UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

IN RE MATTER OF COMPLIANCE 

WITH FEDERAL OBLIGATIONS BY 

THE CITY OF DALLAS, TEXAS 

FAA Docket No.16-15-10 

AFFIDAVIT OF PETER B. HASKEL IN SUPPORT OF CITY OF DALLAS' RESPONSE 

OF THE CITY OF DALLAS TO THE NOTICE OF INVESTIGATION AND MOTION 

TO DISMISS THE NOTICE OF INVESTIGATION 

I, Peter B. Haske!, of my personal knowledge and belief declare as follows: 

I. I am an Executive Assistant City Attorney for the City of Dallas and have served 

as the City's primary counsel in litigating the accommodation issues at Love Field. 

2. I am familiar with the documents attached as exhibits to the City's response, 

including those referenced in this affidavit. The documents are true and correct copies of 

documents that the City received, retrieved, or produced in the ordinary course of business or 

from public sources in connection with the accommodation of the Delta at Love Field, including 

documents submitted in the litigation before the Federal District Court for the Northern District 

of Texas. We have also received documents from Southwest Airlines, Inc. and the Department 

of Transportation ("DOT") submitted in the litigation before the Court of Appeals for District of 

Columbia. 

3. Following the City's September 29, 2014, determination that there would be no 

space to accommodate Delta after October 13, 2014 and Delta's strong negative reaction, I 

sought guidance from the DOT as to the City's legal obligations under W ARA, the Five-Party 

Agreement and its Competition Plan in an effort to forestall threatened litigation by the carriers. 

1 
I participated in many telephone and personal discussions with the DOT respecting Delta's Love 

Field accommodation requests and related issues, at which either Federal Aviation 

Administration ("FAA") personnel were present or for which the DOT assured me that the DOT 

was also speaking for FAA. Most of my email communications with the DOT also included 

FAA personnel. At all times I believed, and still believe, that FAA was fully informed by the 

DOT of all communications between the City and the DOT and that the DOT consulted with the 

FAA as to all communications to the City on these issues. The City therefore saw no need for 

additional communication with the FAA on these subjects. 

4. On October 6, I emailed Kathryn Thomson, DOT General Counsel, requesting 

that, in the event the airlines could not resolve Delta's accommodation request themselves, the 

"City would appreciate DOT communicating a firm directive to Delta that Delta not sell any 

tickets for arrival at or departure from Love Field for dates and times for which Delta does not 

have confirmed gates." 1 On the afternoon of the same day, the City hosted a meeting and 

teleconference with airline representatives and Ms. Thomson participating to discuss Delta's 

accommodation request. 

5. The City's concern then, as it remains, was to ensure safe, efficient and 

reasonable operation of the airport and, to the extent possible, to avoid burdening or confusing 

the traveling public due to uncertainty over which carriers were operating from Love Field. I 

made it clear to DOT General Counsel that we sought clear direction from the DOT so we could 

proceed without risk of offending any of the City's obligations under applicable federal law. 

1 Exhibit 22, Email from P. Haske!, City, to K. Thomson, DOT (Oct. 6, 2014). The 

exhibits cited herein are exhibits to the City's Response and Motion to Dismiss and are identified 

by exhibit number as they appear in that document. 

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6. Although an October 2014 agreement between airlines to accommodate Delta 

through January 6, 2015 provided relief from the immediate accommodation pressure, the City 

recognized the need for a longer-term solution. During October, with informal guidance and 

assistance from the City, Delta, Southwest, and United continued to negotiate an agreement for 

accommodation past January 6, 2015, and presented their respective accommodation positions 

more formally to the DOT and the FAA. Throughout these discussions, the City made it clear 

that it preferred that the carriers reach an accommodation agreement but that, in the absence of 

an agreement, the City would meet its obligations under the Lease, the Five-Party Agreement, 

and W ARA, and would mandate accommodation if necessary. 

7. Because it was not a party to the inter-airline negotiations, the City did not know 

in late October whether the negotiations were making progress or whether a long-term negotiated 

resolution to the accommodation dispute would be possible. Therefore, the City recognized that 

it might be appropriate for it to exercise its authority under the Lease to mandate 

accommodation. The City was also hopeful that the mere threat of mandated accommodation 

would help the carriers in their negotiations. As a consequence, in November the City began 

preparing a formal set of procedures for implementing the forced accommodation requirements, 

should mandated accommodation become necessary. 

