OST-2007-28396 - ExpressJet - Form 41 Confidential Treatment

Public release of the detailed operational and traffic data contained in ExpressJet's Schedule T-100 report would have an extremely adverse competitive impact on the carrier given the unique operational aspects of ExpressJet's branded service and the fact that the service is only in its infancy. If this information were made publicly available, ExpressJet' s competitors would be able to obtain highly sensitive information about its new point-to-point service in these small markets, including information on the number of revenue passengers enplaned, revenue passengers transported, revenue passenger miles, revenue aircraft miles flown, revenue aircraft miles scheduled, among other things. ExpressJet simply cannot afford to have such competitively sensitive information made available to its competitors at this early stage in the development of its branded service. Indeed, American Airlines and Alaska Airlines have already chosen to institute new nonstop flights in six of ExpressJet' s newly inaugurated nonstop markets.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

Public release of the detailed operational and traffic data contained in ExpressJet's Schedule T-100 report would have an extremely adverse competitive impact on the carrier given the unique operational aspects of ExpressJet's branded service and the fact that the service is only in its infancy. If this information were made publicly available, ExpressJet's competitors would be able to obtain highly sensitive information about its new point-to-point service in these small markets, including information on the number of revenue passengers enplaned, revenue passengers transported, revenue passenger miles, revenue aircraft miles flown, revenue aircraft miles scheduled, among other things. ExpressJet simply cannot afford to have such competitively sensitive information made available to its competitors at this early stage in the development of its branded service. Indeed, American Airlines and Alaska Airlines have already chosen to institute new nonstop flights in six of ExpressJet's newly inaugurated nonstop markets.

With respect to the first prong of the test, the information for which ExpressJet seeks confidential treatment is clearly commercial or financial in nature. The Schedule T-100 report contains detailed traffic and operational data related to ExpressJet's new branded service including information on the number of revenue passengers enplaned, revenue passengers transported, revenue passenger miles, revenue aircraft miles flown, revenue aircraft miles scheduled. This type of commercial or financial information is highly proprietary and would cause substantial competitive harm to ExpressJet if it were made publicly available at this early stage in the development of ExpressJet's new branded service.

As requested. also enclosed is a CD-ROM that contains ExpressJet's complete Schedule T-100 reports (including data for ExpressJet's branded operations and for its other operations) for the months of April and May 2007. The complete Schedule T-100 reports are being submitted to BTS subject to our mutual agreement that, pending the Department's decision on ExpressJet's Motions for Confidential Treatment, the information relating to ExpressJet's branded operations contained in the complete Schedule T-100 reports for these two months will only be used for (i) internal Department purposes and (ii) for the purpose of compiling the data necessary to issue BTS's monthly airline traffic data press release. The Department agrees that traffic data for ExpressJet's branded operations will not otherwise be released to the general public pending disposition of the pending ExpressJet Motions.

American strongly objects to ExpressJet's unprecedented request. It would be highly unfair, prejudicial to other reporting carriers, and adverse to the public interest to withhold ExpressJet's T-100 data when the data submitted by all other carriers is released immediately. Timely release of carrier data is of paramount importance to its usefulness. As the Department has recognized, "[c]arriers use the Department's data for traffic forecasting and evaluation of new routes.

ExpressJet's suggestion that American Eagle has "already" entered three ExpressJet markets based on access to ExpressJet's T-100 data is false. American Eagle initiated service between Raleigh/Durham and Jacksonville, Kansas City, and Louisville on May 1, 2007, prior to the date that ExpressJet had even submitted its initial T-100 report on May 30, 2007, and indeed prior to the date that ExpressJet began serving these three markets itself on May 7, 2007.

As American Airlines, Inc. notes in its answer to ExpressJet’s motion, the motion was not served on any other carriers – in spite of the fact that it is premised on assertions ExpressJet makes with respect to both American Eagle and Horizon Air – and it followed a similar motion, dated May 30, 2007, also not served on any other carriers, requesting the same treatment for its T-100 data for the month ended April 30, 2007.

In the case of Alaska and Horizon Air, Horizon Air’s new Spokane-Sacramento service began on July 1, 2007, and its new Spokane/Boise-San Diego services will begin on July 22, 2007. The planning for these new routes began long in advance of ExpressJet’s first T-100 filing – none of which have yet to be made public because of ExpressJet’s pending requests for confidentiality. The planning processes Alaska and Horizon Air employ most assuredly do not revolve around ExpressJet or its traffic data. Nonetheless, ExpressJet’s desire to uniquely keep its traffic data cloaked in mystery is antithetical to the very marketplace approach which is central to any deregulated industry. The grant of ExpressJet’s request would also almost certainly lead to a cascade of similar requests as other carriers sought the same protection from competitive entry.

Unlike the protective cloak ExpressJet is seeking, Horizon Air’s new Spokane-Sacramento and Spokane/Boise-San Diego services, as well as other new services it is planning to inaugurate between now and the end of this year are all detailed on its website. More rather than less transparency will enhance new entry and greater reliance on competitive market forces. There is simply no reasonable policy basis or precedent for affording ExpressJet the special protection it is seeking from competition.

Northwest does not compete with ExpressJet’s “own branded” service in any nonstop city-pairs – but Northwest is very concerned about the troubling precedent that would be established by this request. Northwest would also prefer having access to other carriers’ data, while shielding its own from the eyes of the competition. The reporting requirements of Part 241 are designed to avoid this result, and the relief requested by ExpressJet would create an exception that would quickly swallow the rule.

