UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

Issued by the Department of Transportation on June 16, 2010

 NOTICE OF ACTION TAKEN -- DOCKETS DOT-OST-2010-0088 and DOT-OST-2010-0090

CORRECTED COPY** ________________________________________________________________________________________________________________________

This serves as notice to the public of the action described below, taken by the Department official indicated 

(no additional confirming order will be issued in this matter).

Application of AMERICAN AIRLINES, INC. (American) filed 4/8/10 for:

XX Allocation of 11 U.S.-Brazil weekly combination frequencies in order to institute daily nonstop service 

between New York (JFK) and Rio de Janeiro and four-days-a-week nonstop service between Miami and 

Brasilia effective October 1, 2010.

Application of DELTA AIR LINES, INC. (Delta) filed 4/8/10, as modified 4/16/10 for:

XX Allocation of four U.S.-Brazil frequencies to institute four-days-a-week service between Detroit and Sao 

Paulo, when the restriction from use at Sao Paulo is lifted.1

Applicant reps: Carl B. Nelson (202) 496-5647 (American) and 

Alexander Van der Bellen (202) 842-4184 (Delta)

DOT Analyst: Brett D. Kruger (202) 366-8025 

DISPOSITION

XX Granted with respect to allocation of 11 frequencies to American (subject to conditions, see below)

XX Dismissed with respect to allocation of frequencies to Delta (see discussion, below)

The above action allocating frequencies was effective when taken: June 16, 2010, and will remain in effect 

indefinitely, subject to the conditions below.

Action taken by: Susan L. Kurland

 Assistant Secretary for Aviation

 and International Affairs

XX The authority granted is consistent with the aviation agreement between the United States and 

Brazil, as amended.

Except to the extent exempted or waived, this authority is subject to the terms, conditions, and limitations 

indicated: XX American’s certificates of public convenience and necessity 

**This Notice of Action Taken is corrected to reflect our standard startup condition for newly 

available U.S.-Brazil frequencies.

 1 We note that in its original application, Delta requested an allocation of five frequencies to support daily nonstop 

Detroit-Sao Paulo service when the restriction at Sao Paulo is lifted. 
DISCUSSION

Background: American and Delta filed applications on April 8, 2010, in response to the Department’s 

March 24, 2010 Notice Inviting Applications from U.S. air carriers for the 14 combination frequencies that 

become available October 1, 2010, for scheduled U.S.-Brazil services (the October 2010 frequencies). In 

that notice, we stated that the frequencies at issue here may be used at any points that U.S. carriers may 

serve, subject to the restriction that these frequencies may not be used at Sao Paulo’s Guarulhos International 

Airport until infrastructure-related constraints at the airport are removed.

In its application, American requested an allocation of 11 frequencies to institute daily nonstop service 

between New York (JFK) and Rio de Janeiro and four-days-a-week nonstop service between Miami and 

Brasilia. Delta requested an allocation of five frequencies to support daily nonstop service between Detroit 

and Sao Paulo when the restriction at Sao Paulo is removed. 

Responsive Pleadings: On April 12, 2010, American filed a motion for immediate approval of its 

application for 11 frequencies, and filed an additional motion to dismiss the application of Delta for five 

frequencies. American argues that Delta’s request for frequencies to serve the Detroit-Sao Paulo market is

outside the scope of the Department’s March 24 Notice Inviting Applications for the frequencies that become 

available in October 2010. American asserts that its application is within the scope of the March 24 Notice 

and should be immediately approved as uncontested.

On April 16, 2010, Delta filed a consolidated answer to the motions of American. In its answer, Delta

modified its request, reducing the number of frequencies sought from 5 to 4, and proposed that the 

Department could achieve full implementation of both carriers’ requests through a redistribution of Delta’s 

currently held frequencies. Delta states that American does not require an award of the October 2010 

frequencies in order to institute its Miami-Brasilia service. Rather, Delta states that the Department should 

consider the long-term public benefits of the October 2010 frequencies by reallocating to American 4 of 

Delta’s 10 currently-held more-restrictive frequencies which can be used to provide Miami-Brasilia service, 

and then allocate to Delta four of the October 2010 frequencies for use by Delta for its existing northern 

services until the removal of the Sao Paulo restriction.2

US Airways, Inc. (US Airways), though not an applicant, filed an answer in opposition to Delta’s 

application. US Airways asserts that Delta’s request, as modified, is outside the scope of the Department’s 

March 24 Notice, is inconsistent with the restriction in the U.S.-Brazil bilateral agreement, and is contrary to 

Department precedent. US Airways further argues that if the Department were to consider Delta’s request, it 

should also give other interested U.S. carriers an opportunity to apply for frequencies to support future Sao 

Paulo service.

