BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

__________________________________________ 

 ) 

Motions and Application of ) 

 ) 

 AMERICAN AIRLINES, INC. ) 

HAWAIIAN AIRLINES, INC. ) Docket DOT-OST-2010-0018 

 ) 

in the matter of 2010 U.S.-Haneda ) 

Combination Services Allocation Proceeding ) 

__________________________________________) 

ANSWER OF HAWAIIAN AIRLINES, INC. 

TO PETITION OF DELTA AIR LINES, INC. 

FOR RECONSIDERATION OF ORDER 2014-12-19 

Communications with respect to this document should be addressed to: 

Mark B. Dunkerley 

President & Chief Executive Officer 

Peter Ingram 

Executive Vice President and Chief 

Commercial Officer 

Hoyt H. Zia 

Senior Vice President, General Counsel & 

Corporate Secretary 

Hawaiian Airlines, Inc. 

P.O. Box 30008 

Honolulu, HI 96820-0008 

J. Parker Erkmann 

Jonathan B. Hill 

Geoff Rapoport 

Cooley LLP 

1299 Pennsylvania Ave., NW 

Suite 700 

Washington, DC 20004 

(202) 842-7800 

(202) 842-7899 (fax) 

perkmann@cooley.com 

jhill@cooley.com 

grapoport@cooley.com 

Counsel for Hawaiian Airlines, Inc. 

January 2, 2015
 

BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

__________________________________________ 

 ) 

Motions and Application of ) 

 ) 

 AMERICAN AIRLINES, INC. ) 

HAWAIIAN AIRLINES, INC. ) Docket DOT-OST-2010-0018 

 ) 

in the matter of 2010 U.S.-Haneda ) 

Combination Services Allocation Proceeding ) 

__________________________________________) 

ANSWER OF HAWAIIAN AIRLINES, INC. 

TO PETITION OF DELTA AIR LINES, INC. 

FOR RECONSIDERATION OF ORDER 2014-12-19 

 Hawaiian Airlines, Inc. (“Hawaiian”) files this answer in opposition to the Petition of 

Delta Air Lines, Inc. (“Delta”) for Reconsideration of Order 2014-12-9.1 Contrary to the 

assertions in Delta’s misguided pleading, the Department of Transportation (“DOT” or the 

“Department”) has the authority to determine whether the public interest requires reallocation of 

a limited, valuable air service right, provided the Department gives the holder of that air service 

right notice and an opportunity for a hearing. Order 2014-12-9 (the “Initiating Order”) does 

precisely that. 

 The Delta Petition asserts the myopic view that “the [Initiating] Order subjects the 

Seattle-Haneda frequencies to reexamination on the basis of single-season” ‘Seattle-Haneda 

                                                            

1

 Petition of Delta Air Lines, Inc. (“Delta”) for Reconsideration of Order 2014-12-9, DOT-OST2010-0018 (Dec. 22, 2014) (the “Delta Petition”). 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 2 of 16 

service cutbacks.’”2 Delta’s cry of “wolf” is only part of the story. DOT’s Initiating Order 

succinctly provides objective and sound reasons for conducting this proceeding, including 

“Delta’s extensive winter-season Seattle-Haneda service cutbacks” as well as “the submissions 

of American and Hawaiian.” 3 Hawaiian’s submission catalogued Delta’s repeated failures to 

live up to the commitments it made in the record in two prior cases.4

 In light of this record, DOT 

had no choice but to reopen the proceeding to both protect the public interest and to ensure the 

highest and best use of the extremely scarce operating rights to and from Haneda. 

 Over the last four years, Delta has failed to fulfill numerous promises to serve Tokyo 

International Airport (“Haneda”) from both Detroit and later Seattle.5

 In fact, the chasm between 

all Delta’s prior service proposals and its operational performance call Delta’s credibility in this 

proceeding into question. Given Delta’s abysmal Haneda service record, it is perfectly 

appropriate, and within DOT’s authority and responsibility, to hold this proceeding to consider 

whether Delta is simply not willing to provide the air transportation authorized by DOT Order 

2013-2-46 and whether another carrier might offer a service that provides greater public interest 

benefits. 

                                                            

2

 Delta Petition at 5 (emphasis in original). 

3

 Initiating Order at 5. 

