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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
SOUTHWEST AIRLINES CO.,
Petitioner,
Case No. 15-1036
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION,
Respondent.
REPLY OF DELTA AIR LINES, INC.,
IN SUPPORT OF MOTION TO INTERVENE
Delta Air Lines, Inc. has a direct and substantial interest in this case that
warrants intervention.

Indeed, it is the ongoing dispute between Delta and

Southwest Airlines over accommodation at Dallas Love Field that precipitated the
Department of Transportation (DOT) letter that Southwest now challenges. The
very first sentence of the letter states that it is addressing Delta Air Lines, Inc.s
request for long-term accommodation of its five daily departures at Dallas Love
Field (DAL) and the policy of the City of Dallas regarding reasonable air carrier
access. Dec. 17 Letter at 1. Deltas interest in this case should thus be self-evident,
as it was Deltas request for accommodation that prompted DOTs letter in the first
place.

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Counsel for Respondent has informed Delta that DOT does not oppose Deltas
motion to intervene. And Southwests arguments in opposition to Deltas motion
are wholly without merit.
A.

Southwest asserts (at 2-3) that Delta should not be allowed to intervene

because DOT can adequately represent Deltas interests.

But this Court has

repeatedly allowed interested parties to intervene in support of DOT actions.

See, e.g., VIH Cougar Helicopters v. DOT, No. 13-1234 (D.C. Cir. 2013) (interested
parties allowed to intervene despite appellants objection that their interests were
adequately represented by DOT); Air Transport Assn of America v. DOT, 613 F.3d
206 (D.C. Cir. 2010) (association of airports allowed to intervene in support of DOT
policy authorizing higher landing fees at peak times); Aerolineas Argentinas v. DOT,
415 F.3d 1 (D.C. Cir. 2005) (American Airlines allowed to intervene in support of
DOT order imposing additional fees on one of its competitors); Air Canada v. DOT,
148 F.3d 1142 (D.C. Cir. 1998) (Dade County allowed to intervene in support of
DOT order approving higher fees at county-owned airport); Port Authority of New
York and New Jersey v. DOT, 479 F.3d 21 (D.C. Cir. 2007) (Port Authority and
various airlines allowed to intervene in support of DOT in cross-petitions for review
of DOT orders regarding landing fees at Newark Airport). If Southwests theory
were correct, intervention should have been denied in all of these cases because the
intervenors interests were adequately represented by DOT.
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Tellingly, Southwest does not cite a single case in which this Court denied
intervention on the ground that a private partys interests were adequately
represented by a government agency. Indeed, the only case that Southwest cites
which actually reversed a district court decision denying interventionnoted that
this Court has often concluded that governmental entities do not adequately
represent the interests of aspiring intervenors. Fund for Animals v. Norton, 322
F.3d 728, 736 (D.C. Cir. 2003). A government agency is charged by law with
representing the public interest of its citizens, while a private intervenor may seek
to protect a more narrow interest. Id. at 737. That there may be some overlap
between the agencys interest and the intervenors interest is insufficient to defeat a
motion to intervene. Id. at 736.
Just so here. Delta strongly supports the policy set forth in DOTs December
17th letter, but its interests do not entirely overlap with DOTs. DOT is a federal
regulatory agency that must balance the concerns of all interested stakeholders,
whereas Deltas core interest is ensuring that its own flights at Love Field are
accommodated on reasonable terms. And, as the airline that actually operates the
flights for which accommodation is needed, Delta is uniquely positioned to explain
why DOTs policy is both reasonable and necessary in the specific context of Love
Field. In short, Delta has a direct and substantial interest in this case that is
sufficiently distinct from DOTs interest to warrant intervention.
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B.

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Southwest also asserts (at 1-2) that Delta lacks a sufficient interest in

