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OST-2005-23354 - Shuttle America - Form 41 Confidentiality
http://www.shuttleamerica.com/
OST-2005-23355 - Republic Airlines - Motion to Withhold Certain Information from Public Disclosure - Form 41
OST-2007-28396 - ExpressJet Request for T-100 Confidential Treatment
OST-2008-0107 - Virgin America - Form 41 Confidentiality (Financial and Traffic)
RITA-2007-27185 - Collection of T-100 Data
OST-2008-0206 - Alaska Airlines Request for T-100 Confidential Treatmentnt
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OST-2005-23354 - Motion to Withhold Information from Public Disclosure - Form 41 December 12, 2005 Motion to Withhold Information from Public Disclosure - Bookmarked Shuttle America Corporation hereby files this motion to withhold from public disclosure certain information contained in Shuttle's Form 41 reports submitted herewith under seal. The information is being reported to the Department in accordance with the requirements of 14 C.F.R Part 241 relating to the third quarter of 2005 and the Interim Operations Report for the month ended October 31, 2005. On June 1, 2005, Shuttle launched its scheduled passenger operations using Embraer EMB-170 "large" aircraft. Shuttle is herewith filing its first Form 41 reports with the Department. Shuttle is seeking confidential treatment of certain line items redacted on its Form 41 quarterly report for the third quarter of 2005 on Schedules B-1, B-7, B-12, P-1.2, P-5.1, and P-6, as well as certain line items redacted on Schedule P-1(a) for Shuttle's Interim Operations Report for the month ended October 31, 2005. Shuttle requests confidential treatment of highly competitively sensitive information pertaining to Shuttle's operating costs and profits for its large aircraft operations. Because Shuttle operates only a single aircraft type for two mainline code-share carriers, the public disclosure of such information would likely cause substantial competitive harm to Shuttle by allowing third parties to calculate with precision Shuttle's aircraft and operating costs, and code-share agreement profit margins. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2005-23354 - Shuttle America - Form 41 Motion December 30, 2005 Shuttle America and Republic Airlines filed motions to withhold from public disclosure certain information contained in their Form 41 reports. Shuttle and Republic assert that public disclosure of such information would likely cause them substantial competitive harm. Shuttle and Republic contend that the competitive harm that will result from public disclosure of their financial information is "unique" to them because Shuttle operates only a single type of aircraft for two unaffiliated mainline partners and Republic operates only a single aircraft type for only one unaffiliated mainline partner. Shuttle's and Republic's requests for non‑disclosure to the public of certain information are overly broad and raise significant issues that should be considered more fully and carefully. Counsel: Wiley Rein, Edward Faberman, 202-719-7402, efaberman@wrf.com
December 30, 2005 Form 41 Filings Cover Letter - P-1(a) - Month Ended November 30, 2005 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
January 31, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended December 31, 2005 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
March 9, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended January 31, 2006 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
March 27, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended February 28, 2006 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
April 6, 2006 Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
April 28, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended March 31, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 25, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended April 30, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 31, 2006 Form 41 Fillings Cover Letter - First Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 31, 2006 Enclosed is an Erratum page to correct a typographical error on Page 10 of the Motion for Confidential Treatment filed on December 12, 2005 on behalf of Shuttle America Corporation (Docket OST-2005-23354). The third bullet on Page 10 of the Motion contains a reference to line item 9799, when it should reference line item 7199. The Erratum page contains the correct text in bold type. Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
August 24, 2006 Form 41 Filings Cover Letter - Second Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
October 30, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended September 30, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
November 27, 2006 Form 41 Filings Cover Letter - Third Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
November 29, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended October 31, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
December 21, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended November 30, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 1, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended December 31, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 5, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended January 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended February 28, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Form 41 Filings Cover Letter - Fourth Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
