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OST-02-12550 |
| OST-02-12550 | June 21, 2002 | Application for U.S.- Ukraine Third-Country Codeshare Designation and Allocation of Frequencies | U.S.- Ukraine Third-Country Third-Country Codeshare Designation and Allocation of Frequencies with Swiss |
American Airlines, Inc. hereby applies for a U.S. Ukraine third-country codeshare designation and the allocation of 3.5 weekly frequencies.' American requests this authority in order to engage in third-country codeshare operations between the U.S. and Kiev, via Zurich, with Swiss International Air Lines Ltd. d/b/a Swiss (the new name of Crossair Ltd. d/b/a Swiss, effective July 1, 2002).
Swiss currently operates between Zurich and Kiev four days a week. American proposes to place the "AA" designator code on Swiss's Zurich-Kiev flights in order to carry U.S.Ukraine passengers connecting at Zurich from American's and Swiss's U.S. gateways (Boston, Chicago, Dallas/Ft. Worth, Los Angeles, Miami, New York (JFK and EWR), and Washington (IAD)).
With respect to frequencies, the U.S.-Ukraine Protocol allows a total of 18 weekly roundtrip frequencies for combination services, with codeshare frequencies counting as one-half a frequency. American believes that sufficient frequencies are available to satisfy its request for 3.5 frequencies.
Counsel: American, Carl Nelson, 202.496.5647, carl.nelson@aa.com
| OST-02-12550 | July 8, 2002 | Answer of United Air Lines | U.S.- Ukraine Third-Country Third-Country Codeshare Designation and Allocation of Frequencies with Swiss |
| Service List |
United does object to the allocation of 3.5 weekly frequencies to American. That carrier admits that it requires only two frequencies in order to code share on the four weekly Zurich-Kiev flights operated by Swiss. It seeks 3.5 frequencies, however, or enough to code share on daily service, "in anticipation of additional flights to Kiev by Swiss in the future." American Application at 1, n. l. Delta previously was awarded this same bilateral opportunity to code share on services to Odessa, but Delta's code-share services were terminated when it shifted its alliance to Air France.
The Department should not award frequencies to code share on the basis of such an open-ended "anticipation" of future service expansion. The frequencies to be awarded must come from a pool of 18 per week. At present, the other three designated carriers are each offering a daily code share to Kiev, using a total of 10.5 frequencies. If American were awarded 3.5, this would leave only four unallocated frequencies. United as well as Delta and Northwest may well need a total of four or more frequencies to support increased services to Kiev by their own partners before Swiss is able to increase its own services to daily.
Moreover, even if American were allocated 3.5 frequencies, the allocation would be subject to the usual 90-day dormancy condition. See, e.g., Notice of Action Taken, dated June 14, 2001, in Docket OST-96-1375. See also Order 00-11-1. American has no apparent expectation that Swiss will be able to increase its service to daily by any presently foreseeable future date. In all likelihood, therefore, any award of "anticipatory" frequencies would require American to apply for, and the Department to process a dormancy waiver to retain the frequencies after the 90th day of their non-utilization. The Department has previously denied American a waiver of the dormancy condition for U.S.-Ukraine frequencies where the application was based on similarly speculative plans as to future utilization. Order 02-3-24. United, therefore, urges that any favorable action on American's present request for U.S.-Ukraine frequencies be limited to two weekly and that its anticipatory request for 1.5 weekly frequencies beyond the two it requires be denied or dismissed without prejudice to its being resubmitted at such time as American's partner has announced firm plans to start a daily service.
Counsel: United and Wilmer Cutler, Jeffrey Manley, 202-663-6670, jmanley@wilmer.com
| OST-02-12550 | July 9, 2002 | Reply of American Airlines | U.S.- Ukraine Third-Country Codeshare Designation and Allocation of Frequencies (With Swiss International Air Lines d/b/a Swiss) |
As we explained in our application, American is seeking 3.5 frequencies in anticipation of daily service to Kiev by Swiss. Indeed, effective October 27, 2002, Swiss will increase its Kiev service to five days a week, requiring 2.5 frequencies. We expect that Swiss will be operating service to Kiev on a daily basis in due course. There are ample frequencies available in the unallocated pool to satisfy American's request. As United states, even with the allocation of 3.5 frequencies to American, 4.0 unallocated frequencies will remain, or enough for eight additional codeshare roundtrips.
