Burton for United / Bode Beckman, Robert Beckman, for Laker
Re: Confidentiality Affidavit for Northwest Airlines
Counsel: Northwest, Megan Rae Poldy, 202-842-3193
Petition for Reconsideration of Order 97-9-4 of Virgin
Atlantic Airways
Virgin Atlantic Airways Limited ("Virgin") hereby petitions for reconsideration of that portion of Order 97-9-4 (the "Scheduling Notice" or "Notice") declining to order an oral evidentiary hearing on the Joint Application and deciding, instead, to convene a nonadjudicatory public hearing before the Assistant Secretary for Aviation and International Affairs ("Assistant Secretary"). The decision not to order an oral evidentiary hearing constitutes error in two respects: (1) it is premature because it has been made before interested parties have submitted comments on a complete Joint Application; and (2) a nonadjudicatory hearing is both inappropriate, given the factual issues that must be resolved before the Department may rule on the Joint Application, and contrary to the Department's rules.
Counsel: Virgin and Wilmer Cutler, Jeffrey Shane, 202-663-6000
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | September 22, 1997
Petition of British Airways for
Reconsideration of Order 97-9-4 (Filed 9/19/97 - Available 9/22/97)
Motion of British Airways for Confidential
Treatment (Filed 9/19/97 - Available 9/22/97)
British Airways continues to believe that the documents directed to be filed in the docket by Order 97-9-4 are not relevant to the Department's consideration of the public interest issues involved in this proceeding, and are of such sensitivity that their release to British Airways' competitors, even under the Rule 39 confidentiality affidavit procedure, is likely to cause competitive injury to British Airways. Nevertheless, in the interest of enabling the Department to move forward in its consideration of British Airways' and American's application for approval and antitrust immunity for their alliance, British Airways is today filing, along with a Rule 39 request for confidential treatment, 101 of the 128 documents identified by the Department in Order 97-9-4. A listing of those documents is attached as Exhibit 1.
Counsel: British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
Re: Confidentiality Affidavits for The City of Houston
and The Greater Houston Partnership
Counsel: Zuckert Scoutt, Raymond Rasenberger, 202-298-8660
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | September 26, 1997
Re: Letter from Stuart Eizenstat to Rodney
Slater
Nevertheless, I understand that, though totally unjustified, these erroneous press reports have led to some expressions of concern for the decisionmaking process at the Department of Transportation in its consideration of the alliance application in Docket OST-97-2058. To avoid any appearance of prejudgment in this proceeding and in an abundance of caution, I have decided to take the following actions. First, I want to state for the record that I have had no discussions or contacts of any sort with any DOT officials regarding the merits of the application in Docket OST-97-2058, on anything connected with the proposed American Airlines/ British Airways alliance, nor did any DOT officials advise me regarding my planned meeting with Mr. Van Miert.
Second, I hereby recuse myself from advising the Department of State, DOT, or any other members of the Executive Branch on the merits of the application until such time as DOT has rendered a final decision. This recusal does not, however, preclude my involvement on the broader issue of reaching an Open Skies agreement with the United Kingdom, nor does it apply to the actions of other officers at the Department of State in carrying out their official duties.
By: Stuart Eizenstat
Re: Confidentiality Affidavits by Counsel for US
Airways
Counsel: Zuckert Scoutt
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | September 29, 1997
Joint Answer of American Airlines and British Airways
In providing for anything other than show-cause procedures, DOT has treated the American/British Airways alliance immunity applicants differently, and significantly more harshly, than it has treated any other alliance immunity applicants. The American/British Airways immunity application has already been subjected to unprecedented scrutiny and delay. Under these circumstances, the delay that would result from undertaking a formal oral evidentiary hearing before an ALJ could only be characterized as punitive and discriminatory.
Counsel: British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500 / American Airlines, Carl Nelson, 202-496-5647
Consolidated Answer of Continental Airlines
The Joint Applicants have presented no arguments warranting reversal of the Department's requirement that they submit documents concerning potential future alliances with other airlines, London Heathrow/Gatwick slot valuations and operations and analyses of potential alternatives to a fully immunized alliance for review by counsel and outside experts of interested parties. The Joint Applicants instead persist in arguing that "extremely sensitive" information can be excluded from the record that even the Department can be denied access to it.
