UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

IN RE MATTER OF COMPLIANCE 

WITH FEDERAL OBLIGATIONS BY 

THE CITY OF DALLAS, TEXAS 

FAA Docket No. 16-15-10 

RESPONSE OF THE CITY OF DALLAS TO THE NOTICE OF 

INVESTIGATION AND MOTION TO DISMISS THE NOTICE OF INVESTIGATION 

Designation of persons to receive service for the City of Dallas, Texas: 

CHARLES ESTEE 

Assistant City Attorney 

PETER B. HASKEL 

Executive Assistant City Attorney 

7BN Dallas City Hall 

1500 Marilla Street 

Dallas, Texas 75201 

charles.estee@dallascityhall.com 

peter.haskel@dallascityhall.com 

Telephone: 214/670-3519 

Facsimile: 214/670-0622 

Peter J. Kirsch 

W. Eric Pilsk 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Avenue, N.W. 

Suite 800 

Washington, DC 20036 

pkirsch@kaplankirsch.com 

epilsk@kaplankirsch.com 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 
i 

TABLE OF CONTENTS 

Page 

INTRODUCTION ........................................................................................................................1 

I. LEGAL CONTEXT ..........................................................................................................4 

A. The Wright Amendment And The Unique History Of Love Field .......................4 

B. The Five-Party Agreement ....................................................................................5 

C. The Wright Amendment Reform Act ...................................................................6 

D. Airline Use and Lease Agreement Terms ............................................................7 

E. The Combined Effect Of WARA, Five-Party Agreement, And 

Lease On The City’s Federal Obligations And The FAA’s 

Enforcement Authority .........................................................................................9 

II. FACTUAL BACKGROUND .........................................................................................10 

A. Love Field Since The Wright Amendment Reform Act .....................................10 

B. Initial Efforts To Accommodate Delta (September – October 2014) .................13 

C. The City Seeks The DOT’s Guidance (October 2014) .......................................17 

D. The City’s Attempt To Establish Mandatory Accommodation 

Procedures Is Met With Airline Objections (November 2014) ..........................19 

E. The City Seeks Additional Guidance From The DOT (November 

2014) ...................................................................................................................23 

F. The City Facilitates Further Accommodation In December 2014 ......................27 

G. The DOT December 17, 2014 Letter To The City ..............................................33 

H. The City’s Extension Of The Deadline For Accommodating Delta 

To February 28, 2015 And Additional Negotiations Between The 

Airlines ................................................................................................................36 

I. DOJ’s HSR Act Review Of The Proposed United-Southwest 

Sublease, Consultation With DOJ On The Sublease, DOJ’s NonObjection, And The City’s Approval Of The Sublease in January 

2015.....................................................................................................................39 

J. The City Seeks Further Guidance From DOT/FAA, But DOT/FAA 

Again Fails To Provide The Needed Legal Directive .........................................41 

K. Southwest Announces Expanded Service, American Requests 

Accommodation, And Delta Makes A Second Accommodation 

Request In February 2015 ...................................................................................43 

L. Southwest Sues The DOT In February 2015 Challenging The First 

DOT Letter ..........................................................................................................45 
ii 

M. The City Requests The DOT’s Guidance On Remaining 

Accommodation Questions In February 2015 ....................................................46 

N. The City Proposes Revised Accommodation Procedures Based On 

The DOT’s Advice That Are Again Opposed By The Airlines 

(April 2015) ........................................................................................................47 

O. The DOT’s Second Letter To The City On June 15, 2015 .................................49 

P. Faced With Uncertainty and Impending Lawsuits, The City Seeks 

Guidance From The District Court ....................................................................51 

Q. Further Temporary Accommodation ..................................................................52 

R. Summary Of Litigation Status ............................................................................53 

ARGUMENT ..............................................................................................................................55 

I. THE NOTICE OF INVESTIGATION MUST BE DISMISSED 

BECAUSE THE FAA LACKS JURISDICTION .........................................................55 

A. Resolving The Accommodation Controversy Requires Resolving 

Disputes Over The Meaning Of The Gate Accommodation Clause ...................56 

B. The FAA Lacks Jurisdiction Over Disputes Regarding The 

Meaning Of Contracts Such As The Lease .........................................................59 

C. The FAA Lacks Jurisdiction Because WARA Is Not One Of The 

Statutes Included Within The FAA’s Part 16 Jurisdiction ..................................62 

D. WARA Further Narrows The FAA’s Jurisdiction With Respect To 

The Gate Accommodation Clause ......................................................................63 

E. The FAA Lacks Jurisdiction Because The FAA Cannot Order 

Action Inconsistent With The Lease As Construed By The District 

Court ...................................................................................................................65 

II. EVEN IF THE FAA HAS JURISDICTION, THE NOI MUST BE 

DISMISSED AS PREMATURE AND UNRIPE ...........................................................66 

III. ASSUMING THE FAA HAS JURISDICTION AND THAT THE CASE 

IS RIPE, THE CITY IS IN COMPLIANCE WITH ITS GRANT 

OBLIGATIONS ..............................................................................................................72 

A. The City Has Demonstrated That It Understands Its 

Accommodation Obligations ..............................................................................73 

B. The City Has A Plan To Meet Its Accommodation Obligations ........................75 

C. The City Is Carrying Out Its Plan To Comply With Its 

Accommodation Obligations ..............................................................................76 

D. The City Has No Outstanding Compliance Violations .......................................77 

E. Conclusion: The City Currently Complies With Its Grant 

Obligations ..........................................................................................................77 
iii 

IV. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND 

EVEN IF THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY 

OBLIGATIONS UNDER ASSURANCE 22 .................................................................78 

A. Delta Has Been Continuously Accommodated And Has Not Been 

Denied Access To Love Field .............................................................................79 

B. The City Is Not In Violation Of Assurance 22 Just Because It Has 

Not Yet Had To Make A Final Accommodation Decision .................................81 

V. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND 

EVEN IF THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY 

OBLIGATIONS UNDER ASSURANCE 23 .................................................................87 

VI. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND 

EVEN IF THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY 

OBLIGATIONS UNDER ASSURANCE 39 .................................................................90 

VII. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND 

EVEN IF THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY 

GRANT OBLIGATIONS BY CONSENTING TO UNITED’S 

SUBLEASE TO SOUTHWEST OR DUE TO SEAPORT’S 

DEPARTURE .................................................................................................................93 

CONCLUSION .............................................................................................................100 

CERTIFICATE OF SERVICE .....................................................................................101 
1 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

IN RE MATTER OF COMPLIANCE 

WITH FEDERAL OBLIGATIONS BY 

THE CITY OF DALLAS, TEXAS 

FAA Docket No. 16-15-10 

RESPONSE OF THE CITY OF DALLAS TO THE NOTICE OF 

INVESTIGATION AND MOTION TO DISMISS THE NOTICE OF INVESTIGATION 

The City of Dallas submits this Response and Motion to Dismiss pursuant to 14 C.F.R. 

§ 16.103 to the Federal Aviation Administration’s (“FAA”) Notice of Investigation In The 

Matter Of Compliance With Federal Obligations By The City of Dallas FAA Docket No. 16-15-

10 (“NOI”). 

INTRODUCTION 

For more than 13 months, the City of Dallas (the “City”) has worked continuously and 

tirelessly to resolve a seemingly intractable controversy between and among Southwest Airlines, 

Delta Airlines, and the Department of Transportation (“DOT”) and the FAA. At the heart of this 

controversy is a dispute over the meaning of the scare resource provision of the Airport Use and 

Lease Agreement (the “Lease”), including Section 4.06(F) of the Lease (the “Gate 

Accommodation Clause”), which defines the City’s obligation to accommodate “new entrant” 

airlines at gate-constrained Dallas Love Field (“Love Field”). Congress has approved the scare 

resource provision of the Lease as the means to accommodate new entrants in the Wright 

Amendment Reform Act of 2006, Pub. L. 109-352, 120 Stat. 2011 (2006) (“WARA”), and 
2 

prohibited the FAA and any other federal agency from changing the Gate Accommodation 

Clause’s provisions or requiring the City to act inconsistently with that Clause. The FAA itself 

has approved the Gate Accommodation Clause as the means to assure competitive access to 

Love Field when the FAA approved the City’s Competition Plan for Love Field. 

Throughout this controversy, the City has been committed to fulfilling its obligations 

under the Gate Accommodation Clause. In the face of legal disputes over the meaning of that 

Clause, including threats of litigation from both Delta and Southwest, the City first sought 

binding legal guidance from the DOT and the FAA (collectively, “DOT/FAA”) over the meaning 

of the Gate Accommodation Clause. For months, the City repeated its requests for that guidance, 

but DOT/FAA was unable to provide it. Next, the City turned to the courts and filed a 

declaratory judgment action in the U.S. District Court for the Northern District of Texas (the 

“District Court”) seeking a ruling on the City’s obligations under the Gate Accommodation 

Clause. When the District Court rules, the City will be in a position to make a final decision 

regarding the accommodation of Delta. In the meantime, the City has used its legal and moral 

authority to assure that Delta has been continuously accommodated at Love Field. 

This NOI is a belated effort by the FAA to reassert the jurisdiction it failed to exercise 

previously in apparent retaliation for the City seeking judicial guidance to resolve a controversy 

the FAA previously refused to resolve. Worse, the NOI suggests that the City is somehow acting 

improperly by seeking to enforce the terms of the Gate Accommodation Clause even though both 

Congress and the FAA itself have embraced the Gate Accommodation Clause as the sole means 

to accommodate new entrants given the unique legal and physical constraints at Love Field. 

Aside from being filed too late to be helpful, the NOI is prohibited, premature, and without legal 

merit, and must be dismissed. 
3 

The NOI is prohibited and should be dismissed because the FAA lacks jurisdiction to (1) 

adjudicate the contractual disputes over the meaning of the Gate Accommodation Clause, (2) 

adjudicate a dispute that is governed by WARA, which displaces the Grant Assurances with 

respect to accommodation obligations under the Lease, (3) interfere with the District Court’s 

jurisdiction and authority, or (4) formulate a remedy that would compel the City to either alter 

the terms of the Lease or act contrary to the terms of the Lease, both of which are statutorily 

barred by WARA. 

The NOI is premature and should be dismissed because Delta has been continuously 

accommodated and the City has not denied Delta accommodation or adopted or applied a final 

accommodation policy.1

 Until the City does so, the controversy will not be ripe for adjudication 

under Part 16, even if the FAA had jurisdiction, which it does not. 

The NOI is unnecessary and should be dismissed because the key legal issues were 

presented to the District Court before the NOI was filed and will be resolved by the District 

Court in the pending declaratory judgment action to which DOT/FAA is a party. Once the 

District Court rules, the City will be able to implement a legally binding accommodation policy 

and make decisions on pending accommodation requests. Conducting this investigation now is 

at best an unnecessary distraction because the controversy will be resolved by the District Court 

and at worst a recipe for conflicting legal rulings from the FAA and the District Court. 

Finally, even if there were some basis for the FAA to conduct an investigation, the NOI is 

baseless because the City is in compliance with any federal obligations that might apply. The 

 

1

 Although not identified as an issue in the Notice of Investigation, American Airlines 

(“American”) has made a request for accommodation and Delta later made a second 

accommodation request, both as discussed below. These later requests are among the issues 

pending before the District Court and the City will act upon them following and based upon the 

District Court’s final decision. 
4 

City is currently in compliance because it understands that the Lease and WARA impose a 

certain obligation to accommodate new entrants, has a plan to resolve the current controversy by 

seeking a binding legal ruling from the District Court, and is actively pursuing that ruling, which 

will allow the City to act on Delta’s accommodation request, all while continuously 

accommodating Delta pending the District Court’s decision. 

Moreover, the City has neither denied Delta access in violation of Grant Assurance 22 

nor created an exclusive right under Grant Assurance 23 because Delta has been continuously 

accommodated and any final accommodation decision will apply the Gate Accommodation 

Clause as provided in WARA, the City’s Competition Plan, and pursuant to the District Court’s 

legal rulings. The FAA cannot order the City to do more. The City has complied with its 

obligations under Grant Assurance 39 by providing the FAA with more information than 

required by Assurance 39, providing that information sooner than required by Assurance 39, and 

seeking direct FAA assistance above and beyond what is required by Assurance 39. The City 

did not violate Grant Assurances 22 or 23 by consenting to Southwest’s sublease of United’s 

gates because the (1) City’s consent did not change, legally or practically, the ability of any new 

entrant to be accommodated at Love Field, (2) neither the DOT nor DOJ objected to, or claimed 

any adverse impact from, the sublease, and (3) the City had no lawful basis by which it could 

withhold its consent under the Lease. Finally, the City did not fail to accommodate SeaPort. 

SeaPort secured a voluntary accommodation itself and later left Love Field for independent 

business reasons and without asking the City to force an accommodation. 
5 

I. LEGAL CONTEXT 

A. The Wright Amendment And The Unique History Of Love Field 

For the 35 years before October 13, 2014, Love Field was subject to the unique 

restrictions on service imposed by the Wright Amendment in 1979.2

 The Wright Amendment 

was intended to protect the economic viability of the recently-constructed Dallas-Fort Worth 

Airport (“DFW”) by restricting airline nonstop flights by aircraft with more than 56 seats to and 

from Love Field to a service area comprising Texas and its four surrounding states. Over the 

years, the Wright Amendment was the subject of ongoing controversy and litigation. In 1998, 

Congress adopted the Shelby Amendment, which added three additional states that could be 

served directly from Love Field. By the early 2000s, changes in the aviation industry and market 

forces made it clear that the Wright Amendment was outdated. In 2006, in response to litigation 

and various proposed Congressional actions, a number of members of Congress instructed the 

Cities of Dallas and Fort Worth to work together to present a local solution to the problem of 

access to and routes from Love Field to replace the Wright Amendment. 

B. The Five-Party Agreement 

In 2006, the City of Dallas, City of Fort Worth, the DFW Board, Southwest Airlines 

(“Southwest”) and American entered into a “Five-Party Agreement” under which the parties 

agreed to seek a congressional repeal of the Wright Amendment and to change to the manner in 

which service would be provided at Love Field.3

 The Five-Party Agreement was a compromise 

and agreement to end the flight restrictions at Love Field imposed by the Wright Amendment. 

 

2

 Pub. L. 96-192 (the International Air Transportation Act of 1979) § 29. 

3 See Exhibit 1, Contract Among the City of Dallas, the City of Fort Worth, Southwest 

Airlines Co., American Airlines, Inc., and DFW International Airport Board Incorporating the 

Substance of the Terms of the June 15, 2006 Joint Statement Between the Parties to Resolve the 

“Wright Amendment” Issues (June 11, 2006).
6 

Among its provisions, the Five-Party Agreement reduced the gates from the then-existing 

32 gates to 20 gates, restricted hours of operations, prohibited the use of hardstands, and 

prohibited international flights from originating at Love Field. Five-Party Agreement ¶¶ 2, 3. It 

also provided that Southwest would obtain preferential use of 16 gates and American and 

ExpressJet Airlines (later acquired by United Airlines (“United”)), would each obtain 

preferential use of two gates at Love Field. Id. ¶ 3.b. Southwest also agreed not to operate at 

DFW unless it surrendered a gate at Love Field for each DFW gate it acquired, up to eight gates. 

Id. ¶ 10. Recognizing that limiting gate capacity at Love Field and providing that all 20 gates 

would be leased by incumbent airlines would limit the ability of new entrant airlines to operate at 

Love Field, the Five-Party Agreement addressed how new entrants would be accommodated: 

“To the extent a new entrant carrier seeks to enter Love Field, [the City] will seek voluntary 

accommodation from existing carriers” but if an agreement was not reached then the City agreed 

“to require the sharing of any preferential lease gates, pursuant to the terms of existing lease 

agreements.” Id. ¶ 3.b. As discussed below, the then-existing lease agreements included a 

specific process to accommodate new entrants. 

C. The Wright Amendment Reform Act 

Congress enacted WARA on October 13, 2006, which adopted many of the terms of the 

Five-Party Agreement as federal law, although other provisions of the Five-Party Agreement 

remain in force as contractual obligations independent of WARA.4

 The statute repealed the 

Wright Amendment’s limitations on long-distance domestic flights, with the repeal becoming 

effective in October 2014. WARA § 2(b). WARA also implemented the Five-Party Agreement 

by requiring the City to reduce the number of gates at Love Field from the then-existing 32 gates 

to 20 gates “as soon as practicable.” Id. § 5(a). 

 

4

 Pub. L. 109-352, 120 Stat. 2011 (October 13, 2006). 
7 

WARA expressly limits the FAA’s enforcement and compliance authority at Love Field, 

including the gate accommodation issues in the FAA’s NOI. Specifically, WARA prohibits the 

FAA from requiring the City to modify or eliminate preferential gates leases unless the change is 

implemented nationally by the FAA. See id. § 5(e)(2)(B)(ii). Thus, WARA defines the scope of 

the City’s accommodation obligations under federal law, including Grant Assurance obligations. 

WARA states, “[t]o accommodate new entrant air carriers, the city of Dallas shall honor the 

scarce resource provision of the existing Love Field leases.” WARA § 5(a). WARA then 

provides: 

Notwithstanding any other provision of law, the Secretary of 

Transportation and the Administrator of the Federal Aviation 

Administration may not make findings or determinations, issue 

orders or rules, withhold airport improvement grants or approvals 

thereof, deny passenger facility charge applications, or take any 

other actions, either self-initiated or on behalf of third parties . . . 

that are inconsistent with [the Five-Party Agreement] . . . . 

Id. § 5(d)(1). Further, although Section 5(e)(1)(E) states that WARA does not “limit the 

authority of the [FAA] . . . to enforce requirements of law and grant assurances,” WARA “shall 

not be construed to require the city of Dallas, Texas . . . to modify or eliminate preferential gate 

leases with air carriers in order to allocate gate capacity to new entrants or to create common use 

gates, unless such modification or elimination is implemented on a nationwide basis.” Id. 

§ 5(e)(2)(B)(ii). Also, WARA provides that “any actions taken by the parties to [the Five-Party 

Agreement] that are reasonably necessary to implement its provisions, shall be deemed to 

comply in all respects with the parties’ obligations under title 49, United States Code.” Id. 

§ 5(d)(2). Therefore, WARA’s expressed language makes clear the Grant Assurances do not 

require the City to modify or eliminate preferential gate leases at Love Field in order to 

accommodate a requesting airline. 
8 

In 2009, after the passage of WARA, and the execution of the lease agreements with the 

airlines, the City submitted to the FAA an updated Competition Plan pursuant to 49 U.S.C. 

§ 40117(k).5

 The Competition Plan provides that the City will address requests by new entrant 

airlines for gate space at Love Field pursuant to the Gate Accommodation Clause in the Lease.6

 

The FAA accepted the City’s Competition Plan, without comment or objection.7

 

D. Airline Use and Lease Agreement Terms 

The City has Leases with Southwest, American, and United under which the signatory 

airlines lease specific space at Love Field. These Leases are virtually identical.8 Lease Section 

4.06(C) states that a leasing airline has preferential use of its leased gates and “in no event shall 

said use by others take precedence over Airline’s scheduled use.” Section 4.06(F) (the “Gate 

Accommodation Clause”) states that the parties to the Lease agree that the Love Field facilities 

may become a scarce resource if a new entrant airline (“Requesting 

Airline”) requests to provide service at [Love Field]. In such 

circumstances, Airline agrees to accommodate such Requesting 

Airline at its Leased Premises at such times that will not unduly 

interfere with its operating schedule and upon such reasonable 

terms as may be agreed upon between Airline and the Requesting 

Airlines, taking into consideration all the circumstances of such an 

accommodation agreement. 

Id. § 4.06(F). This Gate Accommodation Clause, which is part of the “scarce resource 

provision” of the Five-Party Agreement, is statutorily-enforceable through WARA, which states, 

 

5

 Exhibit 2, Competition Plan (June 3, 2009). 

6 Id. at 5. 

7 See Exhibit 3, Letter from B. De Leon, FAA, to D. Weber, City (Oct. 15, 2009) 

(approving 2009 Competition Plan update Love Field). 

8

 Because the leases are virtually identical, the City has attached as an exhibit only one 

lease to this response. See Exhibit 4, Amended and Restated Lease of Terminal Building 

Premises by and between the City of Dallas and Southwest Airlines Co. (Feb. 13, 2009). 

Citations to the Lease refer to the Exhibit 4. 
9 

“the city of Dallas shall honor the scarce resource provision of the existing Love Field leases.” 

WARA § 5(a). 

If a voluntary accommodation cannot be reached, the City may select a leasing airline to 

accommodate the requesting airline. Any accommodation is subject to the condition that: “In 

case of a conflict between schedules of the Signatory Airline and the Requesting Airline, the 

Signatory Airline will have priority in use of its personnel and its Leased Premises.” Lease 

§ 4.06(F)(4)(a). The Lease is subordinated to any requirement imposed on the City by the Grant 

Assurances and, to the extent relevant, the Assurances are considered part of the lease, “but only 

to the extent, that the provisions of any such agreements are required generally by the United 

States at other civil airports receiving federal funds.” Lease § 14.09.

E. The Combined Effect of WARA, The Five-Party Agreement, And The Lease 

On The City’s Federal Obligations And The FAA’s Enforcement Authority 

WARA, the Five-Party Agreement, and the Lease establish significant restrictions on the 

FAA’s Grant Assurance enforcement authority at Love Field, and the FAA has no other avenue 

for enforcement in this context. WARA provides that if the City or any party to the Five-Party 

Agreement takes actions reasonably necessary to implement that agreement, those actions are 

deemed in compliance with Title 49. See WARA § 5(d)(1). Moreover, implementation of the 

Five-Party Agreement is dependent on implementation of the Lease. “To accommodate new 

entrant air carriers, the city of Dallas shall honor the scarce resource provision of the existing 

Love Field leases.” WARA § 5(a). Thus, WARA limits the FAA’s authority under Title 49 to 

the extent that the exercise of such authority would be inconsistent with WARA, the Five-Party 

Agreement, and the Lease. Id. § 5(d)(1). 

This explicit restriction on FAA’s authority is reinforced by the legal decisions 

addressing this issue. In Love Terminal Partners, L.P. v. City of Dallas, Tex., 527 F.Supp.2d 
10 

538, 559 (N.D. Tex. 2007), the Northern District of Texas held that the language in § 5(d)(1) of 

WARA was a “directive to the Federal Aviation Administrator not to frustrate performance of 

the [Five-Party Agreement].” Id. at 559. The Court held that WARA limits the FAA’s powers 

under Title 49, directing the FAA “not [to] make findings or determinations, issue orders or rules 

. . . or take any other actions” that are inconsistent with or challenge the legality of any provision 

of the Five-Party Agreement. Id. at 559 (emphasis added). Likewise, in Love Terminal Partners 

v. United States, 97 Fed. Cl. 355, 406 (2011), the Court of Federal Claims held that “Congress by 

incorporating [the Five-Party Agreement] into WARA, rendered the obligations set forth in the 

[Five-Party Agreement] matters of federal law” and “Congress reinforced its intention to 

incorporate the [Five-Party Agreement] into federal law by ensuring that DOT and FAA 

policymaking does not affect any of the provisions contained therein.” Id. at 415. 