April 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended March 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 31, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended April 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
June 6, 2007 Form 41 Filings Cover Sheet - First Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
June 29, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended May 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
July 31, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended June 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
August 22, 2007 Form 41 Filings Cover Sheet - Second Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
August 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended July 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
September 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended August 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
October 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended September 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
December 19, 2007 Form 41 Filings Cover Sheet - Third Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
February 20, 2008 Form 41 Filings Cover Sheet - Fourth Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 21, 2008 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
April 8, 2008 Form 41 Filings Cover Letter - P-1(a) - Month Ended February 29, 2008 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
OST-2005-23354 - Shuttle America - Withhold Information from Public Disclosure - Form 41 April 23, 2008 Joint Motion for Leave to File and Answer of American Airlines and United Air Lines In recent months, ExpressJet, Inc. and Virgin America Airlines, encouraged in part by the Department's inaction on the pending motions at issue here, have filed similar requests to withhold. See Dockets OST-2007-28396 and OST-2008-0107. The Department definitively rejected ExpressJet's motion, in part because of the unfairness this caused to other carriers competing with ExpressJet that made public, rather than confidential submissions. Both ExpressJet and Virgin America referred to the undecided motions of Shuttle and Republic as precedent for their own motions to withhold. In these circumstances, it is important for the Department to act now on the Shuttle and Republic motions by denying them for the same reasons applied to ExpressJet and urged by American, United, and others to be applied to Virgin America. The arguments made by Shuttle and Republic are identical to those urged by ExpressJet and Virgin America - namely, they want to shield their information from competitors. American and United have previoisly set forth in their pleadings in the ExpressJet and Virgin America cases why such preferential protection cannot be granted to one competitor in an industry where other competitors' data is subject to release. Counsel: American, Carl Nelson, 202-496-5647 / United, Jeffrey Manley, 301-229-8571
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) May 2, 2008 In their respective Motions seeking confidential treatment, Republic and Shuttle amply demonstrated how each has met the applicable legal standard for withholding the identified confidential, competitively sensitive financial information from public disclosure under Exemption 4, as well as under the applicable legal standards for grant of confidentiality and well‑established Department precedent. The public release of the information for which Republic and Shuttle seek confidential treatment would likely cause substantial competitive harm. American and United's meritless Joint Answer should be rejected. It focuses solely on the confidentiality issues raised in the context of the ExpressJet and Virgin America dockets, and has no relevancy to the unique circumstances involving Republic and Shuttle in the instant dockets. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2005-23354 - Shuttle America - Motion to Withhold Information from Public Disclosure - Form 41 May 14, 2008 Re: Request of United, Northwest, Alaska Air, jetBlue, American and Delta for DOT Decision The undersigned air carriers are writing to request that the DOT immediately issue a decision in the referenced dockets. The practice of filing for confidentiality of traffic and financial data de facto grants confidential treatment to the data while a decision is pending. The DOT addressed this very issue, substantively, in the Staff Action dated September 10, 2007 and Decision of the Reviewing Official dated December 5, 2007 in ExpressJet, Docket OST-2007-28396. In that decision, after a protracted exchange of pleadings and extended consideration by the Department, ExpressJet's request for confidential treatment of certain Form 41, T-100 data was denied. That decision correctly determined that if regulations require the public filing of data by all air carriers, all air carriers should file the data publicly. While there are certainly times when data must and should be held confidentially by the Department, where a clear decision has been made that is on point, carriers should not be allowed to game the system to their advantage and their competitors' disadvantage. It is fundamentally unfair for those who chose to game the system to keep their traffic and financial data from competitors. The undersigned make their data available as required by DOT regulations, thereby allowing their competitors, including Shuttle America, Republic and Virgin America, to see the information and use it for whatever purpose they may choose. The result is that our competitors see our data while we cannot view the same information for Shuttle America, Republic and Virgin America. One option that must therefore be considered, if an immediate decision is not issued, is that the undersigned carriers may also file for confidential treatment of this data. That result is not what is intended by the DOT's regulations. These cases are ready for decision. We request that the DOT immediately issues its decision. Counsel: Julie Oettinger for United / Sascha Van der Bellen for Northwest / Squire Sanders, Marshall Sincik for Alaska Air / Dow Lohnes, Jonathan Hill for jetBlue / Carl Nelson for American / Scott McClain for Delta
