the last opportunity to compete which is caused by the orders as unsafe as in the safe extensions case eliminate our opportunity to compete in the market with our congestion solution  congestion reduction solutions and what do you mean by opportunity compete what would happen what sequence of events would be occasion if you were successful in your effort if we were successful the as outlined in a case made clear there are other regulations that apply to the landing fees and the airlines she's in the airports cannot charge more unless they would have the effect of reducing congestion and the slot limitations as they are now are not just maximum you know no more than seventy one dollars planes can take off or land is also a minimum as well so airports cannot charge more for landing fees at peak times because it's not going to affect confession because the f a a is forcing seventy one dollars planes take off and land during during that hour so the way you find that out if you were able to get the orders on done and you would be dealing directly with the airports that is one way that we could compete yes and what why why would we suppose that the f a a is going to allow that to happen given all the historical context that led us to where we are with the guard congestion at these airports why why is the agency just going to allow this process to unfold without the agency itself being involved well there's a this is two components that question one emergency rule you know that's i would say that that's speculative as well it's almost speculative that we wouldn't have an opportunity to compete and i guess the reason i'm asking is that it seemed like everything in the case until you reply brief was was around a universe in which the f a a would retain you to do the slots and then the theory in the reply brief is that no no no it's not that anymore it's not that the f a would use at least allow us to use our product or to to administer everything at these airports under some arrangement with the f a a but the f a a would just drop out only be dealing directly with the airports and there has been is that would you it would you say that there's at least finish it in thinking or do you think that this that all along i would say it was a shift in emphasis your honor as we tried to explain in the reply brief and perhaps not clearly enough that we still believe the ideal solution would be implementing the entire standard including all the components and then it is more in line to jurors last question more in line with the history of the f a a spending twenty years looking for an distributor case the court found that whether the petitioner was you know the chances of succeeding once they have the opportunity compete was an irrelevant factor so happens to the petition for all making that ending that you so there's just thirty separate tracks basically there are two separate tracks and that was filed the f a a has rules requiring that they respond within judges already i'm not discover the case because of that's the theory that you develop in your reply brief because otherwise it seems like you might have other arguments but it's well within the scope of the case because you'd be asking the f a a in that petition for all making basically to do the get the rule that we petition for that will make him right that's one avenue and one of the reasons we went into that level of detail in our opening grief is to show that we are standing we're not just you know this is off the street that you know has an idea and wants to complain about all the things it knew that congress mandated the phase out of high density rule because of this in a competitive methodology and and i want to just of brief sidetrack here the word is acknowledged from the beginning that this is a competitive it's imperfect in it and that was never intended as a long term solution the two thousand and six order says that they expected to develop of course better the standing there are some rd parties that would have to act in a way conducive to your client in order for your client to benefit from an order from this court such as the airport themselves and how they allocate gates and resources there is some mention in the government's breach of international agreements that are timed in reliance on sort of mail ability  speculative or contingent on the questionnaire that they would say that the as to the airports they have the same financial incentive there was found sufficient in teton and of the economic incentive to cooperate was found sufficient to satisfy the addressability problem there the airports would have an additional revenue stream exhaustless were permitted to help them solve airport congestion what exists now is a complete market failure from from every perspective right passengers and pay more to go in the short security line they can pay more for more leg room but there's no amount of money that anyone can pay to increase their chances of arriving when they're supposed to run right same from the that the airlines perspective they would like to provide better service but they can't provide better service and one example of that is when new york passed the passenger bill of rights the e t a sued to to challenge that right it's not because airlines like keeping people in airplanes for hours on end it's that they understand that that's an unfortunate reality of today's system that sometimes that happens and they have no power  fly less during this time other airlines are just going to fill that void and i'm devoted to my rebuttal times i'd like to reserve some time for a vote was there any questions and thank you thank you it is the court and initials on behalf of the f a a i want to start by talking about standing and specifically about the standing theory that petitioner really brings out and they will have me in here in this court because that's a theory of standing that assumes that airports have the power of their own accord to enact exhaustless even if the f a a were behaving that is legally wrong and i'd like to explain several reasons why the st reason is that it's preempted by federal law and there's a key supreme court case about noise regulation that's an area where the states have no power to regulate and both of the airports at issue here with marty and kennedy are managed