BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. COMMENTS OF DELTA AIR LINES, INC. and US AIRWAYS, INC.

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1 BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. In the matter of: ) ) Petition for Waiver of the Terms of the ) Order Limiting Scheduled Operations ) Docket No. FAA at LaGuardia Airport ) ) ) COMMENTS OF DELTA AIR LINES, INC. and US AIRWAYS, INC. Communications with respect to this document should be addressed to: Ben Hirst Senior Vice President and General Counsel Delta Air Lines, Inc. Department Delta Boulevard Atlanta, GA (404) Stephen L. Johnson Executive Vice President, Corporate US Airways, Inc. 111 W. Rio Salado Parkway Tempe, AZ (480) Charles F. Rule Andrew J. Forman Christian J. Lorenz Cadwalader, Wickersham & Taft LLP 700 Sixth Street, NW Washington, D.C (202) Irving L. Gornstein Anton Metlitsky Loren L. AliKhan* O Melveny & Myers LLP 1625 Eye St. NW Washington, D.C (202) *Admitted in Virginia only. Donald L. Flexner Boies, Schiller & Flexner LLP 575 Lexington Avenue, 7th Fl. New York, NY (212) James P. Denvir Boies, Schiller & Flexner LLP 5301 Wisconsin Ave. NW Washington, D.C (Additional counsel on next page)

2 D. Bruce Hoffman Ian R. Conner Hunton & Williams LLP 1900 K Street, NW Washington, D.C (202) Counsel for Delta Air Lines, Inc. and US Airways, Inc. March 22, 2010

3 BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. In the matter of: ) ) Petition for Waiver of the Terms of the ) Order Limiting Scheduled Operations ) Docket No. FAA at LaGuardia Airport ) ) ) March 22, 2010 COMMENTS OF DELTA AIR LINES, INC. and US AIRWAYS, INC. Delta Air Lines, Inc. ( Delta ) and US Airways, Inc. ( US Airways ) hereby submit these comments to the Federal Aviation Administration s proposed grant of the petition for waiver with conditions. Petition for Waiver of the Terms of the Order Limiting Scheduled Operations at LaGuardia Airport, 75 Fed. Reg (Feb. 18, 2010). BACKGROUND In 1969, the Federal Aviation Administration ( FAA ) adopted the so-called High Density Rule to address congestion problems at certain high density airports, including LaGuardia Airport ( LaGuardia or LGA ) and Ronald Reagan Washington National Airport ( DCA ). The rule placed restrictions on the number of flights that could take off and land at the airports by limiting the number of operating authorizations (known as slots ) and allocating them among different classes of air carriers. See High Density Traffic Airports, Slot Allocation and Transfer Methods, 50 Fed. Reg. 52,180, 52,181 (Dec. 20, 1985); see also High Density Traffic Airports, 33 Fed. Reg. 17,896 (Dec. 3, 1968) (promulgating High Density Rule); High

4 Density Traffic Airports, 38 Fed. Reg. 29,463 (Oct. 25, 1973) (making rule permanent). In 1985, the Department of Transportation ( DOT ) amended the High Density Rule by promulgating the buy/sell rule. High Density Traffic Airports: Slot Allocation and Transfer Methods, 50 Fed. Reg. 52,180 (Dec. 20, 1985). Under that rule, slots may be bought, sold or leased for any consideration and any time period and they may be traded in any combination for slots at the same airport or any other high density traffic airport. 14 C.F.R (a). The rule allows any person [to] purchase, sell, trade, or lease air carrier and commuter slots... in any number at any of the high density airports. 50 Fed. Reg. at 52,182. While the FAA needs to be informed in writing of such sales, the DOT may disapprove a sale only in the extraordinary circumstance in which it finds that the sale would be injurious to the essential air service program. 14 C.F.R (a)(3), (6). The DOT promulgated the buy/sell rule in order to: (1) permit maximum reliance on market forces to determine slot distribution following the initial allocation of slots, (2) minimize[] the need for government intervention in the continuing allocation and distribution of slots, and (3) permit long-range stability in carrier planning and marketing. 50 Fed. Reg. at 52,184. Under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No (2000), the High Density Rule was set to expire at LGA on January 1, To address the congestion problems that would result after the High Density Rule sunset, the FAA issued an interim order limiting the number of scheduled and unscheduled operations at LGA until it could promulgate a new long-term rule. See Operating Limitations at New York LaGuardia Airport, 71 Fed. Reg. 77,854 (Dec. 27, 2006) ( LaGuardia Order ). The FAA promulgated a final rule for LGA, see Congestion Management Rule for LaGuardia Airport, 73 Fed. Reg. 60,574 (Oct. 10, 2008), but the D.C. Circuit ordered a stay of the rule, and the FAA 2

