BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D. C.

--------------------------------------------- In the matter of : : AEROLINEAS ARGENTINAS, S.A. : OST-2003-l5092 : under Section 4l3l0(c) of the International : Air Transportation Fair Competitive Prac- : tices Act, as amended :

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

MOTION OF JOINT COMPLAINANTS FOR AN ORDER REQUIRING DISTRIBUTION OF FUNDS FROM THE AEROLINEAS ARGENTINAS ESCROW ACCOUNT

Communications with respect to this document should be sent to:

CARL B. NELSON JEFFREY A. MANLEY Associate General Counsel Senior Regulatory Advisor American Airlines, Inc. United Air Lines, Inc. ll0l l7th Street, N.W. 1025 Connecticut Ave., N.W. Washington, D.C. 20036 Suite 1210 (202) 496-5647 Washington, D.C. 20036 carl.nelson@aa.com (301) 229-8571 jeffrey.manley@united.com COURTNEY E. FELTS Senior Counsel – Legal and DAVID L. VAUGHAN Regulatory Affairs Kelley, Drye, Collier, Shannon Federal Express Corporation 3050 K Street, N.W. 3620 Hacks Cross Road Suite 400 Building B, 3d Floor Washington, D.C. 20007 Memphis, TN 38125 (202) 342-8462 (901) 424-8632 david.vaughan@kelleydrye.com cefelts@fedex.com Counsel for United Parcel Service Co.

March 2, 2011**BEFORE THE DEPARTMENT OF TRANSPORTATION**  **WASHINGTON, D. C.**

--------------------------------------------- In the matter of : : AEROLINEAS ARGENTINAS, S.A. : DOT-OST-2003- : 15092 under Section 4l3l0(c) of the International : Air Transportation Fair Competitive Prac- : tices Act, as amended :

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

**MOTION OF JOINT COMPLAINANTS FOR AN ORDER REQUIRING DISTRIBUTION OF FUNDS FROM THE**  **AEROLINEAS ARGENTINAS ESCROW ACCOUNT**

**Introduction** American Airlines, Inc., Federal Express Corporation, United Air Lines, Inc., and United Parcel Service Co. (the Joint Complainants) hereby move the Department to issue an order requiring distribution of $10,261,834 from the Aerolineas Argentinas escrow account. That is the amount owed to the Joint Complainants for the period September 3, 2002 to January 19, 2004, as detailed below. On February 14, 2011, Aerolineas reported that the escrow account contains $10,179,251. At the current rate of escrow deposits by Aerolineas (about $36,000 per week), we expect the account to reach $10,261,834 shortly. If the Joint Complainants are promptly paid in full the $10,261,834 they are owed for the 2002-2004 time period, we are willing to forego any demand for interest in order to conclude this matter, which has been pending since 2003.- 2 –

**Background** By Order 2003-6-33, June 28, 2003, the Department found that the imposition of higher service fees at Buenos Aires Ezeiza Airport on U.S. carriers than those paid by Aerolineas constituted a violation of the Air Transport Agreement between the United States and the Argentine Republic. In the absenceof a satisfactory resolution of the issue through consultations, the Department, by Order 2003-10-18, October 15, 2003, tentatively found that countermeasures should be imposed, and tentatively determined that Aerolineas should remit into a U.S. escrow account, on a per-flight basis, the difference between what it actually pays for services at EZE and the higher amounts it would be paying if it were not benefiting from discriminatorily favorable treatment vis-à-vis U.S. carriers. The tentative order was made final by Order 2003-11-26, November 25, 2003. Aerolineas petitioned for judicial review in the U.S. Court of Appeals for the District of Columbia Circuit. That petition was denied on July 8, 2005 (No. 04- 1030). In January 2004, Aerolineas began to make escrow payments, with respect to its flights between Argentina and the United States on and after January 19, 2004, consisting of the difference between what it pays for EZE services in pesos and what it would be paying for EZE services in dollars.- 3 -

**Basis For Our $10,261,834 Claim** During the period September 3, 2002 to January 19, 2004, the value of the peso was approximately three pesos to one dollar. As shown by Attachment 1, which we initially filed with a motion in this docket on August 29, 2005, the Joint Complainants paid a total of $15,392,753 for EZE services during this period. Had they paid in pesos, as Aerolineas was allowed to do, the Joint Complainants would have paid only $5,130,919. Therefore, to be made whole for the September 2002 to January 2004 period, the Joint Complainants are owed $10,261,834. **Basis For Distribution To Each Joint Complainant** As shown by Attachment 1, the distribution to each of the Joint Complainants for the September 2002 to January 2004 period should be based on the following percentages, derived

from the share of EZE service fees that each of the Joint Complainants paid during that period:

**American** 55.60% $5,705,580

**FedEx** 04.61 473,070

**United** 35.38 3,630,637

**UPS** 04.41 452,547 100.00% $10,261,834- 4 –

**Statutory Basis for Distribution of Escrow** Payments to injured U.S. carriers from an account of compensating charges established under the International Air Transportation Fair Competitive Practices Act are specificallyauthorized by 49 USC 41310(b)(2), providing that “an air carrier shall be paid from the account an amount certified by the Secretary of Transportation to compensate the air carrier for the discriminatory charge paid to the [foreign] government.” **Recent Judicial Developments in Argentina** Counsel for Aerolineas contends that recent judicial decisions in Argentina have now placed Aerolineas on an equal footing with U.S. carriers with respect to service fees at EZE.If that fact can be established by Aerolineas through submission of evidence in this docket, we would expect Aerolineas to ask the Department to end the requirement for escrow payments and to terminate this proceeding. That, however, is up to Aerolineas to pursue.

**Conclusion** For their part, the Joint Complainants are seeking immediate payout from the escrow account when it reaches $10,261,834 and in the proportions presented in the above chart. When the Joint Complainants receive the amounts they are owed, we will have no further interest in this proceeding.**CERTIFICATE OF SERVICE**

I hereby certify that I have this day served the foregoing document by email on the following persons: johnromanslaw@optonline.net

sascha.vanderbellen@delta.com

dan.weiss@coair.com howard.kass@usairways.com ursk@state.gov

___________________________ CARL B. NELSON

March 2, 2011