Counsel: Continental and Crowell Moring, Bruce Keiner, 202-624-2500
Consolidated Answer of Delta Air Lines
It has been almost a year since the Department issued a preliminary evidence request directing the joint applicants to supply documents and other information in connection with their planned antitrust-immunized alliance. Although American and British Airways criticize the Department and other parties for alleged delays in this proceeding, it is the Joint Applicants that have resorted to delay, obfuscation, and now, outright stonewalling, to prevent submission of relevant information that is vitally necessary to establish a full and complete record on the key public interest and competition issues raised by this application. The Department should not allow these stalling tactics to continue and should promptly reject American's and British Airways' Petitions for Reconsideration.
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
Answer of Trans World Airlines
American Airlines and British Airways are to be congratulated for perseverance. The Department has told them twice that documents they desire to withhold must be produced because they are relevant to its inquiry in this proceeding. Nevertheless, they have again petitioned to withhold highly relevant information on the grounds that they know better than the Department what documents are necessary for the Department and other parties to do their work. Their recalcitrance is particularly surprising in light of their prior production of documents in the same categories as those to which they now so strongly object. TWA hereby answers and requests that their petitions for reconsideration be denied.
Appendix: AA/BA Categories of Documents Withheld
Counsel: TWA and Richard Fahy, 202-457-4764, rfahy@ibm.net
When American and British Airways entered into their alliance agreement, and when they submitted that agreement to the Department in the hope of receiving approval and antitrust immunity, they knew that their joint application was unprecedented both in terms of market concentration and in its competitive implications, particularly at the critical Heathrow airport. Approval of that agreement would represent a watershed event in the regulatory history of international air transportation. The commercial responses that such a decision would precipitate would profoundly affect the marketplace. In this context, the Applicants' repetitive, self-serving complaints about the amount of evidence they have been required to produce ring hollow, particularly when the Applicants are so opposed to an evidentiary hearing with the ability to cross-examine witnesses under oath. The Department and the parties who would be directly affected by the alliance are entitled, by law, to access to relevant information. Supplying that information is a burden assumed by the Applicants. If they do not wish to meet that burden because there is relevant information that they do not want subjected to analysis, their recourse is to withdraw their application.
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
Answer of US Airways to Petitions for
Reconsideration filed by American and British Airways
The Joint Applicants' Petitions for Reconsideration must be denied because American and British Airways have failed to demonstrate that the documents at issue are not relevant. And relevance is the only issue. Once judged relevant to the proceeding, the documents' commercial sensitivity is beside the point. The Department has already determined that the documents are relevant. Even the Joint Applicants' cursory descriptions of the documents demonstrate their relevance. Indeed, "relevant" is an understatement. The documents are critical to an accurate analysis of the Joint Application because they bear directly on the central issues in this case.
Counsel: US Airways and Zuckert Scoutt
Answer of Virgin Atlantic Airways
Between them, the Joint Applicants seek reconsideration for documents falling within seven categories. As noted, the Department carefully reviewed document descriptions submitted by the Joint Applicants and, when appropriate, reviewed the documents themselves. We show briefly below that the Department has correctly required the Joint Applicants to file the documents at issue within each category.
Counsel: Virgin and Wilmer Cutler, Jeffrey Shane, 202-663-6000
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | October 1, 1997
Confidentiality Affidavit for Counsel of Continental
Airlines
Counsel: Crowell Moring, John Blanck
American Airlines, Inc. and British Airways Plc
OST-97-2058 | October 16, 1997
Comments of British Airports Authority
BAA submitted its views on the proposed alliance between British Airways (BA) and American Airlines (AA) to the Office of Fair Trading (OFT) on 10 January 1997. One of the sections of BAA's submission was entitled 'Airport Capacity and Access'. BAA met with the OFT on 17 April 1997 to discuss this issue further. This note provides further information on the preliminary analysis which BAA has conducted and seeks to set out BAA's views more fully on this issue.
