OST-97-3139
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OST-97-3139
U.S.-Argentina All-Cargo Frequency Proceeding / Federal Express Corp., Arrow Air, Inc. and Florida West International Airways, Inc. (Transfer of Frequency Allocations) / Arrow Air, Inc., Federal Express Corp., Fine Airlines, Inc., Polar Air Cargo, Inc. and Southern Air Transport, Inc. (Allocation of Frequencies and/or Exemption Authority)
Order 97-11-35 | OST-97-3139 | OST-97-2548 | OST-97-2848 | OST-97-2594 | OST-97-2852 | OST-97-2578 | OST-97-2855 | Issued and Served November 20, 1997
HTML (With Appendix)
By this order, we institute the 1997 U.S.-Argentina All-Cargo Frequency Proceeding to determine whether U.S.-Argentina all-cargo frequencies currently held by Florida West, Arrow Air, and Challenge should be reallocated, including the issue of whether frequencies should be transferred jurors Florida West and Arrow Air to Federal -Express. We will consolidate all of the captioned applications into this new proceeding.
In order to facilitate a prompt decision in the case, we intend to conduct the proceeding according to the following schedule:
By: Charles Hunnicutt
1997 U.S.-Argentina All-Cargo Frequency Proceeding / Federal Express Corporation, Arrow Air, Inc. and Florida West International Airways, Inc. (Transfer of Frequency Allocations)
OST-97-3139 | OST-97-2584 | November 24, 1997
Petition of Challenge Air Cargo for Reconsideration (OST-97-2848, 2594, 2852, 2578, 2855)
It is incumbent on the Department to engage in an evenhanded, non-discriminatory, approach to frequency allocations. If the Department believes that its existing dormancy conditions are insufficient, the Department should clearly and concisely articulate a new standard and apply it even-handedly and prospectively, in accordance with the law.
Counsel: Zuckert Scoutt, William Callaway, 202-298-8660
Petition of Federal Express for Clarification of Order 97-11-35
The sole purpose of this Petition is to request the Department to clarify and confirm that it recognizes that Federal Express is an applicant for no fewer than three additional Argentina frequencies in this proceeding, regardless of whether those three additional frequencies are issued to Federal Express by transfer or by reallocation, or by a combination of transfer and reallocation. Concurrently herewith, Federal Express is amending its pending contingent frequency reallocation application in Docket OST-97-2S94 to include a request for three Argentina frequencies, rather than two, in the event that the Joint Frequency Transfer Application in Docket OST-97-2548 is denied in its entirety for any reason. Federal Express hereby requests the Department to clarify Order 97-11-35 so as to confirm that it considers Federal Express to be an applicant for three Argentina frequencies in Docket OST-97-3139.
Counsel: Federal Express and Shaw Pittman, Nathaniel Breed, 202-663-8078
US-Argentina All-Cargo / Joint Application of Federal Express, Arrow Air, Inc., and Florida West International Airways, Inc.
OST-97-3139 | OST-97-2548 | November 25, 1997
Federal Express strongly supports the Challenge Petition for Reconsideration to the extent that it urges the Department to address and resolve the asserted dormancy issue affecting the Argentina cargo frequency allocations held by Challenge, and, by implication, those held by Arrow Air, Inc. (Arrow) and Florida West International Airways, Inc. (FWIA), before proceeding with a time-consuming, expensive and potentially wasteful proceeding to consider the reallocation of the existing Argentina cargo frequency reallocations issued to those three carriers.
Counsel: Shaw Pittman, Nathaniel Breed Jr. for FedEx, 202.663.8078
US-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | November 26, 1997
Challenge has offered nothing that would require the Department to reconsider its decision to include the issue of the possible reallocation of Challenge's U.S.-Argentina frequencies in this proceeding. There has been no final decision to reallocate these frequencies, and Challenge will be afforded the procedural rights to defend its allocation in the course of the proceeding. This will include Challenge's right to present legal arguments such as those contained in its petition in which it claims that its allocations are not dormant and should not be subject to reallocation.