this case because Delta would not be entitled to accommodation even under the
policy set forth in DOTs letter. But the differing view of Southwest and Delta about
the implications of DOTs letter is not a reason for denying intervention. Indeed, the
fact that Delta takes a broader view of DOTs letter than Southwest only underscores
that Delta has a concrete stake in the interpretation of the letter and should be allowed
to intervene.
Southwests additional arguments about purported capacity constraints at
Love Field are both irrelevant and premature. Southwest is broadly challenging the
legal basis for DOTs airport accommodation policy, arguing that DOTs letter is in
excess of statutory authority and not in accordance with law. Pet. for Review
at 1. The crux of this challenge is that Southwest believes DOT has imposed a
greater accommodation obligation than is appropriate. As the carrier that has
requested the accommodation at Love Field, Delta has a strong interest in ensuring
that Southwests incorrect legal theory is rejected. Southwest simply ignores Deltas
argument that its flights at Love Field could be jeopardized if Southwest prevails
in its challenge to [DOTs] policy. Mot. 2.
Southwests argument about purported capacity constraints is also premature
because DOTs letter makes clear that the City of Dallasnot DOTwill decide in
the first instance whether sufficient capacity exists at Love Field to accommodate
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Deltas flights. See Dec. 17 Letter at 2 n.1. While the Citys own consultants (and
Deltas analysis) have concluded that there is sufficient capacity, the City has not yet
made a final determination on Deltas request for forced accommodation. It is
entirely inappropriate for Southwest to argue that Delta lacks a sufficient interest in
this case to warrant intervention merely because its accommodation request might at
some point in the future be affected by capacity constraints.
Finally, Delta has produced a comprehensive analysis of gate usage at Love
Field showing that ample room exists to accommodate Deltas five daily flights. See
Exhibit A (February 23, 2015 letter from Kenneth P. Quinn to Warren M.S. Ernst
regarding accommodation at Love Field). Delta is thus entitled to accommodation
under the plain terms of DOTs December 17th letter and the Citys Use Agreement
and federal grant assurances.

That accommodation would be jeopardized if

Southwest prevails in this case, further underscoring Deltas direct and substantial
interest in the outcome.

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CONCLUSION
For the foregoing reasons, Delta should be granted leave to intervene in
support of Respondent. Respondent does not oppose Deltas intervention.
Respectfully submitted,
s/Paul D. Clement
PAUL D. CLEMENT
JEFFREY M. HARRIS
BANCROFT PLLC
1919 M Street NW
Suite 470
Washington, DC 20036
(202) 234-0090
pclement@bancroftpllc.com

KENNETH P. QUINN
JENNIFER TROCK
PILLSBURY WINTHROP
SHAW PITTMAN
1200 Seventeenth Street, NW
Washington, DC 20036
(202) 663-8898

Counsel for Delta Air Lines, Inc.

March 24, 2015

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CERTIFICATE OF SERVICE
I hereby certify that on March 24, 2015, I electronically filed the foregoing
Reply in Support of Motion to Intervene via the ECF filing system, thereby serving
all counsel of record.
s/Paul D. Clement
Paul D. Clement

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Pillsbury Winthrop Shaw Pittman LLP

1200 Seventeenth Street, NW | Washington, DC 20036 | tel 202.663.8000 | fax 202.663.8007

Kenneth P. Quinn
tel 202.663.8898
kquinn@pillsburylaw.com

February 23, 2015

Via Email
Warren M.S. Ernst
Dallas City Attorney
Dallas City Hall
1500 Marilla Street
Room 7DN
Dallas, Texas 75209-6622
Re:

Accommodation of Delta at Dallas Love Field

Dear Mr. Ernst:

On behalf of our client, Delta Air Lines, Inc. (Delta), we are writing to advise the
City of Dallas (City) that Delta has made a final good-faith attempt at voluntary
accommodation from Southwest Airlines Co. (Southwest).1 Based on prior
meetings, past correspondence,2 and Southwests recent petition for review in the
U.S. Circuit Court of Appeals for the D.C. Circuit challenging the United States
Department of Transportations (DOT) position,3 we expect that Southwest will
continue to refuse accommodation on the terms set forth in DOTs letter,4 and expect
to receive confirmation of Southwests position no later than Wednesday, February
25, 2015.
As a result, we respectfully request that the City proceed with the accommodation of
Delta pursuant to Section 4.06F of the Citys Amended and Restated Lease of

See Letter from K. Quinn, Pillsbury, to R. Kneisley, Southwest Airlines, Co. (Feb. 23, 2015).

See Letter from R. Kneisley, Southwest Airlines Co., to K. Quinn, Pillsbury (Jan. 4, 2015).

Petition for Review, No. 15-1036 (D.C. Cir. Feb. 13, 2015).

See Letter from Hon. K. Thomson, U.S. Department of Transportation, to W. M.S. Ernst, City of
Dallas (Dec. 17, 2014) (December 2014 DOT Letter).

