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OST-2005-23355 - Republic Airlines - Form 41 Confidentiality
http://www.republicairlines.com/
OST-2005-23354 - Shuttle America - Motion to Withhold Information from Public Disclosure - Form 41
OST-2007-28396 - ExpressJet Request for T-100 Confidential Treatment
OST-2008-0107 - Virgin America - Form 41 Confidentiality (Financial and Traffic)
RITA-2007-27185 - Collection of T-100 Data
OST-2008-0206 - Alaska Airlines Request for T-100 Confidential Treatment
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Republic Airline Inc. d/b/a Republic Airlines OST-2005-23355 - Motion to Withhold Certain Information from Public Disclosure - Form 41 December 12, 2005 Motion to Withhold Certain Information from Public Disclosure - Bookmarked Republic Airlines hereby files this motion to withhold from public disclosure certain information contained in Republic’s Form 41 reports submitted herewith under seal. The information is being reported to the Department in accordance with the requirements of 14 C.F.R Part 241 relating to the third quarter of 2005 and the Interim Operations Report for the month ended October 31, 2005. On September 4, 2005, Republic launched its scheduled passenger operations as a US Airways Express code-share carrier operating Embraer EMB-170 aircraft. As a newly certificated airline operating large aircraft, Republic is herewith filing its first Form 41 reports with the Department. Republic is seeking confidential treatment of certain line items redacted on its Form 41 quarterly report for the third quarter of 2005 on Schedules B-1, B-7, B-12, P-1.2, P-5.1, and P-6, as well as certain line items redacted on Schedule P-1(a) for Republic’s Interim Operations Report for the month ended October 31, 2005. Republic requests confidential treatment of highly competitively sensitive information pertaining to Republic’s operating costs and profits for its large aircraft operations. Because Republic operates only a single aircraft type for only a single mainline code-share carrier, the public disclosure of such information would likely cause substantial competitive harm to Republic by allowing third parties to calculate with precision Republic’s aircraft and operating costs, and code-share agreement profit margins. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2005-23354 - Shuttle America - Form 41 Motion December 30, 2005 Shuttle America and Republic Airlines filed motions to withhold from public disclosure certain information contained in their Form 41 reports. Shuttle and Republic assert that public disclosure of such information would likely cause them substantial competitive harm. Shuttle and Republic contend that the competitive harm that will result from public disclosure of their financial information is "unique" to them because Shuttle operates only a single type of aircraft for two unaffiliated mainline partners and Republic operates only a single aircraft type for only one unaffiliated mainline partner. Shuttle's and Republic's requests for non‑disclosure to the public of certain information are overly broad and raise significant issues that should be considered more fully and carefully. Counsel: Wiley Rein, Edward Faberman, 202-719-7402, efaberman@wrf.com
December 30, 2005 Form 41 Filings Cover Letter - P-1(a) - Month Ended November 30, 2005 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
January 31, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended December 31, 2005 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
March 9, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended January 31, 2006 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
March 27, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended February 28, 2006 Counsel: Hogan & Hartson, Alexander Van der Bellen, sascha.vanderbellen@hhlaw.com
April 6, 2006 Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
April 28, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended March 31, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 25, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended April 30, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 31, 2006 Form 41 Fillings Cover Letter - First Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 31, 2006 Enclosed is an Erratum page to correct a typographical error on Page 10 of the Motion for Confidential Treatment filed on December 12, 2005 on behalf of Shuttle America Corporation (Docket OST-2005-23354). The third bullet on Page 10 of the Motion contains a reference to line item 9799, when it should reference line item 7199. The Erratum page contains the correct text in bold type. Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
August 24, 2006 Form 41 Filings Cover Letter - Second Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
October 30, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended September 30, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
November 27, 2006 Form 41 Filings Cover Letter - Third Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
November 29, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended October 31, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