Northwest spends a great deal of time and resources to comply with the Department’s Part 241 rules, and expects to have accurate, timely, and complete access to T-100 data of other carriers in return. The Department should ensure a level playing field, and clearly reciprocal access to data is a minimum threshold requirement if the Department intents to continue to collect and publish Schedule T-100 information. Should the Department decide to reexamine the data reporting rules, it should be done in the context of the ongoing Data Modernization NPRM.

United joins American Airlines in asking the Department to reject ExpressJet’s motion as “highly unfair, prejudicial to other reporting carriers, and adverse to the public interest...” See, Answer of American Airlines, Inc., dated July 5, 2007, Docket OST-2007-28396. United agrees with the arguments set forth in American’s answer and is submitting its own answer in order to amplify its concerns with ExpressJet’s unprecedented request for confidential treatment of otherwise public data.

There is nothing unique about ExpressJet or the markets it serves to warrant special treatment. ExpressJet essentially seeks special treatment which no other carrier has been afforded despite the fact that the T-100 reports of other reporting carriers (big and small) contain equally competitive sensitive information. United and other reporting carriers are all vulnerable to the actions of their competitors, some of which may be inspired by data in their T-100 reports. In fact, while ExpressJet urges the Department to withhold its T-100 reports from public disclosure for one full year, it will all the while be using the T-100 reports of all other reporting carriers to its commercial advantage.

As carriers operating small aircraft increase in market share and play a particularly large role in some smaller markets, any relief granted to ExpressJet now would pave the way for other similar carriers to request (and obtain) an exemption from the Department’s disclosure requirements, thereby eroding the quality of traffic data the Department has sought to improve. Thus, the Department’s data would no longer just lack ExpressJet’s purported “4/10th of 1% of total July, 2007 domestic ASM’s” but also the data of all other carriers that may be granted an exemption from public disclosure by the same logic put forward by ExpressJet.

As to the substance of the objections of American, United and Northwest, they are without merit and do not support their position that the ExpressJet Motions should be denied. At the outset, it should be noted that the three objecting air carriers -- American, United and Northwest -- are three of the largest and most powerful air carriers in the nation. Each carrier has, over the years, taken aggressive competitive positions when confronted with competition from smaller carriers. Their collective ability to mine the DOT traffic data for information that then permits them to fashion devastatingly accurate competitive responses to the new services of a regional carrier, is beyond dispute. Indeed, United admits that the T-100 reports may inspire such competitive conduct. American, for its part, highlights how the public benefits by having access to T-100 data. While United admits to the provocative uses of the data, American tries to paint a more benign situation, as if to suggest it is only idle intellectual curiosity that drives it to oppose the ExpressJet Motions. The Department should not accept this transparent line of reasoning on the part of American.

As to the substance of the objections filed by the three major air carder, they each claim that the Motions are unprecedented. That is not correct. Shuttle America and Republic Airlines both previously filed for confidential treatment of certain financial information regarding their then newly inaugurated large aircraft operations. Motion of Shuttle America, Inc. to Withhold Certain Information from Public Disclosure and Motion of Republic Airline, Inc. to Withhold Certain Information from Public Disclosure, Dockets OST-2005-23354 and 23355, both dated December 12, 2005. Like ExpressJet, both Republic and Shuttle America claimed that release of such financial information would allow competitors to gain insight into their cost structure and profit margins that would be injurious to their respective competitive positions. The DOT has not yet ruled on these pending motions. Although these carriers sought confidential treatment of financial information, and ExpressJet is seeking such treatment of a small subset of traffic data, the justification for filing these Motions is identical -- the potential harm to the filing carriers outweighs the benefits of having the data on file and capable of public inspection.

After the undersigned filed the Consolidated Reply of ExpressJet Airlines, Inc. in the above-referenced Docket, I became aware of the filing of the Answer of Alaska Airlines in response to the Rule 12 Motions previously filed by ExpressJet. This is to advise the Department that ExpressJet does not intend to file a separate reply to the Alaska filing as it raises no issue not already addressed by ExpressJet in its Consolidated Reply.

Public release of the detailed operational and traffic data contained in ExpressJet's Schedule T-100 report would have an extremely adverse competitive impact on the carrier given the unique operational aspects of ExpressJet's branded service and the fact that the service is only in its infancy. If this information were made publicly available, ExpressJet's competitors would be able to obtain highly sensitive information about its new point-to-point service in these small markets, including information on the number of revenue passengers enplaned, revenue passengers transported, revenue passenger miles, revenue aircraft miles flown, revenue aircraft miles scheduled, among other things. ExpressJet simply cannot afford to have such competitively sensitive information made available to its competitors at this early stage in the development of its branded service. Indeed, American Airlines and Alaska Airlines have already chosen to institute new nonstop flights in six of ExpressJet's newly inaugurated nonstop markets.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

ExpressJet’s motion asserts that the T-100 information for its new branded operations falls within 552(b)(4) of the Freedom of Information Act and is, therefore, not subject to public release. The motion requests that the subject information be withheld from public disclosure until at least May 30, 2008. A Motion for Confidential Treatment, dated May 30, 2007, was also filed for the branded operations contained in ExpressJet’s April 2007 T-100 report.