5 then rescinded it. See Congestion Management Rule for LaGuardia Airport, 74 Fed. Reg. 52,132 (Oct. 9, 2009). Contemporaneously, the FAA extended the interim LaGuardia Order until October 29, 2011, in order to control congestion while it worked out a long-term solution. See Operating Limitations at LaGuardia Airport, 74 Fed. Reg. 51,653 (Oct. 7, 2009). It is only in the context of the interim LaGuardia Order that the FAA suspended the otherwise unfettered right of carriers to buy and sell slots at LGA. It was never intended... to serve as a long-term solution. 74 Fed. Reg. at 51,653. Under the interim LaGuardia Order currently in force, the FAA restricts the number of slots available during peak hours to 71 per hour. Id. at 51,654. The LaGuardia Order allows air carriers to lease or trade slots, but it does not allow carriers to buy or sell slots unless the FAA grants an exemption from the Order. See id.; see also 75 Fed. Reg. at 7307 (citing 49 U.S.C (b) and 40109(b)). On August 24, 2009, Delta and US Airways jointly petitioned the FAA for an exemption from the LaGuardia Order so that US Airways could permanently transfer to Delta 250 slots at LGA. See Joint Request of Delta and US Airways for a Waiver (Aug. 24, 2009) ( LGA Waiver Request ) at 1 & n.2. For its part, Delta would sell and transfer 84 DCA slots to US Airways under the buy/sell rule, which still applies at DCA, and would additionally transfer international rights that would enable US Airways to serve Sao Paulo and Tokyo. This uniquely beneficial transaction would result in a substantially more efficient and competitive use of the exchanged slots. And, unlike with a merger, Delta and US Airways would continue to compete with each other after the transaction. Indeed, the proposed transaction would increase competition between Delta and US Airways, as well as create new competition with other carriers. The transaction significantly expands output in New York and Washington, producing annual capacity increases of approximately 4.4 million and 2.5 million seats in New York and Washington, respectively. 3

6 A study conducted by the economic consulting firm Compass Lexecon has valued these output and new service benefits as exceeding $150 million annually. After reviewing the Delta/US Airways proposal and evaluating the potential impact on air traffic operations at the respective airports, the FAA found that there will be little to no impact on the agency s ability to manage traffic at either airport if the transaction were approved. 75 Fed. Reg. at Thus, the FAA agreed with Delta and US Airways that [b]ased on [its] review of the petition,... much of the request meets the public interest standards of ensuring the efficiency of use of the navigable airspace and warrants a waiver. Id. The FAA then proceeded to consider the competitive impact of the transaction. 75 Fed. Reg. at Relying entirely on its assessment that the waiver request would adversely affect competition, the FAA proposed to condition approval of the parties desired exemption on their divestiture of 20 pairs of slots at LGA and 14 pairs at DCA, to be sold to a limited set of qualified new entrant or limited incumbent air carriers. Id. at , Under the FAA s proposed divestiture condition, Delta and US Airways would be entitled to retain the proceeds generated from the sale of the slots, with the caveat that if the slots were not sold within 60 days, the FAA would confiscate the slots without compensation. Id. at The FAA solicited comments on its proposed conditional waiver, 75 Fed. Reg. at 7312, and Delta and US Airways submit these comments accordingly. In submitting these comments, the parties wish to make clear that they understand the proposed order to give them permission to complete their proposed slot exchange only on the condition that they divest 20 pairs of slot interests at LGA and 14 pairs at DCA. They do not understand the proposed order to require them to complete the transaction and thereby subject themselves to the divestiture condition. The parties understanding is based on the FAA s proposed order. In particular, as the FAA 4

7 explained, the parties sought a waiver of the prohibition on buying and selling slots at LGA to allow them to consummate a transaction involving an exchange of slots. Id. at The FAA tentatively proposed to grant the carriers waiver request, but only on the condition that the parties divest 20 pairs of slot interests at LGA and 14 pairs at DCA. Id. at Such a conditional approval of a waiver request gives the parties permission to consummate the transaction only on the specified condition. But as a condition for a waiver, it obviously does not require the parties to consummate the slot exchange should they decide that the transaction is not in their interest given the divestiture condition. The parties wish to make it absolutely clear that should the FAA decide to grant the requested waiver subject to the proposed divestiture condition, the parties will not consummate the transaction. Delta and US Airways also reserve the right to seek judicial review of any FAA order that conditions grant of the waiver on its proposed slot divestiture. 1 ARGUMENT The FAA lacks authority to condition its approval of the parties LGA Waiver Request on the divestiture of slots. That divestiture condition contravenes the express limits that Congress has placed on the FAA. Congress has empowered the FAA to promote safety and the efficient use of airspace; it has not given the FAA any authority to consider potential effects on competition in carrying out its airspace safety and management duties. That limitation on the 1 Contemporaneously with these comments, Delta and US Airways are submitting joint comments together with Air Tran Airways, Inc. ( Air Tran ), Spirit Airlines, Inc. ( Spirit ), Jet Blue Airways, Inc. ( Jet Blue ), and WestJet Airlines, Ltd. ( WestJet ) in support of the parties waiver petition as modified by the proposed slot transactions described therein. As explained in detail in these comments, Delta and US Airways continue to believe that a divestiture of slots, particularly a divestiture condition of the magnitude and under the terms proposed by the FAA, would substantially reduce the benefits of the transaction for the public and render it unlikely that the transaction would proceed at all. Nonetheless, mindful of the concerns expressed by the FAA and desiring a resolution that would permit the parties to move forward with the transaction as soon as possible, Delta and US Airways have negotiated slot transfer agreements with JetBlue, AirTran, Spirit, and WestJet that the parties believe substantially address the FAA s concerns and which, while diminishing the benefits of the transaction, preserve enough of the benefits to permit the parties to go forward. 5