4

 See Hawaiian Airlines’ Motion to Reopen Order 2013-2-4 and Answer to Motion and 

Application of American Airlines, DOT-OST-2010-0018, (Oct. 9, 2014), at 4-5 (“Hawaiian 

Motion”). 

5

 Hawaiian Motion at 4-5. 

6

 DOT Order 2013-2-4 (the “Seattle Allocation Order”) 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 3 of 16 

I. The Department Has the Authority to Reallocate the Seattle Frequency Even if 

Delta Technically Complies with the Dormancy Condition. 

Delta’s argument that it is in compliance with the terms of the Seattle Allocation Order 

and therefore entitled to “indefinite” use of the Seattle-Haneda frequency is simply incorrect.7

The Seattle Allocation Order premises Delta’s right to use of the Seattle-Haneda frequency not 

only on the satisfaction of the dormancy condition but on Delta’s continuing “to hold the 

necessary underlying authority to serve the markets authorized. . . .”8

 The Department has put 

that underlying authority at issue in this proceeding. If the Department determines, after 

providing Delta notice and an opportunity for a hearing, that Delta’s Seattle-Haneda authority 

should be revoked, Delta will no longer satisfy the conditions of the Seattle Allocation Order. 

The Department has the implied authority to revoke Delta’s Seattle-Haneda frequency. It 

is axiomatic that the DOT has authority to allocate frequencies on limited entry routes.9 Indeed, 

as Delta itself has observed, the U.S.-Haneda routes are limited entry routes that require the 

Department to conduct an allocation proceeding.10 While Congress may not have expressly 

                                                            

7

 Delta Petition at 1-2. 

8

 Seattle Allocation Order at 6 (“The slot pair allocation will remain in effect 

indefinitely, provided that the holder continues to hold the necessary underlying authority 

to serve the markets authorized; and provided further 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 (once inaugurated)”). 

9 See Brazil Combination Frequency Allocation Proceeding, DOT-OST-2008-0307; U.S.-China 

Combination and All-Cargo Allocation Proceeding, DOT-OST-2006-25275; U.S.-Colombia 

Combination Service Case, DOT-OST-00-7104. 

10 See Application Supplement of Delta Air Lines, Inc., DOT-OST-2010-0018 (Aug. 27, 2012), 

at 2 (“The unique bilateral compromise that was reached on Haneda requires the Department to 

conduct this proceeding.”). 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 4 of 16 

directed the procedures for allocating, modifying and revoking this Haneda authority, the 

Supreme Court has stated and therefore directed in Chevron U.S.A. v. Natural Resources Defense 

Council that the power of an administrative agency can be implied from the broader 

Congressional mandate: 

The power of an administrative agency to administer a congressionally created ... 

program necessarily requires the formulation of policy and the making of rules to 

fill any gap left, implicitly or explicitly, by Congress.... [I]f the statute is silent or 

ambiguous with respect to the specific issue, the question for the court is whether 

the agency's answer is based on a permissible construction of the statute.... [A] 

court may not substitute its own construction ... for a reasonable interpretation 

made by the administrator. 

467 U.S. 837, 843-44 (1984). “For Congress, by sending its statute to the relevant agency for 

implementation, has delegated to that agency the function of choosing between implicit statutory 

options.”11 Contrary to Delta’s assertions, the Department is not writing on a blank slate, as 

Congress has required the Department to oversee foreign route awards and the determination as 

to how and when such economic authority can and should be revoked. 

 The Department has been delegated a broad public interest mandate to regulate and 

promote competition and international air transportation.12 Within that mandate is the authority 

to determine whether air carriers should be granted the economic authority, as evidenced by a 

certificate.13 Congress also directed when the Department can amend, modify, suspend or 

revoke this economic authority: 

                                                            

11 Air North America v. DOT, 937 F.2d 1427, 1432 (9th Cir. 1991) (determining that the 

Department had the authority to revoke the certificate of a dormant air carrier). 

12 See,e.g., 49 U.S.C. §§ 40101(a); 40101(e); 40105. 

13 See 49 U.S.C. § 41101, et seq. 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 5 of 16 

(e) Continuing Requirements. - (1) To hold a certificate issued under section 

41102 of this title, an air carrier must continue to be fit, willing, and able to 

provide the transportation authorized by the certificate and to comply with this 

part and regulations of the Secretary. 