December 21, 2006 Form 41 Filings Cover Letter - P-1(a) - Month Ended November 30, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 1, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended December 31, 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 5, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended January 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended February 28, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Motion to Withhold Certain Information from Public Disclosure Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Form 41 Filings Cover Letter - Fourth Quarter 2006 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
April 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended March 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
May 31, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended April 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
June 6, 2007 Form 41 Filings Cover Sheet - First Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
June 29, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended May 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
July 31, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended June 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
August 22, 2007 Form 41 Filings Cover Sheet - Second Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
August 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended July 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
September 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended August 31, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
October 30, 2007 Form 41 Filings Cover Letter - P-1(a) - Month Ended September 30, 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
December 19, 2007 Form 41 Filings Cover Sheet - Third Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
February 20, 2008 Form 41 Filings Cover Sheet - Fourth Quarter 2007 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
March 21, 2008 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
April 8, 2008 Form 41 Filings Cover Letter - P-1(a) - Month Ended February 29, 2008 Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898, sisrael@hhlaw.com
OST-2005-23354 - Shuttle America - Withhold Information from Public Disclosure - Form 41 April 23, 2008 Joint Motion for Leave to File and Answer of American Airlines and United Air Lines In recent months, ExpressJet, Inc. and Virgin America Airlines, encouraged in part by the Department's inaction on the pending motions at issue here, have filed similar requests to withhold. See Dockets OST-2007-28396 and OST-2008-0107. The Department definitively rejected ExpressJet's motion, in part because of the unfairness this caused to other carriers competing with ExpressJet that made public, rather than confidential submissions. Both ExpressJet and Virgin America referred to the undecided motions of Shuttle and Republic as precedent for their own motions to withhold. In these circumstances, it is important for the Department to act now on the Shuttle and Republic motions by denying them for the same reasons applied to ExpressJet and urged by American, United, and others to be applied to Virgin America. The arguments made by Shuttle and Republic are identical to those urged by ExpressJet and Virgin America - namely, they want to shield their information from competitors. American and United have previoisly set forth in their pleadings in the ExpressJet and Virgin America cases why such preferential protection cannot be granted to one competitor in an industry where other competitors' data is subject to release. Counsel: American, Carl Nelson, 202-496-5647 / United, Jeffrey Manley, 301-229-8571
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) May 2, 2008 In their respective Motions seeking confidential treatment, Republic and Shuttle amply demonstrated how each has met the applicable legal standard for withholding the identified confidential, competitively sensitive financial information from public disclosure under Exemption 4, as well as under the applicable legal standards for grant of confidentiality and well‑established Department precedent. The public release of the information for which Republic and Shuttle seek confidential treatment would likely cause substantial competitive harm. American and United's meritless Joint Answer should be rejected. It focuses solely on the confidentiality issues raised in the context of the ExpressJet and Virgin America dockets, and has no relevancy to the unique circumstances involving Republic and Shuttle in the instant dockets. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2005-23354 - Shuttle America - Motion to Withhold Information from Public Disclosure - Form 41 May 14, 2008 Re: Request of United, Northwest, Alaska Air, jetBlue, American and Delta for DOT Decision The undersigned air carriers are writing to request that the DOT immediately issue a decision in the referenced dockets. The practice of filing for confidentiality of traffic and financial data de facto grants confidential treatment to the data while a decision is pending. The DOT addressed this very issue, substantively, in the Staff Action dated September 10, 2007 and Decision of the Reviewing Official dated December 5, 2007 in ExpressJet, Docket OST-2007-28396. In that decision, after a protracted exchange of pleadings and extended consideration by the Department, ExpressJet's request for confidential treatment of certain