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OST-99-6507

American Airlines, Inc. and British Airways Plc

Counsel:  American, Carl Nelson, 202-496-5647 / British Airways and Boros Garofalo, Don Hainbach, 202-822-9070

American Airlines, Inc. and British Airways, Plc

In yesterday's submission, we inadvertently omitted Annex E to the American Airlines/British Airways codeshare agreement. Copies of Annex E are enclosed. We also request that the following person be added to the service list in this proceeding:

First Secretary (Transport)
British Embassy
3100 Massachusetts Ave., N.W.
Washington, D.C. 20008-3600

Counsel:  American, Carl Nelson, 202-496-5647

American Airlines, Inc. and British Airways PLC 

Counsel: American, Carl Nelson, 202.496.5647, carl_nelson@amrcorp.com

On November 15, 1999, American and British Airways submitted a joint application in this docket for statements of authorization and related exemption authority to provide reciprocal codeshare service, but without Annex E. On November 16, American submitted Annex E to complete the American/British Airways joint application. Continental plans to submit a consolidated response within the time period ~or answering the American/British Airways exemption application since the application fob statements of authorization and the exemption application raise the same issues. Since the American/British Airways application was not complete until November 16, the last day to submit answers to it is December 1.

Counsel:  Crowell Moring, Bruce Keiner, 202.624.2500

American Airlines, Inc. and British Airways PLC

If the authority sought by the applicants were granted, they would strengthen their dominance at Heathrow significantly. British Airways and American have applied for transatlantic codeshare authority for the carriage of "Fly America" traffic on a total of eight daily flights at five gateways, more flights than Continental is authorized to operate between its three U.S. gateways and London. Although Continental cannot operate any flights serving London Heathrow, the applicants seek to codeshare on six daily Heathrow flights at three different gateways for Fly America traffic and seek to offer on-line connections between the 21 British Airways gateways in the U.S. and 31 other U.S. points. Similarly, the applicants seek authority to codeshare between the British Airways London Heathrow and Gatwick hubs and 44 beyond points. With U.S. -London traffic over 88% of the total U.S.-U.K. traffic and Heathrow as the predominant airport for business travelers, strengthening the position of the two dominant U.S.-U.K. airlines at the two limited-entry London airports by allowing them each to codeshare on numerous routes beyond each partner's gateways as well as on gateway-to-gateway routes operated by British Airways for Fly America traffic would further strengthen their positions vis-a-vis other airlines, such as Continental, seeking to compete for U.S.-U.K. traffic.3 Without expanded ability for Continental and other airlines to serve London by operating enough of their own flights at Heathrow to compete with British Airways and American and expanding their Gatwick services, the Department should not even consider codesharing authority for British Airways and American which would enhance their already harmful dominance of U.S.-London and U.S.-U.K. routes

Counsel:  Continental and Crowell Moring, Bruce Keiner, 202-624-2615

The Department should not further enhance the dominance of American and British Airways at Heathrow by granting the Joint Applicants extensive beyond-Heathrow codesharing rights. Enabling American and British Airways to engage in codesharing and cooperative market efforts without a liberalized U.S.-U.K. bilateral will stifle U.S.-U.K. competition, particularly for U.S.-London services. Allowing the two dominant Heathrow carriers to form a codeshare alliance will only facilitate the ability of British Airways and American to use the entry-restricted Heathrow hub to increase their market domination.

Counsel:  Delta and Shaw Pittman, Robert Cohn, 202-663-8060

At present, under Bermuda 2, Heathrow and Gatwick are closed to new entrants, and incumbents serving those airports are constrained from adding new service by the restrictions in the Agreement, including those in Annex 2. While those restrictions remain in place, any decision by the Department authorizing reciprocal code sharing by American and BA on routes involving Heathrow or Gatwick would serve only to strengthen those carriers' competitive position on London-U.S. routes where they are already entrenched, dominant incumbents. If that result is to be avoided, the opportunity for American and BA to code share on routes involving London-U.S. service should be tied directly to the liberalization of the Bermuda 2 Agreement, and to the introduction by other carriers of significant new service between Heathrow and Gatwick Airports and the United States.

