Joint Application of BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.



### ) ) DELTA AIR LINES, INC. and )**·~··** \;**··~**

,; ; ! > J

AEROVIAS DE MEXICO, S.A. DE C.V. ) ) Docket DOT -OST -2015-0070 Under 49 U.S.C. 

### §§ 41308 and 41309 ) for Approval of and Antitrust Immunity ) for Alliance Agreements )



# ___________________________________ )

JOINT MOTION FOR CONFIDENTIAL TREATMENT UNDER 14 C.F.R 

### § 302.12

Communications with respect to this document should be sent to:

Anko van der Werff Chief Revenue Officer

David Lamoyi General Counsel Aerovias de Mexico, S.A. de C.V. Paseo de Ia Reforma 445 Col. Cuauhtemoc, 06500, Mexico City, D.F. Mexico

Robert E. Cohn Patrick R. Rizzi HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Tel. 202 637 4999/5659

Counsel for AEROVIAS DE MEXICO, S.A. DE C.V

April17, 2015 Glen Hauenstein Executive Vice President

& Chief Revenue Officer DELTA AIR LINES, INC. 1 030 Delta Boulevard Atlanta, Georgia 30320

Ben Hirst Executive Vice President

& Chief Legal Officer Alexander Van der Bellen Managing Director, Regulatory and International & Associate General Counsel Chr.istopher Walker, Regional DirectorRegulatory and International Affairs DELTA AIR LINES, INC. 1212 New York Avenue, NW Suite 200 Washington, DC 20005 Tel. 202-842-4184BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Joint Application of

DELTA AIR LINES, INC. and AEROVIAS DE MEXICO, S.A. DE C.V.

Under 49 U.S.C. 

### §§ 41308 and 41309 for Approval of and Antitrust Immunity for Alliance Agreements DOT -OST -2015-0070

JOINT MOTION FOR CONFIDENTIAL TREATMENT UNDER 14 C.F.R 

### § 302.12



### Ameromexico and Delta have filed an application for approval of and antitrust immunity

for a proposed Alliance involving U.S.-Mexico transborder routes under a Joint Cooperation
Agreement ("JCA"). The new proposed Alliance will enable Delta and Aeromexico to provide

consumers with expanded and more efficient service options on transborder routes. In support

of their Joint Application, Delta and Aeromexico are providing the Department with documents

and data that contain confidential, proprietary and commercially sensitive information. Pursuant

to Rule 12 of the Department's Rules of Practice, 1 

### Delta and Aero mexico request that the
Department withhold from public disclosure the documents under seal that the Joint Applicants

have included with this Motion, as well as any future submission of data or similar materials in

this proceeding.

1 14 C.F.R. 

### § 302.12.

### Joint Motion for Confidential Treatment Page 2

The Department on numerous occasions has granted similar requests for confidential

treatment, 2 

### and it should do the same here. As explained below, the documents herein include
highly sensitive market and competitive analyses that are kept strictly confidential and not

shared with any outside party.

1. In connection with the Joint Application, the Joint Applicants are submitting

certain documents such as the JCA and internal planning documents that contain highly

confidential and proprietary business information. These documents, including the JCA and

internal corporate records summarized in the attached indexes and data description, provide

information similar to that required by the Department in other antitrust immunity cases, for

which confidential treatment was granted. 3



### 2. These documents are confidential and proprietary and are protected from public

disclosure under various exemptions under the Freedom of Information Act ("FOIA"), including 5

U.S.C. 

### §§ 552(b)(3) and (b)(4). J;:xemption 3 protects from disclosure information specifically
protected by another federal statute, including 49 U.S.C. 

### § 40115. 4 

### Section 40115 states that

the Department "shall" withhold from public disclosure, among other things, information that

would adversely affect an air carrier's competitive position in foreign air transportation. The

documents at issue here clearly satisfy this standard. They contain extremely sensitive

information that has not been made available to the public and which is not disclosed to any

third party. If disclosed, this information could be used by competitors to their strategic
advantage, and to Delta and Aeromexico's disadvantage, in making competitive decisions.

