may please the court eric pinker for southwest airlines the right amendment reform act makes love field unique by strictly constraining capacity to twenty gates warren addressed that constrained in several ways by stating that the scarce resource provisions of the lease would control by stating that the leases shall be deemed to comply with the granted surance obligations set forth in title forty nine and by stating that the grant  es shall not be construed to modify the preferred gate leases which is the say that says that in war in your honor specifically the part about deemed compliance is in section five d sub part two and the part about how grant insurances can not be construed to violate the lease provisions is set forth in five he subpart to be a little roman at to well for its part in connection with warra southwest gave up gates at love field and the ability to expand to d f w and invested hundreds of millions of dollars in the rebirth of love field it did that all in reliance on warez assurance that its preferred lease rights would be protected skateball result of war is that is what delta conceded in its brief on accommodation all roads lead to the lease that lease is unambiguous and explicit it states on multiple occasions that southwest has priority for the use of those gates and has precedence over the rights of others prefer enjoy user but not the sole preferential user so its rights has precedence them together and warrant dictates that everything done in the five party agreement and everything necessary in order to implement that complies with warrant federal law and must be given he'd hear all of the operative language puts us refers us back to the lease and says accommodation shall be done if at all in accordance with the terms of the lease again that lease provides priority and precedence to southwest  dispute it was certainly in the summer timeframe of two thousand and fourteen and i hasten to add that time is very important because it comes simultaneous with the lifting of flight restrictions at love field as the trial court observed everybody knew that southwest airlines would be ramping up they were already advertising it precisely they were advertising it twelve months in advance as i recall precisely your honor and there's evidence in the record in the judge acknowledged that and so we have a situation where the restrictions in the right amendment flight and capacity and utilization opportunities were being lifted southwest had loudly and publicly stated it intended to ramp up intended to do so in an orderly and safe fashion and in that context delta which at the time had simply been a month to month sub alessi at americans airlines at the time delta then asked for an accommodation already operating first under a sublease with american during that time and later under a sublease with united during that period of time so during that early two thousand and fourteen period when there would have been space available delta had space available to it to fly its planes pursuant to existing and then subsequently signed sublease agreements delta was always accommodated or given space at the airline through the filing of this lawsuit in june and in the public hearings in connection with evaluating the five party agreement and adopting wara i think you don't think the delta was behind the scenes when they had the congressional hearing on water and somebody was saying well what about accommodating know their line to something like that they would very well may have been very well may have been there's not evidence to that effect but i think the court can clearly conclude that they did not choose to have a lease relationship with the city they did not seek to have a direct relationship release relationship with the city and we were not in any manner interested in operating at love field until two thousand and nine when they began to have a small number of operations there and they have not been involved in the process to create what love field is today they did not choose to be part of the five party agreement they did not choose publicly to be part of the adoption of war let me ask you if delta's to question is this if if delta is a third party beneficiary of this contract why isn't jet blue or alaska airlines or spirit airlines or you know any other airline that some of which haven't even been created yet a new entrant would mean anybody if they just means anybody who was in the field at the time then i don't see why they couldn't just nibble away systematically at south w lean that and texas law is very clear and very demanding that to be a third party beneficiary there has to be a clear intent to identify that party as a beneficiary and to allow that party to enforce the contract no such clear intent exists here and i submit to the contrary there are a number of provisions in the contract as we've set forth in our brief that stand in opposition to that notion namely the no third party beneficiary provision of the five party agreement  the fact that the city is set forth as the arbitrator of rights under accommodation the absence of any mention of delta whatsoever and i would would like to add here this is an area where the district courts carer's perhaps most pronounced and really is not even defended by delta the district court found that delta was a third party beneficiary because section four point zero six in the district courts viewed creek gave delta accommodation rights texas law is absolutely clear and we've cited a number of cases that the obligation that must exist in order to create a third party beneficiary must be preexisting and separate and apart from the contract for which the person is trying to see third party beneficiary rights hybrid u k sharon then i didn't see any language in those cases that well the language in the cases talks about preexisting obligation your honor taws and maddux are probably the two cases we rely on to