FAA to get involved with DAL gates, starts investigation

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Oct 23, 2010
At least at the end of all this it will be very well investigated by all gov and firms to the point of possibly no appeals will be necessary.  But I still think Delta can stay especially next month when Sea Port Airlines leave DAL for good.  They were doing 2 flights a day, so Delta could very easily use those two slots and keep 3 of their current slots to maintain the 5 flights to ALT.  Also lets not forget that Virgin is strongly thinking about pulling back some flights after the busy summer schedules end, and therefore might provide even more room to help accommodate Delta to stay.  I am pretty sure Delta will end up at least staying and maintaining their 5 original flights to ATL, but don't see enough room for them to add the 8 flights they were wanting to.  More discussions about the 20 gate restrictions are flying again.  I still say that would be a good route to travel down no matter how long it would take.  It would be a win-win-win for all involved and maybe even AA to get a chance to get in.
The Airline Battle at Dallas Love Field Creates a New Legal Mess
Judge To Decide If Delta Airlines Will Continue At Love Field
FAA steps into Delta-Southwest Airlines fight over Dallas Love Field gates, with warning to city of ...
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This is a significant development and indicates that the FAA is making it clear that there should be no communication whatsoever by any party as to the future of DL's presence at DAL UNTIL a judge finally rules on the issue.

There are no "they can stay until..."

DL's presence until the case is settled is not conditioned on any other action by any other party including Seaport.

and once again this highlights that the DOT and FAA have both said they are willing to withhold federal funds to DAL to make the point that the rules that they have set are followed and order is maintained during the process.

as for your statement about the 8 remaining flights, that is what the court is deciding.

and given that there are accommodation rules that cover both DL's current and requested but not yet added flights to DTW, MSP, and SLC, the chances are much harder to argue that DAL can function with DL's 5 flights but there is too much risk if the additional flights are added. Either the basis for DL to have remained thus far is legally invalid and they should go now or there is a basis for both flights. Further, it is a whole lot harder for WN to argue that it can't accommodate 8 more flights when/if it can successfully operate 5 flights above what DAL said was "full house." At what point is "full house" really "full house?" I would bet that if DL remains and operates its full 14 flights, WN will argue that it can keep adding flights until it can't make it work operationally.... and as far as I'm concerned that is ok.

There is no division between DL's current and future (DTW, MSP, and SLC) from the perspective of accommodation.

as for the gate restrictions, the easy solution is of course to tear up the whole 5PA but that also removes the protection that WN has argued it has. so, WN could push for removing the limits, but it also opens up the possibility of negating the whole situation at DAL.

the easiest solution and the one that creates the least impact to WN is to convert the 2 exUA gates to common use, allow DL to use that gates to their full 14 flights of their accommodation request and then make it clear that DAL is full for the 20 gates it has now because no other carrier made a request for accommodation in the time when it had validity.

let's keep this discussion open.... it is relevant and there is clearly an appetite on here to talk about it.
one other note from the article you linked, swamt, and a point which I have not seen discussed here.

The article links a 2006 article from the Dallas Business Journal which stated that

"The Justice Department's antitrust division says certain restrictions in the bill (now WARA), such as calling for a permanent reduction in the number of gates at Dallas Love Field would be "hard-core, per se violations of the Sherman Act," according to the memo."

"More broadly, the cap on gates at Love Field affects every other airline that would otherwise be attracted to the new competitive opportunities at Love Field, including low-cost carriers, such as Jet Blue, as well as other legacy carriers, such as US Air," the memo states."

I don't know if any action was taken on the bill but those who argue that the Justice Dept. is their friend in this whole deal fail to note that the DOJ had misgivings going all the way back to before WARA was signed and that the current DOJ has taken no position on DL's ability to remain at DAL under accommodation laws.

the current DOT only said that the ex-AA gates at DAL had to be awarded to an LCC under the notion that VX apparently believed they stood a better chance of competing from DAL than from DFW. The current DOJ's OPINION that DAL and DFW is not codified in any law anywhere and has no precedence either in other dealings with DFW or DAL or in any law governing any other airport, and never said anything about affecting accommodation requirements under the DOT.

Sadly, the documents regarding the case have not been made public but it is certain that these and other documents are being examined as well as the concern that was expressed - but apparently not fully addressed even when WARA was created.

Given that no other outside party to WARA or another non-Texas airline has challenged WARA before, there is a good chance that a lot of things that were approved without review will now be reviewed.

I would also doubt seriously that the case will be settled quickly which means all the more that DL will be at WN's case for as long as the case is in process and no party based on the FAA's statements can make any comment regarding a change to the status quo during the case.
This topic will stay open...for now. The second it devolves into the same circular posting that the others have, it's gone.

