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 Couns el 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, 2013BEFORE 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 com peting 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 p arties 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 m erger 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 b e 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 Ame rican 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 n egotiated 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 Charlotte

Sao Paulo service without int erruption 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 agreemen t, 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

necess ary 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 f requency 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. a t 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 f l ights from other gateways) there is no doubt that American/US Airways

have th e 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 Departmen t

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

incre mental 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 airlineApplication of Delta Page 4

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

acquire new unr estricted 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 7 th 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.com1 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, pr operty, 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 rea llocation 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 ag reed 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 s eason, subject to extension. The Joint Appli cants 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 1.2 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 authorit y is subject to the terms, conditions, and limitations indicated: XX US Airways’ certificates of public convenience and necessity XX Standard U.S. Carrier Ex emption 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 unu sed 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 reallocati on 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 servi ce with the reverted frequencies within 90 days of the reversion, any unused frequenc y will revert to the Department. Similarl y, any frequency that has reverted to United and which is not operated for a period of 90 da ys (once inaugurated by United and for any reason other than for seasonal use), will be deemed dormant and th e 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 regula tions, 14 CFR Part 385, we found that (1) our action was consistent with Department policy; (2) grant of the author ity 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 deni ed 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 th is document is available on the World Wide Web at: http://www.regulations.gov1 

### Appendix A
U.S. Carrier Exemption Conditions

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

(1) Hold at all times effectiv e operating authority from the govern ment of each country served;

(2) Comply with applicable requirements concerni ng oversales contained in 14 CFR 250 (for scheduled operations, if authorized);

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

(4) Comply with requirements for minimum insuran ce coverage, and for certifying that coverage to the Department, contained in 14 CFR 205;

(5) Except as specifically exempted or otherwise pr ovided for in a Department Order, comply with the requirements of 14 CFR 203, concerni ng waiver of Warsaw Convention liability limits and defenses;

(6) Comply with all applicable requirements of th e Federal Aviation Administration, the Transportation Security Administration, and with all applicable U.S. Government requirements con cerning security, including, but not limited to, 49 CFR Part 1544. To assure complian ce with all applicable U.S. Government requirements concerning security, the holder shall, before commencing any new service (including charter flig hts) 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 Ad ministration has determined that secu rity is adequate to allow such airport(s) to be served;

(7) Comply with such other reasonable terms, conditi ons, 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 eff ective only during the period when th e holder is in compliance with the conditions imposed above.

1/2008