ost984363

Order Instituting Proceeding

Order 98-8-29 | OST-98-4363 | Issued and Served August 25, 1998

While our preferred outcome would be a settlement of the dispute over Love Field service that would be acceptable to all of the parties, we believe that such an outcome is unlikely. In addition, the litigation is moving forward without the benefit of the Department's position on several of the key legal issues. Hence, we think that the most effective step we can take will be to issue a ruling on the major federal law issues raised by the dispute, which involve the interpretation of federal statutes whose administration is the responsibility of this Department.

We are therefore beginning this proceeding to obtain the parties' comments on those issues and to issue an order interpreting those statutes. We note that thirteen years ago we held a similar proceeding in order to resolve other disputes on the meaning of the statutory restrictions governing Love Field operations.

Service List

By: Charles Hunnicutt

Re: Love Field Service Interpretation Proceeding

OST-98-4363 | August 31, 1998 | [Editor's Note: Filings stamped in Docket Section August 31 but not made available for copying until 9/1/98]

Attached hereto are the following motions for filing in the above referenced proceeding:

Request of the City of Fort Worth, Texas, For Disclosure By the Department

Motion of the City of Fort Worth, Texas, for Additional Time

The Department's current schedule, ordered without consultation as far as Fort Worth knows with any of interested parties, is unreasonable and does not allow due process of law. There is no ''emergency" here. To Fort Worth's knowledge, no interested party has advised the Department of any "emergency."

Motion of the City of Fort Worth, Texas, to Dismiss Proceeding

Although Fort Worth shares the view of the Department that the legal issues pending before the Texas courts and the United States District Court for the Northern District of Texas must be resolved, Fort Worth disagrees that the Department may inject itself into the pending judicial proceedings to "rule on" federal law issues joined in those proceedings, as it proposes to do. With all respect for the Department, Fort Worth strongly objects to this proceeding and moves the Department to dismiss the proceeding as a violation of the Constitutional requirement of separation of powers and well-established and extremely important principles of federalism.

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

September 1, 1998

Petition for Reconsideration of Order 98-8-29 and Motion for Enlargement of Time of the Dallas-Fort Worth International Airport

Dallas/Fort Worth specifically requests that Issue 4 regarding the DFW Airport Use Agreement be deleted, and that a new issue be added dealing with Continental's holding out of nationwide Love Field service on its Love-Houston flights. To allow the Department time to consider this Petition, Dallas/Fort Worth submits that the Department should act immediately and rule that the due date for comments be enlarged to the later of October 8, 1998, or 30 days after the Department rules on this Petition.

Exhibit 1: Continental Express Advertisement for Service at Love Field

Counsel: Bagileo Silverberg, Michael Goldman, 202-944-3305 / Shannon Gracey, RH Wallace, 817-336-9333

Motion of American Airlines for an Extension of Time and for Clarification of Order 98-8-29

OST-98-4363 | September 2, 1998

In addition to seeking the requested extension of time, American asks the Department to state, in a clarifying order, the statutory basis for its assertion of jurisdiction to decide issues that are currently pending in Texas state courts. American also asks the Department to state whether its proceeding is an adjudication or a rulemaking. Having a response from the Department on these questions will assist the parties in understanding the nature of this proceeding, and in preparing their comments. In view of the importance of this matter to all interested parties, American requests that the Department rule on this motion by the close of business on Thursday, September 3, 1998.

Counsel: Carl Nelson, Jr., 202.496.5647

Response of Legend Airlines to Petition for Reconsideration of Order 98-8-29 and Motion for Enlargement of Time of the Dallas-Fort Worth International Airport and The Motion of the City of Fort Worth and to American Airlines Extension of Time

Consolidated Answer of Southwest Airlines to Motion for Extension of Time

For the thirty years that the American/DFW/Fort Worth parties have fought to extinguish Love Field competition and strengthen their stranglehold over area travelers, "lack of resources" was never a problem. Their latest submission of frivolous motions to the Department in order to delay service by Continental Express and Legend Airlines while their state court proceeding provides them with additional relief from competition is an abuse of the Department and its employees. Love Field operations are governed by the Wright and Shelby Amendments. All parties understand that reality, although some wish the two acts were "optional." The Department has exercised its clear statutory authority to interpret federal issues affecting interstate commerce and impacting communities throughout the country. As Herb Kelleher stated, Love Field service "is a matter of national concern." The importance of the Love Field service proceeding cannot be derailed by parties intent on rebelling against federal authority and supremacy and their obvious attempts to circumvent the laws of the United States.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

The parties have not demonstrated any valid reason for a longer extension.

Counsel: Southwest, Robert Kneisley, 202-682-4534

Consolidated Answer of Continental Express

OST-98-4363 | September 3, 1998

Consolidated Opposition of The City of Dallas to Motions to Dismiss and to Enlarge Time

The most egregious effort to prevent the Department from deciding the very aviation law issues entrusted to its jurisdiction is Fort Worth's motion todismiss the Department's proceeding altogether. Given the fact that theDepartment has repeatedly reviewed and decided the scope and applicability of theWright Amendment and determined pre-emption issues, the mere fact that courtproceedings are also under way does not preclude the Department from reaching itsown decisions on the important federal aviation issues at stake. Litigants will doubtless debate the effect of the Department's determinations, but Fort Worth hasprovided no reason the Department should shirk its duty to continue deciding theLove Field issues it has dealt with for years. Finally, the Fort Worth claim that theDepartment's decision to expedite action prior to judicial decisions on motions forsummary judgment and the Department's prompt issuance of a letter on itslongstanding interpretations of the Love Field legislation and related factual issuesreflect "agency bias" is plainly absurd.

Counsel: Crowell Moring, Bruce Keiner, 202-624-2615

Answer of Delta Air Lines

Dallas believes that DOT "got it right" in the Department's Order Instituting Proceedings, that the proceeding is necessary and appropriate and should continue, and that the procedural schedule set out by the Department is both achievable and appropriate. Dallas requests that the Motions filed by the Moving Parties be denied, and that DOT's order denying additional time be issued by the close of business today, September 3, so that the parties might complete their comments in a timely manner.