This is also the ONLY DAL gate access thread that will be allowed to stay prior to the court hearings.
Thx Eagle.    
On a side note;  I am a little put off on the time frame of the courts.  Only 2 days prior to the Sept 30th deadline.  And the judge is requiring all involved to have everything ready to go.  Maybe it's due to his schedule but not sure why the hearings were not set earlier in Sept. in order to leave some room for a few more days if needed.  Now, with as many as are involved and all that will be testifying, it appears there will be a mad rush to justice.  But, then again the judge could always extend the deadline once again I guess.
I would also be interested on how AA will argue to get back in at DAL.  And is there any other airlines wanting to come in and serve DAL?  I have not heard of any other than AA.  
Pretty sure they will be watching how all the flights are doing from Aug 9th going forward to the hearings to see if the flights can and will be able to operate.
It is funny that the DOJ was very worried about the gate limitation of 20 would not work.  I still say now would be the time to bring that very issue up and see about lifting it, or, adjusting it...
there is NO timeframe. period. the FAA has made it clear that there can be no communications by anyone about how long the process will take other than the court and that neither DAL or WN can make any statements about changing the status quo - DL at DAL - until the case is finished.

WN's performance at DAL has been almost identical to the rest of its system since the flight count went to 180. It will be very hard for DAL or WN to argue that they can't accommodate DL based on operational reasons.

The number of gates is not just a matter between DAL and DFW and their governments but also involves the residents. They may or may not be willing to increase the gate count.

The chances that WN will get more gates at DAL even if the gate count is increased is very, very low. If the DOJ or even a lone person inside of it said there were concerns about antitrust issues due to the removal of gates ten years ago, even while WN retained what it had, it will be even harder for WN to argue that there isn't an anttirust issue now that it has acquired 2 additional gates.

No other airline has managed to obtain anywhere close to 90% of the gates at any one airport and the whole arbitrary decision by the DOJ that DAL and DFW are a single market is not substantiated by any law anywhere.... nor is it even embodied in WARA or any other document. There simply is no legal basis anywhere in the country that limits the presence of an airline at one airport based on their presence at another in the region.

the most likely outcome if there is an attempt to rule on more than just DL's presence at DAL is that the limitation on WN's presence at DFW is anticompetitive. I have said all along it should be removed. The other limitation that could and should be overturned is WN's limitation on operating int'l flights from DAL. There is virtually no difference in operational impact to the community if WN operates flights to MEX than to MCO.

The DOJ's requirement that the 2 exAA gates be used by one entire airline dramatically limited the number of airlines that would serve DAL and that could easily be found to be uncompetitive. the DOT's proposal that all other gates beyond the original 16 become common use allows MORE airlines to serve DAL. B6 might very well add 2 to 5 flights but they aren't going to be able to support much more. VX is struggling hard to keep its 2 gates busy. It would undoubtedly drop down to a dozen or less if it could. Since AA is not there and UA left, DL is likely the only airline that can likely add 2 gates worth of flying but they are only asking for about 1 1/2 gates. Very few airlines in the US can add 20 flights/day within a couple month period at one airport.

I don't think any airline outside of the agreement (AA and WN) has ever challenged WARA before. The DOJ may have granted its approval before but that doesn't mean a court will come to the same conclusion if no party ever complained that it was uncompetitive but is now.

AA's absence from DAL is due to its merger agreement. It will be very hard for AA to argue that it should be able to return to DAL without undoing other parts of the merger agreement. WN and B6 gained gates at DCA and LGA that involved limiting access to legacy carriers to bid on those gates. You can bet your bottom dollar that if AA is allowed back into DAL, DL at least will argue that it should be given the opportunity to gain access to more gates at the minimum at DCA where WN has overtaken DL as the 2nd largest carrier. The whole notion that assets could be divided by the cost a carrier charges would likely not stand up in court but DL is not focusing on that.

For now, this case is focused solely on DL gaining access to DAL using the laws that currently exist and which DAL and WN knew existed at the time WN acquired the UA gates WHILE DL's accommodation request was pending.

and while the case is being heard, no party can threaten DL with leaving or a deadline.
swamt said:
I still say now would be the time to bring that very issue up and see about lifting it, or, adjusting it...
(Un)Fortunately, since the gate cap is codified into law, it would literally take an act of Congress to change things. Not a government agency, not the courts.

Airports are not obligated to grow beyond what their owners deem appropriate, and right now, the owners of DAL (i.e. the taxpayers within the City of Dallas) and all of the litigants involved in decades of lawsuits agreed to the cap.