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) May 16, 2008 Re: Response of Shuttle America and Republic Airlines to Joint Carriers Contrary to the allegations of the Joint Carriers, neither Republic nor Shuttle are "gaming" the system to obtain any "advantage" over other airlines. Indeed, just the opposite is the case as Republic and Shuttle pointed out in their respective motions and in their Joint Reply filed on May 2, 2008 to the Joint Motion and Answer filed by United and American. Republic and Shuttle are seeking confidentiality to preserve and enhance competition in the fee-for-service sector and to prevent others in that sector (its mainline customers and other fee-for-service carriers) from gaining an unfair competitive advantage. The Joint Carriers' letter does not address, much less refute, the highly unique circumstances presented by Republic and Shuttle justifying grant of confidentiality, circumstances that were not applicable with respect to Express Jet and are not applicable with respect to Virgin America. Contrary to the joint letter, because Shuttle and Republic operate under fee-for-service arrangements with a limited number of mainline carriers, Republic and Shuttle do not hold out service to the traveling public in competition with the joint carriers. Shuttle and Republic provide aircraft capacity to their mainline customers (which include Delta, United and US Airways) pursuant to commercial agreements. Under longstanding policy and practice the Department has always maintained confidentiality of those agreements. Republic's and Shuttle's customers are mainline carriers, not the traveling public. The mainline carriers, not Shuttle or Republic, hold out service to the traveling public in competition with the joint carriers. Republic and Shuttle are not seeking to withhold traffic data, but rather are seeking to withhold certain limited fields of cost data the disclosure of which would undermine competition in the fee-for-service sector and impair Republic's and Shuttle's ability to freely and fairly negotiate business arrangements with their mainline customers. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
May 29, 2008 Motion for Confidential Treatment This is a routine quarterly update of the same competitively‑sensitive commercial and financial information described in the referenced Motion in this docket. Withholding the limited line item data from public disclosure is warranted by the unique circumstances of Republic's fee‑for‑service relationships. Disclosure of the limited line item data for which confidentiality is requested will enable Republic's fee‑for‑service customers and third party competitors to determine per aircraft costs and operating margins and costs, operating margins and profitability on a per codeshare contract basis. Such disclosure would uniquely harm Republic's competitive position in the fee‑for‑service sector and undermine Republic's ability to negotiate at arms length with its mainline codeshare customers. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
June 25, 2008 Re: DOT (RITA/BTS) Response to Request for Confidential Treatment Except for the "Cost" column on Schedule B-7 and four columns of aircraft cost data on Schedule B-43, ("Acquired Cost or Capitalized Value," "Allowance for Depreciation or Amortization," "Depreciated Cost or Amortized Value," and "Estimated Residual Value"), we are denying the requests for confidential treatment of certain line items on Shuttle America's Form 41 financial data submissions to the Department for the period July 1, 2005 through March 31, 2008. Shuttle America unquestionably has competition from a number of air carriers and undoubtedly these carriers will review Shuttle America's data. However, we disagree that the release of several lines of Shuttle America's Form 41 financial data will permit a competitor to use this information to make strategic judgments that would likely cause substantial harm to Shuttle America's competitive position. Carriers compete for customers based on a number of factors as customers shop for the best available transportation services. Some carriers compete on price but others emphasize the quality of the product it is offering consumers. These factors are not divulged in the Form 41 financial data. There are numerous air carriers (ExpressJet, Mesaba, and Pinnacle) that file Form 41 reports with the Department that conduct business with a single or very large customer. These carriers have had their financial data publicly released and the Department is unaware of any of these carriers suffering substantial competitive harm due to the public disclosure of the aviation data at issue. Except for Schedules B-7 and B-43, it would be counter to the Department's longstanding data dissemination practices and the public interest for us to grant a motion of confidential treatment for Shuttle America's Form 41 financial data absent strong evidence of the likelihood of substantial competitive harm. Moreover, it would be unfair for the Department to deny Shuttle America's competitors access to Shuttle America's reports while their reports are subject to review by Shuttle