8. On November 19, 2014, City representatives met with approximately ten DOT 

and FAA officials at the DOT headquarters. In a lengthy and wide ranging discussion, the DOT 

and the FAA officials gave the City considerable guidance on the accommodation process, 

including the following key points: 

• DOT counsel expressed the opinion that their review of the Lease 

led them to conclude that there is sufficient authority in the Lease 

to allow the City to accommodate Delta. 

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• The Office of the Secretary is charged with ensuring compliance 

with competition plan-related issues. 

• The Lease meets the DOT requirements with respect to 

competitive access. 

• The DOT interprets the term "new entrant" in this context to be 

any carrier other than a signatory to the 2006 Lease, which would 

include Delta. 

• In defining an accommodation process, the DOT will not be 

prescriptive but instead expects the City to use any and all 

flexibility available to it. 

• The City can use the date of a request for accommodation (or 

another reasonable "snapshot" date) for assessing the ability to 

meet an accommodation request and the City's decision can be 

informed by information on future plans that exist at the time of 

the request. Published schedules are a valid way to judge future 

plans. A six-month look-forward period is reasonable. 

• If the City approaches the date when voluntary accommodation 

expires, the City can impose a temporary solution if it is reasonable 

in the circumstances (e.g., for another 30-90 days). 

• The City should minimize the use of proprietary information in its 

accommodation decision, especially since future schedule 

information is generally publicly available. Proprietary 

information should be used only to validate other information and 

to prevent gaming of the system. The City can, but need not, 

conduct due diligence to verify information that it has been given 

by the carriers. 

• The City should not consider service at other airports; it should 

only consider service at Love Field. 

• An accommodation must allow the accommodated carrier access 

for as long as the carrier maintains the same pattern of service. 

That may be permanent unless the request is for less-thanpermanent service. 

• The City need not treat a request for accommodation as an ali-ornothing matter and may offer to a requesting carrier less than the 

requested amount of service if that is all that is available. The 

same principle applies to times of day: the City may inform the 

requesting carrier of available times even if those do not accord 

precisely with the request. But in no event is the City required to 

demand that an incumbent carrier change its schedule. 

• The City cannot make a decision based upon the type of carrier 

(e.g., legacy, low-cost or ultra-low-cost). 

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9. On November 20, 2014, at Dallas City Hall, representatives and counsel for the 

City, the DOT, the FAA, and all the affected the airlines met together to discuss Delta's request 

for accommodation and the City's proposed accommodation procedures. At the meeting, the 

City presented its proposed Love Field Allocation Principles and Allocation Process. The City's 

airport gate scheduling consultant, LeighFisher, presented a Baseline Gate Analysis that 

evaluated the existing gate usage at Love Field and the ability of Love Field to accommodate 

future demand scenarios. 2 

10. LeighFisher addressed the critical constraints at Love Field from their evaluation 

of flight schedules and peaking characteristics. LeighFisher also explained the rationale for the 

City's proposed snapshot date of November 5, 2015. Under normal circumstances, the snapshot 

date would be Delta's September 2014 accommodation request date. However, because of the 

significant expansion of operations at Love Field that occurred in October 2014 under W ARA, 

the accommodation request date did not reflect typical operations at Love Field. Thus, 

LeighFisher determined November 5, 2014, to be the earliest day following Delta's request that 

reflected a typical day of post-W ARA operations at Love Field. 

11. Following the November 20th meeting, accommodation negotiations continued 

among Delta, Southwest, and United with respect to United's proposal to extend its temporary 

agreement with Delta and Southwest for another six months. However, November 2014 ended 

without an agreement among the carriers to extend Delta's accommodation past January 6, 2015. 

As a result, the City became increasingly concerned that a voluntary accommodation might not 

be reached in time to avoid serious uncertainty for the traveling public about Delta's operations 

2 Exhibit 39, LeighFisher DAL Baseline Gate Analysis (Nov. 20, 2014). 

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after the beginning of the year and potential operational problems just as the busy holiday travel 

season was drawing to a close. 