By: Alastair McDermid, Head of Airport Strategy, 0171-834-9449
American Airlines, Inc. and Iberia Lineas Aereas de Espana, S.A. (Codesharing and Statements of Authorization)
Undocketed | OST-97-2965 | OST-97-2966 | OST-96-1700 / OST-97-2058 / 97-2054-2057 | October 17, 1997
Answer of Continental Airlines
Counsel: Continental and Crowell Moring, Bruce Keiner
Answer of Delta Air Lines - (Also Filed in
Dockets 7)
Motion of Delta Air Lines for Confidential
Treatment
Counsel: Delta and Shaw Pittman, Robert Cohn
Consolidated Answer of The Government of Puerto Rico
Counsel: Verner Liipfert, John Merrigan
Answer of Trans World Airlines
Attachment: Common US Codeshare Points, TWA/Air Europa Unique US Codeshare Points, American/Iberia Unique Codeshare Points
Counsel: TWA and Richard Fahy, 202-457-4764, rfahy@ibm.net
Consolidated Answer of United Air Lines
Exhibit UA-1: DGAC - Request for Operations by Regime of Code Share to Palma de Mallorca
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
OST-97-2965 | OST-97-2966 | Undocketed | OST-96-1700 | OST-97-2058 | OST-97-2054-2057
There is no question that Delta has violated the Department's affidavit procedures. Delta has used confidential information it obtained in the American/British Airways proceeding -- and promised to use "only for purposes of participating in [that] proceeding and for no other purpose" -- in the American/Iberia (and American/TACA Group) dockets. This is a serious, clearcut, and inexcusable violation of the Department's orders and of Delta's own affidavits, and fully justifies striking Delta's answer from all dockets in which it has been submitted.
Counsel: American, Carl Nelson, 202-496-5647
OST-97-2965 | OST-97-2966 | Undocketed | OST-96-1700 | OST-97-2058 | OST-97-2054-2057 | October 21, 1997
Answer of Delta Air Lines to Motion of
American Airlines
Placed in its proper context, American's motion is nothing more than an attempt to transform a procedural triviality into another false claim of abuse of the Department's confidentiality procedures. This claim has no more merit than American's previous assertions of abuse, which Delta repudiated in its September 25, 1997 consolidated answer in OST-97-2058 at pages 13-14. The information discussed in Delta's filing has a direct and substantive bearing on the AA/BA proceeding and on how the Department should evaluate American's proposed alliances. Furthermore, Delta fully protected the confidentiality of this information, and provided it only to the Department and AA/BA affidavit holders. In these circumstances, American's motion lacks substance and should be denied.
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
Order 97-11-5 | OST-97-2058 | Issued and Served November 4, 1997
Preliminary Order on Petitions for Reconsideration Requiring In
Camera Review
We direct American Airlines, Inc. to submit to the Department the documents identified in its July 25, 1997, index as item 111.78 (identified as AA0029588-619), and item IH. 84 (identified as AA0025839-43) for review
We direct British Airways PLC to submit to the Department the document identified in its April 7, 1997, submission as item 18 (identified as BAP135308 - 135352) for review.
(contact: Regis P. Milan, (202) 366-2349)
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
Order 97-11-5 | OST-97-2058 | Issued and Served November 4, 1997
Preliminary Order on Petitions for Reconsideration Requiring In
Camera Review
We direct American Airlines, Inc. to submit to the Department the documents identified in its July 25, 1997, index as item 111.78 (identified as AA0029588-619), and item IH. 84 (identified as AA0025839-43) for review
We direct British Airways PLC to submit to the Department the document identified in its April 7, 1997, submission as item 18 (identified as BAP135308 - 135352) for review.
(Contact: Regis P. Milan, (202) 366-2349)
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc
OST-97-2058 | November 17, 1997
Request for Additional Information from British Airways
By Order 97-11-5, issued November 4, 1997, we directed British Airways to submit to the Department the document identified in its April 7, 1997, submission as item 18 (identified as BAP135308 - 135352) for in camera review.
On November 5, 1997, the staff reviewed this document. Based on this review, we found that certain materials had been ornitted. For example, on BAP 13 53 09, four referenced attachments were not included in the document, and, on BAP 13 53 13, the chart/spreadsheet shown on this page had no associated figures.
We therefore direct British Airways to provide for in camera review of item 18 in its entirety.