America. Shuttle America's motion also relies on the fact the Department's Air Carrier Fitness Division granted confidential treatment to certain financial information for Shuttle America's sister company, Republic Airlines, which was very similar in nature. Specifically, the Department granted Republic's request for confidential treatment by Order 2004-7-26, concluding that "release of Republic's first year forecast for scheduled service could harm its ability to compete by providing competitors with information on the cost structure upon which its agreement with its code-share partner is based." While the Department will withhold financial information from public release such as budgets or forecasts during the DOT "certification process," Form 41 financial data including income statements are routinely reported by air carriers and released to the public. One of the FOIA mandates is that the public should have access to Federal agency records, except to the extent those records are exempt from disclosure. By: M. Clay Moritz
July 7, 2008 Re: Petition for Review of Staff Action - Bookmarked Shuttle requests that the Staff Action be reviewed and reversed, and that an Order be issued granting confidential treatment to the Form 41 line items identified in Shuttle's Motions pursuant to Exemption 4 of the Freedom of Information Act. Shuttle has satisfied the test for confidentiality. With respect to the first prong of the test, the Decision confirms that "Shuttle unquestionably has competition from a number of air carriers and undoubtedly these carriers will review Shuttle's data." However, the Decision concluded that Shuttle did not meet the second prong of the National Parks test, erroneously finding that the release of the information will not "permit a competitor to use this information to make strategic judgments that would likely cause substantial harm to Shuttle's competitive positions." This conclusion is based on erroneous findings of fact. The Decision is deficient on its face because it fails to discuss, much less refute, critical and undisputed facts presented by Shuttle showing why, because of Shuttle's unique situation, disclosure is likely to substantially harm its competitive. The critical facts which the Decision wholly ignored are that Shuttle now operates only a single aircraft type under a long-term fixed fee-for-service code-share agreement with just two mainline customers. Because Shuttle operates with only a single aircraft type for these two mainline customers, public disclosure of the information sought to be protected would enable Shuttle's competitors to precisely determine Shuttle's aircraft acquisition costs and how much is paid by its mainline customers. The number of aircraft that Shuttle operates for each customer is publicly available, and as a result, calculation of aircraft acquisition costs and billing rates on each code-share agreement could be readily calculated if Shuttle is required to disclose the identified Form 41 line items. Under longstanding Department policy, aircraft acquisition costs and the financial elements of code-share agreements are not publicly disclosed. However, unless the particular line-items for which Shuttle requests confidentiality are withheld from disclosure, Shuttle's competitors will have a transparent roadmap to Shuttle's precise aircraft costs and revenue and reimbursement rates specifically applicable to each code-share contract. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) July 11, 2008 Answer of the Joint Carriers in Opposition to Petitions for Review of Staff Action In the staff actions under review, issued in each docket on June 26, 2008, the Department denied motions by Shuttle America and Republic to withhold certain Form 41 data from public disclosure. The staff actions are entirely consistent with definitive precedent established in the Department's final decision on ExpressJet (OST-2007-28396, December 5, 2007), as well as with the staff's recent denial of Form 41 confidentiality motions by Virgin America, Inc. (OST-2008-0107, June 26, 2008). In their petitions for review, Shuttle America and Republic have presented no legitimate basis for the Department to reverse the staff's well-reasoned rejection of their motions to withhold Form 41 data that other carriers file publicly in accordance with agency rules. The Joint Carriers are very concerned about the proliferation of special requests for confidentiality such as those submitted by ExpressJet, Virgin America, Shuttle America, and Republic, and the misuse of the Department's Part 385 review process in the face of controlling precedent that has already settled the issue of public release of Form 41 data. A bedrock principle underlying Form 41 reporting is that all carriers are subject to public release of their data, and thus no carrier is placed at an unfair disadvantage because its data is made public while data of competitors is withheld. The Department has correctly applied that principIe in denying the motions of Shuttle America and Republic. Counsel: Squire Sanders, Marshall Sinick, 202-626-6651 for Alaska Air / Carl Nelson, 202-496-5647, for American / Scott McClain, 404-773-6514 for Delta / Dow Lohnes, Jonathan Hill, 202-776-2000 for jetBlue / Sascha Van der Bellen, 202-842-3193 for Northwest / Robert Kneisley, 202-263-6284 for Southwest / Julie Oettinger, 301-229-8571 for United / Howard Kass, 202-326-5153 for US Airways