12. In an effort to increase pressure on the carriers to reach a voluntary agreement, the 

City notified Southwest, Virgin, United, and Delta on December 1, that unless it received word 

that Delta was accommodated by the following day, the "thirty (30) day period allowed for 

voluntary accommodation described in [the Gate Accommodation Clause] of the Use and Lease 

Agreements with each signatory carrier shall commence."3 

13. Even though the Lease does not contemplate any formal role for the City during 

the 30-day period preceding a mandatory accommodation decision, the City continued to play 

shuttle diplomacy, working assiduously to bring about a voluntary agreement. The City also 

continued to engage the DOT to ensure that its proposed accommodation procedures satisfied the 

DOT's concerns and to further seek the DOT's guidance on open legal questions. 

14. On December 17, 2014, the DOT General Counsel Kathryn Thomson wrote the 

City summarizing the DOT's views of the accommodation issue in response to earlier telephone 

conversations between the DOT and the City purporting to provide guidance as to the DOT's 

position on the City's legal obligations (the "First DOT Letter").4 While the City hoped that the 

First DOT Letter would have provided the kind of definitive legal guidance that the City had 

been seeking so it would have clear and enforceable authority to proceed with an accommodation 

decision, the First DOT Letter proved to be far less definitive and far more ambiguous than the 

City had hoped. 

15. Attached to and incorporated into the First DOT Letter was a compendium of 

airport competition plan requirements. The attached compendium report did not provide the 

3 Exhibit 45, Letter from W. Ernst, City, to Airlines, at 2 (Dec. 1, 2014). 

4 Exhibit 63, Letter from K. Thomson, DOT, toW. Ernst, City (Dec. 17, 2014). 

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DOT's policy on accommodation or provide the City with any specific guidance or direction on 

addressing the accommodation of Delta. 

16. None of the examples in the compendium included permanent accommodation 

mandates for preferential use gates or were similar to the City's circumstances at Love Fieldwhere an airport is prohibited by law from adding gates. While examples of how other airports 

have addressed competition issues were interesting, none of the information in the compendium 

responded to the key, Love Field-unique problems, i.e., how to address accommodation at a 

space-constrained facility with preferential gate rights that encompassed all gates when federal 

law explicitly prohibits any action that would interfere with those preferential gate rights. 

Neither the compendium nor the First DOT Letter addressed the unique legal limitations of 

W ARA and the Five-Party Agreement. 

17. The First DOT Letter did not mandate that the City take any particular action. 

Specifically, the letter did not require the City to grant Delta's accommodation request. 

Although the DOT provided some explanation of its policy and approach, it did not provide a 

legal basis for those views and did not explain how the DOT's views related to the patticular 

legal constraints at Love Field under W ARA and the Five-Patty Agreement. The First DOT 

Letter did not provide the City with the definitive direction that the City had sought in the face 

the space-constrained facilities at Love Field, the W ARA limitations, the opposing arguments 

from the carriers, and the threats of litigation. 

18. One significant unresolved issue hanging over the entire accommodation debate 

was how to address the request by Southwest and United dating from October 7, 2014, that the 

City consent to Southwest's sublease of United's gates. The City was not involved in, or 

informed of, negotiations between United and other carriers that apparently resulted in an 

7 
agreement for Southwest to acquire United's lease rights for $120 million.5 The City was 

advised of the sublease deal only when agreement was reached and the parties sought the City's 

approval of the sublease. The DOT/FAA knew more about that agreement than the City did 

before the City consented because the DOT/FAA had knowledge of the business terms including 

the payment amount of the agreement in October 2014, while the City learned of those terms 

only when revealed in Judge Kinkeade's courtroom in late September 2015. 

19. When the City learned that DOJ's review under the Hart-Scott-Rodino Antitrust 

Improvement Act would be required, it consulted with DOJ and the DOT and informed both 

agencies (and the two involved airlines) that it would wait for and rely on DOJ's action before 

taking any action to approve the sublease. DOT concurred in this approach. 

