BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

__________________________________________ 

 ) 

Application of ) 

 ) 

 HAWAIIAN AIRLINES, INC. ) Docket DOT-OST-2010-0018 

 ) 

in the matter of 2010 U.S.-Haneda ) 

Combination Services Allocation Proceeding ) 

__________________________________________) 

ANSWER OF HAWAIIAN AIRLINES, INC. TO 

PETITION FOR RECONSIDERATION OF ORDER 2013-11-9 

Communications with respect to this document should be addressed to: 

Mark B. Dunkerley 

President & Chief Executive Officer 

Hoyt H. Zia 

Senior Vice President, General Counsel & 

Corporate Secretary 

Mark K. Arimoto 

Associate General Counsel 

Hawaiian Airlines, Inc. 

P.O. Box 30008 

Honolulu, HI 96820-0008 

November 22, 2013 

Jonathan B. Hill 

J. Parker Erkmann 

Benjamin M. Berlin 

Dow Lohnes PLLC 

1200 New Hampshire Ave., NW 

Suite 800 

Washington, DC 20036 

(202) 776-2000 

(202) 776-4725 (fax) 

jhill@dowlohnes.com 

perkmann@dowlohnes.com 

bberlin@dowlohnes.com 

Counsel for Hawaiian Airlines, Inc. 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

__________________________________________ 

 ) 

Application of ) 

 ) 

 HAWAIIAN AIRLINES, INC. ) Docket DOT-OST-2010-0018 

 ) 

in the matter of 2010 U.S.-Haneda ) 

Combination Services Allocation Proceeding ) 

__________________________________________) 

ANSWER OF HAWAIIAN AIRLINES, INC. TO 

PETITION FOR RECONSIDERATION OF ORDER 2013-11-9

 Hawaiian Airlines, Inc. (“Hawaiian”) files its Answer in Opposition to the Petition for 

Reconsideration of Order 2013-11-9 filed by Delta Air Lines, Inc. (“Delta”) pursuant to Order 

2013-11-9. The Department of Transportation (“DOT” or “Department”) has, since the 

inception of this proceeding in 2010, undertaken a careful and thoughtful review of each route 

specific proposal before it to determine which will “most likely offer and maintain service that 

best meets the needs of the traveling and shipping public.” Order 2010-1-17 at 1, 2. Delta now 

proposes to change radically the basis on which DOT evaluates a limited entry market case. 

Instead of focusing on the merits of a particular route proposal for the traveling public, Delta 

proposes that the DOT focus on the merits of a particular carrier without reference to the 

gateway or route proposal.1

 This fundamental change undermines the foundation of this entire 

 

1

 It is ironic to contrast Delta’s position on the relaxation of government restrictions on the 

mobility of Haneda slots to their position on the relaxation of the restrictions on operating hours 

at Haneda, which Delta opposed this fall. In the latter case, Delta supported maintaining 

restrictions on carriers’ freedom to operate. Here, they support operational flexibility, apparently 

seeking to move their Haneda gateways for a third time without having to go through a 
2 

proceeding. Moreover, it compromises the myriad of business decisions that carriers have made 

in reliance on the Department’s Orders authorizing service through specific gateways. 

 The careful public interest analysis that DOT has undertaken in arriving at its two final 

orders in this docket have considered each applicant’s service proposal, its impact on the overall 

competitive environment, market structure and competition in the US-Japan market. As DOT 

stated in Order 2010-7-2 at 6, the Department attempted “to satisfy diverse public interest 

objectives and needs in selecting carrier proposals for award of available rights [and] the ability 

to allocate slots pairs to enable four daily U.S.-Haneda services allows us to reintroduce 

convenient U.S.-Tokyo access while addressing a variety of important public interest 

objectives.” To turn this proceeding into a carrier selection proceeding rather than a route 

proceeding, the DOT will have to altogether ignore the analytical framework it has established 

for awarding particular routes over others, given the unique benefits to the traveling public of 

each such route. Delta’s proposal also undermines the investments carriers have made in 

reliance on the Department’s present Orders that awarded carriers specific routes. With the 

certainty, carriers that were selected on the basis of their proposed gateway will abandon those 

gateways to layer additional service on top of the successful routes, disadvantaging the carriers 

that made the initial application for and investment in the route in reliance on the DOT Order 

awarding route specific authority. 

 Delta’s reliance on the 2004 Brazilian case is fundamentally misguided. There, the 

Department sought to correct a competitive imbalance among U.S. carriers. But in the Haneda 

proceeding, all U.S. carriers currently play by the same rules, which Delta seeks to have changed 

given its failure to successfully provide service to Haneda from either Detroit or its second 

 

comparative proceeding. In considering Delta’s petition, the Department should weigh the 

merits in light of the opportunism the proposal represents. 
3 

opportunity, Seattle. At stake in the Brazil proceeding were 105 weekly frequencies between the 

U.S. and Brazil. Delta, Continental and American held route specific approvals from DOT. On 

the other hand, American, in addition to its route specific approvals, also held, as did United, 

frequencies obtained through route transfer cases that were not tied to city-pair approvals. In 

authorizing the change, the Department addressed the lack of uniformity between the carrier’s 

rights, a competitive imbalance created by the approval process where some U.S. carriers were 

free to change city-pair routings and some were not. DOT stated in the 2004 Order: “We believe 

that the disparate treatment of otherwise similarly-situated carriers in the Brazil market...calls 

for our according a greater degree of flexibility here than might be the case in other 

circumstances or setting.” Order 2004-6-25 at 2-3. This is not the case before the Department in 

the Haneda proceeding. All U.S. carriers are on the same footing and received their authority on 

the same basis. 

 Hawaiian opposes the broadening of the present proceeding to include Delta’s proposal. 

If the Department should chose to consider such a change, it should do so in a separate 

proceeding and should consider the implications of such a change in the context of other route 

and slot restricted proceedings that come before the Department. Delta’s proposal has farreaching policy implications that require far more attention than can be accomplished in the 

aggressive schedule proposed in this slot allocation proceeding. 

The only issue before DOT in the proceeding covered by Order 2013-11-9 is the 

allocation of the American frequencies on a prospective basis. While changing the rules of the 

game on a going forward basis within this proceeding with adequate notice, is possible (but 
4 

inadvisable),2

 changing the conditions associated with already issued and effective authority 

within this proceeding is not permissible under the Administrative Procedure Act. The 

modification of the Department’s standards for already allocated Haneda slots cannot be 

accomplished in this adjudicatory proceeding. The parties to the prior proceedings in this 

docket, including Hawaiian, have invested millions of dollars in reliance upon the terms of those 

awards. Accordingly, adoption of the change proposed by Delta in the middle of this proceeding 

would be arbitrary and capricious. 

 Respectfully submitted. 

 

Jonathan B. Hill 

 J. Parker Erkmann 

 Benjamin Berlin 

 Dow Lohnes PLLC 

 1200 New Hampshire Ave., NW, Ste. 800 

 Washington, DC 20036 

 202/776-2700 

 

Counsel for Hawaiian Airlines, Inc. 

Dated: November 22, 2013 

 

2

 See Nat’l Whistleblower Ctr. v. Nuclear Regulatory Comm’n, 208 F.3d 256, 262 (D.C. 2000) 

(changing “procedures on a case-by-case basis” requires “timely notice to the parties involved.”).