Pending the Department’s decision on ExpressJet’ s Motions for Confidential Treatment, we will withhold ExpressJet’s information relating to its new branded operations that are contained in its T-100 reports and submitted under a Motion for Confidential Treatment. During the period of confidentiality, ExpressJet’s T-100 data For its branded operations will only be used for internal Department of Transportation purposes and for the purpose of compiling the data necessary to issue BTS’ monthly airline traffic data press release. Otherwise, the Department will withhold ExpressJet’s information for its branded operations as governed by the provisions of 49 CFR 7.17.

Without repeating all of the compelling reasons given by other parties for denying ExpressJet's motions, it suffices to say that ExpressJet has offered no legitimate factual or legal basis for the extraordinary relief it is requesting. Contrary to ExpressJet's assertions that its branded service has "unique operational aspects", even a cursory review reveals this is not the case. ExpressJet notes that its new branded flying consists of point-to-point service in "relatively thin" markets. Southwest has operated a point-to-point route network since its inception in 1971, and many of its markets were "relatively thin" prior to Southwest's entry. ExpressJet has given no explanation why such service should not be subject to the normal reporting obligations imposed on all other airlines.

Although ExpressJet suggests that its service to "relatively small city‑pair markets" is somehow unique, it is common knowledge that many other airlines, and most certainly their regional feeders, serve small city‑pairs as well. ExpressJet also implies that conducting its operations with "small 50‑seat regional jet aircraft" makes it unique. June 20 Motion, at 3. Yet most if not all network airlines operate small aircraft, either directly or via affiliated carriers, and other carriers (JetBlue, for example) also have added smaller aircraft to their fleets in order to better access smaller markets. These carriers are all subject to the Department's public data reporting requirements notwithstanding their use of small aircraft in small markets. There is therefore no basis for the selective withholding of ExpressJet's data from public disclosure.

American Airlines, Inc. hereby answers in opposition to the third successive monthly motion submitted by ExpressJet Airlines, Inc., this time on July 24, 2007 seeking confidential treatment for "at least" one year of its Form 41, Schedule T-100 capacity and traffic data for the month ended June 30, 2007. ExpressJet's two prior motions covered data for the months ended May 31, 2007 and April 30, 2007.

On July 5, 2007, we answered in opposition to the two prior motions, showing why the confidential treatment ExpressJet is seeking should be denied. The Department has not acted on any of ExpressJet's motions.

However, the mere filing of such motions has the effect of conferring confidentiality until the Department issues its decision. Accordingly, we move for immediate denial of ExpressJetls requests so as not to perpetuate a situation in which ExpressJet is achieving unwarranted confidentiality by default.

Like ExpressJet, JetBlue is primarily a point to point carrier. Unlike ExpressJet, JetBlue from its infancy - a complete start up with no corporate or prior parental operations to rely upon or support its operations- has filed the Schedule T-100 data requested by ExpressJet to be maintained in confidence. Each and every one of JetBlue's competitors has been able to follow each of JetBlue's markets every month as the data is submitted as required by regulation.

Arguments to the effect that ExpressJet is in a unique or different position than any other carrier, no less different from any startup carrier simply do not withstand scrutiny. With the recent start of service by Skybus and the imminent commencement by Virgin America, both point to point carriers like JetBlue, will they also be exempted from filing this data?

JetBlue will not repeat the arguments presented by American, Alaska, Northwest, United and Southwest in their pleading but simply notes that their arguments are compelling. We also support American's filing requesting an immediate decision. If such a decision is not forthcoming, JetBlue will consider taking its own action to protect similar data.

Alaska Airlines, Inc. hereby answers and objects to ExpressJet’s motion of July 24, 2007, requesting confidential treatment for its T-100 capacity and traffic data for the month ended June 30, 2007, and further requesting that the Department defer public release of its data until at least May 30, 2008. This is the third such motion that ExpressJet has filed as part of its effort to shield from public view information that it, like every other carrier, is required to submit to the Department.

Alaska again objects to ExpressJet’s request. ExpressJet’s motion is at odds with the letter and the spirit of the Department’s Part 241 requirements. Transparency is integral to reliance on competitive market forces, and a key to enhancing the new entry and new service goals of airline deregulation. There is simply no reasonable policy basis or precedent for affording ExpressJet the special protection it is seeking from competition.

To preclude ExpressJet from achieving its goal of unprecedented and unwarranted confidentiality merely by filing another motion each month, Alaska hereby joins American’s motion for immediate denial of ExpressJet’s motion of July 24, 2007 and its two predecessors.

Southwest argues that the DOT should not grant the relief sought by ExpressJet because it would set a precedent for other similar requests. ExpressJet would note in response that the DOT has the authority and discretion to grant exemptions from the statute and the controlling regulations and that the DOT makes such determinations on a case-by-case basis. If another carrier files a Rule 12 motion seeking confidential treatment of T-100 data, and if the filer can justify the granting of such relief, then it too ought to be granted. If not, the DOT should not grant the Rule 12 request. In other words, favorable action on the ExpressJet Motions does not set a precedent, since each motion is to be judged on the merits, whatever they may be.

In the case of the ExpressJet Motions, the arguments offered by the major carriers in opposition to them go a long way to prove the point ExpressJet is making in its Motions: these carriers seem less interested in the principle of the DOT's data reporting regime, than their desire to have access to data that could allow them to target in an aggressively competitive manner the newly instituted ExpressJet branded operation, to the detriment of the flying public who has warmly welcomed this new nonstop service.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

JetBlue hereby requests confidential treatment of certain information contained in Schedule T-100 - US. Air Carrier Traffic and Capacity Data By Nonstop Segment and On-flight Market, for the month ended July 31, 2007, be accorded confidential treatment. This schedule is submitted separately herewith under seal, marked with a request for confidential treatment pursuant to Rule 12. JetBlue requests that this data be withheld from public disclosure for a period of at least twelve months.