20. Upon learning on January 23 that the extended deadline for DOJ objections had 

passed without any DOJ antitrust objection, the City determined that it no longer had any valid 

legal basis to withhold its consent under the lease.6 Before the City gave its consent, however, I 

emailed Kathryn Thomson at the DOT advising her of the City's intent to grant consent, and I 

attached a copy of the draft consent to the DOT and sought any final DOT comments or 

objections? The City received no objections from DOT in response. The City consented to the 

Sublease on January 28, 2015.8 Since the entire accommodation dispute remained live, however, 

the City was especially careful to ensure that approval of the sublease would not in any manner 

prejudice its ability to mandate accommodation should that become necessary. The City 

approved the sublease explicitly subject to conditions that preserved City's authority to compel 

5 Exhibit 76, Email from B. Kneisley, Southwest, to J. Moss, DOT (Oct. 25, 2014) 

(attaching executed copy of the Asset Transfer Agreement between Southwest and United). 

6 See Exhibit 77, Email from M. Shaw, Southwest, P. Haske!, City (Jan. 23, 2015). 

7 See Exhibit 78, Email from P. Haske!, City, to K. Thomson, DOT (Jan. 20, 2015). 

8 Exhibit 9, City's Consent to Sublease between United and Southwest (Jan. 28, 2015). 

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accommodation pursuant to the Gate Accommodation Clause, and treated the First DOT Letter 

as binding authority unless overturned. 

21. During this period, during one of our telephone conferences with DOJ lawyers 

about the HSR review of the proposed sublease, DOJ also told me that DOJ's policy was that 

Virgin would have a reasonable time, in this instance approximately one year from date of 

Virgin's initial operations at Love Field, during which Virgin would be immune from being 

subject to gate accommodation requests at the airport. DOJ subsequently confirmed this policy 

in later conversations with me and other city lawyers. Virgin commenced Love Field operations 

in mid-October, 2014. In conversations with DOT and FAA, representatives of those agencies 

acknowledged the existence of this DOJ policy to me as well. 

22. On February 10, 2015, I met again with the DOT and the FAA in Washington 

D.C. to seek further clarification of the First DOT Letter and to request clear written instructions 

on the City's legal obligations to mandate accommodation under applicable federal law. At this 

meeting, attended by both DOT and FAA lawyers, the DOT raised for the first time the DOT's 

concerns about the City's compliance with Grant Assurances (particularly Grant Assurance 23) 

and regulations concerning authority to levy Passenger Facility Charges. DOT and FAA 

officials made several important observations and provided guidance on several points: 

• The DOT stated that "general principals" required the City to 

accommodate a carrier, the DOT did not take a position on whether 

W ARA modified those "general principles." 

• Forced accommodation is important for the City in order to satisfy 

its Grant Assurance obligations. 

• The DOT and DOJ view competition differently; the DOT does not 

necessarily share the DOJ view concerning Virgin's protection 

from forced accommodation. 

• FAA counsel emphasized that the FAA only provides guidance 

and will not substitute its judgment for that of the City in the 

operation of the airport. 

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• All carriers requesting gate accommodation should be treated 

alike, regardless of whether the carrier is an incumbent or a new 

entrant or any other category. 

• Leases with preferential use language are still subject to 

accommodation. 

• The DOT knows that Delta could have been accommodated at the 

snapshot date because it was, in fact, accommodated. Delta should 

be allowed to continue its gate use not necessarily because an 

accommodation must be permanent but because the actual 

temporary accommodation at the snapshot date demonstrates the 

availability of space for accommodation. 

23. While this additional guidance clarified certain issues, it still did not provide the 

definitive direction that the City sought in order to mandate accommodation that is consistent 

with the mandates of W ARA, incorporating the Lease and the Five-Party Agreement, and with 

the DOT/FAA views of the City's obligations under federal law and Grant Assurances. Most 

especially, the DOT and the FAA failed to explain how the City should or could reconcile the 

lease preferential gate rights with the accommodation requests, or the imposition of Grant 

Assurance violation sanctions with W ARA's limits on the DOT/FAA authority, and declined to 

provide guidance on the practicality of determining whether there was available space going 

forward from the selected snapshot date. 

24. On February 6, 2015, American submitted a request to Southwest for 

accommodation of American's proposed operations at Love Field. In April 2015, American 

requested that the City assist in American's seeking accommodation of new operations at Love 

Field under the Gate Accommodation Clause of the Lease. 9 American did not specify the date 

on which it sought to commence operations. Also, the City did not receive additional 

information from American on its accommodation request subsequent to the April 9, 2015 letter. 