II. FACTUAL BACKGROUND 

A. Love Field Since The Wright Amendment Reform Act 

The City owns and operates Love Field in Dallas, Texas. For decades, operations at Love 

Field were restricted by the so-called Wright Amendment. As stated above, in October 2014, 

under WARA, the most significant restrictions under the Wright Amendment, such as the 

prohibition against longhaul domestic flights from Love Field by full-size passenger aircraft, 

were repealed but a new limitation was imposed on the number of gates at Love Field. The City 

was required to reduce the number of gates from 32 to 20 gates. 

The City has Lease agreements running through 2028 with Southwest, United, and 

American for the preferential use of the 20 gates at Love Field and for the use of other airport 
11 

facilities.9

 Certain of the rights provided by the Leases have been transferred to other airlines, as 

explained below. 

American and Virgin. American originally leased two gates in the new Love Field 

terminal.10 In 2013, US Air and American’s parent corporation, AMR Corp., announced plans to 

merge. DOJ and six state attorneys general and the District of Columbia filed a civil antitrust 

lawsuit challenging the proposed merger. In November 2013, as part of a settlement of the 

pending action, DOJ required US Air and AMR to divest slots and gates at various airports 

across the country.11 The settlement agreement, which was embodied in a federal district court 

judgment, required divestment of American’s two gates at Love Field.12 Delta, Southwest, and 

Virgin America Inc. d/b/a Virgin America Airlines Inc. (“Virgin”) each made proposals for 

American’s lease rights to the two gates. DOJ recommended that American’s gates at Love 

Field be subleased to Virgin.13 Accordingly, in 2014, the two American gates at Love Field were 

sublet to Virgin following the City’s consent.14 On or about October 13, 2014, Virgin started 

commercial passenger operations at Love Field.15 Representatives of DOJ have informed the 

City that Virgin is not subject to any accommodation requirement under the Lease for a 

 

9

 Exhibit 5, Joint Stipulations of Fact and Evidence between Southwest, Delta, and the 

City, at 4, No. 46, City of Dallas v. Delta Air Lines, Inc., Case No. 3:15 cv-02069-K (N.D. Tex. 

Sept. 28, 2015) (“Joint Stipulations”). When the preferential use Lease expires at the end of 

2028, the gates will convert to common use gates. 

10 Id. at 4, No. 39, 43. 

11 Id., No. 49. 

12 Id. 

13 Id., No. 51. 

14 Id., No. 52. 

15 Id. at 5, No. 54. 
12 

reasonable period that shall be approximately one year from the start of its operations at Love 

Field, in order to allow Virgin time to solidify its position at Love Field.16 

United. Continental Airlines, Inc. acquired rights to the two gates allocated to ExpressJet 

at Love Field. In 2010, the City amended and restated a pre-existing Lease with Continental for 

ExpressJet’s two gates.17 Continental later merged with United, and United is now the City’s 

lessee for the two gates at Love Field initially allocated to ExpressJet.18 In 2014, United elected 

to cease current flight operations at Love Field and initially entered into a gate use agreement 

with Southwest on September 18, 2014.19 Subsequently, United subleased its gates to 

Southwest, to which the City consented on January 28, 2015.20

Southwest. Southwest operates at Love Field from a total of 18 gates: the 16 gates that it 

leases directly plus the two gates it subleases from United.21

Delta. In July 2009, Delta began operating at Love Field by subleasing a gate on a 

month-to-month basis from American Airlines.22 In mid-2014, American informed Delta that it 

would terminate the sublease effective October 12, 2014, with the effect that Delta would be 

 

16 Affidavit of Peter B. Haskel (“Haskel Affidavit”), submitted concurrently with this 

Response, ¶ 21. Virgin and SeaPort Airlines, Inc. (“SeaPort”) entered into a voluntary gate use 

agreement in 2014 under which SeaPort had two daily flights operating from Virgin’s subleased 

gates. See Exhibit 6, Letter from T. Sieber, SeaPort, to W. Ernst, City at 1 (Nov. 19, 2014). In 

the summer of 2015, SeaPort elected to end its Love Field service and relocated its Texas 

operations to Houston. See infra at 98-99. 

17 Exhibit 7, Amended and Restated Lease of Terminal Building Premises (Airport Use 

and Lease Agreement) by and between the City and Continental Airlines Inc. (Feb. 22, 2010). 

18 Exhibit 5, Joint Stipulation at 5, No. 55. 

19 Exhibit 8, Gate Use License Agreement between United Airlines, Inc. and Southwest 

Airlines Co. (September 18, 2014). 

20 Exhibit 9, City’s Consent to Sublease between United and Southwest (Jan. 28, 2015). 

21 Exhibit 5, Joint Stipulation at 5, No. 61. 

22 Id. at 4, No. 44. 
13 

without any gate rights at Love Field.23 While the accommodation of Delta is the principal 

subject of this proceeding, it is critical to recognize that Delta has been operating continuously at 

Love Field since 2009 and at no time has it been denied access. 

Current Gate Usage. As a result of leases, subleases, and gate use agreements, the 

following airlines currently operate at Love Field: 

Carrier Arrangement Gate Usage 

Southwest Lease 16 gates 

Southwest Sublease from United 2 gates 

Virgin Sublease from American 2 gates 

Delta Gate use agreement from Southwest 5 flights/day 

B. Initial Efforts To Accommodate Delta (September – October 2014) 

Delta began seeking accommodation from each signatory carrier in June 2014 when it 

learned that American would terminate its sublease effective October 2014.24 Despite 

indications from Southwest, United, and Virgin that there might be gate space available for Delta 

after October 12, 2014, none of the airlines made firm commitments.25 After contacting the 

signatory carriers, Delta’s Regional Director, Mike Anastas, contacted the City’s Director of 

Aviation, Mark Duebner, on July 16, 2014 requesting that the City notify each signatory carrier 

that “if Delta is not accommodated within thirty (30) days from your notice, that you select one, 

or more, of the signatories to comply with the request for accommodation in a nondiscriminatory manner.”26 

 

23 Id. at 5, No. 62. 

24 See e.g., Exhibit 10, Letter from M. Anastas, Delta, to C. Czarnecki, Southwest (June 

13, 2014). 

25 See Exhibit 11, Letter from M. Anastas, Delta, to M. Duebner, City (July 16, 2014). 

26 Id. 
14 

On September 3, 2014, the City sent a Notice of Failure to Accommodate Gate Use 

Request to Southwest and United notifying them of requests for use of leased gates at Love Field 

from Delta and from SeaPort, which was also seeking accommodation.27 The City informed 

Southwest and United that, if Delta was not accommodated within 30 days of the notice, the City 

would select one of the Signatory Airlines to comply with the requests for accommodation.28 In 

response, Southwest informed the City on September 10, 2014 that it was entering into a gate use 

agreement with United to operate from United’s gates on a “secondary basis” and could not 

accommodate Delta.29 

Southwest stated that the “reality of life at Love Field is that accommodation of new 

entrants at this time is impossible within the spirit, the intention, and practical application of the 

lease.”30 Southwest argued to the City that the “letter of the lease may allow for accommodation, 

but the language adopted by the city and signatory airlines, and memorialized in Federal Law, 

does not require accommodation.”31 In addition to “hinder[ing] our ability to maximize our 

leasehold,” Southwest contended that “[a]ccommodation at this time will also present new legal 

challenges of the procedures and times for terminating that new service/accommodation.”32

 

27 Exhibit 12, Letter from M. Duebner, City, to B. Montgomery, Southwest, (September 

3, 2014); see also Exhibit 13, Letter from M. Duebner, City, to J. Vlek, United (September 3, 

2014). 

28 See Exhibit 12 at 1; see also Exhibit 13 at 1. 

29 See Exhibit 14, Letter from B. Montgomery, Southwest, to M. Duebner, City (Sept. 10, 

2014). 

30 Id. at 2. 

31 Id. 

32 Id. 
15 

United also responded to the City’s Notice, stating that it was “evaluating 

accommodating SeaPort Airlines on the United Gates, to the extent there was availability . . . .”33 

On September 18, 2014, Delta informed the City that its sublease with American was 

about to expire and again invoked the accommodation process under the Lease.34 Delta sought 

to maintain its five daily flights and asserted that, even after accounting for the then-published 

schedules of the other airlines at Love Field, there was space for its five daily flights.35 

According to Delta, under the Lease, the “City has the right to force signatory airlines to 

accommodate requesting airlines, and the signatory airlines are obligated under the agreement to 

do so.”36 

Also on September 18, 2014, Southwest and United entered into a two-year Gate Use 

License Agreement under which United granted Southwest use of its gates from September 16, 

2014 to September 13, 2016, unless terminated earlier by either party under the terms of the 

agreement.37 

The next day, September 19, 2014, the City notified United that it had determined that 

United could accommodate Delta on one of United’s two gates.38 The City noted that the Gate 

Use Agreement between United and Southwest did not “identify scheduled flights, but rather 

ability to utilize the vacant gates,” and therefore, “it does not represent usage that will preclude 

Delta’s request for accommodation.”39 The City informed United that it was required under the 

 

33 Exhibit 15, Letter from J. Vlek, United, to M. Duebner, City (Sept. 12, 2014). 

34 See Exhibit 16, Letter from H. Shannon, Delta, to M. Duebner, City (Sept. 18, 2014). 

35 See id. 

36 Id.

37 See Exhibit 8. 

38 See Exhibit 17, Letter from M. Duebner, City, to J. Vlek, United (Sept. 19, 2014). 

39 Id. 
16 

Lease to accommodate Delta within 30 days and that that requirement would be in effect until 

January 6, 2015.40 

Southwest responded to the City’s letter to United arguing that requiring accommodation 

of Delta “directly interferes with an existing agreement between Southwest and United . . . [and] 

Southwest believes that it has a right to, and must, dispute City’s decision.”41 Southwest 

contended that “[b]y choosing to direct United to accommodate a new entrant, you have 

effectively interfered with an agreement between two signatory carriers, have denied

accommodation of a signatory airline in favor of a new entrant, and have summarily dismissed 

the needs of a longtime partner of the City of Dallas.”42 Southwest cited to the decision by “all 

signatory carriers to ‘ramp up’ service” and stated that it hoped to “maximize use of its gates.”43 

Accordingly, Southwest asked the City to reconsider its decision to direct United to 

accommodate Delta.44 By letter on September 26, United also objected to the required 

accommodation of Delta, stating “United’s gates at [Love Field] will be fully utilized effective 

October 13, 2014 and United will be unable to accommodate Delta at its gates.”45 

Based on additional information provided by Southwest and United, the City reevaluated 

its accommodation decision and determined that Delta could not be accommodated. In a letter 

dated September 29, 2014, the City informed Delta that the City had requested the “gate usage 

from the signatory airlines to determine if Delta’s request to be accommodated without unduly 

 

40 Id.

41 Exhibit 18, Letter from B. Montgomery, Southwest, to M. Duebner, City (Sept. 23, 

2014). 

42 Id. 

43 Id. at 2. 

44 Id. 

45 Exhibit 19, Letter from J. Vlek, United, to M. Duebner, City (Sept. 24, 2014). 
17 

interfering with the Signatory Airlines’ operating schedules can be met.”46 As required by the 

Lease, the City conferred with the signatory airlines who provided the City with operating 

schedules.47 Based on information provided by the airlines (including, inter alia, the September 

18 gate use agreement between United and Southwest), the City advised Delta that it could not 

be accommodated at Love Field after the expiration of its sublease with American.48 

Delta’s legal counsel responded to the City’s denial of accommodation on October 2, 

2014, alleging, among other things, that the City’s decision violated the “City’s obligations under 

[Gate Accommodation Clause] of the [Lease] . . . , the Five-Party Agreement, the City’s recent 

promise to accommodate Delta, its commitment in its Airline Competition Plan . . . filed with the 

[FAA] to accommodate Delta and other new entrants at DAL, its Airport Improvement Program 

(“AIP”) grant assurances, and Federal law.”49 Delta’s counsel also suggested potential legal 

action against the City.50 

C. The City Seeks The DOT’s Guidance (October 2014) 

Faced with opposing arguments from the airlines and Delta’s threat of legal action, the 

City sought legal guidance from the DOT on October 6, 2014.51 Peter Haskel, Executive 

Assistant City Attorney, emailed Kathryn Thomson, DOT General Counsel, requesting that, in 

the event the airlines could not resolve Delta’s accommodation request themselves, the “City 

 

46 See Exhibit 20, Letter from M. Duebner, City, to H. Shannon, Delta (Sept. 29, 2014). 

47 Id. 

48 Id. 

49 Exhibit 21, Letter from K. Quinn, Delta, to M. Duebner, City, at 1 (Oct. 2, 2014). 

50 See id. at 8. 

51 The City sought guidance from DOT as to the City’s legal obligations. Haskel 

Affidavit ¶¶ 2-3. The City did not approach FAA separately because it understood that DOT was 

keeping the FAA informed of the City’s discussions with the DOT to the extent the FAA was not 

also participating in those discussions. Id. ¶ 3. 
18 

would appreciate DOT communicating a firm directive to Delta that Delta not sell any tickets for 

arrival at or departure from Love Field for dates and times for which Delta does not have 

confirmed gates.”52 The City’s concern then, as it remains, was to ensure the safe, efficient and 

reasonable operation of the airport and, to the extent possible, to avoid burdening or confusing 

the traveling public due to uncertainty over which airlines were operating from Love Field.53 

The City made it clear to DOT General Counsel that it sought clear direction from the DOT so it 

could proceed without risk of offending any of its obligations under applicable federal law.54

Notwithstanding Delta’s aggressive threat of litigation and the competing legal positions 

of the airlines, the airlines continued their own efforts, with informal assistance and guidance 

from the City as warranted, to accommodate Delta. The most immediate effect of these 

discussions was that, on October 10, 2014 (two days before Delta’s sublease from American was 

due to expire), Delta, Southwest, and United entered into an agreement to accommodate Delta 

through January 6, 2015.55 

While that agreement provided relief from the immediate accommodation pressure, the 

parties recognized the need for a longer-term solution. During October 2015, with informal 

guidance and assistance from the City, Delta, Southwest, and United continued to negotiate an 

agreement for accommodation past January 6, 2015.56 The airlines also presented their 

 

52 Exhibit 22, Email from P. Haskel, City, to K. Thomson, DOT (Oct. 6, 2014). 

53 Haskel Affidavit ¶ 5. 

54 Id. 

55 Exhibit 23, Gate Use License Agreement between Southwest and Delta (Oct. 10, 

2014). 

56 See Exhibit 24, Letter from B. Montgomery, Southwest, to H. Shannon, Delta (Oct. 21, 

2014); Exhibit 25, Email from H. Shannon, Delta, to B. Montgomery, Southwest (Oct. 22, 2014); 

Exhibit 26, Letter from B. Montgomery, Southwest, to H. Shannon, Delta (Oct. 24, 2014). 
19 

respective accommodation positions more formally to the DOT and the FAA.57 Throughout 

these discussions, the City made it clear that it preferred that the airlines reach an 

accommodation agreement but that, in the absence of an agreement, the City would meet its 

obligations under the Lease, the Five-Party Agreement, and WARA, and would mandate 

accommodation if necessary.58 Also during this time, on October 7, 2014, Southwest submitted 

for the City’s review and approval a proposed sublease covering all of United’s facilities at Love 

Field.59

Even while Delta and Southwest threatened litigation, the airlines continued to negotiate 

a longer term accommodation agreement throughout October 2014.60 On October 25, Southwest 

provided the City with a brief explanation of its accommodation negotiations with Delta. 

Southwest stated that, notwithstanding Delta’s demand for accommodation, Southwest was 

planning to “average 9.6 flights per gate beginning in January 2015 on 16 gates and anticipates 

the same or greater level of utilization on 18 gates shortly thereafter.”61 Based on its anticipated 

gate utilization, long-term accommodation of Delta would require Southwest “to forego [its] own 

flights.”62

 

57 See Exhibit 27, Email from K. Quinn, Delta, to K. Thomson, DOT (Oct. 7, 2014); see 

also Exhibit 28, Dallas Love Field Issues – Presentation to: The United States Department of 

Transportation by Southwest, Washington, D.C. (October 2014); Exhibit 29, Email from R. 

Kneisley, Southwest, to K. Thomson et al., DOT, R. Fiertz, et al., FAA (Oct. 24, 2014). 

58 Haskel Affidavit ¶ 6. 

59 Haskel Affidavit ¶ 18. 

60 See id. ¶ 6. 

61 Exhibit 30, Email from M. Shaw, Southwest, to W. Ernst, City (Oct. 25, 2014). 

62 Id.
20 

D. The City’s Attempt To Establish Mandatory Accommodation Procedures Is 

Met With Airline Objections (November 2014) 

Because it was not a party to the inter-airline negotiations, the City did not know in late 

October whether the negotiations were making progress or whether a long-term negotiated 

resolution to the accommodation dispute would be possible.63 Therefore, the City recognized 

that it might be appropriate for it to exercise its authority under the Lease to mandate 

accommodation.64 The City was also hopeful that the mere threat of mandated accommodation 

would help the airlines in their negotiations.65 As a consequence, the City began preparing a 

formal set of procedures for implementing the forced accommodation requirements, should 

mandated accommodation become necessary.66 

On November 6, 2014, the City notified United, Southwest, Virgin, and Delta of its intent 

to formulate “an accommodation plan/model that the City would utilize, if necessary, in the 

current situation and that would also serve as a template to resolve any future accommodation 

requests from new entrants that carriers cannot resolve among themselves.”67 The City stated 

that the primary objectives for the accommodation plan were that it “be lawful, objective, 

reasonable, and transparent.”68 Given the threats of litigation, the City retained outside aviation 

legal counsel and informed the airlines that it had retained Kaplan Kirsch & Rockwell LLP, as 

well as the consulting firm, LeighFisher Inc., to assist the City in the “design and implementation 

 

63 Haskel Affidavit ¶ 7. 

64 Id. 

65 Id. 

66 Id. 

67 Exhibit 31, Memorandum from W. Ernst, City, to Airlines re: Request for Space at 

Love Field and Protocol/Procedure to Address Same, at 1 (Nov. 6, 2014). 

68 Id. 
21 

of the accommodation plan.”69 The City also informed the airlines and DOT General Counsel 

Kathryn Thomson that it would be organizing and hosting a meeting to facilitate an effective 

accommodation plan: 

The City will further explain how it intends to proceed at a meeting 

or conference call to which all commercial aviation carriers 

operating at Love Field as well as DOT/FAA will be invited during 

the week of November 17, 2014. . . . The City will solicit input 

from all such carriers and from DOT/FAA regarding factors and 

methods that each stakeholder believes should be considered for 

incorporation in the accommodation plan as the City moves 

forward. In furtherance of its transparency objectives, the City will 

share any information that it obtains from any carrier with all other 

carriers and with DOT/FAA. 

Based on all available information developed and received to that 

point, the City will propose a draft accommodation plan and invite 

further comment on the draft from the commercial aviation carriers 

using Love Field and from DOT/FAA. Based on the final round of 

inputs, the City will issue its permanent accommodation plan for 

Love Field commercial aviation.70

On November 10, 2014, the City forwarded to the airlines and the DOT its proposed 

procedures for “a Dallas Love Field gate accommodation policy for use if necessary on Delta’s 

pending accommodation request and for any future requests that carriers cannot resolve among 

themselves.” 71 In an attempt to reach a consensual resolution to Delta’s accommodation request, 

the City proposed a meeting on November 20 with the airlines, the DOT, and the FAA.72 The 

City requested that the airlines submit responses to the following questions on the 

accommodation procedures in advance of the November 20 meeting: 

1. What is your view on what constitutes a ‘new entrant’ carrier at 

Love Field for purposes of the scarce resource allocation procedure 

of the Five-Party Agreement and the Reform Act? 

 

69 Id. at 1–2. 

70 See id. at 2. 

71 Exhibit 32, Memorandum from W. Ernst, City, to Airlines, at 1 (Nov. 10, 2014). 

72 Id. 
22 

2. In ranked order, what considerations do you believe the City 

should use in making a scarce resource allocation decision, should 

that become necessary? If it would be helpful, feel free to provide 

both a ranking and relative weight for each consideration. 

3. Once the City makes a proposed allocation decision, should the 

City allow carriers to submit confidential proprietary information 

(to the extent that Texas law permits the City to protect proprietary 

information) in response or comment on such a proposed decision 

or should the City only consider information that would be 

available to all carriers? 

4. Federal law requires the City to prepare a Competition Plan and 

several of its Grant Assurance obligations are designed to promote 

competition. Should the City consider both competition at Love 

Field and elsewhere within the Dallas Metroplex or should the City 

only consider competition at Love Field creating a Competition 

Plan? 

5. Are there any factors that you contend it would be improper for 

the City to consider in considering a new entrant’s gate allocation 

request – and why? 

6. What is your view on how far into the future carriers have a 

right to claim that their proposed schedules must be considered by 

the City in gate allocation/accommodation decisions? What 

factors should or should not be considered in choosing such 

duration? Reasons for your answers? 

7. How would you calculate turn-around times for gate allocation 

determinations at Love Field and do you think that the City should 

use each carrier’s unique turn times or use a single standard? If a 

standard, how should that standard be determined?73 

On November 17, 2014, Southwest, Delta, and Virgin each submitted extensive 

comments, objections, and revisions.74 Each airline presented conflicting legal interpretations of 

the City’s obligations, DOT policies, and the rights of the airlines under the Lease and related 

federal laws. For example, in response to the City’s question regarding considerations in 

addressing a “new entrant’s gate allocation request,” Southwest stated “it would be improper for 

 

73 See id. 1–2. 

74 Exhibit 33, Letter from R. Kneisley, Southwest, to W. Ernst, City (Nov. 17, 2014); 

Exhibit 34, Letter from K. Quinn, Delta, to W. Ernst, City (Nov. 17, 204); Exhibit 35, 

Memorandum from J. Varley, Virgin, to W. Ernst, City (Nov. 17, 2014). 
23 

the City to consider the Grant Assurances and other federal airport policies on accommodation in 

isolation, without reference to the Five Party Agreement, the WARA, and the particular 

circumstances at Love Field at the time.”75 In contrast, Delta argued 

We urge the City to take immediate action to invoke the gate 

sharing and accommodation obligations under the Use Agreement 

to maintain Delta’s existing service to DAL and achieve a 

permanent solution. . . . As a recipient of AIP funds, the City’s 

grant assurances require the City to make the airport available for 

public use without unjust discrimination or provision of any 

exclusive rights to the airport. This means that the City must 

provide reasonable access to air carriers seeking to serve DAL, and 

it cannot shirt these responsibilities by referring carriers to a 

separate submarket and airport sponsor at Dallas-Fort Worth 

international Airport (“DFW”). 