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Terminal Building Premises (Use Agreement)5 and select a carrier to accommodate

Delta on terms outlined by DOT. With the recent announcement by Virgin America
that it intends to add five new daily flights from DAL beginning April 28, 2015 and
with growing interest in service at DAL,6 we respectfully request that the City resolve
the accommodation matters promptly and in accordance with DOT guidelines.
In securing accommodation of Deltas existing schedule of five daily flights, the City
should use its November 5, 2014 snapshot date for determining gate availability,
and the accommodation should reflect: (i) DOTs requirement for on-going
accommodation as long as Delta continues to operate the accommodated flight
schedule,7 (ii) DOTs limitation that reasonable accommodation rates consist of
subleasing rates covering the direct leasing costs for the pro-rata share of subleased
facilities, plus reasonable administrative costs,8 and (iii) the Citys policy limiting
administrative costs at fifteen percent (15%).9 To ensure accommodation of Delta
and to avoid enforcement action or other sanctions by the DOT, the City should also
use its authority under Section 14.02 of the Use Agreement to amend the Use
Agreement to reflect Deltas on-going accommodation and limited costs.
Deltas existing schedule of five daily flights can be accommodated on Southwests
original 16 gates or its two extra gates subleased from United Airlines, Inc.
(United), whether based on the November 5 snapshot date or on Southwests
April 2015 schedule.10 Now that Southwest controls 90% of DAL gates, the City
should require that Southwest accommodate Delta on any of its 18 leased and
subleased gates.
5

See Letter from W. M.S. Ernst, City of Dallas, to Hon. K. Thomson, DOT, M. Shaw, Southwest, T.
Bolling, United, R. Hirst, Delta (Jan. 5, 2015) ([W]e will continue our mandatory accommodation
process unless informed by carriers that it is no longer necessary). No carrier has informed the City
that the mandatory accommodation process is no longer necessary.

Terry Maxon, Virgin America to launch Dallas-Austin flights in April, DALLAS MORNING NEWS,
Feb. 18, 2015, available at http://aviationblog.dallasnews.com/2015/02/virgin-america-to-launchdallas-austin-flights-in-april.html/.

See December 2014 DOT Letter.

See id.at 3.

See City of Dallas, DAL Competition Plan Update (June 3, 2009) (The Citys current policy of
limiting carriers to a 15 percent administrative fee is still in force.).

10

As used in this letter and for the purpose of accommodation of Deltas existing flights, Southwests
April 2015 schedule refers to Southwests schedule as of the November 5, 2014 snapshot date,
which includes 154 Southwest flights.

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Securing accommodation of Deltas existing schedule would fulfill the Citys

commitments to the DOT and Federal Aviation Administration (FAA), as well as
its obligations under Section 4.06 of the Use Agreement, the Five Party Agreement,11
and the Reform Act.12 Delta fully supports competitive access at DAL, where
enplanements exceeded 1.0M for the first time in December 2014 (a 45.6% increase
from 2013) and fares have increased more than any airport in the country over the last
14 years (26.1%).13
HISTORY OF REQUEST
As you are aware, Delta began its request for DAL accommodation in June 2014.14
Delta and the signatory carriers did not reach an accommodation agreement. On July
16, 2014, Delta informed the City that Delta had contacted all signatory carriers and
that Delta had exhausted all reasonable efforts to secure accommodation, and
formally requested forced accommodation from the City.15 Presuming the City would
follow the accommodation process set forth in Section 4.06F of the Use Agreement,
Delta expected that the City would have notified signatory airlines that Delta should
be voluntarily accommodated within 30 days, and if Delta was not voluntarily
accommodated, that the City would select a signatory carrier and force
accommodation after an additional 30 days.16

11

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 (July
11, 2006) (Five Party Agreement).

12

Wright Amendment Reform Act of 2006, Pub. L. No. 109-352 (Oct. 13, 2006) (Reform Act).

13

Terry Maxon, Dallas Love Field Carriers Over a Million Passengers in December, DALLAS
MORNING NEWS (Jan. 25, 2015), available at http://www.dallasnews.com/business/airlineindustry/20150125-dallas-love-field-carries-over-a-million-passengers-in-december.ece; AVIATION
DAILY, Industry Data, at 6 (Dec. 15, 2014); Bureau of Transp. Statistics, 2nd-Quarter 2014 Air Fare
Data, Press Release No. BTS 50-14, Table 8 (Oct. 28, 2014), available at
http://www.rita.dot.gov/bts/press_releases/bts050_14.