(2) After notice and an opportunity for a hearing, the Secretary shall amend, 

modify, suspend, or revoke any part of a certificate issued under section 41102 of 

this title if the Secretary finds that the air carrier – 

 (A) is not fit, willing, and able to provide the transportation authorized by 

the certificate and to comply with this part and regulations of the Secretary. . . .14

In the grant of authority to serve the Haneda-Seattle market, the DOT conditions Delta’s use of 

the Seattle-Haneda frequency on the maintenance of its underlying economic authority. Delta 

has an obligation to “continue to be fit, willing and able to provide the transportation 

authorized,”15 meaning to maintain that authority Delta must demonstrate a willingness to 

operate the authorized frequency. If not, Congress has authorized the Department to revoke the 

authority. In the absence of specific Congressional direction for allocating Haneda slot pairs, the 

Department can rely on a reasonable interpretation that Congress has given. And it is entirely 

reasonable for the Department to revoke economic authority as long as it offers Delta the 

opportunity for a hearing, 16 which the Department has done expressly in the Initiating Order, to 

determine whether Delta is fit, willing and able to provide Seattle-Haneda service. 

                                                            

14 See 49 U.S.C. § 41110(e)(emphasis added). 

15 Id.

16 Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 329 (1961) (“the Board may 

reconsider an effective certificate at any time if it affords the certificated carrier notice and 

hearing prior to decision”). 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 6 of 16 

A. Delta Has Demonstrated That It Is Not Willing To Use Its Allocated Haneda 

Authority. 

Delta’s cynical assertion that its technical “compliance” with the dormancy condition of 

the Seattle Allocation Order entitles it to indefinite use the Haneda-Seattle frequency misses the 

forest for the trees.17 Delta’s winter season cutbacks are just the latest indignity that it has 

heaped upon the Department’s Haneda policy.18 The Department has been more than generous 

to Delta in all proceedings in this docket, granting Delta two of the four frequencies from Detroit 

and Los Angeles and then allowing Delta to transfer its Detroit service to Seattle over the 

objections of Hawaiian and other competitors. 

Delta’s use of its second Haneda frequency, first from Detroit and later from Seattle, 

demonstrates that it is not willing to provide the authorized transportation. Indeed, the record is 

rife with examples of Delta making promises of robust Haneda service that the Department relied 

upon but were not kept. As depicted in Exhibit HA-1, in the first Haneda allocation proceeding, 

Delta proposed to fly between Haneda and Detroit daily with a B747 aircraft with a capacity of 

403 seats.19 Notably, Delta flew the proposed B747 for a mere 37 days before it stopped flying 

the aircraft on the route. After 81 days of offering no Detroit-Haneda service whatsoever, Delta 

finally resumed operations but only with the smaller B777.20 This change of aircraft required 

Delta to overcome a number of logistical hurdles, including locating unused aircraft, positioning 

                                                            

17 Delta Petition at 2. 

18 See Hawaiian Motion at 1. 

19 See Exhibit HA-1. 

20 Id. 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 7 of 16 

maintenance materials at the new station and scheduling pilots to fly to Haneda who were 

qualified to operate the new aircraft. The readiness with which Delta jettisoned its initial service 

proposal suggests that Delta knew its initial Detroit service was impractical before even 

commencing the Haneda-Detroit service. 

But the indignities did not stop there. Delta only operated 314 of the promised 730 

annual operations.21 As a result, Delta’s capacity in the market was only 26 percent of the 

promised capacity.22 In making the Detroit award, the Department relied upon Delta’s 

representations, only to see Delta walk away from them after only 37 days. While Delta will 

argue that the service break was caused by the 2011 tsunami, Hawaiian was so committed to its 

Haneda service that it maintained its schedule through that difficult time. Both the Department 

and the competing carriers had every reason to expect that Delta would stand behind its 

representations. Nevertheless, Delta sought (and received) a waiver of the dormancy condition 

before ultimately requesting that the Department allow it to move the Detroit frequency to 

Seattle.23 

Delta’s performance in Seattle has been no better than the Detroit fiasco. Delta again 

promised more than it could, or was willing to, deliver. Delta originally promised it would serve 

                                                            

21 Id. 

22 Id.

23 Motion of Delta Air Lines, Inc., 2010 U.S.-Haneda Combination Services Proceeding, DOTOST-2010-0018 (June 3, 2011) (requesting waiver of dormancy condition until June 1, 2012); 

