BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D. C.
Application of DELTA AIRLINES, INC. for frequency allocation (Detroit-Sao Paulo) DOT-OST-2010- 0090

MOTION OFAMERICANAIRLINES, INC. TODISMISS
Communications with respect to this document shouldbe sent to: VIRASB VAHIDI SeniorVice President

- Planning AmericanAirlines, Inc. P.O. Box 619616, MD 5634 DFW Airport, Texas 75161 KENJI C. HASHIMOTO Vice President

- Strategic Alliances AmericanAirlines, Inc. P.O. Box 619616, MD 5635 DFW Airport, Texas 75261 ROBERT A. WIRICK Director, Regulatory AmericanAirlines, Inc. P.O. Box 619616, MD 5635 DFW Airport, Texas 75261 (817) 963-0394 robert.wirick@aa.com April 12, 2010

------- WILLIAMK. RIS, JR. SeniorVice President

- Government Affairs AmericanAirlines, Inc. 1101 17th Street, N.W. Washington, D.C. 20036 CARL B. NELSON, JR. Associate General Counsel AmericanAirlines, Inc. 1101 17th Street, N.W. Washington, D.C. 20036 (202) 496-5647 carl.nelson@aa.comApplication of BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D. C.

DELTA AIR LINES, INC. for frequency allocation (Detroit-Sao Paulo)

MOTION OFAMERICANAIRLINES, INC. TO DISMISS DOT-OST-2010- 0090

AmericanAirlines, Inc. herebymoves for dismissal of the application submittedby DeltaAir Lines onApril 8, 2010 for allocation of five weekly U.S.-Brazil combination frequencies for Detroit-Sao Paulo service. Delta's request is purportedlyin response to the Department's Notice issued onMarch 24, 2010 inviting "certificated U.S. air carriers to file applications for the combination frequencies thatbecome available effective October 2010 for scheduledU.S.-Brazil services" (emphasis added). The Department statedthat "[t]he frequencies at issue heremay be used at anypoints that U.S. carriersmay serve, subject to the restrictionthat these frequencies may not be used at Sao Paulo's Guarulhos InternationalAirport [GRU] until infrastructure-related constraints at the airport are removed" (emphasis added)

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The GRU limitation is contained in the U.S.-Brazil Memorandum of Consultations, June 26, 2008, Attachment B, Annex 1, Section II (2), p. 4 n. 5, which states that "the frequencies provided in (D) [7 available October 1, 2009] and (E) [14 available October 1, 2010] may not be used for services between Guarulhos InternationalAirport andpoints in the United States until the regulatory constraints inplace as of June 26, 2008, related to infrastructure at that airport, are removed.H Despite the Department's cleardirective inviting applications "for the combination frequencies that become available effective October 

### 2010H (emphasis added), and the exclusion of GRU as an eligible point, Delta has nonetheless asked for frequencies to serve Sao Paulo. While Delta "recognizesHthe Sao Paulo restriction, it contends that the frequencies are "ultimatelyH usable at Sao Paulo, and that "long-termHconsiderations support its request. In the 2009 U.S.-Brazil Combination Frequency Proceeding (DOT-OST-2009-0003), the Departmentplaced in issue seven Brazil frequencies available on October 1, 2009 and subject to the same GRU restriction applicable here. In response, Delta sought authority to serve betweenAtlanta and "the largest and most important trafficpoint eligible for 2009 award service, Rio de JaneiroH (January 27, 2009, p. 2, emphasis added).