14

See e.g., Letter from M. Anastas, Delta, to J. Vlek, United (June 13, 2014) (contacting United with a
formal request for accommodation pursuant to Section 4.06F of the Use Agreement). Delta
requested accommodation of six flights on June 13, 2014. Deltas current schedule and request for
accommodation is five flights.

15

See Letter from M. Anastas, Delta, to M. Duebner, City of Dallas (July 16, 2014).

16

See Letter from H. Shannon, Delta, to M. Duebner, City of Dallas (Sept. 18, 2014).

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Exhibit 1 provides a timeline of Deltas accommodation request, the dates on which

the Use Agreement provides for Deltas voluntary and forced accommodation, and
the scheduled voluntary and forced accommodation process by the City. As shown
on Exhibit 1, the actual accommodation process has taken nearly nine months
compared to the two month process contemplated in the Use Agreement and is not yet
complete.
On September 18, 2014, after an extended period for the signatory carriers to provide
voluntary accommodation to Delta, Delta reconfirmed to the City that it had
exhausted its efforts at voluntary accommodation.17 After Deltas request remained
unfulfilled by the City and with the approaching expiration of American Airlines
sublease to Delta on October 12, 2014, Delta took last-minute action to maintain its
schedule and entered into a short-term license agreement with Southwest, even
though the economic terms were not in line with DOT requirements and even though
the terms were less favorable than the terms offered by the City to Southwest.18
On December 1, 2014, the City provided written notice to carriers of the Citys intent
to commence the 30-day period to voluntarily accommodate Deltas request.19 The
Citys 30-day voluntary accommodation period expired on December 31, 2014 and
Deltas accommodation request continued unfulfilled. To avoid a disruption in
service, Delta again had to resort to entering into a temporary short-term license
agreement this time with United to continue its service (the United License).20

17

Id. (The 30 days have passed and Delta was not accommodated.).

18

See Gate Use License Agreement (Oct. 10, 2014) (licensing a Southwest gate to Delta from October
13, 2014 until January 6, 2015). See also Facilities Use License Agreement (Oct. 10, 2014)
(licensing ticketing and support space to Delta) (Delta-United Facilities Use License Agreement).

19

See Letter from M. Duebner, City of Dallas, to M. Shaw, Southwest, J. Varley, Virgin America
Airlines, A. Bried, United, R. Hirst, Delta (Dec. 1, 2014) (Re: Notice to Signatory Carriers of 30 Day
Period to Voluntarily Accommodate Delta Air Lines September 18, 2014 Request for a Gate
Pursuant to Section 4.06 F.2 of the Amended and Restated Lease of Terminal Building Premises at
Dallas Love Field) and Letter from M. Duebner, City of Dallas, to M. Shaw, Southwest, J. Varley,
Virgin America Airlines, A. Bried, United, R. Hirst, Delta (Dec. 1, 2014) (Notice to Signatory
Carriers of City of Dallas Intent to Commence 30 Day Period to Voluntarily Accommodate Delta
Airlines September 18, 2014 Request for a Gate at Dallas Love Field) (collectively, December
2014 Accommodation Notifications). In the Citys notification, the City appears to ignore Deltas
July 2014 accommodation request, stating that Deltas accommodation request occurred on
September 18, 2014.

20

See Gate Use License Agreement (Jan. 6, 2015) (licensing United gate space to Delta from January
6, 2015 to July 6, 2015). Delta and United also extended the Delta-United Facilities Use License

( continued)

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Similar to Southwest, United licensed the gate space on terms that were less favorable
than those offered to United by the City and with fees in excess of the Citys charges
to United.
The United License does not provide accommodation of Delta. First, contrary to
Deltas original and on-going accommodation request and the DOTs policy, 21 the
United License like the prior Southwest license limits Deltas gate use to months,
regardless of whether Delta continues its service. At the end of the license term,
Delta will be pushed out without any obligation for the licensor to provide other
space for Deltas continued service.
With Delta having exhausted all efforts to obtain voluntary accommodation months
ago and without any basis for further delay, the City should force Deltas
accommodation under Section 4.06F of the Use Agreement and the Citys December
1, 2014 Accommodation Notifications. The City should notify carriers that the forced
accommodation process will now occur. As mutually agreed upon by the City and
airlines, the City should use the November 5, 2014 snapshot date set for Deltas
original request. Adequate room exists for Delta to be accommodated regardless of
whether the City uses Southwests schedule on the November 5 snapshot date or
Southwests April 2015 schedule.
GATE AVAILABILITY
November 5, 2014 Snapshot Date.
The Citys procedures provide that the snapshot date should be the date of Deltas
request June 13, 2014. As recognized by DOT, airports are expected to
accommodate a requesting carrier to the extent possible given the current gate
usage,22 and the carrier should be able to maintain its schedule on an ongoing basis.