July 11, 2008 Motion for Confidential Treatment - P-1(a) - Month Ended May 31, 2008 Shuttle America Corporation hereby requests confidential treatment of certain line items on its Form 41, Schedule P-1(a) for the month ended May 31, 2008. Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) July 18, 2008 Motion for Leave to File and Joint Reply of Republic Airline and Shuttle America The Joint Carriers' reliance on the so-called "definitive precedent established in the Department's final decision on ExpressJet" is completely misplaced. The Department's ExpressJet decision provides no basis for denying the requests of Republic or Shuttle. The scope of and circumstances involving Republic/Shuttle confidentiality requests are different than and unrelated to either the ExpressJet situation or to the pending request of Virgin America. Unlike ExpressJet and Virgin America, Republic and Shuttle are not seeking wholesale confidentiality of their Form 41 submissions. Rather, Republic and Shuttle seek only limited confidentiality of certain line items to maintain the confidentiality of information that the Department has already decided to not disclose to the public-aircraft cost information and the financial terms of codeshare agreements. It is not surprising that when Republic and Shuttle filed their confidentiality motions in December 2005, no objections were filed to those motions. The Joint Carriers have established no basis for denial of the Petitions of Republic or Shuttle. Republic and Shuttle respectfully request that the Staff Action be reversed, and an Order be issued granting confidential treatment to the specified Form 41 line items identified in Republic's and Shuttle's Motions. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
August 1, 2008 Motion for Confidential Treatment Shuttle America Corporation hereby requests confidential treatment under 14 CFR § 302.12 of certain line items on its Form 41, Schedule P-1(a) for the month ended June 30, 2008. Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
September 3, 2008 Motion for Confidential Treatment Hereby requests confidential treatment under 14 CFR § 302.12 of certain line items on its Form 41, Schedule P-1 (a) for the month ended July 31, 2008. Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2008-0107 - Virgin America - Form 41 Confidentiality (Financial and Traffic) September 12, 2008 Re: Letter of jetBlue Requesting Immediate Issuance of Final Decisions While there are circumstances in which confidential treatment of limited data may be justified (aircraft inventory costs for instance), the withholding of massive amounts of traffic data required to be filed by all carriers is not justifiable as the Department determined in the ExpressJet Order. These carriers' use of the Department's procedural system to hide their traffic data while their competitors disclose the same data is fundamentally unfair. The gaming of the Department's procedural system by a few carriers in continually withholding this data from public view places those of us who comply with the Department's regulations at a clear disadvantage. Either the process of responding to requests for confidential treatment must be truncated and accelerated, the requirement for filing such data abandoned for all air carriers, or JetBlue will have to again consider withholding its Form 41 data on the same basis as these carriers in order to level the playing field. The immediate issuance of a final decision, making clear that further use of the Department's procedural rules to thwart the disclosure of this information will not be tolerated, is needed. Counsel: jetBlue, David Barger
OST-2008-0107 - Virgin America - Form 41 Confidentiality (Financial and Traffic) Re: Letter of Republic Airlines and Shuttle America Opposing Comments of jetBlue I am compelled to respond to the letter from jetBlue's CEO erroneously comparing the legitimate and well-justified confidentiality requests of Republic Airline and Shuttle America with the entirely different request of Virgin America. It is clear that Mr. Barger does not understand the substance of our requests. Republic and Shuttle are seeking to retain confidentiality of aircraft cost information and fee for service contract financial information, which for decades, under well-settled precedent has consistently been kept confidential by the Department. Because of the unique circumstances explained in Republic's and Shuttle's motions, disclosure of this information would uniquely harm Republic and Shuttle by giving other carriers access to sensitive information about Republic and Shuttle aircraft costs and fee for service contracts, when such information is not available from the Form 41 submissions of other airlines. Thus, confidentiality of Republic's and Shuttle's aircraft cost and fee for service information is necessary to prevent Republic and Shuttle from substantial competitive harm and, equally relevant, puts no other airline at a competitive disadvantage. The reasons for and scope of Republic's and Shuttle's requests are fundamentally different than Virgin's request (or the request of ExpressJet which the Department denied). Unlike Virgin (and ExpressJet), Republic and Shuttle are not seeking confidentiality of traffic data and segment costs. Republic and Shuttle are not "gaming" the Department's rules. Indeed, our request would preserve the Department's well established confidentiality rules by according the same treatment to our aircraft cost and fee for service financial information that has been accorded to other airlines for decades. Counsel: Republic, Bryan Bedford
September 19, 2008 Motion for Confidential Treatment Shuttle America Corporation hereby requests confidential treatment under 14 CFR §302.12 of certain line items on its Form 41, Schedules B-1, B-7, B-12, P-1.2, P-5.1, and P-6 for the Second Quarter 2008. Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
