Docket OST-97-2578 / Polar Air / Answer of FedEx / June 9, 1997
Application of :
POLAR AIR CARGO, INC.
for an all-cargo frequency allocation (U. S.-Argentina)
June 9, 1997
ANSWER OF
FEDERAL EXPRESS CORPORATION
Pursuant to Rule 406 of the Rules of Practice of the Department of Transportation (the Department), /l Federal Express Corporation (Federal Express) hereby submits this Answer in response to the
Application of Polar Air Cargo, Inc. (Polar) for reallocation to Polar of the two U.S.-Argentina all-cargo frequencies currently allocated to Challenge Air Cargo, Inc. (Challenge).
Federal Express is not necessarily opposed to the grant of Polar's application, provided that the pending
Joint Application by Federal Express, Arrow Air, Inc. (Arrow) and Florida West International Airlines, Inc. (FWIA) for approval of the transfer of three Argentina cargo frequencies from Arrow and
l/ The Department has determined that frequency allocation proceedings are to be governed by the procedural rules applicable to exemption proceedings.
FWIA to Federal Express is approved by the Department. On the other hand, if any part of that Joint Application is not approved by the Department, Federal Express opposes the grant of Polar's application and urges that the concurrently-filed Contingent Application of Federal Express for reallocation to Federal Express of the two Argentina frequencies now allocated to Challenge be granted, and that Polar's application for those frequencies should be denied.
In further support of this Answer, Federal Express states as follows:
1. On the basis of information available to Federal Express, Federal Express agrees with Polar that Challenge is not currently utilizing its Argentina frequency allocation, and has not operated scheduled all-cargo service between the U.S. and Argentina for a continuous period of at least 90 days. In that circumstance, pursuant to the 90-day dormancy condition imposed on Challenge by Notice of Action Taken dated February 25, 1997, the Argentina frequency allocation granted to Challenge has now "expire[d] automatically and the frequencies ... [have] revert[ed] back to the Department for reallocation ...".
2. Concurrently herewith, Federal Express is filing a Contingent Application for the two Argentina cargo frequencies which have been abandoned by Challenge and which are now available for reallocation. The contingency to which Federal Express' application is subject relates to the concurrent pending
Joint Application by Federal Express, Arrow and FWIA in Docket OST-97-2548 for approval of the transfer of three Argentina frequencies to Federal Express. If that Joint Application is granted, Federal Express will withdraw its application for the former Challenge Argentina frequencies. If that Joint Application is denied in whole or in part, Federal Express will vigorously prosecute its application for the former Challenge Argentina frequencies, and will insist on its Ashbacker Doctrine /2 right to comparative consideration of that application with other mutually-exclusive applications for the same authority, including the application of Polar.
3. For the reasons of fact, law and policy set forth in the Joint Application in Docket OST-97-2548 and in the concurrently-filed Contingent Application of Federal Express, Federal Express submits that the public interest warrants the allocation of additional Argentina cargo frequencies to Federal Express, and that the public benefits attainable through the award of additional Argentina cargo frequencies to Federal Express are greater than the benefits attainable by the allocation of Argentina cargo frequencies to any other carrier.
2/ Ashbacker Radio Corp. v. F.C.C., 326 U.S. 327 (1945).
WHEREFORE, Federal Express urges the Department to defer action of the application of Polar for reallocation of the two Argentina cargo frequencies formerly allocated to Challenge until after the issuance of a Final Order granting the pending Joint Application of Federal Express, Arrow and FWIA in Docket OST-97-2548.
Respectfully submitted,
Nathaniel Breed of Shaw Pittman for Federal Express
June 9, 1997