Although counsel for American appeared in the District Court litigation American it did not 

9 See Exhibit 79, Letter from D. Anderson, American, to M. Duebner, City (April 9, 

2015). 

10 
submit motions or briefs to the Court and did not actively participate in the hearing on the 

motions for preliminary injunction. I believe that American has abandoned its accommodation 

request, at least for now. 

25. I later learned that on February 13, 2015, Southwest informed DOT staff that it 

was launching 13 new daily flights from Love Field. 10 In a letter submitted to the City later in 

the month, Southwest informed the City, American, Delta, and the DOT that because of the 

expansion of service at Love Field it would be "unable to provide gate space to any other carrier 

on [its]l8 Love Field gates."ll 

26. Southwest's expanded service translated into a total of 180 flights per day on 18 

gates, or 10 flights/gate/day. In the City's initial gate utilization and allocation study, prepared 

by LeighFisher, the City's consultants determined that a reasonable maximum gate utilization 

capacity would be 10 flights/date/day. The evidence at the later preliminary injunction hearing 

established that 10 flights daily per gate is the prudent maximum for aircraft of the sizes now 

used at Love Field, where hardstands are prohibited by W ARA and the number of gates and 

hours of operation are limited, also by W ARA, and by the Five-Party Agreement. 

27. By April2015, it was apparent to the City that the impasse among the airlines on 

the permanent accommodation of Delta had still not been broken. On April16, 2015, in another 

attempt to establish a fair and transparent process of addressing accommodation, I circulated a 

revised version of its draft accommodation procedures and criteria to the DOT, the FAA, and 

airlines for comments. 12 The procedures and criteria had been revised based on the guidance 

2015). 

10 Exhibit 80, Email from R. Kneisley, Southwest, to K. Thomson, DOT (Feb. 13, 2015). 

11 Exhibit 81, Letter from B. Montgomery, Southwest, to M. Duebner, City (Feb. 27, 

12 Exhibit 90, Email from L. Tuccelli sent on behalf of P. Haske!, City, to Airlines, the 

FAA, and the DOT (April 16, 2015). 

11 
from the DOT correspondence, meetings and phone conversations and from earlier input from 

the airlines. Neither the DOT nor the FAA commented on the proposed accommodation 

procedures, although they were on the distribution list. 

28. On or about May 19 through 24, and again on June 11 and 12, 2015, the City 

attempted to negotiate an extended temporary or a long-term gate accommodation agreement 

between Delta and Southwest. Each Airline informally signaled what it might accept as a 

compromise, but rejected the proposals the other Airline floated. No agreement was reached. 

29. Almost four months after the City requested further clarification and two months 

after the City had circulated proposed accommodation procedures for comment and guidance, 

the DOT responded by letter to those requests on June 15, 2015 ("Second DOT Letter"). 13 As 

with the First DOT Letter, the Second DOT Letter expressed the DOT's position on what actions 

the DOT would consider to be reasonable, but it did not provide the City with a clear direction 

on what the City must do to comply with all applicable law, including the Grant Assurances, 

W ARA, the Five-Party Agreement, and the Lease. Moreover, the Second DOT Letter did not 

analyze W ARA, or explain the legal bases for the DOT's views. 

30. Disappointingly, the Second DOT Letter did nothing to resolve the City's 

questions concerning its obligations under the Lease and W ARA. Indeed, the DOT had provided 

considerable guidance and had opined on what would be reasonable actions by the City but it had 

failed to direct what actions the City must, and what actions it must not, take to comply with its 

Grant Assurance obligations. Just as importantly, the DOT had declined to provide any 

guidance, much less definitive direction, on reconciling the City's obligations under the Grant 

Assurances, the Lease and WARA. The need to reconcile the City's obligations was not merely 

13 Exhibit 94, Letter from K. Thomson, DOT, toP. Haske!, City, (June 15, 2015). 

12 
theoretical because the theories offered by Delta, Southwest, and the DOT all conflicted. In 

other words, the City knew with virtual certainty that, if it chose one manner or another for 

reconciling these requirements, it would face litigation by the party or parties who disagree with 

its legal interpretation. 

