PETITION FORRECONSIDERATION OF ORDER: 2010-12-31

EssentialAirService at PONCE,PUERTO RICO In Re: UNITED STATES OFAMERICA DEPARTMENTOFTRANSPORTATION OFFICE OFTHE SECRETARY

. WASHINGTON, D.C. .. c en I.JJ

MAYAGUEZ, PUERTORICO PONCE,PUERTORICO ) ) ) ) ) ) ) DOCKETDOT-OST-2004-19622 DOCKETDOT-OST-1999-6592 Under49 U.S.C. §41731 etseq.

RichardF. and PamTaylor P.O. Box 288 Mercedita,PR 00715 (340) 626-5049 RichardF. Taylor (340) 626-5638 PamTaylor rft@viprlaw.com paylawl@hotmail.com

FilingIndividuallyas Consumerswith: DocumentaryServicesDivision, U.S. DepartmentofTransportation, 1200NewJersey Avenue, SE.,Washington, D.C. 20590

PETITIONFORRECONSIDERATION OFORDER: 2010-12-31 Richard F. Taylor and Pam Taylor ("Taylors"), with a mailing address ofP.O. Box 288, Mercedita, P.R. 00715, owners ofproperty in Ponce, Puerto Rico and property in St. John, U.S. Virgin Islands, pursuant to 14 C.F.R. Part 325.4(c), hereby respectfully petition the Department of Transportation ("DOT") for reconsideration of the Order issued on December 31, 2010, regarding their decision not to seek solicitation ofproposals for replacement of Essential Air Service ("EAS") between Ponce and San Juan, Puerto Rico, on the basis that JetBlue provides subsidy-free service to connectthe communityto the national airtransportation system.In support oftheirPetition the Taylors state the following:

PERTINENTEAS HISTORY In the DOT'sDecember 31,2010Order, DOT states: "For several years, Mayaguez and Ponce have been handled under the same contract because the communities are on the same island, receiving service provided by the same carrier. However, with respect to this order, we are soliciting proposals for service to Mayaguez only. In addition to the service provided by Cape Air, Ponce receives subsidy-freejet service on a daily basis- on round trip to Orlando and one round trip to New York

- providedbyJetBlue, with 150-seat Airbus A-320 aircraft. That level of service far exceeds Ponce's EAS requirements; therefore, consistent with program practice, we will not seek proposals for replacement service at this time, but, rather, we will rely on JetBlue's subsidy-free service to continue connecting the community to the national air transportation system

....." In the Civil Aeronautics Board EAS Determination for Aguadilla (EAS-645), Mayaguez (EAS-646), and Ponce (EAS-647) issued on October 25, 1979 (CAB 79-10-165) the Board found: "The questionnaires we received from all three communities indicate that the primary destination ofinterest ofall three is the U.S. Mainland. All three responses reveal that travelers from the three Puerto Rico cities are most interested in single-plane service to New York City, Chicago and Miami. 

### However, although we recognize thegreatdemand forservice to theMainland, wefind that the essential air service needs of each of the three communities at issue here are satisfiedby guaranteeing service to SanJuan. While ahighpercentage of localtraffic connectsatSanJuan to Mainlandflights, we do notfind that it is necessary to guarantee access to aMainland hub in order to satisfY the communities' essential air service needs. These travel markets are an importantelementof our analysis and the combined effect ofthe service we will assure as essential, and other services offered without our imposing any requirements, should other services continue to satisfY the overall demand ofthe subject communities. [Emphasis Added] Section 419(f) of the Act defines essential air transportation as "scheduled air transportation ofpersons to a point

....which satisfies the needs ofthe community concerned for air transportation to one or more communities of interest and insures access to the Nation's air transportation system