By: John Coleman
American Airlines, Inc. and British Airways PLC - (Approval of and antitrust immunity for alliance agreement)
OST-97-2058 | November 24, 1997
PAUL T. DENIS being duly sworn, states under oath:
Counsel: Arnold Porter, Paul Denis
American Airlines, Inc. and British Airways Plc
OST-97-2058 | November 25, 1997
Re:
Response of British Airways to Letter from Aviation Analysis
Counsel: Sullivan Cromwell, Jeffrey Jacobs, 202-955-7500
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
Order 97-12-21 | OST-97-2058 | Issued and Served December 17, 1997
Order on Petition for
Reconsideration Concerning Evidentiary Issues
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc
OST-97-2058 | January 9, 1998
Re:
Confidentiality Affidavit for United Air Lines
Counsel: Ginsburg Feldman, Joel Burton, 202-637-9130
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | January 20, 1998
Re:
Confidentiality Affidavit for Allied Pilots Association
Enclosed please find an original and seven copies of the Confidentiality Affidavits to be filed in the above-mentioned docket. The law firm of James & Hoffman represent the Allied Pilots Association in this matter. Attorneys Edgar N. James, David P. Dean and Marta Wagner are affiliated with the law firm of James &: Hoffman. Robert W. Mann, Jr. is a principal of the consulting firm R.W. Mann & Company, Inc. and a consultant for the Allied Pilots Association. Mr. Mann's address is: FEW. Mann & Company, Inc., 85 Murray Avenue, Port Washington, NY 11050. His phone numbers are as follows: Office: (516) 944-7255 - Fax: (516) 944-7280.
Counsel: James & Hoffman, Marta Wagner, 202-496-0500
Order 98-1-18 | OST-97-2965 | OST-97-2966 | Undocketed | OST-96-1700 | OST-97-2058 | OST-97-2054, 2055, 2055, 2057
Based on the facts as stated in the pleadings, we find that Delta, through its agents, has violated the Department's confidentiality procedures in several significant respects, and that the carrier's answer to the American/Iberia applications should be stricken, both the "confidential" and the redacted versions, in all dockets in which it has been filed. While we have considered other sanctions as well, we have decided against taking such action in light of certain mitigating factors that should be taken into account.
By: Charles Hunnicutt
American Airlines, Inc. and British Airways, Plc
OST-97-2058 | Febraury 10, 1998
Petition of
BAA Plc for Leave to Intervene and Request to be Added to Service List
American and BA have applied for antitrust immunity for a proposed alliance agreement covering service between the United States and the United Kingdom and related code-sharing. If this joint application is granted, it will likely conditioned upon both an "open skies" bilateral agreement between the two countries, and upon transfer of certain departure and arrival slots at London's Heathrow Airport by American and/or BA to other air carriers. BAA owns, operates and manages Heathrow Airport, which will in all likelihood be affected by the outcome of these proceedings. Accordingly, BAA is an "interested person" in these proceedings, and intends to file an answer and otherwise participate fully in this proceeding once the joint application is declared complete.
Counsel: Schreeder Wheeler, Steven Hill, 404.681.3450
OST-98-3615 | OST-97-2058 | March 23, 1998
US Airway's complaint underscores the concerns expressed by Delta and others about the highly restrictive conditions applicable to U.S. carrier access to London's airports, the impact of those restrictions on the Department's consideration of the joint application of British Airways and American Airlines for approval of an antitrust immunized alliance, and the importance of addressing London airport access problems in bilateral negotiations with the U.K. The United Kingdom now has the distinction of being the largest and most restrictive U.S. bilateral aviation regime. The Bermuda II agreement severely restricts the number of authorized U.S. carriers, the airports they can serve and the capacity they can offer. Wholly apart from the bilateral agreement, there are de facto barriers to entry at London's airports due to the lack of airport slots and facilities.
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | March 24, 1998
Re: American Airlines Response for
Confidential Materials
Counsel: American, Carl Nelson, 202-496-5647, carl_nelson@amrcorp.com
Re: British Airways Response for Confidential
Materials
Counsel: Sullivan Cromwell, Jeffrey Jacobs, 202-956-7500
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
Order 98-3-31 | OST-97-2058 | Issued and Served March 30, 1998
We have reviewed the supplemental information filed by the Joint Applicants. Based on that review and the additional access we are now providing interested parties, as described below, we find that the record of this case is now substantially complete. Therefore, in order to provide interested parties sufficient time to analyze adequately and comment fully on all material in the public and nonpublic record, we will require that answers to the application be filed no later than 30 business days from the service date of this order, and that replies be filed no later than 21 business days after the last day for filing answers.
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc
OST-97-2058 | April 1, 1998
Affidavit for Counsel of Continental Airlines - Michele
M. Burris
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | April 3, 1998
Re: Confidentiality Affidavits for Virgin
Atlantic Airways' Legal Counsel - Leon B. Greenfield
Counsel: Wilmer Cutler
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | April 8, 1998
Request for Additional Information
Answers are due by April 17, 1998
By: John Coleman
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | April 14, 1998
Affidavit of Benjamin Bradshaw, Counsel for US Airways
OST-97-2058 | OST-96-1700 | OST-97-3285 | Dated April 16, 1997 | Docketed April 15, 1998
Re: Joint Applications - Affidavits of Counsel for Trans
World Airlines, Inc.