Form 41, T-100 data was denied. That decision correctly determined that if regulations require the public filing of data by all air carriers, all air carriers should file the data publicly. While there are certainly times when data must and should be held confidentially by the Department, where a clear decision has been made that is on point, carriers should not be allowed to game the system to their advantage and their competitors' disadvantage. It is fundamentally unfair for those who chose to game the system to keep their traffic and financial data from competitors. The undersigned make their data available as required by DOT regulations, thereby allowing their competitors, including Shuttle America, Republic and Virgin America, to see the information and use it for whatever purpose they may choose. The result is that our competitors see our data while we cannot view the same information for Shuttle America, Republic and Virgin America. One option that must therefore be considered, if an immediate decision is not issued, is that the undersigned carriers may also file for confidential treatment of this data. That result is not what is intended by the DOT's regulations. These cases are ready for decision. We request that the DOT immediately issues its decision. Counsel: Julie Oettinger for United / Sascha Van der Bellen for Northwest / Squire Sanders, Marshall Sincik for Alaska Air / Dow Lohnes, Jonathan Hill for jetBlue / Carl Nelson for American / Scott McClain for Delta
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) May 16, 2008 Re: Response of Shuttle America and Republic Airlines to Joint Carriers Contrary to the allegations of the Joint Carriers, neither Republic nor Shuttle are "gaming" the system to obtain any "advantage" over other airlines. Indeed, just the opposite is the case as Republic and Shuttle pointed out in their respective motions and in their Joint Reply filed on May 2, 2008 to the Joint Motion and Answer filed by United and American. Republic and Shuttle are seeking confidentiality to preserve and enhance competition in the fee-for-service sector and to prevent others in that sector (its mainline customers and other fee-for-service carriers) from gaining an unfair competitive advantage. The Joint Carriers' letter does not address, much less refute, the highly unique circumstances presented by Republic and Shuttle justifying grant of confidentiality, circumstances that were not applicable with respect to Express Jet and are not applicable with respect to Virgin America. Contrary to the joint letter, because Shuttle and Republic operate under fee-for-service arrangements with a limited number of mainline carriers, Republic and Shuttle do not hold out service to the traveling public in competition with the joint carriers. Shuttle and Republic provide aircraft capacity to their mainline customers (which include Delta, United and US Airways) pursuant to commercial agreements. Under longstanding policy and practice the Department has always maintained confidentiality of those agreements. Republic's and Shuttle's customers are mainline carriers, not the traveling public. The mainline carriers, not Shuttle or Republic, hold out service to the traveling public in competition with the joint carriers. Republic and Shuttle are not seeking to withhold traffic data, but rather are seeking to withhold certain limited fields of cost data the disclosure of which would undermine competition in the fee-for-service sector and impair Republic's and Shuttle's ability to freely and fairly negotiate business arrangements with their mainline customers. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
May 29, 2008 Motion for Confidential Treatment This is a routine quarterly update of the same competitively‑sensitive commercial and financial information described in the referenced Motion in this docket. Withholding the limited line item data from public disclosure is warranted by the unique circumstances of Republic's fee‑for‑service relationships. Disclosure of the limited line item data for which confidentiality is requested will enable Republic's fee‑for‑service customers and third party competitors to determine per aircraft costs and operating margins and costs, operating margins and profitability on a per codeshare contract basis. Such disclosure would uniquely harm Republic's competitive position in the fee‑for‑service sector and undermine Republic's ability to negotiate at arms length with its mainline codeshare customers. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
June 25, 2008 Re: DOT (RITA/BTS) Response to Request for Confidential Treatment Except for the "Cost" column on Schedule B-7 and four columns of aircraft cost data on Schedule B-43, ("Acquired Cost or Capitalized Value," "Allowance for Depreciation or Amortization," "Depreciated Cost or Amortized Value," and "Estimated Residual Value"), we are denying the requests for confidential treatment of certain line items on Republic's Form 41 financial data submissions to the Department for the period July 1, 2005 through March 31, 2008. The Department agrees it would be highly unfair, prejudicial to other reporting carriers, and adverse to the public interest to withhold Form 41 financial data when the data submitted by all other carriers are released immediately. Timely release of carrier data is of paramount