( continued)
Agreement to continue Deltas licensing of ticketing and support space. See First Amendment to
Facilities Use License Agreement (Jan. 6, 2015).
21

See December 2014 DOT Letter at 1 (the accommodated carrier is entitled to an ongoing similar
pattern of service as long as the carrier continues to operate the accommodated flights).

22

Id.

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As such, no basis exists for a snapshot date later than the agreed upon November 5,
2014, snapshot date. 23
In addition, the United License does not constitute voluntary accommodation for
purposes of Section 4.06F of the Use Agreements. DOT has reiterated that it is the
Citys responsibility to continue the accommodation and ensure that space is available
so that the requesting carrier is able to maintain its pattern of service on an ongoing
basis, based on the available space on the snapshot date of the original
accommodation request, even after the expiration or termination of any agreement
between the accommodated carrier and signatory carriers.24 Thus, any Citymandated accommodation after the expiration of the United License, and the Citys
determination of whether space is available, relates back to Deltas original
accommodation request and the Citys original snapshot date.
Using either Southwests schedule on the Citys November 5th snapshot date, or
even Southwests April 2015 schedule, ample space exists at DAL for Southwest to
accommodate Delta on Southwests original 16 gates. Considering the additional
subleased gates from United, Southwest could accommodate Delta on 18 gates
without impact to its April 2015 schedule.
Gate Availability for Delta.
Two metrics are considered in determining daily gate capacity: the separation time
between the departure of one flight and the arrival of the next flight, and the turn time
on the ground between an aircrafts arrival and departure at a gate. Using 30-minute
separation and turn times that reflect Southwests current practices and schedule,
Southwest can accommodate Deltas schedule on Southwests 16 gates whether

23

See December 2014 Accommodation Notifications, Love Field Dallas Accommodation Criteria and
Allocation System, at 1; See Letter from M. Duebner, City of Dallas, to M. Shaw, Southwest, J.
Varley, Virgin America Airlines, A. Bried, United, R. Hirst, Delta (Dec. 1, 2014) (Ordinarily, [the
snapshot date] will be the date on which the City received the formal request for accommodation but
unique circumstances could dictate another date [ ]. The City will then determine what schedule will
be used for assessing scheduled operations. Normally, this will be the schedule for the six months
following the snapshot date.) At most, the City should look forward to the schedule published for
the six month period from the snapshot date, as published on the snapshot date, to determine the
signatory airlines gate availability.
24

Id. (emphasis added).

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looking at the November 5, 2014 snapshot date, as found by Leigh|Fisher,25 or even

on Southwests expanded April 2015 schedule. Table 1 below shows that applying a
30 minute separation time to Southwests published April 2015 schedule (including
extended turn times) and optimizing the assignment of flights to gates yields enough
capacity to accommodate Deltas five flights, with capacity to spare.

GateCount

23:00

22:00

21:00

20:00

19:00

18:00

17:00

16:00

15:00

14:00

13:00

12:00

11:00

10:00

9:00

8:00

7:00

6:00

5:00

Table 1. Gate Plot for Southwests 16 Gates Using Published Schedule

for 154 Peak Day Flights (April 2015 Schedule)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
WNaircraftatgate/RON
DLaircraftatgate/RON
30minGateBufferforaircraftarrival/departure
AvailableTime

Taking into consideration the two additional gates subleased from United, Southwest
is undoubtedly able to accommodate Delta. In sum, Southwest cannot argue that it
cannot accommodate Delta on its gates when: (i) Southwest can accommodate Delta
on its original 16 gates, as illustrated in Table 1 above, and (ii) Delta is currently
operating on the 2 additional subleased gates.
The impact of Deltas flights on Southwests average gate utilization rate (for 16
gates) would be minimal (increasing the rate from 9.6 to 9.9 flights per gate) and the
resulting average would be less than Deltas rate at LAX (10.7). Table 2 compares
the rates for Delta at its major hubs, Southwests rate at DAL, and the combined rate
if Southwest accommodates Delta at its 16 gates.

25

See Leigh|Fisher, DAL Baseline Gate Analysis, Gate Modeling of Current Day Operations
Preliminary Results at 10 (Nov. 20, 2014).

