BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Motions and Application of 

AMERICAN AIRLINES, INC.

HAWAIIAN AIRLINES, INC. 

In the matter of 2010 U.S.-Haneda Combination 

Services Allocation Proceeding

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Docket DOT-OST-2010-0018 

PETITION OF DELTA AIR LINES, INC.

FOR RECONSIDERATION OF ORDER 2014-12-9

Communications with respect to this document should be addressed to:

Glen Hauenstein

Executive Vice President 

 & Chief Revenue Officer

Robert J. Cortelyou

Senior Vice President – Network Planning

DELTA AIR LINES, INC.

1030 Delta Boulevard

Atlanta, Georgia 30320

Seth P. Waxman

Kelly P. Dunbar

WILMER CUTLER PICKERING

 HALE AND DOOR LLP

1875 Pennsylvania Avenue, N.W.

Washington D.C. 20006

(202) 663-6000

seth.waxman@wilmerhale.com 

Alexander Van der Bellen

Managing Director and Associate General 

Counsel – Regulatory and International Affairs

DELTA AIR LINES, INC. 

1212 New York Avenue, N.W. 

Washington, D.C. 20005

(202) 842-4184

sascha.vanderbellen@delta.com

December 22, 2014
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Motion and Application of 

AMERICAN AIRLINES, INC.

HAWAIIAN AIRLINES, INC. 

In the matter of 2010 U.S.-Haneda Combination 

Services Allocation Proceeding

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Docket DOT-OST-2010-0018 

PETITION OF DELTA AIR LINES, INC.

FOR RECONSIDERATION OF ORDER 2014-12-9

Delta Air Lines, Inc. respectfully petitions for reconsideration of Order 2014-12-9 

(“Order”), which institutes a route proceeding to determine whether to reallocate frequencies 

assigned to Delta for Seattle-Haneda. The Department awarded those frequencies to Delta 

“indefinitely” in 2013, subject to two conditions: (i) that Delta retain “the necessary underlying 

authority to serve the markets authorized” and (ii) that “the slot pair will become dormant and 

will revert automatically to the Department if it is not used for a period of 90 days.” Order 2013-

2-4 (“Allocation Order”). The Allocation Order contains no notice of other grounds for revocation 

of that authority, and Delta is full compliance with the order’s stated conditions. Despite that, 

the Department has elected to consider whether to reallocate those frequencies to another 

carrier. That decision is arbitrary and capricious and contrary to law, as would be any final 

decision by the Department to reallocate the frequencies. See 5 U.S.C. § 706(2). Delta 

accordingly seeks reconsideration of the Order.

1. The Department’s reexamination of the Seattle-Haneda frequencies unlawfully 

conflicts with the terms of the Department’s orders. As noted above, the Allocation Order 

granted Delta the Seattle-Haneda frequencies “indefinitely,” but it imposed two conditions on 

Delta’s continued use of the frequencies. As relevant, the dormancy condition states that “the 
Delta Petition

Page 2

slot pair will become dormant and will revert automatically to the Department if it is not used for 

a period of 90 days.” Order 2013-2-4. Delta is in compliance with that condition, as well as the 

other express terms and conditions of the Allocation Order. It thus is entitled to “indefinite[]” use 

of the Seattle-Haneda frequencies—language that is inconsistent with the view that the 

Department may revoke the frequency at will based on conditions not set forth in the Allocation 

Order itself. See Oxford English Dictionary 842 (2d ed.) (indefinitely: “Without definition or 

limitation to a particular thing, case, time, etc.”).

That the Allocation Order cannot be read to reserve by implication authority to revoke 

the “indefinite[]” allocation is bolstered by the fact that the Department knows how to reserve 

discretion to amend, modify, or revoke frequency allocations when it so intends. E.g., Order 

2000-10-6 (adopting, in addition to a dormancy condition, an express condition that “we may 

amend, modify, or revoke the allocation at any time and without hearing, at our discretion”); 

accord Order 99-8-9 (similar); Order 99-4-21 (similar); see also Order 97-11-35, at 5 & n.9

(stating “we award frequency allocations on the express basis that we may amend, modify, or 

revoke them in our discretion and without a hearing” and citing orders containing such express 

language). The Allocation Order here contains no such “amend, modify or revoke” provision. 

Because an agency is bound to “follow its own rules and decisions,” National Cable 

Television Ass’n, Inc. v. FCC, 747 F.2d 1503, 1509 (D.C. Cir. 1984), that the Allocation Order 

cannot be read to authorize the Department’s decision to reexamine the allocation should be 

end of the matter. Cf. Achernar Broad. Co. v. FCC, 62 F.3d 1441, 1447 (D.C. Cir. 1995) (“It is a 

rudimentary principle that agencies are bound to adhere to their own rules and procedures”).