31. The conflicting demands and legal interpretations, the lack of viable guidance 

from the DOT, and the impending July 6, 2015, expiration of Delta's accommodation agreement 

with United, left the City with no clear path forward. The City felt it could not proceed in the 

face of the conflicting legal positions of the stakeholders regarding the meaning of the Gate 

Accommodation Clause, the relationship between the Lease, W ARA, and the Five-Party 

Agreement and the City's obligations under its grant assurances, and the scope of DOT/FAA's 

authority over the accommodation process in light of W ARA. 

32. Accordingly, there was no realistic option but to seek legal direction and guidance 

from a federal district court. Therefore, on June 17, 2015, the City filed a complaint in federal 

district court for the Northern District of Texas, Dallas Division, challenging the First and 

Second DOT Letters and seeking declaratory relief against the DOT, Delta, Southwest, Virgin, 

United, and SeaPort. The City sought judicial direction to avoid an untenable legal conflict and 

an unsafe and inefficient practical conflict among the carriers for use of Love Field gates and to 

avoid liability from Southwest if it was determined that the City interfered with its preferential 

lease rights without an adequate FAA or judicial directive to do so. 

33. One of the principal purposes of the City's litigation was to ensure that Delta 

remain accommodated notwithstanding the impending expiration of the voluntary 

accommodation efforts on July 7, 2015, at least until a court otherwise directed. On June 23, 

2015, U.S. District Judge Ed Kinkeade held a conference call with the parties during which the 

13 
court urged Southwest's to continue accommodating Delta's five flights until September 30, 

2015, the projected date for the conclusion of a hearing on cross motions for a preliminary 

injunction. This resulted in Southwest extending accommodation until the Court rules on 

competing preliminary injunction motions. Southwest and Delta entered into a temporary gate 

use agreement on July 2, 2015, accommodating Delta through September 30. 14 

34. Delta has been continuously accommodated since then pending the Court's 

decision. 

35. The DOT and FAA appeared in and attended through counsel the entire three-day 

preliminary injunction hearing in the U.S. District Court, Northern District of Texas, held on 

Sept. 28-30, 2015. Although present they did not object to any documentary evidence, 

testimony, evidentiary stipulations, or fact stipulations, or to any court rulings. I was present 

throughout the hearing. 

Under 28 U.SC. § 1746, I declare under penalty of perjury under the laws of the United 

States of America that the foregoing is true and c 

... Peter B. Haske! 

14 Exhibit 96, Gate Use License Agreement Between Southwest and Delta (July 2, 2015). 

Southwest later agreed that the parties intended this accommodation to last until the District 

Court decided the competing preliminary injunction motions. 

14 
IN RE MATTER OF COMPLIANCE 

WITH FEDERAL OBLIGATIONS BY 

THE CITY OF DALLAS, TEXAS 

FAA Docket No. 16-15-10 

AFFIDAVIT OF MARK DUEBNER IN SUPPORT OF CITY OF DALLAS' 

RESPONSE OF THE CITY OF DALLAS TO THE NOTICE OF INVESTIGATION 

AND MOTION TO DISMISS THE NOTICE OF INVESTIGATION 

I, Mark Duebner, of my personal knowledge and belief declare as follows: 

1. I am the Director of Aviation for the City of Dallas and am responsible for the 

management of the City's airport system, including the management of Love Field. As Director, 

I have been intimately involved with the accommodation issues at Love Field. 

2. SeaPort Airlines ("SeaPort") sought accommodation at Love Field from the 

incumbent airlines in the Summer of 2014 and was initially unsuccessful in obtaining an 

accommodation agreement. Accordingly, the City included SeaPort and Delta Air Lines, Inc. 

("Delta") in its initial forced accommodation letters dated September 3, 2014. By November 

2014, SeaPort had negotiated a voluntary accommodation agreement with Virgin America Inc. 

("Virgin") and United Airlines, Inc. ("United") to provide it gate and counter space. Unlike 

Delta, SeaPort did not thereafter request that the City make any further accommodation. And, to 

my knowledge, SeaPort did not seek further accommodation from Southwest or any other airline. 

The City determined that SeaPort had been accommodated to its satisfaction and no longer 

sought to invoke the Gate Accommodation Clause for further accommodation. 
Under 28 U.SC. § 1746, I declare under penalty of perjury under the laws of the United 

States of America that the foregoing is true and correct. 

Executed on November20, 2015. 

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