To do so today would deny the manifest intent [WARA].76

Although DOT General Counsel Kathryn Thomson was copied on all of the communications 

both to and from the airlines, the DOT did not provide any written comments on the City’s 

proposed accommodation procedures and criteria. 

E. The City Seeks Additional Guidance From The DOT (November 2014) 

In a continuing effort to resolve the escalating controversy (and threats of litigation) over 

accommodation in November 2014 the City sought additional DOT advice, requesting guidance 

from Kathryn Thompson on the “relationship between Delta’s pending accommodation request 

at Love Field and the City’s granting or withholding consent to Southwest’s gate sublease from 

[United] at Love Field . . . .”77 Ms. Thomson advised that it remained DOT’s position that the 

City should not consent to the proposed sublease between United and Southwest until and unless 

there was permanent accommodation for Delta.78 The City scheduled a meeting for November 

 

75 Exhibit 33 at 9. 

76 Exhibit 34 at 2. 

77 Exhibit 36, Emails between P. Haskel, City, and K. Thomson, DOT (Nov. 4, 2014). 

78 Id. 
24 

20 among all the airlines, the DOT and the FAA to address the City’s proposed process should 

mandatory accommodation become necessary.79 The City hoped that the DOT’s direct 

involvement would facilitate a solution.80 

In an email from Peter Haskel to Kathryn Thomson on November 12, the City stated that 

it would be very useful for the DOT to participate in the meeting as it “might encourage 

constructive dialogue.”81 On November 13, Ms. Thomson requested a separate meeting with 

“the City, its outside counsel and consultant in advance of the large group meeting to respond to 

some of the questions you have posed and make sure the City is clear on the information we 

seek.”82 On November 19, 2014, City representatives met with ten DOT and FAA officials at 

the DOT headquarters.83 In a lengthy and wide ranging discussion, the DOT and FAA officials 

gave the City considerable guidance on the accommodation process, including the following key 

points:84

• DOT counsel expressed the opinion that their review of the Lease 

led them to conclude that there is sufficient authority in the Lease 

to allow the City to accommodate Delta. 

• The Office of the Secretary is charged with ensuring compliance 

with competition plan-related issues. 

• The Lease meets DOT requirements with respect to competitive 

access. 

• DOT interprets the term “new entrant” in this context to be any 

carrier other than a signatory to the 2006 Lease, which would 

include Delta. 

 

79 See Exhibit 32 at 1. 

80 See Exhibit 37, Email from P. Haskel, City, to K. Thomson, DOT (Nov. 12, 2014). 

81 Id. 

82 Exhibit 38, Email from K. Thomson, DOT, to P. Haskel, City (Nov. 13, 2014). 

83 See Haskel Affidavit ¶ 8. 

84 Id. 
25 

• In defining an accommodation process, the DOT will not be 

prescriptive but instead expects the City to use any and all 

flexibility available to it. 

• The City can use the date of a request for accommodation (or 

another reasonable “snapshot” date) for assessing the ability to 

meet an accommodation request and the City’s decision can be 

informed by information on future plans that exist at the time of 

the request. Published schedules are a valid way to judge future 

plans. A six-month look-forward period is reasonable. 

• If the City approaches the date when voluntary accommodation 

expires, the City can impose a temporary solution if it is reasonable 

in the circumstances (e.g., for another 30-90 days). 

• The City should minimize the use of proprietary information in its 

accommodation decision, especially since future schedule 

information is generally publicly available. Proprietary 

information should be used only to validate other information and 

to prevent gaming of the system. The City can, but need not, 

conduct due diligence to verify information that it has been given 

by the airlines. 

• The City should not consider service at other airports; it should 

only consider service at Love Field. 

• An accommodation must allow the accommodated carrier access 

for as long as the carrier maintains the same pattern of service. 

That may be permanent unless the request is for less-thanpermanent service. 

• The City need not treat a request for accommodation as an all-ornothing matter and may offer to a requesting carrier less than the 

requested amount of service if that is all that is available. The 

same principle applies to times of day: the City may inform the 

requesting carrier of available times even if those do not accord 

precisely with the request. But in no event is the City required to 

demand that an incumbent carrier change its schedule. 

• The City cannot make a decision based upon the type of carrier 

(e.g., legacy, low-cost or ultra-low-cost). 

On November 20, 2014, representatives and counsel for the City, the DOT, the FAA, and 

all the affected airlines met at Dallas City Hall to discuss Delta’s request for accommodation and 

the City’s proposed accommodation procedures.85 At the meeting, the City presented its 

 

85 Id. ¶ 9. 
26 

proposed Love Field Allocation Principles and Allocation Process.86 The City’s consultant, 

LeighFisher, presented a Baseline Gate Analysis that evaluated the existing gate usage at Love 

Field and the ability of Love Field to accommodate future demand scenarios.87 

LeighFisher addressed the critical constraints at Love Field from their evaluation of flight 

schedules and peaking characteristics.88 LeighFisher also explained the rationale for the City’s 

proposed snapshot date of November 5, 2015.89 Under normal circumstances, the snapshot date 

would be Delta’s September 2014 accommodation request date.90 However, because of the 

significant change in operations at Love Field that occurred in October 2014 when WARA’s 

elimination of the Wright Amendment flight restrictions became effective, the accommodation 

request date did not reflect typical operations at Love Field.91 Thus, LeighFisher determined 

November 5, 2014 to be the earliest day following Delta’s request that reflected a typical day of 

post-WARA operations at Love Field.92 LeighFisher’s proposed next steps were to receive 

comments regarding the baseline modeling assumptions and incorporate them into a revised final 

baseline model, and to receive additional information on the airlines’ expectations for proposed 

future schedules.93 

Following the November 20th meeting, accommodation negotiations continued among 

Delta, Southwest, and United, focusing on United’s proposal to extend its temporary agreement 

 

86 Id. 

87 Id.; Exhibit 39, LeighFisher DAL Baseline Gate Analysis (Nov. 20, 2014). 

88 Haskel Affidavit ¶ 10. 

89 Id. 

90 Id. 

91 Id. 

92 Id. 

93 See Exhibit 39 at 11. 
27 

with Delta and Southwest for another six months.94 While the negotiations were ostensibly 

among Southwest, United, and Delta, the City remained intimately involved and participated in 

lengthy email exchanges with Delta, United, and Southwest regarding United and Southwest’s 

proposal to extend the accommodation period. On November 28, 2014, Southwest emailed the 

City confirming its commitment to United’s proposal subject to the negotiation of documents 

between all parties.95 The City stressed its view that it was important that Southwest and United 

involve Delta in the process as soon as possible.96 

One key sticking point in the discussions was that Southwest remained opposed to the 

permanent accommodation of Delta. According to Southwest, “[b]y January, our gates will be 

fully utilized under any reasonable measure” and it “intend[ed] to vigorously defend its right to 

fully utilize its gates at Love Field.”97 Delta did not accept United’s offer for a short-term 

accommodation for six months through mid-2015. 

F. The City Facilitates Further Accommodation In December 2014 

November ended without an agreement among the airlines to extend Delta’s 

accommodation past January 6, 2015.98 As a result, the City became increasingly concerned that 

a voluntary accommodation might not be reached in time to avoid serious uncertainty for the 

 

94 Haskel Affidavit ¶ 11. 

95 Exhibit 40, Emails between M. Shaw, Southwest and P. Haskel, City (Nov. 28, 2014). 

96 See id.; see also Exhibit 41, Email from P. Haskel, City, to A. Bried, United (Nov. 28, 

2014); see also Exhibit 42, Emails between P. Haskel, City, and B. Hirst, Delta (Nov. 28, 2014); 

see also Exhibit 43, Email between T. Bolling, United, and P. Haskel, City (Nov. 29, 2014). 

97 Exhibit 44, Letter from B. Montgomery, Southwest Airlines, to H. Shannon, Delta 

Airlines, (Dec. 1, 2014). 

98 Haskel Affidavit ¶ 11. 
28 

traveling public about Delta’s operations after the beginning of the year and potential operational 

problems just as the busy holiday travel season was drawing to a close.99 

In an effort to increase pressure on the airlines to reach a voluntary agreement, the City 

notified Southwest, Virgin, United, and Delta on December 1 that, unless it received word that 

Delta was accommodated by the following day, the “thirty (30) day period allowed for voluntary 

accommodation described in [the Gate Accommodation Clause] of the Use and Lease 

Agreements with each signatory carrier shall commence.”100 The City explicitly urged the 

airlines to reach an accommodation agreement, stating 

[a]s we explained in a meeting to which all Signatory Carriers 

were invited, on November 20, 2014, the City would prefer that the 

Signatory Carriers reach a voluntary accommodation arrangement 

which is satisfactory to Delta. We believe that a negotiated 

arrangement would be a far better outcome than a formal Citymandated accommodation.101

The City provided each airline with 1) a letter memorandum from Mark Duebner, 

Director of Aviation, setting forth the revised accommodation procedures and schedule (based 

upon comments from the airlines), 2) proposed Dallas Love Field Allocation Principles and 

Accommodation Criteria and Allocation System, and 3) questions to the airlines to assist the 

City’s accommodation process.102 The City stated 

[a]s we outlined at the November 20 meeting, we committed to 

seeking comment from any interested stakeholder on the criteria 

and bases that the City will use, should it be necessary for the City 

to make a mandatory accommodation decision. We are attaching 

to this letter our proposed criteria and weighting of those criteria. 

We request comments immediately, and in no event later than 

December 8. 

 

99 Id. 

100 Exhibit 45, Letter from W. Ernst, City, to Airlines, at 2 (Dec. 1, 2014). 

101 Id., Attached Duebner Letter at 2. 

102 See id. 
29 

Also attached to this letter is a list of information which we request 

that each Signatory Carrier provide in order to assist in the City’s 

assessment of a reasonable accommodation of Delta. We request 

that you provide the information no later than December 8. If we 

do not receive information from a carrier, we will use the best 

information we have available from other sources.103

The City’s proposed Accommodation Criteria stated that the City would determine a 

“Snapshot Date” that would start the time period for assessing reasonable accommodation.104 

Among the questions it posed to the airlines, the City requested comments on the proposed 

snapshot date of November 5, 2014 that was discussed at the November 20 meeting.105 The City 

set December 31 as a deadline for the airlines to reach a voluntary accommodation.106

Even though the Lease does not contemplate any formal role for the City during the 30-

day period preceding a mandatory accommodation decision, the City continued to play shuttle 

diplomacy, working assiduously to bring about a voluntary agreement.107 The City also 

continued to engage the DOT to ensure that its proposed accommodation procedures satisfied the 

DOT’s concerns and to further seek the DOT’s guidance on open legal questions. On December 

3, the City contacted the DOT requesting that the DOT provide the “DOT views on requesting 

carrier exhaustion, possible interim accommodation, and related issues.”108 City officials had 

telephone conversations with the DOT officials during the first week of December and provided 

information requested by Cindy Baraban at the DOT Chief Counsel’s office regarding 

 

103 Id., Attached Duebner Letter at 3. 

104 See id., Accommodation Criteria at 1. 

105 See id., Questions for Carriers at 1. 

106 Id., Attached Duebner Letter at 2. 

107 Haskel Affidavit ¶ 13. 

108 Exhibit 46, Email from P. Haskel, City, to C. Baraban and N. Kessler, DOT (Dec. 3, 

2014). 
30 

accommodation periods at other airports.109 On December 8, 2014, the DOT emailed the City 

referring to their earlier discussion and recommending a change to wording in the City’s 

Accommodation Principles.110

While those negotiations were occurring, the City received multiple comments from the 

airlines in early December on the City’s Notice and on the revised accommodation procedures. 

The airlines reasserted their respective conflicting positions on the legal constraints upon the 

City’s proposed actions and repeated their criticisms of the City’s proposed accommodation 

procedures. 

In its response, Delta reasserted its request for permanent accommodation at Love Field 

for its five flights per day, stating that although it “has had many discussions (including ones 

facilitated by the City) over the past several months, the Signatory carriers either have failed to 

offer long-term accommodation on terms the City and [the DOT] have described as reasonable or 

have not offered any long-term accommodation.”111 According to Delta, the “City is now dutybound under its commitment in the Five-Party Agreement and Competition Plans, along with its 

statutory and grant assurance obligations, to exercise its authority to require accommodation.”112

United responded with its own criticisms and explaining that it had “offered to 

accommodate Delta . . . as a secondary user at United’s leased gates at [Love Field] for a period 

of 180 days commencing on January 7, 2015 [and] United also offered to continue the current 

United-Delta [Love Field] facilities agreement with Delta through the term of the secondary use 

 

109 See Exhibit 47, Email from P. Haskel, City, to C. Baraban, DOT (Dec. 4, 2014); see 

also Exhibit 48, Email from P. Haskel, City, to C. Baraban, DOT (Dec. 9, 2014). 

110 See Exhibit 49, Email from P. Irvine, DOT, to P. Kirsch, Counsel for City (Dec. 8, 

2014). 

111 Exhibit 50, Letter from K. Quinn, Delta, to W. Ernst, City, at 2 (Dec. 6, 2014). 

112 Id. 
31 

gate agreement.”113 According to United, “Delta notified United today that it has refused 

United’s voluntary offer of accommodation. Delta has thus failed to exhaust all reasonable 

efforts to secure accommodation from incumbent carriers, mooting any request by Delta for the 

City’s invocation of a mandatory accommodation process.”114 

For its part, Southwest argued that Delta provided “no legal support for its claimed 

entitlement to a ‘long-term accommodation,’ and there is none.”115 Southwest stated that “Delta 

is clearly not a ‘new entrant’ airline in any meaningful sense of the term, and therefore is not

entitled to the benefit of either (1) the accommodation policies of the U.S. Department of 

Transportation that apply to real ‘new entrant airlines,’ or (2) the scarce resources provision of 

the Love Field Lease that by its terms applies only to requests for accommodation by ‘new 

entrant airlines.’”116 

Additionally, all of the airlines criticized the City’s revised accommodation procedures. 

Delta submitted a redline version of its own changes to the procedures attached.117 Delta stated 

that it was “prepared to accept the City’s snapshot date, but would oppose anything beyond this 

date.”118 United contended that there were flaws in the City’s procedures and that the “City must 

take into account and give preference to a Signatory Airline’s . . . use of the gates and the use of 

 

113 Exhibit 51, Letter from T. Bolling, United, to W. Ernst, City, at 1 (Dec. 2, 2014). 

114 Id. 

115 Exhibit 52, Letter from R. Kneisley, Southwest, to W. Ernst, City, at 2 (Dec. 15, 

2014). 

116 Id. at 4–5. 

117 Exhibit 53, Letter from K. Quinn, Delta, to W. Ernst, City (Dec. 11, 2014). 

118 Id. at 8. 
32 

the gates by any other carrier with whom such Signatory Airline has an agreement when 

determining accommodation of another carrier at [Love Field].”119 

Southwest provided an extensive list of objections to the accommodation criteria and 

proposed accommodation of Delta. Among them, Southwest stated that under the Lease, 

the City is not authorized to trigger a formal accommodation 

process unless the requesting airline has demonstrated that it ‘has 

exhausted all reasonable efforts to secure accommodations.’ Delta 

Airlines has not done this, and therefore the City’s Notice is 

contrary to the City’s obligations under the Lease.120 

Southwest criticized the City’s “Allocation Principles” as “ambiguous, incomplete, or simply 

incorrect as a matter of law in material respects. Accordingly, the Principles must be modified 

before the City makes any accommodation decisions in reliance on them.”121 Southwest also 

stated: 

The DOT has no authority to approve or disapprove the sublease, 

and likewise has no authority to interfere with the City’s approval 

of the sublease. . . . The DOT’s interference with the City’s review 

of the sublease is an ultra vires act that is prejudicial to both 

Southwest and United.122

Southwest also criticized the City’s proposed “snapshot date” of November 5, 2014, as 

“imprudent and prejudicial to Southwest,” and urged the City to consider the “12-month lookahead” that was included in the City’s recently-executed lease with Virgin.123

Despite the airlines’ objections, the City continued to engage all of them throughout 

December,124 and continued to consult with, and seek guidance from, the DOT.125 In 

 

119 Exhibit 54, Letter from N. Lopp, United, to M. Duebner, City (Dec. 8, 2014). 

120 Exhibit 55, Response of Southwest to Notice of Regarding Dallas Love Field 

Accommodation Issues, at 1 (Dec. 8, 2014). 

121 Id. at 4. 

122 Id. at 12. 

123 Id. at 9. 
33 

communications with Southwest, the City stated that it would delay its tentative decision on 

accommodation because of ongoing discussions with the DOT.126 Delta, United, and Southwest 

continued to negotiate voluntary accommodation.127 At one point, Delta emailed the DOT 

criticizing the terms of United’s offer and stating that “the parties need to hear clear expectations 

from DOT before prospects for settlement have a chance of working.”128 

G. The DOT December 17, 2014 Letter To The City 

On December 17, 2014, DOT General Counsel Kathryn Thomson wrote the City 

summarizing the DOT’s views of the accommodation issue in response to earlier telephone 

conversations between the DOT and the City and purporting to provide guidance as to the DOT’s 

position on the City’s legal obligations (the “First DOT Letter”).129 While the City hoped that 

the First DOT Letter would provide the kind of definitive legal guidance that the City had been 

seeking so it would have clear and enforceable authority to proceed with an accommodation 

decision, the First DOT Letter proved to be far less definitive and far more ambiguous than the 

City had hoped.130

 124 See Haskel Affidavit ¶ 13. 

125 See id.; See Exhibit 60, Emails between C. Baraban, DOT, and P. Haskel, City (Dec. 

11, 2014). 

126 Exhibit 56, Emails between M. Shaw, Southwest, and P. Haskel, City (Dec. 8 & 10, 

2014) 

127 See Exhibit 57, Letter from K. Quinn, Delta, to R. Kneisley, Southwest, and T. 

Bolling, United (Dec. 18, 2014); Exhibit 58, Email from T. Bolling, Southwest, to K. Quinn, 

Delta (Dec. 18, 2014); Exhibit 59, Letter from R. Kneisley, Southwest, to K. Quinn, Delta, at 1 

(Dec. 23, 2015); Exhibit 61, Letter T. Bolling, United, to K. Quinn, Delta (Dec. 11, 2014). 

128 Exhibit 62, Email from K. Quinn, Delta, to N. Kessler, C. Baraban, and K. Thomson, 

DOT (Dec. 12, 2014). 

129 Exhibit 63, Letter from K. Thomson, DOT, to W. Ernst, City (Dec. 17, 2014). 

130 See Haskel Affidavit ¶ 14. 
34 

In the First DOT Letter, the DOT stated it was pleased that the City was taking an “active 

role” facilitating accommodation and summarized the DOT’s understanding of its prior 

communications with the City.131 The First DOT Letter then made a number of clarifying 

statements that memorialized advice that the DOT had provided verbally in the numerous 

November meetings and phone calls: 

• The DOT stated that once an air carrier had been accommodated, it 

was entitled to maintain its ongoing pattern of service even after 

the expiration of any agreement between the accommodated and 

accommodating air airlines as long as the pattern of operations 

remained unchanged.132 

• The DOT stated that it “expect[ed] that” the City would 

“accommodate the requesting carrier to the extent possible given 

the current gate usage, without impacting current or alreadyannounced, for-sale services” by existing airlines.133 

• The DOT stated that it was the agency’s “position” that “for the 

accommodation to be meaningful,” the accommodated carrier was 

entitled to maintain an “ongoing similar pattern of service” as long 

as it operated the accommodated flights.134 

Attached to and incorporated into the First DOT Letter was a compendium of airport 

competition plan requirements, “Airport Competition Plans: Highlights of Reported Actions to 

Reduce Barriers to Entry and Enhance Competitive Access” (Nov. 2010): 

We are also enclosing a compendium of airport competition plan 

requirements and actions various airports have taken to facilitate 

entry and enhance competitive access. The compendium table 

focuses on airports that have developed pro-competitive tools to 

accommodate requesting airlines in conformity with the 

competition plan requirements.135

 

131 Exhibit 63 at 1. 

132 Id. at 2. 

133 Id. 

134 Id. 

135 Id. at 2. 
35 

The attached compendium report did not provide the DOT’s policy on accommodation or 

provide the City with any specific guidance or direction on addressing the accommodation of 

Delta.136 

None of the examples in the compendium included permanent accommodation mandates 

for preferential use gates or were similar to the City’s circumstances at Love Field—where an 

airport is prohibited by law from adding gates.137 While examples of how other airports have 

addressed competition issues may be interesting, neither the compendium nor the First DOT 

Letter addressed the unique legal limitations of WARA and the Five-Party Agreement, i.e., how 

to address accommodation at a space-constrained facility with preferential gate rights that 

encompassed all gates when federal law explicitly prohibits any action that would interfere with 

those preferential gate rights.138

The First DOT Letter did not mandate that the City take any particular action. 

Specifically, the letter did not require the City to grant Delta’s accommodation request.139 

Although the DOT provided some explanation of its policy and approach, it did not provide a 

legal basis for those views and did not explain how the DOT’s views related to the particular 

legal constraints at Love Field under WARA and the Five-Party Agreement.140 The First DOT 

 

136 See id., Airport Competition Plans. 

137 Haskel Affidavit ¶ 16. 

138 Id. The First DOT Letter also referred to a 1999 study on airline competition at 

airports. See Airport Business Practices and Their Impact On Airline Competition, FAA Task 

Force Study, (October 1999) ̧ http://ntl.bts.gov/lib/17000/17100/17129/PB2000108301.pdf. 

Contrary to the statements in the letter, that report notes that many leases provided that the 

primary tenant had “bumping” rights that allowed it to regain the use of facilities provided to an 

accommodated user if the primary tenant increased its operations. Id., FAA Task Force Study at 

37, n.8, 40-41.

