OST-97-2230 / OST-97-2442 / OST-97-2557 / OST-95-277 / O'Hare and LaGuardia Slots / July 18, 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

 

MOTION FOR LEAVE TO FILE AND REPLY OF

TRANS WORLD AIRLINES, INC.

 

By a Motion for Leave to File and Answer, dated July 9, 1997, the Air Carrier Association of America ("ACAA") has filed in support of requests by certain carriers

 

Reply of TWA

Page 2

 

that wish to avoid the cost of purchasing slots at LaGuardia. Much of ACAA's pleading is devoted to an unseemly diatribe about the alleged hypocricy of large carriers objecting to handing over domestic slots, while urging that Heathrow slot and facilities be transferred to competing carriers if the U.S. and U.K. governments were to approve the creation of the AA/BA monopoly across the Atlantic. U.S. Airways has already demonstrated the irrational nature of the ACAA argument about Heathrow (Motion for Leave to File and Reply, dated July 15, 1997). TWA will, therefore, devote this pleading to ACAA's other arguments, which are equally invalid. In support of its answer, TWA states as follows:

 

1. Good cause exists for acceptance of this motion. If the Department accepts ACAA's motion, it will receive arguments that have not previously been made with respect to any of these applications. TWA's pleading responds to these claims and will be of assistance to the Department.

 

2. ACAA's pleading is noteworthy because it, in essence, gives up on the claim that these carriers are entitled to an exemption from the slot rules under the "exceptional circumstances" provision of 49 USC §41714 (c). Rather, ACAA argues that the Secretary may grant these requests under the general authority contained in what was formerly the Federal Aviation Act of 195B. However, under current

 

Reply of TWA

Page 3

 

regulations, the Department's ability to withdraw slots is highly restricted. /1 If the Department were to act under its general authority, it would have to institute a rulemaking proceeding in compliance with the Administrative Procedure Act, and its actions would be subject to review in a Court of Appeals. Indeed, when it adopted the buy/sell rules in 1985, the Department established a lottery to withdraw a limited number of slots for new service. However, it did so only after a separate rulemaking proceeding (51 Fed Reg 8632).

 

3. The Department would be hard pressed to justify transfer of any slots to any of the applicants in these dockets. ValuJet and Frontier propose only duplicative service to hubs of major airlines. Each hub already has ample competitive service to the New York area. Western Pacific already provides competitive service between Chicago and Colorado Springs, and its pleading claims to have done well on the route. It demonstrates that low fare carriers can compete quite effectively by using other

 

1/ Slot may be withdrawn only for international operations, essential air services or other operational requirements of FAA. Section 93.223(a) states:

 

Slots may be withdrawn at any time to fulfill the Department's operational needs, such as providing slots for international or essential air service operations or eliminating slots. Before withdrawing any slots under this section to provide them for international operations, essential air service or other operational needs, those slots returned under §93.224 of this part and those recalled by the agency under §93.227 will be allocated.

 

In view of the above language, ACAA's partial quotation from the same section (p. 5) is disingenuous.

 

 

Reply of TWA

Page 4

 

airports to serve major destinations. AirTran proposes distinctly inferior use of valuable frequencies. For example, if TWA were to lose a LaGuardia slot to AirTran for service to Toledo, TWA would be unable to provide a full pattern of service to its major St. Louis hub. This would deprive passengers at numerous points behind St. Louis of the competitive alternative offered by TWA. In a perfect world, it would be nice to allow everyone to serve LaGuardia from everywhere. However, the present slot allocation system under which major hub carriers have put slots to their highest use -- full daily patterns to competitive hubs -- has created the most efficient and competitive air transportation system in the world. The Department will not be able to justify reducing hub competition in order to accommodate the desires of cities with limited traffic volume for nonstop service to LaGuardia.

 

4. TWA realizes that the Department has been under pressure to help new entrant carriers, and has, indeed, made unwise promises to reexamine existing policy. However, that policy has produced the most efficient and competitive air transportation system in the world. It should not be modified simply to accommodate

 

Reply of TWA

Page 5

 

carriers that desire to avoid the costs of participating in the buy/sell slot system, which has served well for the last dozen years.

 

Respectfully submitted,

 

Richard I. Fahy,

Attorney for Trans World Airlines, Inc.

 

July 18 1997