Francis C. Heil

Senior Attorney

Legal 

1101 17th Street, NW

Suite 600

Washington, DC 20036

202-496-5642 Office

202-496-5660 FAX

francis.heil@aa.com

November 20, 2013

Mr. Marc L. Warren, Esq. 

Acting Chief Counsel 

Federal Aviation Administration

800 Independence Avenue, S.W.

Washington, D.C. 20591

Re: Request of American Airlines for a Waiver

Dear Mr. Warren:

American Airlines, Inc. (“American”) requests a waiver from certain restrictions in the 

LaGuardia Interim Order,1 so that it can permanently transfer, via sale, 34 LaGuardia 

operating authorizations (“slots”). Specifically, American requests the FAA waive the 

prohibition on the sale of slots by permitting American to sell:

1. 10 LGA slots currently leased by Southwest Airlines (“Southwest”)2

, and 

2. 24 slots to a carrier approved by DOJ3

 

The sale of these 34 slots is required by the terms of a proposed final judgment (“PFJ”) 

announced by DOJ on November 12, 2013. Granting the waiver will allow the merger of 

American and US Airways to proceed pursuant to the PFJ, to the benefit of the traveling 

public.

The LaGuardia Interim Order was issued in 2006 as a temporary bridge between the 

existing High Density Rule,4 which expired at LaGuardia under the Wendell H. Ford 

Aviation Investment and Reform Act for the 21st Century5 on January 1, 2007, and a new 

final rule that the FAA issued October 10, 2008.6

 Thus, the LaGuardia Interim Order was 

 

1 71 Fed. Reg. 77854 (December 27, 2006), as amended; hereinafter, “LGA Interim Order”.

2 Under the terms of the sale, American intends to transfer holder status of the slots to Southwest 

and/or other DOJ-approved airlines immediately upon receipt of the waiver sought in this letter and 

DOJ approval of the transfer under the PFJ. American will continue to operate the slots for a 

transition period until the other airlines are prepared to start operating the slots in 2014.

3 DOJ has yet to decide which potential purchaser will be permitted to acquire the 24 slots subject 

to the proposed final judgment. American will notify the FAA as soon it is aware who the approved 

purchaser(s) will be. In the interim, American respectfully submits that the FAA has all relevant 

information necessary to determine whether a waiver is in the public interest and needs the 

name(s) of the approved purchaser only for purposes of finalizing any waiver.

4 93 C.F.R. 221.

5 49 U.S.C. 41715(a)(2), enacted by Pub. Law no. 106-181, §231, 114 Stat. 61, 106-10 (2000). 6 73 Fed. Reg. 60574. rescinded at 74 Fed. Reg. 52132. 
2

initially scheduled to expire in the spring of 20097 and did not address the possibility of 

selling slots, instead permitting only the lease of slots, and then only through the end of 

the LaGuardia Interim Order. It is important to note that both the High Density Rule and 

the pending rulemaking permitted the sale of slots, and there is no reason to believe that 

the FAA intended to restrict the sale of slots over the long-term.

8

 The LaGuardia Interim 

Order has been extended without change several times, and the final rule initially 

contemplated by the LaGuardia Interim Order is unlikely to be issued in time to address 

American’s need to permanently relinquish its interest in the 34 slots.9

 

The FAA may grant waivers when they are consistent with the public interest and will 

provide an equivalent or greater level of safety.10 As explained more fully below, we 

believe a waiver from the LaGuardia Interim Order’s restriction on the sale of slots is 

warranted in this instance. Here, the FAA’s objective of safely and efficiently managing air 

traffic at LaGuardia is preserved, and the public policy goal of promoting competition in air 

commerce and improved service to the traveling public is enhanced. The public benefits 

are significant. 

The transfer of these slots is required under the terms of a proposed PFJ between DOJ, 

the States of Arizona, Florida, Tennessee, and Michigan, the Commonwealths of 

Pennsylvania and Virginia, the District of Columbia, American and US Airways, requiring 

that American divest the 34 slots identified on Attachment A to this letter. See Proposed 

Final J. (Doc. 147-2), United States, et al. v. US Airways Group, Inc., et al., D.D.C. No. 13-

01236 (Nov. 12, 2013) (“PFJ”) at 5-9 & Ex. B. The DOJ believes that this divestiture will 

“allow [LCCs and other carriers] to provide greatly expanded service on numerous routes, 

including new nonstop and connecting service to points throughout the country.” 

