BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

________________________________________________

 )

Application of )

 )

AMERICAN AIRLINES, INC. )

 ) Docket No. FAA-2015-3491

for an exemption )

pursuant to 14 C.F.R. Part 11.15 )

(Lansing, Michigan – Washington, DC) )

________________________________________________)

ANSWER OF JETBLUE AIRWAYS CORPORATION

Communications with respect to this document should be addressed to:

James G. Hnat Evelyn D. Sahr

Executive Vice President Jonathan T. Linde

 General Counsel & Government Affairs Reese Davidson

Drew M. Derco

Robert C. Land Eckert Seamans Cherin & Mellott, LLC 

Senior Vice President Government 1717 Pennsylvania Ave., N.W.

Affairs & Associate General Counsel Twelfth Floor

 Washington, D.C. 20006

Adam L. Schless Tel: (202) 659-6600

Director, Aircraft Transactions & Fax: (202) 659-6699

International Counsel

 Counsel for JetBlue Airways Corporation

JetBlue Airways Corporation

1212 New York Avenue, N.W. September 17, 2015

Suite 1212

Washington, D.C. 20005

Tel: (202) 715-2557
BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

________________________________________________

 )

Application of )

 )

AMERICAN AIRLINES, INC. )

 ) Docket No. FAA-2015-3491

for an exemption )

pursuant to 14 C.F.R. Part 11.15 )

(Lansing, Michigan – Washington, DC) )

________________________________________________)

ANSWER OF JETBLUE AIRWAYS CORPORATION

JetBlue Airways Corporation (JetBlue) opposes American Airlines Inc.’s (American) 

opportunistic effort to consolidate its leading position at Ronald Reagan Washington National 

Airport (DCA) by requesting that the Federal Aviation Administration (FAA) issue it a slot 

exemption, allowing it to provide service between DCA and Lansing, Michigan (LAN), beginning 

on November 5, 2015.1

 American’s attempt to mix-and-match statutes and regulations in order to 

obtain additional DCA access and increase its already-high market concentration is contrary to 

FAA precedent and should promptly be denied. If, however, the FAA decides to change its policy 

and issue DCA slot exemptions to carriers under new criteria, then due process and precedent 

demand that all carriers, including JetBlue, be invited to petition for exemptions in order to obtain 

additional DCA access.

1 Although American styled its filing as an “Application of American Airlines, Inc. for an Exemption,” it is in fact 

merely a petition, and JetBlue will refer to it as such in this response.

 
In its petition, American argues that it would be “unfair” to the city of Lansing and MidMichigan in general if the FAA were to allow DCA-LAN service to lapse.2

 While seemingly 

altruistic, American’s request for a slot exemption is, in actuality, a self-interested and 

inappropriate attempt to exploit the FAA’s 2012 decision to issue a DCA slot exemption to Sun 

Country under exceptionally unusual circumstances and gain another slot pair for its already 

dominant position at DCA. American, with control of nearly 60% of DCA slots, has a long history 

of such incremental slot acquisitions that ultimately lead to market concentration that harms the 

traveling public. American’s petition conveniently ignores the express limitations imposed by the 

FAA on Sun Country’s DCA-LAN exemption and invokes decisional standards that the Office of 

the Secretary of Transportation (OST) uses in competitive route proceedings that are completely 

inapposite here.3

 At the end of the day, American’s petition for an exemption represents nothing 

more than a backdoor effort by American to tighten its chokehold on DCA by acquiring additional 

slots without any comparative selection proceeding. For these reasons, as more fully described 

below, JetBlue strongly opposes and urges the FAA to deny American’s petition or to immediately 

initiate a competitive proceeding.

I. A GRANT OF AMERICAN’S PETITION IS CONTRARY TO FAA PRECEDENT

American’s petition does not meet FAA precedent for granting slot exemptions. The FAA 

has historically approved slot exemption requests only in the rarest of circumstances, and such 

extreme remedies are used, typically, only to redress the loss of a slot allocation that was beyond 

2 When American threatened to, and ultimately did, end service to several communities from DCA following the slot 

divestures required as a condition of its 2013 merger with US Airways, it did not petition the FAA to remedy the 

“unfair” situation.

