BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Applications of 

DELTA AIR LINES, INC.

AMERICAN AIRLINES, INC. and

US AIRWAYS, INC.

 

for frequency allocations 

(U.S. - Brazil)

)

)

)

)

)

)

)

)

)

Docket DOT-OST-2013-0045

 DOT-OST-2013-0041

 DOT-OST-2013-0046

 

MOTION OF DELTA AIR LINES, INC.

TO COMPEL ADDITIONAL INFORMATION 

Communications with respect to this document should be addressed to:

Glen Hauenstein

Executive Vice President, Network Planning & 

Revenue Management

Robert J. Cortelyou

Senior Vice President – Network Planning

DELTA AIR LINES, INC.

1030 Delta Boulevard

Atlanta, Georgia 30320

Andrea Fischer Newman

Senior Vice President – Government Affairs

DELTA AIR LINES, INC. 

1212 New York Avenue, N.W. 

Washington, D.C. 20005

Alexander Van der Bellen

Managing Director – Government Affairs

 & Associate General Counsel

Chris Walker

Regional Director – Government Affairs

DELTA AIR LINES, INC. 

1212 New York Avenue, N.W. 

Washington, D.C. 20005

(202) 842-4184

sascha.vanderbellen@delta.com

March 7, 2013
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Applications of 

DELTA AIR LINES, INC.

AMERICAN AIRLINES, INC. and

US AIRWAYS, INC.

 

for frequency allocations 

(U.S. - Brazil)

)

)

)

)

)

)

)

)

)

Docket DOT-OST-2013-0045

 DOT-OST-2013-0041

 DOT-OST-2013-0046

 

MOTION OF DELTA AIR LINES, INC.

TO COMPEL ADDITIONAL INFORMATION 

Delta respectfully moves the Department to require US Airways and United to 

provide additional information, so that the Department and interested parties can have a 

more complete and accurate picture of the current allocation of frequencies and the 

U.S.-Brazil competitive landscape. US Airways and American are the only carriers that 

have filed competing applications to Delta’s. American is already the dominant U.S.-

Brazil carrier, and the proposed merger transaction with US Airways would form a new 

competitor even more dominant than American is today.1

 Given that the American/US 

Airways merger parties are the only competing applicants, and that the frequencies at 

issue are critical to Delta’s effort to achieve competitive parity in Brazil, it is important 

that the Department carefully consider the implications of the pending American/US 

Airways merger in light of all available facts and evidence.

 1 If American’s and US Airway’s proposals were granted here, and Delta’s was not, post 

merger American would have 82 unrestricted Brazil frequencies, Delta 16, and United 

35. On the other hand, if Delta’s proposal is granted in full, American would still be the 

dominant carrier, but with a much more competitive distribution of unrestricted 

frequencies: 61 for American, 37 for Delta, and 35 for United.
Application of Delta

Page 2

Specifically, Delta seeks information on the US Airways/United frequency lease 

for Charlotte-Sao Paulo service, and the terms of that agreement as they relate to US 

Airway’s claim that "US Airways and American remain separate and independent 

entities" for purposes of this proceeding. (US App. at n.4) When US Airways sought 

approval of its frequency lease with United to begin Charlotte-Sao Paulo service, US 

Airways represented to DOT that the lease would run "through conclusion of the IATA 

winter 2014-15 traffic season, subject to extension" (Attachment 1 at p.4). DOT 

approved the Charlotte-Sao Paulo frequency lease on that basis. (NOAT dated August 

2, 2010, Attachment 2). 

Subsequently, US Airways negotiated with Delta (in the context of the LGA/DCA 

slot swap transaction) for additional unrestricted Brazil frequencies starting in the IATA 

summer 2015 traffic season, which would enable US Airways to continue its CharlotteSao Paulo service without interruption at the conclusion of the initial term of the United 

frequency lease. Delta remains obligated to deliver seven (7) unrestricted Brazil

frequencies to US Airways at the start of the IATA summer 2015 season under the terms 

of the slot swap agreement, also approved by DOT. 2

 

In its March 4, 2013 Application, US Airways now claims that “unless US Airways 

receives the necessary frequencies available for service beginning October 1, 2013, it 

would be required to suspend its existing Charlotte-Sao Paulo service." (US App. at 

n.2). This claim inconsistent with the DOT’s prior approval of the US Airways/United 

lease, represented to run thought Winter2014-15, and the subsequently approved 

frequency transfer under the slot swap deal, which provided US Airways the frequencies 

necessary to continue Charlotte-Sao Paulo service in Summer 2015 and beyond. 