8 FAA s authority reflects Congress s determination that the FAA should focus its attention on its critical mission of ensuring the safe and efficient use of airspace and that it should not interject concerns about competition over which it has no institutional expertise. And it reflects Congress s judgment that the Department of Justice ( DOJ ) is the agency best equipped to evaluate whether a transfer of slots will promote or hinder competition, a review that DOJ is currently undertaking. Once the FAA limits its attention to safety and efficiency concerns, there should be no doubt about the outcome of this proceeding. The FAA has already concluded that the transaction satisfies safety and efficiency concerns. The FAA should therefore approve the waiver request without the proposed divestiture condition. There is another important reason that the FAA should approve the request without the divestiture condition. The proposed divestiture would confiscate Delta s and US Airways property without just compensation in violation of the Fifth Amendment. Court decisions establish that slots are the property of the carriers. The FAA therefore may not simply take them and allocate them to other carriers without just compensation. Yet that is precisely what the proposed order would do. The forced sales proposed by the FAA make it impossible for the carriers to receive the market value of the slots. The FAA is also precluded both by statute and by regulation from requiring divestiture of slots at DCA. The FAA s authority to grant waivers from the buy/sell rule is applicable only at LGA; the FAA may not use that limited authority to affect conditions at DCA. Indeed, carriers retain an absolute right to buy and sell slots at DCA, and the proposed order would flatly violate that right. Finally, even assuming arguendo that it could evaluate competition issues, the FAA s tentative finding that the proposed transaction would have negative effects on competition absent 6

9 divestiture fails to comport with the APA s standard for reasoned decision-making. In fact, the transaction has massive pro-competitive effects. Because the parties will not complete the transaction with the FAA s proposed divestiture condition, the FAA s adherence to its intent to establish that condition would rob the public of those benefits. I. In Exercising Its Regulatory Authority, The FAA May Consider Only Safety and Airspace Management, Not Effects On Competition In proposing to condition its approval of the LGA Waiver Request on the divestiture of slots, the FAA invoked its authority to develop airspace plans and assign airspace use under 49 U.S.C (b)(1), and its authority to issue waivers from airspace plans under 49 U.S.C (b). Each of those provisions authorizes the FAA to take action in the public interest. According to the FAA, in determining what is in the public interest under those grants of authority, it is entitled to consider effects on competition. That view exceeds the function that Congress allocated to the FAA. The authority to regulate in the public interest is not an open-ended delegation to an agency to define what it deems to be in the public interest. N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24 (1932). Rather, that authority is cabined by the considerations Congress intended the agency to consider in determining the public interest. See, e.g., id. at 24-25; Nat l Broad. Co. v. United States, 319 U.S. 190, (1943). Congress has conferred authority on the FAA to consider only safety and the efficient use of airspace. Congress has not conferred any authority on the FAA to consider effects on competition. In resting its decision to impose the divestiture condition on the transaction s purported anticompetitive effects, the FAA has relied on [a] factor[] which Congress had not intended it to consider. Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 44 (1983). And it is proposing to act in excess of statutory jurisdiction, authority, or limitations. 5 U.S.C. 706(2)(C). 7

10 A. The Relevant Statutory Provisions Give The FAA Authority Over Safety And Airspace Efficiency, Not Over Competition 1. The FAA has relied on two provisions for its proposed divestiture condition: its authority to develop airspace plans and assign airspace use under 49 U.S.C (b), and its authority to grant exemptions from airspace plans under 49 U.S.C (b). With respect to the former, Congress has authorized the FAA to ensure the safety of aircraft and the efficient use of airspace. 49 U.S.C (b)(1) (emphases added). That provision does not grant authority to consider effects on competition. Similarly, in authorizing the FAA to grant exemptions from its airspace rules, such as an exemption from the prohibition on slot sales at LGA, Congress has limited the FAA to its usual safety and airspace management role. Congress entitled that exemption authority Safety regulation, 49 U.S.C (b), demonstrating that the exemption authority parallels the authority to develop airspace plans in the first place. See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (heading significant in determining meaning of section). That is hardly surprising. It would be extraordinary for Congress to write an exception that was broader than the rule. Midwestern Gas Transmission Co. v. F.E.R.C., 734 F.2d 828, 831 (D.C. Cir. 1984). Consistent with that understanding, the regulation describing the process for petitioning for an exemption under Section 40109(b) directs the applicant to state [t]he reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that provided by the rule from which [the party] seek[s] the exemption. 14 C.F.R It does not require a party to address the proposed exemption s effects on competition. Thus, the two provisions on which the FAA relies in proposing a divestiture condition give the FAA authority to promote the safe and efficient use of airspace only. They do not invest 8