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Table 2. Peak Day Gate Utilization, 16 Gates (March 2015)

10.7

DLLAX

9.9

9.6

Accommodation
(DL/WNDAL)

WNDAL

8.5

8.2

DLLGA*

DLATL**

*Excludes MAT gates and DCA/ORD flights

**T/A/B/C/D gates and US domestic flights only
Source: Innovata schedules for March 2015 (as of January 22)

Even using the February 2015 schedule provided by Southwest (with 16 gates) and 30
minute aircraft separation and turn times,26 Southwest appears to have capacity for
accommodation, or gates at which Southwest could move its aircraft to open larger
periods of time for other carriers, Table 3. Illustrated by the arrows in Table 3, if
Southwest moves flights to gates with 90 minute periods between departure and takeoff, the gates on which the flights were originally scheduled would have more than
sufficient time to accommodate another airline.

26

See Southwest, Response of Southwest Airlines to City of Dallas December 1, 2014 Notice
Regarding Dallas Love Field Accommodation Issues, Chart F (Dec. 8, 2014).

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Table 3. Southwests Gate Plot (February 2015 Schedule) Annotated

Aircraft Separation Time.

Aircraft separation time, or as Southwest calls it, the buffer period, is understood to
be the minimum amount of time between the scheduled push back of an aircraft from
a gate to the scheduled arrival of the next aircraft at that gate. A 30 minute aircraft
separation time is reasonable, consistent with industry standards, and relatively
conservative for major hub airports. Table 4 provides Deltas separation times at its
hubs.
Table 4. Delta Minimum Separation Standards at Hub Airports
(Minutes)
30

LGA

25

20

20

15

15

LAX

ATL

JFK

SLC

MSP

Leigh|Fishers analysis also reflects a 30 minute separation time. The analysis

assumes all gates were considered blocked for 5 minutes for aircraft to maneuver off
of the gate and another five 5 minutes to maneuver onto the gate. And, each flight
includes a buffer time of 10 minutes before each flight, and 10 minutes after each
quick turn.

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Even with turn times greater than 30 minutes, Southwest can accommodate Delta
using 30-minute separation times. Leigh|Fisher provided 30-minute separation times
and 20 minutes for each arrival and departure, totaling 40 minutes per turn, and
concluded that Southwests schedule could accommodate Delta on 16 gates. Deltas
capacity determination, Table 1 (above), uses Southwests April 2015 schedule with
turn times that varied from 35-45 minutes and concluded that Southwests schedule
can accommodate Delta using 30-minute separation times on 16 gates. With the
additional subleased gates, Southwest has more than ample gate availability to
accommodate Deltas five flights.
On the other hand, Southwest argues that 60 minutes is required for separation.
Table 5 and Table 6 illustrate Delta and Southwests proposed gate usage.27

27

See Southwest, Response of Southwest Airlines Co. to City of Dallas Request for Input on Dallas
Love Field Gate Accommodation Request at 3 n. 1 (Nov. 17, 2014) and Southwest, Response of
Southwest Airlines to City of Dallas December 1, 2014 Notice Regarding Dallas Love Field
Accommodation Issues 10-11 (Dec. 8, 2014) (stating that Southwest use of a gate includes a 30minute buffer before take-off and after landing and that there are no 90-minute gaps to accommodate
Delta).

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However, Southwests actual separation times at DAL demonstrate that 60 minutes

separation is unnecessary. For example, as illustrated in Exhibit 2, Southwests
scheduled separation times at DAL Gate 9 include separation times of 30 minutes or
less. In addition, Table 3 (above) reveals over a dozen 30 minute separation times in
Southwests schedule.
Southwest claims that the Use Agreement provides, at a minimum, 90 minutes for
turnaround. This misreads the Use Agreement that only provides for up to 30 minutes
before arrival and 30 minutes after departure, when such scheduled use is
reasonable. In light of industry standards and Southwests own practice and
schedule, a 60-minute separation is unreasonable.
Southwest also claims that the extended separation time is warranted because of
certain DAL factors. For example, Southwest states that additional time is needed for
anticipated long-haul flights, long-haul flights weather impacts, adjustment for DFW
overflights, and flights from LaGuardia (LGA) and San Francisco International
Airport (SFO) because of FAAs Air Traffic Control frequency flow control
program. However, Deltas capacity determination in Table 1 (above) is based on
Southwests April 2015 schedule, reflecting Southwests flights to LGA and SFO and
consideration of the other factors.
Southwest also ignores DOTs willingness to relax hard stand requirements at DAL,
allowing DAL carriers to further compress the minimum separation times between
flights to a level less than 30 minutes. Such further reductions to the separation
requirement would serve to increase gate flexibility and capacity within Southwests
footprint.
Aircraft Turn Time.
Southwest can reasonably schedule 30 minute turn times to maximize its gate
utilization. Southwests schedule, Table 3 (above), reveals over 50 aircraft scheduled
for 30 minute turn times at DALone third of Southwests entire schedule.
Exhibit 2 also illustrates that turn times of 30 minutes or less are common for
Southwest at DAL and other major airports.
Southwest argues that various factors warrant additional DAL turn time. For
example, Southwest states that additional time is needed to swap crews at DAL.
However, in Deltas own practice, it does not allot different turn times at airports and
the turn times are the same for mainline aircraft whether they are operating out of
DTW/MSP/SLC or JFK/LGA/LAX. Southwest should not need more time to turn
aircraft in DAL than it does in any other focus city in its network. While Delta
provides longer turn times for aircraft with greater passenger capacity, Delta does so

