April 22, 2016

VIA EMAIL AND REGULATIONS.GOV

Reginald C. Govan, Esq.

Chief Counsel

Federal Aviation Administration

800 Independence Avenue, SW

Washington, D.C. 20591

Re: Opposition to JetBlue’s Petition for Reconsideration and Request for Backup Authority,

Docket FAA-2015-3491

Dear Chief Counsel Govan:

American Airlines, Inc. (“American”) requests that the FAA reject JetBlue’s petition for

reconsideration served on April 12, 2016. American has made an effective case that the public interest is

served by granting to American an exemption that will enable the resumption of nonstop service between

Lansing’s Capital Region International Airport (LAN) and Washington Reagan National Airport (DCA),

service that will expand the options available to passengers traveling to and from mid-Michigan. Indeed,

American announced this week that LAN-DCA service under the exemption will commence July 5, 2016,

with a schedule enabling mid-Michigan passengers to make day trips to Washington, DC, conduct a full

day’s business, and still arrive home at a decent hour.

JetBlue did not petition the FAA for an exemption to serve Lansing and none of the three filings it

has made in this docket even reflect any interest in serving Lansing. Yet JetBlue now seeks to deny the

Lansing community and passengers throughout mid-Michigan the benefit of nonstop service to the nation’s

capital and connecting service to points beyond. JetBlue’s petition is impermissible under applicable FAA

regulations, provides an insufficient basis for the FAA to reconsider its decision, and should be rejected.

First, applicable FAA regulations do not permit JetBlue to petition the FAA for reconsideration of

the grant of another airline’s exemption. 14 C.F.R. § 11.101 states that “you may petition FAA to

reconsider your petition denial,” but does not provide for petitions to reconsider exemptions that are granted
to others.1 The FAA’s intent to forbid third-party petitions for reconsideration is demonstrated by the

history of § 11.101. The former regulations contained a provision stating that “[i]f a petition for exemption

is granted, a person other than the initial petitioner may file a petition for reconsideration with the

Administrator,”2 but the FAA removed that provision in 2000.3JetBlue’s petition is therefore not allowed

by the FAA’s rules and should not be considered.

Second, even if JetBlue’s petition is permissible, it fails to comply with the FAA’s requirements.

Under § 11.101, petitions for reconsideration will not be considered unless they show: (a) “a significant

additional fact”; (b) that the FAA “made an important factual error”; or (c) that the FAA “did not correctly

interpret a law, regulation, or precedent.”4JetBlue’s petition shows none of these elements. While JetBlue

alleges that the FAA’s decision “is troubling” and requests that “the FAA address JetBlue’s previouslystated concerns,” these are not adequate bases to support a petition for reconsideration.5

In prior

proceedings, the FAA has repeatedly stated that it is “unable to process” petitions for reconsideration that,

like JetBlue’s, do not meet the requirements of § 11.101.6JetBlue’s petition should be treated no

differently.

Third, to the extent that the FAA is willing to consider JetBlue’s petition, the FAA should reject

JetBlue’s contention that the FAA must address “the compatibility of this exemption grant with the

American/US Airways merger settlement decree.”7 There is nothing for the FAA to address. The

American/US Airways Final Order forbids the reacquisition of the “Divestiture Assets,” meaning the

1 14 C.F.R. § 11.101.

2 See 14 C.F.R. § 11.55(b) (1999 ed.).

3 65 Fed. Reg. 50850–69 (Aug. 21, 2000).

4 14 C.F.R. § 11.101. These requirements specifically apply to petitions for reconsideration of exemptions

that are denied, but to the extent the FAA is willing to entertain third-party petitions for reconsideration of exemptions

that are granted, the FAA should hold third parties to at least the same standards.

5

JetBlue Petition for Reconsideration, at 4.

6 See, e.g., Letter from Dr. Frederick E. Tilton to Richard D. Blosser, Docket No. FAA-2008-1223 (Aug. 17,

2010); Letter from Ida M. Klepper to Jared Watkins, Docket No. FAA-2007-28641 (Apr. 21, 2008); Letter from Ida

M. Klepper to Blythe C. Waller, Docket No. FAA-2003-16835 (Jan. 23, 2004).

7

JetBlue Petition for Reconsideration, at 4.
specific DCA slots that American and US Airways were required to divest.8

It also imposes a prior notice

regime on slots in use at the completion of the American/US Airways transaction. It does not apply to the

acquisition of the slots in this proceeding, which will be newly issued.