In the Order, the Department nevertheless states that it “does not need to decide 

whether Delta’s current level of Seattle-Haneda service triggers the dormancy condition.” Order 

at 5. According to the Department, “[w]here frequency allocations are not being operated 

effectively, the Department has the authority to reallocate them to ensure that they are used 
Delta Petition

Page 3

effectively and in a manner that promotes competition and otherwise best serves the public 

interest.” Id. The Department does not cite a single statutory provision or regulation as a 

source of that authority. Instead, it relies upon two prior orders of the Department arising from a 

U.S.-China frequency allocation proceeding. Id. at n.18 (citing Order 95-2-30 and Order 94-12-

17). But those orders provide no support whatsoever for the Department’s decision.

In those orders, as relevant, the Department awarded two U.S.-China frequencies to a 

carrier (Evergreen) despite the concern that the “Evergreen w[ould] not use those frequencies.” 

Order 94-12-7 at 8.1 To address that concern, the Department proposed that “any awards ... will 

include the requirement that carriers not using their frequencies return them to the Department 

for reallocation.” Id. It also explained that the final order would “establish further procedures on 

this issue and will explicitly retain the Department’s right to reallocate the frequencies.” Id. In 

the final order, the Department did just that: it established an express “procedures for the return 

of unused frequencies.” Id. at 1; see id. at 5-6 (describing the procedures). Evergreen was 

thus on notice from the start that any unused frequencies could be reallocated; just as Delta is 

on notice that its frequencies can be reallocated if it violates the dormancy condition.

The cited orders thus provide no support for the Order here and in, fact, they are 

consistent with the view that the Department must follow the express terms, conditions, and 

procedures it establishes in the order allocating a frequency. Put simply, if the Department 

wants to retain discretion to amend, modify, or revoke a frequency allocation, it can impose that 

condition or a similar condition in allocating the frequency, as it knows how to do. See supra p. 

1 In fact, Evergreen was granted additional frequencies notwithstanding that it “had made 

less than full use of its frequencies,” its service had been “sporadic,” and its service levels had 

been reduced because of “lower volumes of [traffic]” during the off-peak season. Order 94-12-7 

at 8. The Department found that Evergreen nonetheless had “firm plans” to use the 

frequencies. Id. That order is thus another example of “firm use” precedent (discussed further 

below) that supports giving carriers flexibility and discretion to use frequencies in the face of 

difficult startup and market conditions, which is certainly true of mainland service during the 

current winter Haneda season.

 
Delta Petition

Page 4

2. The Allocation Order contains no such language, nor does it contain the specific non-use 

procedures included in the China orders. Those orders are thus beside the point here.

Furthermore, Delta is aware of no basis for the position that the Department has the 

legal authority to override the terms of an allocation order at any time, for any reason, and 

without notice in the order itself of that possibility.2

 But even if the Department had that 

authority, it could not be exercised where there is an express condition that addresses the basis 

for the reexamination. The stated ground for reexamining the Seattle-Haneda allocation is that 

Delta is not using the frequencies sufficiently. But the Department imposed an express

dormancy condition in the Allocation Order to address the very question of how often Delta must 

use the frequencies. Any background authority cannot be used to make an end-run around that 

express condition. Even if the grant of a frequency typically carries with it an implied right to 

reexamine the allocation for various reasons (for example, safety or market changes), such 

authority is not available where, as here, the Department imposed a specific (dormancy) 

condition governing the issue prompting the reexamination (use of the frequencies). Cf. 

National Mining Ass’n v. U.S. Dept. of Interior, 105 F.3d 691, 694 (D.C. Cir. 1997) (agency 

“cannot rely on its general authority to make rules necessary to carry out its functions when a 

specific statutory directive defines the relevant functions ... in a particular area”) (internal 

quotation marks omitted).

2. The Order is arbitrary and capricious for a second reason: the Department failed 

to offer any reasoned explanation for reexamining the Seattle-Haneda frequencies when it has 

permitted other similarly situated carriers to retain limited entry authority that has been not been 

2 Although the Department has public interest authority under various section of Title 49 of 

the United States Code, e.g., 49 U.S.C. §§ 40101, 40109, that general authority must be 

exercised consistent with, among other things, the express terms of the orders, rules, and 

procedures that the Department establishes and also with the requirements of the 

Administrative Procedure Act. For example, Delta is aware of no authority for the view that the 

Department’s public interest authority permits it to breach the plain terms of the Allocation Order 

by reexamining Delta’s frequencies despite its compliance with all terms and conditions.

