Order 2011-4-22

Served: April 27, 2011

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 27th day of April, 2011 

Joint application of

SOUTHWEST AIRLINES CO. and 

AIRTRAN AIRWAYS, INC.

for an exemption from the provisions of 

49 U.S.C. § 41105

 Docket DOT-OST-2011-0052

ORDER GRANTING EXEMPTION

Summary

By this order, we exempt Southwest Airlines Co. (“Southwest”), and AirTran 

Airways, Inc. (“AirTran”), hereinafter the “Joint Applicants,” from the provisions of 

section 41105 of Title 49 of the United States Code (the “Statute”), to the extent 

necessary to allow the Joint Applicants to operate under common ownership pending the 

Department’s action on a contemporaneously filed de facto transfer application, subject 

to certain conditions.

Background 

On March 17, 2011, Southwest and AirTran filed a joint application for a pendente lite 

exemption from section 41105 of the Statute. The parties state that Southwest and 

AirTran entered into an agreement under which Southwest intends to acquire all 

outstanding shares of AirTran Holdings, Inc., the parent company of AirTran. The 

Department has held that a stock acquisition resulting in common control of two or more 

air carriers having international route authority constitutes a de facto certificate transfer 

subject to section 41105. The relief requested here would allow the Joint Applicants to 

operate under common ownership pending the Department’s action on a 

contemporaneously filed transfer application.1 In support of this request, the Joint 

Applicants state that, upon consummation of the transaction, while AirTran will be a 

 

1 On March 17, 2011, concurrent with the Joint Applicants’ exemption request in Docket 

DOT-OST-2011-0052, Southwest and AirTran jointly filed an application in Docket DOT-OST-2011-0051 

for the Department’s approval under 49 U.S.C. § 41105 of the transfer of the economic authorities held by

AirTran to AirTran under the ownership of Southwest. No answers have been filed.
2

subsidiary of Southwest, each will remain a separate entity and will be operated as 

separate companies until the Department has approved the underlying transfer 

application. They further contend that grant of the exemption request would be 

consistent with the past practice of the Department. 

AirTran holds interstate scheduled certificate authority,

2

and holds a blanket route 

integration certificate,

3

and exemption authority to conduct foreign scheduled air 

transportation between Atlanta and Bermuda, Baltimore and Bermuda;

4 Atlanta and 

Cancun; Baltimore and Cancun;

5 Milwaukee and Cancun;6 Atlanta and Freeport, 

Bahamas;

7

points in the U.S. and Nassau, Bahamas;

8

points in the U.S. and Montego Bay, 

Jamaica;

9

points in the U.S. and Aruba;

10 and points in the U.S. and the Dominican 

Republic.

11

Southwest holds interstate scheduled certificate authority

12 and foreign scheduled 

certificate authority permitting it to engage in foreign scheduled air transportation 

between points in the U.S. and points in Canada.13

No answers opposing the Joint Applicants’ exemption request were filed. 

Decision

We have decided to grant the Joint Applicants’ request for an exemption from the 

provisions of section 41105 until we have ruled on the Joint Applicants’ transfer 

application. The Joint Applicants correctly noted that our grant of exemptions in cases 

such as this is contingent upon the air carriers involved, in this case Southwest and 

AirTran remaining separate and independently operated corporations until a ruling has 

been made in the underlying transfer application. In this case, as in previous cases,14 we 

see no reason to withhold exemption authority pending Departmental action on the 

certificate transfer application. As long as Southwest and AirTran remain separate 

entities, should we disapprove the proposed transfer, either in whole or in part, Southwest

could divest itself of AirTran. The Joint Applicants should not construe our grant of this 

 

2

See Order 94-11-19. This authority was most recently reissued by Order 2000-9-10, and amended by 

Order 2005-12-4.

3

See Order 2010-12-24.

4

See Notice of Action Taken, dated December 10, 2010, in Docket DOT-OST-2010-0292.

5

See Notice of Action Taken, dated August 6, 2010, in Docket DOT-OST-2005-21134.

6

See Notice of Action Taken, dated June 23, 2010, in Docket DOT-OST-2010-0146.

