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OST-2005-23106 - DCA Slots - Petition of Air Carrier Association of America to Withdraw and Reallocate America West and US Airways Slots
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Ronald Reagan Washington National Airport Slots OST-2005-23106 - Petition of Air Carrier Association of America to Withdraw and Reallocate America West and US Airways Slots November 21, 2005 Petition of The Air Carrier Association of America to Withdraw and Reallocate America West and US Airways Slots - Bookmarked The facts are simple. America West is no longer a "limited incumbent" at DCA. It is US Airways that has the largest DCA slot holdings. As a result, there is no longer a statutory basis for America West/US Airways to hold outside the perimeter exemption slots. The purpose of AIR-21 and Vision 100 was not to allow the nation's largest DCA slot holder to extend that control. With DCA closed to growth of competition, the Department must take every opportunity possible to promote competition at DCA. Now is such an opportunity. Furthermore, under 49 U.S.C. § 41714(j), America West may not sell, trade, transfer or convey its AIR-21 and Vision 100 exemption slots. Thus, the new America West/US Airways airline should not have any right to these slots. Counsel: ACAA, Edward Faberman, 202-719-7420, epfaberman@acaa1.com OST-2005-23106 - Petition of Air Carrier Association of America to Withdraw and Reallocate America West and US Airways Slots January 9, 2006 America West hereby responds and moves to dismiss the November 21, 2005 Petitions of the Air Carrier Association of America. The Petitioner asks the Department of Transportation to withdraw from America West "beyond-perimeter" slot exemptions DOT awarded after two extensive selection proceedings in 2000 and 2004. ACAA opines that America West has somehow become "ineligible" to continue the use of these exemptions because of the recent merger between America West Holdings Corporation and the US Airways Group, Inc. As ACAA's request is patently without merit, America West respectfully requests that DOT promptly dismiss or deny the Petition without further process. Counsel: Greenberg Traurig, Joanne Young, 202-530-8520, youngj@gtlaw.com OST-2005-23106 - Petition of Air Carrier Association of America to Withdraw and Reallocate America West and US Airways Slots February 2, 2006 Response of the Air Carrier Association of America to Motion of America West d/b/a US Airways to Dismiss - Bookmarked The facts of this matter are simple. America West is no longer a "limited incumbent" at DCA. Rather, it is the largest DCA slot holder. As a result, there is no longer a statutory basis for America West/US Airways to hold outside the perimeter exemption slots. AIR-21 and Vision 100 were not designed to allow the nation's largest DCA slot holder to extend that control. Instead, those provisions were established to promote competition and entry. Allowing the dominant DCA carrier to hold additional slots is contrary to the principles of competition and entry. By withdrawing the beyond-perimeter slots from America West and allocating them to smaller carriers, the Department will "place maximum reliance on competitive market forces," encourage and maintain "an air transportation system relying on actual and potential competition," and promote "entry." With DCA closed to competition growth, the Department must take every possible opportunity to improve competitive conditions at DCA. Now is such an opportunity. The Department has clear authority to take these steps. It is time to strengthen our competitive system. Thus, the new America West/US Airways airline should not have any right to these slots. ACAA requests that the Department immediately withdraw the eight beyond-perimeter slot exemptions which were awarded to America West Airlines under AIR-21 and Vision 100 and reallocate them to a qualified limited incumbent carrier at DCA. If other carriers are going to utilize these slots by the summer of 2006, it is essential that the Department act quickly to reallocate them. Therefore, America West should provide eight within-perimeter slots to the Department for allocation to qualified limited incumbent carriers at DCA. Counsel: ACAA, Edward Faberman, 202-719-7420, epfaberman@acaa1.com Order 2006-3-6 Issued March 7, 2006 | Served March 10, 2006 Order Denying Petition to Withdraw and Reallocate America West's DCA Slots On November 21, 2005, the ACAA filed a petition asking the Department to revoke and reallocate the eight beyond-perimeter exemption slots at DCA that had been awarded to America West Airlines. ACAA contends that America West is no longer a limited incumbent as a result of its merger with US Airways, and that the merger has in fact made it the largest slot holding carrier at DCA. Thus, ACAA argues that America West is not qualified to retain the eight DCA beyond-perimeter slot exemptions under AIR-21 or Vision 100 statutory criteria, which require the Secretary to find that award of exemptions would provide domestic network benefits beyond the perimeter and increase competition by new entrants or in multiple markets. ACAA states that America West’s own arguments in applying earlier for the exemptions, which for example stress the anti-competitive effects of awarding them to incumbent carriers, demonstrate why America West is not entitled to hold them now. We have decided to deny the ACAA request to withdraw eight beyond-perimeter slot exemptions from America West. As a factual matter, the Department did nut use the new entrant/limited criterion in awarding America West the original six slot exemptions. In our decision awarding a total of 12 beyond-perimeter slot exemptions, six of which were to America West, we stated, “ [Although because of its [America West’s] code-share relationships with Continental it would not be a new entrant at DCA, allowing America West to serve DCA from those hubs [Phoenix and Las Vegas] will provide the carrier the opportunity to become an effective new competitor between DCA and all beyond perimeter cities it serves via Phoenix and Las Vegas.”’ Moreover, we have awarded slot exemptions to other carriers that were not new entrants or limited incumbents, such as Delta Air Lines (Order 2002-11-20) and United Airlines (Order 2004-4-1). ACAA is of course correct that the post-merger US Airways/America West has significantly more operations at DCA than the pre-merger America West, and that the post-merger carrier could not now qualify there as a new entrant or limited incumbent. The issue, however, is whether the applicable Federal statutes at 49 U.S.C. 41714 and 41718 mandate that we use these facts retroactively to strip America West of the exemptions it had been lawfully awarded earlier. We do not read such a requirement in the statutes. By: Michael Reynolds March 27, 2006 Petition of The Air Carrier Association of America for Reconsideration of Order 2006-3-6 - Bookmarked Since the new America West/US Airways airline currently holds over 360 slots at DCA, it does not qualify as a new entrant or limited incumbent. As a result, all of the arguments America West proffered in obtaining its beyond perimeter slot exemptions at DCA no longer apply. The same can be said about all of the reasons stated by the Department in awarding those eight slots to America West. In the Department's Order it noted that 49 USC 41714 and 41718 do not mandate that they "strip America West of the exemptions" because of the merger. While those sections may not mandate that all slots be withdrawn from America West, the broad authority held by the Department along with these sections must be considered as the Department reviews the dominance that has been increased at DCA. Now that US Airways is the largest DCA slot holdings, there is clear legislative authority for the Department to withdraw DCA slots from them. for America West/US Airways to hold outside the perimeter exemption slots. The purpose of AIR‑21 and Vision 100 was not to allow the nation's largest DCA slot holder to extend that control. With DCA closed to growth of competition, the Department must take every opportunity possible to promote competition at DCA. Now is such an opportunity. Counsel: ACAA, Edward Faberman, 202-719-7420 OST-2005-23106 - Petition of Air Carrier Association of America to Withdraw and Reallocate America West and US Airways Slots April 6, 2006 Answer in Opposition of America West America West hereby answers in opposition to, and moves for denial of, the Petition of the Air Carrier Association of America for Reconsideration of Order 2006-3-6 filed on March 27, 2006. America West respectfully submits that the Petition does not (i) raise any new facts or legal issues not already fully addressed by the Department of Transportation in Order 2006-3-6 denying ACAA’s original petition nor (ii) offer any information not previously available in that proceeding. Instead, the Petition merely reargues, yet again, ACAA’s unsupported view that the merger of America West with US Airways should compel withdrawal of America West’s beyond-perimeter slot exemptions at Washington Reagan National Airport. This is not the first time ACAA has sought to advance its cause through repetitive, unsubstantiated, reconsideration petitions. The Department carefully considered and firmly rejected ACAA’s arguments, on both factual and legal grounds, after a review of the multiple docket submissions by ACAA. In Order 2006-3-6, DOT made clear that the slot exemptions it awarded to America West in two separate competitive carrier selection proceedings – for service to Phoenix and Las Vegas – were not required to be withdrawn because of the September 2005 merger of America West Holdings Corporation and US Airways Group, Inc. Counsel: US Airways, Howard Kass, 703-872-5230, howard_kass@usairways.com Order 2006-5-20 Issued May 22, 2006 | Served May 25, 2006 Order Affirming Decision | Word After careful review, we have decided to grant the Petition for Reconsideration of Order 2006-3-6 filed by ACAA, and, upon reconsideration, we affirm our decision in that order. ACAA’s Petition largely restates its earlier arguments. It does nothing to show error in the earlier Order’s statements of fact, nor does it show that the Department was wrong in its legal interpretations. As to ACAA’s contention that DOT should utilize its broad authority to “promote competition” in a manner that favors ACAA’s membership, DOT must note that its role here is framed as well by the explicit Congressional policies on slot exemptions reflected in AIR-21 and Vision 100. While promoting competition is clearly one of those Congressional policies, it is just as clearly not the only one. ACAA has simply not persuaded us that its assertions of our broad authority can be reconciled with its narrow and selective readings of applicable statutes here. Based on all of the above, we deny the ACAA request to withdraw eight beyond-perimeter slot exemptions from America West. By: Michael Reynolds |
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