BEFORE THE DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D. C. 

--------------------------------------------- 

Application of : 

 : 

 DELTA AIR LINES, INC. : DOT-OST-2010- 

 : 0162 

for a frequency allocation : 

(U.S.-Brazil) : 

--------------------------------------------- 

 

ANSWER OF AMERICAN AIRLINES, INC. 

 

Communications with respect to this document should be sent to: 

VIRASB VAHIDI WILLIAM K. RIS, JR. 

Senior Vice President - Senior Vice President - 

 Planning Government Affairs 

American Airlines, Inc. American Airlines, Inc. 

P.O. Box 619616, MD 5634 1101 17th Street, N.W. 

DFW Airport, Texas 75161 Washington, D.C. 20036 

 

KENJI C. HASHIMOTO CARL B. NELSON, JR. 

Vice President – Strategic Associate General Counsel 

 Alliances American Airlines, Inc. 

American Airlines, Inc. 1101 17th Street, N.W. 

P.O. Box 619616, MD 5635 Washington, D.C. 20036 

DFW Airport, Texas 75261 (202) 496-5647 

 carl.nelson@aa.com 

ROBERT A. WIRICK 

Director, Regulatory 

American Airlines, Inc. 

P.O. Box 619616, MD 5635 

DFW Airport, Texas 75261 

(817) 963-0394 

robert.wirick@aa.com 

July 8, 2010 
BEFORE THE DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D. C. 

--------------------------------------------- 

Application of : 

 : 

 DELTA AIR LINES, INC. : DOT-OST-2010- 

 : 0162 

for a frequency allocation : 

(U.S.-Brazil) : 

--------------------------------------------- 

 

ANSWER OF AMERICAN AIRLINES, INC. 

 American Airlines, Inc. hereby answers in opposition to 

the application filed on June 23, 2010 by Delta Air Lines, Inc. 

In that application, Delta is once again seeking to swap three 

of its regional U.S.-Brazil frequencies for unrestricted frequencies currently in the unallocated pool. Delta does not 

propose to use the unrestricted frequencies to serve Rio de 

Janeiro, or indeed to operate any new Brazil service at all. 

Instead, Delta would continue to operate its existing regional 

Brazil service from Atlanta to Brasilia and Manaus, using the 

unrestricted frequencies to do so, thereby emptying the unallocated pool of unrestricted frequencies, and preventing another 

carrier from providing new service to Rio de Janeiro. 
- 2 - 

 In a separate docket, American is this day applying for 

the three unrestricted frequencies in the unallocated pool in 

order to operate nonstop service between Dallas/Ft. Worth and 

Rio de Janeiro three days a week starting November 18, 2010. 

The unrestricted frequencies should be awarded to American 

without delay, and Delta’s anticompetitive bid to swap three of 

its regional frequencies for the three unrestricted frequencies 

in the unallocated pool should be rejected. 

 Delta’s application is disingenuous and highly misleading in describing what it seeks. Delta states that it “will” 

use the frequencies to operate regional service to Brazil 

“effective October 1, 2010”; that it “plans” to use the frequencies “effective October 1, 2010”; that “for the upcoming 

winter season” it ”plans to operate service” from Atlanta to 

Brasilia and Manaus; and that it ”will” operate the “proposed” 

flights with B757s. 

 In fact, Delta serves Brasilia and Manaus from Atlanta 

today, and is holding out and selling these flights for the 

rest of the summer, into the winter season, and beyond through 

the 330-day advance booking period allowed by GDSs. These are 

not “planned” or “proposed” flights; they are existing flights. 

The only thing Delta is “proposing” is to swap frequencies; 

its existing service to regional points in Brazil will continue without interruption. 
- 3 – 

 Delta recently made virtually the same frequency swap 

proposal which the Department denied by Notice of Action Taken, 

DOT-OST-2010-0090 on June 16, 2010. Just a week later, on June 

23, Delta was at it again in this docket. The Department 

should deny Delta’s latest gambit for the same reason it denied 

Delta’s earlier one; “[we do not] believe it is in the public 

interest to swap the frequencies as Delta has proposed . . . . 