 2

 See, DOT/FAA Notice granting petition, Docket FAA-2010-0109 (Issued October 7, 2011).
Application of Delta

Page 3

The Department should require US Airways to explain this inconsistency on the 

record, and to file a copy of the United/US Airways frequency lease in the docket. If the 

United/US Airways lease requires US Airways to return the frequencies as the result of 

the consummation of its merger with American, then US cannot credibly claim in this 

proceeding that "US Airways and American remain separate and independent entities." 

(US App. at n.4). Further, given the large cache of unrestricted frequencies held by the 

combined American/US Airways entity (including quadruple daily service at Miami and 

double daily flights from other gateways) there is no doubt that American/US Airways 

have the frequencies necessary to fund continued service at Charlotte. US Airways is 

silent on its plans for use of these seven unrestricted Brazil frequencies it will receive 

from Delta, and should be required to state those plans for the record. The Department 

and interested parties should have full information and not be left to guess at these 

important facts regarding the disposition of currently allocated Brazil frequencies.

Delta also requests that the Department require United to state its plans for 

incremental U.S.-Sao Paulo flying, which United would be required to commence 

following the return of its leased frequencies from US Airways. Under the terms of the 

Department’s August 2, 2010 NOAT, United is required to use the returned frequencies 

within 90 days. United’s use of frequencies is particularly relevant here, considering that 

American has proposed nonstop service at Los Angeles and Chicago, which are large 

United hubs. Should United plan to commence service from either of these gateways, 

that is an important factor the Department would want to weigh in its decision.

Finally, Delta notes that the Department will shortly be called upon to consider 

the public interest merits of allowing all of US Airways’ international authorities to be 

transferred to American in an anticipated route transfer application. While Delta 

generally believes the proposed merger is healthy and procompetitive for the airline 
Application of Delta

Page 4

industry, it would not be in the public interest to allow US Airways and American to 

acquire new unrestricted frequencies here -- which are essential to bring Delta to 

competitive parity in Brazil -- and then combine those frequencies in a new consolidated 

entity that will be even more dominant that American is today. 

 Respectfully submitted,

_________________________________

Alexander Van der Bellen

Managing Director, Government Affairs

 & Associate General Counsel

DELTA AIR LINES, INC.
CERTIFICATE OF SERVICE

A copy of the foregoing Motion has been served this 7th day of March, 2013, upon 

the following persons via email:

Francis.Heil@aa.com 

howard.kass@usairways.com

benjamin.slocum@usairways.com

dan.weiss@united.com

thomas.bolling@united.com

paul.gretch@dot.gov

esta.rosenberg@dot.gov

brian.hedberg@dot.gov

brett.kruger@dot.gov

urskr@state.gov

joe.cambron@wcaa.us

brubinst@panynj.gov

louis.miller@atlanta-airport.com

info@airlineinfo.com
Exhibit 1

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Exhibit 1

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Exhibit 1

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Exhibit 1

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Exhibit 1

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Exhibit 1

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Exhibit 1

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Exhibit 1

8
1 

 UNITED STATES OF AMERICA 

 DEPARTMENT OF TRANSPORTATION 

 OFFICE OF THE SECRETARY 

 WASHINGTON, D.C. 

Issued by the Department of Transportation on August 2, 2010 

NOTICE OF ACTION TAKEN -- DOCKETS DOT-OST-2010-0183 DOT-OST-2009-0003 _________________________________________________________________________________________________________________________ 

This serves as notice to the public of the action described below, taken by the Department official indicated (no 

additional confirming order will be issued in this matter). 

Docket DOT-OST-2010-0183 

Joint Application of UNITED AIR LINES, INC. (United) and US AIRWAYS, INC. (US Airways) filed

7/15/10 for:

XX Temporary reallocation to US Airways of seven U.S.-Brazil frequencies held by United to permit US 

Airways to offer daily nonstop Charlotte-Sao Paulo service.1

Docket DOT-OST-2009-0003

Application of US AIRWAYS, INC. (US Airways) filed 7/15/10 for:

XX Amendment of exemption under 49 U.S.C. 40109 to provide the following services: 

Scheduled foreign air transportation of persons, property, and mail between Charlotte, North Carolina 

and Sao Paulo, Brazil.2

Applicant reps: Jeffrey A. Manley (301) 229-8571 (United) DOT Analyst: Thuy H. Cooper (202) 366-5423

 Howard Kass (202) 326-5153 (US Airways) 

D I S P O S I T I O N 

XX Granted request of United and US Airways for reallocation of U.S.-Brazil frequencies in Docket 

DOT-OST-2010-0183 (subject to conditions, see below) 

XX Granted request of US Airways for amended exemption authority in Docket DOT-OST-2009-0003 

(subject to conditions, see below) 

The above action granting a temporary reallocation of frequencies in Docket DOT-OST-2010-0183 was effective 

when taken: August 2, 2010. The reallocation of frequencies will remain in effect indefinitely, subject to 

conditions and the arrangements agreed between the applicants, as set forth in their application.3

The above action granting amended exemption authority to US Airways in Docket DOT-OST-2009-0003 was 

effective when taken: August 2, 2010, through August 2, 2012. 