Counsel: Ginsburg Feldman, Alfred Eichenlaub, 202.637.9034
U.S.-Argentina All-Cargo Frequency Proceeding
Joint Application of
Federal Express Corporation, Arrow Air, Inc., and Florida West
International Airways, Inc. (Transfer of Frequency
Allocations in US-Argentina All-Cargo Frequencies)
Applications of Arrow Air, Inc., Federal Express Corporation,
Fine Airlines, Inc., Polar Air Cargo, Inc., and Southern Air
Transport, Inc. (Allocation of Frequencies and/or
Exemption Authority in US-Argentina All-Cargo Frequencies)
Application of Florida West International Airways, Inc. (Renewal
of Frequency Allocation)
Motion and Request of Challenge Air Cargo, Inc.
(For Clarification of Department's August 14, 1997 Notice
Regarding US-Argentina All-Cargo Services)
Application of Challenge Air Cargo (Renewal of
Exemption)
Joint Petition for Review of Staff Action of Federal
Express Corporation and Arrow Air, Inc. (Regarding
August 14, 1997 Notice on US-Argentina All-Cargo Services)
OST-97-3139 | OST-97-2548 | OST-97-2848 | OST-97-2594 | OST-97-2852 | OST-97-2578 OST-97-2855 | OST-97-2648 | Undocketed | OST-96-1042 | Undocketed | November 28, 1997
Motion for Leave to File and Reply of Challenge Air Cargo, Inc. to Answer of Polar Air Cargo, Inc.
Polar has fundamentally misconstrued and mischarachterized the issues raised in Challenge's Petition for Reconsideration of Order 97-11-35. In the interest of a complete and accurate record for the Department's consideration, and given the importance of the issues at stake, Challenge should be given an opportunity to respond. Good cause, therefore, exists for acceptance of this Reply.
Polar contends that because Challenge has the opportunity to participate in this proceeding, its procedural rights have been protected. Polar is flat wrong. Challenge cannot lawfully be placed in a position where it has to recompete for frequencies that it has already been awarded based on an unarticulated use standard. In exercising its frequency allocation, Challenge has justifiably relied on the Department's 90-day dormancy condition and its prior statements of policy.
Counsel: Zuckert Scoutt, William Calloway, 202.298.8660
1997 U.S.-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | December 2, 1997
Information Response of Arrow Air
Attachment: Frequency of Service 6/95-9/97 / Revenue Tons Transported 7/96-9/97
Counsel: Allan Markham, 202-337-2149
Information Response of Challenge Air Cargo
Challenge intends to supplement this response with traffic data as soon as possible and respectfully requests leave to late file for the following reasons: As detailed above, Challenge's U.S.-Argentina flights are operated via several points in Latin America. Challenge's internal traffic figures reflect the totality of these operations, and Challenge does not routinely compile traffic data reflecting solely the Argentina market. In order to compile information specific to the Argentine market, Challenge's data retrieval system requires it to manually extract these figures, using a time consuming and difficult process. Due to the short lead time contained in Order 97-11-35 and the absence of several key Challenge personnel during the last ten days, Challenge has been unable to complete this extraction process as of the date of this submission. Accordingly, Challenge respectfully requests leave to file its traffic information as soon as possible.
CAC IR-1: US-Argentina Flights
Counsel: Zuckert Scoutt, William Callaway, 202-298-8660
Information Repsonse of Federal Express
During each week of the 28-month period from June 1, 1995 through September 30, 1997, Federal Express has operated five roundtrip flights a week utilizing B-727-200 freighter aircraft, having an available payload capacity of 45,000 pounds, operating between Sao Paulo, Brazil and Buenos Aires, Argentina. Those B-727 flights connect on a change-of-gauge basis at Sao Paulo with daily DC-10-30 freighter flights operated by Federal Express between Memphis and Miami, on the one hand, and Sao Paulo, on the other hand. The DC-10-30 freighters have a total available payload capacity of 116,000 pounds southbound and 96,000 pounds northbound.