As explained below, the Department has discretion as to whether to grant the regulatory approvals American and BA have applied for in this docket. The U.K. Government has been on notice for nearly five years that BA's ability to code share with U.S. carriers is tied to liberalization of Bermuda 2 and to progress on opening access to Heathrow and Gatwick Airports to other competitors. Neither has yet to occur. Authorizing American and BA to code share on routes serving Heathrow or Gatwick at this time would, therefore, send the wrong message to the U.K. Government. Until such time as the U.S. and U.K. Governments conclude an agreement liberalizing Bermuda 2, and new competitive services are in place on routes linking Heathrow and Gatwick with the United States, consistent with the assurances given to the United States Government by the British in 1995, the Department should take no action to authorize code sharing between BA and American on services to or from those London airports. And, to the extent that liberalized access to Heathrow and Gatwick for other carriers is to be phased-in over time, the ability of American and BA to code share on services at those airports must also be appropriately phased-in to avoid unintended anti-competitive consequences.

Counsel:  Kirkland Ellis, Bruce Rabinovitz, 202.879.5116, bruce_rabinovitz@kirkland.com

American Airlines, Inc. and British Airways PLC

Counsel:  American, Carl Nelson, 202.496.5647, carl_nelson@amrcorp.com and Boros Garofalo, Don Hainbach, 202.822.9070

Counsel:  Zuckert Scoutt, Racheal Trinder, 202.298.8660

American Airlines, Inc. and British Airways Plc

By:  DOT

American Airlines, Inc. and British Airways PLC

Counsel:  Preston Gates, Jonathan Blank, 202.662.8450

American Airlines, Inc. and British Airways PLC

Moreover, to our knowledge, such a request has never been imposed in any prior codesharing proceeding. Indeed, we are not aware of such a request having been made even in proceedings involving antitrust immunity, including the American/British Airways immunity application in OST-97-2058.  Finally, the request is unduly burdensome. Compliance would cause significant delay, contrary to the public interest. Accordingly, the Department should, on review of staff action under l4 CFR 385.3l, modify Item 9 as requested herein. American seeks action of this petition for review by December 29, l999 in order to minimize any further delay in the processing of the joint application, since we cannot begin programming for data retrieval prior to knowing the scope of the requirement.

Counsel: American, Carl Nelson, 202 496 5647, carl_nelson@amrcorp.com

The evidence request includes items never before asked of codeshare applicants or even those requesting antitrust immunity, which of course the joint applicants are not seeking. Given the unprecedented nature of the request, British Airways and American could not have ascertained in advance what "documents" the staff would consider "necessary" before filing their application. Allowing the evidence request to stand would nullify the fundamental purpose of Paragraph 13; to ensure that codeshare applications are processed 28 days after the application is filed. The staff's apparent view regarding "necessary documents" incorrectly assumes that the standard is a moving target. The presumed discretion to make ad hoc substantive determinations regarding what "documents" are "necessary" renders the 28-day deadline meaningless. It strains credulity to assume the drafters granted such unfettered discretion.

Counsel:  Boros Garofalo, Don Hainbach, 202.822.9070

American Airlines, Inc. and British Airways PLC

By:  Paul Gretch

American Airlines, Inc. and British Airways PLC

The additional information requested in the Department’s December 14, 1999 letter will permit the Department to conduct a thorough and necessary review of the public interest issues involved with this application. With respect to American’s request to reduce the scope of item No. 9, any winnowing of the evidence request should be at the Department’s considered determination that such material is not relevant, and not merely for the convenience of the parties. In particular, Delta urges the Department to ensure that it has a full and accurate picture of the traffic flows via Heathrow, which are a critical competitive element of the application.

Counsel: Shaw Pittman, Alexander Van der Bellen, 202.663.8060

Insofar as British Airways' petition seeks the immediate grant of its joint application with American for the regulatory approvals the carriers need to engage' in extensive reciprocal code sharing on routes to, from or via London's Heathrow or Gatwick Airports, United opposes the petition. British Airways' claim that these approvals are obligations of the United States under Bermuda 2 is incorrect. As United explained in its Answer herein, the Department has discretion as to whether to grant British Airways and American the regulatory approvals they have applied for in this docket. The petition, thus, provides no basis for the Department to withdraw the request.

Counsel:  Kirkland Ellis, Bruce Rabinovitz, 202.879.5116, bruce_rabinovitz@kirkland.com

American Airlines, Inc. and British Airways PLC

Order 2000-1-8 grants the captioned petitions of American Airlines and British Airways for review of an evidentiary request the Department issued in connection with the captioned joint application and, on review, the Department decided to modify that evidentiary request.