Counsel: Carrington Coleman, James Coleman, 214-855-3000 / Spiegel McDiarmid, 202-879-4000

Additional time for comments is needed. Fourteen days is not sufficient to permit Delta, which is not a party to the Love Field litigation, to familiarizeitself with, and prepare meaningful comments on, the complex and controversial issues raised in the instituting order. Delta supports the motions for more time andrespectfully requests that the Department extend the time to submit commentsuntil at least October 9, 1998.

Counsel: Delta and Shaw Pittman, Robert Cohn, 202-663-8060

Re: Correspondence of The Love Field Citizens Action Committee

Order 98-9-5 | OST-98-4363 | Issued and Served September 3, 1998

PROCEDURAL ORDER

We have decided that the parties should respond to the Fort Worth motions for dismissal and disclosure in their comments and reply comments. Any party that believes we should not – or may not – issue the rulings contemplated by Order 98-8-29 should present its arguments on that point in its comments.

We will consider all such arguments before issuing any final order in this proceeding. We will not grant Fort Worth’s motion for disclosure at this time. We will grant in part the DFW Board’s request to modify the scope of the issues. We will not delete the issue involving the enforceability of DFW use agreements.

We do not agree with the DFW Board at this time that its dispute with Continental and Continental Express over Continental Express’ intent to operate flights between Love Field and Cleveland necessarily will be resolved on state law grounds. We will, however, grant the DFW Board’s request to consider its contention that a major airline may not hold out through service to points beyond Houston for passengers originating at Love Field (except points within Texas and the states bordering on Texas).

By: Charles Hunnicutt

OST-98-4363 | September 2, 1998

By: Russ Stewart, Co-Chair

Re: Correspondence from State Senator John Carona

Memorandum of Airports Council International, North America and The American Association of Airport Executives in Response to Order 98-8-29

OST-98-4363	September 22, 1998	Comments of Allied Pilots Association in Response to Order 98-8-29 and 98-9-5
	September 21, 1998	Comments of Southwest Airlines Pilots Association

Love Field Service Interpretation Proceeding

OST-98-4363

September 22, 1998

Counsel: Patricia Hahn, ACI, 202.293.8500

OST-98-4363	September 22, 1998	Comments of American Airlines, Inc.
		Appendix of Exhibits

Counsel: Carl Nelson, Jr., 202.496.5647

OST-98-4363

September 22, 1998

Comments of Continental Express, Inc.

Counsel: Crowell Moring, R. Bruce Keiner, 202.624.2615

OST-98-4363

September 22, 1998

Comment of the City of Dallas

Counsel: Speigel McDiarmid, Pablo Neusch, 202.879.4000

OST-98-4363	September 22, 1998	Comments of The Dallas-Fort Worth International Airport Board
		Index of Exhibits

Supporting Exhibits, Volume 1

Supporting Exhibits, Volume 2

Supporting Exhibits, Volume 3

Counsel: Bagileo Silverberg, Michael Goldman, 202.944.3305

OST-98-4363	September 22, 1998	The City of Fort Worth's Statement of Objections and Comments
		Appendix in Support of Its Objections and Comments

Fort Worth respectfully requests the Department to dismiss this proceeding for the reasons set forth above and in Fort Worth's earlier-filed Motion to Dismiss. Should the Department proceed, however, Fort Worth respectfully requests the Department to rule in Fort Worth's favor on each issue presented.

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363

September 22, 1998

Comments of Legend Airlines, Inc.

Counsel: Ungaretti Harris, Edward Faberman, 202.778.4460

OST-98-4363

September 22, 1998

Comments of City and County of San Fransisco

Counsel: Morrison Foerster, G. Brian Busey, 202.887.1500

OST-98-4363

September 22, 1998

Comments of Southwest Airlines Co.

Counsel: James Parker, VP, General Counsel

Love Field Service Interpretation Proceeding

OST-98-4363

September 29, 1998

Reply Memorandum of Greater Orlando Aviation Authority in Response to Order 98-9-29

Counsel: Egerton van den Berg, 407.825.2049

Love Field Service Interpretation Proceeding - OST-98-4363 - October 2, 1998

OST-98-4363

Sepember 24, 1998

Comments of Southwest Airlines Pilots' Association
Added 10/6

By: Captain John Kramer

Motion for Oral Argument of Dallas-Fort Worth International Airport Board

OST-98-4363

October 6, 1998

Love Field

Pursuant to Rule 18 of the DOT's Rules of Practice (14 C.F.R. § 302.18), the Dallas-Fort Worth International Airport Board ("DFW Airport") respectfully requests that the Department conduct an oral hearing before it renders its decision in this proceeding interpreting federal law issues. As discussed more fully below, DFW Airport believes that oral argument should be held for the following reasons: (1) this proceeding involves complex and important federal law issues that would ordinarily be decided by a court based upon written briefs and oral argument; (2) the decision rendered could have significant and far-reaching consequences for all involved parties; and (3) oral argument would ensure that the Department decisionmaker decides the case based upon a full record that includes responses to any new arguments raised in the reply comments.

Counsel: Bagileo Silverberg, Michael Goldman, 202-944-4363

OST-98-4363

October 5, 1998

Letter from Fort Worth Chamber of Commerce to Rodney Slater - Added 10/7

City of Dallas Answer in Opposition to Motion for Oral Argument

OST-98-4363	October 8, 1998	Surreply Comments of American Airlines	Love Field
		Tab A
		Tab B
		Verification
	October 8, 1998	Motion of American Airlines for Leave to File Surreply Comments

Counsel: American and Locke Purnell, Michael Powell, 214-740-8520

OST-98-4363

October 8, 1998

Love Field

Counsel: Spiegel McDiarmid, Rise Peters, 202-879-4000

OST-98-4363

October 8, 1998

Motion for Oral Argument of The City of Fort Worth

Love Field

Counsel: Fort Worth and Kelly Hart, Dee Kelly, 817-332-2500

Response of Legend Airlines in Opposition

OST-98-4363	October 9, 1998	Motion for Leave to File of the City of Fort Worth and Request for Limited Hearing	Love Field
		Service List
		Reporter's Record

The City of Fort Worth hereby moves for leave to file this pleading in the abovereferenced docket. This submission supplements the record by filing with DOT portions of a transcript containing statements by the attorney for Legend Airlines at a recent hearing before the state district judge in Fort Worth, Texas. As the Department knows, the judge has been presiding for nearly one year over litigation which addresses the very issues -- and others -- which DOT is considering in this proceeding.