Fourth, although American takes no position on the merits of JetBlue’s request for backup

authority, American questions whether the FAA can award backup authority to a carrier that did not file a

petition for an exemption. The award of this authority risks subverting the notice and comment

requirements in the FAA’s rules.9 The FAA explained in its grant of American’s exemption that

“[g]enerally . . . the FAA publishes petitions for exemption in the Federal Register and considers all

comments before arriving at a decision.”10 But the award of JetBlue’s unpublished request denies notice to

everyone but those that JetBlue chose to serve. Remarkably, JetBlue accuses the FAA of “ignor[ing]

procedural due process requirements” just two paragraphs before asking the FAA to ignore the procedures

governing the grant of exemptions. Should the FAA wish to take the unusual step of awarding backup

authority, which typically is not done in domestic slot proceedings, JetBlue should file a petition for an

exemption that complies with the FAA’s Rulemaking Procedures.

Finally, American notes that if backup authority were to be awarded to any carrier in this

exemption proceeding, JetBlue has offered no reason why the public interest, as opposed to JetBlue’s

parochial interest, would be served by an award of backup authority to JetBlue. Note that JetBlue does not

currently serve Lansing and in three filings in this docket expressed no interest in serving Lansing. Indeed,

given JetBlue’s history of gross underutilization of slots at Long Beach Airport,11 the public interest would

be poorly served by the award of backup authority to JetBlue.

8 Final Judgment, United States v. US Airways Group, Inc., Case No. 1:13-cv-01236, Dkt. No. 170, at 3, 22

(D.D.C. Apr. 25, 2014).

9 See 14 C.F.R. §§ 11.81–89.

10 Exemption Nos. 15867 and 15869, at 6 (Mar. 31, 2016) (emphasis in original). Those petitioning for an

exemption are required to include “[a] summary [the FAA] can publish in the Federal Register.” 14 C.F.R. § 11.81(f).

11 See, e.g., Cranky Flier, Southwest, JetBlue, and Delta Decide How to Use Their Long Beach Slots (Apr.

4, 2016), http://crankyflier.com/2016/04/04/southwest-jetblue-and-delta-decide-how-to-use-their-long-beach-slots/

(“There’s already a lot of noise about how JetBlue is squatting on slots. . . .”); Cranky Flier, Southwest Surprises,

Joins JetBlue and Delta in Applying for Long Beach Slots (Feb. 11, 2016), http://crankyflier.com/
JetBlue complains that the FAA’s decision is an “extraordinary departure from precedent and

practice,”12 yet requests that the FAA: (a) consider a petition for reconsideration concerning the grant of

another airline’s exemption, which is unauthorized by the FAA’s rules; (b) consider a petition for

reconsideration that fails to comply with § 11.101; and (c) award backup authority in an exemption

proceeding to a carrier that did not follow the FAA’s procedures for petitioning for an exemption. For these

reasons, JetBlue’s petition for reconsideration should be rejected.

Respectfully submitted,

________________________

Howard Kass

Vice President

Regulatory Affairs

CC: Service list

2016/02/11/southwest-surprises-joins-jetblue-and-delta-in-applying-for-long-beach-slots/ (“JetBlue Tries to Prevent

Competition”).

12 JetBlue Petition for Reconsideration, at 2.
CERTIFICATE OF SERVICE

I certify that on April 22, 2016, I caused to be served a copy of the foregoing Letter upon

the addressees listed below:

reggie.govan@faa.gov (Federal Aviation Administration)

kathryn.thomson@dot.gov (Department of Transportation)

susan.mcdermott@dot.gov (Department of Transportation)

bob.goldner@dot.gov (Department of Transportation)

bill.baer@usdoj.gov (Department of Justice)

kathleen.oneill@usdoj.gov (Department of Justice)

robert.land@jetblue.com (JetBlue)

dderco@eckertseamans.com (Counsel for JetBlue)

esahr@eckertseamans.com (Counsel for JetBlue)

rdavidson@eckertseamans.com (Counsel for JetBlue)

robert.letteney@delta.com (Delta)

chris.walker@delta.com (Delta)

leslie.abbott@wnco.com (Southwest)

dheffernan@cozen.com (Counsel for Alaska)

steve.morrissey@united.com (United)

________________________

William B. Sohn