OST-97-2058 / American and British Airways / Answer of TWA / Aug 4, 1997

 

Joint Application of

AMERICAN AIRLINES, INC. and BRITISH AIRWAYS Plc

under 49 U.S.C. Sections 41308 and 41309 for approval of and antitrust immunity for alliance agreement

 

Joint Application of

AMERICAN AIRLINES, INC. BRITISH AIRWAYS Plc

for exemptions, certificate authority, foreign air carrier permit authority, and Statement of Authorization

 

ANSWER OF

TRANS WORLD AIRLINES, INC.

 

By motions, dated July 25, 1997, American and British Airways have requested confidential treatment for all five boxes of documents submitted pursuant to Order 97-5-13, and in camera review by the Department, without any access at all for other parties, for a substantial number of additional documents. TWA does not object at this stage to confidential treatment under Rule 39 for the five boxes of information submitted by the applicants. However, it strongly objects to the proposal for in camera treatment, and

 

TWA Answer

Page 2

 

particularly to its implication that counsel for other parties cannot be trusted. in support of its answer, TWA states as follows:

 

1. The applicants' request for in camera treatment is an insult to every attorney and consultant for other parties to this proceeding. They have all filed affidavits, as required by the Department, affirming that they will keep the information confidential, share it only with others who have filed similar affidavits, and use it only for purposes of participating in this proceeding. Attorneys and consultants for other parties have had access on a confidential basis to the documents that have already been submitted by American and British Airways. TWA has seen no information in the numerous trade press articles on the alliance that would indicate that any person who has filed an affidavit has violated their representation to the Department. There is no basis for believing that any sensitive information in the in camera documents will be given either to the press or to airline operating personnel.

 

2. The applicant's objections that the documents are not necessary for the Department's analysis of the joint application has already been rejected by the Department. In Order 97-5-13, which ordered the applicants to produce these documents, the Department found "that each of the items is relevant to our determination as to both the public benefits and the competitive impact of the proposed alliance" (p. 2). Rather than petition for reconsideration of that Order, the applicants have merely announced their judgment that the Department was wrong, and that it does not need this material to do its job. The descriptions of the in camera documents demonstrate that the Department was clearly correct. They all appear to relate to

 

TWA Answer

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development of the alliance, competitive impact on other carriers, potential inclusion of additional carriers in the alliance, and the important issue of Heathrow slots. It is simply astounded that the applicants can suggest that documents that relate to the sale of slots at Heathrow (BA #74, 75, 76; AA #3, 8) are not relevant to this proceeding. Indeed, they are particularly important because sale of slots is unlawful under EU law. The Department should reject out of hand any claim that the in camera documents are not relevant to its decision in this proceeding.

 

3. Applicants' claim that recent cases support in camera treatment of their documents is invalid. Two of the cases, United/Lufthansa, Order 93-12-32 and Delta/Virgin, Order 94-5-42, involved redaction of specific terms of the alliance agreements related to price and the number of seats allocated to the code share carrier. There is no objection to such redaction in this case. In the only case in which in camera treatment of documents similar to those presented by the applicants was an issue, the Department actually rejected in camera treatment. In Delta/Swissair/Sabena/Austrian, Order 95-11-5, the Department refused to grant in camera treatment for documents related to "traffic, revenue, operating and financial results of code-share routes". Rather, it allowed other parties to treat such documents as confidential under Rule 39, and granted them access on a confidential basis.

 

TWA Answer

Page 4

 

WHEREFORE, TWA respectfully requests that the motion of American and British Airways for in camera treatment be denied. Because TWA has not yet had the opportunity to review the five boxes of confidential documents, it takes no position on requests for confidentiality at this time, but reserves the right to move in the future that such documents be placed in the public record.

 

Respectfully submitted,

Richard J. Fahy Jr.

Attorney for Trans World Airlines, Inc.

August 4, 1997