139 Haskel Affidavit ¶ 17. 

140 Id. 
36 

Letter did not provide the City with the definitive direction that the City had sought in the face 

the space-constrained facilities at Love Field, WARA’s limitations, the opposing arguments from 

the airlines, and the threats of litigation.141 

In light of these omissions and uncertainties in the First DOT Letter, the City quickly 

responded to the DOT the next day with a request that the DOT provide clarification of several 

points in that letter: (1) did the DOT’s reference in the letter to ‘current or already announced, for 

sale services”’ preclude the City’s use of the six-month look forward period after the ‘snapshot’ 

date to inform the City’s accommodation decision,” and (2) whether DOT intended to use the 

term “incumbent carrier” where the letter used the term “signatory carrier.”142 

On December 22, the DOT provided a brief response to the City’s questions, stating that: 

(1) the First DOT Letter “does not preclude the City’s use of the six-month look forward period 

after the snapshot date to inform its accommodation decision,” and (2) the DOT’s reference to 

“signatory carrier should extend to any carrier with preferential rights to its existing schedule 

(whether signatory or non-signatory incumbent) – such a carrier could not be impacted by 

accommodation as long as it maintains its schedule.”143 

H. The City’s Extension Of The Deadline For Accommodating Delta To 

February 28, 2015 And Additional Negotiations Between The Airlines 

Although negotiations among the airlines continued through the December holidays, the 

January 6 expiration of the voluntary accommodation was fast approaching, presenting the City 

with a dilemma. While the First DOT Letter (and the follow-up email of December 22) provided 

some clarification, that guidance was not sufficient for the City to determine whether it could or 

 

141 Id. 

142 Exhibit 64, Email from P. Haskel, City, to K. Thomson, DOT (Dec. 18, 2014). 

143 Exhibit 65, Email from C. Baraban, DOT, to P. Haskel, City (Dec. 22, 2014). 
37 

should mandate continued accommodation of Delta.144 That uncertainty was magnified by the 

explicit and implicit threats of litigation by Delta and Southwest if the City made any final 

decision regarding accommodation.145

The problem needed an immediate solution, moreover, because of the imminent 

expiration of the voluntary accommodation. To ensure that Delta’s accommodation would 

extend past January 6, 2015, the City notified the DOT and airlines on December 24, 2014 that it 

“direct[ed] all affected carriers to continue the temporary accommodation arrangement, presently 

due to expire on January 6, through February 28.”146 The City later clarified to the airlines and 

the DOT that it was the City’s intention that United, not Southwest, accommodate Delta through 

February 28, 2015.147 The City stated that it was clear the airlines are “unlikely to be able to 

reach another voluntary accommodation arrangement . . . before the January 6 deadline” and the 

City was “still seeking clarification from DOT and FAA of important issues relating to Delta’s 

accommodation request.”148 The City noted that its “deference to the views of these federal 

agencies takes into account . . . their authority under gate lease section 14.02 to impose sanctions 

or lease modifications if they view the parties’ application of lease provisions as 

anticompetitive.”149 

The City explained that the extension was not in any manner intended to be a permanent 

accommodation but instead was merely an emergency interim action designed to ensure that 

Delta could continue to operate until such time as the City could complete its mandatory 

 

144 See Haskel Affidavit ¶ 17. 

145 See id. 

146 Exhibit 66, Letter from M. Duebner, City, to DOT and Airlines, at 2 (Dec. 24, 2014). 

147 Exhibit 67, Email from P. Haskel to Airlines and DOT (Jan. 2, 2015). 

148 Exhibit 66 at 1. 

149 Id. 
38 

accommodation process (or the airlines could reach another voluntary accommodation). 

Specifically, the City stated that it was not a “final, permanent, or even a temporary 

accommodation decision . . . [but] is merely an interim rule under lease section 14.01, designed 

to preserve the status quo to insure the safe, efficient, and economically practicable operation of 

the airport for a short time so that the City can make a reasoned and thoughtful accommodation 

decision if the carriers fail to reach a voluntary accommodation arrangement.”150 

The airlines objected to even this extension of the temporary accommodation 

arrangement.151 On January 2, 2015, Delta proposed to Southwest and United a voluntary 

extension of the existing accommodation arrangements until February 28, 2015.152 Just as it 

opposed the City’s emergency interim arrangement, Southwest opposed Delta’s proposed 

temporary extension and argued that “Delta’s current Love Field flights could easily be 

accommodated if Delta simply accepts United’s offer of a six-month voluntary gate use 

agreement on terms substantially similar to those that Delta previously accepted . . . .”153 Again, 

Southwest contended that the First DOT Letter did not “control the City’s handling of Delta’s 

request for accommodation at Love Field” and the DOT’s position on forced accommodation 

“directly violated Southwest’s rights under its Love Field Lease to expand upon and fully utilize 

its leased gates . . . .”154 

 

150 Id. at 2. 

151 See Exhibit 68, Letter from W. Ernst, City, to DOT and Airlines, at1 (Jan. 5, 2015); 

see also Exhibit 69, Letter from M. Shaw, Southwest, to W. Ernst, City, at 1 (Dec. 31, 2014); see 

also Exhibit 70, Letter from T. Bolling, United, to W. Ernst, City, at 1 (Dec. 31, 2014). 

152 Exhibit 71, Letter from K. Quinn, Delta, to R. Kneisley, Southwest, and T. Bolling, 

United, at 2 (Jan. 2, 2015). 

153 Exhibit 72, Letter from R. Kneisley, Southwest, K. Quinn, Delta, at 1 (Jan. 4, 2015). 

154 Id. at 2. 
39 

Notwithstanding this rhetoric, and perhaps because of the City’s unilateral declaration of 

an emergency interim preservation of the status quo, United and Delta agreed to an arrangement 

under which United would temporarily accommodate Delta from January 7, 2015 through July 6, 

2015.155 Southwest committed to support that arrangement and agreed to continue to negotiate 

with Delta on a potential long-term accommodation.156 The City informed the airlines that it 

“reserves its interpretations of its authority and duties, while continuing to seek additional 

clarification from the applicable federal agencies.”157 The City stated it would “continue [its] 

mandatory accommodation process unless informed by carriers that it is no longer necessary.”158 

The City’s efforts to assure that Delta would be accommodated, at least on a temporary 

basis, had succeeded by leading to a seven-month accommodation agreement between United 

and Delta, with the support of Southwest. That temporary accommodation agreement alleviated 

the immediate crises, allowing the City to move forward deliberately and thoughtfully to reach a 

permanent solution without laboring under an imminent threat to the safe and efficient operation 

of the airport. Although the City still had a number of legal and technical issues to resolve 

before it could issue a final accommodation decision, the City was committed to moving forward 

transparently and collaboratively in an effort to resolve the accommodation controversy. 

 

155 Exhibit 73, Gate Use License Agreement between United and Delta (Jan. 6, 2015); see 

also Exhibit 74, Letter from T. Bolling, United, to K. Quinn, Delta (Jan. 4, 2015); Exhibit 75, 

Letter from N. Lopp, United, to B. Montgomery, Southwest (Jan. 6, 2015). 

156 See Exhibit 74 at 1. 

157 Exhibit 68 at 1–2. 

158 Id. at 2. 
40 

I. DOJ’s HSR Act Review Of The Proposed United-Southwest Sublease, 

Consultation With DOJ On The Sublease, DOJ’s Non-Objection, And The 

City’s Approval Of The Sublease in January 2015 

One significant unresolved issue hanging over the entire accommodation debate was how 

to address the request by Southwest and United dating from October 2014 that the City consent 

to Southwest’s sublease of United’s gates. The City was not involved in, or informed of, 

negotiations between United and other airlines that apparently resulted in an agreement for 

Southwest to acquire United’s lease rights for $120 million.159 Because of the dollar amount 

involved, the details of the proposed United-Southwest sublease, including the $120 million 

payment, were reviewed by DOJ pursuant to the Hart-Scott-Rodino Antitrust Improvement Act 

(“HSR Act”).160 During the review, DOJ conferred with the DOT.161 DOJ did not voice any 

objection or bring suit to prevent the transfer within the time frame stipulated by statute, 

including an extension of the original review period.162

The United Lease requires City approval for the Sublease. The Lease provides that, the 

“Airline shall have the right to sublet the Leased Premises, or any portion thereof . . . ; provided, 

it shall first obtain the written approval of the City.” Lease § 13.01(B). Section 14.08 of the 

Lease states that if the City’s consent is required, such consent “shall not be unreasonably 

withheld or delayed.” Southwest and United requested City approval of the Sublease.163 United, 

for instance, argued that its “voluntary offer of accommodation [of Delta] demonstrates its 

 

159 Exhibit 76, Email from R. Kneisley, Southwest, to J. Moss, DOT (Oct. 25, 2014) 

(attaching executed copy of the Asset Transfer Agreement between Southwest and United). The 

City did not learn of the amount or details of the sublease transaction until the details were 

disclosed in the District Court in September 2015. Haskel Affidavit ¶ 18. 

160 Exhibit 5, Joint Stipulation at 5, No. 58. 

161 See id., No. 59. 

162 See id. 

163 Haskel Affidavit ¶ 18. 
41 

continuing good faith efforts to work with the City to find a commercial resolution of Delta’s 

accommodation request,” and that it “expects that the City will likewise act in good faith in 

approving United’s sublease of two gates . . . to Southwest.”164 

When the City learned that HSR Act review would be required, it consulted with DOJ 

and DOT and informed both agencies that it would wait for and rely on DOJ’s action before 

taking any action to approve the Sublease.165 DOT concurred in this approach.166 

Upon learning on January 23 that the deadline for DOJ objections had passed without any 

DOJ antitrust objection, the City determined that it no longer had any valid legal basis to 

withhold its consent under the Lease.167 Before the City gave its consent, however, the City 

advised the DOT of its intent to grant consent, sent a copy of the draft consent to the DOT, and 

sought any final DOT comments or objections.168 The City received no objections from DOT in 

response.169 The City consented to the Sublease on January 28, 2015.170 Since the entire 

accommodation dispute remained live, however, the City was especially careful to ensure that 

approval of the sublease would not in any manner prejudice its ability to mandate 

accommodation should that become necessary.171 The City approved the sublease explicitly 

 

164 Exhibit 51 at 1. 

165 Haskel Affidavit ¶ 19. 

166 Id. 

167 See Exhibit 77, Email from M. Shaw, Southwest, P. Haskel, City (Jan. 23, 2015); see 

also Haskel Affidavit ¶ 20.

168 See Exhibit 78, Email from P. Haskel, City, to K. Thomson, DOT (Jan. 20, 2015). 

169 Haskel Affidavit ¶ 20. 

170 Exhibit 9. 

171 Haskel Affidavit ¶ 20. 
42 

subject to conditions that preserved the City’s authority to compel accommodation pursuant to 

the Gate Accommodation Clause.172

J. The City Seeks Further Guidance From DOT/FAA, But DOT/FAA Again 

Fails To Provide The Needed Legal Directive 

On February 10, 2015, counsel for the City met again with the DOT and the FAA in 

Washington D.C. to seek further clarification of the First DOT Letter and to request clear written 

instructions on the City’s legal obligations to mandate accommodation under applicable federal 

law.173 At this meeting, attended by both DOT and FAA lawyers, the DOT raised for the first 

time the DOT’s concerns about the City’s compliance with Grant Assurances (particularly Grant 

Assurance 23) and regulations concerning authority to levy Passenger Facility Charges, 14 

C.F.R. Part 158.174 DOT and FAA officials made several important observations and provided 

guidance on several points: 175

• The DOT stated that “general principles” required the City to 

accommodate airlines, but the DOT did not take a position on 

whether WARA modified those “general principles.” 

• Forced accommodation is important for the City in order to satisfy 

its Grant Assurance obligations. 

• The DOT and DOJ view competition differently; the DOT does not 

necessarily share the DOJ view concerning whether Virgin is 

protected from forced. 

• FAA counsel emphasized that the FAA only provides guidance 

and will not substitute its judgment for that of the City in the 

operation of the airport. 

• All airlines requesting gate accommodation should be treated alike, 

regardless of whether the carrier is an incumbent or a new entrant 

or any other category. 

 

172 See id.; see also Exhibit 9 at 1–2. 

173 See Haskel Affidavit ¶ 22. 

174 Id. 

175 Id. 
43 

• Leases with preferential use language are still subject to 

accommodation. 

• The DOT knows that Delta could have been accommodated at the 

snapshot date because it was, in fact, accommodated. Delta should 

be allowed to continue its gate use not necessarily because an 

accommodation must be permanent but because the actual 

temporary accommodation at the snapshot date demonstrates the 

availability of space for accommodation. 

While this additional guidance clarified certain issues, it still did not provide the 

definitive direction that the City sought in order to mandate accommodation consistent with the 

mandates of WARA incorporating the Lease and the Five-Party Agreement and with the 

DOT/FAA’s views on the City’s obligations under federal law and the Grant Assurances.176 In 

particular, DOT/FAA failed to explain how the City should reconcile the (1) preferential gate 

rights with the accommodation requests or (2) the imposition of Grant Assurance violation 

sanctions with WARA’s limits on DOT/FAA authority. DOT/FAA also declined to provide 

guidance on the practicality of determining whether there was available space going forward 

from the selected snapshot date.177 

K. Southwest Announces Expanded Service, American Requests 

Accommodation, And Delta Makes A Second Accommodation Request In 

February 2015 

Three separate, perhaps related, actions by the airlines occurred in February that further 

complicated the City’s efforts to resolve the accommodation issues. 

On February 6, 2015, American submitted a request to Southwest for accommodation of 

American’s proposed operations at Love Field.178 

 

176 Id. ¶ 23. 

177 See id. 

178 Id. ¶ 24. In April 2015, American requested that the City assist in American’s seeking 

accommodation of new operations at Love Field under the Gate Accommodation Clause of the 

Lease. See Exhibit 79, Letter from D. Anderson, American, to M. Duebner, City (April 9, 2015). 

In its request for accommodation, American did not attempt to reconcile the request with the 
44 

The following week, on February 13, 2015, Southwest informed DOT staff that it was 

inaugurating 13 new daily flights from Love Field.179 In a letter submitted to the City later in the 

month, Southwest informed the City, American, Delta, and the DOT that because of the 

expansion of service at Love Field, “Southwest will be unable to provide gate space to any other 

carrier on [its] 18 Love Field gates.”180 Southwest reasserted its “right to fully utilize all space 

we lease at Love Field,” and it “intends to challenge any attempt or directive—whether by the 

City or the DOT—that seeks to block or restrain that right.”181 

Days after Southwest announced its plan to add flights at Love Field, on February 23, 

2015, Delta both renewed its request that the City accommodate Delta’s request for its existing 

five daily flights182 and, at the same time made a new, second accommodation request for an 

 

court-mandated divestiture of its Love Field gates. Id. American did not specify the date on 

which it sought to commence operations. Id. Also, the City did not receive additional 

information from American on its accommodation request subsequent to the April 9, 2015 letter. 

Haskel Affidavit ¶ 24. Although counsel for American appeared in the District Court litigation, 

it did not submit motions or briefs to the Court and did not actively participate in the hearing on 

the motions for preliminary injunction. Id. 

179 Exhibit 80, Email from R. Kneisley, Southwest, to K. Thomson, DOT (Feb. 13, 2015). 

180 Exhibit 81, Letter from B. Montgomery, Southwest, to M. Duebner, City, at 1 (Feb. 

27, 2015). 

181 Id. Southwest’s expanded service translated into a total of 180 flights per day on 18 

gates, or 10 flights/gate/day. Haskel Affidavit ¶ 26. In the City’s initial gate utilization and 

allocation study, prepared by LeighFisher, the City’s consultants determined that a reasonable 

maximum gate utilization capacity would be 10 flights/date/day. Id. The evidence at the later 

preliminary injunction hearing established that 10 flights daily per gate is the prudent maximum 

for aircraft of the sizes now used at Love Field, where hardstands are prohibited by WARA and 

the number of gates and hours of operation are limited. Id. 

182 Exhibit 82, Letter from K. Quinn, Delta, to W. Ernst, City, at 2 (Feb. 23, 2015); see 

also Exhibit 83, Letter from K. Quinn, Delta, to R. Kneisley, Southwest (Feb. 23, 2015) 

(requesting that Southwest, alone, accommodate five Delta departures and arrivals under the 

terms in First DOT Letter). 
45 

additional eight flights to begin on August 15, 2015.183 In its letter to the City, Delta requested, 

in the event that the other airlines did not voluntarily accommodate its needs, that “the City begin 

the forced accommodation process prescribed by [the Gate Accommodation Clause] of the 

[Lease].”184 

Southwest responded to Delta’s February 23 renewed and expanded accommodation 

request by stating that its expansion to 180 flights beginning August 9, 2015 “makes it 

impossible for Southwest to accommodate any other airline on its gates.”185 According to 

Southwest, “the City has no legal authority to mandate any accommodation that interferes with 

Southwest’s contractual and other rights to use its own leased gates for its own operations.”186 

Southwest also renewed its opposition to the City’s proposed snapshot date of November 5, 

2014, stating that “the City has no authority to mandate accommodation based on the availability 

of space as of a prior ‘snapshot date.’”187 According to Southwest, “the City cannot legitimately 

rely on the [First] DOT [L]etter to mandate a permanent accommodation on Southwest’s gates, 

and any attempt to do so would be unlawful.” 188 

L. Southwest Sues The DOT In February 2015 Challenging The First DOT 

Letter 

Simultaneous with its announcement of plans for 180 flights per day, Southwest filed a 

petition for review in the U.S. Court of Appeals for the District of Columbia Circuit challenging 

the First DOT Letter. See Southwest Airlines Co. v. U.S. Dept. of Transp., No. 15-1036 (D.C. 

 

183 See Exhibit 84, Letter from K. Quinn, Delta, to Southwest, Virgin, and SeaPort (Feb. 

23, 2015). 

184 Exhibit 85, Letter from K. Quinn, Delta, to M. Duebner, City (Feb. 23, 2015). 

185 Exhibit 86, Letter from R. Kneisley, Southwest, to K. Quinn, Delta (Feb. 27, 2015). 

186 Id. 

187 Id. at 2. 

188 Id. 
46 

Cir. Feb. 13, 2015). Southwest asserted that the First DOT Letter was a final agency action 

pursuant to 49 U.S.C. § 46110 and was issued in violation of the Administrative Procedures Act. 

Southwest contended that the First DOT Letter forces a permanent accommodation of Delta that 

deprives Southwest of its contracted-for right to fully use its leased gates at Love Field.189 

According to Southwest’s brief (filed June 22, 2015), the First DOT Letter “exceeds DOT’s 

statutory authority because no federal law authorizes DOT to require an airport operator to 

ignore the preferential lease rights of a signatory airline by treating a forced accommodation as 

‘permanent’” and “violates the [WARA] because it nullifies such preferential lease rights.”190 

Delta has participated as respondent-intervenor in the D.C. Circuit action. After the DOT 

issued a second letter to the City in June 2015, described below, Southwest filed a second 

Petition for Review on August 13, 2015 challenging the letter in the D.C. Circuit in which it 

repeated essentially the same arguments it made with respect to the First DOT Letter. See 

Southwest Airlines Co. v. U.S. Dept. of Transp., No. 15-1276 (D.C. Cir. Aug. 13, 2015). 

M. The City Requests The DOT’s Guidance On Remaining Accommodation 

Questions In February 2015 

Despite the apparent impasse, and the uncertainty created by the litigation, the City 

continued to seek a resolution. The City sought additional guidance from the DOT and the FAA 

on the City’s legal obligations in accommodating Delta. In a February 26 email to Ms. 

Thomson, other DOT staff, as well as Frank San Martin and Daphne Fuller at the FAA, the City 

 

189 See Exhibit 87, Opening Brief for Petitioner at 2-3, Southwest Airlines Co. v. U.S. 

Dept. of Trans. (D.C. Cir. June 22, 2015). 

190 Id. at 5. 
47 

stated its intent to “share with DOT and FAA the City’s positions and questions on stillunresolved related issues, and to request further DOT guidance . . . .”191

The City informed the DOT that it “concludes that each item of guidance contained in the 

[First] DOT letter was asserted because DOT and FAA believes that each item asserted standards 

that are necessary for the City to comply with the grant assurance agreements between DOT and 

the City, and the City will act according . . . unless (and to the extent) that DOT or the FAA 

advises the City in writing that this was not a reason for one or more such items.”192 The City 

also reminded DOT staff of the pending questions from the February 10, 2015 meeting to which 

the DOT said it would respond.193 Among those questions, the City requested a follow-up on the 

“interplay between the DOT letter and the provisions of § 5(e) of the Wright Amendment 

Reform Act of 2006” particularly § 5(e)(2)(B)(ii) that prohibits requiring the City to “modify or 

eliminate preferential gate leases . . . .”194 

Feeling pressured by the need to have its procedures in place and make a decision before 

July 7 (the expiration of the voluntary accommodation), the City reminded the DOT on March 

12, 2015, of its need for a response on the questions and clarifications that it had sought.195 

Specifically, the City reminded DOT that it was “trying to finalize [its] standard for 

accommodation decisions and these points [raised by the City in February] remain 

outstanding.”196 The City did not receive a response to its latest request for guidance until June 

 

191 Exhibit 88, Email from P. Haskel, City, to K. Thomson and staff, DOT, and F. San 

Martin and D. Fuller, FAA (Feb. 26, 2015). 

192 Id. (emphasis omitted). 

193 Id. at 2. 

194 Id. 

195 See Exhibit 89, Email from P. Haskel, City, to C. Baraban, DOT (March 12, 2015). 

196 Id. 
48 

15, nearly four months later, and only three weeks before the latest voluntary accommodation 

was due to expire. 

N. The City Proposes Revised Accommodation Procedures Based On The 

DOT’s Advice That Are Again Opposed By The Airlines (April 2015) 

By April 2015, it was apparent to the City that the impasse among the airlines on the 

permanent accommodation of Delta had still not been broken.197 On April 16, 2015, in another 

attempt to establish a fair and transparent process of addressing accommodation, the City 

circulated a revised version of its draft accommodation procedures and criteria to the DOT, the 

FAA, and airlines for comments.198 The procedures and criteria had been revised based on the 

guidance from the DOT correspondence, meetings and phone conversations and from earlier 

input from the airlines.199 The airlines responded with extensive comments on April 28, 2015 

expressing objections and criticisms similar to those they had earlier expressed:200 

• Delta: “Delta submits that the Accommodation Procedures can 

apply only prospectively to future requests for accommodation. 

Delta’s pending requests should be accommodated without further 

delay in accordance with the DOT Letter and [the Gate 

Accommodation Clause] of the [Lease] to promote competition at 

DAL.”201

• Southwest: “The City has no authority to restrict or interfere with 

Southwest’s rights to fully utilize its leased gates at Love Field and 

Southwest therefore objects to any provision of the proposed 

Accommodation Documents that, if implemented, would have the 

effect of doing so.”202

 

197 Haskel Affidavit ¶ 27. 

198 Id.; Exhibit 90, Email from L. Tuccelli sent on behalf of P. Haskel, City, to Airlines, 

the FAA, and the DOT (April 16, 2015). 

199 Haskel Affidavit ¶ 27. 

200 See Exhibit 91, Response of Southwest Airlines Co. to City of Dallas (April 28, 2015); 

see also Exhibit 92, Memorandum from J. Varley, Virgin, to P. Haskel, City (April 28, 2014); 

see also Exhibit 93, Letter from K. Quinn, Delta, to W. Ernst, City (April 28, 2015). 