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Delta repeated that Rio de Janeiro was the largest**~eligible"** Brazil point in its answer on February 12, 2009 (p. 3). Delta didnot apply to serve Sao Paulo, as it knew that Sao Paulo frequencies were not in issue andwere not eligible for the October I, 2009 award. Nor has any other applicant sought frequencies to serve Sao Paulounder Section II (2)(D) and (E) of the MOU. In the 2009 proceeding, American, Continental, Delta, Spirit, and US Airways each sought to use the authorityavailable on October I, 2009 to serve Rio de Janeiro. No carrier applied to serve Sao Paulo. Now Delta, without explanation, has reversed its position on**~eligibility"** and is the only applicant for 2010 frequencies at Sao Paulo. Delta's application shouldbe dismissed. The frequencies at issue are those**~that** become available effective October 2010" (emphasis added), which does not include service to GRU. As Delta itself declared in seeking re-allocation of dormant Brazil frequencies fromUnitedAir Lines,**~the** Department has statedunequivocally that U.S.-Brazil frequencies are valuablebilateral rights that shouldbe used and not wasted. See, e.g., Order 98-12-33 at 11 ('the frequencies available for U.S.-Brazil services constitute valuable rights that we do not intendtobe wasted')" (Application of DeltaAir Lines, DOTOST-2004-19161, September 17, 2004, p. 2).

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The Department agreed and granted Delta's request. See Order 2005-2-10, February 16, 2005 (show-cause); Order 2005-4-13, April 12, 2005 (final); Order 2005-7-16, July 22, 2005 (on reconsideration). In the July order, the Department stated "as we havemade clear throughout this proceeding, it is
our establishedpolicynot to permit valuable operating rights to remainunused for an extendedperiod, particularlywhen another carrierhas firmplans to use them and the carrier holding the authority does not" (p. 3). The same principle should applyhere. The Brazil frequencies available on October 1, 2010 are not usable at GRU, and neither Delta nor any other carrier shouldbe permitted to warehouse these frequencies until some indeterminate future date when the GRU restrictionmight be lifted. Indeed, Delta is on record as having opposed a "dormancywaiver [toAmerican] to warehouse Brazil frequencies that Delta is ready, willing and able to use right now" (DeltaAir Lines Reply, DOT-OST2002-11706, March 18, 2002, p. 3). On April 8, 2010, American responded to the Department's invitationbypresenting firmplans to use 11 of the 14 Brazil frequencies available October 1, 2010 to serve New York (JFK)-Rio de Janeiro andMiami-Brasilia (DOT-OST-2010-0088). f-

_____**----'Am="'eA.r-'ic.c'-"alinL'~s"____"application** is within thes_c:QRe of the Department's invitation and shouldbe immediately approved as uncontested.

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Delta's application is outside the scope of the invitation and contraryto Delta's own position on "eligibility" in 2009, as well as at odds with "established policy not to permit valuable operating rights to remain unused," and shouldbe dismissed.

April 12, 2010

---- Respectfully submitted,

CARL B. NELSON, JR. Associate General Counsel AmericanAirlines, Inc.CERTIFICATE OF SERVICE
I herebycertifythat I have this day servedthe foregoing document by email on the following persons: sascha.vanderbellen@delta.com scott.mcclain@delta.com sametta.c.barnett@delta.com kquinn@pillsburywinthrop.com bkeiner@crowell.com mrosia@crowell.com bruce.rabinovitz@wilmerhale.com jeffrey.manley@united.com bob.kneisley@wnco.com robert.land@jetblue.com rnsinick@ssd.com cdonley@ssd.com gbleopard@fedex.com dvaughan@kelleydrye.com kevin.montgomery@polaraircargo.com jrichardson@johnlrichardson.com Ihalloway@crowell.com efaberman@wileyrein.com mroller@rollerbauer.com howard.kass@usairways.com benjarnin.slocum@usairways.com sophy.chen@hklaw.com david.heffernan@wilmerhale.com

CARL B. NELSON, JR. April 12, 2010 jhill@dlalaw.com bill@mietuslaw.com rngoldrnan@sgbdc.com rsilverberg@sgbdc.com dhainbach@ggh-airlaw.com rncrnillin@woa.com eskraft@jamhoff.com dpdean@jarnhoff.com dkirstein@yklaw.com jyoung@yklaw.com donna.kooperstein@usdoj.gov dwight.moore@ustranscom.mil jim.ballough@faa.gov byerlyjr@state.gov recohn@hhlaw.com cjsimpson@zsrlaw.com pmurphy@lopmurphy.com lachter@starpower.net anita.mosner@hklaw.com rpommer@atlasair.com gmurphy@crowell.com russell.bailey@alpa.org