\\\DC - 040601/000003 - 3160771 v1 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, DC

Applications of

REPUBLIC AIRLINE INC. AIRTRAN AIRWAYS, INC. SOUTHWEST AIRLINES CO. SUN COUNTRY AIRLINES US AIRWAYS, INC. for two “within-perimeter” slot exemptions at Ronald Reagan Washingt on National Airport Docket DOT-OST-2000-7182

MOTION OF REPUBLIC AIRLINE INC. TO STRIKE UNAUTHORIZED REPL Y OF SOUTHWEST AIRLINES CO. Communications with respect to this document should be addressed to:

Scott L. Durgin Vice President, Administration REPUBLIC AIRWAYS HOLDINGS, INC. 8909 Purdue Road Indianapolis, Indiana 46268

Daniel Shurz Vice President, Planning and Strategy REPUBLIC AIRWAYS HOLDINGS, INC. Frontier Center One 7001 Tower Road Denver, CO 80249

October 27, 2010 Robert E. Cohn Patrick R. Rizzi HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 +1 202 637 4999/5659 robert.cohn@hoganlovells.com patrick.rizzi@hoganlovells.com

Counsel for REPUBLIC AIRLINE INC.Page

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1 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, DC

Applications of

REPUBLIC AIRLINE INC. AIRTRAN AIRWAYS, INC. SOUTHWEST AIRLINES CO. SUN COUNTRY AIRLINES US AIRWAYS, INC. for two “within-perimeter” slot exemptions at Ronald Reagan Washingt on National Airport Docket DOT-OST-2000-7182 October 27, 2010

MOTION OF REPUBLIC AIRLINE INC. TO STRIKE UNAUTHORIZED REPL Y OF SOUTHWEST AIRLINES CO.

Republic Airline Inc. (“Republic”) hereby moves to strike the improper and unauthorized “Reply” of Southwest Airlines, which was served on Republic at 11:40 p.m. on October 26, eleven days after the record in the proceeding closed. The Department did not provide for replies in the Notice estab lishing this slot exemption allocation proceeding, and Southwest has utterly failed to show good cause why it should be granted such relief. Accordingly, the Department should strike Southwest’s unauthorized reply. I. Southwest Should Not Be Pe rmitted To Make Its Own Rules. Although Southwest could perhaps be fo rgiven for not knowing the ground rules for this proceeding given the fact that it has never before parti cipated in a DCA slot exemption allocation proceeding, the Department should reject Southwest’s effort to play by its own, self-serving rules. The Department’s regul ations provide: “Except as otherwise provided, a reply to an answer, r eply to a reply, or any further responsivePage

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2 document is not authorized.” 14 C.F.R. 302.6(b). And, in this case, although Southwest’s latest submission is styled a “repl y” (not a motion for leave to file, as the rules require), the Department’s Notice clearly did not provide for replies. “Completed applications must be filed in Docket DOT-OST-2000-7182 by September 30, 2010, and comments with respect to any timely filed request for slot exemptions must be filed by October 15, 2010.” (Notice: Establishment of Slot Exemption Proceeding, dated Aug. 30, 2010.) The permitted briefing for this proceeding wa s crystal clear: an Application and an Answer. Southwest and the other applicant-c arriers, including Republic, have made those submissions, the record is closed, and it is now for the Department to evaluate

them and render its decision. If Southwest desired the opportuni ty for a reply, it should have petitioned the Department to provide for replies when the Notice was served in early September, before the proceeding began, but it did not do so. It is not for Southwest now – after the briefing is complete and the record closed– to modify the Assistant Secretary’s August 30 th Notice to serve its own interests. Beyond the fact that the Department’s Notice and its own regulations do not provide for any “replies,” Southwest’s latest submission also fails to demonstrate any “good cause” to justif y its unauthorized reply. Southwest claims that its unauthorized reply is “narrowly tailored to factual inac curacies and improper statements raised in other parties’ answers.” (Sout hwest Unauthorized Reply, at 1.) Although this language is sometimes successfully parroted by carriers in other proceedings, when the Department peels back the layers of Southwest’ s rhetoric, it is clear that Southwest’s unauthorized submission is not narrowly tailor ed to correct factual inaccuracies or improper statements, but rather it is an improper and unfair attempt to get the last wordPage

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3 and shore up its inferior servic e proposal in light of the substantive comments properly made in answers by the other applicant-carriers. 1 In sum, the purported basis for accepting this unauthorized reply is simply unfounded and without merit. For example, Southwest takes issue with Republic’s claim that the Republic fare data reported by Southwest was tainted by US Airways’ higher fares in the DCA – MCI market. (Southwest Unauthoriz ed Reply, at 3-4.) Howeve r, in the same paragraph, Southwest concedes that Republic’s fares we re lower than the average in the market because of US Airways’ higher fares. No factual inaccuracy there. Southwest also argues that Republic/Fr ontier’s fares for government travelers under the City-Pair Progr am are “irrelevant.” (Southwes t Unauthorized Reply, at 4-5.) Republic, of course, disagrees with Southwest’ s position on the relevancy of these fare data, but, for present purposes, that is beside the point: Southwest does not and cannot claim that Republic/Fr ontier is not the selected ca rrier for FY 2011 for DCA – MCI under the GSA City-Pair pr ogram or that the fares re flected in Exhibit 1 to Republic’s Application are inaccurate . No factual inaccuracy there. Southwest also takes issue with Republic ’s reference to the Department’s own Airline Consumer Air Fares Report showing a $161 average fare for Southwest between BWI and MCI. (Southwest Unauthorized Reply, at 5.) Southwest does not say that the reference or the reported fare was inaccura te, rather it takes issue with how it is compared to other fares. There is simply no assertion of factual inaccuracy there either,

and it is the same with the rest of Southwest’s unauthorized submission and its consultant’s unauthorized report.

1 The notion that it is narrowly tailored is under cut by the fact that Southwest took nearly two weeks to make this submission and even added an unaut horized report from its hired consultant to its unauthorized reply.Page

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4 In sum, there are no factual inaccuraci es being corrected by Southwest in its latest filing. That is an excuse in a ve iled effort to justify an otherwise unauthorized submission aimed at further arguing t he merits of its own application. Accepting Southwest’s unaut horized “reply” would give Southwest an unfair advantage and be highly prejudicial to the other applicants who have followed the Department’s procedural ground ru les. Southwest – like the other applicant-carriers – should play by the rules. Allowing Sout hwest’s unauthorized filing would open the door

to an endless series of rebuttal submissions. II. Conclusion. For the reasons set forth above, the Department should strike Southwest’s unauthorized reply from this proceeding. If the Department nonetheless decides to consider that pleading, it shoul d issue a notice inviting the other carrier-applicants (but not Southwest who has already filed) to file replies within two w eeks from the date of

such notice.

Respectfully submitted:

_____________________ Robert E. Cohn Patrick R. Rizzi Hogan Lovells US LLP