11 it with authority to consider effects on competition. 2. The FAA s powers to assign use of airspace and grant exemptions from airspace plans under Sections 40103(b) and 40109(b) are not unique in their focus on safety and efficiency. All of the FAA s responsibilities have the same focus. Many of FAA s statutory duties are found in Subpart III, which is specifically entitled Safety. Those provisions not in Subpart III similarly concern safety and the efficient use of airspace. See, e.g., 49 U.S.C. 308(b) (airspace management), 1132(c)&(d) (safety), 40101(c) (safety), 40106(a) (air traffic regulation), (related to Administrator s aviation safety duties and powers ); see also id. 106(g) (setting forth all duties and powers of the FAA, all of which are related to safety and efficient use of airspace). None of the provisions setting forth the FAA s responsibilities authorizes the FAA to consider effects on competition. These provisions confirm that the FAA s authority to assign use of airspace and grant exemptions from airspace plans under Sections 40103(b) and 40109(b) similarly require the FAA to consider safety and efficient use of airspace and not effects on competition. 3. The FAA s organic statute, 49 U.S.C. 106, reinforces that conclusion. In particular, the organic statute states that Section 40101(d) of this title applies to all of the FAA s duties, including Sections 40103(b) and 40109(b). Section 40101(d), in turn, is labeled Safety considerations in the public interest, and it details the numerous factors related to safety that the FAA must consider as being in the public interest. Conspicuously missing from that list is a single reference to effects on competition. See 49 U.S.C (d). The unmistakable inference is that Congress intended for the FAA to focus its attention on safety, and did not intend for the FAA to consider effects on competition. That limitation on the FAA s authority serves important purposes. The FAA s mission of 9

12 promoting the safe and efficient use of airspace is both extremely difficult to accomplish and immensely important to the nation. Congress determined that this critical mission would be compromised by the interjection of unrelated concerns about effects on competition. As Congress envisioned, the FAA has developed the knowledge and experience necessary to perform its critical safety function. But it has no comparable expertise over competition matters. When an agency ventures into an area over which it has no expertise, there is a very real danger that it will make serious errors in judgment that are contrary to the public s interest. By limiting the FAA to safety concerns, Congress prevented that danger from arising. As discussed next, Congress s confinement of the FAA to safety and airspace efficiency concerns does not in any way threaten Congress s interest in competition. In circumstances not present here, the Secretary has authority to consider effects on competition. And in transactions like the one at issue here, the Department of Justice has authority to conduct a competition review. B. Only The Secretary Has Authority To Consider Effects On Competition And Even The Secretary Does Not Have Such Authority In Connection With This Transaction Provisions of the statute relating to the authority of the Secretary of Transportation confirm that Congress allocated to the FAA a safety and airspace mission and that it has no authority to consider effects on competition. The statute vests authority to consider effects on competition only in the Secretary and only in carrying out economic regulation, not the airspace regulation at issue here. Even if the FAA could exercise the Secretary s competition authority, the Secretary has no authority to order slot divestiture as a condition of approving a transaction. That authority to consider the effects on competition of the transaction at issue here is reserved to the Department of Justice. 10

13 1. Only The Secretary Has Authority To Consider Effects On Competition In a subsection entitled Economic Regulation, Congress directed that in carrying out Subpart II, the Secretary of Transportation shall consider certain factors, including competitionrelated factors, as being in the public interest. 49 U.S.C (a). Specifically, Congress directed the Secretary to consider: (i) placing maximum reliance on competitive market forces and on actual and potential competition, (ii) preventing... anticompetitive practices in air transportation, (iii) avoiding unreasonable industry concentration, excessive market domination, monopoly powers, and other [similar] conditions, (iv) encouraging, developing, and maintaining an air transportation system relying on actual and potential competition, and (v) encouraging entry into air transportation markets by new and existing air carriers and the continued strengthening of small air carriers to ensure a more effective and competitive airline industry. Id. Congress, however, withheld comparable authority from the FAA, directing it to consider only safety and efficiency factors as being in the public interest. See 49 U.S.C (d). In proposing its divestiture condition, the FAA nonetheless invokes the competitionrelated factors set forth in Section 40101(a) as the basis for its asserted authority to consider competition in carrying out its responsibilities to assign airspace and to approve exemptions from airspace plans under Sections 40103(b) and 40109(b). But since Section 40101(a) authorizes only the Secretary of Transportation to consider competition, and then only with respect to economic regulation under Subpart II, it provides no authority for the FAA to consider competition in exercising its safety authority in assigning the use of airspace and approving exemptions from airspace plans under Sections 40103(b) and 40109(b), which are located in Subpart I. The FAA may not circumvent the limits that Congress placed on its authority by 11

14 invoking authority that Congress provided only to the Secretary. By expressly requiring the Secretary to consider competition-related factors, while simultaneously failing to give the FAA any comparable authority, Congress made it clear that only the Secretary has authority to consider effects on competition (and even then, as explained below, not in transactions such as this one which are subject to review by the Department of Justice under Section 7 of the Clayton Act). Nor may the Secretary direct the FAA to use the FAA s authority to assign the use of airspace and grant exemptions from airspace plans to impose a divestiture condition. Those authorities may only be used to promote safety and airspace, and the Secretary may not attempt to use them for a different purpose. Moreover, Congress has expressly provided that the FAA may not be required to coordinate, submit for approval or concurrence, or seek the advice or views of the Secretary or any other officer or employee of the Department of Transportation on any matter with respect to which the Administrator is the final authority. 49 U.S.C. 106(f)(2)(D). And the FAA has final authority to assign the use of airspace and grant exemptions from airspace plans. Id. 106(h) ( A decision of the Administrator in carrying out [the] duties or powers [specified in 106(g)] is administratively final. ). Any direction from the Secretary to the FAA to use its safety and airspace management authority in a particular manner would flatly violate the prohibition against such direction in Section 106(f)(2)(D). 2. The Secretary Does Not Have Competition Authority In Connection With This Transaction Even assuming that the FAA could invoke the Secretary s authority to consider effects on competition, it would not support the FAA s proposed action here. Congress has made clear its intent to preclude the Secretary from considering effects on competition with respect to a transaction of the sort proposed by Delta and US Airways here and to allow only the Department 12