Counsel: Federal Express and Shaw Pittman, Nathaniel Breed, 202-63-8078
Response of Florida West International Airways
As indicated in FWIA-IR-2, FWIA operated some of its U.S.-Argentina flights on a wet lease basis. After a number of years of serving customers in the U.S.-Argentina market with its own B-707 aircraft, a number of the same customers insisted that FWIA offer greater capacity on given days in order to avoid the risks of having to split shipments. To accommodate these customers, FWIA felt obliged to arrange for B747 service on a wet lease basis. That policy continued throughout the transition period FWIA underwent when it purchased the assets of FWIA's corporate predecessor. Thereafter, FWIA was limited by the Department in terms of the number of aircraft it could operate although FWIA is hopeful that these limitations will be removed when the Department issues FWIA its renewed certificate. FWIA, nonetheless, does have plans in the future to acquire and operate its own B-747 aircraft. Even throughout the period where much of FWIA's service was provided on a wet lease basis, all of these flights were provided pursuant to FWIA's published schedules in the Air Cargo Guide
Counsel: Squire Sanders, Marshall Sincik, 202-626-6651
Information Response of Polar Air Cargo
Counsel: Ginsburg Feldman
1997 U.S.-Argentina All-Cargo Frequeny Proceeding
OST-97-3139 | December 4, 1997
Answer of Southern Air Transport to Petition of Challenge Air Cargo for Reconsideration
Challenge has not been "singled out". The Department is clearly placing at issue the frequency allocations of the other "incumbent" carriers which similarly might be dormant. Further, as to Challenge's argument that if dormant frequencies are to be subject to reallocation then so should those of the incumbents Federal Express Corporation and Polar, Southern would note that both FedEx and Polar are also applicants for additional frequencies herein, and that as incumbents their actual frequency usage (or non-usage) shall be an issue herein.
Counsel: Pierre Murphy, Elizabeth Collins, 202-872-1679
Order 97-12-19 | OST-97-3139 | OST-97-2548 | OST-97-2594 | Issued and Served December 12, 1997
By this order, we grant the petition of Challenge Air Cargo, Inc., for reconsideration of Order 97-l1-35 which instituted the 1997 U. S. -Argentina All-Cargo Frequency Proceeding, and, upon reconsideration, deny its request that we rescind the order or modify the scope of the instituted proceeding. We also grant Federal Express' request that we confirm that it is an applicant for no fewer than three additional frequencies in this proceeding.
As to the issues Challenge raises regarding notice, we believe that the notices and orders issued, combined with the procedures established in Order 97-11-35, will provide Challenge, as well as any other interested carriers, ample opportunity to argue its position and present any evidence it may wish to present. Nor are we persuaded that the public interest warrants expanding the scope of this proceeding to include the frequency allocations of other incumbent carriers. Federal Express and Polar Air are using their frequencies fully, and no party has presented any evidence that would question the use by these carriers of their frequency allocations or otherwise warrant our placing those allocations in issue.
By: Charles Hunnicutt
U.S.-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | December 17, 1997
Re: Supplemental Incumbent Response of Challenge Air Cargo
Pursuant to Order 97-11-35, Challenge Air Cargo, Inc. ("Challenge") hereby submits an original plus four copies of its Supplemental Incumbent Response in the above-referenced proceeding.
Exhibit CAC IR-2: Traffic Information
Counsel: Zuckert Scoutt, William Callasway, 202-298-8660
1997 U.S.-Argentina All-Cargo Frequency Allocation
OST-97-3139 | December 23, 1997
First Supplement to Contingent Application of Arrow Air
The current Arrow Air fleet consists of 7 DC-8-62F, 3 DC-8-63F, and 3 L-1022 aircraft. All L-1011, 3 DC-8-62F, and 1 DC-8-63F aircraft comply with FAR Part 36. All DC-8-63F aircraft will be in compliance FAR Part 36 by the end of CY1998. The aircraft to be used in the proposed operation are currently in the fleet and are currently being in the carrier's scheduled and charter all-cargo service. There is sufficient availability with the existing aircraft fleet to sustain the proposed services . Arrow Air, Inc. would accept a condition that service be inaugurated by a date specific or within a specified time. It believes within 90 days of the date of allocation is a reasonable time period. If it is determined that the two weekly frequencies allocated to Arrow Air are dormant, it would accept an allocation of one weekly frequency if necessary. The services proposed herein above will be provided by aircraft currently in the fleet of Arrow Air and will not involve wet-leasing, code sharing, or other arrangement with any other air carrier or foreign air carrier.