JetBlue in making this Motion does so to avail itself of the protection of Rule 12 while a decision is made by the Department on its Motion. JetBlue is aware of the Motion filed by ExpressJet in this Docket OST-2007-28396 and the responsive pleadings filed by various carriers. JetBlue is willing to abide by the Department's decision in the ExpressJet matter. Should DOT grant ExpressJetYms otion, then, like ExpressJet, JetBlue needs and wants the anonymity provided by the 12 month period requested in this Motion to allow competitive forces to impact these markets without the benefit of public scrutiny of the traffic data provide by JetBlue. JetBlue's request is limited to those markets that it has started service in since July 2006. Like ExpressJet's request under Rule 12, disclosure of traffic statistics concerning these new routes jeopardizes JetBlue's ability to develop such routes.

As set forth in ExpressJet's requests for confidential treatment in this docket, dated May 30, June 20 and July 24, 2007, JetBlue believes that the public release of the detailed operational and traffic data contained in JetBlue's Schedule T-100 report has had and will have an extremely adverse competitive impact on the carrier, given the new service started in these markets and given the unique operational aspects of JetBlue's branded service. The release of this information has given JetBlue's competitors current highly sensitive information about its point-to-point service in these markets. The further release of this information in light of ExpressJet's availing itself of the protection of Rule 12 while a decision is pending before DOT further compounds the error.

ExpressJet Airlines, Inc. hereby answers in opposition to the Motion of JetBlue Airways Corporation for confidential treatment of certain T-100 data for the month ended July 31, 2007. JetBlue is on record as opposing similar motions filed by ExpressJet in Docket OST-2007-28396, and therefore the Department can reasonably look upon the instant JetBlue motion with a certain incredulity. Specifically, JetBlue is seeking confidential treatment of its T-100 data related to markets in which it has first provided service since July 2006. JetBlue does not identify the markets for which confidential treatment is being sought or indicate whether the markets are served with its larger Airbus fleet or its 100-seat Embraer 190 fleet. Nor does JetBlue characterize the size of the markets for which it seeks to withhold traffic data.

Ironically, after initially opposing ExpressJet's motion for confidential treatment of limited T-100 data, JetBlue now expressly endorses ExpressJet's justification for the filing of the ExpressJet Rule 12 Motions.

JetBlue has not explained how it will be protected from the claimed adverse impact the release of the T-100 data would have on it, when the data for which it is seeking confidential treatment is already a matter of public record for the months July 2006 through June 2007 -- the time period during which JetBlue routinely filed its T-100 data for all its operations and did not seek confidential treatment. On the other hand, ExpressJet carefully preserved its legal position by filing its first Rule 12 Motion in May 2007 for its April 2007 branded flight operations -- the first month ExpressJet was obliged to file T-100 data for branded operations. In other words, JetBlue is not really seeking the relief for which it filed as much as it seeks to frustrate the DOT's consideration of the pending ExpressJet Motions. The motivation of JetBlue is highly transparent and does not in the least detract from the underlying merits of the ExpressJet Rule 12 Motions, which ExpressJet urges the DOT grant in due course.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

Hereby requests, pursuant to Rule 12 of the Department's Rules of Practice that certain information contained in ExpressJet's Form 41, Schedule T-100, U.S. Air Carrier Traffic and Capacity Data By Nonstop Segment and On-flight Market, for the month ended July 31, 2007, be accorded confidential treatment. Specifically, ExpressJet hereby requests that the portion of its Schedule T-100 report that relates to its new "ExpressJet" branded operations be withheld from public disclosure until at least May 30, 2008.

American Airlines, Inc. hereby answers in opposition to the fourth successive monthly motion submitted by ExpressJet Airlines, Inc., this time on August 24, 2007 seeking confidential treatment for "at least" one year of its Form 41, Schedule T-100 capacity and traffic data for the month ended July 31, 2007.

On July 5, 2007, we answered in opposition to the first two motions, showing why the confidential treatment ExpressJet is seeking should be denied. We answered the third motion on July 24, 2007. The Department has not acted on any of ExpressJet's motions.

However, the mere filing of such motions has the effect of conferring confidentiality until the Department issues its decision. Accordingly, we move for immediate denial of ExpressJet's requests so as not to perpetuate a situation in which ExpressJet is achieving unwarranted confidentiality by default.

We are denying the requests for confidential treatment of a portion of ExpressJet’s Form 41 Schedule T-100 traffic data for the months of April, May, June and July 2007.

ExpressJet unquestionably has competition from a number of air carriers and undoubtedly these carriers will review ExpressJet’s data. However, we disagree that the release of T-100 traffic data will permit a competitor to use this information to make strategic judgments that would likely cause substantial harm to ExpressJet’s competitive position. While T-100 data provides a competitor aggregate numbers; for a particular route, these numbers do not provide the competitor with the ability to determine profit margins or other sensitive business information. Carriers compete for customers based ton 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 Schedule T-100 traffic data. It would be counter to the Department’s long-standing data dissemination practices and the public interest for us to grant a motion of confidential treatment for Schedule T-100 data absent strong evidence of the likelihood of substantial competitive harm. Moreover, it would be unfair for the Department to deny ExpressJet’s competitors access to ExpressJet’s reports while their reports are subject to review by ExpressJet.