by a by state entity that will be acting pursuant to new jersey and new york law and if you read that that's  safety of the airspace or things that are preempted and then it goes on to say that in most regulation interacts with those two and so the noise regulation is also grounded but in the premise of that it is vision regulation of airspace is something that the f a a has prevented how to do ability of the state's regs so that what really happens in the real world so is there no airport that has a separate agreement about how it's going to there are separate sort of arrangement that's not sanctioned officially authorized by the standards or guidelines to use when determining that these are are reasonable and then if you go look in those standards and guidelines which are published in the federal register and those are what was a issue in the air transport case those standards and guidelines explain that in certain circumstances airline airports can charge landing fees to airports that in some way take congestion into account but it is a very very narrow way that they are permitted to conduct an into account because at the end of the day which the price of a slot will just be whatever the market will bear which is in no way authorized by these guidelines and if you look in fact at what the guidelines are seeing all they're saying is that you want to have this congestion management fee which is permitted under the current system these can just  have a different way of computing costs in certain congested airports so that for example of an airport is really congested some of the hoss that you can include as part of the airport underlying costs or the costs of building outlying secondary and that's because if you look at what they're proposing it's not just one option it's two they're proposing two interrelated options and the nd option is this congestion premium that passengers are supposedly going to have problem is that the way you implement that b and with exception operating here that are that various state entities including by state entities which is the port authority may not love you are collected tax he had charge or other charge on among other things an individual travelling in air commerce under our decisions the fact that there may be a legal obstacle remaining doesn't need it there is not redress ability with respect to a legal obstacle that's eliminated because you get the point of the benefit of the doubt on whether they're going to case and that was a situation in which you had somebody was challenging a regulation that there was a consent decree that independently barred it and the court found that the lack standing because eliminating the regulation would not be enough and then there is one additional  that i don't buy that argument sure but is there anything that is a matter of real world on the ground facts that would pose what the agency would view to be a significant obstacle in the way of proceeding in the way t sure absolutely i mean one of them is that the operator of these two airports the port authority one of the entities that sued the agency in two thousand and eight when it had a much more modest slot auctioneers even at the port authority was going to sue over a system in which you had only about five percent of the be happy to address any more of the standing on the merits of the court has question otherwise i think it's all been adequately addressed this is progress being made and it is striking to look at that amount of time that's passed and the problems seem to be does want to have a permanent rule and i don't know how long that will take but that is their desire and if it is the core comfort argument is not in any way saying that if there's an airline out there and they don't have slots at wording kennedy and they want them where they have a certain number say if i was in and out of la guardia is just saying we think we can manage congestion better than the f a a always say in this case is that that way to come up with a permanent solution when congress mandated the elimination of this sort of methodology by two thousand and seven in fact they've never actually defended the merits of these temporary interim solution in a competitive measures the best that they've ever said is that it's better than nothing and every time that they try to try to proposed a permanent solution or a long term solution they've they've said that the interim measures are in taken head and they're not good enough and the general counsel for our move transportation testifying that it's not an efficient way to allocate resources and that government should be picking winners and losers and that the system without using market forces  encourages incoming carriers to exclude everyone else and this is this idea that other carriers to come in the current orders go for another two years and we've already passed the sixty day point to petition for review of those orders so we have to live ready with these case where that was a very complicated case involving tariffs process of cities and this court said that nine years is long enough for any agency to decide any issue i mean that case at all the same elements the it is he was claiming that you know conditions on the ground are changing and it's very complicated and seem as similar they were they were doing you know a phase they would try something and then go back and infer that the court said no it's ten years there's this risk that you're going to lose public confidence and the regulatory system is going to break down because the public interest can't wait ten years for agencies to make tough decisions on the on the the new arguments have been raised here airlines in passengers to pay more to fly at peak times as to the the rd point about the nd option the opposing counsel mentioned again that is part of the proposed rule petition for will make and that's outside the scope of this case again your honor i would not said it was a shift in theory i would say it was a shift in emphasis we had to include that and wanted to include that to show that this was a serious effort this is a serious proposal lucian the f a can accept or reject it on the merits but they have not done that and they have not made a serious enough effort to try to come up with a long term solution that you kicking