BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D. C. 

Application of 

DELTA AIR LINES, INC. 

for frequency allocation 

(Detroit-Sao Paulo) 

DOT-OST-2010-

0090 

MOTION OF AMERICAN AIRLINES, INC. 

TO DISMISS 

Communications with respect to this document should be sent to: 

VIRASB VAHIDI 

Senior Vice President -

Planning 

American Airlines, Inc. 

P.O. Box 619616, MD 5634 

DFW Airport, Texas 75161 

KENJI C. HASHIMOTO 

Vice President - Strategic 

Alliances 

American Airlines, Inc. 

P.O. Box 619616, MD 5635 

DFW Airport, Texas 75261 

ROBERT A. WIRICK 

Director, Regulatory 

American Airlines, Inc. 

P.O. Box 619616, MD 5635 

DFW Airport, Texas 75261 

(817) 963-0394 

robert.wirick@aa.com 

April 12, 2010 

-------

WILLIAMK. RIS, JR. 

Senior Vice President -

Government Affairs 

American Airlines, Inc. 

1101 17th Street, N.W. 

Washington, D.C. 20036 

CARL B. NELSON, JR. 

Associate General Counsel 

American Airlines, Inc. 

1101 17th Street, N.W. 

Washington, D.C. 20036 

(202) 496-5647 

carl.nelson@aa.com 
Application of 

BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D. C. 

DELTA AIR LINES, INC. 

for frequency allocation 

(Detroit-Sao Paulo) 

MOTION OF AMERICAN AIRLINES, INC. 

TO DISMISS 

DOT-OST-2010-

0090 

American Airlines, Inc. hereby moves for dismissal of 

the application submitted by Delta Air Lines on April 8, 2010 

for allocation of five weekly U.S.-Brazil combination frequencies for Detroit-Sao Paulo service. 

Delta's request is purportedly in response to the 

Department's Notice issued on March 24, 2010 inviting "certificated U.S. air carriers to file applications for the combination frequencies that become available effective October 2010 

for scheduled U.S.-Brazil services" (emphasis added). The 

Department stated that "[t]he frequencies at issue here may 

be used at any points that U.S. carriers may serve, subject to 

the restriction that these frequencies may not be used at Sao 

Paulo's Guarulhos International Airport [GRU] until infrastructure-related constraints at the airport are removed" (emphasis 

added) . 
- 2 -

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 International Airport and points in the United States 

until the regulatory constraints in place as of June 26, 2008, 

related to infrastructure at that airport, are removed. H 

Despite the Department's clear directive inviting 

applications "for the combination frequencies that become 

available effective October 2010 H (emphasis added), and the 

exclusion of GRU as an eligible point, Delta has nonetheless 

asked for frequencies to serve Sao Paulo. While Delta 

"recognizesH the Sao Paulo restriction, it contends that the 

frequencies are "ultimatelyH usable at Sao Paulo, and that 

"long-termH considerations support its request. 

In the 2009 U.S.-Brazil Combination Frequency Proceeding (DOT-OST-2009-0003), the Department placed 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 between Atlanta and "the largest and 

most important traffic point eligible for 2009 award service, 

Rio de JaneiroH (January 27, 2009, p. 2, emphasis added). --------------
- 3 -

Delta repeated that Rio de Janeiro was the largest 

~eligible" Brazil point in its answer on February 12, 2009 (p. 

3). Delta did not apply to serve Sao Paulo, as it knew that 

Sao Paulo frequencies were not in issue and were not eligible 

for the October I, 2009 award. 

Nor has any other applicant sought frequencies to serve 

Sao Paulo under 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 authority available 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 should be 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 from United Air Lines, ~the Department has stated unequivocally that U.S.-Brazil frequencies are 

valuable bilateral rights that should be 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 

intend to be wasted')" (Application of Delta Air Lines, DOTOST-2004-19161, September 17, 2004, p. 2). 
- 4 -

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 have made clear throughout this proceeding, it is 

our established policy not to permit valuable operating rights 

to remain unused for an extended period, particularly when 

another carrier has firm plans to use them and the carrier 

holding the authority does not" (p. 3). 

The same principle should apply here. The Brazil 

frequencies available on October 1, 2010 are not usable at GRU, 

and neither Delta nor any other carrier should be permitted to 

warehouse these frequencies until some indeterminate future 

date when the GRU restriction might be lifted. Indeed, Delta 

is on record as having opposed a "dormancy waiver [to American] 

to warehouse Brazil frequencies that Delta is ready, willing 

and able to use right now" (Delta Air Lines Reply, DOT-OST2002-11706, March 18, 2002, p. 3). 

On April 8, 2010, American responded to the Department's invitation by presenting firm plans to use 11 of the 14 

Brazil frequencies available October 1, 2010 to serve New York 

(JFK)-Rio de Janeiro and Miami-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 should be immediately approved as uncontested. 
L 

- 5 -

Delta's application is outside the scope of the 

invitation and contrary to 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 should be dismissed. 

April 12, 2010 

----

Respectfully submitted, 

CARL B. NELSON, JR. 

Associate General Counsel 

American Airlines, Inc. 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the 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