By:  Bradley Mims

American Airlines, Inc. and British Airways Plc

Counsel:  American, Carl Nelson and British Airways, Anthony Fortnam

American Airlines, Inc. and British Airways Plc

Counsel:  Shaw Pittman, Robert Cohn, 202.663.8060

American Airline, Inc. and British Airways Plc

American is submitting a specimen Procedures Manual for implementation of codeshare services. Such a manual is referenced in Section 2.2 of the American/ British Airways codeshare agreement. The information we are submitting is confidential, proprietary, and commercially sensitive, and should be protected from public disclosure, for all the reasons stated in the joint motion of American and British Airways under 14 CFR 302.39 filed in this docket on November 15, 1999, which we hereby incorporate by reference.

Counsel:  American, Carl Nelson, 202-496-5647

American Airlines, Inc. and British Airways PLC

OST-99-6507, Notice Establishing Procedural Schedule on Joint application for approval of reciprocal code sharing and related exemption authorities.

By:  Deputy Assistant Secretary

American Airlines, Inc. and British Airways PLC

Counsel:  Crowell Moring, Bruce Keiner, 202.624.2500

Counsel:  Wilmer Cutler, Bruce Rabinovitz, 202.663.6000

American Airlines, Inc. and British Airways, PLC

OST-99-6507	February 22, 2000	Answer of Continental Airlines HTML	U.S.- U.K.
		Service List
OST-99-6507	February 22, 2000	Motion for Confidential Treatment of Continental Airlines	U.S.-U.K.
		Service List

Continental urges the Department to deny the British Airways/American application immediately. No codesharing between British Airways and American should be considered unless and until U.S. carriers such as Continental are permitted to operate flights between Heathrow and their primary U.S. international gateways to provide significant new competition for British Airways and American, the dominant carriers on U.S. -London Heathrow routes.

Counsel:  Crowell Moring, Bruce Keiner, 202.624.2500

Counsel:  Delta and Shaw Pittman, Robert Cohn, 202-663-8060

Continental's Houston hub is situated less than 250 miles from American's hub at Dallas/Ft. Worth. The two hubs' respective behind-gateway geographical catchment areas, which include much of the historically underserved south and southwest regions of the United States, overlap significantly. Houston unquestionably is the only major U.S. carrier hub that can provide a viable competitive alternative to American's DFW hub for Texas-U.K. traffic as well as for the many U.S. passengers and communities in the broad, underserved catchment area behind the Houston and DFW gateways. If, however, the Department were to permit American to establish code-share services with British Airways at DFW, the already severe competitive imbalance between Heathrow incumbents, such as American and British Airways, on the one hand, and carriers that continue to be excluded from Heathrow, such as Continental, on the other, would be further exacerbated. In light of the above, the best way to promote competition is by enabling Continental to establish nonstop Houston-Heathrow service. However, until Bermuda 2 is sufficiently reformed (and a requisite number of commercially viable Heathrow slots are made available) to permit nonstop Houston-Heathrow service, the Department should not consider authorizing American and British Airways to implement code-share services at Dallas/Ft. Worth

Counsel:  Zuckert Scoutt, Rachel Trinder, 202.298.8660

Manchester Airport PLC repeatedly has urged that disputes between the United States and United Kingdom over access to Heathrow not be permitted to delay or block approval of bilaterally-authorized services between the United States and U.K. regional airports. Consistent with this view, Manchester Airport requests that the Department approve all aspects of the joint Application that are authorized under the U.S.-U.K. air service agreement, and particularly those services which involve operations between, behind and beyond the United States and U.K. regional airports.

The position of Manchester Airport here is consistent with the position that the Airport took with regard to the recent request of United Airlines and British Midland to code-share with each other on U.S.-Manchester routes. In its Answer to United/British Midland Joint Application, the Airport urged that "disputes between the U.S. and U.K. Governments over access to Heathrow not be permitted to block the introduction of services between the United States and U.K. regional airports such as Manchester." Such services are authorized under the 1995 agreement between the United States and United Kingdom which created an "Open Skies" regime between the United States and U.K. regional airports. Manchester Airport's comments in response to the United/British Midland application are fully applicable here.