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USCA Case #15-1036

Warren M.S. Ernst
February 23, 2015
Page 12

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Filed: 03/24/2015

Page 12 of 17

at airports that are much more delay prone and capacity constrained than DAL (e.g.,
LGA, LAX and JFK).
TERMS OF ACCOMMODATION
With clear gate availability at DAL, the City should force a selected signatory carrier
to accommodate Delta on the following terms:
1. Accommodate Deltas current flight schedule.
In accordance with DOT and City policy, the City should use the Citys original
November 5, 2014 snapshot date.
In addition, having received Deltas
accommodation request to use any gates at the airport, the City should not limit its
analysis to Southwests original 16 gate footprint, but also consider the 2 additional
United subleased gates available for accommodation on which Delta is currently
operating under its short-term license. The City should require Southwest
accommodate Delta on any of the gates Southwest controls.28
As discussed above and proven by Leigh|Fisher, the signatory carriers snapshot
date schedules can accommodate Deltas current flight schedule. Even using
Southwests published April 2015 schedule, increasing Southwests flights to 154
flights per day, Southwest can accommodate Delta on Southwests 16 gate footprint.
Consider the 2 additional subleased gates and Southwest has more than sufficient
availability to accommodate Delta. The accommodation should be without regard to
Deltas destination or aircraft gauge, allowing Deltas continued accommodation as
long as Delta operates the accommodated flight schedule.
2. Accommodate Delta as long as Delta continues to operate the accommodated
flights.
DOTs position is clear:
[O]nce accommodated, the accommodated carrier is entitled to an ongoing
similar pattern of service as long as the carrier continues to operate the
accommodated flights. Importantly, the accommodated carrier should not be
pushed out by incumbent carriers at a later date. It is the Citys responsibility

28

See Agreement of Sublease, Para. 29 (not permitting Southwest to accommodate on the subleased
United gates so long as it is permitted to do so by the [City]).

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USCA Case #15-1036

Warren M.S. Ernst
February 23, 2015
Page 13

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to continue the accommodation and ensure that space is available so that the
requesting carrier is able to maintain its pattern of service on an ongoing basis,
based on the available space on the snapshot date of the original
accommodation request, even after the expiration or termination of any
agreement between the accommodated carrier and signatory carriers.29
Thus, the City should require that the selected carrier accommodate each of Deltas
flights until Delta no longer operates the flight, with a reasonable scheduling
variability of fifteen minutes if permitted by the signatory carriers schedule.
3. Accommodation rates are limited to the costs of covering the signatory carriers
direct leasing costs for the pro-rata share of subleased facilities, plus a
reasonable allowance for administration.
Deltas accommodation should be at reasonable rates.30 DOT has made clear to the
City that subleasing rates covering signatory carriers direct leasing costs for the prorata share of subleased facilities, plus a reasonable allowance for administration, are
reasonable.31 Thus, Southwest cannot require Delta to compensate for the lost
value of that space, which Southwest values at 10 slots at LGA, or around $25.0M.
4. Allowance for administration costs is limited to fifteen percent (15%).
According to the Citys most recent competition plan update, the Citys current
policy of limiting carriers to a 15 percent administrative fee is still in force.32
Accordingly, any permitted administrative allowance should be limited to the Citys
fifteen percent (15%) policy.
FORCED ACCOMMODATION
As discussed above, Delta has long exhausted its attempts to seek voluntary
accommodation. Therefore, under Section 4.06F.3 of the Use Agreement, the City
should now:

29

Letter from K. Thomson, DOT, to W. M.S. Ernst, City of Dallas at 2 (Dec. 17, 2014).