condominium cage seemed to me like the obligation there was in the very contract that were being well the there has to be a preexisting obligation for a party to be more than what texas law refers to as beneficiary but texas still does texas and we've cited the alan case from two thousand and ten court of appeals which still follows that language alternately judge without attempting to necessarily pigeonhole us into a creditor versus incidental discussion texas law requires that there be a preexisting obligation to that person and that there be an intent by the parties to the contract here dallas and delta and intend to benefit specificity like new hampshire maryland i think that's inadequate not adequate because it's an ever changing designation judge it could involve airlines that exist today new airlines that are created merged to set up a procedure for new enter an airline to get accommodated i mean all of just for nothing it's not for nothing it is in order to allow the city of dallas to operate its airport to ensure that it airport is being properly utilized and there is no contention here that southwest is doing otherwise southwest fully uses its gates it would like to use them more and it struggles to use them to the maximum let me ask you m question about this accommodation clause because you know the simming assuming that this has to be consistent with not unduly interfering with operating schedules and on reasonable terms when do to implement the accommodation provision it say is that the city can force basically force southwest to render to regarding acceptable fees and charges or any other matter regarding the scarce resource provision including but not limited to four zero six four a which has to do with conflict between the schedules city the ability to select a signatory airlines southwest and to force an accommodation subject to the priority and preference rights that southwest has in the least it's important to note obviously and we've argued in our brief  the city has not made any such accommodation order here will our youth in that but leaving aside suppose that obviously southwest would comply with any lawful order by the city and would evaluate its rights question the question is when that pair when the city has does that mean that the whole implication of this is that southwest may have to make room in its schedule for another requesting in line well the answer is it may depending on whether that would result in an undue interference as set forth in the introductory language of section four point zero six f and that's why the standard that you're reading from would on our opinion require a good faith nondiscriminatory decision by the government by the city consistent with our priority rights and without undue interference but that's a long way of saying yes your honor the city has the ability to make decisions for accommodation under this lease and has not done so it is our view that by giving the city that opportunity in answer judge davis question it serves a purpose which is to there's competition and nondiscrimination provisions within the grand surance is but again those granted surance is in those competition ideas by federal statute warra cannot take precedence over the lease the lease controls and it's important to understand that is part of a carefully crafted crude russian statute that balances the competing rights of many parties recognizing that there is one hundred sixty five gates fifteen miles down the road at d f w how many d delta have there i can answer that they have a substantial presence but i can't quote to you the number your honor they have a substantial presence and most importantly there is no constraint at d f w d f w in the evidence is clear can expand the number of gates and ept on southwest except on southwest precisely i mean delta can expand to their heart's content at d f w by dividing gates adding new gates adding hard stands southwest is the only airline that is constrained in the dallas fort worth market it's constrained as a result of wara which said it had to give up gates it cannot expand to d f w without giving up gates and it is constrained now additionally by the district court's decision which enjoins it from fully usually up using its own gates i see that my time is up i'd be happy to answer to some questions a few questions dallas is like conscious pilot here and the city is getting you know i don't doubt that pressure was being put on by both sides but delta filed fired the first shot did they not going into federal court  you wanted was it in the city to the city was the first to file your sure yeah that's right you were the stakeholder alleged take up well suppose delta is not a third party beneficiary then why does the city still have a problem here should not the case be at least free man did if not indeed dismissed as to the city's request because if delta is not a third party beneficiary of the contract then it is just it have been carrying guilt of water here and even though just excuse me while represented by the justice department transportation with drew they threw the kicker into this works by on president it does not the mandatory language in four point zero six f is all preceded by the preface that the city may accommodate order accommodation everything else all of the mandatory being full used to perform those so as not to interfere with the operations even more to the point there is nothing in the lease even if we were required to queue accommodation orders requiring us to honor the request from the first to request in other words to improve competition to get a better service mix the city could solicit requests from any other airline that might be interested in serving love field there is nothing giving any right whatsoever in the city view to in the airline that happens to have made a request that certainly gives the city reason to examine the situation but does not give the