Certainly, the homeowners around the airport don't want the added flight activity or street traffic.

Seem to me the only people interested in adding flights are the carpetbaggers from ATL and maybe a couple of bureaucrats in DC.

People cried foul left & right when eminent domain was shoved down the throats of everyone living within a mile of the Cowboys Stadium in Arlington.

Allowing it to happen again just to benefit one airline seems a bit selfish to me.
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DL was operating its flights at DAL long before WN announced its post Wright schedule. It is precisely because the City of Dallas knows that it agreed to accommodation processes that require it to accommodate DL that it misstated the date of DL's accommodation request to be AFTER WN's announcement of its post Wright buildup when in fact DL's announcement came first. Under accommodation procedures which the DOT established and DAL does not deny exist, carriers that have service must be allowed to continue that service regardless of the transfer of gates. Those are the ATL flights. The chance of them being pulled is about ZERO.

The 2nd part of the case is DL's accommodation request for additional flights. COD has acknowledged that it is obligated by those accommodation requirements which specify that if space exists at an airport, ANY CARRIER that does not have gate access must be allowed to add service and carriers with leases cannot state that they are not using their gates because they will add service at a later date.

Further, there are MAJOR antitrust implications for DL to follow DOT and COD procedures regarding accommodation that require them to disclose their schedule and destination and then for WN to deny access and then start flights in those markets later - which is exactly what they have done.

Arlington Stadium isn't governed by the same laws as airports. It simply is a whole nother topic.

North Texas and its hub airlines have a long history of attempting to block competition going back to AA's conversation with BN, the whole DAL fiasco from the start, and the 5PA - which probably wouldn't meet antitrust scrutiny if it was tried - something which has never happened. With WN's acquisition of the exUA gates, which are not protected by any law and which were not provided to any carrier at market rates as the DOT requires, it is certain that the entire current situation at DAL would be overturned if it was challenged.

There is no rational basis for DAL to be restricted to 20 gates - but the residents agreed to it.

Right now, DL is simply asking for the right to maintain its existing ATL flights and start flights to its 3 largest inland hubs.

The least legally disruptive action for DAL would be for it to allow DL to add its 13-14 flights and for WN to make whatever changes IT needs to make to its schedule to allow DL to operate reliably.

WN and the COD could easily find that, even with granting access to DL for those flights, DAL could still be in legal hot water because DAL would be putting out a "NO OCCUPANCY" sign with no possibility for any change in the competitive environment, something that doesn't exist at any other airport in the US. All of the slot controlled airports have mechanisms for changes in flight activity and they regularly provide opportunities for carriers to express a desire for access - and the DOT and or DOJ has acted to allow that to happen. There is no mechanism for any growth to happen at DAL - and growing the facility to allow growth is not the answer.

There are HUGE antitrust issues involved with a carrier being allowed to operate from 90% of the gates at an airport while excluding a competitor and also having no access for any other carrier to start service in the future because the airport is full.

It is very likely that the entire way COD has managed DAL will be challenged once again but at the minimum it is virtually a given that WN will be forced to work within the 16 gates it had at the date WARA was enacted as long as there is ANY chance that any other carrier wants to add service to DAL.

It is also possible that any attempts to change anything about the 5PA could trigger a full review of the whole thing - whether that be the no international flights restrictions or the number of gates - or WN's ability to serve DFW, even if they never intend to.

The LEAST disruptive path for DAL and the COD is for DL to be accommodated and then for COD to come up with a plan that ensures that some type of access can be found for other carriers that want to serve the airport.

Texas will never succeed at arguing that DAL and DFW are local airports and exempt from Federal control or access requirements - unless Texas wants to fund the operation of those airports on its own. that argument has never worked anywhere else and it is completely contrary to the concept of a federal transportation system and interstate commerce.

finally, given that you asked that this topic be shut down, let's be very clear that you are not going to be allowed to derail the conversation so the thread can be locked.

leave labels like carpetbagger and other terms out of the conversation. They have no legal basis in the conversation. your emotions and those of anyone else won't be considered in the case. The court will rule based on law.

Keep the conversation focused on that basis.
Educate yourself:
There is nothing in the WARA that limits WN to 16 gates.
And DL isnt part of the signatory agreement.
(e) Limitation on Statutory Construction-
(1) IN GENERAL- Nothing in this Act shall be construed--
(2) FACILITIES- Paragraph (1)(E)--

  • (A) to limit the obligations of the parties under the programs of the Department of Transportation and the Federal Aviation Administration relating to aviation safety, labor, environmental, national historic preservation, civil rights, small business concerns (including disadvantaged business enterprise), veteran's preference, disability access, and revenue diversion;
    ( to limit the authority of the Department of Transportation or the Federal Aviation Administration to enforce the obligations of the parties under the programs described in subparagraph (A);

    (i) to construct additional gates beyond the 20 gates referred to in subsection (a); or
    (ii) 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.