30

See 49 U.S.C. 47107(a)(1); FAA Grant Assurance 22, available at

http://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip.pdf.

31

Letter from K. Thomson, DOT, to W. M.S. Ernst, City of Dallas at 2 (Dec. 17, 2014).

32

See City of Dallas, DAL Competition Plan Update (June 3, 2009).

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USCA Case #15-1036

Warren M.S. Ernst
February 23, 2015
Page 14

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(i) Conclude that there is sufficient gate availability to accommodate Deltas

current flight schedule using the November 5, 2014 snapshot date;
(ii) Select a signatory airline to accommodate Delta, namely, Southwest; and
(iii) Send a written notice to Southwest to accommodate Delta within 30 days
from the receipt of such notice.
If Southwest does not accommodate Delta in accordance with the terms above and
within 30 days, the City should take action to require Southwest accommodate Delta
after 30 days, on terms consistent with the DOT letter.
MODIFICATION OF USE AGREEMENT
The City has rightly acknowledged its obligation under Section 14.02 of the Use
Agreement, in the event the government threatens to withhold federal assistance, or
other sanctions, to impose lease modifications if they view the parties application
of lease provisions as anticompetitive.33 To ensure compliance and effect DOTs
directive, the City should modify the Use Agreement to (a) ensure that carriers
accommodated under the forced accommodation provisions in Section 4.06F are
provided accommodation for so long as they maintain their accommodated schedule;
and (b) the terms of accommodation are reasonable and capped at no more than the
cost of the facilities charged by the City plus an administrative fee not to exceed
fifteen percent (15%).
We look forward to continuing the accommodation process and resolving Deltas gate
and other facilities accommodation needs at DAL. Thank you very much for your
assistance and consideration.

33

Letter from M. Duebner, City of Dallas, to Hon. K. Thomson, DOT, M. Shaw, Southwest, T.
Bolling, United, and R. Hirst, Delta (Dec. 24, 2014).

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USCA Case #15-1036

Warren M.S. Ernst
February 23, 2015
Page 15

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Sincerely,

Kenneth P. Quinn
cc:

Peter Haskel, City of Dallas

The Honorable Kathryn Thomson, General Counsel, USDOT
Todd Homan, USDOT
Richard B. Hirst, Delta Air Lines, Inc.
Thomas Newton Bolling, United Airlines, Inc.
Tim Sieber, SeaPort Airlines
John Varley, Virgin America
Mark Shaw, Southwest Airlines Co.

(Page 22 of Total)

9/1/14

10/1/14

= Expiration of Temporary License

= Citys Scheduled Accommodation Timeline Dates

= Use Agreement Accommodation Timeline Dates

1/1/15

1/6/15
DL-WN
License
Expires

2/1/15
12/1/14 - 12/31/14
Citys Scheduled 12/31/14 - 1/30/15
Citys Scheduled
Voluntary
Forced
Accommodation
Accommodation
Process
Process

12/1/14

12/1/14
City Notified Carriers of
Citys Accommodation
Process/Schedule

11/1/14

10/12/14
AA
Sublease
Expires

7/16/14 - 12/1/14
Delay from Deltas Request to City's Voluntary Accommodation Process
Under 4.06F.2 (139 days)

7/16/14 - 8/15/14
8/15/14 - 9/14/14
Voluntary
Forced
Accommodation
Accommodation
Process
Process
(4.06F.2)
(4.06F.3)

8/1/14

64 days

9/18/14
Delta Reconfirms with City:
No Voluntary
Accommodation

23-Feb-15

Today

Filed: 03/24/2015

7/1/14

33 days

7/16/14
Delta Requests
Accommodation
from City

1/6/15
DL-UA Gate Use License;
DL-UA Facilities Use License Amended

Document #1543951

= Actual Request Timeline Dates

13-Jun-14

6/13/14
Delta Requests
Accommodation
from Carriers

10/10/14
DL-WN Gate Use License;
DL-UA Facilities Use License

Exhibit 1. Timeline of Deltas Accommodation Request, Requirements

Under Use Agreement, & Citys Scheduled Accommodation

USCA Case #15-1036

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Document #1543951

Filed: 03/24/2015

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Exhibit 2

USCA Case #15-1036

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