jet Blue· 

27-01 Queens Plaza North 

Long Island City, NY 11101 

jetblue.com 

January 9, 2014 

VIA HAND DELIVERY & OVERNIGHT 

Mr. Marc L. Warren , Esq. 

Acting Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Re: Request of JetBiue Airways for a Waiver 

Dear Mr. Warren: 

JetBiue Airways Corporation ("JetBiue") requests a waiver from certain 

restrictions in the JFK Order Limiting Scheduled Operations at John F. Kennedy 

International Airport, 1 so that it can permanently transfer, via a mutual slot 

purchase agreement, 24 JFK operating authorizations ("slots") to American 

Airlines, Inc. ("American") in exchange for the permanent transfer of 16 DCA 

slots from American to JetBiue. Granting the waiver will make permanent an 

arrangement that has been in place since 2010 ("2010 Slot Exchange"), will 

assure the continued presence of JetBiue, a low cost carrier, at DCA, and will 

allow American to comply with the terms of a proposed settlement announced by 

United States Department of Justice ("DOJ") on November 12, 2013.2 

The transfer of these slots is required under the terms of a proposed final 

judgment ("PFJ") between DOJ and the States of Arizona, Florida, Tennessee, 

and Michigan, the Commonwealths of Pennsylvania and Virginia, the District of 

Columbia, American and US Airways requiring that American offer to divest the 

16 DCA slots currently operated by JetBiue by making permanent the 2010 Slot 

Exchange. 3 See PFJ at IV.F.1, United States, eta/. v. US Airways Group, Inc., et 

1 73 Fed. Reg. 3510 (January 18, 2008), as amended; hereinafter, "JFK Order". 

2 The proposed settlement specifically refers to, and requires American to divest, 

the slots currently operated at DCA by JetBiue. See Proposed Final Judgment, 

United States, eta/. v. US Airways Group, Inc., eta/., No. 1 :13-cv-01236 (D.D.C. 

Nov. 12, 2013), 1J1JII.E, II.F & IV.F.1. 

3 While JetBiue has the option of refusing to make the 2010 Slot Exchange 

permanent, American is required to offer the permanent transfer of slots and, if 

rejected by JetBiue, must then include the slots in the larger pool of slots to be 

divested on the open market. While JetBiue could refuse to exchange its JFK 

slots for DCA slots and instead try to negotiate a cash transaction, it could only 

do so at great risk to its continued operations because the settlement agreement 
Mr. Marc L. Warren, Esq. 

January 9, 2014 

Page 2 

a/., No. 1: 13-cv-01236 (D.D.C. Nov. 12, 2013), ECF No. 147-2. The DOJ 

believes that this divestiture, along with the others required by the terms of the 

settlement agreement, will "allow [LCCs and other carriers] to provide greatly 

expanded service on numerous routes, including new nonstop and connecting 

service to points throughout the country." Competitive Impact Statement United 

States, eta/. v. US Airways Group, Inc., eta/., No. 1:13-cv-01236 (D.D.C. Nov. 

12, 2013), ECF No. 148 ("CIS"), at 9. 

The JFK Order was issued in 2008 as a temporary measure to address 

the growing congestion at JFK airport that was, in part, a result of the January 1, 

2007 expiration of the High Density Rule4 at JFK under the Wendell H. Ford 

Aviation Investment and Reform Act for the 21 51 Century. 5 The JFK Order was 

initially scheduled to expire October 24, 20096 and specifically prohibited the sale 

of slots, instead permitting only the lease of slots, and then only through the end 

of the term of the JFK Order. 7 However, on May 21, 2008, the FAA published a 

notice of proposed rulemaking that was intended to replace the JFK Order. 8 

Both the High Density Rule and the NPRM contemplated the sale of slots, and 

there is no reason to believe that the FAA intended to restrict the sale of slots at 

JFK over the long-term. The JFK Order has been extended without change 

several times, and the final rule addressing operations at JFK is unlikely to be 

issued in time to address the proposed settlement's requirement that American 

offer to make permanent the 2010 Slot Exchange by offering JetBiue 16 DCA 

slots in exchange for the 24 slots currently held by JetBiue at JFK. 9 

The FAA has the statutory authority to grant the requested waiver. 

Section 40109 of the Transportation code authorizes the FAA to grant an 

exemption when the Administrator "decides the exemption is in the public 

interest." 49 U.S.C. § 40109(b). The FAA will grant waivers when they are 

consistent with the public interest and will provide an equivalent or greater level 

only gives JetBiue priority with respect to making the existing agreement 

permanent and provides no preference for JetBiue in the event that the DCA 

slots are offered to multiple carriers. 

4 14 C.F.R. 93.221. 

5 49 U.S.C. 41715(a)(2)(2000). 

6 The FAA has continued to extend The JFK Order, which is now set to expire 

October 24, 2014. 78 Fed. Reg. 28,276 (May 14, 2013). 

7 73 Fed. Reg. 3510, 3516. 

8 73 Fed. Reg. 29,626 (May 21, 2008), finalized on October 10, 2008 (73 Fed. 

Reg. 60,544) and rescinded October 9, 2009 (74 Fed. Reg. 52, 134). 

9 A notice of proposed rulemaking has been pending review at the Office of 

Management and Budget since March 9, 2013 

http://reg info.gov/public/do/eAgendaViewRu le?publd=20 1304&RI N=2120-AJ89. 
Mr. Marc L. Warren, Esq. 