[T]o award restricted frequencies is not consistent with the 

use of the more liberal rights received by the United States in 

the bilateral agreement” (p. 3). Here, American is seeking to 

use “the more liberal rights” to operate new service from 

Dallas/Ft. Worth to Rio de Janeiro. Delta, by contrast, would 

warehouse the frequencies on its existing regional routes and 

thereby block new flights to Rio de Janeiro.1 

 There is no precedent that comes to mind that would 

support Delta’s tactic, and indeed the Department’s stated 

policy clearly precludes the anticompetitive result Delta wants 

to accomplish. See America West/Mesa, Notice of Action Taken, 

OST-2003-16444, February 13, 2004, p. 4 (we do not “allow 

 

1

 Delta’s June 23 application, seeking virtually the same relief the Department denied on June 16, is akin to a successive 

petition for rehearing, re-argument, or reconsideration barred 

by 14 CFR 302.14(c). See Order 2009-1-13, January 29, 2009, 

dismissing a successive petition by Wings Air; Order 2004-8-27, 

August 25, 2004, rejecting an Air Tran notice as failing to 

comply with an order ”issued just two weeks ago” (p. 2). 
- 4 - 

valuable operating rights to go unused, particularly when 

another carrier is interested in serving the routes and has 

firm plans to do so”); Continental (Newark-Buenos Aires), Order 

2001-7-12, July 10, 2001, p. 4 (denying a dormancy waiver where 

“such a delay would waste valuable operating rights when other 

carriers have firm plans to use them”); U.S.-Russia Frequencies, Order 97-9-12, September 10, 1997, pp. 2-3 (granting 

Delta’s allocation request in order to “ensur[e] that these 

valuable rights are not wasted”); U.S.-Lima Combination Service

Proceeding, Order 96-1-41, January 29, 1996, p. 4 (“the traffic 

rights involved constitute a valuable resource” and “the public 

interest clearly calls for the use of those rights”). 

 For the foregoing reasons, the Department should deny 

Delta’s application, and should promptly allocate three weekly 

unrestricted U.S.-Brazil combination frequencies to American 

from the unallocated pool. American will use this authority to 

operate the first nonstop service between Dallas/Ft. Worth and 

Rio de Janeiro, effective November 18, 2010. 

 Respectfully submitted, 

 

 ___________________________ 

 CARL B. NELSON, JR. 

 Associate General Counsel 

 American Airlines, Inc. 

July 8, 2010 
CERTIFICATE OF SERVICE

 

 I hereby certify that I have this day served the foregoing 

document by email on the following persons: 

 

sascha.vanderbellen@delta.com jhill@dlalaw.com 

scott.mcclain@delta.com bill@mietuslaw.com 

sametta.c.barnett@delta.com mgoldman@sgbdc.com 

kquinn@pillsburywinthrop.com rsilverberg@sgbdc.com 

bkeiner@crowell.com dhainbach@ggh-airlaw.com 

mrosia@crowell.com mcmillin@woa.com 

bruce.rabinovitz@wilmerhale.com eskraft@jamhoff.com 

jeffrey.manley@united.com dpdean@jamhoff.com 

bob.kneisley@wnco.com dkirstein@yklaw.com 

robert.land@jetblue.com jyoung@yklaw.com 

msinick@ssd.com donna.kooperstein@usdoj.gov 

cdonley@ssd.com dwight.moore@ustranscom.mil 

gbleopard@fedex.com john.allen@faa.gov 

dvaughan@kelleydrye.com byerlyjr@state.gov 

kevin.montgomery@polaraircargo.com recohn@hhlaw.com 

jrichardson@johnlrichardson.com cjsimpson@zsrlaw.com 

lhalloway@crowell.com pmurphy@lopmurphy.com 

efaberman@wileyrein.com lachter@starpower.net 

mroller@rollerbauer.com anita.mosner@hklaw.com 

howard.kass@usairways.com rpommer@atlasair.com 

benjamin.slocum@usairways.com gmurphy@crowell.com 

sophy.chen@hklaw.com russell.bailey@alpa.org 

david.heffernan@wilmerhale.com 

 

 

 _______________________________ 

 CARL B. NELSON, JR. 

July 8, 2010