Notice of Action Taken, DOT-OST-2010-0018) (issued June 29, 2011) (granting Delta’s 

request); Motion of Delta Air Lines, Inc., 2010 U.S.-Haneda Combination Services Proceeding, 

DOT-OST-2010-0018 (July 30, 2011), at 1. 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 8 of 16 

Seattle with an A330 with 298 seats; it has served Seattle with a B767 with only 208 seats.24 

Instead of year-round service, as Delta had promised, Delta unilaterally decided to make the 

Seattle service seasonal, resulting in a total of 248 days without roundtrip SEA-HND service 

through the winter scheduling season.25 All told Delta has offered just 32 percent of the 

promised seats.

26 

Delta’s modus operandi, of promising whatever is needed to obtain the authority and then 

doing what it wants, extends to its second Haneda gateway in Los Angeles. Delta’s HND-LAX 

service, granted in the original proceeding, has only been offered at 51 percent of the promised 

capacity.27 

Far from the isolated incident of a single scheduling season, it appears that Delta has 

undertaken a sustained, cynical and studied campaign to deprive other U.S. carriers that are 

willing to use these valuable air service rights. It appears that Delta’s strategy is not to offer 

competitive U.S.-Haneda service itself but to keep the air service rights away from Hawaiian and 

other competitors. This slot warehousing has the benefit (to Delta and not the public) of 

                                                            

24 Exhibit HA-1. In the initial Haneda allocation proceeding, Delta proposed to serve Seattle 

with an A330-300 with 294 seats. See Application of Delta Air Lines, Inc., DOT-OST-2010-

0018 (Feb. 16, 2010), at 3. In its application to transfer its Detroit authority to Seattle, Delta 

proposed to use a B767 with 225 seats and suggested that it would upgauge to a B777 (269 seats) 

or B747 (376 seats) “[a]s demand for the new service builds”. Application Supplement of Delta 

Air Lines, Inc., DOT-OST-2010-0018 (Aug. 27, 2012), at 5. 

25 See Exhibit HA-1. 

26 Id. 

27 Id. 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 9 of 16 

preventing the diversion of passengers from Delta’s hub at Narita.28 Given Delta’s remarkable 

underutilization of these valuable rights over a sustained period, the Department had no choice 

but to issue the Initiating Order to consider reallocating the Seattle-Haneda frequency. 

Indeed, the Initiating Order was necessary to fulfill the Department’s statutory obligation 

to promote competition. The Congressional direction in that regard is unequivocal; the 

Department shall place “maximum reliance on competitive market forces and on actual and 

potential competition” in promoting an efficient air traffic system.29 By warehousing valuable 

slots frequencies to limit competition with its Narita operations, Delta has engaged in conduct 

that the Department has deemed anticompetitive in other markets.30 

Whatever Delta’s motivation for attempting to retain the Haneda-Seattle frequency, Delta 

has proven steadfastly unwilling to use it. Indeed, the sharp discrepancies between Delta’s 

service proposals and its performance suggest that its prior submissions in this proceeding have 

been disingenuous. The Department simply cannot allow Delta to cynically manipulate the 

Department’s processes for its own commercial advantage. Accordingly, where a carrier is 

unwilling or unable to provide transportation authorized, the Department is within its authority to 

                                                            

28 Indeed, in arguing for more Haneda authority, Delta has forthrightly argued that the 

Department should keep these valuable resources away from the alliance partners of United and 

American to maintain competitive balance. See, e.g., Consolidated Answer of Delta Air Lines, 

Inc., DOT-OST-2010-0018 (Oct. 17, 2014), at 12. 

29 49 U.S.C. § 40101(a)(6). 

30 See, e.g., Notice of Petition and Waiver of the Terms of the Order Limiting Scheduled 

Operations at LaGuardia Airport, Grant of Petition with Conditions, 75 Fed. Reg. 26322, 26334 

(May 4, 2010).
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 10 of 16 

institute proceedings and has a duty under its mandate to promote competition and the public 

interest to revoke the right to provide such transportation. 

B. The Seattle Allocation Order Provides For Reallocation Of The Seattle-Haneda 

Frequency. 

Contrary to Delta’s contention, the Seattle Allocation Order reserves authority for the 

Department to revoke the Seattle frequency after providing Delta notice and opportunity for a 

hearing. Delta’s bald assertion that the Seattle Allocation Order “cannot be read to reserve by 

implication authority to revoke the ‘indefinite’ allocation”31 relies on an apparent misreading of 

that order. As Delta points out, the Seattle Allocation Order sets forth two conditions. Violation 

of the second condition (the dormancy condition) results in the automatic return of the Seattle 

frequency to the Department.32 With respect to the first condition requiring Delta to maintain the 

underlying authority to serve the markets authorized, the Department, of necessity, has the 

authority to determine whether that condition has been met, provided Delta receives notice and 

an opportunity for a hearing. Delta’s assertion suggests that DOT is powerless to rectify a 

carrier’s complete failure to live up to its public commitments. That premise cannot be accepted 

either under the statute, the Administrative Procedure Act or common sense. In structuring the 

Seattle Allocation Order in the way it did, the Department provided two methods for revoking 

                                                            

31 Delta Petition at 2. 

32 Seattle Allocation Order at 6 (“The slot pair allocation will remain in effect indefinitely, 

provided that the holder continues to hold the necessary underlying authority to serve the 

markets authorized; and provided further 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 (once inaugurated)”) 

(emphasis added). 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 11 of 16 

the authority, one requiring an opportunity for a hearing and one that would occur by operation 

of law. 

The principle that the Department can alter or revoke economic authority of an air carrier 

after providing notice and an opportunity for a hearing is well established. In a case cited in the 

Delta Petition, the United States Supreme Court considered a decision of the DOT’s predecessor 

agency the Civil Aeronautics Board (“CAB”) to amend the certificate of public convenience and 

necessity of Delta.33 While petitions for reconsideration of a prior allocation of rights were 

pending, the CAB took action the effect of which “was to bar certain flights Delta was then 

operating.”34 The Supreme Court considered the CAB’s statutory authority and concluded “the 

Board may reconsider an effective certificate at any time if it affords the certificated carrier 

notice and hearing prior to decision.”35 The power to revoke economic authority after notice and 

an opportunity for a hearing has been upheld by the federal courts of appeal both before and after 

deregulation.36 Accordingly, contrary to Delta’s contention, the Seattle Allocation Order can and 

should be understood as providing a procedure for the Department to review its initial allocation 

of the authority. 

                                                            

33 Delta Air Lines, Inc. v. C.A.B., 367 U.S. 316, 317 (1961). 

34 Id. at 320. 

35 Id. at 329. 

36 Oceanair of Florida, Inc. v. DOT, 876 F.2d 1560, 1565 (11th Cir. 1989) (concluding that 

exercising the authority to revoke a certificate requires notice and opportunity for a hearing); 

Western Airlines, Inc. v. CAB, 495 F.2d 145, 156 (D.C. Cir. 1974) (“It seems unreasonable that 

Congress intended to give the Board power to grant certificate rights, but to deny it any authority 

to modify them to meet the changing demands of commerce and the national defense.”). 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 12 of 16 

This result makes perfect sense. The Department has a broad mandate to promote 

competition and maximize the public benefit in the allocation of economic authority. The fact 

that Delta, for whatever reason, wants to retain the relevant authority does not answer the 

question of DOT’s authority. Under the statute, Delta must also demonstrate that it is willing 

actually to provide the authorized transportation. It simply cannot be the case that the 

Department is permanently foreclosed from reevaluating whether its prior decisions achieve 

these goals, provided it offers the holder of the limited rights the procedural protections 

contemplated by Congress in granting the authority. 

Under the Delta’s contrary interpretation, it would have the Department believe that 

Delta is entitled to retain the Seattle-Haneda frequency until the end of time merely by running 

the smallest possible aircraft back and forth one week out of every three months, a strategy Delta 

is trying out this winter. Whether the reservation of the right to reevaluate is explicit or implicit, 

there is no possibility that Delta’s interpretation is the one the Department intended when it 

issued the Seattle Allocation Order. 

II. The Initiating Order Is Not Arbitrary and Capricious. 

 Delta’s protest that the Initiating Order is arbitrary and capricious because the 

Department failed to treat Delta the same as other carriers does not hold water. First, Delta’s 

protest is premature, as the Initiating Order only sets up a procedure for considering the 

possibility of reallocating the Seattle-Haneda frequencies. Because the Department is providing 

Delta with notice and the opportunity for a hearing, Delta can present any concerns it may have 

about the Department’s contemplated action. Second, Delta’s assertion that the reexamination is 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 13 of 16 

based on cancellations during a “single-season” is factually incorrect.37 Delta’s 

underperformance at Haneda is longstanding and well documented.38 Third, Delta’s argument 

that is has been treated differently also is incorrect. Delta compares its current circumstances to 

American’s performance in the Brazil market. That comparison is misplaced. Brazil is a 

different country with a different bilateral that presents different aviation policy considerations. 

The reason the Department commenced these proceedings is because there are only 4 daily 

Haneda frequencies for which there are more applicants than frequencies, whereas the 

Department’s notice in the Brazil proceeding states that the number of Brazil frequencies exceed 

demand.39 Moreover, the Department issued the Initiating Order only after American and 

Hawaiian filed motions seeking reallocation of the authority. Lastly, in all of the Haneda orders, 

all of those awarded frequencies have been subject to identical provisions, including Hawaiian 

which has consistently met and exceeded the promises made in its application for Honolulu to 

Haneda service. 

III. Delta’s Purported “Firm Plans” to Use the Seattle-Haneda Frequency Should 

Not Prevent Reallocation. 

Delta’s purported plans to fly the Seattle-Haneda route during the summer season do not 

obviate the need for this proceeding. The Delta Petition places misguided reliance on the 

                                                            

37  Delta Petition at 5. 

38 See Part I.A, supra. 

39 See Notice Inviting Applications (served Feb. 15, 2014), at 2 (announcing the availability of 

additional frequencies in 2013 and 2014 and noting: “In addition, there are currently 24 U.S.-

Brazil combination frequencies available for allocation to U.S. carriers for operations beginning 

immediately”). While the availability of Brazil frequencies may have fluctuated over time, the 

Delta Answer points to American’s 2013 scheduling practices. See Delta Answer at 8. 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 14 of 16 

Department’s policy of not reallocating frequencies when a carrier has “firm plans” to use 

them.40 Again, Delta appears to have deliberately missed the reason the Department started this 

proceeding – Delta’s prior promises in this proceeding have not been fulfilled and now its 

statements lack credibility.41 In light of Delta’s unilateral decision to convert the Seattle service 

to seasonal, the Department issued the Initiating Order to determine whether another proposal 

might provide greater public interest benefits. Implicit in the requirement that plans be firm is 

that plans be credible. To be sure, the security of route provided by administrative finality is one 

important value that the Department should consider before reallocation of a limited frequency. 

However, administrative finality, a benefit to a particular carrier, is not the only value that must 

be considered. Ultimately, DOT must determine whether the service actually provided lives up 

to the public benefit that Delta promised to win the frequencies in the first place. 

IV. The Department Considered And Rejected The Need To Amend The Dormancy 

Condition. 

Delta’s assertion that the Department committed legal error by failing to discuss Delta’s 

proposal to consider modifying the dormancy condition is fundamentally wrong on several 

levels.42 First, Delta did not affirmatively make this proposal; Hawaiian made the proposal.43 

                                                            

40 Delta Petition at 6. 

41 See Exhibit HA-1. 

42 Delta Petition at 7 (citing Consolidated Answer of Delta Air Lines, Inc., DOT-OST-2010-

0018 (Oct. 17, 2014), at 7) (the “Delta Answer”) (“Delta proposed that if the Department is 

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

amending that condition.”). 

43 Hawaiian Motion at 4-5 (“The Department Should Reopen the [Seattle Allocation] Order and 

Modify its Dormancy Condition.”). 
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 15 of 16 

Instead, Delta argued against it: “[w]hile the Department could amend the dormancy conditions 

applicable to U.S.-Haneda slot holders, it has not and should not propose such a change. . . .”44

Second, the Department did consider the proposal to modify the dormancy condition. 

The Department concluded that it has “adequate means to address our public interest concerns 

without interfering with our long-settled dormancy language.”45 Those means include this 

proceeding. 

Third, the case cited by Delta for the proposition that its alternative must be considered 

because Delta must be afforded “security of route” actually supports the Department’s position.46 

As discussed above,47 the Supreme Court’s Delta decision holds that the Department’s 

predecessor agency may revoke or modify an air carrier’s economic authority, provided there is 

notice and an opportunity for a hearing.48 Without question, that standard has been satisfied in 

these circumstances. 

                                                            

44 Delta Answer at 7. 

45 Initiating Order at 6 n.20 (addressing proposal to modify dormancy condition that “Hawaiian 

suggested”). 

46 Delta Petition at 6. 

47 See Part I.B, supra. 

48 Delta, 367 U.S. at 329.
DOT-OST-2010-0018 

Answer of Hawaiian Airlines, Inc. 

To Petition for Reconsideration 

Page 16 of 16 

Conclusion

 Because the Department has provided Delta with notice and an opportunity for a hearing, 

the Department is well within its authority to determine which application for the available 

Haneda slot will provide the greatest public interest benefits. 

Respectfully submitted, 

 /s/ J. Parker Erkmann 

J. Parker Erkmann 

Jonathan B. Hill 

Geoff Rapoport 

Cooley LLP 

1299 Pennsylvania Ave., NW 

Suite 700 

Washington, DC 20004 

(202) 842-7800 

(202) 842-7899 (fax) 

perkmann@cooley.com 

jhill@cooley.com 

grapoport@cooley.com 

Counsel for Hawaiian Airlines, Inc. 
EXHIBIT HA-1 

Docket OST-2010-0018 
DELTA’S PROMISES AND PROPOSALS FOR HANEDA MEAN NOTHING

Delta HND

Proposal

Exhibit HA-1

Docket OST-2010-0018

Page 1 of 1

What Delta Said /1 What Delta Did

1. DTW

Aircraft Size

Annual Flights

Annual Seats

Cumulative Days 

Without Nonstop Service

2. LAX

Aircraft Size

Annual Flights

Annual Seats

Cumulative Days 

Without Nonstop Service

3. SEA

Aircraft Size

Annual Flights

Annual Seats

Cumulative Days 

Without Nonstop Service

B747 (403 Seats)

730

294,190

0

B747 (403 Seats)

730

294,190

0

A330-300 (298 Seats)

730

217,540

0

Only 37 Days with B747./2

Only 314 annual operated /3

75,674 or only 26% of seats proposed /3

319 from Service Start Date to Suspension Date

Only 35 Days with B747./4

Only 722 annual operated /5

150,176 or only 51% of seats proposed /5

90 from Service Start Date to April 2015

B767 (208 Seats)

Only 336 annual operated /5

70,170 or only 32% of seats proposed /5

248 from Service Start Date to April 2015

1/ 2010 Original Proposal: Application of Delta Air Lines, Inc, Docket OST-2010-0018, February 16, 2010. 

2/ The remainder with smaller aircraft. 76 Days with B777, 157 Days with A330

3/ Final 12 Months of Nonstop Service – YE Sept. 2012

4/ The remainder with smaller aircraft. B747 Feb. – Mar ‘11, B777 Jun.-Oct ‘11, A330 Oct. ‘11-Mar. ‘13 and B767 (208 Seats) since Mar. ’13

5/ 12 Months Ended April 2015.

Sources: Innovata Schedule Data and Application of Delta Air Lines, Inc, Docket OST-2010-0018, February 16, 2010. 
 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Answer of Hawaiian Airlines, Inc. To Petition for 

Reconsideration was served this 2nd day of January 2015 via email transmission on the 

following: 

howard.kass@aa.com 

francis.heil@aa.com 

abigail.donovan@aa.com 

robert.wirick@aa.com 

charles.hunnicutt@thompsonhine.com 

patricia.snyder@thompsonhine.com 

sascha.vanderbellen@delta.com 

chris.walker@delta.com 

seth.waxman@wilmerhale.com 

dan.weiss@united.com 

thomas.bolling@united.com 

steve.morrissey@united.com 

lhalloway@crowell.com 

gmurphy@crowell.com 

robert.finamore@dot.gov 

brett.kruger@dot.gov 

paul.gretch@dot.gov 

todd.homan@dot.gov 

brian.hedberg@dot.gov 

john.s.duncan@faa.gov 

englets@state.gov 

finstonma@state.gov 

cristinasa@state.gov 

glindsey@lawa.org 

info@airlineinfo.com 

 /s/ J. Parker Erkmann 

 J. Parker Erkmann