The Department also considered the concerns expressed by the dissenting carriers. The Department agrees it would be highly unfair, prejudicial to other reporting carriers, adverse to the public interest to withhold ExpressJet’s T-100 data when the data submitted by all other carriers are released immediately. Timely release of carrier data is of paramount importance to its usefulness since all carriers rely on the Department’s data as the fundamental, and least expensive source of industry traffic data. We also agree with the dissenting carriers that if the Department granted ExpressJet's request, other carriers would also attempt to opt out of the public T-100 data system by requesting confidential treatment of their submissions, and the T-100 data would soon become fragmented and of little use to the Department’s numerous stakeholders (air carriers, airports., government agencies, manufacturers, industry associations, consultants, academia, researchers, financial analysts, investors, and the general public).

ExpressJet has failed to demonstrate how the release of the monthly reports is likely to cause substantial competitive harm. Accordingly, ExpressJet’s motions for confidentiality of its monthly Schedule T-100 report for April, May, June and July 2007 are denied.

Consistent with its commitment contained in its August 21, 2007 Motion for Confidential Treatment, JetBlue Airways Corporation hereby notifies the Department that it no longer will pursue the relief requested in that motion. JetBlue makes this decision as a result of the September 10, 2007 letter sent by you to Robert P. Silverberg, Esq., counsel for ExpressJet Airlines, Inc., denying ExpressJet's Motion for Confidential Treatment of certain T-100 traffic data submitted to the Bureau of Transportation Statistics.

JetBlue does not object to the public release of the information it requested be maintained confidential in that August 21, 2007 filing.

ExpressJet takes strong exception to the conclusion that release of the T-100 data for ExpressJet' s branded flights will not permit "a competitor to use this information to make strategic judgments that would likely cause substantial harm to ExpressJet' s competitive position". Decision Letter, page 3. In reaching this clearly erroneous conclusion, the Acting Assistant Director concedes that the data does, in fact, as argued by ExpressJet, provide a competitor city-pair specific traffic data, including revenue passengers enplaned, revenue passengers transport, revenue passenger miles, revenue aircraft miles flown, revenue aircraft miles scheduled and, most importantly, load factor data, but then goes on to conclude that the traffic data alone does not provide ",.,the competitor the ability to determine profit margins or other sensitive business information." Id. Importantly, ExpressJet did not argue that the release of the T-100 data would, in fact, directly provide insight into the financial performance of its newly instituted branded flying operations. However, as is well known in the industry, detailed city-pair traffic data alone is sufficient to provide considerable understanding about the relative performance of the ExpressJet branded flights that are now in their developmental stage, thereby allowing finite competitive judgments to be made on the basis of the data.

Although the Acting Assistant Director did not make the point until the very end of the Decision Letter that approval of the ExpressJet Rule 12 motions would fragment the DOT's data dissemination program, this contention may be at the heart of the ruling on the ExpressJet's motions. However, consideration of this factor is not the legal test that applies in this matter. Earlier in the Decision Letter, the Acting Assistant Director correctly notes that the T-100 data ExpressJet seeks be granted confidential treatment is "commercial" or "financial" obtained by a party outside the government, leaving only the question whether it is "confidential" or "privileged." As to what constitutes confidential information the Decision Letter cites to National Parks for the proposition that data is considered confidential if its release would cause substantial competitive harm to the person supplying the information. Harm to a competitor is not measured or determined based on the impact the release would have on the government-only the impact on the party from whom the information was obtained.

Accordingly, to the extent the root objection of the DOT to the ExpressJet Rule 12 motions is concern about the impact a favorable decision would have on the DOT's data collection and dissemination programs, (a concern which ExpressJet asserts is overblown considering, all of discretion the Acting Assistant Director has to approve or deny other possible Rule 12 motions based on their respective merits) such concern is misplaced and clearly not part of a proper Exemption 4 analysis. Indeed, by elevating concern about the fragmentation of the data collection and dissemination program above all other considerations, the Acting Assistant Director has made FOIA Exemption 4 a nullity by setting up a policy consideration that then trumps any consideration of the competitive harm release of the data would have on any Rule 12 movant.

The Decision Letter has been shown to be clearly erroneous (with regard to the impact the release of the data would have on the competitive position of ExpressJet); that the legal conclusion on which the decision was based was contrary to law (nullifying FOIA Exemption 4 in favor of an across-the-board rejection of any Rule 12 motions seeking protection of T- 100 data); that the Decision Letter raises an important question of policy (the goal of the DOT to foster a competitive aviation system); and that the decision is deficient on its face (for the detailed reasons set forth in this petition and the accompanying Declaration). Accordingly, the decision of the Acting Assistant Director should be reversed and confidential treatment given to ExpressJet' s T- 100 branded flight traffic data and related statistics.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

ExpressJet is seeking to overturn the decision issued by the Acting Assistant Director, Aviation Information, on September 10, 2007, denying four successive monthly motions by ExpressJet for confidential treatment of its T-100 capacity and traffic data for April, May, June, and July 2007. The Acting Assistant Director's decision is plainly correct as a matter of fact, law, policy, and precedent, and should promptly be affirmed.

The fact is that American also operates point-to-point routes, such as Austin-Sacramento, Austin-Seattle, and Minneapolis/St. Paul-New York (LGA), to name a few, and most other reporting carriers do so as well. Under ExpressJet's proposition, such data would likewise merit confidential treatment.