3 FAA and OST are both part of the U.S. Department of Transportation (DOT or Department).

 
the carrier’s control. See FAA Exemption No. 100063, Docket No. FAA-2010-0101, May 10, 2010 

(applicant must show “subsequent events, beyond the control of [the carrier], have removed the 

slots that it currently leases from the slot pool at DCA.”). Clearly, American, as the largest slot 

holder at DCA, is not petitioning the FAA in the context of a loss of slots that was beyond its 

control. In prior instances where the FAA has been asked to reallocate slot exemptions being 

abandoned by a carrier, the agency has taken a firm position that, in examining the public interest 

prong under 14 C.F.R. Part 11.81, it:

“cannot consider the specific route plans of the petitioners in determining where 

the public interest lies...FAA decisions on slot allocation or exemption authority 

have never been predicated on route selection but rather on access by specific 

carriers to specific airports, in this case, DCA...except as authorized by statute or 

regulation, the agency cannot condition an award of slots or an exemption to 

conduct operations without slots on a carrier’s promise to use its slots to serve 

specific routes.”4

 

Such clear unambiguous language is controlling today. To the extent the FAA is being 

asked to reallocate a slot exemption issued to another carrier that is ceasing service, the FAA 

cannot take into account American’s plan to serve Lansing when evaluating American’s petition. 

Rather, the FAA must evaluate American’s petition in light of the factors it has repeatedly 

identified as crucial to public interest determinations for such exemptions, which include whether 

issuance of the exemption will foster new entry and assist limited incumbent carriers to compete 

more effectively with larger DCA slot holders. American’s petition would clearly fail to achieve 

either of those public interest objectives. 

4 Exemption No. 8112, Dockets FAA-2003-14563, FAA-2003-14827 and FAA-2003-14975, August 14, 2003. This 

case involved 3 out of the original 4 so-called Braniff exemptions. The public interest test is the same now as it was 

in 2003.

 
II. AMERICAN’S PETITION EXCEEDS FAA’S MANDATE

Although JetBlue would welcome a competitive proceeding to allocate additional DCA 

exemptions, JetBlue notes that the FAA’s mandate has never been understood to empower it to 

create slot exemptions to address the kind of competition concerns raised by American.5 

Moreover, in the past, when Congress has authorized the Department to issue exemptions in order 

to expand access at DCA, OST has awarded the exemptions, not FAA, under a different set of 

statutory criteria. The FAA has traditionally addressed the allocation of slots at DCA as an 

operational matter only. Furthermore, the FAA’s 2012 decision to issue Sun County an exemption 

for DCA-LAN service lacks precedential significance, as that decision was undertaken reluctantly 

by the agency in response to a DC Circuit decision that had the practical impact of stripping Sun 

Country of slot exemptions earlier awarded to it by OST. In that unique proceeding, the only 

option available to Sun Country to continue operating its DCA-LAN service – for which it had 

been selling tickets when the DC Circuit issued its decision – was to petition the FAA for an 

exemption.6

 There, the FAA took the highly unusual step of issuing an exemption to redress the 

inequities that would have resulted had Sun County lost its ability to serve DCA through no fault 

of its own and absent due process. American’s petition does not raise similar concerns and should 

therefore be denied.

5 See “Comments of Delta Air Lines, Inc. and US Airways, Inc.,” Docket FAA-2010-0109, March 22, 2010 (arguing 

that FAA consideration of competition concerns when evaluating the public interest exceeds statutory authority). US 

Airways and Delta also noted that “[i]t could not be clearer that while Congress gave the Secretary authority to grant 

slot exemptions in a way that would promote competition, Congress envisioned that the FAA’s authority over the 

allocation of slots would be aimed solely at the safe and efficient movement of air traffic.” Id. at 14. 6 It is notable that OST lacked the statutory or regulatory tools to correct the inequities that it created in the first place.