 

7 The LaGuardia Interim Order was initially set to expire “on the first change of scheduling season 

occurring no less than 90 days after the issuance of a final rule regulating congestion at LaGuardia. 

71 Fed. Reg. 77854, 77860. With the publication of the since rescinded final rule, that date was set 

as April 1, 2009. On January 8 2009, the FAA extended the LaGuardia Interim rule to a date 

certain, namely October 24, 2009. 74 Fed. Reg. 845. The FAA has continued to extend The 

LaGuardia Interim Rule, which is now set to expire October 24, 2014. 78 Fed. Reg. 28280. 8 American appreciates the apparent reasoning behind not permitting the sale of slots at the time 

the LaGuardia Interim Order was initially issued. At that time, the FAA had issued a notice of

proposed rulemaking (71 Fed. Reg. 51630, August 29, 2006) that contemplated awarding slots 

based upon who operated the slots during the week of October 1-6, 2006 – a date that had already 

passed when the LaGuardia Interim Order was issued. Had the LaGuardia Interim Order permitted 

the sale of slots and the contemplated final rule been issued as proposed, the sale of any slots 

under the LaGuardia Interim Order would effectively be undone by virtue of the final rule, raising 

significant concerns about whether the FAA had engaged in an unconstitutional taking. 9 A notice of proposed rulemaking has been pending review at the Office of Management and 

Budget since March 9, 2013 (http://reginfo.gov/public/do/eoReviewSearch). 

10 The slot rules were adopted to improve efficiency and not for reasons of aviation safety. Thus, 

there is no need in this instance to demonstrate an equivalent or greater level of safety. In any 

case, it is clear that transferring slots from one scheduled air carrier to another, both of which are 

regulated under the same operational rules in 14 CFR part 121, will not have an adverse effect on 

safety.
3

Competitive Impact Statement (Doc. 148), United States, et al. v. US Airways Group, Inc., 

et al., D.D.C. No. 13-01236 (Nov. 12, 2013) (“CIS”) at 9. 

For its part, Southwest will use 10 of these slots currently being used via a lease from 

American to continue its current service to and from LaGuardia. The acquirer(s) of the 

other 24 slots will use them to introduce service to new destinations and add additional 

frequencies to current destinations served from LaGuardia. 

By approving this waiver, the FAA will allow American to fulfill a requirement under the 

PFJ that will 1) settle the litigation between the DOJ and American; 2) permit American to 

emerge from Chapter 11 bankruptcy protection; and, 3) complete its planned merger with 

US Airways in the coming weeks. For those reasons, alone, a grant of the waiver to 

American is in the public interest.11 

American anticipates that the impact to the traveling public will be positive, as more 

passengers will be served with no increase in the number of aircraft serving the airport. 

Excluding the slots currently being utilized by Southwest, the remaining slots are largely 

used by American to operate a mix of mainline and regional aircraft. By removing those 

regional aircraft and replacing them with larger mainline aircraft, the average seats per 

departure will rise at LGA, which has long been a goal of the FAA. As the FAA has stated: 

“Promoting larger aircraft is the only means to increase passenger access to LGA. . . . 

[T]he increase in passenger throughput can be considered a measure of efficiency of the 

use of airspace....” 71 Fed. Reg. at 51367 (August 29, 2006). None of the other potential 

buyers operate regional jets and, absent an unanticipated change in business profile, they 

will replace American’s regional aircraft with larger aircraft that can carry more 

passengers. These larger aircraft do not pose any operational concerns at LaGuardia. 

The gates that American has agreed to make available will be capable of accommodating 

the aircraft, and the aircraft do not require any special handling by air traffic control that 

would require additional spacing or otherwise introduce delay at the airport beyond that 

experienced today.