October 1, 2008 Motion for Confidential Treatment Shuttle America Corporation hereby requests confidential treatment under 14 CFR § 302.12 of certain line items on its Form 41, Schedule P-1(a) for the month ended August 31, 2008. Shuttle hereby incorporates by reference the Information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
October 24, 2008 Motion for Confidential Treatment Shuttle America Corporation hereby requests confidential treatment under 14 CFR § 302.12 of certain line items on its Form 41, Schedule P-1(a) for the month ended September 30, 2008. Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
November 7, 2008 Motion for Confidential Treatment Shuttle America hereby requests confidential treatment under 14 CFR §302.12 of certain line items on its Form 41, Schedules B-1, B-7, B-12, P-1.2, P-5.1, and P-6 for the Third Quarter 2008.' Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
November 24, 2008 Motion for Confidential Treatment Shuttle hereby requests confidential treatment under 14 CFR § 302.12 of certain line items on its Form 41, Schedule P-1a) for the month ended October 31, 2008. Shuttle hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Shuttle in this docket, and Shuttle's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
December 23, 2008 Motion for Confidential Treatment Hereby requests confidential treatment under 14 CFR §302.12 of certain line items on its Form 41, Schedule P-1(a) for the month ended November 30, 2008. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
January 28, 2009 Re: DOT Denial of Form 41 Confidentiality M. Clay Moritz, Jr., Acting Assistant Director, Aviation Information, initially reviewed the appeal of staff action denying Shuttle America's motions for confidential treatment. He has informed me that he did not find a compelling basis for overturning the original staff decision denying Shuttle America's motions for confidential treatment. Accordingly, Mr. Moritz forwarded Shuttle America's Petition to me for action as the Department's Reviewing Official. Under the provisions of 14 CFR 385.34(b), I am exercising my discretionary right of review for the June 25, 2008, staff action. As the Deputy Director, Bureau of Transportation Statistics, I am the Reviewing Official in the absence of the BTS Director and I am exercising my discretionary right of review for the June 25, 2008, staff action. I have reviewed the appeal of the staff action denying Shuttle America's motions for confidential treatment and have reviewed all documents properly filed in DOT Docket OST-2005-23354, including the responses of the dissenting carriers. I find that Shuttle America did not present any additional evidence to demonstrate the likelihood that Shuttle America would suffer substantial competitive harm from the release of the Form 41 data. Based on my review of the record in Docket OST-2005-23354, I am affirming the staff action in this matter because I did not find a compelling justification for overturning the original denial of Shuttle America's motions for confidential treatment. By: BTS, Steven Smith
OST-2008-0238 - Allegiant Air - Form 41 and Schedule T-100 Data Confidentiality February 3, 2009 Re: BTS Statement of Publicly Available Filings On January 28, 2009 the DOT's Bureau of Transportation Statistics denied Virgin America's request to withhold from public disclosure certain Form 41 financial, T-100 traffic, and Origin and Destination Survey data submitted to the BTS. (See Docket OST-2008-0107). On January 29, 2009 Alaska withdrew its 2008 motion requesting that its traffic, revenue, and other form 41 data be held confidential and asked that the withdrawal be made effective contemporaneously with the release of Virgin America's Form 41 data. In the July 30, 2008 motion docketed in OST-2008-0238, Allegiant noted that they would withdraw their motion if and when Alaska withdraws its motion. On February 3, 2009 at 10:00 A.M, the DOT's Office of Airline Information in the Bureau of Transportation Statistics made publicly available Virgin America's, Alaska's, and Allegiant's Form 41 financial, T-100 traffic, and 1Q 2008 & 2Q 2008 DB1B O&D data on the DOT's Tran Stats public domain. By: BTS, Steven Smith
OST-2008-0238 - Allegiant Air - Form 41 and Schedule T-100 Data Confidentiality February 3, 2009 Re: BTS Statement of Publicly Available Filings On January 28, 2009 the DOT's Bureau of Transportation Statistics denied Virgin America's request to withhold from public disclosure certain Form 41 financial, T-100 traffic, and Origin and Destination Survey data submitted to the BTS (See Docket OST-2008-0107). On January 29, 2009 Alaska withdrew its 2008 motion requesting that its traffic, revenue, and other form 41 data be held confidential and asked that the withdrawal be made effective contemporaneously with the release of Virgin America's Form 41 data. In the July 30, 2008 motion docketed in OST-2008-0238, Allegiant noted that they would withdraw their motion if and when Alaska withdraws its motion On February 3, 2009 at 10:00 A.M. the DOT's Office of Airline Information in the Bureau of Transportation Statistics made publicly available Virgin America's, Alaska's, and Allegiant's Form 41 financial, T-100 traffic, and IQ 2008 & 2Q 2008 DBIB O&D data on the DOT's Tran Stats public domain. On February 5, 2009 at 10:00 A.M. the DOT's Office of Airline Information in the Bureau of Transportation Statistics made publicly available Virgin America's, Alaska's, and Allegiant's 3Q 2008 DB1B O&D data on the DOT's Tran Stats public domain. By: BTS, Steven Smith |
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