15 of Justice to conduct such a review. Before 1989, first the Civil Aeronautics Board and then the Department of Transportation were authorized to reject transactions related to air carriers the effect of which... may be substantially to lessen competition or tend to create a monopoly. 49 U.S.C. App. 1378(b)(1)(B) (Supp. IV 1986). That authority paralleled the Department of Justice s authority to reject transactions under Section 7 of the Clayton Act, when the effect of the transaction may be substantially to lessen competition, or tend to create a monopoly. 15 U.S.C. 18. Under the Civil Aeronautics Board Sunset Act of 1984, however, DOT s authority to block domestic airline transactions on the ground that they would have anticompetitive effects expired on January 1, See Pub. L. No , 3(c); see also H.R. Rep. No , at 11 (1984) (explaining that the Department of Transportation s authority under Section 408 of the Federal Aviation Act to review airline transactions for their anticompetitive effects shall cease to be in effect on January 1, 1989 ). As a result, only the Department of Justice retains authority to determine whether a particular transaction that falls within Section 7 substantially lessens competition, and then bears the burden of proving that determination to a court. The slot exchange between Delta and US Airways falls squarely within Section 7 because it is a transaction to acquire the whole or any part of the assets of one or more persons. 15 U.S.C. 18. Accordingly, only the Department of Justice has authority to review its effect on competition. By imposing a divestiture condition on the LGA Waiver Request based on its view of the effects of the transaction on competition and without having to prove its case in a court of law, the FAA has effectively conducted the very Section 7 review that Congress has forbidden the DOT from conducting. Indeed, DOJ has been conducting a review of the proposed transaction under Section 7. On August 12, 2009, the parties reported the transaction to the DOJ. On September 11, 2009, the 13

16 DOJ issued a Request for Additional Information and Documentary Materials ( Second Request ). The parties certified substantial compliance with this request on October 28, And the statutory 30-day extension of the waiting period following compliance with the Second Request expired on November 27, The FAA s proposed order directly and impermissibly interferes with DOJ s exclusive authority to conduct this Section 7 review. The FAA s proposed divestiture condition is also fundamentally incompatible with the means that Congress assigned to the Secretary to promote competition through the allocation of slots. Specifically, Congress authorized the Secretary to grant exemptions to enable new entrant air carriers to provide air transportation at high density airports. 49 U.S.C (c); see also id (b) (authorizing exemptions from the High-Density Rule for LaGuardia and John F. Kennedy Airports in certain circumstances); id (authorizing within-perimeter and beyond-perimeter exemptions from the High-Density Rule for DCA). Acting under this authority, the Secretary has allocated slot exemptions to new entrants and limited incumbents in order to promote competition. Congress s approach to promoting competition through the grant of slot exemptions does not allow the FAA to divest airlines of existing slots. Indeed, at the same time Congress authorized the Secretary to promote competition by issuing slot exemptions, Congress reaffirmed that the FAA s slot authority should be exercised in the interest of safety. It specifically provided that the Secretary s authority to grant slot exemptions shall [not] be construed... as affecting the Federal Aviation Administration s authority for safety and the movement of air traffic. Id (b)(1) (emphasis added). It could not be clearer that while Congress gave the Secretary authority to grant slot exemptions in a way that would promote competition, Congress envisioned that the FAA s authority over the allocation of slots would be aimed solely at the safe and efficient movement of air traffic. 14

17 Thus, the text and structure of the statute unambiguously mandate that in determining whether a particular regulation or exemption is in the public interest, the FAA is authorized to consider only safety and the efficient use of airspace, and not effects on competition. And only the Department of Justice may consider the effects on competition of this transaction. C. The Legislative History Confirms That The FAA Has Only Safety Authority, And That Only DOJ May Review This Transaction For Its Effect On Competition The legislative history of the Department of Transportation Act, Pub. L. No (1966), which created the FAA and the Department of Transportation, confirms that Congress allocated safety authority, and not authority to consider the effects of competition, to the FAA. The Senate Report states that the functions, powers and duties of the Secretary set forth in certain specified sections and titles of the Federal Aviation Act of 1958, which concern aviation safety, are further transferred... to the Federal Aviation Administrator. S. Rep. No , at 25 (1966) (emphasis added). It also states that all of the statutory functions, powers and duties transferred to the Secretary pertaining to safety are to be exercised by the Federal Aviation... Administrator[]. Id. at 6 (emphasis added). And the Conference Report similarly explains that the FAA would receive duties... pertaining to aviation safety. H.R. Rep. No , at 26 (1966) (Conf. Rep.) (emphasis added). Nothing in the legislative history suggests that the FAA would receive authority to consider effects on competition. In the Department of Transportation Act, Congress also delegated numerous other responsibilities to the Secretary, while leaving responsibility for economic matters with the Civil Aeronautics Board. Congress has since transferred some responsibility for economic matters to the Secretary and some to the Department of Justice. See S. Rep. No , at 1 (stating that the economic regulatory functions of the... Civil Aeronautics Board would not be transferred to the new Department of Transportation); Civil Aeronautics Board Sunset Act of 1984, Pub. L. 15