On April 23, 2010, Delta filed a consolidated response to the application of American and the answer of US 

Airways. Delta claims that its proposal is fully consistent with the Department’s March 24 Notice and the 

U.S.-Brazil Air Transport Agreement, arguing that the October 2010 frequencies may be used at any points 

that U.S. carriers may serve and are restricted at Sao Paulo only until infrastructure-related constraints at the 

airport are removed. Delta’s request is also supported by an answer of the Wayne County Airport Authority 

which operates the Detroit Metropolitan Wayne County Airport.

 2 Delta states that it plans to seek the fifth Sao Paulo-eligible frequency required to provide daily Detroit-Sao Paulo 

service from the unallocated pool in the future.
American filed an answer to Delta’s April 8 application and a reply to Delta’s April 16 consolidated answer.3

 

American continues to argue that Sao Paulo frequencies are not at issue and that Delta’s request should be 

dismissed. In support of its argument, American states that Delta itself recognized Sao Paulo as an ineligible 

point in its August 24, 2009, joint application with US Airways for seven U.S.-Brazil frequencies that were 

subject to the same limitations. American further cites Department precedent in Order 2006-6-17, where the 

Department found the application of AirTran Airways, Inc. (AirTran) for a similar reallocation of slots to be 

unresponsive and inconsistent with the precepts of fundamental fairness.

Delta filed a consolidated reply on May 4, 2010, further arguing that the applications of Delta and American 

are not mutually exclusive and that the Department should make the best long-term use of the October 2010 

frequencies by awarding four to Delta. Delta further cites Department Order 2008-11-21, where the 

Department reallocated one northern frequency returned by Delta to American in order for both carrier 

applicants to promptly institute service and maximize use of the available limited-entry bilateral rights.

Decision: We have decided to grant American’s request for 11 weekly U.S.-Brazil frequencies, from the 

pool of 14 frequencies that become available on October 1, 2010, for its proposed daily New York (JFK)-Rio 

de Janeiro service and four-days-a-week Miami-Brasilia service. We also dismiss Delta’s request. 

It is the Department’s longstanding policy not to allocate limited-entry rights to carriers without firm plans to

use them, which we have held to include, among other things, a firm date for instituting service. In the 2008 

U.S.-Brazil Combination Frequency Allocation Proceeding, which Delta cites in support of its argument, we 

awarded a more-restrictive frequency, returned by Delta, to American in order for both carrier applicants to 

promptly institute service, where both parties had demonstrated firm plans, including start-up dates, for their 

service proposals. In the present instance, Delta has applied for frequencies on the basis that they will be 

used in Sao Paulo when the infrastructure-related constraints there are removed. However, there is no date 

when those constraints would be removed, and thus no firm date by which Delta could begin service. 

American’s requested frequencies, on the other hand, would all be available for use, and American has 

provided firm start-up dates for using them. In these circumstances, we are not granting Delta’s application,

and we accordingly dismiss Delta’s request for frequencies to serve the Detroit-Sao Paulo city-pair market.

Nor do we believe it is in the public interest to swap the frequencies as Delta has proposed. We invited 

applications for unrestricted frequencies. To then instead award restricted frequencies is not consistent with 

the use of the more liberal rights received by the United States in the bilateral agreement.

Conditions: Consistent with our standard practice, the frequencies allocated here are subject to our standard 

90-day dormancy condition, wherein any frequency not operated for a period of 90 days (once inaugurated 

and for any reason other than seasonal use), will be deemed dormant and the allocation as to that frequency 

will expire automatically and the frequency will revert to the Department for reallocation.

In addition, consistent with our practice in awarding newly available U.S.-Brazil frequencies, we will require 

that American inaugurate service with the frequencies allocated here within 90 days of October 1, 2010 (i.e., 

by December 30, 2010). Failure to inaugurate service with a newly allocated frequency by December 30, 

2010, will result in the unused frequency reverting to the Department.

Remarks: American states that the introduction of its services will result in a near-term annual change in 

fuel consumption exceeding 10 million gallons. Under the provisions of the Energy Policy and Conservation 

Act of 1975 and 14 CFR Part 313 of our rules, we have considered the matter of American’s anticipated fuel 

consumption along with the other public interest factors we consider in taking action in a proceeding of this 

 3 American also requests leave to file the reply. In the interest of obtaining a complete record we will grant American’s 

motion.
kind. We find, in the circumstances presented, that in view of our obligations under 49 U.S.C. 40105 to act 

consistently with international agreements (in this case, the U.S.-Brazil Air Transport Agreement), and the 

public benefits that will be derived from American’s services, approval of the request notwithstanding the 

anticipated level of fuel consumption is warranted.

With our action here, there are a total of three U.S.-Brazil combination frequencies available for allocation to 

U.S. carriers.4

An electronic version of this document is available on the World Wide Web at:

http://www.regulations.gov

 4 These unallocated frequencies remain subject to the restriction that they may not be used at Sao Paulo’s Guarulhos 

International Airport until infrastructure related constraints at the airport are removed.