3. Further, Exemption 4 protects from public disclosure information that is "(1)**comm~rcial** 

### or financial, (2) obtained from a person outside the government, and (3) privileged

2 See, e.g., Notice Providing Access to Documents, Docket OST-2009-0155 (July 16, 2009); Notice Providing Access to Documents, Docket 2008-0252 (Aug. 19, 2008); Notice Providing Access to Documents, Docket OST-2008-0234 (July 24, 2008). 3/d.

4 See British Airports Authority v. CAB, 531 F. Supp. 408, 414 (D. D.C. 1982).

### Joint Motion for Confidential Treatment Page 3

or confidential." The documents submitted here under seal clearly satisfy this standard as well.

All are commercial or financial in nature. They were obtained from a private citizen. And the

documents are privileged or confidential. Delta and Aeromexico would suffer substantial
competitive harm if the documents were disclosed to the public. Public disclosure of such

information could impair the Government's ability to obtain necessary information in the future or

... cause substantial harm to the competitive position of the person from whom the information

was obtained. 5



### 4. Due to the nature of the documents Delta and Aeromexico have filed, Rule 12

access should be limited to counsel and outside experts who file an affidavit stating that they will
(a) use the information only for the purpose of participating in this proceeding; and (b) not

disclose the information to anyone other than counsel or outside experts who have filed a valid

affidavit with the Department.

5. The documents Delta and Aeromexico have filed under Rule 12 contain
confidential, proprietary and highly sensitive commercial information relating to international
strategy, performance, and planning. In order to protect the Joint Applicants' ability to compete
effectively in international markets, it is imperative that this information not be disclosed to its
competitors, even under Rule 12 procedures. In the course of similar antitrust proceedings, the
Department has routinely limited Rule 12 access to such information to counsel and outside
experts. 6 

### By limiting access in this manner, the Department can permit parties to fully
participate in this proceeding while limiting the risk of competitive harm that would result if the

information were disclosed.

WHEREFORE, 

### for the foregoing reasons, Delta and Aeromexico respectfully request

that the Department grant their Motion for Confidential Treatment; withhold from public

5 Gulf and Western Indus., Inc. v. United States, 615 F.2d 527,529 (D.C. Cir. 1980).

6 See, e.g., Notices Providing Access to Documents, supra note 3.

### Joint Motion for Confidential Treatment Page4

disclosure the confidential, proprietary and commercially sensitive information Delta and

Aeromexico have filed (and subsequently may file) under seal; and limit Rule 12 access to

counsel and outside experts as described above.

Respectfully submitted,

# va~~ Robert E. Cohn Patrick 

### R. Rizzi Hogan Lovells US LLP

Counsel for AEROVIAS DE MEXICO, S.A. DE C.V Alexander Vander Sellen, Managing Director, Government Regulatory and International Affairs and Associate General Counsel DELTA AIR LINES, INC.Attachment A

Description of Document Production



### Delta and Aeromexico are submitting internal corporate documents relating to the Joint
Cooperation Agreement (JCA}. Delta and Aeromexico conducted a thorough search of their

corporate records following the guidelines of the Hart-Scott Rodino (HSR) Notification process.

This is the same standard and document production used by and applied by the Department in

connection with its evaluation of the Delta/Virgin Atlantic alliance. See, Application of Delta and
Virgin Atlantic, Appendix 

### 8, DOT-OST-2013- 0068.
Following the HSR 4(c) and 4(d) document production guidelines, the Delta and

Aeromexico document documents produced in connection with this application include all
studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s)

for the purpose of evaluating or analyzing the Delta/Aeromexico JCA with respect to market
shares, competition, competitors, markets, potential for sales growth or expansion into product

or geographic markets

.. Delta and AeroMexico are producing the HSR 4(c) and 4(d) type

documents in their entirety to assist the Department in its review and approval of the antitrust
immunity application. As described in the foregoing motion, these documents contain

confidential proprietary information, and are being furnished pursuant to the Department's Rule

12 procedures.Attachment 

### B-1

Demand (Market Share) Data
Using MIDT or other market demand data source, for the most recent 12-month period available provide directional net passenger bookings for all itineraries that touch Mexico. Include the following data elements:

Field 1: Trip Originating Airport Field 2: Booked Point of Sale Country Code Field 3: Airport Path and Marketing Carrier Designator String by Leg
Example: Atlanta- Mexico City

- Quito directional trip with segments marketed by DL, AM respectively would be reported as "ATL DL MEX AM UIO". Use a"//" to represent the marketing carrier on any ARNK (Arrival Not Known) segments.