Counsel:  GKMG Consulting, Anita Mosner

The proposed BA-AA codeshare service between BWI and London would have significant benefits for Government employees who are currently precluded from flying nonstop from BWI For BA-operated flights using AA's designator code between BWI and London, the BA-AA code-share agreement would provide "Fly America" access for U.S. Government-financed travel generally and U.S. Government employees in particular, who are better served by using BWI's London service. Federal employees are now being required to travel to inconvenient gateways, or to take connecting service in lieu of nonstop service, because BA's BWI-London flights are ineligible to carry US Government-financed travel. For Federal employees whose agencies are located close to BWI and for those Federal employees whose residence is nearer to BWI than to Dulles, BWI would offer a more convenient gateway.  Federal government travel is a critical component of BWI's total air traffic.

Counsel:  Maryland and Preston Gates, Jonathan Blank, 202-662-8450

American Airlines, Inc. and British Airways PLC

United previously filed an answer to the joint application on December 1, 1999, which United incorporates herein by reference.' In that Answer, United demonstrated that a decision by the Department as to whether to grant the joint application is discretionary, and that the joint applicants had failed to show that granting the application on routes to, from, or via London's Heathrow or Gatwick Airports would be consistent with the public interest. As United explained, in exercising its discretion as to whether to grant American's and BA's joint application to extend their global alliance to include reciprocal code sharing on Heathrow and Gatwick routes, the Department must be guided by two considerations: the effect its actions will have on the stalled efforts of the United States government to liberalize the Bermuda 2 Agreement, and the need to avoid strengthening American and BA at Heathrow and Gatwick Airports, where they are already entrenched, dominant incumbents on key U.S.-London routes, while competition on those routes remains constrained by the highly protectionist terms of Bermuda 2.

As United also explained, under the current Bermuda 2 Agreement, Heathrow and Gatwick are closed to new entrants, and incumbents serving those airports are constrained from adding new service by the restrictions in the Agreement, including those in Annex 2. While those restrictions remain in place, any decision by the Department authorizing reciprocal code sharing by American and BA on routes involving Heathrow or Gatwick would serve only to strengthen those carriers' competitive position on London-U.S. routes which they already dominate thanks to the protectionist provisions of Bermuda 2. If that result is to be avoided, the opportunity for American and BA to code share on routes involving London-U.S. service must be tied directly to the liberalization of the Bermuda 2 Agreement, and to the introduction by other carriers of significant new service between Heathrow and Gatwick Airports and the United States.

Nothing has changed since United filed its initial answer in this docket on December 1. Indeed, if anything, the prospects for meaningful liberalization of Bermuda 2 appear to have deteriorated as the U.K. government has steadfastly refused to open Heathrow and Gatwick Airports to significant new services through two additional rounds of negotiations. So long as the British remain adamant in their pursuit of an anticompetitive, mercantilist advantage for BA on Heathrow/Gatwick-U.S. routes, the Department simply cannot make the public interest findings the statute and its own regulations require to grant American's and BA's joint application in full.

Counsel:  Wilmer Cutler, Bruce Rabinovitz, 202.663.6960, brabinovitz@wilmer.com

American Airlines, Inc. and British Airways Plc

Counsel:  Boros Garofalo, Don Hainbach, 202.822.9070, bgairlaw@aol.com

American Airlines, Inc. and British Airways Plc

The new round of answers filed by the opponents do not alter the fundamental question raised in this proceeding - - will the United States honor its bilateral commitment to approve applications for specified code share operations promptly? The authority requested in this docket was carefully tailored to fall within the parameters of the June 5, 1995 U.S.-U.K. Memorandum of Consultations. None of the opponents disputes that all the authority requested is explicitly provided for in the 1995 MOC. Indeed, United, a principal beneficiary of the 1995 MOC, has acknowledged that the authority sought by American and British Airways is consistent with the MOC.

Counsel:  American, Carl Nelson, 202.496.5647, carl_nelson@amrcorp.com and Boros Garofalo, Don Hainbach, 202.822.9070

Counsel: Wilmer Cutler, Bruce Rabinovitz, 202.663.6960, brabinovitz@wilmer.com

American Airlines, Inc. and British Airways, PLC.

