Undocketed / US-Argentina All-Cargo Services / Answer of Fine Air to Request of Challenge Air / September 4, 1997

 

U.S.-ARGENTINA ALL-CARGO SERVICES

 

 

ANSWER OF FINE AIR SERVICES, INC.
TO REQUEST FOR CLARIFICATION OF CHALLENGE AIR CARGO, INC.

 

Fine Air Services, Inc. ("Fine Air") files the instant Answer to the Request of Challenge Air Cargo, Inc. ("Challenge") for Clarification of the Department's Notice regarding U.S.-Argentina All-Cargo Services issued on August 14, 1997.

 

Challenge contends that "the underlying premise upon which the Department's notice was based -- namely that Challenge did not operate the two narrow-body frequencies (ie., one wide-body equivalent) allocated to it during the 90-day dormancy period specified in the Department's February 25 Notice of Action Taken -- is not correct." Request for Clarification at 2. In support of this contention, Challenge points to three flights between Miami and Buenos Aires -- apparently operated under wet lease by UPS, using Challenge's authority -- that occurred on May 17-19, June 21-23 and July 19-21, 1997.

 

Fine Air refers the Department to its Answer, filed on September 2, to the Joint Petition for Review of Staff Action filed by Federal Express Corporation ("FedEx") and Arrow Air, Inc. ("Arrow"). 1/ Like Challenge, FedEx and Arrow similarly contended that, by operating an isolated flight or two every 90 days, Arrow had made sufficient use of its two frequencies to avoid triggering the 90-day dormancy condition. The contention is equally meritless in both cases.

 

By no reasonable definition does operating a total of three flights in six months (ie., February 25, 1997 - August 25,1997) constitute "regularly scheduled" service as Challenge contends. Certainly, it is not sufficient to avoid triggering the dormancy condition imposed on Challenge's frequency allocation by the Department pursuant to its authority under 49 U.S.C. §41110(c)(1) 2/ Congress made explicit its understanding of what constitutes "regularly scheduled" service when Section 41110 was enacted: "regularly scheduled service . . . consist[s] of at least one flight a week, except in unusual circumstances." 3/

 

By highlighting just how few flights they have really operated, Challenge and Arrow have effectively flaunted their non-use -- and hoarding -- of scarce public

 

1/ Fine Air incorporates by reference that Answer in its entirety.

2/ Section 41110(c)(1) provides in relevant part: "the Secretary may suspend or revoke the authority of an air carrier to provide foreign air transportation to a place under a certificate issued under section 41102 of this title if the carrier -- . . . (B) does not provide regularly scheduled transportation to the place for 90 days immediately before the date the Secretary notifies the carrier of the action the Secretary proposes."

3/ S. Conf. Rep. No. 96-531 at 18 (accompanying the International Air Transportation Competition Act of 1979, P.L. 96-192, 94 Stat. 35 (1980)).

 

2

 

resources. As dictated by the Department's dormancy policy and Congress' intent, they should be permitted to do so no longer. The Department should promptly reallocate the two frequencies that Challenge once held and that have now, pursuant to the explicit terms of Challenge's allocation, reverted to the Department.

 

Respectfully submitted
Jeffrey N. Shane
Karan K. Bhatia
WILMER, CUTLER & PICKERING 
Counsel for Fine Air Services, Inc.

Dated: September4, 1997