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363

October 9, 1998

Love Field

Legend Airlines, Inc. ("Legend") opposes all motions for oral argument and for delay in the comment period in Order 98-8-29. These are not legitimate pleas to gain additional time to comment or to expand the record; instead, they represent yet another delaying tactic by the group of three to close down all proposed or actual airline competition in the Dallas-Fort Worth area. While DFW, American and Fort Worth make these requests for additional time, their army of lawyers is besieging the state court in Fort Worth, trying to accelerate efforts to foreclose all new service at Love Field because, in their view, the Department is biased and the issues are local, not federal issues.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

Response of Legend Airlines in Opposition to The City of Fort Worth's Motion

OST-98-4363	October 12, 1998	Motion of City of Fort Worth for Leave to Supplement Record
		Service List

The City of Fort Worth hereby moves for leave to supplement the administrative record to include the enclosed materials which Fort Worth received after the close of business on Friday, October 9, 1998 from Legend Airlines and Continental Airlines. These materials were provided to Fort Worth by those parties in response to a discovery request made by the City in the pending state court litigation. These documents -- even though obviously not a comprehensive account -- show extensive ex parse contacts with DOT decisionmakers on the merits of the matters the Department is considering by representatives of Legend and Continental. These contacts occurred both before and after DOT opened this public proceeding for participation by others. None of this material has apparently been placed in the public docket. Fort Worth respectfully requests that these documents and all other documents regarding ex parse contact with the Department be placed in the public docket.

Exhibits

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363

October 13, 1998

Love Field

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

OST-98-4363	October 9, 1998	Re: Submission of Study by Love Field Citizens Action Committee	Love Field
	Exhibits Added 10/15	Attachment: Impact of Expanded Love Field Operations on Dallas-Area Roadways, April 1998
		Figure 1: Study Area
		Figure 2: Mockingbird Study Limits
		Figure 3: First Row Intersections
		Figure 4: Second Row Intersections
		Existing Level of Service
		Potential Level of Service and Delay
		Table 5/Figure 5: Additional Mockingbird Delay in Time and Money/Additional First and Second Row Intersections Delay in Hours
		Table 6/Table 7: Additional Delay in Hours/Costs Associated with Additional Delay
		Impacts to the Dallas North Tollway
		Figure 6: Alternate Routes to Avoid Congestion
		Figure 7: Beverly Drive Study Limits (Impacts to Beverly Drive in Highland Park)
		Summary
		Appendix A: MOCKINGBIRD LANE (Long)
		Appendix B: BEVERLY DRIVE

By: Russ Jewert

Response of Legend Airlines to the Comments of the Love Field Citizens Action Committee

OST-98-4363

October 15, 1998

Love Field

It is important that the record reflect the true interests of the Committee. The Committee is supported by American Airlines. Many of the arguments made in the Committee's Department filings have also been made in radio, newspaper and bus advertisements paid for by American.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

OST-98-4363	October 19, 1998	Motion of City of Fort Worth for Leave to File an Unauthorized Document and Motion to Supplement Record	Love Field
	Added 10/20	Deposition of T. Allan McArtor - Part I
		Deposition of T. Allan McArtor - Part II
		Deposition of T. Allan McArtor - Index
		Exhibit 1: First Amended Notice of Oral Deposition
		Exhibit 2: Counsels for the DOT and FAA
		Exhibit 3: 6/16/98 Letter from T. Allan McArtor to Nancy McFadden, DOT General Counsel
		Exhibit 4: 6/24/98 Letter from Edward Faberman to Nancy McFadden
		Exhibit 5: 11/19/97 Letter to Nancy McFadden (Re: Bob Crandall) from Mr. Faberman and Supporting Materials
		Exhibit 6: 6/3/98 Letter to Nancy McFadden from Mr. Faberman, Re: Upcoming Meeting
		Exhibit 7: 9/18/98 Letter to Ms. McFadden from Mr. Faberman, Re: Recent Developments
		Exhibit 8: 7/7/98 Letter to Ms. McFadden from Mr. Faberman, Re: Ft. Worth Circus
		Exhibit 9: 6/24/98 Letter to Ms. McFadden from Mr. Faberman, Re: Support of American
		Exhibit 10: 6/22/98 Letter to Ms. McFadden from Mr. Faberman, Re: Litigation Update
		Exhibit 11: 10/15/97 Letter to Tom Ray, DOT from Edward Faberman, Re: Discussion With Paul Olsen
		Exhibit 12: 7/15/98 FAX to Tom Ray from Edward Faberman, Re: Alternative Legal Actions
		Service List

The testimony of Mr. McArtor confirms, in detail, the extensive behind-the-scenes contacts which Mr. McArtor and other representatives of Legend have had for many months with DOT decision makers. These contacts addressed the merits of the very issues the Department is considering in this proceeding. Moreover, the deposition shows that these contacts did not cease after the Department commenced the public stage of this proceeding.

Counsel: Kelly Hart, E. Glen Jonson, 917.332.2500

Motion of Legend Airlines to Supplement Record and Request for Discovery by the Department

OST-98-4363	October 20, 1998	Report on Status of 'Fort Worth Action'	Love Field
		Partial Summary Judgment and Order

In support of the City of Fort Worth's Motion to Dismiss, the City encloses herewith the Partial Summary Judgment and Order entered October 15, 1998 by the trial court in the action styled and number City of Fort Worth, Texas v. City of Dallas, Texas, et al., Cause No. 48-171109-97 (the "Fort Worth Action"). Fort Worth would respectfully point out to the Department that this Judgment and Order addresses four of the five issues presented by this interpretative proceeding.