If ExpressJet's rationale of point-to-point service prevails, other carriers will - as a matter of competitive fairness - seek confidentiality for their own data in similar markets, and the Department will have no principled basis but to grant such requests. The outcome predicted in the September 10 decision will quickly follow: "[O]ther carriers would ... attempt to opt out of the public T-100 data system by requesting confidential treatment of their submissions, and the T-100 data would soon become fragmented and of little use to the Department's numerous stakeholders (air carriers, airports, government agencies, manufacturers, industry associations, consultants, academia, researchers, financial analysts, investors, and the general public)."

We note that the mere filing of ExpressJet's petition for review has the effect of maintaining confidentiality of its monthly T-100 reports for as long as the Department does not act. Indeed, that may be the principal reason why ExpressJet petitioned for review. Accordingly, we request immediate denial of ExpressJet's petition so as to bring to an end the unwarranted confidentiality of ExpressJet's data.

In our answer filed in the referenced docket on September 27, 2007 to ExpressJet's petition for review of staff action, p. 2, paragraph 2, line 2, "Austin-Sacramento" should be changed to "Austin-San Jose, CA."

There is no legitimate basis for excusing ExpressJet from the public reporting obligations that all other airlines are subject to. JetBlue urges the Department to deny ExpressJet's motions. The Staff action set forth in Mr. Moritz's letter dated September 10, 2007 should be affirmed.

Without rearguing and reasserting positions taken in this docket which are clear, JetBlue would point out that ExpressJet while asking for relief from a rule that applies to all air carriers, itself most assuredly takes full advantage of all data filed with DOT, including similar T-100 data for which it requests unique treatment. JetBlue filed in this docket for confidentiality of its own T-100 data on the basis that if ExpressJet by merely filing a Rule 12 motion can keep from the public traffic data, all other carriers should and must be afforded the same protection. JetBlue, true to its commitment to the Department in its motion under Rule 12, withdrew its motion when the Acting Assistant Director issued his letter denying ExpressJet's request. The Department surely realizes that should it grant the relief requested by ExpressJet in this docket, JetBlue will immediately resubmit its Motion and expect similar treatment for at least its point to point T-100 data if not more. It seems apparent that all airlines will follow suit.

ExpressJet concedes that “many passengers using the services of ExpressJet are being diverted from other carriers.” ExpressJet’s business plan involves offering non-stop, “point-to-point” services in order to capture passengers that would otherwise travel on the one-stop services provided by ExpressJet’s competitors. While ExpressJet does not describe the data it consulted to determine which markets would be ripe for its non-stop service and instead claims it forged these non-stop markets “through its own efforts and ingenuity”, ExpressJet’s analysis almost surely involved the use of Department traffic data filed by other carriers. RITA has correctly noted that it would be unfair to allow a carrier such as ExpressJet to benefit from access to its competitors’ traffic data while shielding its own data from the view of those same competitors.

Throughout this proceeding ExpressJet has failed to identify the competitive injury it would suffer from the release of its data. Rather, it merely reiterates its concern that competitors would mount a competitive response in the markets that ExpressJet has chosen to enter through the introduction of additional or improved services. Consumers, however, would greatly benefit from such a competitive response. This is the essence of competition guaranteed by the principles of airline deregulation. RITA correctly recognizes that it would be inappropriate to protect one class of carrier (i.e., one such as ExpressJet) from competition while allowing it free access to markets served by others. While ExpressJet may face reciprocal competition from its competitors, it does not mean that such competition would result in ExpressJet suffering “substantial competitive injury” that warrants shielding the carrier from competition by withholding its traffic data. Indeed, ExpressJet is no more the injured party in this scenario than are the competitors whose markets ExpressJet has entered.

United urges the Department to act quickly to reject ExpressJet’s continued attempt to shield its traffic data from its competitors. ExpressJet has shown no error in the Decision of RITA to release ExpressJet’s data in the same manner as that to which all other carriers’ data is subject. Every day that ExpressJet succeeds in preventing the release of its data by filing repetitive arguments that have already been considered and rejected is an abuse of the Department’s processes and should not be condoned. Indeed, by succeeding in securing protection from release of these data for over four months merely by filing the same arguments over and over, ExpressJet offers a road map for others to interfere with the open framework of a competitive marketplace by filing similar motions. RITA correctly recognizes this risk if the relief sought by ExpressJet is not denied, and the Department should quickly affirm its staff’s decision in that regard.

As Southwest and several other parties have observed, ExpressJet has simply failed to establish any legitimate factual or legal basis for exempting it from the industry-wide public reporting obligations that apply to all airlines. ExpressJet's latest petition rehashes its previous arguments but does not provide any new justification for its extraordinary request. Therefore the Department should affirm the Research Administration's decision without delay and bring closure to this matter.

Even assuming that the public release of T-100 data could have anti-competitive uses, the Department must treat similarly situated carriers equally. If it grants ExpressJet's request, the Department will have no choice but to grant similar motions that are certain to be filed by other carriers, including Southwest, requesting the same relief. ExpressJet's suggestion that the DOT should determine each request on its individual merits is meaningless because the Department would have no principled way to distinguish between the various motions without using subjective value judgments as to which airline should be given a competitive advantage and which should not. While Southwest agrees that there may be competitive concerns regarding the publication of this data, any policy change should be considered in the context of the entire industry and apply evenhandedly to all competitors.