American has engaged and continues to engage in actions taken for the sole purpose of eliminating competition. Every time that the Department approves new or enhanced international agreements adding to American’s partnerships/alliances, it: 1) allows American to add to its anti-competitive war chest; and 2) increases American’s domination and control over its hub while further closing the door on competition. If the Department does not suspend consideration of the American/British Airways application along with American’s other international applications and approves yet another alliance/partnership for American, it should take appropriate steps to ensure that: 1) American’s crusade against new entry is halted; and 2) domestic competitors can compete in all American markets on a level playing field.

Counsel:  Ungaretti Harris, Edward Faberman, 202.639.7500

Counsel:  Ungaretti Harris, Edward Faberman, 202.639.7500

American Airlines, Inc. and British Airways, PLC.

American Airlines, Inc., under 14 CFR 302.39, hereby moves that the Department withhold certain proprietary and commercially sensitive confidential information from public disclosure. Specifically, American is submitting a revised response to Item 7 (traffic and revenue forecast) of the Department's evidence request of December 14, 1999, as modified by Order 2000-1-8, January 7, 2000. The revision is necessary to correct certain anomalies in the original submission that American made on behalf of both applicants on January 19, 2000.

Counsel:  American, Carl Nelson, 202.496.5647, carl_nelson@amrcorp.com

American Airlines, Inc. and British Airways, PLC.

Following evidentiary submissions by American Airlines and British Airways in response to a Department request (see Order 2000-1-8), the Department issued a Notice on February 11, 2000, deeming the above-captioned application "substantially complete" and establishing a procedural schedule for consideration of the application. Under that Notice answers to the application were due on February 22, 2000, and replies on February 28, 2000.

On March 8, 2000, American Airlines, Inc. filed a further pleading to correct certain portions of the evidence submitted in response to Order 2000-1-8.1 Specifically, American is submitting a revised response to Item 7 (traffic and revenue forecast) of the Department's evidence request. American states that the revision is necessary to correct certain anomalies in the original submission.

Inasmuch as other parties to this proceeding have not had an opportunity to review or comment on the revised evidence, we are establishing a procedural schedule for that limited purpose. We will require that comments regarding the material filed by American on March 8, 2000, be filed no later than March 17, 2000, and replies thereto be filed no later than March 21, 2000. We intend promptly to review the material submitted, as well as any responsive comments, in order to reach an expeditious decision on this application.

By:  Bradley Mims

American Airlines, Inc. and British Airways Plc

Our position is driven by the British Government's failure to support the award of a route for US Airways between Pittsburgh and London (Gatwick). No further competitive benefits should be given to British Airways, or to any other British carrier, until such time as a more equal, competitive environment is established for US-UK air service.  Mr. Secretary, you have attempted valiantly to resolve the inequities contained in the Bermuda 2 Accord, and we deeply appreciate your efforts. The failure of the British Government to take the necessary action to restore air service between Pittsburgh and London in the face of your persistent efforts, makes it imperative that the U.S. Government take a strong and unambiguous position in all matters involving US-UK air service. The denial of the British Airways/American Airlines code share request is one of a number of actions the US government should take to demonstrate its resolve.

By:  Pittsburgh International, Kent George, 412.472.3500

American Airlines, Inc. and British Airways PLC

Counsel:  Continental and Crowell Moring, Bruce Keiner, 202-624-2615, rkeiner@cromor.com

American Airlines, Inc. and British Airways PLC

Continental's answer is based almost entirely on the false premise that comparisons may be made between the traffic and revenue figures presented in initial item 7 and revised item 7. But such comparisons are invalid. The joint applicants resubmitted item 7 because of certain anomalies in the initial data. In these circumstances, Continental cannot legitimately refer to the first submission, which has been replaced, to draw conclusions about the new submission. Moreover, as American and British Airways pointed out in their joint reply of February 28, 2000, the pro forma traffic and revenue forecast presented in item 7 does not take any account of stimulation. See Joint Response of January 19, 2000, which explicitly states that "there will be some degree of stimulation in many of the O&D city-pairs in which new American or British Airways on-line service will be created," but that the forecast submitted "contains no measure of stimulation"  Accordingly, the conclusions drawn by Continental are invalid.