requestor any might be others as well but no city does value competition of the state the congress has given southwest a dominant position at love field as has been observed today southwest made substantial investment fine all but two of them and they have a legal right to do that at the present time and why would the city if given the undue interference provision why would the city try to force southwest to move over for filing i don't understand why when you say in your brief we want to affirm the trial court judge when you come here to represent the city and judge to make that resolution that the district court made but you've accepted it and argued for we've won on that do it no your honor it is not because first of all the city the request of several brands of relief from the alternative if henri man the court were to issue an injunction favoring south oh i read read your conclusion but i also read the introduction  your brief when you are no firm that you made your decision you've made your approval if i may your honor we have not the injunction is by definition temporary in the city's view any a which will they backed off their initial quote unquote guidance have now launched a minister of investigation which whisks city losing funding if it doesn't provide permanent accommodati not under contract if nonsense you have a contract the judge kincaid didn't say anything detrimental to the existence of the contract and therefore although he did make his interpretation of the contract there still be idea that someone has to execute a lease with delta they can't just squat there well unfortunately i know that's exactly the same pain i am not aware that they're in the city is happy about that precisely the city believes it is precisely the purpose of declaratory judgment to get and seek judicial clarification before there's a breach of the peace as dealt with threaten to impose before the city gets sued with potential for act like an act like a man so to speak and apply the contract and then if t o t n f a a still object then you can go to court with them your honor so long as an injunction i fiction over the controversy the city is not about to do anything without going to caden the very least making sure he has no objection to sit well i hope you make sure we have five party agreement the two thousand and six contract requires southwest and the city to abide by the accommodation provision and southwest's airport lease agreement and the accommodation provision and that lease agreement is a provision delta is here doesn't get did you hear my question was that i fear i may not have you on i apologize my question was whether or not the the fact of his being here and his brief was that he decided as the jones has discussed that the district court made an explicit finding of fact that there is no undue interference with southwest current schedule of one hundred eighty flights from delta's current schedule of five flights the least require southwest to provide accommodation if it can do so without undue interference it will but you know very well that this that section eight well certainly personally take issue with delta being a beneficiary but you're the only one determining whether delta is a creditor beneficiary does southwest promise performance to delta and does that promise performance satisfy a legal obligation promise performance a delta a promise performance of the city of dallas regarding accommodation for a quote new entrant now delta is about as much a new entrant as united hours or as i said spirit or alaska or jet blue so why does delta get the benefit of that why couldn't any of these other airlines come in under this provision according to your interpretation and nibble away gate by southwest i'd like to ans in two parts if i can the first part is the section four point zero six f defines the beneficiary that provision as a requesting airline a new entrant airline who has actually made a request to serve the airport jet blue spirit the other carriers have not made a request they do not currently qualify as requesting airlines could they in the future yes would that allow them to nibble away at southwest gate writes absolutely not and that's because of what the text of the lease says southwest only has an obligation to provide accommodation at times that do not unduly interfere with its operating schedule right now there are one hundred eighty five flights on this to eighteen gates that are least or sublease to southwest if jet blue came in and asked for accommodation for ten flights the least  not require southwest to cancel its existing flights to accommodate those flights that's the benefit of its preferential use right that they talked a lot about in their brief they have a preference to maintain their existing schedule so there is no risk delta has never argued that appear to come in once the airport is full then push southwest out this accommodation provision is about filling and let me ask you a question they do have a preferential right to all of these gates in clear in this agreement it is a gate cannot be subdivided right so bad is equally delta is trying to do the same thing that it accuses southwest of doing which is get a toehold in and then take over a gate no your honor i want to make sure that the use of subdivision is clear that that refers to when gate thirty one of the airport is split out into a and b doesn't bar two carriers from operating on the same gate so in that sense it's the gates can be shared between more than one carrier well but it does present problems because if southwest says an air flight going out at eight am and don't has a flight going out at nine am then you've got a change there's a lot of orchestration that's got to go on for baggage handling and passenger check in and so on in there that's correct there's all timidly there could be an impact on the efficiency of the operation and even on safety there could be the