Pursuant to Order 97-342, enclosed for filing are the original and eight copies of a confidentialiyv affidavit of Kathleen A. Soled in the Arnerican/BA proceeding. In addition. pursuant to Order 98-3-31, enclosed are the originals and eight copies of confidentiality affidavits of Kathleen A. Soled, Richard J. Fahy, Jr., and Daniel S. Klein in the AA/TACA and AN/Lan Chile proceedings.
Counsel: Richard Fahy for TWA
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | April 20, 1998
Pursuant to Rule 18 of the Department's Rules of Practice, Delta Air Lines, Inc., Trans World Airlines, Inc. and United Air Lines, Inc. hereby jointly request the Department to suspend the procedural dates established in the above-captioned proceeding by Order 98-3-31 while the Department determines whether to require British Airways to file additional materials in this docket. The possibility that British Airways will be required to file such additional materials was raised by the Director, Office of Aviation Analysis, in a letter he sent to British Airways' counsel dated April 8, 1998.
Counsel: Shaw Pittman, Robert Cohn, 202-663-8000 for Delta / Richard Fahy, 202-457-4764 for TWA / Ginsburg Feldman, Joel Burton, 202-637-9130 for United
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | April 28, 1998
Answer of Northwest Airlines to Motion to
Suspend Procedural Dates
Northwest understands that British Airways has submitted certain documents in response to the Department's request and that the Department is in the process of reviewing the documents and deciding whether they should be added to the docket in this proceeding. Even if the Department issues its decision this week, over 20 of the 30 business days that the Department afforded for interested parties to prepare their answers will have already passed. Further, if the Department is not able to issue its decision until next week, then interested parties will have only five business days or less to review, analyze, and incorporate a discussion of any new information added to the docket. Under these circumstances, unless the Department extends the due dates for answers and replies, interested parties likely will not have "sufficient time to analyze adequately and comment fully on all material in the public and non-public record," as the Department intended.
Counsel: Northwest, Megan Rae Poldy, 202-842-3193
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | April 29, 1998
Answer of British Airways to Joint Motion
Whatever of the British Airways-US Airways litigation materials reviewed by DOT staff are put into this docket, it is inconceivable that they will be of such number or consequence as to require any parties to take any additional time to prepare their answers in this proceeding.
Counsel: British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
Answer of US Airways to Joint Motion to Suspend
Procedural Dates
As noted in the Joint Motion, under the Department's rules an application for antitrust immunity should not be processed until it is complete. This only makes common sense. DOT plainly has determined that the Joint Application herein may not be complete because potentially relevant documents from the pending action between US Airways and British Airways in the Southern District of New York have not been submitted. Suspension of the DOT procedural dates thus is fully warranted.
Counsel: US Airways and O'Melveny Myers, Donald Bliss, 202-383-5300
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 1, 1998
Motion for Leave to File and Reply of US Airways
to Answer of British Airways
On April 29, BA filed an Answer opposing the Joint Motion, notwithstanding the fact that BA and American Airlines have been extraordinarily dilatory in pursuing the DOT approval process. It took BA and American seven months after the announcement of their alliance on June 11, 1996 to file the Joint Application, and it took them many more months to provide the documents and other evidence requested by DOT so that it was not until March 30, 1998, that DOT was able to conclude preliminarily that the record was "substantially complete." Yet, BA now opposes the reasonable efforts of interested carriers to ensure that they have adequate time to review all late-filed evidence relevant to this case.
Counsel: US Airways and O'Melveny Myers, Donald Bliss, 202-383-5300
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 4, 1998
Until the issue of whether the record is indeed complete has been resolved, the Department must suspend the procedural dates herein to ensure that parties have the opportunity to craft their comments based on a full review of all information that will be deemed material and relevant to the Department's decision in this important case.
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
Order 98-5-7 | OST-97-2058 | Issued and Served May 6, 1998
Extension of procedural dates: answers are due May 22, 1998 and replies are due June 23, 1998
By: Charles Hunnicutt
American Airlines, Inc. and British Airways, PLC - (Approval of and Antitrust Immunity for Alliance Agreement)
OST-97-2058 | May 7, 1998
BAA, as owner, operator and manager of seven airports in the United Kingdom, including London's Heathrow Airport, favors the impending agreement to liberalize air transportation services between the United States and the United Kingdom. As shown below, open skies will pose several new challenges to the operations of Heathrow Airport. Nevertheless, BAA looks forward to meeting these challenges to help deliver the benefits of open skies to passengers from both the U.S. and the U.K.