201 Exhibit 93 at 2. 

202 Exhibit 91 at 4. 
49 

• Virgin: “The Accommodation Principles state that the mandatory 

accommodation process may proceed simultaneously with the 

requesting airline’s reasonable efforts to secure accommodations 

through consensual commercial discussions with airlines operating 

at the airport. This is inconsistent with the language and intent of 

[the Gate Accommodation Clause] of the [Lease] which states that 

a requesting airline must demonstrate to the DOA203 that it has 

contacted all airlines and has exhausted all reasonable efforts to 

secure accommodations at Love Field before the airport initiates a 

mandatory accommodation process.”204

Neither the DOT nor the FAA commented on the proposed accommodation procedures.205 

Between approximately May 19 through 24, and again on June 11 and 12, 2015, the City 

attempted to negotiate an extended temporary or a long-term gate accommodation agreement 

between Delta and Southwest.206 Each airline informally signaled what it might accept as a 

compromise, but rejected the proposals the other airline floated. No agreement was reached.207

O. The DOT’s Second Letter To The City On June 15, 2015 

Almost four months after the City requested further clarification and two months after the 

City had circulated proposed accommodation procedures for comment and guidance, the DOT 

responded by letter to those requests on June 15, 2015 (“Second DOT Letter”).208 The Second 

DOT Letter, dated June 15, 2015, explained that the DOT relied on the grant assurance statute 

and the competition plan statute as the basis for its conclusions in the First DOT Letter and stated 

 

203 The City believes that the term “DOA” refers to the City’s Director of Aviation. 

204 Exhibit 92 at 2. 

205 Haskel Affidavit ¶ 27. 

206 Id. ¶ 28. 

207 Id. 

208 Id. ¶ 29; Exhibit 94, Letter from K. Thomson, DOT, to P. Haskel, City, (June 15, 

2015). 
50 

that it viewed its positions in the First DOT Letter as “‘necessary for the City to comply with the 

grant assurances.’”209 

The DOT reiterated that the City “is required to accommodate a requesting carrier unless 

Love Field’s facilities are fully utilized at the time of the request, or the Signatory Airlines [sic] 

at the time of the request are selling tickets for future flights fully-utilizing the facilities.”210 In 

determining gate utilization, the DOT stated that it did not “believe that it would be consistent 

with the grant assurances or with the City’s Competition Plan” if the City considered “expanded, 

unscheduled service” that had not yet been offered for sale to the public.”211 The DOT repeated 

that an accommodated carrier must be allowed to continue a similar pattern of service.212 The 

letter concluded by stating that the decision on Delta’s request was the City’s responsibility but 

the City “must make this decision in compliance with the grant assurances and its other legal 

obligations.”213 

As with the First DOT Letter, the Second DOT Letter expressed the DOT’s position on 

what actions DOT would consider to be reasonable, but did not state what specific approach the 

City was legally required to take in order to be in compliance with all applicable law, including 

the Grant Assurances, WARA, the Five-Party Agreement, and the Lease.214 Moreover, the 

 

209 Id. at 1. 

210 Id. at 2. The DOT’s reference to signatory airlines contradicted its earlier guidance 

that the City should treat all requesting airlines alike and treat all incumbent airlines alike, 

regardless of lease status. The DOT apparently changed its guidance in the Second DOT Letter 

to limit the City’s obligations to signatory airlines only. Although Virgin, SeaPort and Delta 

operate at Love Field, none of them is a signatory airline. Southwest is the only signatory airline 

actually operating at Love Field. 

211 Id. 

212 See id. at 3. 

213 Id. at 4. 

214 Haskel Affidavit ¶ 30. 
51 

Second DOT Letter did not address how WARA affected the DOT’s view that the City’s had a 

general accommodation obligation, or explain the legal bases for DOT’s views.215 Just as 

importantly, the DOT declined to provide any guidance, much less definitive direction, on 

reconciling the City’s obligations under the Grant Assurances, the Lease, and WARA.216 The 

need to reconcile the City’s obligations was not merely theoretical because the theories offered 

by Delta, Southwest, and the DOT all conflicted.217 In other words, the City knew with virtual 

certainty that, if it chose one manner or another for reconciling these requirements, it would face 

litigation by the party or parties who disagree with its legal interpretation.218

P. Faced With Uncertainty and Impending Lawsuits, The City Seeks Guidance 

From The District Court 

The conflicting demands and legal interpretations, the lack of viable guidance from the 

DOT, and the impending July 6, 2015, expiration of Delta’s accommodation agreement with 

United, left the City with no clear path forward.219 The City felt it could not proceed in the face 

of the conflicting legal positions of the stakeholders regarding the meaning of the Gate 

Accommodation Clause, the relationship between the Lease, WARA, and the Five-Party 

Agreement and the City’s obligations under its Grant Assurances, and the scope of DOT/FAA’s 

authority over the accommodation process in light of WARA.220 Accordingly, the City felt it 

had no realistic option but to seek legal direction and guidance from a federal district court.221 

Therefore, on June 17, 2015, the City filed a complaint in federal district court for the Northern 

 

215 See id. 

216 See id. 

217 Id. 

218 Id. 

219 Id. ¶ 31.

220 Id. 

221 Id. ¶ 32.
52 

District of Texas, Dallas Division, challenging the First and Second DOT Letters and seeking 

declaratory relief against the DOT, Delta, Southwest, Virgin, United, and SeaPort.222 See City of 

Dallas v. Delta Air Lines, Inc., et al., No. 3:15 cv-02069-K (N.D. Tex. June 17, 2015). 

The City asserted in its complaint that by “directing the City to accommodate Delta on an 

indefinite and ongoing basis, DOT has violated WARA by effectively forcing the City to 

abrogate preferential gate leases protected by the Five-Party Agreement” and that the First and 

Second DOT Letters are therefore “unlawful, arbitrary and capricious, and in violation of 

WARA and the APA.”223 The City made it clear in the complaint (as it has throughout the 

ensuing proceeding) it does not favor either Delta or Southwest and is not seeking to violate any 

validly-issued DOT directive or FAA order.224 Rather, the City made clear that it needs to 

understand how to reconcile competing demands for scarce gate resources at Love Field with 

federal law.225 Further, there clearly are conflicting (and perhaps contradictory) legal obligations 

placed on the City by federal law (WARA), by its contractual obligations to the federal 

government (Grant Assurances), by the Lease, and by its obligations under the Competition Plan 

statute. The City sought judicial direction to avoid (1) an untenable legal conflict, (2) potential 

liability for interfering with preferential lease rights, and (3) an unsafe and inefficient practical 

conflict among the airlines for use of Love Field gates.226

 

222 Id. 

223 Exhibit 95, City of Dallas’ Original Complaint at 40, City of Dallas v. Delta Air Lines, 

Inc., et al., No. 3:15 cv-02069-K (N.D. Tex. June 17, 2015). 

224 See id. at 39. 

225 See id. At last count, Southwest Airlines has scheduled 180 flights, Delta has sought 

13 flights, American has sought 4 flights, and Virgin has 19 flights. Affidavit of Mark Duebner, 

(“Duebner Affidavit”), submitted concurrently with this Response, ¶ 3. With 20 gates, the 

maximum reasonable capacity of Love Field is between 190 and 200 flights per day, leaving the 

City facing more requests for gate space than it can accommodate. Id. 

226 Haskel Affidavit ¶ 32. 
53 

Q. Further Temporary Accommodation 

One of the principal purposes of the City’s litigation was to ensure that Delta remain 

accommodated notwithstanding the impending expiration of the voluntary accommodation on 

July 7, 2015.227 On June 23, 2015, U.S. District Judge Ed Kinkeade held a conference call with 

the parties as a result of which the District Court secured Southwest’s agreement to continue 

accommodating Delta’s five flights until September 30, 2015, the projected date for the 

conclusion of a hearing on cross motions for a preliminary injunction.228 Subsequently, 

Southwest agreed that the original intent was to extend the accommodation until the District 

Court rules on the competing preliminary injunction motions.229 Southwest and Delta entered 

into a temporary gate use agreement on July 2, 2015, accommodating Delta through September 

30.230 Delta has been continuously accommodated since then pending the District Court’s 

decision. 

R. Summary Of Litigation Status 

The City’s Litigation in District Court. The FAA, as a party to the litigation in the 

District Court, is fully informed of that proceeding. By way of summary, on September 28 

through September 30, 2015, Judge Ed Kinkeade held an evidentiary hearing on the motions for 

preliminary injunctions filed by the City, Delta, and Southwest. 

Delta is currently accommodated under a temporary gate use agreement with Southwest 

entered into on July 2, 2015 that was amended on October 7, 2015.231 That agreement will be in 

 

227 Id. ¶ 33. 

228 Id. 

229 Id. n. 14. 

230 Exhibit 96, Gate Use License Agreement Between Southwest and Delta, at 4 (July 2, 

2015). 

231 Id.; see also Exhibit 97, Letter from B. Stanton, Southwest, to W. Dawson, Delta and 

P. Haskel, City (Oct. 7, 2015) (amending language of Gate Use License). 
54 

effect until Judge Kinkeade issues an order granting or denying the requests by the City, 

Southwest, or Delta for a preliminary injunction, or renders a final judgment on the merits in the 

litigation.232 The District Court has not, at this writing, issued its order so Delta remains 

accommodated at Love Field, as it has continuously since 2009. 

The City’s Motion to Stay this Investigation. On September 11, 2015, the City moved 

in the District Court for leave to file a supplemental complaint to seek a stay or injunction of this 

investigation. DOT/FAA responded on September 17, 2015. The District Court has not yet 

ruled on the Motion for Leave to File. On November 13, 2015, the City filed a Motion to Stay or 

Enjoin this Investigation.233 Both City Motions were based primarily on the need for the District 

Court to protect its jurisdiction and reduce the risk of inconsistent rulings.234 As reflected in the 

City’s November 13 motion, the FAA’s decision to invite the airlines to comment on the City’s 

response to the NOI, effectively replicating the parties to the District Court case in the NOI 

proceeding, makes the risk of conflicting decisions particularly acute.235 The District Court 

ordered DOT/FAA and the other parties to file any responses by November 18, which 

 

232 See id.

233 Exhibit 98, City of Dallas’ Status Report and Emergency Motion for an Immediate 

Stay of the Federal Aviation Administration’s Proceedings, City of Dallas v. Delta Air Lines, 

Inc., et al., No. 3:15 cv-02069-K (N.D. Tex. Nov. 13, 2015). 

234 Under the All Writs Act, a court may issue an injunction prohibiting conflicting 

litigation. See Hillman v. Webley, 115 F.3d 1461, 1468 (10th. Cir. 1997). Here, the FAA seeks 

to conduct a duplicative proceeding under its own auspices and involving the same material facts 

and legal issues as those in the District Court. The NOI unlawfully diminishes the District 

Court’s power to bring the litigation—which involves both the FAA and the DOT—to a natural 

conclusion. ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1359 (5th Cir. 1978). Furthermore, 

the NOI interferes with the City’s efforts to meet its obligations under WARA and with the 

District Court’s jurisdiction to determine those obligations. See Love Terminal Partners, 527 

F.Supp.2d at 559. 

235 See Exhibit 98. 
55 

DOT/FAA, Southwest, and Delta did. The District Court had not ruled on the City’s Motion as 

of the time the City filed this Response. 

Southwest’s Challenge to the First DOT Letter. Briefing concluded in October 2015 

in Southwest’s lawsuit challenging the First DOT Letter in the D.C. Circuit. The Court of 

Appeals has not, at this writing, set a date for oral argument.236

Southwest’s Challenge to the Second DOT Letter. On October 26, 2015, the D.C. 

Circuit issued an order staying Southwest’s challenge to the Second DOT Letter until the Court 

of Appeals issues a decision on Southwest’s challenge to the First DOT Letter. 

ARGUMENT 

I. THE NOTICE OF INVESTIGATION MUST BE DISMISSED BECAUSE THE 

FAA LACKS JURISDICTION 

This matter arises under two legal regimes that are each beyond the FAA’s Part 16 

jurisdiction. First, the fundamental issue in this matter is a contract interpretation dispute: What 

is the meaning of the Gate Accommodation Clause in the Lease and how should that clause be 

applied in the real-world circumstances as they exist today at Love Field? The only reason the 

City has not yet been able to take final action on Delta’s accommodation requests is that there is 

a dispute over how to interpret the Gate Accommodation Clause. That dispute also affects 

directly the issues related to the City’s consent to the United-Southwest sublease and the FAA’s 

concerns regarding SeaPort. The FAA has long recognized, however, that it lacks jurisdiction 

under Part 16 to adjudicate contract disputes. See Final Agency Decision and Order, In re 

Compliance with Federal Obligations by the City of Santa Monica, Cal., FAA Dkt. No. 16-02-

08, at 54 (July 8, 2009). 

 

236 The DOT has argued that its letters were not final or binding, lack legal effect, and the 

DOT admits they failed to fully address WARA. Exhibit 99, Initial Brief for Respondent DOT at 

15-16, Southwest Airlines Co. v. U.S. Dept. of Trans. (D.C. Cir. August 21, 2015). 
56 

Second, the City’s obligations under the Gate Accommodation Clause have been 

federalized by WARA and WARA is not one of the statutes identified in 14 C.F.R. § 16.1. 

Disputes arising under laws not set forth in Section 16.1 may not be addressed in a Part 16 

proceeding. Id. at 29. The FAA has no jurisdiction in this proceeding to interpret, enforce or 

apply WARA. Moreover, WARA itself severely limits the FAA’s jurisdiction and authority by 

prohibiting the FAA from interfering with the performance of the Lease or from changing the 

terms of the Lease. WARA explicitly states that if the City is complying with the Lease, the 

FAA may not apply its authority under Grant Assurances 22, 23, and 39 to modify the terms of 

the Leases in order to accommodate a new entrant. 

The FAA seeks to avoid these clear jurisdictional bars by relying on Assurances 22, 23, 

and 39, as to which WARA § 5(e)(1)(E) preserves some limited FAA authority. However, 

Section 5(e)(1)(E) does not create a jurisdictional toe-hold under the circumstances of this case. 

Fundamentally, the City is committed to addressing all accommodation requests pursuant to the 

terms of the Lease and the Gate Accommodation Clause. The City has sought a judicial 

declaration of those obligations to resolve a dispute over the meaning of the Gate 

Accommodation Clause. The City will act in accordance with that ruling. Thus, the only action 

that the FAA could take as a result of this proceeding would be to take the redundant step of 

ordering the City to comply with the District Court’s ruling that the City knows it must follow or 

ordering the City to alter the terms of the Lease to accommodate a new entrant, which WARA 

expressly bars and which may violate the District Court’s rulings. 

A. Resolving The Accommodation Controversy Requires Resolving Disputes 

Over The Meaning Of The Gate Accommodation Clause 

There is no independent federal obligation to accommodate a non-lessee airline in gates 

(or other premises) leased and used by another airline. E.g., Edward Mainardi, Sr. v. Lincoln 
57 

Park Airport, Inc., FAA Docket No. 16-02-12, Final Decision and Order at 13 (Oct. 18, 2004) 

(“The Respondent is also not in a position, nor is FAA, to impose on a private business owner, 

such as Wagner Airways, to accept a new lease with a subtenant in the ordinary course of 

business.”); Compliance Manual ¶¶ 9.7(c) & 9.8. DOT/FAA has admitted that it is not aware of 

any airport where a mandatory accommodation has been ordered in the last twenty years.237 

Because all of the gates at Love Field are fully leased, the City’s accommodation obligation is 

defined only by the Gate Accommodation Clause and resolution of the accommodation 

controversy depends solely on interpreting the meaning of the accommodation provisions within 

the context of other provisions of the Lease. Moreover, WARA and the Competition Plan 

establish the Gate Accommodation Clause as the sole means for the City to accommodate new 

entrants at Love Field. 

The contractual nature of the accommodation controversy is apparent from the contractspecific issues raised by the airlines. The key issues in the accommodation controversy relate to 

the meaning of “new entrant” (also referred to in the Lease as a “requesting airline”), the 

duration of any accommodation, the manner and time at which the City must determine the 

extent of gate usage, and the respective rights of incumbent preferential leaseholders and the 

accommodated airline. Supra at 13-55. Those are quintessential contract issues arising under 

the specific language of the Lease. Although the parties to the controversy have at times resorted 

to the Grant Assurances and other FAA-administered federal law to support their interpretation 

of the Lease language, those laws were offered to aid the decisionmaker in determining the 

meaning of the Gate Accommodation Clause. 

 

237 Exhibit 100, DOT/FAA Response to the City’s First Set of Interrogatories, Response 

No. 5 (Sept. 21, 2015). 
58 

For example, the term “new entrant” is not defined in the Lease. The FAA and industry 

have used the term in inconsistent ways in various contexts over the years.238 The only way to 

determine the meaning of that term is to determine the intent of the parties to the Lease, which is 

a classic contract construction task arising under contract law and not any of the laws subject to 

the FAA’s Part 16 jurisdiction. 

The airlines dispute the meaning of other terms of the Lease, including how to reconcile 

the Lease terms that allow the City to mandate an accommodation under Section 4.06(F)(3) with 

 

238 The term is used in the Lease but there is no clear industry standard for its meaning. 

The Gate Accommodation Clause refers to a “new entrant” airline as a “Requesting Airline,” but 

does not define either term further. The Five-Party Agreement provides only that to “the extent 

to which a new entrant carrier seeks to enter Love Field, the City of Dallas will seek voluntary 

accommodation from its existing carriers to accommodate the new entrant service.” Exhibit 

1,¶ 3.b. However, the Five-Party Agreement does not further define “new entrant carrier” or 

“new entrant service.” The FAA’s guidance booklet on air carrier incentives refers to a new 

entrant carrier as a carrier which has newly entered a market (and is eligible for an incentive). 

http://www.faa.gov/airports/airport_compliance/media/air-carrier-incentive-2010.pdf. The 

FAA’s summary of airport competition plans uses the term “new entrant” in many different 

contexts but most of the quotes from airport competition plans appear to use the term generally 

to refer to carriers that are newly entering a market and nothing more (i.e., the term is used only 

to distinguish such operators from incumbents). 

http://www.faa.gov/airports/aip/guidance_letters/media/pgl_04_08b_competition_highlights_201

0.pdf. A similar usage appears in the FAA’s Program Guidance Letter 03-01 which explains the 

requirement for the preparation of airport competition plans. 

http://www.faa.gov/airports/aip/guidance_letters/media/pgl_04-08.pdf. The term has been used 

in other formal contexts such as the Wendell Ford Aviation Investment and Reform Act 

(“AIR21”) where the term is defined for certain purposes as “an air carrier that has been 

providing air transportation according to a published schedule for less than 5 years, including 

any person that has received authority from the Secretary to provide air transportation but is not 

providing air transportation.” The FAA rule on congestion at Chicago O'Hare Airport uses the 

term “new entrant” and the term “limited incumbents” in discussing the rights of air carriers to 

O'Hare slots. It noted that the term “new entrant/limited incumbent” is defined in AIR21. The 

term is defined in the regulation as “any U.S. or Canadian air carrier that does not hold or 

operate, and has never held or operated any Arrival Authorization at O'Hare, on its own behalf.” 

14 C.F.R. § 93.22. The FAA regulation implementing the Airport Noise and Capacity Act refers 

to new entrants (entitled to notice of proposed noise or access restrictions) as “any person 

intending to provide new air service to the airport within 180 days of the proposed date of 

implementation of the restriction.” 14 C.F.R. § 161.105; see also 49 U.S.C. § 40128(f) (3)(B) 

(defining the term “new entrant” for purposes of regulating helicopter tours over national parks 

and tribal lands). 
59 

the “priority” given to the incumbent airline in the event of a schedule conflict with the 

accommodated airline in Section 4.06(F)(4)(a). The duration of any accommodation is one of 

the most contested issues in this controversy. Again, resolving the apparent tension between 

those provisions is a classic contract construction task that does not arise under the Grant 

Assurances or other laws identified in 14 C.F.R. § 16.1(a). 

Finally, the City’s duties regarding approval of Southwest’s sublease of United’s gates is 

also a matter of contract interpretation. The City is contractually prohibited from unreasonably 

withholding or delaying consent to the sublease. Lease §§ 13.01(B) & 14.08. Whether the 

City’s consent was improper is a matter of contract interpretation, not the Grant Assurances. The 

accommodation obligation arises solely under the Lease and Five-Party Agreement as a matter of 

contract. Any argument that the Gate Accommodation Clause required (or even permitted) the 

City to withhold consent to the Sublease is a matter of contract law, not a Grant Assurance issue. 

B. The FAA Lacks Jurisdiction Over Disputes Regarding The Meaning Of 

Contracts Such As The Lease 

The FAA recognizes that contract disputes are beyond its Part 16 jurisdiction.239 As the 

Director has explained 

Whether or not an airport tenant has breached the terms of its lease 

agreement with the airport sponsor is a matter to be resolved in 

state court. The FAA is not a party to litigation proceedings 

between complainants and respondents involving contract disputes; 

 

239 The City recognizes that it had initially asked DOT/FAA to intercede to assist in 

resolving the accommodation controversy at Love Field and issue rulings that would resolve it. 

In that sense, the City believed that DOT/FAA had the authority to address certain legal issues 

that arose under the Lease’s subordination clause (Section 14.02) that may have helped resolve 

the controversy. It quickly became apparent that Southwest and Delta each disputed 

DOT/FAA’s authority even under that clause. Furthermore, the guidance from DOT/FAA failed 

to address the underlying contractual issues, despite the City’s requests that it do so, indicating 

that DOT/FAA did not believe it had the authority to provide definitive direction on those issues. 

Moreover, even if DOT/FAA had authority to provide interpretive guidance outside litigation, it 

does not have jurisdiction to bring Part 16 proceeding on a dispute over the meaning of the Lease 

at issue here. 
60 

nor does the FAA have jurisdiction over matters of contract law 

between airport tenants and sponsors. 

Asheville Jet, Inc. d/b/a Million Air Asheville v. Asheville Regional Airport Auth., FAA Docket 

No. 16-08-02, Director’s Determination at 32 (Oct. 1, 2009). Similarly, in Platinum Aviation 

and Platinum Jet Center BMI v. Bloomington-Normal Airport Auth., Ill., FAA Docket No. 16-

06-09, Final Decision and Order at 18 (Nov. 28, 2007), the FAA noted that it had no jurisdiction 

over a contract dispute explaining that although a state court may not have jurisdiction over an 

airport sponsor’s federal obligations, “the state court has otherwise broad authority to decide 

contractual disputes under state law.” 

Applying that principle, the Director has specifically found that it lacks jurisdiction to 

resolve a dispute over the meaning of a contract term and how to apply that contract term in a 

particular situation, even when the outcome of that dispute could implicate grant obligations. In 

Northwest Airlines Inc., et al. v. Indianapolis Airport Auth., FAA Docket No. 16-07-04, 

Director’s Determination at 28-29 (Aug. 19, 2008), the Director determined that the FAA lacked 

jurisdiction to resolve the issue because the dispute turned on whether the FedEx apron 

expansion was a “Special Purpose Facility” under a lease agreement and whether the treatment 

of the FedEx apron allowed for the application of a certain credit against landing fees. The 

Director concluded that that issue was “a contract dispute” and therefore should “not be adjudicated 

under Part 16.” Id. at 28. The Director further noted that there was no adverse impact on 

complainants because any adverse impact depended on resolution of the contract issue, which the 

Director described as “a potential future event” the outcome of which was “uncertain considering 

the differing analyses submitted by [the parties].” Id. 