18 No , 3 (transferring the CAB s economic regulatory authority to the Secretary of Transportation, and withdrawing, inter alia, transaction approval authority from the Department of Transportation). The Senate Report explains why Congress chose to divide safety authority from authority over economic matters. The Report states that [i]n view of the vast area of heavy responsibilities and functions which will be vested in the Secretary, the committee deemed it in the public interest to vest sole authority for all transportation safety in the FAA. S. Rep. No , at 11. The Report also notes that [s]afety is highly technical in nature and requires the knowledge, experience and judgment of highly trained and experienced technical specialists. Id. And the Report further explains that [b]y vesting sole authority for safety matters in trained experts,... any possible semblance of political influence will be eliminated, and the Secretary will be free to devote his efforts to the numerous other duties, functions, and responsibilities which would be vested in him. Id. at 12. Thus, the legislative history confirms what the text and structure make plain: the FAA should consider safety and the efficient use of airspace in determining whether a proposed regulation or exemption is in the public interest. It may not consider effects on competition. And only DOJ may review the present transaction for its effects on competition. D. The FAA s Arguments That It Has Authority To Consider Effects On Competition Are Unpersuasive In support of its assertion of authority to consider effects on competition, the FAA relies primarily on 49 U.S.C (a). As discussed above, however, that provision is inapplicable to the FAA s decision whether to grant the LGA Waiver Request because it confers authority to consider competition-related factors exclusively on the Secretary, and then only with respect to economic regulation under Subpart II. In contrast, Congress specifically provided that safety and efficiency considerations should guide the FAA in its consideration of the public interest. 16

19 See 49 U.S.C. 106(h). If Congress had intended for the FAA to consider the Section 40101(a) factors in exercising its authority to assign use of airspace and grant exemptions from airspace plans under Sections 40103(b) and 40109(b), it would have said so. Second, the FAA cites Delta Air Lines v. CAB, 674 F.2d 1 (D.C. Cir. 1982), in support of its consideration of effects on competition. But that case concerned the authority of the Civil Aeronautics Board (CAB) to include Montgomery, Alabama, in its Small Community Air Service program. See id. at 2. As explained above, Congress transferred the CAB s functions to the Secretary of Transportation and, as relevant here, to the Department of Justice. It did not transfer that authority to the FAA. Thus, to the extent that Delta Air Lines indicates that the CAB could consider effects on competition, it provides no support for the FAA to do so. The FAA s reliance on the O Hare Rule, see Congestion and Delay Reduction at Chicago O Hare International Airport, 71 Fed. Reg. 51,382 (Aug. 29, 2006), is also unavailing. In promulgating the O Hare Rule, the FAA considered effects on competition in the assignment of certain slots. But that consideration was not challenged in court. The FAA may not properly rely on a prior unauthorized action to sustain a new unauthorized action. Moreover, in the O Hare Rule, the FAA did not divest slots from incumbent carriers. See 14 C.F.R (a). The FAA s consideration of effects on competition was limited to allocation of vacant slots slots that had been withdrawn for non-use, returned to the FAA, or newly created through an increase in operational caps. 71 Fed. Reg. at 51,388. Accordingly, the O Hare Rule does not support the FAA s proposal to condition approval of the parties petition on their divestiture of slots. Third, the FAA seeks to rely on the pro-competition atmosphere engendered by the Airline Deregulation Act of 1978, Pub. L. No See 75 Fed. Reg. at In crafting 17

20 large-scale deregulation of the airline industry, however, Congress was very specific in allocating responsibility among the principal actors: it placed pro-competition considerations in the domain of the Secretary in respect of the Secretary s economic regulation under Subpart II, and in the Department of Justice with respect to transactions like those at issue here, while safety factors remained in the domain of the FAA. The FAA cannot undo the careful structure crafted by Congress. Finally, the FAA contends that it has broad power to condition waivers, based on its authority under 49 U.S.C (a) and 46105(a) to take necessary action and prescribe orders as appropriate. 75 Fed. Reg. at But these grants of authority apply to FAA action with respect to aviation safety duties and powers. 49 U.S.C (a), 46105(a) (emphasis added). They do not authorize the FAA to consider effects on competition. E. The FAA Should Approve The Slot Transfers Without A Divestiture Condition Because The Transfer Is Consistent With Safety And The Efficient Use Of Airspace As the previous discussion demonstrates, in deciding whether to approve the proposed transfer of slots between Delta and US Airways, the FAA may consider safety and the efficient use of airspace. Based on these factors, the proposed slot transfer should be approved without a divestiture condition. The FAA itself explained that it evaluated the potential impact on air traffic operations at the respective airports, and concluded that there will be little to no impact on the agency s ability to manage traffic at either airport. 75 Fed. Reg. at The FAA therefore tentatively found that much of the request meets the public interest standards of ensuring the efficiency of use of the navigable airspace and warrants a waiver. Id. That should end the inquiry. Because the parties proposed transfer satisfies the public interest criteria of safety and efficient use of airspace, the FAA should grant the parties petition in full. 18