Notice of Filing of Appendix of Exhibits in Support of the
Answer of BAA PLC
Counsel: Schreeder Wheeler, Gordon Booth, 404-681-3450
Counsel: Carl Nelson, Jr. for American Airlines, 202.496.5647
Motion of Trans World Airlines for Submission
of Additional Material
Wherefore, TWA respectfully requests that the Department establish an answer date of May 12, 1998, for Answers to this motion, that it require the submission of the documents identified in this motion for in camera review, and that it place any documents that it determines to be relevant in the docket of this proceeding.
Counsel: TWA and Richard Fahy
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 11, 1998
Response of British Airways to Order 98-5-7
Petition of British Airways for Reconsideration
of Order 98-5-7
British Airways Plc ("British Airways") hereby petitions for reconsideration of order 98-5-7, dated May 6, 1998, insofar as that order requires British Airways to file two documents that are irrelevant to this proceeding.
Motion of British Airways of Confidential
Treatment
A protective order entered by that court on January 17, 1997 prevents public access to this information. In fact, the confidentiality provisions of the protective order are more stringent than the Department's Rule 39 procedures, in that certain materials may be seen only by US Airways' outside (and not in-house) counsel. It would be inappropriate and unfair for the Department to make public discovery materials that are subject to confidentiality procedures imposed by a federal court. Counsel for all interested parties are able to access these materials by filing appropriate confidential affidavits.
Counsel: British Airways and Sullivan Cromwell
Answer of Delta Air Lines to Motion of Trans
World Airlines for Submission of Additional Material
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
Answer of United Air Lines to Motion of Trans
World Airlines for Submission of Additional Material
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
Posted and Served May 11, 1998
In order to avoid unecessary delay in this proceeding, we find it appropriate to direct interested parties to file answers to TWA's motion by May 13, 1998
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 13, 1998
Answer of British Airways to Motion of TWA for
Submission of Additional Material
The contractual dispute between British Airways and US Airways is wholly irrelevant to the Department's review of the proposed British Airways-American Airlines alliance. The Department has requested and received the information that it considered necessary and relevant to its review. The Department should not allow this docket to become a dumping ground for extraneous materials involving an unrelated private dispute between two carriers.
Counsel: British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
OST-97-2058 | May 14, 1998
Motion of US Airways for Leave to File and
Reply to British Airways's Answer to TWA
To not take this critical step in these circumstances would place the Department in the position of potentially creating a serious gap in the evidentiary record in one of the most important proceedings currently before it, as well as failing to follow its own past practice in addressing an issue that has arisen before in this proceeding.
Counsel: US Airways and O'Melveny Myers, Donald Bliss, 202-383-5300
OST-97-2058 | Issued May 13, 1998
In order to avoid unnecessary delay in this proceeding, we find it appropriate to direct interested parties to file answers to British Airways' petition by May 15, 1998.
By: Charles Hunnicutt
OST-97-2058 | May 14, 1998
Re: Confidentiality Affidvait for Derek Dickinson, Counsel
for Continental Airlines
Counsel: Crowell Moring, Bruce Keiner, 202-628-5116
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 15, 1998
Answer of Delta Air Lines to Petition of
British Airways for Reconsideration of Order 98-5-7
British Airways argues that since the BA/US Air alliance has been terminated, pro rates between the two carriers are no longer relevant. However, the Department has already determined that this information is relevant. Given the importance of pricing on competition for U.S.-London services and that this document may indicate BA's pricing behavior with a U.S. airline partner, the Department's findings of relevancy would appear to be valid.
Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060
OST-97-2058 | May 15, 1998
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 20, 1998
Confidentiality Affidavit for Judith Conti of James &
Hoffman for ALPA
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 21, 1998
Comments of The Department of Justice
The Alliance as proposed will significantly reduce competition in many U.S.-U.K. city pairs without producing sufficient efficiencies to outweigh the harm. Divestiture conditions, primarily slot divestitures at London Heathrow Airport ("Heathrow" or "LHR") can reduce that harm, but will not eliminate it in all affected city-pair markets. Hence, if DOJ were reviewing the Alliance under the antitrust laws, we would oppose it.