(C) to limit the obligations of the parties under the security programs of the Department of Homeland Security, including the Transportation Security Administration, at Love Field, Texas;

(D) to authorize the parties to offer marketing incentives that are in violation of Federal law, rules, orders, agreements, and other requirements; or
(E) to limit the authority of the Federal Aviation Administration or any other Federal agency to enforce requirements of law and grant assurances (including subsections (a)(1), (a)(4), and (s) of section 47107 of title 49, United States Code) that impose obligations on Love Field to make its facilities available on a reasonable and nondiscriminatory basis to air carriers seeking to use such facilities, or to withhold grants or deny applications to applicants violating such obligations with respect to Love Field.
(A) shall only apply with respect to facilities that remain at Love Field after the city of Dallas has reduced the number of gates at Love Field as required by subsection (a); and
(shall not be construed to require the city of Dallas, Texas--

(i) to construct additional gates beyond the 20 gates referred to in subsection (a); or
(ii) 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.
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yes, you've posted that before.

and it doesn't give WN any right to obtain additional gates, doesn't give them preferential access to additional gates, and doesn't relieve or protect them from antitrust concerns or enforcement regarding anything above their 16 gates.

The case doesn't need to even begin to deal with the 16 gates. It will be won regarding the exUA gates.

I can assure you that neither DAL, COD, or WN will be able under any defense to justify consolidation of WN's power at DAL beyond 16 gates and eliminate a competitor in the process.

but that again is what the court will decide and what the FAA has said cannot be prejudged to change the status quo until a final ruling is made.
It doesn't prevent them either, refute the law.

It doesn't even state WN nor how many gates they can have.
Antitrust laws prevent a competitor from consolidating their power and eliminating competitors.

WARA does not and cannot protect WN or COD from antitrust violations beyond what WN had at the time WARA was enacted.

further, nothing in what you cited excused DAL from its accommodation responsibilities which is exactly why DAL tried to pretend that DL filed for accommodation on a different date than they actually did.

let's leave it to the court to decide the issues and leave this discussion to new aspects of the topic that have not been already discussed here
Eagle said:
This topic will stay open...for now. The second it devolves into the same circular posting that the others have, it's gone.

This is also the ONLY DAL gate access thread that will be allowed to stay prior to the court hearings.
Yes it does, read it again:
(E) to limit the authority of the Federal Aviation Administration or any other Federal agency to enforce requirements of law and grant assurances (including subsections (a)(1), (a)(4), and (s) of section 47107 of title 49, United States Code) that impose obligations on Love Field to make its facilities available on a reasonable and nondiscriminatory basis to air carriers seeking to use such facilities, or to withhold grants or deny applications to applicants violating such obligations with respect to Love Field.
then tell the FAA that they are wrong in what they just said.
you said the same thing about the letter the FAA just sent but they did it anyway.
you've made your point now leave it to the judge. 
while you're waiting, you can let us know what limits the FAA, DOT, and DOJ agreed to give up.  the text doesn't say "eliminate obligations"
and again, the entire legality of WARA has never been tested.  It is entirely possible that if DL fails to gain access and if the DOT or FAA believes competition is being hampered or eliminated for the benefit of WN, they could challenge WARA.
Despite what you think, there is far more risk to DAL and WN by refusing to budge and by locking up DAL than by giving DL the access it seeks.   If WN is allowed to control 18 gates and eliminate a competitor in the process, I can absolutely assure you that WARA will be challenged and likely drastically amended.
The concerns of the 2006 DOJ memo are playing out exactly as was predicted and there is no legal cover that DAL or WN can find to block them from the legal efforts to regain the competitiveness.
N. Texas has gained absolutely nothing if the duopoly that existed between AA and BN has been replaced by the same duopoly with AA and WN and antitrust attorneys would have absolutely no problem proving it.
Let me remind you that DL hired one of the best antitrust lawyers to head its legal dept.  They aren't about ready to walk away from this case with empty hands. 
it is entirely possible that DL will be the one airing commercials in a few years inviting N. Texans to freely move around the country because they have fought to throw off the oppressive duopoly that has ruled N. Texas aviation for decades. 
The law is quite clear, WARA exempts DAL from Section 49 of the anti-trust laws.
Last time I checked the FAA doesnt interpret the law.
That would be the DOJ and the court system.
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