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363

October 20, 1998

Love Field

On October 16, 1998, Tarrant County, Texas, Judge Bob McCoy endorsed and supported the American parties' efforts to continue the monopoly stranglehold on the Dallas/Fort Worth market. Judge McCoy signed an American-drafted Order providing the "anti-competition" relief that the plaintiff sought in City of Fort Worth v. City of Dallas, No. 48-171109-97. For the reasons that follow, Legend Airlines, Inc., ("Legend") respectfully requests that a copy of Judge McCoy's Order, other related documents, and documents disclosed by the Department pursuant to this Motion, be added to the Record in this proceeding.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

OST-98-4363	October 20, 1998	Forth Worth's Motion for Leave to Supplement the Administrative Record	Love Field
		Service List
		Exhibit: Objections and Answers to Deposition on Written Questions

The City of Fort Worth hereby moves for leave to supplement the administrative record to include the enclosed Objections and Answers to Deposition of Rebecca Cox on Written Questions, which Fort Worth received after the close of business on Monday, October 20, 1998 from Continental Airlines, Inc. and Continental Express, Inc. These answers were provided to Fort Worth in response to a discovery request made by Fort Worth in the pending state court litigation. These answers--though obviously not a comprehensive account--show extensive ex parte contacts between Continental and decisionmakers in the Department regarding the merits of this proceeding. Fort Worth respectfully requests that these answers be placed in the public docket.

Fort Worth also renews its motion to dismiss, or alternatively, its request for discovery and oral hearing.

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363	October 23, 1998	Supplemental Motion to Disclose All Ex Parte Contacts an Communications	Love Field
		Service List

Fort Worth denies it has had any ex parse contacts with the Department since this proceeding was instituted. In fact, Fort Worth had only two brief and incidental contacts prior to the commencement of this proceeding.

Counsel: Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363	October 26, 1998	Response to Legend Airlines' Motion to Supplement Record	Love Field
	Exhibits Added 10/27	Tab A: Summary Judgment on Entire Case
		Tab B: Brief in Support of Intervenor-Plaintiff American Airlines' Motion for Summary Judgment
		Tab C: American Airlines' Response to Continental Airlines and Continental Express' Motion for Final Summary Judgment

As a small sample--a very small sample--of the kind of briefing that occurred in the case, American Airlines is attaching to this response its brief in support of its motion for summary judgment filed in the Fort Worth district court (Tab B) and its response to Continental's motion for summary judgment (Tab C). Were American to file the entire summary judgment record in this docket, it would more than double the amount of filings in this docket. At bottom, the summary judgment was carefully considered and was based on an ample record and more-than-ample briefing.

Counsel: American and Locke Purnell, Michael Powell, 214-740-8800

OST-98-4363	October 27, 1998	Response of Legend Airlines to Fort Worth's/American's Motions to Supplement the Record	Love Field
		Exhibit A: Legend Chief Says Airline has Little Clout Compared with American, Star Telegram, 10/21/98
		Exhibit B: AMR Reports Record Third Quarter
		Exhibit C: Turbulent Airline Industry is Reflected in Mixed Results for Four Large Carriers, WSJ, 10/22/98

First and foremost, it continues to amaze that Fort Worth pursues this line of argument when, by Fort Worth's definition of 'ex parte" contacts, Fort Worth, DFW and American have admitted to numerous "ex parte" contacts with the Department and there are possible contacts which have yet to be acknowledged by these parties. The American parties have had a long list of "ex parte" contacts with Department officials --including the Secretary (as evidenced by the "ex parte" meeting with Secretary Slater on December 6, 1997). Since the American parties have not disclosed this December 6 meeting, there may have been other ex parte contacts between the American parties and the Secretary. Fort Worth is operating under the assumption that by labeling its ex parte meetings with the Department as "incidental,"' they can somehow escape the type of criticism that they initiated regarding ex parte communications towards Legend and Continental Express. Furthermore, Fort Worth tries to extract their meetings from controversy because they occurred "prior to the commencement of this proceeding." It is interesting that they try to distinguish their meetings based on this time frame, but fail to make this distinction when finger pointing and name calling in regard to Legend's contacts.

Counsel: Ungartetti Harris, Edward Faberman, 202-778-4460

Motion of the Dallas/Fort Worth International Airport Board

OST-98-4363

October 30, 1998

Love Field

The DFW Airport Board urges the Department to respond favorably to this request and agree to act as a mediator to bring the Love Field disputes to a mutually-acceptable resolution. To give mediation a chance to succeed, the Department should also delay issuance of its order on the Love Field federal law issues while mediation is underway and satisfactory resolution through mediation appears likely.

Counsel: Bagileo Silverberg, Michael Goldman, 202-944-3305

Legend Airlines, Inc. - Response to Motion

OST-98-4363

November 3, 1998

Love Field

If DFW is serious about the mediation proposal, it should renew it after the Department has issued a ruling in this proceeding and has issued a 401 certificate to Legend. Until the Department has taken those actions, there is no basis for mediation, particularly if the objective (besides delay) is to eliminate or reduce the authorities contained in the Wright and Shelby Amendments. The Department has no such authority.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

Editor's Note: The Docket Section Failed to Release this Pleading to the Public on November 3rd.

Answer of Continental Express to Motion of DFW Intl Airport Board

OST-98-4363

November 10, 1998

Love Field

DFW and its allies, primarily the City of Forth Worth and American Airlines, have attempted from the beginning to prevent or delay a decision by the Department on the federal law issues affecting service at Love Field, and DFW's latest motion is simply another attempt to delay the expansion of competition for DFW at Love Field in violation of the Airline Deregulation Act, the Wright Amendment and the Shelby Amendment. Between DFW's submission of a stack of exhibits nearly eight inches thick, Fort Worth's attempt to intimidate the Department by raising spurious questions about possible relationships between Continental Express, the Department's General Counsel and her former employer with no basis in fact whatever and American's motions for deferral and submission of an unauthorized surreply, every action by the opponents of new Love Field service has been calculated to prevent or delay a decision by the Department on the federal law issues entrusted to it.

Counsel: Crowell Moring, Bruce Keiner, 202-624-2615

OST-98-4363

November 10, 1998

Response of City of Dallas to DFW Board's Motion for Deparmtent Mediation

Love Field

Dallas does not believe it would be appropriate, in the context of this adjudicative proceeding, for the Department to assume the role of a mediator. Department officials and employees are able to serve in such a capacity in other contexts (such as the recent Northwest Airlines strike), and might be able to facilitate a settlement of certain issues concerning Love Field once the parameters of federal law have been clarified. However, it would not be proper for a Department official or employee to become a "mediator" where the Assistant Secretary has been identified as the Department decisionmaker in this adjudication of disputed legal issues.

Counsel: Spiegel McDiarmid, Rise Peters, 202-879-4000

OST-98-4363

November 10, 1998

Answer of Southwest Airlines to Motion of DFW Intl Airport Board

Love Field

The Department instituted this proceeding to resolve the critical federal law issues involved in the Love Field dispute. The parties have submitted voluminous comments on those issues, and the matter stands ready for a decision by the Department. We urge the Department to fulfill the purpose of this proceeding by moving forward to its decision expeditiously. Following the issuance of the Department's rulings, the parties will have a clearer understanding of the federal law issues governing the Love Field controversy. At that point, mediation under the Department's auspices might be appropriate. Holding the present proceeding in abeyance for mediation at this point, however would only prolong the uncertainty which has given rise to the dispute in the first place.

Counsel: Southwest, Robert Kneisley, 202-682-4534

OST-98-4363	November 20, 1998	Motion of Legend Airlines for Leave to Supplement the Administrative Record	Love Field
	Exhibits Added Nov 23rd	Reply Brief of Amicus Curiae, American Airlines, Inc.

Because it has decided to seek opportunities to control facilities at Love Field, American has once again contradicted itself and the arguments filed in this docket, espousing the existence of mythical agreements limiting airline competition. As a carrier now seeking to increase operations at Love Field, American has once again discovered the ADA. It is time for the Department of Transportation to put an end to these groundless claims and constantly changing positions and to immediately issue its Order in this proceeding and a 401 certificate to Legend so that it may operate as proposed in the federally controlled interstate aviation system.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

Love Field Service Interpretating Proceeding

OST-98-4363	December 1, 1998	City of Ft. Worth's Supplemental Motion to Dismiss Administrative Proceeding
		Service List
		Exhibit A: Motion to Dismiss Appeal By Appellants Continental Airlines and Continental Express

In granting the temporary injunctions prohibiting Continental Express, Inc. from flying from Love Field to Cleveland, the State Court had to conclude that the Concurrent Bond Covenants between Dallas and Fort Worth were enforceable and not preempted and Hat Dallas had the proprietary power to restrict interstate traffic from Love Field. Under Texas procedure, an appellant can take an accelerated appeal from the granting of a temporary injunction. Continental Airlines, Inc. and Continental Express, Inc. took such an appeal. The issues of preemption and proprietary power were thoroughly briefed in the Court of Appeals, and the oral argument took place in the case on November 19, 1998. The case is under submission presently. However, last Wednesday, November 25, 1998, Continental filed a motion to dismiss the appeal, a copy of which is attached hereto as Exhibit "A".

Counsel: Kelly Hart, Dee Kelly for City of Ft. Worth, 817.332.2500

OST-98-4363

December 7, 1998

Answer of American Airlines to Motion of Legend Airlines

Love Field

Although Legend has sought to present itself before the Department and the public as a spokesman for airline competition, Legend is actually seeking the most anti-competitive position possible--an exclusive niche to operate scheduled long haul passenger service from Love Field, protected from competition for passengers at Love Field by the DFW Airport Board's Use Agreements.

American restates the Conclusion on pages 83-84 of the Comments of American Airlines, Inc., filed September 22, 1998.

Counsel: American, Carl Nelson, 202-496-5647 and Winston Strawn, James Burnley, 202-371-5700

OST-98-4363	December 2, 1998	Brenda Ford Daouk - Letter	Love Field
OST-98-4363	November 5, 1998	Teamsters Local 19 Airline, Aerospace and Allied Employees - Letter	Love Field

Love Field Interpretation Proceeding

OST-98-4363

December 10, 1998

Re: City of Dallas' Anwer to Fort Worth's Supplemental Motion to Dismiss

Editor's Note: PDF version added at 10:10 am ET Dec 11th

Love Field

Love Field Interpretation Proceeding

Despite Fort Worth's generic reference to "this case," the issues presented in this proceeding are not identical to those presented in the state court lawsuit. Although Fort Worth now insists that "there is absolutely no reason why the Texas court system cannot determine the federal law questions in this case,"' Fort Worth recently informed the state court that several federal law questions are not before that court. Fort Worth's opposition to a Motion to Clarify filed by Dallas in the Texas state court litigation emphasized the narrow scope of the issues presented to that court. According to both Fort Worth and American Airlines, the issues of "through-ticketing" or "double ticketing" as a component of "service beyond Texas and the four contiguous states" are not before the state court. Such issues, of course, are critical to any interpretation of the Wright and Shelby Amendments and must be resolved by the Department together with all of the other issues in this proceeding. In particular, both Fort Worth and American reminded the state court that the Department is considering the question whether Continental's current "through-ticketing" beyond the four contiguous states using regional jets between Love :Field and Houston is authorized by the Love Field Amendments. At the same time, there are questions of state law before the Texas court that are not presented to the Department—notably, whether an alleged informal, unwritten, undisclosed "agreement" to modify the terms of a Concurrent Bond Ordinance may be enforced by or against a Texas municipality. Accordingly, while some critical questions of federal aviation law have been presented in both this proceeding and the state lawsuit, the two actions are not mirror images of each other. A procedural decision by one party in the state lawsuit cannot justify an abrupt dismissal of this proceeding.

Counsel: Spiegel McDiarmid, John Corbett, 202-879-4000, corbettj@speigelmcd.com

OST-98-4363

November 5, 1998

Comments of North Texas Commission

Love Field

By: CH Moore, Chairman

Love Field Interpretation Proceeding

OST-98-4363

December 14, 1998

Letter in Response to William T. Solomon and John
V. Roach

Love Field

Letter of General Counsel in response to William T. Solomon and John V. Roach on behalf Metroplex Aviation Coalition re Support of Proposal by the Dallas/Fort Worth International Airport Board.

Counsel: FAA, General Counsel, Nancy E. McFadden

OST-98-4363	December 18, 1998	Motion of American Airlines for Leave to Supplement the Administrative Recod with Certified Copy of Final Judgment	Love Field
		Final Judgment	Cause No. 48-171109-97

American moves for leave to supplement the administrative record by filing the attached certified copy of the Final Judgment. This Final Judgment provides additional compelling reasons for this Department promptly to dismiss this proceeding.

Counsel: Locke Purnell, Michael Powell, 214.740.8520

OST-98-4363	December 21, 1998	Objection of American Airlines to Reliance on DOT 1992 Wright Amendment Study	Love Field
		Attachments: FOIA Requests

The 1992 Love Field Study is seriously flawed. Yet, the Department continues to reference that study. See. e.q.. Order 98-7-6 (July 8, 1998) at n. 15; Letter, June 30, 1998, Ms. Nancy E. McFadden, General Counsel, to Mr. David N. Siegel, President, Continental Express, Inc. In July 1998, before the Department instituted this proceeding, American's counsel presented a Freedom of Information Act ("FOIA") Request to the Department, requesting release of the Department's records pertaining to the 1992 Love Field Study. That FOIA request was received by the Department on July 20, 1998, and was assigned identification number FY98-269. A copy of all correspondence regarding that FOIA request is attached.

Counsel: American and Locke Purnell, Michael Powell, 214-740-8520

Order 98-12-27 OST-98-4363	Issued December 22, 1998 Served December 23, 1998	Declaratory Order	HTML
Order 98-12-28 OST-98-4363	Issued December 22, 1998 Served December 23, 1998	Order on Procedural Motions	HTML

By: Charles Hunnicutt

Love Field Service Interpretation Proceeding - PDF Files Added 12/29

OST-98-4363	December 22, 1998	The Dallas Parties - Letter	Love Field
OST-98-4363	December 16, 1998	Ex Parte Letter to the Honorable Kay Bailey Hutchison and Kay Granger	Love Field
OST-98-4363	December 17, 1998	Spiegel & McDiarmid - State Court Proceeding	Love Field

Love Field Interpretation Service Proceeding

OST-98-4363	January 12, 1999	Petition of Dallas/Fort Worth International Airport Board for Reconsideration of Declatory Order 98-12-27	Love Field	HTML
		Exhibit A: Final Judgement

DFW Airport specifically requests that the Department reconsider the validity of its rulings on three federal law issues as set forth in sub-rulings (i), (ii), and (iii) of the Concluding Paragraph 1 at pages 61-62 of that Order. These issues were previously decided by District Judge Bob McCoy in City of Fort Worth. Texas v. City of Dallas. et al., Tarrant County District Court No. 48-171109-97 ("Fort Worth case"). The Department's rulings are directly contrary to the validly issued rulings in that state court case, which rulings, consistent with 28 U.S.C. § 1738, must be given full faith and credit by a federal administrative agency such as the DOT. Town of Deerfield N.Y. v. FCC, 992 F.2d 420 (Fd Cir. 1993). Accordingly, DFW Airport requests that DOT, in light of the state court decision, vacate sub-rulings (i), (ii), and (iii) because those rulings are inconsistent with Judge McCoy's December 16, 1998 Final Judgment in the Fort Worth case.

Counsel: Bagileo Silverberg, Michael Goldman, 202-944-3305 & Shannon Gracey, RH Wallace, 817-336-9333

OST-98-4363	January 12, 1999	The City of Fort Worth's Petition for Reconsideration of Order 98-12-28	Love Field	HTML
OST-98-4363		The City of Fort Worth's Petition for Reconsideration of Order 98-12-27	Love Field	HTML

It is also no excuse that Fort Worth has obtained limited discovery from Legend and Continental. Several critical ex parte communications between the Department and those parties have "disappeared". Among the missing items is a June 28th draft of the Department's response to oral questions posed to it by Continental Express', which was sent by Tom Ray to Rebecca Cox, lobbyist for Continental. Although Rebecca Cox testified she received the letter from Tom Ray on June 28, 1998, Continental claims the document has been lost. As a result, if Fort Worth is to obtain this key evidence, it must be from the Department.

Because the Department intimated that its decision might be different if evidence was presented on certain issues, the City of Fort Worth joins with the DEW Airport Board in petitioning the Department for a reconsideration of this matter in light of the evidence referenced in the DEW Airport Board's Petition for Reconsideration. Alternatively, Fort Worth petitions the Department for a hearing. With a full understanding of the parameters of this proceeding, Fort Worth will present evidence supporting its position that the longstanding limitations on Love Field are necessary for the public convenience and safety of the Dallas-Fort Worth area.

Counsel: City of Fort Worth and Kelly Hart, Dee Kelly, 817-332-2500

OST-98-4363

January 20, 1999

Reply of Legend Airlines to Petitions of The City of Fort Worth and DFW International Airport

Scanned Version

Love Field

Love Field Interpretation Service Proceeding

In an attempt to create an inaccurate portrayal of the Love Field Interpretation Proceeding and once again attack Departmental officials, Fort Worth and DFW have filed another series of petitions in this docket: Fort Worth’s Petitions for Reconsideration of the Declaratory and Procedural Orders, and DFW’s Petition for Reconsideration of the Declaratory Record. In the interest of preserving a factual chronology and account of this proceeding, Legend hereby submits this response to dispel the flagrant mischaracterizations presented by these parties.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

OST-98-4363

January 22, 1999

Consolidated Answer of Continental Express to Petitions for Reconsideration

Love Field

After dumping piles of documents in the Department's docket without identifying specific information supporting DFW's patently absurd claim that the world's second largest airport is jeopardized by a limited number of additional flights with aircraft seating 56 or fewer passengers at a far smaller facility, DFW now cites specific testimony on reconsideration. Prior to this time, other parties submitted specific information demonstrating the absurdity of the claim that DFW International Airport would be threatened by operations at Love Field in compliance with the Wright and Shelby amendments, but DFW failed to rebut that is too late now. Fort Worth also complains that it was not given an opportunity to submit evidence demonstrating that DFW would be jeopardized by the operations proposed at Love Field. Clearly, Fort Worth was on notice that the Department would be considering whether the limitations it has proposed at Love Field are preempted by federal law. Moreover, Fort Worth knew that the balance between the federal interest in precluding state regulation of airline routes and services and airport proprietors' rights depended on a rational conclusion, after extensive study, that limitations on airport operations were required. Finally, the Department extended the time available for comments and allowed Fort Worth and other parties to submit numerous pleadings which were otherwise unauthorized. In light of the positions taken by Fort Worth in the courts which have considered these issues claiming that DOT has neither expertise nor justification for ruling on these issues, it is particularly ironic that Fort Worth now seeks a hearing before the Department. The Department should recognize Fort Worth's ploy for what it is, a desperate effort to delay or prevent competition among airports in the Dallas/Ft. Worth area as specified in the Shelby amendment.

Counsel: Crowell Moring, Bruce Keiner, 202-624-2615

OST-98-4363	January 22, 1999	Opposition of City of Dallas to Petitions for Reconsideration	Love Field
	Exhibits Added Jan 25th	Motion to Clarify Summary Judgment Order	Cause No. 48-171109-97
		Order Concerning Motion to Clarify
		Response of Intervenor American Airlines to Dallas's Motion to Clarify Order
		Comments of the City of Dallas
		Fort Worth's Response to Motion to Clarify
		Dallas's Motion to Dismiss or, In the Alternative, For New Trial
		Certified True Copy of DOT Order 98-12-27 Pt. 1 \| Pt. 2	Order 98-12-27
		Certified True Copy of DOT Order 98-12-28	Order 98-12-28
		Defendant's Motion for New Trial or to Modify Judgment
		Motion for New Trial or to Modify the Judgment
		Affidavit of E. Lawrence Vincent, Jr., Counsel for Continental and Continental Express

The Department need not, at this time, determine whether the evidence supports the conclusions asserted by the DFW Board or contrary conclusions urged by Legend and Continental. Indeed, determining the actual economic impact on DFW Airport of any particular level of service at Love Field would require studies and analyses of numerous complex and interrelated factors. The threshold legal question, however, is the standard for determining the type and scope of competitive impact that may properly be considered by Dallas as the proprietor of Love Field. If it is consistent with federal law and aviation policies for Dallas to restrict interstate passenger traffic serving Love Field in order to protect DFW Airport from competition and thus optimize its growth and development, then Dallas intends to take all actions "necessary, appropriate, and legally permissible" to accomplish the goals articulated in the 1968 Concurrent Bond Ordinance. However, if proprietary rights and powers do not encompass regulation for economic or other governmental purposes, then it serves little purpose to embark on the extensive studies and analysis that would be required to resolve the myriad of questions raised by the conflicting evidence on the potential impact of Love Field on DFW Airport.

Counsel: Dallas and Spiegel McDiarmid, Rise Peters, 202-879-4000

OST-98-4363	February 19, 1999	Additional Reply of Legend Airlines to City of Fort Worth's Petition and Petition of Dallas/Fort Worth International Airport	Love Field
		Attachments: Newspaper Articles

The campaign to stop increased competition in the Dallas-Fort Worth area has been raging for 30 years. The issues have not changed. The Love Field Interpretation Proceeding spanned tour months and allowed all parties ample time to submit any and all documents supporting their respective positions. The arguments raised by DFW are repetitive of the complaints, whining, and accusations they have raised in the press, state court, and before the Department's multiple proceedings. They are engaging in a coordinated effort to keep Department officials engaged in needless activity to protect American's stranglehold over the Dallas-Fort Worth market. The public interest, the Deregulation Act' and the future of competition must be put ahead of those who at every turn feign destruction of their empire.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

Edward P. Faberman - Ex Parte Letter

OST-98-4363

Dated March 24, 1999
Docketed March 26, 1999

Love Field

Ex Parte Letter of Edward P. Faberman re Declaratory and Procedural Orders closing the Love Field Interpretation Proceeding.

Counsel: Ungaretti Harris, Edward Faberman, 202-778-4460

Order 99-4-13
OST-98-4363

Issued April 13, 1999
Served April 14, 1999

Order on Reconsideration

Scanned Version

Love Field Interpretation Service Proceeding

Order on Reconsideration on Procedural Issues

The Department held this proceeding to state its interpretation of several federal statutes as they apply to an on-going dispute over additional airline service at Dallas' Love Field. The Department issued final orders interpreting those statutes, Order 98-12-27 (December 22,1998), and ruling on various procedural issues, Order 98-12-28 (December 22,1998). On the statutory questions, the Department primarily held that the City of Dallas as Love Field's owner could not bar airlines from operating services authorized by Congress. Our interpretation was consistent with the position taken by Dallas, Southwest Airlines, Continental Express, and Legend Airlines, but contrary to the position taken by the City of Fort Worth, the Dallas-Fort Worth International Airport Board ("the DFW Board"), and American Airlines.