In order to reduce unnecessary administrative burdens on the Department and on interested parties, American should receive an allocation of 3.5 weekly frequencies to serve Kiev by codesharing with Swiss. American hereby agrees that it will immediately return any unused frequencies for reallocation upon application by another U.S. carrier requiring such frequencies to operate additional Ukraine service
If, however, the Department determines to limit American's allocation, it should grant 2.5 frequencies, reflecting Swiss's five-days-a-week pattern of service between Zurich and Kiev as of October 27, 2002. American urges the Department to reach its decision in this matter promptly, so that we may commence codesharing service to Kiev with Swiss via Zurich at the earliest possible date, in competition with existing arrangements by United and Lufthansa via Frankfurt, by Delta and Air France via Paris, and by Northwest and KLM via Amsterdam.
Counsel: American, Carl Nelson, 202.496.5647, carl.nelson@aa.com
| OST-02-12550 | Filed June 21, 2002 Issued July 30, 2002 Available to Public August 5, 2002 |
Notice of Action Taken | U.S.- Ukraine Codeshare with Swiss |
We have granted American's unopposed request for an authorization to be designated as the fourth U.S. carrier to provide U.S.-Ukraine third-country code-share services. We have also decided to grant American 2.5 frequencies for its services and to dismiss, without prejudice, American's request for an allocation of 1 additional frequency to accommodate possible future service expansions by Swiss.
The record shows that Swiss operates (or has definite plans to operate) 5 days a week to Kiev, requiring 2.5 frequencies for American to provide third-country code-share services in the U.S.-Ukraine market. American and Swiss have not demonstrated any definite plans to use the 1 additional frequency requested. In these circumstances, we find that limiting American to the 2.5 frequencies it is demonstrably in a position to use is warranted in the public interest. Our action here will leave 6.5 frequencies unallocated among a total of 18, which are available for U.S.- Ukraine services. American may apply for additional frequencies at such time as Swiss has definite plans to increase its services to Kiev.
By: Paul Gretch
| OST-02-12550 | October 2, 2002 | Motion for Temporary Dormancy Waiver | US-Ukraine third-Country Codeshare Designation and Allocation of Frequencies (with Swiss) |
American and Swiss have applied to the Government of Ukraine for required authorizations, which we expect to receive shortly. However, to protect against the possibility that the authorizations may not be in hand in time to implement service by the end of the month, American seeks a temporary waiver of the dormancy condition. A 60-day extension, or until December 27, 2002, should be sufficient.
Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
| OST-02-12550 | Issued October 17, 2002 | Notice of Action Taken | US-Ukraine Third-Country Codeshare with Swiss |
Waiver of the 90-day dormancy condition applicable to its allocation of 2.5 weekly frequencies to operate US-Ukraine third-country code-share services.
By Notice of Action Taken dated July 30, 2002, in this
docket, the Department granted American 2.5 weekly frequencies
for US-Ukraine third-country code-share services, subject to our standard 90-day
dormancy condition. American intends to use the frequencies for services to Kiev
via Zurich under a code-share arrangement with Swiss International
Air Lines.
American's waiver from the dormancy condition is effective until December 27, 2002, or until the date on which American begins service with these frequencies, whichever occurs earlier. As to any frequency with which American does not begin service by December 27, 2002, its allocation with respect to that frequency will expire automatically.
By: Paul Gretch
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To Be Operated by British Airways)
October 31, 2003
Application for US-Ukraine Third-Country Codesharing
Hereby applies for the transfer of its U.S. -Ukraine third-country codeshare designation and frequencies, granted by Notice of Action Taken in this docket on July 30, 2002. The existing authorization was based on American's codeshare arrangement with Swiss International Air Lines Ltd. d/b/a Swiss for services via Zurich to Kiev. By this application, American seeks the transfer of the designa-tion and 2.5 associated weekly frequencies in order to engage in codeshare services with British Airways Plc via London Heathrow to Kiev, effective March 10, 2004.
Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
OST-03-16445 - US-Ukraine Third-Country Codeshare Opportunity and Frequency Allocation and Notice of Route Integration - Munich-Kiev (United Air Lines)
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To be Operated by British Airways) - American Airlines
November 13, 2003
Motion of United Air Lines to Consolidate
United on October 30, 2003 filed an application for American's unused third‑country code‑share opportunity and 3.5 code‑share frequencies under the U.S.Ukraine ASA. American had previously operated code‑share services to Kiev, Ukraine in conjunction with Swiss International Airlines dfb/a Swiss via Zurich, but that service terminated on October 26, 2003. United proposes to offer daily service to Kiev in conjunction with Lufthansa CityLine starting on November 29, 2003.
Because there are two applications for the only third-country code-share opportunity that is available under the U.S.-Ukraine ASA, the applications of American and United are mutually exclusive. The requests for frequencies are not mutually exclusive because there are 7.5 unallocated frequencies available. United and American seek a total of only 6 frequencies. Because, however, neither United nor American can use the frequencies it requests without the third-country code-share opportunity, the Department should consider their frequency allocation applications in the same consolidated proceeding as the third-country code-share opportunity.
Counsel: United and Wilmer Cutler, Jeffrey Manley, 202-663-6670, jmanley@wilmer.com
OST-03-16445 - US-Ukraine Third-Country Codeshare Opportunity and Frequency Allocation and Notice of Route Integration - Munich-Kiev (United Air Lines)
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To be Operated by British Airways) - American Airlines
November 14, 2003
United's application to codeshare to Ukraine with CityLine should be denied without further procedures. While United may argue that a formal carrier-selection proceeding is required, the facts here provide a sound basis for summary judgment. Indeed, there is compelling precedent for the Department to handle United's application in such a manner.
Several years ago, Delta filed a bare notice that it was switching partners from Swissair to Air France to provide third-country codeshare service to Egypt via Paris. American filed a competing application to secure the designation with Swissair, urging that Delta could not change partners without authorization. While the Department found that authorization was required, and that Delta could not simply announce its switch, the Department went on to conclude that Delta and Air France should be awarded the remaining designation based on the existing pleadings and without further procedures. See Order 2000-10-14, October 16, 2000 (show-cause); finalized by Order 2000-11-2, November 2, 2000. The Department should reach the same result here.
Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
November 14, 2003
Consolidated Answer of Continental Airlines
American and United have each applied for the one remaining Ukraine codeshare opportunity available upon termination of the American/Swiss Ukraine codeshare service. With two applications pending before the Department, the time has come for the Department to issue a notice requesting applications for the Ukraine codeshare opportunity so it can provide comparative consideration to all applicants seeking such authority. Since only one codeshare opportunity is available and two applicants have sought it, Ashbacker principles require comparative consideration, and the Department has considered similar applications comparatively in the past. To ensure the full range of choices are presented to the Department, it should issue a notice instituting a proceeding and requesting applications for the Ukraine codeshare opportunity which American and Swissair will no longer be using.
Counsel: Continental and Crowell & Moring, Bruce Keiner, 202-624-2615
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To be Operated by British Airways)
November 17, 2003
Only after United filed its application did American belatedly develop a renewed interest in offering code‑share service to Kiev. On October 31, 2003, American requested authority to serve the route via London Heathrow in conjunction with British Airways plc ("BA"). American was not prepared to offer such service until March 10, 2004, however, nearly five months after its earlier service via Zurich had terminated.
Once again, American moved to block United's service. This time American announced, in an answer to United filed one day after United requested pendente lite uthority, that American had changed its mind and was now, belatedly, prepared to move its startup date from March 10, 2004, to December 3, 2003. While American offers no explanation for its radical change in position, it was obviously motivated by a desire to block United's temporary pendente lite authorization.
Counsel: United and Wilmer Cutler, Jeffrey Manley, 202-663-6670, jmanley@wilmer.com
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To Be Opearted by British Airways)
November 24, 2003
Contingent Motion for Pendente Lite Authority
Hereby submits this contin-gent motion for pendente lite authority to serve Kiev, Ukraine via London Heathrow under its codesharing arrangement with British Airways Plc. American is filing this motion in response to a similar motion submitted on November 13, 2003 by United Air Lines, Inc. in OST-2003-16445 seeking to serve Kiev via Munich under a codesharing arrangement with Lufthansa CityLine.
Counsel: AA, Carl Nelson, 202-496-5647, carl.nelson@aa.com
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To Be Opearted by British Airways)
Hereby replies to the answers submitted in this docket by Continental Airlines, Inc. on November 14, 2003 and by United Air Lines, Inc. on November 17, 2003. As we show below, neither Continen-tal nor United has presented any compelling basis for the Department to deny or delay action on American's application, which should be promptly granted without further pleadings or procedures.
Attachment 1: Answer of American from Nov 14th in Docket OST-03-16445
Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
OST-02-12550 - Transfer of US-Ukraine Third-Country Codeshare Designation and Frequencies (To be Operated by British Airways)
December 4, 2003
American's contingent motion is the latest in American's succession of efforts to block United's proposal to put to immediate use U.S.‑Ukraine third‑country code‑share opportunity that American was prepared to allow to lapse into dormancy until United showed an interest. United has detailed these efforts on American's part in its answer dated November 17, 2003, and will not repeat them here.
United also wishes to take this opportunity to correct certain misstatements made by American in a Reply dated November 26, 2003, in this docket. These erroneous arguments are related to those offered by American in its Contingent Motion. To the extent necessary, United requests leave to respond to these matters. United's response will not delay this proceeding and will provide a more accurate record on which the Department can reach a decision.
Counsel: United and Wilmer Cutler, Jeffrey Manley, 202-663-6670, jmanley@wilmer.com
US Passenger Carriers / American Airlines, Inc.
OST-03-15021 - Waiver of the Dormancy Condition on Limited-Entry Route Authority
OST-02-12550 - US-Ukraine Third-Country Codeshare Designation and Frequencies
February 17, 2004
Notice of American Airlines Concerning US-Ukraine and Contingent Application for Dormancy Waiver
Hereby gives notice that, unless the Department promptly grants its application of October 31, 2003 in OST-2002-12550 for transfer of U.S. -Ukraine third-country codeshare designation and 2.5 weekly frequencies, American will not be using this authority as of April 1, 2004. American hereby contingently applies for a dormancy waiver in order to preserve this authority until such time as the Department grants the transfer application and American has implemented codeshare service between the U.S. and Ukraine with British Airways.
Pleadings opposing American's transfer application were submitted by United Air Lines and Continental Airlines. American's application has now been pending for more than 3‑1/2 months without action. The authority has been protected from automatic revocation for dormancy by Order 2003‑4‑18, but that protection ends on March 31, 2004.
In these circumstances, unless the Department promptly grants the transfer application so that American and British Airways can begin codeshare service to Ukraine by April 1, 2004, the Department should grant a dormancy waiver. That waiver should continue until such time as the Department has granted American's transfer application and American has implemented U.S. ‑Ukraine codeshare service with BA.
Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
US Passenger Carriers / American Airlines, Inc.
OST-02-12550 - US-Ukraine Third-Country Codeshare with Swiss
OST-03-15021 - Waiver of Dormancy Conditions on Limited-Entry Routes
February 26, 2004
American's request for a waiver of dormancy has been effectively mooted by United's competing application and American's own competing application to enable it to use the frequencies for a code share with British Airways. American's request to extend the dormancy waiver is merely that carrier's latest move to complicate and delay reallocation of these frequencies to United. In fact, United has demonstrated in Dockets OST-03-16445 and OST-02-12550 that its proposal to use these frequencies to code share on Lufthansa's services to Kiev via Munich produces far greater public benefits than would the services American proposes to offer with BA.
Rather than wasting more time on this matter by considering American's specious "contingent" application for a dormancy waiver, United urges the Department to dismiss that application and act without further delay to approve United's own frequency allocation request in Docket OST-03-16445. The peak season for transatlantic service is rapidly approaching, and the Department should reallocate these frequencies for immediate implementation by United rather than entertaining motions for relief by American which do not address the need for using these valuable economic rights which American has allowed to go unused for nearly the entire winter season.
Counsel: United and Wilmer Cutler, Jeffrey Manley, 202-663-6670, jeffrey.manley@wilmer.com
American Airlines, Inc.
OST-03-15021 - Waiver of the Dormancy Conditions on Limited-Entry Route Authority
OST-02-12550 - US-Ukraine Third-Country Codeshare Designation and Frequencies
Filed February 17, 2004 | Issued March 19, 2004
Contingent waiver from the 90-day dormancy condition.
By Notice of Action Taken dated July 30, 2002 (Docket OST-2002-12550) the Department authorized American Airlines to provide third-country code-share service to Ukraine with Swiss International Air Lines, Ltd. d/b/a Swiss, via Zurich and awarded it 2.5 weekly frequencies to operate in the U.S.-Ukraine market. American and Swiss implemented the service; however, on August 1, 2003, Swiss filed a notice in Docket OST-2002-12001 that it would cease serving Ukraine effective October 26, 2003.
On October 30, 2003, United filed an application for the available U.S.-Ukraine third-country code-share opportunity and requested 3.5 frequencies (Docket OST-2003-16445).
On October 31, 2003, American filed to transfer its U.S.-Ukraine third-country designation and 2.5 weekly frequencies from Swiss to British Airways. Even though it had not been using these frequencies, American is proceeding on the basis that it still holds them through March 31 by virtue of a blanket dormancy waiver granted to U.S. carriers in Order 2003-4-18. On the contingency that American’s request to transfer these frequencies to British Airways is not granted in time for service to begin by April 1, American requests a waiver of the 90-day dormancy condition until such time as the Department grants American’s transfer application and American has implemented U.S.-Ukraine service with British Airways.
United filed an answer urging the Department to dismiss American’s application and approve United’s application stating that the frequency allocation to which American refers was limited to code-share services in conjunction with Swiss, and those services ceased on October 26, 2003. In this regard, United states that American is no longer in a position to restart those services
By: Paul Gretch
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