..." We find, for each of the communities concerned, that San Juan is a point which provides reasonable Page 2 of7noncircuitous access to the cities' main communities ofinterest and to theNation's air transportation system. Moreover, service to San Juan is convenientfrom all three communities, and satisfies their local O&D trafficneedsas well. "{Emphasis Added] The Order further states: "The amount oftraffic generated at Ponce justifies our guarantee ofthe maximum number of available seats allowed under our guidelines. We willguarantee160seats in both directions; i.e., 80 seats in each direction. We will require that a minimum of two daily roundtrips be offeredto San Juan at convenient times, that 80 seats are offered in each direction, and that the service be operatedon anonstop basis. "[EmphasisAdded} Additionally, the Civil Aeronautics Board, under Ponce (EAS-647; Docket 42546), issued an Order on October 4, 1984 (CAB 84-10-15), amending its EAS Determination under Section 419 ofthe Federal AviationAct of 1958, as amended (and show cause the selection ofa carrierto provide essential air service and the setting ofa subsidyrate) stating: "We will continue to designate San Juan as the essential air service hub for the community and, given the level oftraffic and the distance in the market, to require at least two daily nonstop round trips. Service to San Juan will afford Ponce travelers access to theirprimary community of interestandto the nationalairtransportation system in view of the service to the mainlandavailable atthe hub. "[EmphasisAdded} Again, the DOT, under Ponce (EAS-647; Docket 42546), issued an Order on March 27, 1985 (DOT 85-3-76), affirming the decision set forth in CAB Order 84-10-15 to amend the EAS determination for Ponce, Puerto Rico, to require a minimum of two daily nonstop roundtrips to San Juan providing capacity for 25 passengers inbound and outbound each day. [Emphasis Added}It is clear, in the Orders issued by both CAB and DOT that in determining San Juan as the designated hub, EAS was providing scheduled air transportation of persons to a point..

..which satisfies the needs ofthe community concerned for air transportation to one or more communities ofinterest and insures access to the Nation's airtransportation system. Considering Ponce's unique community-ties (commercial, geographical, and political) to its capital, San Juan, CAB and DOT guaranteed EAS to San Juan which not only satisfied its need for access to the national air transportation system, but also provided access to the cities' main communities and at the same time satisfied the community's local O&D traffic needs as well. Title 49 U.S.C.S. §41733

- Level ofbasic essential air service,

- paragraph (a) provides: Page 3 of7"Decisions Made Before October 1, 1988.

- For each eligible place for which a decision was made before October 1, 1988, under section 419 of the Federal Aviation Act of 1958, establishing the level of essential air transportation, the level ofbasic essential air service for that place shall be the level established by the Secretary ofTransportation for that place by not laterthan December29, 1988." Since the initial EAS determination for Ponce was made on October 25, 1979, Title 49 U.S.C.S. §41733(a) is applicable. Additionally, Title 49 U.S.C.S. §41733(e) provides: "Review.

- The Secretary shall review periodically the level of basic essential air service for each eligible place. Based on the review and consultations with an interested community and the appropriate State authority of the State in which the community is located, the Secretary may make appropriate adjustments in the level ofservice, to the extent such adjustments are to a level not less than the basic essential air service level established under subsection (aJfor the airport that serves thecommunity."[EmphasisAdded) Since the October 25, 1979, October 4, 1984, and March 27, 1985 Orders issued in connection with Ponce's EAS designate San Juan as the EAS hub for the community, the Secretary cannot adjust Ponce's vested and grandfathered interest in having San Juan as its EAS designated hub, to a level less than the basic EAS level established by CAB and/or DOT decisions prior to October 1, 1988, without Ponce's express consent. Considering Ponce's unique community-ties (commercial, geographical, and political) to its capital, San Juan, the substitution of Orlando and New York as Ponce's EAS designated service hubs works an impermissiblereduction and adjustment in the established basic EAS level. Regarding choice ofhubs, the regulations are instructive andquoted inpart: 14 C.F.R. §398.2 (2)(c) Which hub? (1) In designatinghubs, the Departmentwill weigh all ofthe following factors: (i) The extent to which candidate hubs provide access to the national air transportation system; (ii) The commercial, geographic, and political ties of candidate hubs to the eligible place; (iii) The traffic levels to candidate hubs, as shown by traffic studies and origin and designation data; (iv) The distance of candidate hubs from the eligible place; and (v) The size ofcandidate hubs. Large size will be a positive factor, but principally as substantiating the access and community-ties factors.

Page 4 of714 C.F.R. 

### § 398.3 Specificailports. (a) At an eligible place, essential air service may be specified as service to a particularairport. Luis Munoz Airport in Carolina (San Juan) has been specified as the ESA hub for Ponce (an eligible place) and this designation is binding and proper. The Orlando, Florida hub is 1,180 miles from Ponce. The New York City (JFK) hub is 1,617 miles from Ponce. San Juan, which is designated a medium hub airport, is approximately 72 miles from Ponce and is the capital, commercial andtourism centerofPuerto Rico.

level: Interestingly, 14 C.F.R. 398.2(3) provides for the possibility ofa two hub EAS service

"In some cases, the Department may require service to two hubs, ofwhich at least one will be a large or medium hub. The Department will require service to two hubs 

