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OST-2007-28149 - British Airways - Exemption and Amended Foreign Air Carrier Permit - US-EU
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British Airways PLC OST-2007-28149 - Exemption and Amended Foreign Air Carrier Permit - US-EU May 4, 2007 Application for an Amended Foreign Air Carrier Permit and Exemption Authority British Airways requests issuance of an amended foreign air carrier permit to the full extent authorized by the Air Transport Agreement Between the United States and the European Community and the Member States of the European Community to enable it to engage in:
British Airways further requests a corresponding exemption under 49 U.S.C. 40109 to the extent necessary to enable it to provide the service described above pending issuance of an amended foreign air carrier permit and such additional or other relief as the Department may deem necessary or appropriate. British Airways requests that the Department process this application pursuant to the streamlined regulatory procedures for licensing US and foreign air carriers set forth in the Notice dated August 23, 2005 (Docket OST-2005-22228), and issue a single order (1) granting the requested exemption authority for a two-year period or until after the requested permit authority becomes effective, whichever occurs first, and (2) approving the corresponding foreign air carrier permit amendment request under the show-cause procedures described in the August 23, 2005 Notice. British Airways requests that the authority described above be issued expeditiously. Given that the US-EC Agreement will take effect March 30, 2008, British Airways requests that the authority be granted to become effective as of that date or on any earlier date on which the US-EC Agreement is being applied. Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970, dhainbach@ggh-airlaw.com
May 21, 2007 Consolidated Answer of US Airways British Airways seeks to take full advantage of the open market provisions of the recently-signed aviation agreement between the United States and the European Union to serve any city in the U.S., and beyond, from any point in Europe. As a strong supporter of international liberalization, US Airways takes no issue with BA's application - except as it relates to any expansion of British Airways' U.S. operations to and from London's Heathrow Airport. Heathrow has long been the most important and most commercially desirable aviation market in Europe. Access to LHR by non-incumbent U.S. carriers has been widely recognized as the principal tangible benefit secured in the recent U.S.-EU agreement for U.S. interests - specifically, U.S. carriers who today are barred from Heathrow service, and their customers. Despite the significant accomplishment of the U.S.-EU Open Skies agreement in securing the prospect of legal access to LHR by non-incumbent U.S. airlines, these carriers still face immense practical hurdles to actually serving this critical facility. They are de facto barred by the extraordinary "real world" difficulty of obtaining the take-off and landing slots needed to operate at Heathrow. In light of these "facts on the ground," US Airways respectfully urges DOT to defer British Airways' application to the extent it seeks authority to expand or increase its transatlantic operations to/from Heathrow. Until US. non-incumbent network airlines (now serving London only via Gatwick) can gain reasonable competitive access to that uniquely important facility, acceding to British Airways' requests for unbridled expansion of its Heathrow operations to any and all points in the U.S. and beyond should be deferred. Only when all major U.S. non-incumbent airlines seeking to serve Heathrow can in fact do so, should the Department approve the amended authority sought by BA in this docket. There is certainly no need for the Department to act on BA's application now, nearly a full year before the effective date of the new Agreement that would afford British Airways the traffic rights it needs to undertake such expansion. Over the next year, there will be ample opportunity for the Department to assess the state of U.S. market access and U.S. opportunity to compete at Heathrow, before DOT acts on a request to authorize further expansion of BA services there. Counsel: US Airways, Howard Kass, 202-326-5153, howard_kass@usairways.com
June 4, 2007 Even before the ink is completely dry on the newly signed Air Transport Agreement between the United States and the European Community, US Airways is seeking to impose restrictions redolent of the previous regime. Although US Airways acknowledges that British Airways is simply seeking rights provided by the US-EC Agreement, it nonetheless urges the Department to withhold authority for British Airways in contravention of the letter and spirit of the Agreement. US Airways does not cite any authority for the discriminatory sanction it would have the Department impose. Withholding authorized rights at the unwarranted instigation of a single U.S. carrier would be inconsistent with U.S. law and policy. Contrary to the self-sewing assertions of US Airways there is an immediate and urgent need for expeditious approval of the British Airways application. Immediate approval is necessary to develop schedules, conduct marketing and promotional activities, and complete other preparations required to implement the authority requested immediately upon effectiveness of the new US-EC agreement. The application British Airways submitted on May 4, 2007 is ripe for decision. The application is fully consistent with the exchange of rights and obligations bargained for and agreed to by the United States and the European Community and its member states and memorialized by the US-EC Agreement. Compliance with the Agreement requires that the Department grant that application in full without any further delay. Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970, dhainbach@ggh-airlaw.com
June 12, 2007 BA's Reply suggests that US Airways' narrowly tailored request - for a delay in granting British Airways' request for full LHR-U.S. rights until DOT can review the market and ensure that U.S. carriers have similar Heathrow access opportunities - is somehow harmful to British Airways, despite the fact that any expanded trans-Atlantic authority will not even exist for another ten months. Two of the fundamental goals of the new U.S.-EU Agreement are the ability of carriers to compete fairly (i.e. "on a level playing field") and reciprocal market access. Consistent with these goals, US Airways would like to serve LHR but cannot simply because there are no slots available for U.S. carriers. While the Agreement (and the related DOT grant of blanket authority, cited by BA) will afford carriers like US Airways legal traffic rights to serve Heathrow for the first time, they cannot exercise those market access rights without available operating slots. Allowing a carrier to increase its dominance at an airport while other carriers remain shut-out from competing at that airport serves only to take a step backward from achieving the Agreement's fundamental goals. The Department should resist BA's efforts to bully it into immediately authorizing an extension of BA's LHR dominance while slot scarcity continues to prevent U.S. non-incumbent carriers from competing. Accordingly, DOT should defer BA's application to the extent stated until U.S. carriers, like US Airways, can secure practical, reasonable access to the uniquely important Heathrow market. Counsel: US Airways, Howard Kass, 202-326-5153, howard_kass@usairways.com
June 14, 2007 Pursuant to your request, I am forwarding British Airways’ Scheduled Route License No S/009 and its Charter Route License No C/009. Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3976, dhainbach@ggh-airlaw.com
Order 2007-6-19 Issued and Served June 29, 2007 Order Granting Exemption and to Show Cause We grant the request of British Airways Plc for an exemption under 49 U.S.C. §40109 to permit it (1) effective on the issue date of this order, to accept payment and issue tickets, and (2) effective March 30, 2008, to commence flight operations, for the services set forth below:
With respect to the applicant’s request for an amended foreign air carrier permit in this proceeding, we direct all interested persons to show cause why our tentative decision on that application, set forth above, should not be made final. By: Andrew Steinberg
Order 2007-10-1 Issued July 23, 2007 | Served October 2, 2007 By Order 2007-6-19, issued June 29, 2007, we directed all interested persons to show cause why we should not make final our tentative findings and conclusions stated therein and award an amended foreign air carrier permit in the form attached to the Order and subject to the conditions attached thereto. We gave interested persons 21 days to file objections to the Order. We said that if no objections were filed, all further procedural steps would be deemed waived, and the Department would enter an order (subject to Presidential review under 49 U.S.C. §41307) which would make final the findings and conclusions of the Order. No objections were received within the time period provided. By: Andrew Steinberg |
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