district court made explicit findings of fact that there have not been that delta's five flights do not unduly interfere with southwest operating schedule that finding is it page sixty one ninety in the record and that finding is essentially sufficient to support the preliminary injunction whatever the lease means we know what it says dealt southwest agrees to accommodate a request in your line at times that do not unduly interfere with its operating skill i see your position that you if you are correct is it your position that you never have to enter a lease with southwest no absolutely not your honor and two points on that one is we've offered to sign a sub lisa southwest and they've turned us down our operations at the airport are under a short term use and a license agreement delta has also offered the city to become a lease holding carrier if the city was willing to lease delta again we would sign a lease and assume the burdens and obligations of the lease holding period or that's a key part of our basis are you paying now and then understanding is that the we paid actual cost to southwest a proportionate share for one of that's the compensation structure that's required under the terms of the city's competition plan that the state and that's it page eighty five eighty two of the record that the southwest as a lease holding here can recover all of its actual lease costs as well as an administrative fee of up to fifteen percent of its actual cost so that's the terms of the economics between delta and southwest also i want to return if i could to the third party beneficiary of address any open questions on that i'd like to refer the court to two cases on this issue of what about the fact that membership in this group is not fixed in the future other carriers could become requesting airlines if they made a request the city of houston case from the texas supreme court found that a contract between a firefighters union and the city made creditor beneficiaries out of the members of that union who were identified only as employees now unions membership changes all the time new employees or higher old employees retire that membership is in flux and dynamic just like the category of requesting airline is texas supreme court said as long as the agreement describes the members of the group with sufficient particulary that we can figure out who's in the group at the time enforcement as so many how many many air carriers are registered for commercial purposes in the united states this isn't in the record my understanding is the number is one hundred nineteen exactly in city of houston there are five hundred forty firefighters in that well that's fine but i think getting commercial air carriers or are comparable to firefighters gas pipeline cases and i'm sorry i didn't look them up but normally nobody is an intended beneficiary of a pipeline agreement because there are all these different separate commercial entities with separate interests blah blah blah the five party agreement actually says it's designed to implement the five party agreement with respect to gate use what does a five party agreement say about gate use and force the accommodation provision of the lease the other point is this lease incorporates other documents by referenc incorporates all the green agreements by reference it does not incorporate the five party agreement by reference well that all of the where every single one of the whereas clauses are dependent on the five party agreement so it just seems to me it's difficult to  tangle but two right i agree in the fact that the southwest in the city in two thousand and six included a disclaimer of third party beneficiary cause in the five party agreement and then three years later when they signed this amended lease they did not includ disclaimer third party going to fisheries clause in the lease i think that shows that there was not the same intent to foreclose third party enforcement that there was under the third party i'm certain of the five party agreement well the five party agreement divided up the market delta has how many gates at d f w that's also not in the record i believe it's six only six i believe but concours their presence was heavier in the early two thousand and scaled back since then i get i going off be forever if if southwest ever tries to go into d f w it has to give up give up one gate at love field for every gate that it's going to get at d f w now this strongly implies contrary to somebody mentioning competition that the competitive market is viewed as both love field and d f w and therefore the southwest should have been the principal beneficiary of the field agreement up its preferential use rights and it accesses on a common use basis which is the standard at most airports united states that's not second class status website they did give well you can you can argue but that's not the same as southwest can't be requesting southwest has not identified a single case in its briefing where one part of the contract owed a duty to the third party and the other part of the contract promised to satisfy that duty and that third party was not a creditor beneficiary the city o those a federal access obligation to requesting airlines such as dell to provide reasonable access to left field subject to the terms of the legal right by it by implementing the terms of the lease let me ask you is what do  you southwest argument that the scarce resource clo pla until the city orders southwest to accommodate though that's not true that because the text of the lease just doesn't say that the text of the lease says southwest is then the city steps in a new question airlines goes to the city which has discretion whether to write implement that and that's an important point that i want to this is in our brief that i want to make sure i said today they city and southwest both say we don't have an obligation under section the city doesn't have an obligation