 
Delta Petition

Page 5

used for much longer periods of time. The Department’s failure to cite, much less address, this 

relevant precedent is arbitrary and capricious both because the Department “must treat similar 

cases in a similar manner” absent a good reason, Kries v. Sec’y of the Airforce, 406 F.3d 684, 

687 (D.C. Cir. 2005), and because “an agency acts arbitrarily and capriciously if it ‘reverses its 

position in the face of a precedent it has not persuasively distinguished,’” New York Cross 

Harbor RR v. Surface Transportation Bd., 374 F.3d 1177, 1181 (D.C. Cir. 2004). 

As explained by Delta in its Answer, starting in at least 2002, American has allowed its 

limited entry Brazil frequencies to go unused for months at a time, frequently for periods of 90 

days or more, with no action by the Department to reexamine those frequencies. See Delta 

Answer at 7-8. In addition, in the Brazil route proceeding—one cited affirmatively by American 

in its papers—the Department took no action for more than three and a half years to revoke and 

reallocate United’s unused Brazil frequencies that were dormant and where that carrier had no 

stated plans to use them. See Order 2008-10-20.

Without acknowledging that precedent and practice, the Order subjects the SeattleHaneda frequencies to reexamination on the basis of single-season “Seattle-Haneda service 

cutbacks.” Order at 5. That unexplained, differential treatment of similarly situated carriers 

violates the Administrative Procedure Act’s basic requirement of reasoned decisionmaking:

“where an agency treats similar situations differently without a reasoned explanation, its 

decision will be vacated as arbitrary and capricious.” ANR Pipeline Co. v. FERC, 71 F.3d 897, 

901 (D.C. Cir. 1995). Because the Department has offered no plausible reason—and none is 

apparent—for treating Delta differently from American or United, the Order is legally infirm. See 

Republic Airline Inc. v. U.S. Dept. of Transp., 669 F.3d 296, 300-02 (D.C. Cir. 2012) (vacating 

DOT slot exemption order for failure to account for relevant Department precedent).

3. The Order countermands precedent in another respect. Under Department 

precedent, where a carrier holding unused frequencies has “firm plans” to use them, those 
Delta Petition

Page 6

frequencies will remain with the holder and they will not be reallocated. See Order 2005-4-13 at 

3 n.5 (declining to confiscate and reallocate to American five U.S.-Brazil frequencies held by 

United that had been dormant since “at least 2003” where United announced on April 4, 2005 

that it had firm plans to use them effective October 31, 2005); Order 95-3-52 at 4 (declining to 

confiscate and reallocate to American on a permanent basis four U.S.-Brazil frequencies held 

by United where United announced firm plans to use them effective August 1, 1995). 

Once again, the Order fails to account for those precedents. As Delta has explained, it 

has firm plans to use the Seattle-Haneda route daily as of March 29 through the summer 

season. Indeed, Delta is moving aggressively to develop Seattle as a hub with new Delta and 

Delta Connection-operated service, both domestic and international. Although Delta has faced 

challenges in establishing the Seattle-Haneda service, Delta continues to implement a Seattle 

strategy and has seen passenger traffic and profitability surge. See Delta Answer at 6-7. 

These plans, as detailed more fully in Delta’s Answer, fall squarely within the “firm use” line of 

Department decisions. Yet the Department offers no justification for not applying those 

precedents here. That renders the Order and any subsequent decision to reallocate the 

frequencies arbitrary and capricious. See Republic Airline, 669 F.3d at 301 (vacating DOT 

order where the Department did not “distinguish” but “ignored completely” contrary precedent).

4. Finally, the Order unreasonably ignores alternatives to a new route proceeding 

that would balance Delta’s reliance interests with the Department’s interests. As the Supreme 

Court has explained, certificated carriers should enjoy “security of route” so that a carrier has 

“assurance ... that its investment in operations would be protected insofar as reasonably 

possible.” CAB v. Delta Air Lines, 367 U.S. 316, 324 (1961). Here, Delta has invested in 

operations based on the assurance that, as the Allocation Order states, Delta has the right to 

use the Seattle-Haneda frequencies “indefinitely,” so long as it complies with the terms and 
Delta Petition

Page 7

conditions of the Allocation Order. To place that authority now in jeopardy unfairly upsets 

Delta’s reliance interests and undermines the security of the route principle.