Finally, Continental's remarks about the impact of proposed codesharing between American and British Airways on competition on U.S.-U.K. routes are irrelevant in this proceeding. Except for services from non-London airports such Birmingham, Glasgow, and Manchester, and the carriage of Fly America traffic on certain named London routes, American and British Airways will not engage in codesharing on U.S.-U.K. route segments. Instead, virtually all of their codesharing services will be to points behind and beyond their U.S. and U.K. gateways. All of the authority requested is specifically authorized by the June 5, 1995 Memorandum of Consultations between the United States and the United Kingdom.

Counsel:  American, Carl Nelson, 202.496.5647, carl_nelson@amrcorp.com and Boros Garofalo, Don Hainbach, 202.822.9070

American Airlines, Inc. and British Airways, PLC.

Counsel:  Environment Transport Regions, A.T. Baker

American Airlines, Inc. and British Airways PLC

By:  Allied Pilots Association

American Airlines, Inc. and British Airways Plc

American Airlines, Inc. and British Airways Plc hereby jointly move to dismiss their application for codeshare authority, submitted in this docket on November 15, 1999, and reserving any and all rights resulting from the Department's failure to approve the application in a timely manner.

Counsel:  British Airways, Paul Jasinski, 713.397.4250 and American, Carl Nelson, 202.496.5647, carl.nelson@aa.com

U.S.- U.K. Alliance Case; American Airlines, Inc. and British Airways Plc

We disagree with the argument that the decision of AA/BA to seek dismissal of their application eliminates the possibility of a U.S.-U.K. Open Skies agreement. United/bmi remain committed to the implementation of their proposed alliance, and we believe that their commitment could provide the opportunity to achieve an Open Skies agreement. In this regard, we note that the U.K.'s Transport Minister has recently stated that the United Kingdom retains the right to negotiate and conclude an Open Skies agreement with the United States subject to meeting its obligations under Community Law.

We have decided to approve and grant antitrust immunity to the proposed United/bmi Alliance Agreements and to approve United/bmi's request for blanket code-share and related exemption authority subject to the terms and conditions proposed in our show­cause order, and the requirement that, within six months from the date of the issuance of this Order, the United States achieves an Open Skies agreement with the United Kingdom that meets U.S. aviation policy objectives. Our approvals and grant of immunity will not become effective until 30 days after that agreement is achieved.

By:  Read Van de Water

U.S.-U.K. Alliance Case

Despite the inability of the United States to negotiate an "open skies" agreement with the United Kingdom for decades and years of disagreements among interested stakeholders about what an open skies agreement with the U.K. must accomplish, particularly at London Heathrow, the Department has taken the unprecedented step of granting "final approval and antitrust immunity for alliance agreements" between United, bmi , Austrian, Lauda, Lufthansa and SAS without any "open skies" agreement before it. Granting final approval and antitrust immunity without even giving interested parties the opportunity to consider the proposed alliance and its impact in light of whatever "open skies" agreement is accomplished would be arbitrary and capricious and violate the due process rights of parties to comment on the alliance in light of relevant provisions in any such "open skies" agreement and whether London's Heathrow airport will be open to effective new competition by U.S.-flag carriers as a result of the agreement.

Counsel:  Continental and Crowell Moring, Bruce Keiner, 202.624.2500

U.S.- U.K.- Alliance Case and Joint Application of American Airlines, and British Airways Plc for Statement of Authorization and Related Exemption Authority

We have decided to dismiss Continental's petition for reconsideration of Order 2002-4-4. Although tiled within the timeframe specified in our rule, we find that Continental's petition is premature. In asserting that an Open Skies agreement must already be in place before we approve and immunize an alliance, Continental is focusing on form rather than substance. As we expressly stated in our final order, "Our grant of approval and antitrust immunity ... will become effective only after the United States has achieved an Open Skies agreement with the United Kingdom that meets our aviation policy objectives. 

Further, in ordering paragraph 16 we provided that the grant of immunity would "become effective 30 days after a U.S.-U.K. Open Skies Agreement that meets U.S. aviation policy objectives is achieved." We are currently awaiting notification from the U.K. government of its interest concerning negotiations. If negotiations resume and an Open Skies Agreement is reached within the timeframe provided in ordering paragraph 4 of Order 2002-4-4. there will be a more informed basis for the Department and interested parties to consider any petitions for reconsideration that a party might wish to tile. The provision of ordering paragraph 16 will permit that to happen in a timely way. In view of the above, we find that Continental's petition is premature and should be dismissed without prejudice.

By:  Read Van de Water

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