OST-97-2230 / 97-2442 / 97-2557 / 95-277 / July 17, 1997

Application of Frontier Airlines for an exemption from 14 C.F.R. Part 93, Subpart K and S. pursuant to Section 206 C (l) of the Federal Aviation Act of 1996

Application of ValuJet Airlines, Inc. for an exemption from 14 C.F.R. Part 93, Subpart K and S. pursuant to Section 206 C(l) of the Federal Aviation Act of 1996

Application of Air Tran Airways, Inc. for an exemption from 14 C.F.R. Part 93, Subpart K and S. pursuant to Section 206 C(l) of the Federal Aviation Act of 1996

Application of Western Pacific, Inc. for an exemption from 14 C.F.R. Part 93, Subpart K and S. pursuant to Section 206 C(l) of the Federal Aviation Act of 1996

DATED July 17, 1997

MOTION FOR LEAVE TO FILE AND REPLY OF

UNITED AIR LINES, INC.

An organization identifying itself as the Air Carrier Association of America ("ACAA") has belatedly sought leave to file a consolidated, unauthorized pleading in the above-captioned

MOTION FOR LEAVE To FILE AND REPLY Page 2

proceedings. /1 ACAA's Motion for Leave to File and Answer are based in part on a gross mischaracterization of a comment made by one of United Airline's senior executives in a press interview. To ensure that the Department does not act on any of the applications at issue here on the basis of ACAA's dishonest and seriously misleading pleading, United hereby requests leave to file a brief response to ACAA's sophomoric attempt at advocacy.

In seeking leave to file its wholly unauthorized and very untimely answer, ACAA argues that it should be allowed to place in the record a purported admission by United's Executive Vice President, Stuart Oran, that United does not use all of its slots at O'Hare. Answer at 2. /2 Of course, ACAA does not provide for

1/ The Department's Rules of Practice limit the circumstances under which associations of air carriers may participate in Department proceedings. Rule 10a. Where, as here, an association is merely presenting opinions on an issue, the Rules authorize an association to participate in a proceeding only if the association identifies in any document filed with the Department the members on whose behalf the document is filed. Rule 10a(3). Because ACAA's answer inexplicably fails to comply with this requirement, ACAA may not participate in these proceedings under the Department's Rules of Practice, and its untimely and unauthorized Answer should, therefore, be summarily rejected.

2/ ACAA also argues that it should be allowed to file an unauthorized and untimely answer in order to place in the record comments made by a number of airline executive in testimony before Congress about the proposed alliance between American Airlines and British Airways, for which those carriers are seeking immunity from U.S. antitrust laws, which ACAA claims conflict with comments those same carriers have made in these proceedings. Even to one with a superficial understanding of economics, the issues raised by the effective merger of the two largest competitors in the U.S.-U.K. market, which would enable them to fix prices, pool revenues, and allocate markets, are utterly inapposite to the issue of whether the applications at issue here are consistent with the criteria established by Congress for the granting of exemptions from the FAA's High Density Rule. As such, ACAA's ham-handed attempt to portray various carriers' positions on the AA/BA alliance as inconsistent with positions those carriers have taken in these proceedings, which relies on selective and grossly misleading editing, and dishonest formatting that presents editorial opinions of ACAA as if they were quotes from airline executives on the AA/BA alliance, is entirely pointless.

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the record a copy of the Crain's Chicago Business article on which it is relying, or even identify the subject matter of the story. Had it done so, however, it would have been obvious that Mr. Oran made no such admission, and that ACAA bases its argument on a gross and clearly deliberate mischaracterization of what Mr. Oran did say. /3

The subject matter of the Crain's story is a plan United presented to the Chicago Aviation Department to improve the efficiency of operations at O'Hare through technological and procedural changes that do not require adding an additional runway at O'Hare or building a third Chicago airport. In reporting on the impact on United of flight delays and

3 ACAA seeks to compound this deliberate effort at distortion by falsely asserting that if United is not using all of its slots at O'Hare, it must follow that it is not using its slots at other high density airports either. Answer at n.1. Here again, ACAA has no basis for this allegation, which is, in fact, wholly untrue. Such conscious disregard for the truth has no place in the Department's administrative processes.

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cancellations caused by bad weather, Crain's writes: /4

* * * * *

Crain's Chicago Business, April 21, 1997 at 3.

Clearly, ACAA's claim that Mr. Oran's statement is an admission that United is not using all of its slots at O'Hare is a deliberate and wholly unfounded distortion of the facts. United's inability to obtain the full economic benefit of its slot holdings at O'Hare because it is forced to cancel and delay flights on bad weather days is certainly not the deliberate nonuse of slots of which it is accused by ACAA.

The Department's Rules of Conduct require persons appearing before the agency to strictly observe standards of professional conduct and to refrain from making statements designed to mislead the Department. 14 CFR §300.6. ACAA's attempt to distort Mr. Oran's statement and, thereby, undermine the credibility of United's position falls woefully short of this standard.

Indeed, the Department has rarely seen a more serious disregard for its rules of conduct, or a more cynical attempt to

4/ For the Department's information, a copy of the entire Article is attached hereto as Attachment 1.

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influence its decision making through an outright distortion of another party's position. United, in fact, has taken no position on the applications of ValuJet and Air Tran in these dockets; it has responded to Frontier's application solely to correct false and inflammatory allegations Frontier made against United in support of its application. As for Western Pacific, United's answer did no more than indicate United's support for the Department's original decision to deny WestPac's application because the application utterly failed to meet the Congressionally-mandated standards for granting the application.

Having taken no substantive position on these applications up to now, United does not believe this is the proper forum to address the benefits to' the public from a carrier's utilizing slots at high density airports to maximize the efficiency of its network. United does intend to address this issue in other contexts, however, and to demonstrate the substantial consumer benefits that result from network optimization.

To protect the integrity of its decision making process, the Department should deny ACAA's Motion for Leave to File an Unauthorized Answer. Deliberate efforts to distort other parties' positions and to mislead the Department have no place in the administrative process. Unless the Department takes strong and decisive action to prevent such an abuse of its rules of conduct and to protect other parties from such calumny, it will

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encourage others to stoop to such tactics in similar desperate efforts to influence the Department Is decision making.

Respectfully submitted,

JOEL STEPHEN BURTON

GINSBURG, FELDMAN and BRESS, CHARTERED

1250 Connecticut Avenue, N.W.

Suite 800

Washington, D.C. 20036

(202) 637-9130

Counsel for UNITED AIR LINES, INC.

DATED: July 17, 1997

Crain's Chicago Business Article