 
When FAA issued the DCA slot exemption currently being sought by American, it not only 

cited the extremely limited circumstances under which it would issue DCA slot exemptions, it 

stated explicitly that the exemption was exclusive to Sun Country and that the slot allocations 

associated with the exemption were neither permanent nor to be considered part of the larger pool 

of DCA slots available to all carriers. FAA Exemption No. 10466, Docket No. FAA-2012-0089, 

March 2, 2012 (explaining that the DCA slots issued to Sun Country would be “rescinded if Sun 

Country discontinues scheduled operations at Ronald Reagan Washington National Airport” and 

emphasizing that the slots allocated to Sun Country were “not part of the pool of permanent slots 

at the airport”). There was no expectation that Sun Country, or the FAA, would be permanently 

creating a new slot exemption if Sun Country ever ceased DCA-LAN service. Simply put, as of 

October 1, 2015, the date that Sun Country is scheduled to discontinue its DCA-LAN service, the 

DCA slot exemption American is seeking to inherit via its petition will, as a practical and 

administrative matter, no longer exist. 

III. A GRANT WOULD BE INCONSISTENT WITH ASHBACKER

Under the Ashbacker doctrine, if the FAA nonetheless decides to issue an exemption for 

service from DCA to a specific community, the FAA must invite all interested carriers to apply 

for that service and then evaluate and choose among competing service proposals.7

 Delta Air 

Lines, Inc. (Delta), itself relying on the principles of Ashbacker, has already submitted a petition 

to the FAA in connection with this proceeding asking that FAA issue it the same DCA slot 

exemption sought by American. A decision by the FAA to grant American or Delta’s petition 

7 See Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945).

 
without inviting all applications and evaluating the independent merits of other competing 

applications would violate the most basic tenets of procedural due process under the 

Administrative Procedure Act.8 If the FAA is willing to conclude that it will now issue DCA slot 

exemptions to carriers on a regular basis and/or re-issue slot exemptions previously issued to 

carriers that are ceasing that particular service, it must clearly state so and invite carriers to apply 

on equal terms. JetBlue would, of course, be eager to apply for additional DCA slots if such a 

process were in place.9

IV. AMERICAN HOLDS THE MOST DCA SLOTS AND DELTA RECENTLY 

ABANDONED MANY DCA SLOTS

Given American’s leading position at DCA and its already extensive slot holdings there, a 

decision by the FAA to depart from precedent and allocate a slot exemption to American would 

be fundamentally inequitable. This is especially true given the administrative hurdles JetBlue, and 

other low-cost carriers like Southwest Airlines, Virgin America, and Alaska Airlines, have 

historically been forced to overcome when attempting to gain access to DCA via legitimate 

channels and the costs incurred by JetBlue and other low-cost carriers when acquiring DCA slots 

on the secondary market.10 American (specifically US Airways before the recent merger) has long 

been the dominant holder of DCA slots and many of the slots in its current portfolio were acquired 

8 A grant of American’s petition would be a complete reversal of 30 years of FAA precedent. The United States Court 

of Appeals for the District of Columbia Circuit’s (DC Circuit) 3-0 decision in 2012 in Republic Airline Inc. v. U.S. 

Department of Transportation is a clear reminder that the Department faces a heightened standard when it departs 

from precedent with respect to DCA slot allocation. 

9 Although JetBlue did not submit a separate petition as Delta has, it stands ready to do so if and when the Department 

opens a competitive selection proceeding to reallocate Sun Country’s slots. 10 Such legitimate channels include participating in competitive selection proceedings with innovative service 

proposals when Congress has specifically authorized slot exemptions at DCA.

 
free of cost – in contrast, JetBlue itself only gained access to DCA in 2010 through a temporary 

slot trade with (pre-merger) American that required JetBlue to exchange valuable JFK slots in 

return for access to DCA.11 JetBlue was able to purchase DCA slots for the first time after US 

Airways and Delta finally, after seeking judicial review in a federal court, agreed to a DOT 

competitive remedy to divest a certain number of slots to limited incumbents as a condition of their 

proposed swap of LGA and DCA slots. The cost of these slots to JetBlue was high, as they were 

in 2014 when JetBlue purchased additional divested slots as a result of the American-US Airways 

merger. 