 

1

 The Joint Applicants state that the reallocation will be for a period from January 11, 2011 through the conclusion of the 

IATA winter 2014-15 traffic season, subject to extension. The Joint Applicants request an indefinite reallocation until 

notification is filed with the Department that the frequencies are to be returned to United. 2

 US Airways currently holds economic authority to serve the Charlotte- Rio de Janeiro market (see Order 2009-4-6). 3 See footnote 1. 

Exhibit 2 1
2 

Action taken by: Paul L. Gretch, Director 

 Office of International Aviation 

XX The authority granted is consistent with the aviation agreement between the United States and Brazil. 

Except to the extent exempted or waived, this authority is subject to the terms, conditions, and limitations 

indicated: XX US Airways’ certificates of public convenience and necessity 

 XX Standard U.S. Carrier Exemption Conditions (attached) --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 

Conditions: The frequencies temporarily reallocated here to US Airways are subject to start-up and dormancy 

conditions. If US Airways does not begin service with the reallocated frequencies within 90 days of 

January 11, 2011, then, in light of the fact that the reallocation of these frequencies derives from an unopposed 

arrangement between United and US Airways, the unused frequencies will automatically revert to United. 

Similarly, any frequency not operated for a period of 90 days (once inaugurated and for any reason other than 

seasonal use), will be deemed dormant and the reallocation as to that frequency will revert to United. 

Should any frequencies revert to United, whether under the start-up condition or the dormancy condition 

discussed immediately above, such frequencies will again be subject to start-up and dormancy conditions while 

held by United. Specifically, if United does not begin service with the reverted frequencies within 90 days of the 

reversion, any unused frequency will revert to the Department. Similarly, any frequency that has reverted to 

United and which is not operated for a period of 90 days (once inaugurated by United and for any reason other 

than for seasonal use), will be deemed dormant and the allocation as to that frequency will revert to the 

Department. 

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

On the basis of data officially noticeable under Rule 24(g) of the Department’s regulations, we found the 

applicants qualified to provide the services authorized. 

Under authority assigned by the Department in its regulations, 14 CFR Part 385, we found that (1) our action was 

consistent with Department policy; (2) grant of the authority was consistent with the public interest; and (3) grant 

of the authority would not constitute a major regulatory action under the Energy Policy and Conservation Act of 

1975. To the extent not granted, we denied all requests in the referenced Dockets. We may amend, modify, or 

revoke the authority granted in this Notice at any time without hearing at our discretion. 

Persons entitled to petition the Department for review of the action set forth in this Notice under the Department’s 

regulations, 14 CFR §385.30, may file their petitions within seven (7) days after the date of issuance of this 

Notice. This action was effective when taken, and the filing of a petition for review will not alter such 

effectiveness. 

An electronic version of this document is available on the World Wide Web at: 

http://www.regulations.gov

Exhibit 2 2
1 

Appendix A 

U.S. Carrier Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier applicant(s) shall: 

(1) Hold at all times effective operating authority from the government of each country served; 

(2) Comply with applicable requirements concerning oversales contained in 14 CFR 250 (for scheduled 

operations, if authorized); 

(3) Comply with the requirements for reporting data contained in 14 CFR 241; 

(4) Comply with requirements for minimum insurance coverage, and for certifying that coverage to the 

Department, contained in 14 CFR 205; 

(5) Except as specifically exempted or otherwise provided for in a Department Order, comply with the 

requirements of 14 CFR 203, concerning waiver of Warsaw Convention liability limits and defenses; 

(6) Comply with all applicable requirements of the Federal Aviation Administration, the Transportation 

Security Administration, and with all applicable U.S. Government requirements concerning security, including, 

but not limited to, 49 CFR Part 1544. To assure compliance with all applicable U.S. Government requirements 

concerning security, the holder shall, before commencing any new service (including charter flights) to or from 

a foreign airport, contact its Principal Security Inspector (PSI) to advise the PSI of its plans and to find out 

whether the Transportation Security Administration has determined that security is adequate to allow such 

airport(s) to be served; 

(7) Comply with such other reasonable terms, conditions, and limitations required by the public interest as may 

be prescribed by the Department of Transportation, with all applicable orders and regulations of other U.S. 

agencies and courts, and with all applicable laws of the United States. 

The authority granted shall be effective only during the period when the holder is in compliance with the 

conditions imposed above. 

 

 

 1/2008 

Exhibit 2 3