Field 4: Volume ofNet Bookings

Include an explanation of the trip break methodology used to create directional trips from itinerary data.
Origin Destination Fare Data

For all itineraries that Delta or Aeromexico participate in, provide all itineraries that touch Mexico. The Department prefers the O&D data represent an internal 100% census of itineraries meeting the above criteria, however suitable alternatives will be considered if proposed. Data should be submitted on a quarterly basis for the most recent year ended period for which data is available. Provide all information for any itinerary that was begun during the period described above irrespective of when the full itinerary

was completed.

Provide the itinerary in an origin-destination (by direction of travel) format, referred to as "market directional." Provide the number of(l) passengers, (2) market fare, (3) purchase class, (4) period, (5) airport sequence, (6) operating carrier code sequence, (7) change in operating carrier flag, (8) ticketing/marketing carrier code sequence, (9) change in ticketing/marketing carrier flag, (1 0) origin, (11) destination, (12) number of market coupons, ( 13) sequence number of each market directional that makes a full itinerary, (14) total distance flown (all kilometers converted to miles), (15) distance between the origin and destination (all kilometers converted to miles), (16) unique itinerary identifier, (17) one-way/round-trip itinerary identifier, (18) reporting carrier, and a ( 19) full itinerary online identifier

.. Fares must include all taxes, fees, and applicable surcharges (particularly any fuel surcharges paid.) Provide the passenger counts summarized by the unique combination of period, flight sequence, ticketing/marketing carrier sequence, operating carrier sequence, reporting carrier, directional market fare, one-way/roundtrip itinerary identifier, full itinerary online identifier, and purchase class value.

For itineraries that include a segment provided by ground transportation, note the ground segment

as '-' in the tkcarriergroup and opcarriergroup variables.

Provide a description of the methodologies used to determine market directional trip breaks within itineraries and the prorate for assigning the market directional fare from the full itinerary fare. DOT proposes using the industry standard "four hour rule" for intra-North American travel and the "24-hour rule" for all other travel to determine market directional trip breaks. DOT prefers the use of the square root of the miles methodology for market directional fare proration. Square root of the miles methodology distributes the itinerary revenue by dividing the itinerary fare by the square root ofthe number of miles distance between airports in the itinerary. To theAttachment B-2

extent the applicants prefer to use alternative methodologies for determining market directional trip breaks or prorates, they are required to provide appropriate methodological descriptions and validation.

The purchase class values should provide detail that allows for the evaluation of a given itinerary's level of service purchased. The classes should be broken down by both Restricted and Unrestricted fares sold in First Class, Business Class, Premium Economy, and Economy cabins. DOT is open to alternative mappings and levels of detail that the applicants may suggest. If multiple purchase classes are assigned to different segments in a market directional provide the most premium class assigned from any of the segments in the market directional.
Figure 1 provides a detailed listing of the variables required (meta data) and Figure 2 provides a sample of the final format. The minimum combination of variables that make each row unique (composite primary key for the dataset) is highlighted in yellow.

Provide the data electronically as a comma separated value (CSV) or other delimited text file format. If a format other then CSV is selected provide the meta-data detail necessary to allow for the loading of the data into a relational database environment.Market(Directional)·1AirportGroup2Dest3ItinOnline4Itin_RoundTrip5·ltinlD6MktCoupons7·MktFare8MktMilesFlown9MktSeq10•NonStopMiles11OpCarrierChange129pCarrierGro_t1P13Origin14•Passengers15Period161PurchaseClass17RpCarrier18TkCarrierChange19'TkCarrierGroupAttachmentB-3Figure1-TechnicaldescriptionoftherequireddatasetSequentialorderofairportroutinginthemarketdirectional,":"separated,3digitIAT AairportcodedesignatorMarketoftraveldestinationforthepassenger(s),3IAT AairportC()dedesignat()rIndicatesifforentireitinerarythepassengersstayedonthesamecarrierforallsegmentsticketedandoperated...Indicatesifpassengersflewonewayorroundtripfortheitinerary,O=One-W(lY,1=RoundTripIdentifiesallmarketdirectionalsforasingleAi11erarywiththesamevalueTotalnumberofsegmentstraveledforthemarketpaidbypassengersforthemarketdirectionalTotaltrackmilesforeachsegmentofthemarke!directionalminusgroundmilesIdentifiestheorderthemarketdirectionalsaretraveledMarketorigintodestinationsegments(radian_pgintt()p()intcomputation)Identifiesifthereisach::tngetotheoperatingc::trrierinthesegmentswithinthedirectional,1=Yes,O=Noidentifiestheforeachsegmentofthe..separ::ttedMarketoftravel()figinationp::tssen.ger(S.),_3_digitIAT Aairp()rtcodedes!gnatorNumberofpassen.&ersflyingforthemarketdirectionalrecordPeriodfi!stsegmentoftheitinerarywasflown.:fourplusRestrictedandUnrestrictedS(llesofFirstClass,BusinessClass,PremiumEconOtJ:lY,andEconomyCodeforthecarrierthatreportsthedatatoDOTidentifiesifthereisatotheticketing/marketingcarrierinthesegmentswithinthedirectional,1=Yes,Q=No__.Sequentiallyidentifiestheticketing/marketingcarriersforeachsegmentofthem;uketdirectional,":"separated:2cE11'1,21223.13.24 1 24 2 2512IndicatesPrimaryKeyAttachmentB-4Figure2-Sampleofthefinalformatoftherequireddataset<IItll)cro..s::::.u....<II·;:::....1110331.072277227610330.93227610177o·'o-:Attachment CAttachment D-1 "

Index of Aeromexico Documents Submitted to the U.S Department of Transportation

Bates Range Date Title/Description AM000001- 12/21/2010 Aeromexico/Delta Network Vision AM000022 AM000023- Undated Alianza Comercial, Grupo Aeromexico- Delta Air Lines [see AM000029 AM(T)000001-AM(T)000007 for English translation} AM000030- Undated Delta/Aeromexico, Structure of enhanced cooperation prior to ATI/JV AM000037 AM000038 Undated Transborder Market Plan for Future Growth

AM000039- Undated Joint Venture Discussion Document AM000049 AMOOOOSO- 02/00/2013 A new era in the Mexican Aviation market AM000111 AM000112- 03/00/2013 Strengthening competition in the Mexico-USA Transborder Air Market AM000129 (English version of AM000130-AM000150) AM000130- 03/00/2013 Fortaleciendo Ia competencia en el Mercado Aereo Transfronterizo AM000150 Mexico-EE.UU. (Spanish version of AM000112-AM000129) AM000151- 03/19/2013 Aeromexico & Delta ATI/Open Skies Strategy AM000160 AM000161- Undated Analisis: Cielos Abiertos, ATI (Antitrust Immunity) y JV AM-DL [see AM000175 AM{T)000008-AM(T)000022 for English translation) AM000176- 06/20/2013 Open Skies and ATI Review: Phase 1 AM000245 AM000246- 06/25/2013 Open Skies and ATI Review: Phase 1 AM000315 AM000316- 07/11/2013 JV Key Terms (draft) AM000317 AM000318- 08/27/2013 JV Negotiation Framework and Recommended Positions AM000390 AM000391- 10/00/2012 2013 AM/DL Proposal for Partnership Evolution Priority and Releases AM000409 AM000410 Undated ATI & Joint Venture Planning

AM000411- 11/04/2013 Joint Venture Concepts AM000416 AM000417- Undated Joint Venture Discussion Document AM000427 AM000428- 01/31/2014 Public Benefits Produced by Delta/ AeroMexico Immunized Joint Venture AM000439 Under Open Skies AM000440- Undated JV key terms AM000456 ' AM000457- Undated Comparative de propuestas para asesorfa de Cielos Abiertos y ATI [see AM000480 AM(T)000023-AM(T)000047 for English translation} AM000481 Undated New Trans-Border Flying Opportunities



### - 1-Attachment D-2

Bates Range Date Title/Description AM000482- 11/00/2014 Trans-Border Network Vision Comments AM000508 AM000509- Undated Effect of Open Skies, New Competition and the JV on AM and DL AM000510 AM000511- Undated Delta Air Lines US- Transborder Central America Nonstop Markets, Year AM000512 Ended 2nd Qtr 2014 AM000513- 12/00/2014 Delta Trans-Border Route Profitability for the Twelve Months Ending AM000532 June 2014 AM000533- Undated U.S.-Mexico Fully Allocated Segment Profit and Segment Margin and AM000535 Beyond Revenue**AM000536~** Undated Discussion Document: SkyWorks Support For AeroMexico' s Joint AM000541 Venture Negotiations AM000542- Undated Discussion Document: SkyWorks Support For AeroMexico' s Joint AM000545 Venture Negotiations AM000546- 12/00/2014 Suggested Delta Settlement Numbers AM000548 AM000549- Undated Annual Revenue Value of Current Combined Trans-border Network and AM000551 beach revenue analysis AM000552- 01/09/2015 AeroMexico JV Evaluation Analysis AM000557 AM000558- 01/26/2015 AeroMexico Compensation Proposal AM000562 AM000563- 01/29/2015 AeroMexico Workshop Materials AM000595 AM000596 Undated JV Concept

AM000597- 02/03/2015 AeroMexico JV Earnings Formula Discussion AM000606 AM000607- 02/11/2015 AeroMexico JV Earnings Formula Discussion AM000613 AM000614- 02/25/2015 AeroMexico Discussion Materials AM000630 AM(T)000001- Undated Commercial Partnership, Grupo Aeromexico- Delta Air Lines [English AM (T)000007 translation of AM000023-AM000029] AM (T)000008- Undated Analysis: Open Skies, ATI (Antitrust Immunity) and AM-DL JV [English AM(T)000022 translation of AM000161-AM000175] AM(T)000023- Undated Open Skies and ATI Comparison of Proposals from Consulting Firms AM(T)000047 [English translation of AM000457-AM000480]

- 2-CERTIFICATE OF SERVICE

A copy of the foregoing Application has been served this 17th day of April, 2015, upon the following persons via email:

Air Carrier

Alaska Airlines Alaska Airlines American American Frontier Frontier Hawaiian/JetBiue Hawaiian/JetBiue JetBiue Republic Republic Southwest! AirTran Southwest! AirTran Spirit Airlines Spirit. Airlines Sun Country Sun Country United United Virgin America Name

David Heffernan Jeremy Ross Howard Kass Robert Wirick Mark Atwood Steve Lachter Jonathan Hill Parker Erkmann Robert Land Bob Cohn Pat Rizzi Bob Kneisley Leslie Abbott David Kirstein Joanne Young John Fredericksen Thomas Ting Dan Weiss Thomas Soiling Barbara Russell

Brian Hedberg Robert Finamore Brett Kruger Reese Davidson Info Email Address

dheffernan@cozen.com jeremy. ross@alaskaair .com howard. kass@aa. com robert.wirick@aa.com matwood@cozen. com slachter@cozen. com jhill@cooley.com perkmann@cooley.com robert.land@jetblue.com robert.cohn@hoganlovells.com patrick. rizzi@hoganlovells.com bob.kneisley@wnco.com leslie.abbott@wnco.com dkirstein@yklaw.com jyoung@yklaw.com john.fredericksen@suncountry. com thomas. ting@suncountry. com dan.weiss@united.com thomas.bolling@united.com barbara.russell@virginamerica.com
brian.hedberg@dot.gov robert.finamore@dot.gov brett.kruger@dot.gov reese.davidson@dot.gov info@airlineinfo.com