Appendix A | Table 1: Direct Overlaps between AA and BA in Routes from US Gateway Cities to London
Motion of The Department of Justice to Withhold
Information from Public Disclosure
Counsel: DOJ, Roger Fones, 202-307-6318
Order 98-5-28 | OST-97-2058 | May 21, 1998
Order Granting British Airways' Petition for Reconsideration
On May 13, 1998, the Department reviewed the two documents. The first document, identified in Order 98-5-7 as Item 1, was a pleading prepared by US Airways seeking relief from a January 17, 1997, protective order issued by the court in the above referenced civil litigation. As such, it sets forth US Airways' characterization of certain British Airways' documents. The second document, identified in Order 98-5-7 as Exhibit 6 to Item 1, was an e-mail document relating specifically to the contract dispute between British Airways and US Airways. Upon reconsideration, we find these documents are not relevant as evidence in this case. Therefore, these documents need not be filed in the docket at this time. However, if, in the course of our analysis, we determine that this information is relevant as evidence, we reserve the right to require that the information be filed in the docket.
By: Charles Hunnicutt
OST-97-2058 | May 20, 1998
Re: Letter from DOT Requesting Additional
Information
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 22, 1998
Answer of Continental Airlines
Counsel: Continental and Crowell Moring, Bruce Keiner, 202-624-2615
Answer of The Dallas/Fort Worth International Airport
to Joint Application
Counsel: Bagileo Silverberg, Michael Goldman, 202-944-3305
Counsel: Delta and Shaw Pittman, Robert Cohn
Answer of The City of Houston and The Greater Houston
Partnership
Counsel: Zuckert Scoutt, Raymond Rasenberger, 202-298-8660
Answer of Massachusetts Port Authority
By: MASSPORT, Charles Yelen, 617-478-4152
Answer of Trans World Airlines
Motion of Trans World Airlines for Confidential
Treatment
Counsel: TWA and Richard Fahy, 202-457-4764, rfahy@ibm.net
Motion of United Air Lines for Confidential
Treatment
Counsel: United and Ginsburg Feldman, Joel Burton, 202-637-9130
Answer of US Airways to Joint Application
Counsel: US Airways and O'Melveny Myers, Donald Bliss, 202-383-5300
Motion of Virgin Atlantic to Withhold
Information
Counsel: Wilmer Cutler, Jeffrey Shane, 202-663-6000
Letters in Support:
Additional Letters will be Added May 26th
Re: Confidentiality Affidavit for Gary Doernhoefer,
Senior Attorney of American Airlines
American Airlines, Inc. and British Airways, Plc (Antitrust Immunity)
OST-97-2058 | Served May 27, 1998
DOJ indicates that it has notified the persons who submitted documents and data referred to in the two pleadings, identifying the relevant materials for each. DOJ requests that DOT treat the pleadings and materials contained therein in accordance with its normal interim confidentiality procedures, adopted in this case, but, in addition, that it also "accord confidential treatment to the two pleadings for a minimum of ten days" in order to give the affected persons a reasonable opportunity to request additional restrictions other than those already in effect in this docket.
In order expedite consideration of these requests, we are setting the date for answers to the motion as 12 noon on Friday, May 29, 1998, and the date for replies as Tuesday, June 2, 1998.
By: Patrick Murphy
OST-97-2058 | May 27, 1998
Re: Confidentiality Affidavit for Jeffrey Jacobs,
Darryl Libow, Richard Sauer, Bernard Joseph of Sullivan & Cromwell for British
Airways
American Airlines, Inc. and British Airways, Plc - (Approval of and Antitrust Immunity for Alliance Agreement)
OST-97-2058 | June 1, 1998
Answer of The City of Albuquerque - Submitted
by American Airlines
Our community wants to remain competitive in this rapidly changing global aviation market. The approval of the AA/BA alliance would provide Albuquerque, New Mexico with a greatly expanded global network of destinations in the 80 countries served by British Airways. This, in turn, will provide us with the same marketing benefits enjoyed by those communities served by the previously approved alliances. To deny us the access to this new network would place our community at a distinct disadvantage.
Answer of Los Angeles World Airports - Submitted
by American Airlines
Los Angeles World Airports hereby submits its support to the application of the parties in this proceeding. We urge the prompt approval of the proposed alliance and the completion of an open skies agreement with the United Kingdom as soon as possible.
OST-97-2058 | May 29, 1998
DOJ suggested that British Airways may wish to assert a claim that these documents warrant confidential treatment under 14 C.F.R. § 302.39 (DOT Rule 39). British Airways does assert such a claim, and requests that the listed documents, with one exception, be afforded confidential treatment under DOT Rule 39.