Although Delta has now submitted a separate petition for a similar DCA exemption, the 

FAA should be mindful that Delta recently chose to sell many of its DCA slots to US 

Airways/American. Around the same time that Delta decided to retreat from DCA and abandon 

many communities that relied on its service, JetBlue introduced new service to DCA with larger 

planes and lower fares. Although Delta now only operates around 50 daily departures a day at 

DCA, it is still the second largest DCA slot holder. Delta’s petition should be viewed in a similar 

light as American’s. Regardless, as mentioned above, if the Department is prepared to grant either 

American or Delta’s petition, it is compelled by law to conduct a competitive selection proceeding.

V. INEQUITIES WOULD RESULT FROM A GRANT OF AMERICAN’S PETITION

Against this backdrop, it would be fundamentally inequitable for FAA to permit American 

to obtain additional DCA access at essentially no cost and for FAA to do so without providing 

11 The vast majority of American’s DCA slot holdings are historic slot holdings dating back decades that include the 

remnants of many former carriers past DCA operations such as Eastern. It is worth noting that many of these slots, 

some of which are decades old, were initially granted to carriers at no cost and allowed to be monetized over the years.

 
other carriers like JetBlue with an opportunity to compete for the slot exemptions. Congress never 

intended that the FAA issue DCA slot exemptions pursuant to the criteria cited by American in its 

petition; if the FAA were to grant American’s petition, it would establish harmful precedent and 

legitimize American’s effort to sidestep the traditional slot allocation process and open the door to 

similar petitions involving other slot controlled airports such as John F. Kennedy International 

Airport (JFK) in New York.

Were the FAA to grant American’s petition, it would also risk undermining the recent U.S. 

Department of Justice (DOJ) American/US Airways merger settlement. Under DOJ’s Final 

Judgment, the parties agreed to provide DOJ with advance notice prior to acquiring additional slots 

at DCA and imposed Hart-Scott-Rodino (HSR) waiting periods with respect to such acquisitions. 

American’s petition fails to mention whether it intends to abide by its requirements to notify DOJ 

of its attempted slot acquisition and comply with the terms of its court-approved merger settlement. 

After the incredible amount of effort and resources expended by DOJ to attempt to rectify the 

competitive imbalance at DCA, it would be a travesty if the FAA then turned around and simply 

created new slots to once again bolster American’s already-ample DCA portfolio.

VI. CONCLUSION

Finally, it should be noted that there is nothing preventing American – the carrier with the 

most significant DCA slot holdings – from initiating its own DCA-LAN service today without 

obtaining an additional allocation of slots from the FAA.12 American has ample DCA slots, both 

12 JetBlue notes that Lansing is the recipient of a 2010 DOT Small Community Air Service Development Program 

(SCASDP) grant with the specific purpose of obtaining service to Washington, D.C. Because Lansing has a federal 

grant that could result in $1,400,000 at its disposal to obtain air service to Washington, D.C., the public interest 

 
air carrier and commuter, with which it could launch DCA-LAN service if it so desired.13 In fact, 

American controls nearly 60 percent of all slots at DCA and remains the dominant carrier at the

airport. If American is as concerned about the development of air service to Lansing as it appears 

to be in its petition, it could have made plans to initiate DCA-LAN service effective October 1, 

2015 on its own recognizance, and fund the service with DCA slots from its current allocation. 

WHEREFORE, for the reasons described above, JetBlue strongly urges the FAA to deny 

American’s petition for an exemption.

Respectfully submitted,

Evelyn D. Sahr

Jonathan T. Linde

Reese Davidson

Drew Derco

Eckert Seamans Cherin & Mellott, LLC

September 17, 2015 Counsel for JetBlue Airways Corporation

especially does not warrant an exemption for American in these circumstances. JetBlue also wishes to note that 

Lansing is an hour drive from DTW, a large hub with dozens of flights a day on multiple airlines to the Washington, 

D.C. area.

13 In response to a 2003 Comair/Delta petition, the FAA noted that Delta operated nearly 20% of the slots at DCA and 

had “adequate slots to commence the proposed service today [without an FAA exemption].” Exemption No. 8112, 

August 14, 2003. Certainly American, with over 50% of the slots at DCA, could also start service immediately without 

administrative relief from the FAA.