Counsel: Allan Markham, 202-337-2149
Re: US-Argentina All-Cargo Frequency Proceeding - Challenge Air Cargo
In light of the Department's order on reconsideration, with which Challenge respectfully disagrees, Challenge has decided, with great reluctance and regret, to relinquish its allocation of two narrow-body U.S.-Argentina scheduled all-cargo frequencies, effective immediately. Consequently, Challenge no longer will be participating in the referenced proceeding. Challenge continues to have a strong interest in providing scheduled all-cargo service to Argentina and fully expects to be an applicant for such authority at such time as additional frequencies become available for allocation.
Counsel: Zuckert Scoutt, William Callaway, 202-298-8660
Supplement to Application of Federal Express
Federal Express has applied for three additional U.S.-Argentina frequencies, which is the minimum number required to enable Federal Express to operate the DC-10-30 freighter aircraft at a frequency of five roundtrip flights a week. That frequency is an essential requirement for the performance of expedited air express operations which involve the transport of urgent and extremely time-sensitive shipments every business day. Federal Express would be willing, but extremely reluctant, to accept an allocation of fewer than three additional frequencies, including as few as one or two frequencies, but such a limited allocation would severely undermine the ability of Federal Express to handle its existing and projected future U.S.-Argentina traffic requirements.
Counsel: Federal Express and Shaw Pittman, Nathaniel Breed, 202-663-8078
Supplement to Application of Fine Air Services
Fine Air would obtain wet-leased DC-10, MD-11 or B-747 freighter aircraft on an interim basis from carriers that offer ACMI services, such as American International Airways, Gemini Air Cargo and World Airways. Fine Air has obtained aircraft from such carriers in the past. The cost of wet leasing aircraft is comparable to the cost of dry leasing, maintaining and crowing such aircraft. Although Fine Air would be willing to accept a grant of any number of frequencies, it believes that the current structure of the market (dominated by Federal Express) counsels in favor of awarding a new entrant carrier enough frequencies to permit it to mount a commercially viable, competitive service. It would be difficult for Fine Air, or any other carrier, to mount such a service with fewer than two frequencies.
Attachment: Proposed US-Argentina Services Cargo Flow Over Miami Hub
Counsel: Wilmer Cutler, Jeffrey Shane, 202-663-6000
Supplement to Application of Florida West International Airways
As data submitted in this proceeding by several incumbent carriers demonstrates, the level of service provided by certain incumbents in the U.S.-Argentina cargo market has been infrequent. By contrast, FWIA has continued to offer scheduled service. FWIA, however, has certainly experienced a decline in market yields within the past year. FWIA assumes that this decline has also contributed to the decision on the part of certain incumbent carriers to provide only infrequent service. The key to future success in the market will be an improvement in yield. Another important feature would be the ability to offer at least three weekly frequencies.
Counsel: Squire Sanders, Marshall Sinick, 202-626-6651
Supplemental Evidence of Polar Air Cargo
Counsel: Ginsburg Feldman, Alfred Eichenlaub, 202-637-9000
Supplemented Application of Southern Air Transport
Southern's proposal for scheduled Argentina service is for a twice-weekly B-747-200F service on a Miami (MIA) - Buenos Aires (EZE) routing southbound, and a Buenos Aires-Bogota (BOG) - Miami routing northbound. This would require the allocation to Southern of four (4) weekly narrow-body frequencies. Southern was an unsuccessful applicant for U.S. - Argentina scheduled all-cargo authority in the 1994/1995 Proceeding. Nonetheless, Southern has maintained a strong interest in operating scheduled service in this market since that time. Southern currently operates B-747200F all-cargo services in the Argentina market as well as in the Brazil, Colombia and, most recently, Paraguay markets where the B-747-200F service Southern provides has met with great commercial success.