Counsel: Sullivan Cromwell, Jeffrey Jacobs, 202.956.7500
OST-97-2058 | May 29, 1998
Confidentiality Affidavit of Mark McCall -
(Counsel for British Airways, Plc)
OST-97-2058 | June 1, 1998
Confidentiality Affidavit for American Airlines
- Greg Sivinski
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | June 3, 1998
Answer of Woodside Travel Trust in Opposition
and Motion to Suspend Procedural Dates
The news that the number of major airlines in the United States decreased by 50% overnight was hardly unanticipated. The pell-mell rush of the airlines to consolidate their operations globally and to increase fares has continued unabated. Without swift and decisive action by the Department, all semblance of airline competition will evaporate from the global market place.
Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460
American Airlines, Inc. and British Airways PLC - (For Approval of and Antitrust Immunity for Alliance Agreement)
Order 98-6-13 | OST-97-2058 | Issued and Served June 15, 1998
We grant, to the extent indicated in this order, the Department of Justice's May 21, 1998, motion to withhold information from public disclosure; except the extent determined herein, we defer action on DOJ's and British Airways' requests for confidential treatment under Rule 39 of the Department's regulations.
By: Charles Hunnicutt
American Airlines, Inc. and British Airways Plc (Antitrust Immunity)
OST-97-2058 | May 29, 1998
Confidentiality Affidavit for James Blaney,
Counsel for British Airways
Confidentiality Affidavit for Paul Jasinski,
Counsel for British Airways
American Airlines, Inc. and British Airways PLC - (Approval of and Antitrust Immunity for Alliance Agreement)
OST-97-2058 | June 19, 1998
Motion for Leave to File and Supplemental Submission of the Department
of Justice
Prospects for the creation of substantial numbers of new slots seem dimmer than they were in 1996. It is thus even more apparent that the lion's share of slots that are needed to gain entry at Heathrow will have to come from transfers from current slotholders rather than from newly created slots.
Attachment - Re: BAA/AA Alliance
Counsel: Robert Young, 202.307.6318
American Airlines, Inc.and British Airways Plc - (For Approval of and Antitrust Immunity for Alliance Agreement)
OST-97-2058 | June 23, 1998
Joint Reply of American Airlines and British Airways
If there were ever any doubt that open skies will result in more new flights to London, the filings in this docket by competitors of the alliance should forever dispel them. All told, the submissions by Continental, Delta, TWA, United, and US Airways propose 40 new daily roundtrip flights to Heathrow, a 63 percent increase over today's level of service, and an amount nearly equivalent to the entire number of daily nonstop flights between the U.S. and Germany. While there can be no doubt that such a large increase in flights to Heathrow is insupportable, the array and depth of operations proposed is nonetheless irrefutable proof that unparalleled new entry and expansion will flow from open skies with the U.K.
Counsel: American, Carl Nelson, 202-496-5647, carl_nelson@amrcorp.com / British Airways and Sullivan Cromwell, Mark McCall, 202-956-7500
Continental urges the Department to disapprove the American/British Airways alliance. Before the Department decides to take any action to approve the alliance, it should hold oral, evidentiary hearings to consider factual issues affecting competition in the U.S.U.K. market and to evaluate potential remedies to ameliorate the vast competitive harm approval would entail. Among the remedies essential to maintaining any significant competition are suitable slots and facilities at London Heathrow for Continental to operate six daily Newark-Heathrow roundtrip flights, three daily Cleveland-London Gatwick service, and American has opposed that request, seeking a San Jose-London designation for itself, despite the fact that American has abandoned San Jose as a hub. Even without an American/British Airways alliance, Continental's Cleveland-London service would provide far more public benefits than American's San Jose-London service, and American's request for a San Jose-London designation demonstrates its willingness to go to any length to block expanded competition by other carriers in U.S.-London markets.
Counsel: Continental and Crowell Moring, Bruce Keiner, 202-624-2615
Reply of The Dallas/Fort Worth International Airport
For the reasons stated here and in Dallas/Fort Worth's Answer, the American/BA Alliance should be approved subject to a requirement that American/BA make Heathrow slots available for a new DFW-London competitor. Approval should not be subject to a carve-out on American/BA's DFW-London services.
Counsel: Bagileo Silverberg, Michael Goldman, 202-944-3305
The Answers overwhelmingly demonstrate:
