### BEFORE THE FEDERALAVIATION ADMINISTRATION WASHINGTON, D.C.

UNITED AIRLINES, INC., Complainant, v. 

### THE PORT AUTHORITY OF NEWYORK AND NEW JERSEY, Respondent. Docket No. FAA-16-14-13



### DECLARATION OF ROBERTS. SPAN IN SUPPORT OF UNITED AIRLINES, INC.'S ANSWER TO THE PORTAUTHORITY OF NEWYORK AND NEW JERSEY'S MO'l'IGN-FBR-SUMMARY JUDGMENT Communications with respect to this document should be addressed

### to: Marc L. Warren Keith

### J. Harrison Gerald F. Murphy Steven

### J. Seiden 

### CROWELL & 

### MORING LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 (202) 624-2500 mwarren@crowell.com Robert S. Span Alan K. Steinbrecher Sophy Chen 

### STEINBRECHER & 

### SPAN LLP 1155 F Street, NW, Suite 1050 Washington, DC 20004 (202) 559-8680 rspan@steinbrecherspan.com



### Counselfor UnitedAirlines, Inc.DECLARATION OF ROBERTS. SPAN I, Robert S. Span, declare as follows: 1. I am an attorney with the law firm ofSteinbrecher & Span LLP, counsel ofrecord for Complainant United Airlines, Inc. ("United"). I submit this Declaration in support ofUnited's Answer To The PortAuthority OfNew York And New Jersey's Motion For SummaryJudgment ("Answer"). The statements in this declaration are based upon my personalknowledge and upon review ofinformation contained in business records ofUnited. 2. In 2003, negotiations were underway for new operating agreements at John F. Kennedy International Airport ("JFK") and LaGuardiaAirport ("LGA"). The so-called "Dewey Lease," which governed rates and charges at JFK and LGA, and had beenin effect since 1953, was due to expire at the end of2003. Thus, from 2003, and continuinguntil almost the end of2004, a committee representingthe airlines operating at JFK and LGA met with the Port Authority to negotiate what became known as the "Freedom Agreement" (in honor ofthose who lost their lives
on September 11, 2001). Among other things, the Freedom Agreement established
new methodologies for the flight fees at JFK and LGA. These times were also financially difficult for the airline industry, as the period following the tragic events ofSeptember 11 and the war in Iraq had depressed passenger demand for air travel.3. Exhibit 

### 00 to United's Answer is a copy ofa letter datedApril 9, 2003, from Lawrence W. Kellner to William DeCota.


### 14. Exhibit PP to United'sAnswer is a copy ofa letter dated April 7, 2003, from Holden Shannon to Anthony Coscia and Michael DeCotiis. 5. Exhibit 

### QQ to United's Answer is a copy ofa letter datedMarch 16, 2004, from Nene Foxhall to Robert F. Lurie. 6. Exhibit RRto United's Answer is a copy ofa letter I sent onbehalfof ContinentalAirlines, Inc. ("Continental") to the PortAuthority on October 11, 2005. 7. Exhibit SS to United'sAnswer is a copy ofa letter I received from the Port Authority dated October 17, 2005. 8. Exhibit TTto United's Answer is a copy ofa letter I wrote to the Port Authority on November 11, 2005. 9. Exhibit UU to United'sAnswer is a copy ofa letter I wrote to the Port Authority on December 15, 2005. 10. Exhibit VV to United's Answer is a copy ofthe PortAuthority's response dated December 23, 2005 11. ExhibitWW to United's Answer is a copy ofa letter I wrote to the Port Authority on January 11, 2006. The PortAuthority did not provide the information I requested in ExhibitWW. 12. Exhibit XX to United's Answer is a copy ofthe PortAuthority's letter dated January 18, 2006, in which the PortAuthority referred Continental's information requests to the PortAuthority Freedom ofInformation ("FOI") Administrator.

213. In March 2006, I received the FOI responses, which turned out to be little more than standard information that had been suppliedpreviously to the airlines at EWR. 14. Exhibit YY to United's Answer is a copy ofa letter I wrote to the Port Authority onApril 21, 2006. 15. Exhibit ZZ to United's Answer is a copy ofthe PortAuthority's letter to
me dated May 3, 2006. 16. Exhibit AAA to United'sAnswer is a copy ofa letter I wrote to the Port Authority on May 19, 2006. 17. Exhibit EBB to United'sAnswer is a copy ofthe PortAuthority's letter to me dated June 5, 2006. 18. OnJune 8, 2006, a meetingwas heldbetween representatives of Continental and the PortAuthority. At that meeting, Continental again asked for details about the calculation ofthe EWR Flight Fee and the amount and sources of airfield and airport revenue surpluses. The Port Authority againreiterated its position that the terms ofa written lease agreement trumped federal requirements and that Continental was not entitledto the requested information. The Port Authority also said, however, that itwould consider the requests further and respond shortly. 19. BetweenJune 8 and July 10, 2006, I did not receive anything further from the PortAuthority. Exhibit CCC to United'sAnswer is a copy ofan e-mail I

3sent to the PortAuthority on July 10, 2006, and an e-mail I received from the Port Authority in response. 20. Exhibit DDD to United'sAnswer is a copy ofa letter I sent to the Port Authority on September 22, 2006, having heard nothing since the July 10 email. 21. I never received a response to my September 22, 2006 letter. 22. The PortAuthority claims that it does not know how United calculated the 38% mark-up. Memorandum in Support ofMotion for Summary Judgment, at 25. The calculationis based onthe Port Authority's own documents and can be done using the numbers contained inthe 2014 Flight Fee calculation (Ex. 2 to the Declaration ofJoseph Garcia, submitted in support ofthe Motion). The PAF Factor charge was $4.59. Multiplying that charge by the total maximum takeoffweight yields a sum of$147,418,549. That amount is the total revenue received by the Port Authority from the airlines for this portion ofthe EWR Flight Fee. Total airfield costs included inthe PAF Factor were $106,776,578. Revenues were thus $40,641,971, or 38% greater, than costs. The same calculation canbe appliedto the components ofthe 2013 PAF Factor (Ex. 1 to Garcia Decl.) with the same result- a 38% mark-up. 23. Accordingly, any cost included in the PAF Factor component ofthe Flight Fee at EWR apparently is then marked up through the formula by 38%. 24. A similar calculation on the Flight Fee component known as the Airport Services Charge Factorresults in a14% mark-up above actual costs.

4I declare under penalty ofperjury under the laws ofthe United States of America that the foregoing is true and correct. Executed this 26th day ofMarch, 2015 at Los Angeles, California.



### '

5 

# /J /rM