The FAA’s lack of jurisdiction is made clear by In the Matter of the City of Santa 

Monica, FAA Docket No. 16-02-08, Final Agency Decision at 54 (July 8, 2009), where the FAA 
61 

ultimately found that it had no jurisdiction to adjudicate an alleged violation of contract cited in 

an FAA-initiated Notice of Investigation. In Santa Monica, the FAA issued an NOI and pursued 

a multi-year investigation into whether proposed measures to restrict access at Santa Monica 

Airport violated a number of Grant Assurances, other federal laws, and a 1984 settlement 

agreement between the FAA and Santa Monica. Id. at 22. After Santa Monica adopted the 

measures, the FAA issued a Director’s Determination finding, inter alia, that Santa Monica had 

violated the 1984 settlement agreement. Id. at 23. That decision was affirmed by an FAA 

Hearing Officer following an evidentiary hearing. Id. at 25. 

On appeal to the Acting Assistant Administrator for Aviation Policy, Planning and the 

Environment,240 the FAA held that the Hearing Officer’s decision that the FAA had jurisdiction 

to resolve the contract dispute was “in error.” Id. at 54. The FAA held that the 1984 settlement 

agreement had not been incorporated into subsequent grant agreements as Grant Assurances. Id.

The FAA concluded that 

Part 16 provides authority to resolve disputes arising specifically 

under AIP grant assurances. 14 C.F.R. § 16.1(a)(5). 

Consequently, resolution of issues arising under the 1984 

Settlement Agreement is not properly addressed in this proceeding 

under Part 16.

Id. 

That rule applies here. As in Santa Monica, the Lease has not been incorporated into any 

subsequent AIP grant as a sponsor assurance. Further, although the Lease’s obligations have, to 

an extent, been incorporated into federal law pursuant to WARA, Congress explicitly withheld 

from the FAA and the DOT any independent authority to enforce WARA. To the contrary, 

WARA makes clear that the FAA and DOT “may not interfere with the rights and obligations” 

 

240 The appeal was assigned to the Acting Assistant Administrator for Aviation Policy, 

Planning and the Environment instead of the Associate Administrator for Airports because of 

conflict of interest concerns. 
62 

regarding accommodation set forth in the Five-Party Agreement and the Lease. Love Terminal 

Partners, 97 Fed. Cl. at 411. The court went on to state that “WARA requires that Dallas 

allocate gates in accordance with the terms of the [Five-Party Agreement], which defined the 

rights and obligations existing for American, Southwest, and ExpressJet . . . .” Id. The FiveParty Agreement in turn incorporates the Gate Accommodation Clause. See Five-Party 

Agreement ¶ 3(b). Because resolution of the accommodation controversy turns on resolution of 

the disputed meaning of the Lease, the FAA lacks jurisdiction under Part 16. 

C. The FAA Lacks Jurisdiction Because WARA Is Not One Of The Statutes 

Included Within The FAA’s Part 16 Jurisdiction 

The FAA’s jurisdiction under Part 16 is limited to the statutes and laws enumerated in 14 

C.F.R. § 16.1(a). Final Agency Decision and Order, In re Compliance with Federal Obligations 

by the City of Santa Monica, Cal., FAA Dkt. No. 16-02-08, at 29 (July 8, 2009). The City’s 

federal obligations with respect to the Gate Accommodation Clause are governed by WARA, 

and not independently by any of the laws listed in Section 16.1. WARA defines the limits of the 

City’s obligation to accommodate new entrants pursuant to the Gate Accommodation Clause: 

The city of Dallas, pursuant to its authority to operate and regulate 

the airport as granted under chapter 22 of the Texas Transportation 

Code and this Act, shall determine the allocation of leased gates 

and manage Love Field in accordance with contractual rights and 

obligations existing as of the effective date of this Act for 

certificated air carriers providing scheduled passenger service at 

Love Field on July 11, 2006. To accommodate new entrant air 

carriers, the city of Dallas shall honor the scarce resource provision 

of the existing Love Field leases. 

WARA § 5(a). The Five-Party Agreement, which WARA generally incorporated into law, 

provides that if airlines do not accommodate a new entrant voluntarily, the City “agrees to 

require the sharing of preferential lease gates, pursuant to Dallas’ existing lease agreements.” 

Five-Party Agreement ¶ 3(b). WARA also provides that “any actions taken by the parties to [the 

Five-Party Agreement] that are reasonably necessary to implement its provisions shall be 
63 

deemed to comply in all respects with the parties’ obligations under title 49, United States 

Code.” WARA, § 5(d)(2). Accordingly, the City’s obligations to accommodate new entrants are 

defined by WARA. 

Because WARA is not identified in 14 C.F.R. § 16.1(a), the FAA lacks the jurisdiction to 

adjudicate any dispute regarding the City’s obligations under the Gate Accommodation Clause. 

Nor does WARA fall within Section 16.1’s catch-all provisions, which refer only to statutes 

codified in Title 49 of the U.S. Code, because WARA is not codified in Title 49. 

D. WARA Further Narrows The FAA’s Jurisdiction With Respect To The Gate 

Accommodation Clause 

Even if the FAA retained some jurisdiction over the City’s obligations under the Gate 

Accommodation Clause notwithstanding WARA’s general coverage, WARA further narrows the 

FAA’s authority and deprives the FAA of jurisdiction under the specific facts of this matter. 

WARA expressly limits the authority of the DOT and FAA to take any enforcement action or 

conduct an investigation regarding the allocation of gates under the accommodation provisions 

of the Five-Party Agreement and the Lease: 

Notwithstanding any other provision of law, the Secretary of 

Transportation and the Administrator of the Federal Aviation 

Administration may not make findings or determinations, issue 

orders or rules, withhold airport improvement grants or approvals 

thereof, deny passenger facility charge applications, or take any 

other actions, either self-initiated or on behalf of third parties . . . 

(A) that are inconsistent with [the Five-Party Agreement] or (B) 

that challenge the legality of any provision of [the Five-Party 

Agreement]. 

WARA § 5(d)(1). Although WARA § 5(e)(1)(E) states that WARA does not “limit the authority 

of the [FAA] or any other Federal agency to enforce [certain] requirements of law and grant 

assurances [including Assurance 22],” WARA § 5(e)(2)(B)(ii) limits the applicability of 

Subsection 5(e)(1)(E) with respect to accommodation requests by new entrants: 
64 

[Subsection 5(e)(1)(E)] shall not be construed to require the city of 

Dallas, Texas . . . to modify or eliminate preferential gate leases 

with air carriers in order to allocate gate capacity to new entrants 

or to create common use gates, unless such modification or 

elimination is implemented on a nationwide basis. 

Read together, these provisions of WARA limit the FAA’s authority in precisely the scenario 

presented by this proceeding. The FAA cannot order the City to take any action that is 

inconsistent with the terms of the Lease nor can the FAA order the City to change the terms of 

the Lease in order to accommodate a new entrant. Thus, WARA preserves the FAA’s authority 

under the Grant Assurances only with respect to matters not covered by the Five-Party 

Agreement or matters that violate the Five-Party Agreement. Moreover, as demonstrated above, 

the FAA lacks the jurisdiction to interpret disputed lease terms – a function reserved for the 

courts. 

Courts construing WARA have confirmed the narrow scope of FAA authority over the 

City’s actions under the Gate Accommodation Clause. In Love Terminal Partners, L.P. v. City 

of Dallas, Tex., 527 F.Supp.2d 538 (N.D. Tex. 2007), the court confirmed that WARA bars the 

FAA from using its authority under Title 49 in any way inconsistent with WARA or the FiveParty Agreement, stating that the language in § 5(d)(1) of WARA was a “directive to the Federal 

Aviation Administrator not to frustrate performance of the [Five-Party Agreement].” Id. at 559. 

The Court of Federal Claims in Love Terminal Partners v. United States, 97 Fed. Cl. 355, 406 

(2011), confirmed that principle stating that “Congress reinforced its intention to incorporate the 

[Five-Party Agreement] into federal law by ensuring that DOT and FAA policymaking does not 

affect any of the provisions contained therein.” Id. at 415. The court held that “Congress 

simultaneously defined and limited the ability of DOT and the FAA to regulate those matters 

encompassed by the [Five-Party Agreement]” and “the DOT and the FAA are statutorily 
65 

obligated to neither act in a manner that is inconsistent with [the Five-Party Agreement] nor 

challenge the legality of [the Five-Party Agreement]. Id. 

The Court of Claims specifically addressed the scope of WARA § 5(e)(1)(E), finding that 

its applicability is narrow, particularly given the provisions of Section 5(e)(2)(B)(ii) which 

further limit the FAA’s authority. The net effect is that 

the WARA ensures that, while those portions of the [Five-Party 

Agreement] that pertain to gate allocation at Love Field are matters 

of federal law, the federal government may not interfere with the 

rights and obligations set forth in paragraph 3 of article I of the 

[Five-Party Agreement]. 

97 Fed. Ct. at 410-11. Paragraph 3, Article I of the Five-Party Agreement incorporates the Gate 

Accommodation Clause of the Lease. 

In short, WARA statutorily directs the City to act in accordance with the Gate 

Accommodation Clause and deprives the FAA of any authority to interfere with those rights and 

obligations, to order the City to act in a manner inconsistent with the Lease, or to require the City 

to change the terms of the Lease to accommodate a new entrant. The question of whether the 

City is complying with the Gate Accommodation Clause is a matter of statutory interpretation 

under WARA and contract interpretation which are beyond the purview of Part 16 and outside 

the jurisdiction of the FAA to adjudicate. 

E. The FAA Lacks Jurisdiction Because The FAA Cannot Order Action 

Inconsistent With The Lease As Construed By The District Court 

In the ordinary case, once the meaning of a contract has been determined, the FAA would 

have jurisdiction to assess whether the terms of a contract are consistent with a sponsor’s Grant 

Assurance obligations and to require the sponsor to take corrective action if there were an 

inconsistency. Here, however, WARA deprives the FAA of that authority in the specific 

situation of the Gate Accommodation Clause. Under WARA, if the City acts consistent with the 

Lease, the FAA cannot use its authority to enforce grant obligations as a basis to require the City 
66 

to act in a manner inconsistent with the Lease and cannot require the City to change the Lease in 

order to accommodate a new entrant. 

The City has committed, and reiterates is commitment, to act in accordance with the 

Lease. There is a dispute over the meaning of the Lease. The City has sought direction from the 

District Court as to its obligations under the Lease. When the District Court rules (perhaps as 

soon as when the District Court rules on the pending motions for preliminary injunction), the 

City will then know definitively its obligations under the Lease. The City will act accordingly. 

The FAA has no authority to adjudicate the dispute over the meaning of the Lease and once the 

meaning of the Lease has been determined, WARA prohibits the FAA directing the City to act 

except in accordance with its terms. That is consistent with the fundamental purpose of WARA 

to protect the agreements memorialized in the Five-Party Agreement as a matter of federal law. 

Moreover, as a party to the District Court litigation, the FAA will be bound by any decree in that 

proceeding. 

WARA Subsection 5(e)(1)(E) does not override those limitations. Read together with 

Subsections 5(d) and 5(e)(2)(B)(ii), the savings clause in Subsection 5(e)(1)(E) is narrow and 

preserves the FAA’s enforcement authority under the Grant Assurances only with respect to 

matters not related to the Gate Accommodation Clause. With respect to the accommodation 

provisions, however, Congress has removed the FAA’s enforcement authority. Because this 

entire dispute turns on the meaning of the Gate Accommodation Clause and the City’s 

obligations thereunder, the FAA has no jurisdiction under Part 16 and there is nothing left for the 

FAA to adjudicate in this proceeding. 
67 

II. EVEN IF THE FAA HAS JURISDICTION, THE NOI MUST BE DISMISSED AS 

PREMATURE AND UNRIPE 

A sponsor’s action is not ripe for review under Part 16 if the policy, decision, or other 

action identified for review “has yet to be implemented or adversely affect the [c]omplainants.” 

Northwest Airlines, Inc., et al. v. Indianapolis Airport Auth., FAA Docket No. 16-07-04, 

Director’s Determination at 37 (Aug. 19, 2008). This standard is closely related to the 

requirement that a complainant be “directly and substantially affected” before an issue is ripe. 

Ashton v. City of Concord, FAA Docket No. 16-02-01, Director’s Determination at 27 (Aug. 22, 

2003). Accordingly, when a complainant presents speculative or hypothetical harm related to a 

policy that has not yet been implemented or applied, the issue is not ripe for review. Drake 

Aerial Enterprises, LLC v. City of Cleveland, FAA Docket No. 16-09-02, Director’s 

Determination at 20 (Feb. 22, 2010) (dismissing a challenge to a proposed but not adopted 

banner towing fee as “speculative” and a “premature” implication of a Grant Assurance 

violation); JetAway Aviation, Inc. v. Montrose Cty., Colo., FAA Docket No. 16-08-01, Director’s 

Determination at 37 (July 2, 2009) (“This is not a matter ripe for FAA review, since the County 

has not exercised any review and has not rejected any FBO management for any reason.”); 

Maxim United, LLC v. Bd. of Cty. Commissioners of Jefferson Cty., Colo., FAA Docket No. 16-

01-10, Director’s Determination at 21 (April 2, 2002) (“[S]ince the revised minimum standards 

at Jefferson County Airport have not yet been implemented, we cannot determine whether timing 

differences, if any, will result in unjust economic discrimination. As such, this issue is not ripe 

for review.”). 

As discussed above, supra at 60, the Director’s Determination in Northwest Airlines 

underscores the lack of ripeness to this investigation because Delta is currently accommodated 

and any future change in Delta’s ability to be accommodated at Love Field depends on the 
68 

uncertain outcome of a contract dispute. As the Director explained in Northwest Airlines in 

distinguishing an earlier decision 

The FAA notes that Martyn and the Complainant significantly 

differ. In Martyn, the complainant was in fact being denied access 

to the airport. In this Complaint, the Complainants are on the 

airport but arguing against a potential future event, which is 

uncertain considering the differing analyses submitted by the 

Complainants and the Authority. 

Northwest Airlines, Director’s Determination at 28. The Director went on to find the claims 

were not ripe because the disputed contract provision had yet to adversely affect the 

complainant. 

These principles mandate dismissal of the NOI for lack of ripeness. First, the City has 

not taken any final action, has not adopted a final accommodation policy that the FAA can 

evaluate (even assuming it had Part 16 jurisdiction), and Delta continues to be accommodated. 

There are, in short, no facts for the FAA to evaluate regarding how the City intends to meet its 

accommodation obligations and there is no harm to Delta in the interim. Further, it is pure 

speculation as to what the City’s final accommodation policy will be, what final accommodation 

decisions the City will make, and whether any of those actions implicate the Grant Assurances in 

any way. (The only certainty is the City’s repeated commitment that the final policy will be 

consistent with the Lease and the District Court’s rulings.) Under the FAA’s determinations, any 

potential “harm” is speculative until a carrier requests accommodation, the other airlines do not 

voluntarily accommodate the requesting carrier, and the City takes action which deprives that 

requesting carrier of accommodation in violation of the Gate Accommodation Clause. That has 

not happened. Accordingly, there is no ripe issue for the FAA to review. 

Second, the NOI is unripe given the particular procedural history of this dispute. As 

detailed above, the City made multiple attempts to implement an accommodation policy and 
69 

make an accommodation decision based in large part on DOT/FAA guidance. Supra 13-55. 

Each attempt was met with objections from the airlines and threats of litigation. To resolve that 

dispute, the City filed the declaratory judgment action in the District Court to obtain a binding 

determination of the City’s accommodation obligations under the Lease. The District Court’s 

decision in that case will be binding not only on the City and the airline parties, but on the 

FAA.241 Until the District Court rules, the parameters of the City’s accommodation obligations 

remain uncertain and there is simply no basis for the FAA to evaluate the City’s possible future 

actions at this time (even if the FAA were to have any jurisdiction at that time). 

The City understands from the FAA’s filings in the District Court that the FAA has its 

own view of how the City should have acted. The FAA appears to be taking the position in that 

litigation that the City failed to meet its obligations as a sponsor by failing to act in accordance 

with DOT/FAA guidance. Without disputing or agreeing with the substance of the FAA’s view, 

the fact that the FAA has articulated a position in the litigation does not make the controversy 

ripe for purposes of Part 16. 

Moreover, the City did attempt to implement DOT/FAA guidance. Those attempts were 

met with serious objections from Delta and Southwest, including threats of litigation.242 

Southwest filed two Petitions for Review in the United States Court of Appeals challenging 

DOT/FAA’s guidance as unlawful. Even if the City had moved forward and adopted the 

DOT/FAA recommendations, the decision would have been challenged in court, likely 

accompanied by requests for preliminary injunctive relief, and the parties would be in the same 

 

241 Even if the FAA is correct that the District Court lacks jurisdiction over it, any 

decision by the District Court will bind the City and the other parties. The City and the airlines 

will be required, as matter of law, to follow the District Court’s decision. Unless the FAA 

intends to direct the City and the airlines to ignore the District Court’s decision, the FAA cannot 

meaningfully affect the resolution of the accommodation controversy at this time. 

242 See Exhibit 5, Joint Stipulation at 6, Nos. 72, 73. 
70 

position as they are today. The City for its part has done what any responsible government 

would do when faced with conflicting demands from other government agencies and from 

tenants of one of its most important facilities: it sought declaratory relief from a court to 

adjudicate its rights and obligations. 

Furthermore, rather than applaud the City for seeking a quick resolution and continually 

pushing to make sure that Delta is not prejudiced while seeking such a resolution, the FAA has 

directly prejudiced the City by instituting this proceeding and forcing the City to reply even 

before the District Court has ruled and provided precisely the definitive direction that all the 

parties so desperately seek. The FAA has placed the City in the impossible position of defending 

an action it has not taken, of rearguing the legal and factual record that has been assembled in the 

federal court, and of mounting a defense before its legal obligations have been defined. By 

issuing the NOI, the FAA has placed the City’s grant and PFC funding at risk, but the City 

cannot fully defend itself because it has not made any final decisions and therefore cannot 

adequately explain its actions. The City offered the FAA and the DOT multiple opportunities to 

take definitive action before the City filed the declaratory judgment action. They chose not to. 

By waiting until after the litigation was underway, the FAA has deliberately increased the 

complexity and uncertainty and raised the specter of inconsistent rulings and conflicting 

decisions. 

Finally, the NOI suggests that the City’s failure to take final action merits investigation. 

But that does not make this dispute ripe for the simple reason that Delta continues to be 

accommodated and the City has not needed to take any final action that could be reviewed. 

Furthermore, because the extent of the City’s accommodation obligation, and conversely the 

accommodation privileges of any new entrant, remains undetermined, it is pure speculation that 
71 

any aeronautical user has or may be harmed. For example, if Southwest is correct in its 

interpretation of the Lease that the Gate Accommodation Clause does not allow the City to force 

an accommodation that would limit Southwest’s ability to make full use of the gates it leases 

based on announced future schedules, then no new entrant could have been accommodated under 

the Lease and there has been no legal injury. On the other hand, if Delta is correct that the Lease 

entitles it to a permanent accommodation, it has not yet been harmed because it has been 

accommodated in the interim and can continue to be accommodated. Only if the District Court 

affirms Delta’s theory and then the other airlines do not voluntarily accommodate Delta, does the 

City have the authority to force an accommodation under the Gate Accommodation Clause. 

Everything else is speculative: it is impossible now to determine if any other accommodation 

requests could or would have been granted without analyzing gate utilization and applying the 

correct legal principles, which are currently the subject of the District Court litigation. 

Furthermore, the suggestion that the City should already have acted in compliance with 

the DOT/FAA guidance does not make this matter ripe because that guidance was not binding. 

In response to Southwest’s Petition for Review DOT/FAA has taken the position that its 

guidance letters were not final agency decisions and did not have the effect of law. DOT/FAA 

took the same position in responding the City’s Interrogatories in the District Court litigation.243 

If that is the FAA’s position, then there is no legally enforceable directive from the FAA that 

could have constituted a sufficient legal basis upon which the City could have acted. The FAA 

cannot have it both ways: it cannot both assert that the DOT/FAA guidance is mere a 

preliminary, interlocutory suggestion and that the City violated its grant obligations by not 

following those non-binding suggestions. 

 

243 Exhibit 100, Response No. 1. 
72 

All of this is to underscore that in the absence of final action by the City, there is simply 

nothing to investigate and no final City action (or inaction) to evaluate. Any attempted 

adjudication would rest on multiple layers of speculation and assumption, rather than facts. It is 

for that fundamental reason that Part 16 matters are not ripe until the sponsor has taken a final 

action that can be reviewed. 

Even if this case were ripe, the City urges the FAA prudentially to withdraw this NOI 

pending the District Court’s decision and pending the City’s response to that decision in order to 

prevent the unnecessary expense and burden of litigating this investigation and to eliminate the 

risk of conflicting or inconsistent decisions between the District Court and the FAA. 

III. ASSUMING THE FAA HAS JURISDICTION AND THAT THE CASE IS RIPE, 

THE CITY IS IN COMPLIANCE WITH ITS GRANT OBLIGATIONS 

As detailed above, the FAA lacks jurisdiction over the issues raised in the NOI, and even 

if the FAA had jurisdiction, the issues are not ripe for adjudication. In the event the FAA elects 

to proceed without jurisdiction and to treat the accommodation issue as ripe, the City has not 

violated its grant obligations. To the contrary, the City has worked tirelessly, and at great 

expense, to meet its accommodation obligations. Although the controversy is not fully resolved, 

Delta has been continuously accommodated and there is a clear path forward to resolution. The 

City has acted reasonably and transparently to assure it meets its accommodation obligations and 

has not done anything that is inconsistent with its obligations as an airport sponsor.244

 

244 Ordinarily in a Part 16 proceeding, if the FAA finds a Grant Assurance violation, it 

will offer the sponsor an opportunity to develop a corrective action plan. 14 C.F.R. § 16.109. 

Even if the City were in violation of its grant obligations for some reason that the City cannot 

understand, a corrective action plan in this instance is likely to look remarkably like what the 

City has already been doing: the City would seek legal certainty as to its obligations under the 

Lease and applicable federal law and would then, as appropriate, make an accommodation 

decision if the requesting carrier has not been voluntarily accommodated. That is precisely what 

the City has been doing. Moreover, the NOI “invites” the City’s good faith efforts to resolve 
73 

The FAA’s compliance program is focused on achieving voluntary compliance. 

Therefore, “in addressing allegations of noncompliance, the FAA will make a determination as 

to whether an airport sponsor is currently in compliance with the applicable Federal obligations.” 

Scott Meyer v. City of Cincinnati, FAA Docket No. 16-12-14, Director’s Determination at 10 

(Sept. 12, 2014). In making an assessment of current compliance: 

FAA must make a judgment call in all cases as to whether a 

sponsor is reasonably meeting its federal commitments. A sponsor 

meets its commitments when: 

(1) The federal obligations are fully understood; 

(2) A program (e.g., preventive maintenance, leasing policies, 

operating regulations, etc.) is in place that the FAA deems 

adequate to carry out the sponsor’s commitments; 

(3) The sponsor satisfactorily demonstrates that such a program is 

being carried out; and, 

(4) Past compliance issues have been addressed. 