Approving the waiver will also “create network opportunities for the purchasing carriers 

that would otherwise have been out of reach for the foreseeable future. Those 

opportunities will provide increased incentives for those carriers to invest in new capacity 

and expand into additional markets. . . . In this way, the [waiver] will deliver benefits to 

consumers that could not be obtained [otherwise].” CIS at 8; see also Remarks of 

Assistant Attorney Gen. Bill Baer (Nov. 12, 2013) (explaining that, as much as 

“Southwest’s entry into Newark Liberty airport after the United-Continental merger . . . 

benefitted consumers,” so too will the proposed final judgment, including the permanent 

transfer of LGA slots, “open up the marketplace” and “provide consumers with more 

choices and more competitive airfares”), available at

http://www.justice.gov/iso/opa/atr/speeches/ 2013/at-speech-131112.html.

 

11 DOT has also granted pendente lite an exemption to enable the airlines to close the merger.
4

The requested waiver does not prejudice any long-term FAA policy decisions relating to 

congestion management at LaGuardia. Transfer of the slots from American to 

Southwest12 and the other buyers identified by DOJ will give them the same rights that 

American currently has to operate the slots at LGA – no more and no less.13 

A waiver is needed as soon as possible so that American can satisfy its obligations under 

the terms of the consent decree. Since the waiver request is based on the terms of the 

consent decree, American has very little latitude in deciding to whom, and under what 

circumstances, to sell the slots. In addition, the public policy considerations have been 

well explored by all parties to the litigation, including DOJ. As such, American believes 

there is good cause to forgo a notice and comment period. While notice and comment will 

certainly delay the ability of American to satisfy the terms of the consent decree 

expeditiously, it is unlikely to change the conditions or parties that would benefit from the 

waiver. 

Likewise, waiting for DOJ to identify which other buyer(s) it is willing to accept as the 

holder of the remaining slots before granting the waiver introduces needless delay in 

finalizing the consent order. The FAA may rely on DOJ’s ultimate assessment of who the 

appropriate purchasers of the slots will be. The FAA may also assume that DOJ will 

ensure that the public policy objectives voiced by that agency will be fulfilled without 

American identifying with specificity who those carriers are now. Ultimately, it will be DOJ, 

and not American, who will decide who is eligible to purchase the slots.

In conclusion, the waiver is well justified and in the public interest. American respectfully 

urges the FAA to grant the requested relief as soon as possible, so that the parties can 

close their transaction and begin to implement the beneficial new services described 

above.

Sincerely,

Francis C. Heil

Senior Attorney

 

12 If Southwest does not elect to buy the 10 slots currently on lease, the slots will be offered to other 

bidders.

13 The FAA ultimately decided against pursuing a “look-back period” for assigning slots in the final 

rule issued October 10, 2007 (73 Fed. Reg. 60574), instead deciding to initially allocate slots using 

operating authority the week before the final rule was published. This approach eliminated the 

potential constitutional problem that could arise with a sale of slots prior to the publication of a final 

rule. 
5

Attachment A

Slots at LGA

The following 24 slots at LGA will be made available for sale or transfer:

Slot Number Slot Time Arrival or Departure Frequency

3189 630 D x67

2139 730 A x67

3236 830 A x67

2222 830 D x67

2033 1100 A x67

2008 1230 D x6

3594 1300 A x6

3671 1400 D x6

3258 1600 D x6

2032 1700 A x6

2166 1830 D x6

3826 2000 A x6
6

Slot Number Slot Time Arrival or Departure Frequency

3068 700 D x67

2147 800 A x67

2096 930 D x67

2075 1000 A x67

3784 1030 D x67

3841 1230 A x6

3380 1430 A x6

3282 1600 D x6

3080 1630 A x6

2230 1730 D x6

3013 1830 A x6

2111 1930 D x6
7

The following 10 slots at LGA will be offered for sale to Southwest Airlines (WN):

Slot Number Slot Time Arrival or Departure Frequency

3351 700 D x67

2101 1200 D x6

3335 1400 A x6

3422 1430 D x6

3665 1630 A x6

3314 1700 A x6

2215 1730 D x6

3045 1730 D x6

2120 2000 D x6

3312 2030 A x6