2007 US-China Combination Frequency Allocation Proceeding

Order 2007-1-15
OST-2006-25275

Issued and Served January 25, 2007

Order Denying Motion of United Air Lines for Pendente Lite Authority

We have decided to deny United’s motion for pendente lite sales and marketing authority. While we understand United’s concerns, and those of the Washington civic parties supporting its request, we have decided, taking into account all of the circumstances present in this case, that the public interest favors our according the greater weight here to the avoidance of pendente lite action. We are not persuaded by the cases cited by United. In the 1999 U.S.-Italy Combination Services Case, where Delta sought and was granted pendente lite sales and marketing authority the Department concluded that granting Delta’s request was in the public interest in light of the specified combination of decisional factors(See notice of action taken dated March 4, 1999, in Docket OST-1998-4854). We do not find a comparably compelling set of factors here to warrant granting United pendente lite authority. The other cited precedents also involved special circumstances including the nature of the rights granted. For example, in the Japan and Canadian proceedings the Department solicited separate simultaneous pendente lite applications that were resolved prior to a tentative decision in the route case (See Orders 1998-2-12 and 1995-2-52). In the Canadian cases, the grant of prompt authority was essential to take advantage of phased-in rights which would have become moot by the time a full proceeding could have been completed. In none of the cases cited by United, unlike in this case, were objections filed by any party. Therefore, we will deny United’s motion.

By: Andrew Steinberg