Airport Compliance Manual (FAA Order 5190.6B, hereinafter “Compliance Manual”) ¶ 2.8(b); 

see also Keathly v. City of McKinney, TX, FAA Docket No. 16-03-14, Director’s Determination 

at 20-21 (Oct. 13, 2004) (finding no violation when respondent was aware of its wildlife 

mitigation obligation, had a plan to address that obligation, and was diligently carrying out that 

plan); see also Ricks v. Greenwood-Leflore Airport, FAA Docket No. 16-09-04, Director’s 

Determination at 17 (Jan. 24, 2011) (same, in the context of removing aircraft equipment on 

airport property). The facts of the accommodation controversy demonstrate overwhelmingly that 

the City is currently in compliance with its grant obligations. 

 

informally the matters in the NOI. The City has offered to meet with the FAA for those very 

purposes but has not yet received a response. 
74 

A. The City Has Demonstrated That It Understands Its Accommodation 

Obligations 

There is no genuine disagreement that the City understands that it has some obligation to 

make accommodations as provided in to the Lease, the Five-Party Agreement, and WARA. 

From the time that Delta informed the City of its need for assistance in obtaining 

accommodation, the City has demonstrated a keen understanding of its obligation to address that 

request. Without restating the lengthy history of the dispute set forth above, the City has 

repeatedly threatened to invoke the forced accommodation procedures and otherwise used its 

legal and moral authority to assure the continued accommodation of Delta. The City has spent 

considerable effort (not to mention City funds) to work with the airlines, with DOT/FAA, and 

even with DOJ to ensure Delta can be accommodated. For the last 13 months, the City has been 

successful. The FAA has no reason to believe that the City will not continue to be successful in 

skillfully navigating the dangerous shoals between the conflicting airline, DOT, and DOJ 

arguments. 

As a further demonstration of the City’s genuine effort to ensure continued Grant 

Assurance compliance, the City sought guidance and assistance from DOT/FAA as soon as it 

was apparent that the airlines intended to fight over the meaning of the Gate Accommodation 

Clause. In November, 2014, the City attempted to implement DOT/FAA’s guidance, but was 

met by strong resistance from the airlines, including threats of litigation. The City thereafter 

sought further guidance and clarification from DOT/FAA, but that guidance, provided in 

December, 2014, was again met with objections from the airlines and more threats of litigation 

against the City. Indeed, Southwest sued DOT/FAA challenging the legality of DOT/FAA’s 

guidance. In April 2015, the City developed a revised accommodation policy, again 

incorporating DOT/FAA guidance. That effort was also met again with objections and litigation 
75 

threats. In June, 2014, DOT/FAA again offered guidance, Southwest again challenged that 

guidance in the Court of Appeals, and DOT/FAA later claimed that that guidance lacked the 

effect of law. The DOT/FAA disclaimer underscores that the City acted prudently and 

reasonably in seeking judicial resolution of the controversy. Attempting to follow DOT/FAA’s 

admittedly non-binding suggestions would not have provided the City with the legal certainty it 

would have needed to defend its actions in the certain litigation that would have been filed by 

Southwest and/or Delta. 

The City has invested countless personnel hours and hundreds of thousands of dollars in 

an effort to resolve the accommodation controversy. The City plainly understands its 

obligations. The fact that the City has not yet succeeded in resolving the controversy does not 

mean it does not understand its obligations. 

B. The City Has A Plan To Meet Its Accommodation Obligations 

The City is acutely aware that it has not resolved the accommodation controversy. As 

summarized above, the City has worked, and continues to work, ceaselessly to do so. It has 

invoked contractual power, it has invoked the regulatory and legal power of DOT/FAA, it has 

used its moral authority as proprietor, it has attempted negotiation and consultation, and it has 

attempted to force the issue. At every turn, those efforts have been met with determined 

resistance from the airlines, including repeated threats of litigation. Although the City received 

guidance from DOT/FAA, that guidance was never backed up with the force of law and was 

never presented with sufficient detail or authority to address the objections of the airlines and the 

concerns of the City, which has ultimately led Southwest to challenge the guidance in the Court 

of Appeals. 

Having been unable to resolve the issue through those means, the City filed the District 

Court action seeking a declaratory judgment regarding the precise scope of its accommodation 
76 

obligations under the Lease. The suit named DOT/FAA and all airlines currently operating at 

Love Field, as well as American, which has sought accommodation. The City has specifically 

requested the District Court to resolve the controversy and declare the City’s accommodation 

obligations under the Lease. 

Just to be sure that the FAA understands the City’s commitments, they are repeated here. 

After the District Court rules, the City will implement the following plan to ensure continued 

Grant Assurance compliance. 

(1) The City will promptly adopt an accommodation policy based on the District Court’s 

ruling. 

(2) The City will address all pending accommodation requests pursuant to that policy. If 

the City can require an airline to accommodate any requesting airline, it will do so 

consistent with any further direction from the District Court. 

By basing its accommodation policy and decisions on a judicial declaration in a case in which all 

of the interested parties were joined, the City has adopted a plan designed to resolve definitively 

the controversy and to allow the City to meet its accommodation obligations in an undisputedly 

lawful manner.245

Moreover, the outcome of this controversy would not have been substantially different if 

the City had implemented an accommodation policy based on DOT/FAA guidance as the FAA 

apparently now desires, except that the City might be facing greater legal and financial exposure. 

As described above, the City’s proposals to do so were met with threats of litigation and there is 

no doubt that any final action by the City would have led to litigation raising the same core 

issues that are now before the District Court. Accordingly, the City’s plan represents a proactive 

 

245 The District Court also heard extensive testimony and argument regarding the 

propriety of United’s sublease to Southwest. That issue is expected to be resolved in the 

litigation as well. 
77 

effort to resolve the controversy and obtain a binding determination of how the City may 

lawfully meet its accommodation obligation.246

C. The City Is Carrying Out Its Plan To Comply With Its Accommodation 

Obligations 

The City is actively and expeditiously carrying out its plan to remain in compliance with 

its grant obligations. As the FAA knows, the City initiated the litigation and, together with the 

airlines, moved very quickly to position the case for adjudication, including a massive amount of 

discovery and extensive motions practice, culminating in a three-day evidentiary hearing on the 

City’s motion and airlines’ cross motions for preliminary injunction. Throughout that process, 

the City convinced the District Court to enter orders and to use its persuasive powers to assure 

that Delta continued to be accommodated. The City expects the District Court to rule on the 

several pending substantive motions very soon, which rulings should lead to a resolution of the 

dispute. In the interim, Delta remains accommodated. The City is committed to obtaining a 

ruling on the merits as expeditiously as possible. Once the District Court makes a final ruling, 

the City will finalize its accommodation policy and act on any pending accommodation requests. 

D. The City Has No Outstanding Compliance Violations 

The City has an impeccable compliance record. The City is not aware of any unresolved 

compliance matters. 

 

246 The City understands that there is a dispute over the extent of the FAA’s authority 

over accommodation under the Lease. The City’s position is that the FAA has no authority to 

mandate accommodation and that the Grant Assurances do not impose any obligations on the 

City above and beyond the accommodation obligations of the Lease. The City understands that 

the FAA disputes that position. The FAA has not asserted its position in this proceeding but has 

made its views clear in the District Court litigation. Naturally, the City has requested that the 

District Court resolve that dispute along with the other disputed matters concerning 

accommodation. If the District Court rules in the City’s favor, this proceeding will become 

moot. If the District Court does not rule in the City’s favor, the City commits to work with the 

FAA to adopt an accommodation plan that is consistent with WARA and the Lease as construed 

by the District Court and any additional grant obligations that may apply unless the District 

Court’s ruling is overturned on appeal. 
78 

E. Conclusion: The City Currently Complies With Its Grant Obligations 

The City has clearly demonstrated that it is currently in compliance with its 

accommodation obligations. The City’s ceaseless and burdensome efforts over the past 13 or 

more months to address the accommodation controversy created by the reduced gate capacity at 

Love Field stand as a practical demonstration of the City’s commitment. The City clearly 

understands its obligations and has exhausted all means to meet those obligations. The City has 

a plan to resolve the outstanding legal controversy regarding its accommodation obligations and 

is diligently and aggressively pursuing that plan by seeking a binding, legal ruling on the precise 

scope and nature of its accommodation obligations under the Lease. In the interim, the City has 

made every effort to assure that Delta has been continuously accommodated at Love Field. By 

any reasonable application of the FAA’s current compliance standard, the City currently 

complies with its accommodation obligations and the NOI should be dismissed. 

IV. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND EVEN IF 

THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY OBLIGATIONS 

UNDER ASSURANCE 22 

The NOI states that the FAA is investigating: 

Whether the City’s failure to grant or otherwise act on Delta’s 

request for accommodation of five daily flights at DAL is 

consistent with its grant obligation to make its airport available as 

an airport for public use on reasonable terms and without unjust 

discrimination to all types, kinds, and classes of aeronautical 

activities. (Grant Assurance 22) 

NOI at 11-12. 

Grant Assurance 22 requires airport sponsors to “make the airport available as an airport 

for public use on reasonable terms and without unjust discrimination to all types, kinds and 

classes of aeronautical activities, including commercial aeronautical activities offering services 

to the public at the airport.” The FAA construes this to have three distinct requirements: 

• Making the airport and its facilities available for public use, 
79 

• Ensuring that the terms imposed on aeronautical users are reasonable for the 

services and facilities provided, and 

• Applying those terms without unjust discrimination. 

Compliance Manual ¶ 9.1(a). Applying those principles to the facts of this case makes clear that 

the City is not in violation of any obligation under Assurance 22 for two principal reasons. 

First, Delta is now being accommodated and has been continuously accommodated at the 

Airport, and the City has taken proactive steps to assure its continued accommodation pending 

the District Court’s determination of the City’s contractual obligation to accommodate Delta. 

Second, if at some time the City is no longer able to accommodate Delta, it would be because 

there is no available space, as defined by the Lease. Assurance 22 does not authorize the FAA to 

require an airport sponsor to lease property to a new entrant when there is no space available. 

WARA does not allow the FAA to use its Assurance 22 authority to modify the terms of the 

Lease. See WARA § 5(e)(2)(B)(ii). Because WARA artificially limits the gate capacity at Love 

Field, if there is not space in the terminal, the FAA cannot mandate accommodation of Delta 

without modifying the Lease, which would be barred by WARA. If there is available gate 

capacity at Love Field, the Lease will allow the City to, and the City will, accommodate Delta. 

The ultimate disposition of Delta’s accommodation request turns on the meaning of the Gate 

Accommodation Clause, which is being litigated in the District Court. Assurance 22 does not 

give the FAA any independent authority to compel an accommodation. 

A. Delta Has Been Continuously Accommodated And Has Not Been Denied 

Access To Love Field 

The FAA’s statement of the issue rests on an incorrect assumption: That Delta has been 

denied reasonable access to Love Field because of some action or inaction by the City. But the 

fact is that Delta has been granted access to Love Field and has been continuously 

accommodated. Although it is true that the City has not itself found it necessary to make a 
80 

forced accommodation to assure Delta access, the City did not need to use that authority under 

the Lease because the City has been successful in convincing the incumbent airlines to 

accommodate Delta and because the District Court has further taken steps to assure continued 

accommodation. The City has repeatedly made clear its willingness to force an accommodation, 

but has not needed to exercise that authority. 

As set forth in detail above, supra at 13-55, the City has worked tirelessly and ceaselessly 

to assure the continued accommodation of Delta even as Delta, Southwest, DOT/FAA, and the 

City disputed the scope of the City’s accommodation obligations. Specific actions by the City 

have in fact led, directly or indirectly, to the continued accommodation of Delta, as summarized 

in the following chart: 

Date on which Delta’s 

Accommodation 

would have 

Terminated 

The City’s Action Accommodation Extension 

October 12, 2014 September 19, 2014. The City 

orders United to accommodate Delta. 

Although that decision is rescinded 

on September 29, the City sought 

DOT guidance and encouraged the 

airlines to agree on a voluntary 

accommodation. 

October 10, 2014. Airlines 

agree to accommodate Delta 

through January 6, 2015. 

January 6, 2015 December 1, 2014. The City notifies 

airlines of 30-day voluntary 

accommodation period, then on 

December 24, 2014, the City directs 

accommodation until February 28, 

2015.

January 6, 2015. United and 

Delta agree to Delta’s 

accommodation through July 

6, 2015. 

July 6, 2015 June 17, 2015. The City seeks 

declaratory relief from the District 

Court. 

July 2, 2015. Southwest and 

Delta agree to Delta’s 

accommodation until decision 

from the District Court. 
81 

Indeed, those “temporary” accommodations are greater than the accommodation term 

Delta enjoyed prior to October 2014. Between 2009 and October 2014, Delta’s agreement with 

American afforded it accommodation only on a month-to-month basis. Supra at 12. Through 

the efforts of the City and others, Delta has been accommodated through several multi-month 

accommodation agreements. That Delta would like longer-term certainty does not support a 

violation of Assurance 22. Skydive Monroe, Inc. v. City of Monroe, Ga., FAA Docket No. 16-

06-02, Director’s Determination at 9 (Mar. 30, 2007) (“[T]he grant assurance obligations do not 

require an airport sponsor to accommodate the space demands of each aeronautical tenant at the 

airport.”); Edward Mainardi, Sr. v. Lincoln Park Airport, Inc., FAA Docket No. 16-02-12, Final 

Decision and Order at 13 (Oct. 18, 2004) (“The Associate Administrator also agrees that Grant 

Assurance 22, Economic Nondiscrimination, does not require the airport owner to provide any 

and all services its aeronautical users desire.”). 

The bottom line is that the City has assured, directly or indirectly, that Delta has been 

continuously accommodated. What the City has accomplished to date is precisely what the DOT 

has repeatedly urged of the City: that it use its persuasive power to facilitate voluntary 

accommodation, that it try to convince airlines that voluntary accommodation is preferable to 

forced accommodation, but that it retain the authority to mandate accommodation as a last resort. 

See NOI at 12 (“The FAA strongly recommends that the City ensure the maintenance of the 

status quo at DAL until this matter can be resolved.”). Moreover, once the District Court 

determines the scope of the City’s accommodation obligations under the Lease, WARA, and the 

Five-Party Agreement, the City will make a final accommodation decision (assuming that the 

airlines do not reach a voluntary accommodation agreement) in accordance with law. Those 

facts alone demonstrate that there is no Assurance 22 issue that merits investigation. 
82 

B. The City Is Not In Violation Of Assurance 22 Just Because It Has Not Yet 

Had To Make A Final Accommodation Decision 

As presented by the FAA, the Assurance 22 issue assumes that there is an Assurance 22 

compliance problem just because Delta has not been accommodated on a permanent basis. That 

assumption is false, however. The City’s accommodation obligations are defined solely by the 

Lease, as codified in the Five-Party Agreement and WARA. The Lease only requires 

accommodation under particular conditions, and not under any circumstance. Moreover, under 

Assurance 22 precedents, the City has no obligation to accommodate Delta, as a non-lessee, 

when all of the gates at Love Field have been leased, when incumbent airlines assert that all of 

their leased gate capacity is being used, and when the City is statutorily barred from building 

additional gates or providing additional gate capacity. As the City has stated repeatedly, it will 

address Delta’s accommodation request pursuant to the Lease once the District Court has 

adjudicated the City’s obligations under the Lease. Until then, however, Delta remains 

accommodated. 

Aside from the Lease, there is no Grant Assurance 22 obligation that Delta be 

accommodated. The FAA has long held that Assurance 22 does not require an airport sponsor to 

lease land or space to an aeronautical user when there is no space available: 

The Director accurately portrays that the Respondent is not 

obligated to provide hangar space to the Complainant in a case 

where none is available. The Associate Administrator also agrees 

that Grant Assurance 22, Economic Nondiscrimination, does not 

require the airport owner to provide any and all services its 

aeronautical users desire. 

Accepting for the sake of argument, the Complainant’s assertion 

that space, besides Wagner Airways’ hangar, was not available, the 

Respondent is not required to provide space where space is not 

available. The Respondent is also not in a position, nor is FAA, 

to impose on a private business owner, such as Wagner Airways, 

to accept a new lease with a subtenant in the ordinary course of 

business.
83 

Edward Mainardi, Sr. v. Lincoln Park Airport, Inc., FAA Docket No. 16-02-12, Final Decision 

and Order at 13 (Oct. 18, 2004) (emphasis added). Indeed, the City is not aware of any instance 

in which the FAA has ordered an airport sponsor to displace a tenant from space it was using (or 

had a reasonably foreseeable need for) in order to meet its Assurance 22 obligation to provide 

public access to the airport. 

This principle is confirmed in the Compliance Manual ¶ 9.7(c) (emphasis added): 

If adequate space is available on the airport and the sponsor is not 

already providing identical aeronautical services, Grant Assurance 

22, Economic Nondiscrimination, requires the sponsor to negotiate 

in good faith and on reasonable terms with prospective 

aeronautical service providers. 

Paragraph 9.8 acknowledges that where an airport is operating at capacity 

new air carriers wishing to serve an airport often faced a lack of 

available facilities. In some instances, established air carriers 

made space available for the newcomers. However, in other cases, 

no space was made available, and sponsors subsequently denied 

the newcomers access to the airport. 

Paragraph 9.8(a) goes on to state that under Assurance 23 an airport “sponsor may not deny an 

air carrier access solely based on the nonavailability of existing facilities. The sponsor must 

make some arrangements for accommodations if reasonably possible.” (emphasis added)247 

 

247 Paragraph 9.8(a) refers to the FAA’s decisions in FAA Docket No. 16-98-05 for 

further guidance. That case, however, is inapplicable here. In Centennial Express Airlines, FAA 

Docket No. 16-98-05, the airport sponsor received a request from a carrier to start scheduled 

service at the airport. The airport sponsor refused the request and refused to make any attempt to 

accommodate the request, and further enacted legislation prohibiting scheduled service at the 

airport. Those facts bear no relationship to the facts here, where scheduled service has been 

accommodated, supported, and encouraged at Love Field for decades. The issue here is much 

narrower: What is the City’s obligation to accommodate a request for gate space when all gate 

space is leased or used by incumbent airlines, when the City is statutorily barred from adding 

additional capacity to accommodate more flights, and where a congressionally mandated process 

is in place to allocate unused gate capacity to new entrants.
84 

Under those principles, it is clear that the City is in compliance with any obligations it may have 

under Assurance 22.248

First, the Gate Accommodation Clause, as codified in the Five-Party Agreement and 

WARA, provides a specific mechanism to allocate unused gate capacity to new entrants at Love 

Field. That mechanism is tailor-made to the unique circumstances at Love Field where the City 

(and the FAA) are statutorily barred from enlarging gate capacity or modifying existing 

preferential leases. Congress has determined that compliance with the Gate Accommodation 

Clause complies with all of the City’s obligations under Title 49 and barred the FAA from 

interfering with the execution of that mechanism. Accordingly, unlike almost every other airport 

sponsor, the City has a contractual mechanism in place to accommodate new entrants that 

Congress has deemed to be compliant with all Title 49 obligations – including the Grant 

Assurances. Pursuant to WARA, Congress has determined that the Gate Accommodation Clause 

is the sole requirement for the City to accommodate new entrants, as discussed above. Supra at 

63-65. If the City complies with the Lease, it complies with the Grant Assurances. Period. 

Further, the Gate Accommodation Clause has been incorporated into the City’s 

Competition Plan submitted in accordance with 49 U.S.C. § 40117(k). The Competition Plan 

 

248 When the Compliance Manual refers to reasonable accommodation, it is referring to a 

factual situation far different from what exists today at Love Field. In many instances, 

“nonavailability of existing facilities” does not foreclose the requested activity because the 

sponsor can construct or make land available for the requested facilities. When the Compliance 

Manual states that “The sponsor must make some arrangements for accommodations,” it is 

referring to this scenario. See, e.g., Exhibit 101, Letter from Carol A. Key, Manager Seattle 

Airports District Office to David A Waggoner, Airport Director, Paine Field (June 4, 2008) 

(regarding the obligation of a sponsor to allow a carrier to build airline gates to accommodate 

proposed service). Of course, that situation does not apply here. When it comes to gate facilities 

at Love Field, the City is statutorily prohibited from making additional facilities available (e.g., 

new gates or non-gate airline loading facilities). That situation is unusual if not unique in the 

United States. 
85 

states that the City intends to use the Gate Accommodation Clause to address accommodation 

requests by new entrants: 

In the future, the City intends to accommodate requests for access 

by applying sharing provisions contained in the current leaseprovisions which have been incorporated in [the Gate 

Accommodation Clause] of the new Restated Lease . . . . As 

provided in the Five Party Agreement and Restated Lease, 

however, if the City recaptures any of the 20 leased gates, we will 

make them available on a common-use basis. 

Consistent with this approach, the City anticipates accommodating 

the Delta service commencing this summer through facilities 

currently used by American. As current facilities are demolished 

during the terminal redevelopment, the City will relocate both 

Continental and Delta to temporary facilities. Once the terminal 

redevelopment is completed, the City will accommodate Delta 

based on the gate sharing provisions of the preferential use 

lease.249

The FAA has accepted the City’s Competition Plan, without comment or objection, and has 

never so much as suggested the need to modify it.250 

Accordingly, the City has a compliant mechanism to accommodate new entrants and, as 

detailed above, has exercised that authority to assure the continuous accommodation of Delta. 

Future accommodation of Delta will be addressed through the Gate Accommodation Clause once 

the contract dispute over the meaning of those provisions is resolved in the District Court. 

Nothing in Paragraph 9.8 of the Compliance Manual gives the FAA any authority to 

order the City to do anything more than the Lease or the Competition Plan requires. Paragraph 

9.8(a) provides for mandatory access only “if reasonably possible.” Paragraph 9.8(c) provides 

for ACO-100 review of denials of accommodation so that ACO-100 can “coordinate the effort of 

the regional airports division with the FAA Office of Chief Counsel to achieve a viable solution 

to the problem.” Under WARA, the only “reasonably possible” solution to an accommodation 

 

249 Exhibit 2, Competition Plan at 5. 

250 See Exhibit 3. 
86 

issue is compliance with the Gate Accommodation Clause. WARA§ 5(e)(2)(B)(ii) expressly 

prohibits the FAA from using its authority under Grant Assurance 22 to “to modify or eliminate 

preferential gate leases with air carriers in order to allocate gate capacity to new entrants or to 

create common use gates, unless such modification or elimination is implemented on a 

nationwide basis.” WARA further prohibits the FAA from interfering with the performance of 

the Five-Party Agreement and the Lease. Indeed, as discussed above, the FAA has long denied 

that it has jurisdiction over contract matters and cannot determine the meaning of contracts. 

Supra at 59-61. WARA further limits the FAA or the City from expanding Love Field to 

accommodate new entrants. The only reasonably possible accommodation mechanism is the 

Gate Accommodation Clause. 