7

See Notice of Action Taken, dated May 3, 2010, in Docket DOT-OST-2000-8052.

8

See Notice of Action Taken, dated April 18, 2011, in Docket DOT-OST-2009-0202.

9

See Notice of Action Taken, dated April 18, 2011, in Docket DOT-OST-2009-0201.

10 See Notice of Action Taken, dated April 18, 2011, in Docket DOT-OST-2009-0200.

11 See Notice of Action Taken, dated July 8, 2010, in Docket DOT-OST-2010-0158.

12 See Order 79-6-187. This authority was most recently reissued by Order 98-7-6, and amended by 

Order 2005-12-4.

13 See Order 2009-4-12.

14 See Order 89-1-60, p. 4; Order 97-9-3, p. 3; Order 97-11-8, p. 5; Order 99-4-5, p. 4; and Order 

2001-9-16, p. 4.
3

exemption as a decision to approve the related transfer application or any aspect of that 

application. 

ACCORDINGLY,

1. We exempt Southwest Airlines Co., and AirTran Airways, Inc., from the provisions 

of section 41105 of the Statute, to the extent necessary to allow them to operate under the 

common ownership, pending the Department’s final action on the transfer application in 

Docket DOT-OST-2011-0051, subject to the condition that, pending such final action, 

Southwest Airlines Co., and AirTran Airways, Inc., continue to be maintained and 

operated as separate corporations.

2. This authority shall be effective until 90 days after the Department issues its final 

order on the joint application of Southwest Airlines Co., and AirTran Airways, Inc., in 

Docket DOT-OST-2011-0051 for approval of a transfer of route authority under section 

41105 of the Statute.

3. We may amend, modify, or revoke this order at any time and without hearing.

4. We will serve a copy of this order on the persons listed in Attachment A.

By:

SUSAN L. KURLAND

Assistant Secretary

for Aviation and International Affairs

An electronic version of this document is available on the World Wide Web at

http://www.regulations.gov 
SERVICE LIST FOR SOUTHWEST AIRLINES CO AND 

AIRTRAN AIRWAYS INC

MR STEVEN ROSSUM MR MARTIN POLOMSKI

EXECUTIVE VICE PRESIDENT POI FOR AIRTRAN AIRWAYS INC

AIRTRAN AIRWAYS INC FAA AIRTRAN CMO 37

9955 AIRTRAN BOULEVARD 5950 HAZELTINE NATIONAL DRIVE

ORLANDO FL 32827 ORLANDO FL 32822

MR EDWARD FABERMAN

COUNSEL FOR AIRTRAN AIRWAYS INC

WILEY REIN LLP

1776 K STREET NW

WASHINGTON DC 20006

MR ROBERT KNEISLEY

ASSOCIATE GENERAL COUNSEL 

MS LESLIE ABBOTT

ATTORNEY

SOUTHWEST AIRLINES CO

1901 L STREET NW

WASHINGTON DC 20036

MR PETER LYNCH

ASST CHIEF COUNSEL FOR 

ENFORCEMENT AGC 300

FEDERAL AVIATION ADMINISTRATION

800 INDEPENDENCE AVENUE SW

WASHINGTON DC 20591

MR RON RICKS

EXECUTIVE VICE PRESIDENT

MS MADELEINE JOHNSON

VICE PRESIDENT GENERAL COUNSEL

SOUTHWEST AIRLINES CO

2702 LOVE FIELD DRIVE

DALLAS TX 75235

MR WILLIAM WEBER

CERTIFICATION SECTION MANAGER

FAA AFS 900

45005 AVIATION DRIVE SUITE 131

DULLES VA 20166

MR DAVID SLOAN

POI FOR SOUTHWEST AIRLINES CO

FAA SOUTHWEST CMO 29

8700 FREEPORT PARKWAY

IRVING TX 75063

MS ANNE SUISSA RTS 42

OFFICE OF AIRLINE INFORMATION

DOT/RITA/BTS E 34

1200 NEW JERSEY AVENUE SE

WASHINGTON DC 20590