Counsel: Pierre Murphy, Elizabeth Collins, 202-872-1679
1997 U.S.-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | December 24, 1997
Re: Revised Page 6 of Exhibit PO-201 of Polar Air Cargo
Counsel: Ginsburg Feldman, Jeffrey Manley, 202-637-9057
1997 U.S.-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | December 30, 1997
Re: Revised Exhibit SAT-202 of Southern Air Transport
Revised Exhibit SAT-202, Proposed U.S.-Argentina B-747-200F Schedule. The departure and arrival times were inadvertently left off this Exhibit as filed in the original Application dated December 23, 1997.
Counsel: Pierre Muprhy, Elizabeth Collins, 202-872-1679, ecollins@lopmurphy.com
1997 US-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | January 20, 1998
Re: Revised Exhibit SAT-202 for Southern Air Transport
Revised Exhibit SAT-202, Proposed U.S.-Argentina B-747-200F Schedule. On December 29, 1997 Southern filed a revised Exhibit SAT-202. Due to inadvertence, this exhibit, however, did not reflect the proposed technical stop southbound in Port of Spain.
Counsel: Pierre Murphy, Elizabeth Collins, 202-872-1679, ecollins@lopmurphy.com
1997 U.S.-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | January 21, 1998
Consolidated Answer of Federal Express to Supplemented Applications
Counsel: Federal Express and Shaw Pittman, Nathaniel Breed, 202-663-8078
Counsel: Wilmer Cutler, Jeffrey Shane, 202-663-6000
Consolidated Answer of Polar Air Cargo
Exhibit PO-300: Route Map
Counsel: Polar and Ginsburg Feldman, Jeffrey Manley, 202-637-9057
Consolidated Answer of Southern Air Transport to Supplemented Applications
Counsel: Pierre Murphy, Elizabeth Collins, 202-872-1679
1997 U.S.-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | February 4, 1998
Consolidated Reply of Federal Express
FX-R-100 - Southbound/Northbound Traffic Forecast in Revenue Tons for YE 12/98
Counsel: Federal Express and Shaw Pittman, Nathaniel Breed, 202-663-8078
Consolidated Reply of Fine Air Services
Attachment: Revised Table for Cargo Traffic Forecast
Counsel: Wilmer Cutler, Jeffrey Shane, 202-663-6000
Consolidated Reply of Florida West International Airways
Counsel: Squire Sanders, Marshall Sinick, 202-626-6651
Consolidated Reply of Polar Air Cargo
Counsel: Polar and Ginsburg Feldman, Jeffrey Manley, 202-637-9057
Consolidated Reply of Southern Air Transport
Counsel: Pierre Murphy, Elizabeth Collins, 202-872-1679
1997 US-Argentina All-Cargo Frequency Proceeding
OST-97-3139 | February 11, 1998
Motion for Leave to File an Unauthorized Document and Surreply of FWIA
In no fewer than five places interspersed throughout its Reply, SAT refers to FWIA's "non-use" of its single U.S.-Argentina cargo allocation and further maintains that FWIA's "non-use" has resulted in the de jure reversion of that allocation to the Department. The facts are that FWIA and its corporate predecessor have provided over two-hundred U.S.-Argentina cargo flights with both narrow-bodied and wide-bodied aircraft since 1991 and that FWIA has provided such flights with mostly wide-bodied aircraft during the past twelve months. For SAT to claim that that pattern of service represents "non-use" is to redefine the word "usage."
Counsel: Squire Sanders, Marshall Sinick, 202-626-6651
1997 US-Argentina All-Cargo Frequency Proceeding
| OST-97-3139 | Served June 11, 2001 | Notice Terminating Proceeding | U.S.- Argentina All- Cargo Frequencies |
By Order 97-11-35, the Department instituted the above-captioned proceeding for allocation of U.S.- Argentina all-cargo frequencies. At the time, U.S. carriers were limited to operation of a total of 12 weekly narrow-body all-cargo frequencies. The order also consolidated numerous applications, filed in separate dockets, into the new proceeding established in Docket OST-97-3139.
By: Susan McDermott
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