ExpressJet Airlines, Inc. hereby requests, pursuant to Rule 12 of the Department's Rules of Practice that certain information contained in ExpressJet's Form 41, Schedule T-100, U.S. Air Carrier Traffic and Capacity Data By Nonstop Segment and On-flight Market, for the month ended August 3 1, 2007, be accorded confidential treatment. Specifically, ExpressJet hereby requests that the portion of its Schedule T-100 report for the month of August 2007 that relates to its new "ExpressJet" branded operations be withheld from public disclosure pending the Department's ruling on ExpressJet's Petition for Review of Staff Action filed in Docket OST-2007-28396 on September 20, 2007. If the Department grants the Petition for Review, then ExpressJet further requests that the portion of its Schedule T-100 report for August 2007 that relates to its branded operations be withheld from public disclosure until at least May 30, 2008.

The affect of the ExpressJet Petition for Review was to stay the public release of the Schedule T-100 data for the ExpressJet branded operations for the months of April, May, June and July 2007 until the Department has had an opportunity to fully consider and address the critically important issues raised by ExpressJet in its Petition and to rule thereon. Accordingly, ExpressJet hereby requests that its August 2007 T-100 branded traffic data similarly be withheld from public disclosure pending the Department's action on the ExpressJet Petition for Review and, if the Department grants the Petition for Review, ExpressJet further requests that confidential treatment be accorded to its August 2007 Schedule T-100 branded traffic data until at least May 30, 2008.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

ExpressJet need not belabor the point, although the opposing carriers keep missing the point. The ExpressJet Motions were a short term solution to a very real problem-the downside of providing its competitors with detailed market data as ExpressJet's branded service is just being launched.

American and Southwest both argue that they too operate in markets, as does ExpressJet's branded service, and that it would be unfair to grant confidential treatment to ExpressJet without also granting similar treatment to their data. Of course, it is obvious that these carriers, with decades of service to the traveling public, have brand recognition that ExpressJet lacks, and that fact is among the several factors which distinguish the ExpressJet Motions from those others that could be filed, including the one filed and subsequently withdrawn by JetBlue. Without wishing to display more than a modicum of cynicism, these carriers make the "floodgate" argument (even though it is not relevant) merely to divert the DOT from consideration of the merits of the only well documented and justified set of T-100 Rule 12 Motions that are pending before the Department.

United argues that consumers will benefit by allowing carriers competing with ExpressJet to have access to its data. United, and the other opposing carriers, are only too aware of the types of extreme competitive responses new entrant air carriers have been subjected to when entering new markets. The short-term competitive gains of which United speaks result from initiation of competing services by incumbent carriers are just that--short term. These competitive benefits evaporate when the incumbent carrier forces the new entrant to retreat from the market. Once that occurs, the incumbent carrier reduces its schedule and increases its fares. So how then is the consumer well-served by this recognized pattern of competitive responses?

ExpressJet would observe that Southwest concedes the viability of the position of ExpressJet when it states that "Southwest agrees [with ExpressJet] that there may be competitive concerns regarding the publication of this data.. ." ExpressJet's limited duration request for confidential treatment (through May 2008) of its branded flight data is consistent with Southwest's concern about the competitive nature of the data and how it can be misused by other air carriers. Accordingly, ExpressJet urges the Acting Assistant Director to take into account the unique factors that are now clearly established on the record that favor reversal of the decision of the Acting Assistant Director and, thereby, on reconsideration grant confidential treatment to ExpressJet's T-100 data for its branded traffic through May 2008 as requested by ExpressJet.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

By way of background, by motions dated May 30, June 20, July 24, August 24, 2007, ExpressJet requested that the Department grant confidential treatment to the portions of its Schedule T-100 reports for the months of April, May, June and July 2007, respectively, that contain information on ExpressJet's new branded service. ExpressJet requested in these motions that such information he withheld from public disclosure until at least May 30, 2008. By letter dated September 10, 2007, the Acting Assistant Director, Aviation Information, Research and Innovative Technology Administration, denied the motions filed by ExpressJet seeking confidential treatment of its Schedule T-100 data for its ExpressJet branded operations for these four months. Subsequently, on September 20, 2007, ExpressJet filed in this Docket a Petition for Review of Staff Action in which ExpressJet demonstrated that the September 10th decision of the Acting Assistant Director was based on a clearly erroneous material fact; that the legal conclusions on which the decision was based are contrary to applicable law, Department rules and precedent; that a substantial and important question of policy is involved; and that the decision is substantially deficient on its face. Therefore, ExpressJet requested in its Petition for Review that the decision of the Acting Assistant Director he reversed and that confidential treatment be given to ExpressJet's T-100 branded flight traffic data and related statistics through at least May 30, 2008.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

This letter is in response to the September 20, 2007, Petition for Review of Staff Action, filed by ExpressJet Airlines. The Petition appeals the September 10, 2007, decision denying the motions filed by ExpressJet seeking confidential treatment of its branded service Schedule T-100 data for the months of April, May, June and July 2007. In an October 2, 2007, Motion for Confidential Treatment, ExpressJet has requested that its branded service operations contained in its August 2007 T-100 report also be withheld from public disclosure pending the Department's decision on ExpressJet' s Petition for Review of Staff Action. ExpressJet' s August 2007 branded service T-100 data will be kept confidential pending the Department's decision on the appeal for review. Accordingly, ExpressJet's motion regarding its August 2007 branded service T- 100 data is included in the scope of this letter.