21 II. The Proposed Divestiture Would Constitute An Unlawful Taking There is another reason that the FAA lacks authority to require divestiture of slots as a condition on approval of the transaction between Delta and US Airways. The imposition of that condition would confiscate Delta s and US Airways property without just compensation in violation of the Fifth Amendment of the Constitution. Courts have long held that slots are the property of carriers. See, e.g., In re Gull Air, Inc., 890 F.2d 1255, 1260 (1st Cir. 1989); In re Am. Cent. Airlines, 52 B.R. 567, (Bankr. N.D. Iowa 1985); In re McClain Airlines, Inc., 80 B.R. 175, 178 (Bankr. D. Ariz. 1987). Delta and US Airways hold property interests in the slots at issue here. They have a right to buy and sell the slots at DCA, see 14 C.F.R (a), a right to lease and exchange the slots at both LGA and DCA, see id.; 71 Fed. Reg. at 77,860, and a right to exclusive use of slots at both LGA and DCA, see 49 U.S.C (h)(4) ( The term slot means a reservation for an instrument flight rule takeoff or landing by an air carrier of an aircraft in air transportation. ). Thus, Delta and US Airways hold some of the most essential property rights: the right to use the property, to receive income produced by it, and to exclude others from it. United States v. Craft, 535 U.S. 274, 283 (2002); see also Phillips v. Wash. Legal Found., 524 U.S. 156, 170 (1998) ( possession, control, and disposition are... valuable rights that inhere in the property ). Indeed, the FAA effectively concedes that it plans to take the carriers property, expressly stating that [t]he carriers at LGA hold a possessory slot interest that may be leased in a secondary market for a period of time, and at DCA they may sell their slot interests also in the secondary market. 75 Fed. Reg. at With or without such a concession, the FAA s proposal to transfer slots from Delta and US Airways to new entrants and limited incumbent carriers clearly constitutes a confiscation of Delta s and US Airways property interests in the slots. The FAA s proposal takes property from A. and gives it to B. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J.). 19

22 The FAA does not propose to justly compensate the carriers for that complete deprivation. To the contrary, the FAA has proposed restrictions on the sale of the slots that make it impossible for the carriers to realize fair market value. See United States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (explaining that just compensation is market value of the property at the time of the taking (internal quotations omitted)). In particular, restricting sales only to carriers with less than 5% market share diminishes the ability for Delta and US Airways to obtain fair market value by severely limiting the market for the slots. Moreover, the FAA proposes to confiscate the slots if they are not sold within 60 days. Thus, no carrier eligible to purchase the slots has any incentive to purchase them from Delta or US Airways at fair market value. When potential purchasers know that the sellers will lose their entire property interest in the slots on a particular day, they need only offer fire-sale prices to make the sellers better off than they would be if they lost the property altogether. The FAA cannot avoid its obligations under the Fifth Amendment through a regulation that asserts that [s]lots do not represent a property right but represent an operating privilege subject to absolute FAA control. 14 C.F.R The government, by ipse dixit, may not transform private property into public property without compensation. Webb s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). Indeed, courts have applied that principle in this precise context. See, e.g., In re Gull Air, Inc., 890 F.2d at The FAA also cannot avoid the Fifth Amendment by requiring divestiture as a condition for obtaining a waiver, rather than directing the divestiture outright. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Supreme Court held that the government may not make the relinquishment of an interest in property a condition for approving a waiver from a prohibition unless the... condition serves the same governmental purpose as the... ban. Id. 20

23 at 837. A condition that does not satisfy that nexus requirement is not a valid regulation... but an out-and-out plan of extortion. Id. (quoting J.E.D. Assocs., Inc. v. Atkinson, 432 A.2d 12, (N.H. 1981)). Applying that analysis, the Court held that a zoning agency could not condition a beach-front building permit on the grant of a public easement across the property, because the basis for the permit requirement was to prevent an impeded view of the ocean from the road, while the purpose of the easement was to ensure public access to the beach, not an unimpeded view from the road. Id. at 836. The nexus requirement established in Nollan is plainly not satisfied here. The purpose of the prohibition on slot transfers at LGA is to prevent severe congestion-related delays at the airport, and to regulate the use of the airspace as necessary to ensure its efficient use. 71 Fed. Reg. at 77,854. The FAA agrees that a waiver would not interfere with that purpose, but it seeks to exact a condition for the wholly separate purpose of promoting the competitive position of new entrants and limited incumbents. Under Nollan, the FAA simply cannot do that. As in Nollan, the FAA s condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. 483 U.S. at 837. Thus, the FAA s proposed forced divestiture of slots as a condition of a grant of a waiver of the LaGuardia Order unconstitutionally deprives Delta and US Airways of property without just compensation. III. The FAA Has No Authority To Order Divestitures At DCA Additionally, the FAA has no authority to use a waiver request directed to a prohibition at LGA to order divestitures at DCA. That is particularly true because carriers have a right under the FAA s regulations to buy and sell slots at DCA without interference from the FAA. The prohibition on sales from which Delta and US Airways seek a waiver applies only to LGA. Because the relevant order from which an exemption is sought is applicable only at LGA, the FAA s authority to order an exemption from that order is necessarily limited to LGA. 21