In its Answer, Delta proposed an alternative to the Department that would better protect 

Delta’s reliance interests. See Delta Answer at 7. Specifically, Delta proposed that if the 

Department is concerned that the dormancy condition is now insufficient, the Department could 

consider amending that condition.3

 But prior to any amendment, principles of fairness and 

reliance would demand giving Delta notice of the new condition and the opportunity to conform 

to the amended condition prior to placing Delta’s frequencies up for grabs in a route proceeding. 

See Order 2007-12-21 (“The issue is whether American was on notice that a change in its 

proposed plans could lead to a reexamination of the frequency allotment. The record 

demonstrates that it was given such notice.”). The Order does not discuss this alternative.

That failure constitutes independent legal error. “[R]easoned decisionmaking requires” 

agencies to consider “reasonable alternatives” raised by the parties. American Gas Ass’n v. 

FERC, 593 F.3d 14, 19 (D.C. Cir. 2010); see Chamber of Commerce of U.S. v. SEC, 412 F.3d 

133, 145 (D.C. Cir. 2005) (SEC violated the APA in failing to consider an alternative that was 

“neither frivolous nor out of bounds”); Laclede Gas Co. v. FERC, 873 F.2d 1494, 1498 (D.C. Cir. 

1989) (“where a party raises facially reasonable alternatives to FERC’s decision to reject a 

contested settlement, the agency must either consider those alternatives or give some reason 

... for declining to do so”); Walter O. Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 797 

(D.C. Cir. 1984) (“an agency must consider reasonably obvious alternative rules and explain its 

reasons for rejecting alternatives in sufficient detail to permit judicial review”) (internal alterations 

omitted). The Department’s failure to consider or discuss the alternative raised by Delta renders 

the Order and any subsequent reallocation of Delta’s frequencies arbitrary and capricious.

3 Although the source of any legal authority to amend the dormancy condition in this way

is unclear, if the Department is correct that it has implied authority to revoke frequencies, then it 

certainly has the implied authority to amend the conditions governing frequencies as well.

 
Delta Petition

Page 8

* * * * *

In short, there is no lawful basis for the Department to reconsider “whether it remains in 

the public interest to allow this limited Haneda opportunity to remain with Delta for Service at 

Seattle, or ... an alternative use of the authority.” Order at 5. The Department cannot lawfully 

strip frequency authority from a duly authorized carrier operating and maintaining service in 

accordance with its operating conditions. That outcome would be unlawful, contrary to agency 

precedent, reflect bad policy, and would invite appellate reversal.

The Department should correct those legal and policy errors now by reconsidering the 

Order. Reconsideration is especially appropriate given the harm that a route proceeding would 

inflict on Delta. Delta has allocated aircraft and is actively marketing and promoting SeattleHaneda service for the Summer 2015 season beginning on March 29, 2015. If the continuation 

of Delta’s service is put in doubt during a route proceeding, Delta will not be able to market its 

service effectively, and it will incur losses from having committed aircraft to a route it may be 

unable to operate. Although Delta will continue to raise its legal objections to any final decision 

by the Department to reallocate Delta’s frequencies, Delta respectfully requests that the 

Department redress these errors at the outset by vacating the Order, thus avoiding a costly, 

time-consuming route proceeding that would substantially harm the airline.
Delta Petition

Page 9

For the foregoing reasons, Delta respectfully requests that the Department grant the 

petition for reconsideration and vacate Order 2014-12-9.

Respectfully submitted,

_________________________________

Alexander Van der Bellen

Managing Director, Regulatory and 

International Affairs

 & Associate General Counsel

DELTA AIR LINES, INC.
CERTIFICATE OF SERVICE

A copy of the foregoing document has been served this 22 day of December, 2014, 

upon the following persons via email:

howard.kass@aa.com

abigail.donovan@aa.com

robert.wirick@aa.com

charles.hunnicut@thompsonhine.com

patricia.snyder@thomsponhine.com

jhill@cooley.com

perkmann@cooley.com

bberlin@cooley.com

dan.weiss@united.com

thomas.bolling@united.com

steve.morrissey@united.com

marshall.sinick@squirepb.com

lhalloway@crowell.com

gmurphy@crowell.com

Mike.Donatelli@alpa.org

dino.atsalis@alpa.org

Doug.Ralph@alpa.org

Ishiwata.K@portseattle.org

Safora.I@portseattle.org

sascha.vanderbellen@delta.com

chris.walker@delta.com

paul.gretch@dot.gov

brian.hedberg@dot.gov

brett.kruger@dot.gov

todd.homan@dot.gov

peter.irvine@dot.gov

englets@state.gov

cristinasa@state.gov

eugene_alford@ita.doc.gov

info@airlineinfo.com