I have reviewed the appeal of the staff action denying ExpressJet's motions for confidential treatment and wish to inform you that I have not found a compelling justification for overturning the original denial of ExpressJet' s motions for confidential treatment. In accordance with the provisions of Title 14 Code of Federal Regulations sections 385.33 and 385.34, I have submitted ExpressJet's Petition for Review of Staff Action to the Director, Bureau of Transportation Statistics who, under the provisions of 14 CFR section 385.34, is the Reviewing Official for the September 10, 2007, staff action.

Alaska Airlines, Inc. and Horizon Air Industries Inc. hereby request confidential treatment of certain information contained in each of their T-100 U.S. Air Carrier Traffic and Capacity Data By Nonstop Segment and On-flight Market schedules in the markets specified hereinafter for the month ended October 31, 2007. See Indices A and B These Schedules will be submitted under seal on or about November 19, marked with a request for confidential treatment in accordance with Rule 12. The Joint Applicants are requesting in advance that this data be withheld from public disclosure for at least twelve months or until the Department definitively denies Expressjet Airlines, Inc.'s petition for review of staff action and directs Expressjet to file its T-100 data publicly, whichever period is shorter. Until the Department rules definitively on and denies Expressjet’s petition, the Joint Applicants should not be required to make their Schedules available publicly. To require them to do otherwise would provide Expressjet with an unfair competitive advantage not enjoyed by any other carrier and would subject the Joint Applicants to actual competitive harm.

The Joint Applicants are requesting confidential treatment for those markets in which they are currently competing with Expressjet. The Joint Applicants also seek prospective confidential treatment for any markets in which they may later compete with Expressjet. The cumulative effect of Expressjet being permitted to keep its T-100 data confidential at the same time it enjoys unrestricted access to the Joint Applicants’ T-100 data is adversely distorting the natural competitive interplay in those markets in which the Joint Applicants and Expressjet compete. This one-sided manipulation of the competitive environment is also negatively affecting the Joint Applicants’ planning for entry into new markets, and is therefore the antithesis of policies the Department seeks to foster.

Southwest Airlines reiterates its opposition to the continued efforts of ExpressJet Airlines to withhold its T-100 traffic and capaity data from public disclosure.

It suffices to say that, as we and several other parties have observed, ExpressJet has simply failed to establish any legitimate factual or legal basis for exempting it from the public reporting obligations that apply to all other airlines. Accordingly, we urge the Department to promptly affirm the Research Administration's decision denying ExpressJet's motions for confidential treatment and bring much-needed closure to this matter.

How can their application meet the test for confidential treatment when they argue that the ExpressJet Airlines, Inc. Rule 12 motions fail the same test? The answer it cannot. The Joint Application is yet another attempt by carriers opposed to ExpressJet's Rule 12 motions to try to get the Department to rule in opposition to ExpressJet's Petition for Review of Staff Action denying ExpressJet's Rule 12 motions. The Department should not permit this obvious tactic to succeed. Rather it should rule on the merits of ExpressJet's Petition for Review of Staff Action - a ruling requested by ExpressJet - without regard to attempts by others to create an issue where none exists.

Alaska/Horizon are just recycling the tactic used by JetBlue when it filed a Rule 12 motion, curiously, and like the Joint Applicants, in the ExpressJet Docket OST-2007-28396, making a broad and nonspecific request for confidential treatment of all its T-100 data. JetBlue withdrew its request when the Acting Assistant Director, Aviation Information, Research and Innovative Technology Administration, denied on September 10, 2007 the Rule 12 motions filed by ExpressJet seeking confidential treatment of its Schedule T-100 data for ExpressJet branded operations for the months of April, May, June and July, 2007. Because ExpressJet has since filed its Petition, which is currently pending, Alaska and Horizon, like JetBlue, are seeking to attempt to influence the outcome of the DOT'S decision on the Petition.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

hereby requests, pursuant to Rule 12 of the Department's Rules of Practice (14 C.F.R. § 302.12), that certain information contained in ExpressJet's Form 41, Schedule T-100, U.S. Air Carrier Traffic and Capacity Data By Nonstop Segment and On-flight Market, for the month ended October 31, 2007, be accorded confidential treatment. Specifically, ExpressJet hereby requests that the portion of its Schedule T-100 report for the month of October 2007 that relates to its new "ExpressJet" branded operations be withheld from public disclosure pending the Department's ruling on ExpressJet's Petition for Review of Staff Action filed in Docket OST-2007-28396 on September 20, 2007. If the Department grants the Petition for Review, then ExpressJet further requests that the portion of its Schedule T- 100 report for October 2007 that relates to its branded operations be withheld from public disclosure until at least May 30, 2008.

Counsel: Silverberg Goldman, Robert Silverberg, 202-944-3300, rsilverberg@sgbdc.com

As the Director, Bureau of Transportation Statistics, I am the Reviewing Official and I am exercising my discretionary right of review for the September 10, 2007, staff action. I have reviewed the appeal of the staff action denying ExpressJet' s motions for confidential treatment and considered all documents properly filed in DOT Docket OST-2007-28396. I find that Expressjet did not present any additional evidence to demonstrate the likelihood that Expressjet would suffer substantial competitive harm from the release of the T-100 data for Express Jet's branded flights. Based on my review of the record in Docket 28396, I am affirming the staff action in this matter because I did not find a compelling justification for overturning the original denial of ExpressJet' s motions for confidential treatment.