24 The FAA s proposed conditional grant of the waiver, however, not only seeks to force divestiture of LGA slots, but also seeks to force divestiture of DCA slots. The FAA has no authority to order such a divestiture at DCA, because doing so does not grant an exemption from the LaGuardia Order and does not address any concern arising from the waiver of the LaGuardia Order. The FAA has no authority to use a request for an exemption from a rule applicable at one airport as a basis for seeking to affect policy at another. The FAA s proposal to force divestiture of slots is therefore in excess of statutory jurisdiction, authority, or limitations. 5 U.S.C. 706(2)(C). Forced divestiture of slots at DCA also conflicts with the FAA s own regulations. In particular, the FAA s buy/sell rule, which applies at DCA, broadly provides that slots may be bought, sold or leased for any consideration and any time period and they may be traded in any combination for slots at the same airport or any other high density traffic airport. 14 C.F.R (a); see also 50 Fed. Reg. at 52,182 ( [A]ny person may purchase, sell, trade, or lease air carrier and commuter slots... in any number at any of the high density airports. ). Because Delta and US Airways have a right to buy and sell slots at DCA, the FAA is prohibited from interfering with the transfer of slots at DCA. The FAA s proposal to force divestiture of slots at DCA as a condition for approving the exemption from the prohibition on sales at LGA contravenes that prohibition. Thus, even assuming that the FAA could condition a waiver on divestiture of LGA slots and it cannot it lacks authority to condition a waiver on divestiture of slots at DCA. IV. The FAA s Conclusions That The Transaction Will Harm Competition And That Divestitures Are Necessary To Remedy That Harm Fail To Satisfy The APA s Standard For Reasoned Decision-Making Assuming arguendo that the FAA may consider effects on competition in reviewing exemption requests, the proposed transaction should be approved because it increases 22

25 competition, expands output, and creates new service benefits. Indeed, in reviewing the proposed transaction, the FAA found that the transaction would satisfy the public interest objectives related to promoting a viable domestic airline industry, encouraging well-managed carriers, and attracting capital and protecting service to small communities. 75 Fed. Reg. at The FAA nevertheless concluded that granting the waiver in its entirety would result in a substantial increase in market concentration that would harm consumers. Id. at That conclusion fails to comport with the APA s requirement of reasoned decisionmaking. Under that standard, an agency may not fail to examine the relevant data, fail to consider an important aspect of the problem, make findings that are unsupported by the record, or select a remedy that does not bear a reasonable relationship to the problem it has identified. State Farm, 463 U.S. at 43; Barnum v. NTSB, 595 F.2d 869, 872 (D.C. Cir. 1979). The FAA s tentative analysis suffers from each of these flaws in the following ways: It did not address the overwhelming evidence of the substantial increases and improvements in service and increases in competition between the parties and with other carriers that will be produced by the transaction; It improperly failed to consider the transaction as integrated and incorrectly assumed without analysis that the proposed divestitures which would reduce the size of the transaction by 33% at DCA and 16% at LGA will allow the parties to realize almost all of the benefits of the transaction; It improperly failed to conduct a comparative analysis of competitive and consumer benefits against perceived competitive harms; It failed to explain or provide any support for the slot share thresholds it deemed to pose a risk of competitive harm or for the number of slots it proposed as necessary to remedy the asserted competitive harms; Its conclusion that increases in Delta s and US Airways share of slots at LGA and DCA to 49% and 54% respectively will increase fares at the airport level was based on flawed assumptions from outdated data and an inadequate analysis; and It did not conduct an adequate analysis related to the proposed remedy. 23

26 A. The FAA Failed To Analyze Overwhelming Evidence That The Proposed Transaction Benefits Competition The first legal flaw in the FAA s tentative analysis is that it did not consider most of the evidence submitted by the parties to the DOT, including the FAA, demonstrating that the slot transaction produces substantial pro-competitive and consumer-welfare benefits. That information included an in-depth economic analysis of the consumer benefits of the proposed transaction as well as other materials underscoring the transaction s pro-competitive benefits. See generally White Paper at 6-17; see also Compass Lexecon, Analysis of FAA s Notice Regarding the US Airways-Delta Air Lines Slot Transaction at [hereinafter Compass Lexecon Paper ]; Compass Lexecon, Consumer Benefits from the Proposed US Airways-Delta Slot Transaction [hereinafter Benefits ], attached as Appendix C to Compass Lexecon Paper. As these materials demonstrate, the proposed transaction will produce substantial benefits for consumers at both LGA and DCA. 2 At LGA, the transaction will allow Delta to build a new domestic hub, which will optimize Delta s New York operations and provide substantial benefits to consumers. Specifically, Delta will be able to consolidate its operations, which are now split between two terminals at LGA, into one expanded main terminal. By consolidating its LGA operations, Delta will be able to significantly increase the number of destinations it serves from LGA and shift short-haul service from New York-JFK to LGA, thus freeing up New York-JFK for longer-haul, beyond-perimeter flights. The new hub at LGA will produce more than 6,000 new connecting opportunities and will create important new competition to US Airways hub at Philadelphia and Continental s hub at Newark. And by consolidating its facilities and investing in ground control software, Delta will also be able to reduce taxi time for its aircraft, resulting in additional 2 The parties resubmit these materials as Appendix B to these comments. The parties additionally submit a new paper by Compass Lexecon, available at Appendix A, which responds to the FAA s economic analysis. 24