### if an eligibleplace has close commercial, geographic, andpolitical ties to both hubs and 

### ifthere is sufficient trafficfrom the eligibleplace to support two round trips a day to both hubs. 

### Iftraffic is not sufficient, the Department may require one round trip a day to both hubs 

### if the communityrequestssuchservice." [EmphasisAdded} In the initial CAB Order determining EAS for Ponce, and in subsequent Orders issuedby CAB and DOT, the basicessentialairservice levelestablishedwas designated as two round-trip non-stop flights to SanJuanAirport. Although JetBlue provides non-stop daily round trip service to Orlando and New York, it does not provide service to San Juan, which forces the communities served by the Mercedita Airport to use surface transportation from Ponce to San Juan, thereby reducing the level of, and adversely affecting, traffic at the Mercedita Airport, thus rendering the Mercedita Airport underutilized. Additionally, JetBlue's flight schedule, i.e. 4:25AM to Orlando, and 6:01AM to NYC (JFK), is, because ofits very early morning departure times, very inconvenient, and sometimes impossible for certain people with night vision and the elderly. Should a person need to get to San Juan, for business, medical, or otherreasons, and is unable, for whateverreason, to drive or ride, the following air flight scenario is an example ofwhat would be available and the cost, without the EAS to SanJuan: JetBlue flight departing Ponce at 4:25AM, arriving in Orlando at 6:27AM, approximately a 2.5 hourflight at the cost of$179.00; Delta flight (only available quick connecting flight back to San Juan) departing Orlando at 7:30AM, arriving San Juan (via a connection in Atlanta, GA) at 3:25PM, approximately a 7 hour flight at the costof$254.30. Page 5 of7This is a total flight time ofapproximately 9.5 hours, at a cost of$433.00 (before taxes and fees)! Compare the above flight times and costs to air service currently provided by Cape Air between Ponce/San Juan at the cost of$56.50 ($50.30 with commutertickets), with in-flight time at approximately 30 minutes, and the choice to fly either at 7:30AM, 9:55AM, 12:35PM, or 3:55PM. As owners ofproperty in Ponce, Puerto Rico and St. John, US Virgin Islands, we have in the past occasionally used, and more recently began to regularly (weekly) utilize the Ponce/San Juan/St. Thomas flight. Without this most convenient transportation between the islands we would be forced to drive the grueling, stressful drive to the San Juan Airport, fighting traffic, and paying tolls and the extravagant cost ofparking ($23/first night, $12 for each night after the first), or in the alternative use the JetBlue flight scenario above, increasing our time spent and costoftravelingto the nearby island ofSt. Thomas (68 miles). In addition to the cost and inconvenience ofthe loss ofthe Ponce/San Juan connection, we feel the loss ofthis connection is detrimental not only Ponce, but the communities ofthe Region del Surfor several reasons, including, butnot limited to the following:

• Loss oftourism • Loss ofeconomic growth • Loss ofconvenientair access to specializedmedical facilities • Loss convenient access to inter and down-island airtravel connections • Loss ofthe only source of"public" transportation between Ponce and San Juan • Restriction ofdirect, non-stop flights to US Mainland only (ie Orlando and NYC); no-interisland connection • Loss ofchoice or selection ofairlines (monopoly?) • Loss ofconvenient connection to commercial, geographical, and political community-ties to its capital city, SanJuan From San Juan, after a 25 minute flight from Mercedita (leaving/arriving at reasonable hours), residents ofand visitors to Ponce and southernPuerto Rico may conveniently do business in the capital and return or connect to multiple locations throughout the continental United States, destinations inthe Caribbeanbasin, Central-South America andEurope. The original CAB decision setting the level ofservice was rendered under Section 419 of the Federal Aviation Act as then in effect. This decision remains in effect in setting the level of service, inclusive ofthe designation ofSan Juan as the service hub. Ponce is entitled to all the benefits ofthat decision and the Secretary may not alter this designation by removing San Juan as the relevant service hub without violating the provisions of49 U.S.C.S. §41733(a) and 49 U.S.C.S. §41733(e). The hubs ofOrlando and New York are at least five times as distant from Ponce as the average EAS eligibleplace to its respective LIMhub. Page 6 of7In light ofthe foregoing, the relevantroute to considerwhen assessing EAS service needs for Ponce and southern Puerto Rico generally is Mercedita-San Juan and fact that unsubsidized service may also provided to remote mainland hubs is not material to a DOT EAS decision to solicit, orin this case not solicit, EAS proposals. Wherefore, petitioners respectfully request that Order# 2010-12-31, insofar as it fails to request proposals for Ponce, be withdrawn and, after a period ofpublic comment, a new order Requesting Proposals for Ponce be issued by the Department. Datedat Ponce, Puerto Rico this 10th day ofFebruary, 2011.



## s/Pam Taylor Pam Taylor 

## s/Richard F. Taylor RichardF. Taylor

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