January 9, 2014 

Page 3 

of safetyw Indeed, the FAA has previously granted a waiver of the analogous 

Operating Limitations at New York LaGuardia Airport in connection with the 2011 

slot swap transaction between Delta Air Lines and US Airways 11 and in 

connection with similar divestitures required by the PFJ. 12 As explained more 

fully below, we believe a waiver from the JFK Order's restriction on the sale of 

slots is warranted in this instance. Here, the FAA's objective of safely and 

efficiently managing air traffic at JFK is preserved, and the public policy goal of 

promoting competition in air commerce and improved service to the traveling 

public continues to be enhanced. In addition, DOJ has called for the permanent 

exchange of the JetBiue slots at JFK and the American slots at DCA, noting that 

JetBiue offers service on a limited number of routes at DCA "through use of slots 

leased from American on terms that could be renegotiated or cancelled by the 

New American. Through the remedy ... JetBiue will have the opportunity to obtain 

permanent access to the slots [it is] currently leasing from American, and ... will 

have the opportunity to acquire more slots at DCA ... as well." CIS at 8-9. 

By approving this waiver, the FAA will allow American to fulfill a 

requirement under the PFJ that settles the litigation between the DOJ and 

American. More significantly for JetBiue, the waiver will allow it to make 

permanent an existing slot exchange that allows it to serve DCA The 2010 Slot 

Exchange has resulted in considerable consumer benefits. Indeed, in the 

Complaint that initiated the litigation to enjoin the US Airways/American merger, 

the DOJ alleged that JetBiue's entry into DCA "generated stiff price competition" 

and fares on the "Reagan National to Boston . . . route [in particular] have 

dropped dramatically."13 Moreover, in granting a prior waiver, the FAA recognized 

10 The slot rules were adopted to improve efficiency and not for reasons of 

aviation safety. Thus, there is no need in this instance to demonstrate an 

equivalent or greater level of safety. In any case, it is clear that transferring slots 

from one scheduled air carrier to another, both of which are regulated under the 

same operational rules in 14 CFR part 121, will not have an adverse effect on 

safety. 

11 Petition for Waiver of the Terms of the Order Limiting Scheduled Operations 

at LaGuardia Airport, 76 Fed. Reg. 63,702 (Oct. 13, 2011) ("granting the joint 

waiver request of Delta Air Lines, Inc. (Delta) and US Airways, Inc. (US Airways) 

(together, the Joint Applicants or the carriers) from the prohibition on purchasing 

operating authorizations (slots) at LaGuardia Airport (LGA)."). 

12 Grant of Waiver at 3, In re the Petition of American Airlines, Inc.· for a Waiver 

from the Order Limiting Operations at LaGuardia Airport, No. FAA-2013-1 011-

0002 (December 2, 2013). 

13 Amended Complaint at ~88 United States, eta/. v. US Airways Group, Inc., et 

a!., No. 1:13-cv-01236 (D.D.C. Sep. 5, 2013), ECF No. 73. 
Mr. Marc L. Warren, Esq. 

January 9, 2014 

Page4 

the competitive benefits and pncmg discipline resulting from low cost carrier 

competition-and competition from JetBiue specifically-at DCA. 14 

At JFK, American uses the JetBiue slots for a combination of domestic 

and international routes, competing with other large domestic and international 

carriers serving global markets. By expanding its international outreach at JFK 

with large, wide-body aircraft, American has been able to increase passenger 

throughput internationally without increasing the burden on air traffic control. 

Likewise, JetBJue anticipates that the impact to the traveling public at DCA 

will be positive. After execution of the 2010 Slot Exchange, American 

significantly reduced the number of flights at DCA using smaller, regional aircraft. 

By removing those regional aircraft and replacing them with larger E-190 and A320 aircraft, 15 JetBiue increased the average seats per arrival and departure at 

DCA. 

The permanent exchange of these slots does not pose any operational 

concerns at JFK or DCA, having been implemented at both airports in 2010. The 

aircraft do not require any special handling by air traffic control that would require 

additional spacing or otherwise introduce delay at the airports. 

Nor does the requested waiver prejudice any long-term FAA policy 

decisions relating to congestion management at DCA or JFK. Transfer of the 

JFK slots to American in exchange for the DCA slots held by American but used 

by JetBiue will give JetBiue and American the same rights that each carrier 

currently has as the slot holder at the respective airports - no more and no less. 

A waiver is needed as soon as possible so that American can satisfy its 

obligations under the terms of the PFJ. The public policy considerations have 

been well explored by all parties to the litigation, including DOJ. In addition, 

granting the waiver will have no practical impact on the current operational 

makeup of the respective airports; rather, it will merely finalize an agreement that 

is currently temporary by virtue of the JFK Order. As such, JetBJue believes 

there is good cause to forgo a notice and comment period. 

14 76 Fed. Reg. at 63,705 ("We believe the transaction's promised benefits for the 

public-particularly in light of the increased penetration of low cost carriers at the 

airports since the time of our last review-are sufficient for us to conclude that 

want of the requested waiver with specified remedies is in the public interest."). 

5 JetBiue's E-190 aircraft seat 100 passengers, and its A-320 aircraft seat 150 

passengers. 
Mr. Marc L. Warren, Esq. 

January 9, 2014 

Page 5 

In conclusion, the waiver is well justified and in the public interest. JetBiue 

respectfully urges the FAA to grant the requested relief as soon as possible, so 

that the parties can close their transaction. 

Sincerely, 

Robert C. Land 

Senior Vice President for Government 

Affairs & Associate General Counsel, 

JetBiue Airways Corporation 

cc: Howard Kass, Vice President of 

Regulatory Affairs, American Airlines