under four point zero six f it's a discretion it's it has a qualified right of further court to section fourteen point one nine of the lease where the city agrees to exercise its rights here under in a manner that's consistent with title forty nine f a a regulations and the green assurances now no one has neither southwest nor city had the city has argued that those federal obligations give the city any discretion over whether to order accommodation department of transportation's june fifteenth letter that's a tattoo of our record excerpt says explicitly the city is obligated to force accommodation whatever discretion it might have under that may language in four point zero six f three fourteen point one nine fills that gap and says you have to exercise that discretion also but the lease also says it has to be consistent with all of their agreements which includes i mean all other laws and so on which have to include laura that's correct and war says follow the lease when you're making accommodations and let me ask you a question if you're saying if you if you're not a third party beneficiary and you do claim to the benefit of these federal laws here and it seems to me there's a big argument about primary jurisdiction really what we used to call primary jurisdiction when you've got a regulatory agency the may have some kind of overarching duty here that th e private party has to go to them before it goes into indic or their there is a case to be made for an exercise of primary jurisdiction in this court's discretion or in the district court's discretion as long as the preliminary injunction preserving the status quo is left in place and on that point i want to emphasize again one other piece of the record this is on pages sixty nine fourteen to sixty nine twenty southwest vice president of airport affairs testified that southwest is running one hundred eighty flights per day right now it has no intent to expand it has no plans to add more flights in the future so we know that southwest is running all the flights it wants to run right now we also know from judge can kids finding it pa sixty one ninety there is no undue interference with that slate of flights those findings are sufficient to support sustain a preliminary injunction the court wants to refer the case of the f a a under primary jurisdiction delta has no objection to that as long as the status quo preserved during the pendency of that proceeding and the district court made findings that this injunction preserving the status quo as opposed essential and harmless it's essential because if delta is forced to leave love field it will effectively be barred from coming back in the district court or the f a a at the conclusion of those proceedings if they were to find in delta's favor would not be able to fashion meaningful relief because of the commercial barriers to delta reestablishing its presence at love field the desert would the judge found so that  there is a primary jurisdiction argument then the judge is taking over the pays responsibility it seems to me could be f a a ability to preliminary injunction the f a a does have authority to issue interim orders under its part sixteen jurisdiction and surely be for southwesterly you may not know the history but i was a supreme court say the funding for the first three planes and herb kelleher what terms should be included in that injunction so fundamentally in answer to your honor's question they have not ordered accommodation which would be a prerequisite to any finding that southwest has breached the agreement a six agreement approved the event existing scarce resource provision of the lease which is substantially identical to the scarce resource provision in the current lease that provision requires that the city order accommodation as a prerequisite to there being any obligation by southwest to do so and the city has still as of today not made any such order they have simply said they want an injunction  of some type or form they've taken no position on what it should look like and fundamentally we've argued that the city's claims are not ripe and that they're lacking a condition proceed and but at a bare minimum the city cannot obtain junked of relief on the position it does not espouse they have not come into court and said they think the lease should read in the match or the delta suggests and to the contrary they are only fact witness on the subject testified that he the lease the same way as southwest which is that southwest should have priority and that southwest can expand its schedule to the detriment of an accommodated party and must simply do so over time  i believe it further says affirm an injunction and it would be affirmed by relief for southwest as well i believe it's in the conclusion if not of the introduction i can certainly find that page for your the court the city certainly and i would submit repeatedly says it is agnostic with regard to the type of relief it simply wants an injunction for somebody and i submit that's not enough to trigger or to me the likelihood of success or the irreparable harm elements as to delta delta simply is trying to short circuit or end run warra at this point in time in the compromises contained therein it is unhappy with those compromises but that dissatisfaction in grievance doesn't give it a claim here to have a claim in this case they must show that they're a third party beneficiary and they cannot do so the court asked me questions judge davis did about a preexisting condition or preexisting obligation and i would cite the taws case as well as allen for the notion that there must be a preexisting obligation separate from the contract being sued upon i would also cite to the board the notion that there must establish a creditor beneficiary relationship with which council see conceded in his argument there is no creditor beneficiary relationship here the grant issuance is that they have argued o