Thus, even if Assurance 22 applies in this matter, the City is in compliance because Delta 

has been continuously accommodated, the City is committed to complying with the Gate 

Accommodation Clause, and it is not “reasonably possible” to accommodate a new entrant at 

Love Field in any other manner when incumbent airlines are using all gate capacity. Despite 

their guidance and suggestions, DOT/FAA have not suggested a way for the City to 

accommodate Delta in light of the constraints imposed by WARA and the legal obligations of 

the Lease and Five-Party Agreement. Indeed, it does not appear that ACO-100 undertook the 

review and coordination effort spelled out in Paragraph 9.8(c). Accordingly, for purposes of 

Assurance 22, there is no “reasonably possible” way to accommodate a new entrant if the Gate 

Accommodation Clause does not allow the accommodation. 

Moreover, under WARA, the only action the FAA can take is to order the City to comply 

with the Lease, which the City is doing and has already committed to continue doing. Indeed, 

the fundamental purpose of filing the District Court action was to assure that the City acted in 
87 

accordance with the Lease and that all controversy over the meaning of the Lease in the specific 

context of Delta’s request for accommodation was resolved in a binding fashion. 

As the City has maintained from the beginning of this controversy, the Gate 

Accommodation Clause provides the sole mechanism to accommodate new entrants and the City 

is committed to complying with those obligations. If applying the Gate Accommodation Clause 

as construed by the District Court shows that there is capacity in the 20 gates at Love Field to 

continue to accommodate Delta, the City will take the steps necessary to ensure such 

accommodation. Conversely, if the Gate Accommodation Clause as construed by the District 

Court does not allow for the continued accommodation of Delta, then Delta (and the FAA) will 

have to accept that decision. Assurance 22 requires nothing more, even if it applies. 

V. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND EVEN IF 

THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY OBLIGATIONS 

UNDER ASSURANCE 23 

The NOI states that the FAA is investigating: 

Whether the City’s failure to grant or otherwise act on Delta’s 

request accommodation of five daily flights at DAL is consistent 

with the statutory and grant assurance prohibition on granting or 

permitting any person, firm, or corporation, either directly or 

indirectly, the exclusive right at the airport to conduct any 

aeronautical activities (Grant Assurance 23 and 49 U.S.C. 

§ 40103(e)). 

Grant Assurance 23 states, in part, that: 

[The airport sponsor] will permit no exclusive right for the use of 

the airport by any person providing, or intending to provide, 

aeronautical services to the public . . . . [The airport sponsor] 

further agrees that it will not, either directly or indirectly, grant or 

permit any person, firm, or corporation, the exclusive right at the 

airport to conduct any aeronautical activities . . . , and that it will 

terminate any exclusive right to conduct an aeronautical activity 

now existing at such an airport before the grant of any assistance 

under the Airport and Airway Improvement Act of 1982. 

The FAA defines an exclusive right as 
88 

a power, privilege, or other right excluding or debarring another 

from enjoying or exercising a like power, privilege or right. An 

exclusive right may be conferred either by express agreement, by 

imposition of unreasonable standards or requirements or by 

another means. Such a right conferred on one or more parties, but 

excluding others from enjoying or exercising a similar right or 

right, would be an exclusive right. 

Compliance Manual ¶ 8.2. 

Although the prohibition against exclusive rights generally prohibits an airport sponsor 

from taking action, directly or indirectly, that would create a monopoly on a given aeronautical 

service, the mere presence of a single service provider is not necessarily a violation of Grant 

Assurance 23, because a violation requires that the airport sponsor’s action or inaction has 

somehow prevented other qualified service providers from operating at the airport. See FAA 

Compliance Manual ¶ 8.9(b). For example, when space at an airport is limited, a single entity 

can grow through natural market forces to be the exclusive service provider. As the FAA 

explains: 

A single enterprise may expand as needed, even if its growth 

ultimately results in the occupancy of all available 

space. However, an exclusive rights violation occurs when an 

airport sponsor unreasonably excludes a qualified applicant from 

engaging in an on-airport aeronautical activity without just cause 

or fails to provide an opportunity for qualified applicants to be an 

aeronautical service provider. An exclusive rights violation can 

occur through the use of leases where, for example, all the 

available airport land and/or facilities suitable for aeronautical 

activities are leased to a single aeronautical service provider who 

cannot put it to productive use within a reasonable period of time, 

thereby denying other qualified parties the opportunity to compete 

to be an aeronautical service provider at the airport. 

Id.251 

 

251 There is no claim that Southwest has not put its leased space to productive use within 

a reasonable time. 
89 

Even when an entity has grown to occupy all available space “[t]he FAA’s policy makes 

clear that when all or most of the available land and improvements have been leased to a single 

enterprise, an arbitrary division or restriction to create an opportunity for a competitive enterprise 

is not required merely to comply with the exclusive rights policy.” Ricks v. Millington Mun. 

Airport Auth., FAA Docket No. 16-98-19, Director’s Determination at 20 (July 1, 1999) (finding 

no violation of Assurance 23 when the record did not show that there was any available leased 

space). 

Similarly, an airport sponsor does not violate Grant Assurance 23 simply by failing to 

provide an aeronautical user with its preferred accommodation or if the sponsor fails to lease 

space because it does not physically have space to lease. As the Director explained in

Roadhouse Aviation v. City of Tulsa, FAA Docket No. 16-05-08, Director’s Determination at 28 

(Dec. 14, 2006), “While Complainant may desire ‘fiscally acceptable’ leaseholds along the 

flightline, the grant assurances do not obligate Respondent to provide such space at a price 

acceptable to the Complainant. Moreover, Respondent cannot provide what it does not have.” 

Applying those standards, it is clear that the City has not created an exclusive right in violation 

of Assurance 23 or 49 U.S.C. § 40103(3), even assuming those provisions apply here. 

First, the City has not excluded or debarred any aeronautical user from Love Field. 

Southwest, Delta, and Virgin all operate today at Love Field. Two are signatory carriers and one 

is not. Delta has been continuously accommodated at Love Field. Southwest’s operations have 

grown naturally to occupy all of its available gate space. As part of that growth, Southwest 
90 

outbid Delta for the Sublease of United’s gates.252 Southwest’s natural growth and economic 

decisions do not create an exclusive rights issue. 

Second, and related, Delta has not been denied any power, privilege, or right that any 

other new entrant has received. Delta has been accommodated on the same terms as all other 

new entrants, and will continue to be so accommodated to the extent required by the Gate 

Accommodation Clause as will any other new entrant. Further, Delta chose not to outbid 

Southwest for the United Sublease.253 Delta’s situation is the result of historic business choices 

made by Delta and Southwest, and by the impact of WARA and the Five-Party Agreement, not 

any action by the City. 

Third, the Gate Accommodation Clause establishes a mechanism for the City to allocate 

any unused gate capacity to new entrants in the event there is not a voluntary accommodation. 

Congress has approved the use of that mechanism and deemed it to comply with all of the City’s 

obligations under Title 49, including 49 U.S.C. § 40103(e) and § 47107(a)(4). The FAA 

approved that mechanism in the Competition Plan. Accordingly, as long as the City acts in 

accordance with the terms of the Lease – which it has done and will continue to do – the City 

remains in compliance with Grant Assurance 23. 

The Gate Accommodation Clause is explicitly designed to assure that all unused gate 

capacity at Love Field is used if there is demand. Assuring that unused space is made available 

for use by aeronautical users addresses any exclusive rights concern; there is no exclusive rights 

violation if an aeronautical user is excluded because there is no available space. Simply stated, 

the City’s continuous and continued enforcement of, and compliance with, the Gate 

 

252 See Exhibit 104, Transcript of Preliminary Injunction Hearing, City of Dallas v. Delta 

Air Lines, Inc., et al., No. 3:15 cv-02069-K, Vol. 2, at 68-69, 247-248 (Sept. 29, 2015) (relevant 

excerpts only attached). 

253 Id. 
91 

Accommodation Clause complies with Title 49 as a matter of law under WARA and with any 

separate obligations the City may have under Assurance 23 or 49 U.S.C. § 40103(e) under longstanding FAA law. 

VI. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND EVEN IF 

THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY OBLIGATIONS 

UNDER ASSURANCE 39 

The NOI states that the FAA is investigating “Whether the City has complied with the 

requirements of Grant Assurance 39, Competitive Access.” NOI at 12. Assurance 39 provides 

as follows: 

a. If the airport owner or operator of a medium or large hub airport 

(as defined in section 47102 of title 49, U.S.C.) has been unable to 

accommodate one or more requests by an air carrier for access to 

gates or other facilities at that airport in order to allow the air 

carrier to provide service to the airport or to expand service at the 

airport, the airport owner or operator shall transmit a report to the 

Secretary that- 

(1) Describes the requests; 

(2) Provides an explanation as to why the requests could not be 

accommodated; and 

(3) Provides a time frame within which, if any, the airport will 

be able to accommodate the requests. 

b. Such report shall be due on either February 1 or August 1 of 

each year if the airport has been unable to accommodate the 

request(s) in the six month period prior to the applicable due date. 

Assurance 39 simply sets forth a reporting requirement; it does not require an airport sponsor to 

do anything more than provide the described report if the sponsor has been unable to 

accommodate requests from airlines for access to gates or other facilities. See also 49 U.S.C. 

§ 47107(s) (same). It appears that the purpose of Assurance 39 is to help the FAA assess 

whether an airport is meeting its obligations under Assurances 22 and 23 when an airport 

sponsor does not provide an air carrier access to gates or other facilities. See Compliance 

Manual ¶ 9.8(b). 
92 

First, the City has complied with the requirements of Assurance 39. The City has filed a 

Competition Plan and has made sure that Delta has been continuously accommodated. The City 

is waiting to act on Delta’s second request and American’s request based on the District Court’s 

decision. Pending the outcome of that litigation, the City has not made a determination that it 

cannot accommodate any air carrier that has requested accommodation. Accordingly, the City 

was not obligated to file any notice under Assurance 39. 

Second, if the FAA were to determine that the report was required, even though Delta has 

been accommodated, submission of a formal report under Assurance 39 would have been 

redundant and unnecessary. At all relevant times since October, 2014, the City has kept the FAA 

aware of all facts surrounding the accommodation controversy in almost real time. (In fact, the 

documents produced during discovery in the District Court show that FAA has known more than 

the City in some instances regarding the status of accommodation and has known some key facts 

before the City.) The FAA was further aware in advance of any decision of the City’s reasons 

for not acting on the accommodation requests, and was also aware of the positions of Delta, 

Southwest, and other air airlines. Supra at 13-55. The City and the airlines each provided that 

information in countless phone calls, emails, meetings, and other communications, and 

repeatedly asked the FAA if it needed any additional information. 

Moreover, in June 2014, the City named the FAA as a defendant in the District Court 

Action, which once again, and more formally, laid before the FAA the relevant facts relating to 

the accommodation requests of Delta and American and the City’s explanation for why it had not 

yet acted on those requests given the legal uncertainty surrounding its accommodation 

obligations. The FAA has had access to thousands of documents relating to the accommodation 

issue, in addition to numerous depositions and extensive briefing by the City and the airlines on 
93 

the myriad factual and legal issues related to the accommodation issues. In short, the City has 

already provided the FAA with much more information than is required by Assurance 39, 

provided that information sooner than is required by Assurance 39, and invited the FAA to help 

resolve the accommodation issue. Under any reasonable construction of Assurance 39, the City 

more than fulfilled the notice requirements of Assurance 39. 

The bottom line is that the FAA has had, at all times since October 2014, virtually every 

detail about the controversy and the efforts of the City, the airlines, and the FAA itself to resolve 

that controversy. Indeed, despite its scrutiny of the City, the FAA never requested that the City 

submit the specific report called for in Assurance 39 or otherwise suggested that it lacked the 

information called for in such a report. Even if the City did not provide the FAA with a report 

dated February 1, 2015 or August 1, 2015, it is abundantly clear that the City provided the FAA 

with all of the information required by Assurance 39 within the six-month window required by 

Assurance 39. To find the City in violation of Assurance 39 on these facts would elevate form 

over substance and punish an airport sponsor for reaching out to the FAA for help resolving a 

very difficult issue. 

VII. EVEN IF THE FAA HAS JURISDICTION OVER THIS MATTER AND EVEN IF 

THE CASE IS RIPE, THE CITY HAS NOT VIOLATED ANY OBLIGATIONS 

UNDER ASSURANCES 22 AND 23 OR 49 U.S.C. § 40103(E) BY CONSENTING 

TO UNITED’S SUBLEASE TO SOUTHWEST 

The NOI states that the FAA is investigating: 

Whether the City’s consent to the sublease of United’s two gates to 

Southwest through the remainder of United’s lease term with the 

City, prior to the resolution of Delta’s request for an 

accommodation of five daily flights at DAL, and prior to the 

resolution of Seaport’s request for ticket counter space, is 

consistent with its obligations to make its airport available as an 

airport for public use on reasonable terms and without unjust 

discrimination to all types, kinds, and classes of aeronautical 

activities, and to avoid granting or permitting any person, firm, or 

corporation, either directly or indirectly, the exclusive right at the 
94 

airport to conduct any aeronautical activities. (Grant Assurances 

22 & 23 and 49 U.S.C. § 40103(e)). 

NOI at 12. For all of the reasons discussed above, as well as the specific terms and 

circumstances of the City’s consent to the Sublease between United and Southwest, the City did 

not violate any obligation the City may have under Grant Assurances 22 and 23 and 49 U.S.C. 

§ 40103(e) by consenting to the Sublease. 

The FAA’s concern seems to be that the City’s consent to United’s Sublease to 

Southwest somehow impaired the City’s ability to accommodate new entrants, apparently by 

allowing Southwest to make use of all of United’s gate capacity on a preferential use basis. As 

explained below, however, the Sublease did not change either the scope or applicability of the 

Gate Accommodation Clause at United’s gates and did not change the ability of a new entrant to 

be accommodated at Love Field. Further, the City explicitly conditioned its consent to the 

Sublease on its ability to compel accommodation under the Gate Accommodation Clause in 

order to comply with federal law. The Sublease, and the City’s consent thereto, simply did not 

change any new entrant’s ability to be accommodated. Moreover, SeaPort decided to end its 

Love Field operations for independent business reasons after it had been accommodated 

voluntarily. For those reasons, in addition to all of the reasons discussed above regarding 

Assurances 22 and 23 and 49 U.S.C. § 40103(e), the FAA has failed to identify an issue that 

merits investigation. 

First, the City’s consent to the Sublease did not change in any way the City’s ability or 

authority under the Gate Accommodation Clause to compel an accommodation, if necessary. 

The Sublease is subject to the Gate Accommodation Clause just as is the Lease itself. Thus, the 

user of United’s gates, whether United, Southwest, or any other airline, is subject to an 

obligation to accommodate new entrants, whether by agreement or compulsion, to the same 
95 

extent. The identity of the leaseholder or sublessee is immaterial to the Gate Accommodation 

Clause. Moreover, the City explicitly conditioned its approval of the Sublease on DOT/FAA’s 

position regarding accommodation as set forth in the DOT’s December 17, 2014 letter, and 

reserved the authority to compel accommodation pursuant to federal law, including that letter.254 

The City’s consent is further subordinated to the City’s federal obligations.255 Accordingly, the 

Sublease, and the City’s consent to the Sublease, did not reduce or alter the ability of any new 

entrant to be accommodated in United’s gates. 

Not only did the Sublease have no legal effect on the City’s authority but it has no 

practical effect on the City’s ability to accommodate Delta (or any other carrier) in United’s 

gates. Even without the Sublease, United could have, and in fact did, enter into gate use 

agreements with another carrier to use its leased gates.256 Alternatively, United could have 

decided to use those gates itself. Under the Gate Accommodation Clause, as DOT/FAA 

recognizes,257 the ability to accommodate a new entrant depends on actual gate usage, not the 

form of legal right to use the gate. DOT/FAA has repeatedly instructed the City that, when 

considering accommodation, the City must consider only actual gate usage (as informed by 

definite future plans). Thus, even without the Sublease, United could have used all gate capacity 

itself, or could have entered into agreements with Southwest and/or other airlines that would 

have used up some or all capacity at United’s gates.258 Actual usage would affect 

 

254 Exhibit 9, §§ 6(b) & (c). 

255 Id. § 6(a). 

256 See Exhibit 73. 

257 See Exhibit 63 at 2. 

258 In fact, the LeighFisher analysis shows (See Exhibit 39) that the United leased gates 

were, in fact, being used on November 5, 2014 and there is no evidence that they have ceased 

being used in the time since that snapshot was taken. 
96 

accommodation by a new entrant at those gates. Conversely, under the Gate Accommodation 

Clause, any unused capacity at United’s gates is subject to accommodation under the Gate 

Accommodation Clause, regardless of who leases or subleases those gates, or uses the gates by 

some other agreement among airlines. The volume and extent of usage depends on airline 

scheduling decisions, not on the legal source of authority to use a gate at Love Field. 

Accordingly, the City’s consent to the Sublease did not change the City’s ability to compel an 

accommodation if necessary. 

Second, that the FAA even raises this issue underscores the impropriety of this 

investigation. DOT/FAA were aware that United and Southwest had agreed to the Sublease as 

early as October 25, 2014.259 Indeed, DOT/FAA knew more about that agreement than the City 

did before the City consented because DOT/FAA had knowledge of the business terms of the 

Sublease in October 2014 while the City learned of those terms only when revealed in Judge 

Kinkeade’s courtroom in late September 2015.260 The City was aware that DOT/FAA had 

concerns about the Sublease (because DOT/FAA told the City so), and further that the 

Department of Justice was reviewing the Sublease pursuant to the HSR Act (because DOJ told 

the City so). Based upon informal guidance from both DOT and DOJ, the City refrained from 

granting its consent to the Sublease until it learned that no antitrust objections had been raised 

during the Antitrust Division’s HSR Act review.261

Once the HSR Act antitrust review period had expired (and DOT had informed the City 

that DOJ would not be raising objections), the City informed DOT/FAA that it intended to 

 

259 See Exhibit 76. 

260 Haskel Affidavit ¶ 18. 

261 Id. ¶ 19. 
97 

consent to the Sublease and sent DOT/FAA a draft of the form of consent.262 DOT/FAA did not 

raise any objections or concerns at that time.263 DOT/FAA was fully aware of all of the 

circumstances surrounding the Sublease and the City’s consent, and was further fully aware of 

the ongoing accommodation controversy. Despite all that, DOT/FAA did not instruct or advise 

the City not to approve the Sublease when presented for final review. 

Compliance should not be a game of “gotcha.” The City sought DOT/FAA guidance, 

and gave the DOT/FAA every opportunity to tell, advise, guide, or suggest that the City not 

consent. The DOT/FAA did not do so.264 DOT/FAA had far more information than the City at 

the time and did nothing more than recommend that the City not act on the Sublease in a manner 

that impaired its accommodation obligations and that the City not act until DOJ had completed 

its antitrust review. The City did precisely as DOT/FAA recommended, including assuring that 

Delta was accommodated at the time of the consent and preserving the City’s authority to force 

an accommodation in the future if permitted and necessary. There is simply no basis for the 

FAA to determine that the City acted improperly. 

Third, it has been suggested that City should have withheld its consent in order to keep 

United’s gates available for new entrants in order to enhance competition. But that suggestion 

lacks practical merit and is legally suspect. As a practical matter, not consenting to the Sublease 

would not have prevented United from allowing Southwest to use United’s gates by simple 

contract, as it had already been doing. As a legal matter, the City lacks the legal authority to tell 

 

262 Id. ¶ 20. 

263 Id. 

264 The City’s Airport Director, Mark Duebner, testified that if DOT had objected to the 

sublease, that would have been a basis for withholding the City’s consent. See Exhibit 102, 

Transcript of Preliminary Injunction Hearing, City of Dallas v. Delta Air Lines, Inc., et al., No. 

3:15 cv-02069-K, Vol. 3, at 217 (Sept. 30, 2015) (relevant excerpts only attached). 
98 

United how to use its gates, at least in the absence of a legally binding directive from DOT/FAA 

under federal law. But, DOT/FAA never provided that specific directive (despite the City’s 

request for such a directive), and now takes the position that its general guidance did not have the 

effect of law. Moreover, the City could not “unreasonably withhold” its consent and would have 

risked lawsuits by both United and Southwest had it not consented based on non-binding 

suggestions from DOT/FAA. Lease § 14.08.265 Indeed, Delta apparently tried but failed to 

acquire the Sublease for itself. The City does not understand that it has the legal authority to 

withhold consent to a Sublease to the successful bidder in order to assure that the unsuccessful 

bidder gets the Sublease. Further, the effect of not approving the Sublease in order to preserve 

gate capacity for new entrants would constitute an action to convert United’s preferential use 

gates into common use gates. WARA § 5(e)(2)(B)(ii) expressly prohibits DOT/FAA from using 

its authority under Assurances 22 or 23 to do that. Accordingly, nothing in Assurances 22 or 23 

or 49 U.S.C. § 40103(e) requires or allows the City to withhold consent to the Sublease in order 

to reserve gate capacity for new entrants. 

Finally, the NOI suggests that the City’s consent impaired the City’s ability to 

accommodate SeaPort, and that SeaPort left Love Field because it was not accommodated in 

United’s gates. NOI at 12. That suggestion rests on incorrect factual assumptions, however. It 

is true that SeaPort sought accommodation from the incumbent airlines in the summer of 2014 

and was initially unsuccessful in obtaining an accommodation agreement.266 Accordingly, the 

City included SeaPort and Delta in its initial forced accommodation letters dated September 3, 

 

265 As discussed above, the FAA has no jurisdiction to interpret the terms of the Lease as 

to what would or would not be a reasonable basis for the City to withhold its consent to any 

sublease. 

266 Duebner Affidavit ¶ 2. 
99 

2014.267 Subsequently, however, by November 2014, SeaPort had negotiated a voluntary 

accommodation agreement with Virgin America and United to provide it gate and counter 

space.268 Unlike Delta, SeaPort did not thereafter request that the City make any further 

accommodation.269 And, to the City’s knowledge, SeaPort did not seek further accommodation 

from Southwest or any other airline.270 From the City’s point of view, SeaPort had been 

accommodated to its satisfaction and no longer sought to invoke the Gate Accommodation 

Clause for further accommodation.271 

Subsequently, SeaPort decided to relocate its Texas operation from Love Field to 

Houston. As the City understands it, that decision was based largely on business considerations, 

including SeaPort’s recognition that Houston was a better market for its operation.272 It also 

appears that the structural and legal limit on gate capacity at Love Field created operational 

difficulties for SeaPort that are entirely independent of its ability to be accommodated.273 

SeaPort never advised the City of its problems and in particular did not request or otherwise seek 

the City’s assistance in securing counter space after reaching an agreement with Virgin and 

United.274 Whatever SeaPort’s reasons for leaving, however, there is nothing but pure 

speculation to assert that had the City not consented to the Sublease that SeaPort would have 

 

267 Id. 

268 Id.

269 Id. 

270 Id. 

271 Id. 

272 See Exhibit 103, Terry Maxon, Dallas Love Field to lose service from one airline (the 

smallest one), DALLAS MORNING NEWS (July 30, 2015, 6:08 PM), 

http://aviationblog.dallasnews.com/2015/07/dallas-love-field-to-lose-service-from-one-airlinethe-smallest-one.html/. 

273 See id. 

274 See Duebner Affidavit at ¶ 2.