By: Bradley Mims

Order 99-4-14
OST-98-4363

Issued April 13, 1999
Served April 14, 1999

Scanned Version

Love Field Interpretation Service Proceeding

The Department of Transportation denies the various requests by Fort Worth and the Dallas-Fort Worth International Airport Board that it modify findings and conclusions set forth in Order 98-12-28 and reaffirms the findings and conclusions made in that order

By: Bradley Mims

Ex Parte Letter to Mr. T. Allan McArtor

OST-98-4363

Dated June 29, 1999
Docketed July 8, 1999

Love Field

By: Michael J. Frazier, Acting Assistant Secretary for Governmental Affairs

OST-98-4363	November 16, 1999	Motion of American and City of Fort Worth for Stay Pending Review on Appeal and Expedited Consideration HTML	Love Field
		Service List

Counsel: Locke Liddell, Michael Powell, 214.740.8520 and Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363

November 18, 1999

Legend's Opposition to Motion of American Airlines and Fort Worth, Texas for Stay Pending Review on Appeal and for Expedited Consideration

Love Field

The City of Fort Worth and American Airlines have once again moved their conspiratorial campaign to Washington in their 30-year journey to prevent certain competitors from providing airline services in the Dallas-Fort Worth marketplace. It is interesting that the American parties claim that "the Fifth Circuit has exclusive jurisdiction over the DOT's Orders." These are the same parties that have argued that the Department and the Fifth Circuit should allow the state court to decide these issues. This action is simply the delay "de jour." At every step of this dispute (particularly before the Department), these parties have sought a stay, delay, additional proceedings, discovery, or total removal of these issues to a state court. These tactics have nothing to do with law or truth; instead they are raised to increase the costs of new entrants and to delay the startup of anyone who dares attempt to compete with the area's dominant air carrier.

Counsel: Ungaretti Harris, Edward Faberman, 202.639.7500

OST-98-4363	November 26, 1999	Answer of Continental Express to Motion to Stay Scanned Copy	Love Field
		Service List

Having failed to allege before the Department any grounds to meet the standards for granting a stay, American/Fort Worth's motion must be denied. Although American and Fort Worth may follow through with their threat to seek a stay in the Fifth Circuit, they will be precluded there from raising arguments not raised before the Department in seeking a stay. Thus, the Department should deny the American and Fort Worth motion for stay and expect the Fifth Circuit to do the same.

Counsel: Crowell Moring, Bruce Keiner, 202.624.2615rbkeiner@cromor.com

Love Field Service Interpertation Proceeding

OST-98-4363	December 2, 1999	Reply of American Airlines and the City of Ft. Worth, Texas HTML	Love Field
		Service List

Public Interest. The public interest is served by orderly judicial process. The status quo at Love Field has served the Dallas-Fort Worth metropolitan area for more than twenty years, and the public interest would not be served by this Department's or the FAA's attempting to upset that status quo before the Fifth Circuit has had an opportunity to conclude its study and render its decision on the pending petitions for review. There is also a public interest in the preservation of municipal contracts and joint municipal ordinances. There is a public interest in the protection of parties who have relied extensively on municipal contracts and joint municipal ordinances. Finally, the claims of Continental and Legend ring hollow. Both can bring the touted benefits of additional competition to the North Texas marketplace by operating from DFW Airport. The same is true of Ozark. Indeed, Continental's parent, Continental Airlines, Inc. already provides non-stop service between DFW Airport and Cleveland, Ohio. All rhetoric to the contrary, neither Continental nor Legend even purports to be a "low fare" airline.

Counsel: Locke Liddell, Michael Powell, 214.740.8520 and Kelly Hart, Dee Kelly, 817.332.2500

OST-98-4363	December 7, 1999	Legend's Response to Reply of American Airlines and City of Ft. Worth Scanned Copy	Love Field
		Service List

It is interesting that these same parties who have demeaned Department of Transportation employees in this proceeding use the word "respect" in their filing, calling upon the Department to "respect the jurisdiction of the Fifth Circuit." These are the same parties that have made every attempt to circumvent the federal process and to overturn Congressional action and the Department in state court. Perhaps these parties should take the first step in respecting the entire federal process by dismissing their actions in state court. Legend Airlines continues to expend resources to prepare for operation at Love Field under clearly enunciated federal authority as upheld by the Department's Orders.

Counsel: Ungaretti Harris, Edward Faberman, 202.639.7500

OST-98-4363	December 13, 1999	Surreply of Continental Express Scanned Copy	Love Field Service Interpretation Proceeding
		Service List

The Department cannot conclude that American and Fort Worth have a substantial likelihood of success on appeal in the Fifth Circuit. Although the movants claim that they have a substantial likelihood of success on the merits, they cite no support for this proposition other than the briefs submitted by American, Fort Worth and the other anti-competition forces supporting them in the Fifth Circuit. The arguments in those briefs have been rebutted amply by the Department, Legend and Continental Express. The movants seek to preserve the status quo at Love Field forever without regard to federal aviation law decisions reached by the Department, and their efforts to delay competition should not be rewarded by staying Federal Aviation Administration investigations of Dallas’s restrictions imposed on Love Field service at the behest of American, Fort Worth and the Texas courts.

Counsel: Crowell Moring, Bruce Keiner, 202-624-2500

Re: Legend Airlines Request For No Action

OST-98-4363
Order 98-8-29

December 28, 1999

Love Field Service Interpretation Proceeding

Mr. Secretary, Don Carty and his legions have decided that it is they who can decide what federal authorities will apply and what carriers can operate under which authorities. They have shown that they are prepared to spend millions of dollars as a cost of preventing competition. In light of this multi-year pattern of behavior, it is inconsistent with the public interest to approve any antitrust immunity for American or any of its officers. By approving new authority or alliances for American, you will be handing them additional resources to continue their assault against all competitors.

Although the Department has issued multiple orders and opinions refuting every claim raised by the American parties, if they continue to engage in these actions, they will prevail. It took Southwest 15 years to overcome the assaults against it. Southwest was able to survive that campaign because it was operating at the time. In today's marketplace, no new entrant can survive years of attacks. While all of us in business understand that we are in an extremely competitive environment and may find ourselves in litigation, these American-coordinated efforts cross all lines of reasonableness. The Department cannot
ignore this multi-year anti-competitive campaign when reviewing additional requests from these same parties for new international authorities.

It is important to take a stand for the American travelling public. American Airlines and its allies should be told that its latest request to increase its empire and resources with additional international authority will be put on hold until they can demonstrate that their domestic and international behavior is consistent with the principles of deregulation and federal law. Certainly, the Department would not approve additional authority for a foreign carrier if it was engaging in anti-competitive behavior in its home country.

Counsel: Legend Airlines, T. Allan McArtor