importance to its usefulness since all carriers rely on the Department's data as the fundamental and least expensive source of industry data. Public disclosure of financial and traffic data enumerated in Part 241 of the Department's regulations is one of the obligations that comes from being a certificated air carrier. We also agree with the opposing carriers that if the Department granted Republic's request, other carriers would also attempt to opt out of the public Form 41 financial data system by requesting confidential treatment of their submissions, and these data would soon become fragmented and of little use to the Department's numerous stakeholders (air carriers, airports, government agencies, manufacturers, industry associations, consultants, academia, researchers, financial analysts, investors, and the general public). The opposing carriers firmly believe that more rather than less transparency will enhance competition, and there is simply no reasonable policy basis or precedent for affording any carrier‑even Republic‑special protection from competition. Republic has failed to demonstrate how the release of certain line items of its Form 41 financial reports is likely to cause substantial competitive harm and to overcome the public's right to aviation data. Republic's code share arrangement is not unique. In today's aviation industry, all the network carriers have engaged in various marketing partnerships or code-share arrangements with regional carriers in selected and specific markets. In these various code share arrangements, the network carriers and the regional carriers have historically had access to each others Form 41 financial data. The Department is unaware of any of these carriers suffering substantial competitive harm due to the public disclosure of the aviation data. Thus, it is not in the Department's interest to shield any carrier from competition or favor one carrier over another in any of these code share arrangements when the other competitors' data are subject to public release. By: M. Clay Moritz
July 7, 2008 Petition for Review of Staff Action - Bookmarked Republic requests that the Staff Action be reviewed and reversed, and that an Order be issued granting confidential treatment to the Form 41 line items identified in Republic's Motions pursuant to Exemption 4 of the Freedom o information Act. Republic has satisfied the test for confidentiality. With respect to the first prong of the test, the Decision confirms that "Republic unquestionably has competition from a number of air carriers and undoubtedly these carriers will review Republic's data." However, the Decision concluded that Republic did not meet the second prong of the National Parks test, erroneously finding that the release of the information will not "permit a competitor to use this information to make strategic judgments that would likely cause substantial harm to Republic's competitive positions." This conclusion is based on erroneous findings of fact. The Decision is deficient on its face because it fails to discuss, much less refute, critical and undisputed facts presented by Republic showing why, because of Republic's unique situation, disclosure is likely to substantially harm its competitive position. The critical facts which the Decision wholly ignored are that Republic now operates only a single aircraft type under a long-term fixed fee-for-service code-share agreement with a single mainline customer. Because Republic operates with only a single aircraft type for a single mainline customer, public disclosure of the information sought to be protected would enable Republic's competitors to precisely determine Republic's aircraft acquisition costs and how much is paid by its mainline customer. Under longstanding Department policy, aircraft acquisition costs and the financial elements of code-share agreements are not publicly disclosed. However, unless the particular line items for which Republic requests confidentiality are withheld from disclosure, Republic's competitors will have a transparent roadmap to Republic's precise aircraft costs and revenue and profit margins specifically applicable to its code-share contract. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) July 11, 2008 Answer of the Joint Carriers in Opposition to Petitions for Review of Staff Action In the staff actions under review, issued in each docket on June 26, 2008, the Department denied motions by Shuttle America and Republic to withhold certain Form 41 data from public disclosure. The staff actions are entirely consistent with definitive precedent established in the Department's final decision on ExpressJet (OST-2007-28396, December 5, 2007), as well as with the staff's recent denial of Form 41 confidentiality motions by Virgin America, Inc. (OST-2008-0107, June 26, 2008). In their petitions for review, Shuttle America and Republic have presented no legitimate basis for the Department to reverse the staff's well-reasoned rejection of their motions to withhold Form 41 data that other carriers file publicly in accordance with agency rules. The Joint Carriers are very concerned about the proliferation of special requests for confidentiality such as those submitted by ExpressJet, Virgin America, Shuttle America, and Republic, and the misuse of the Department's Part 385 review process in the face of controlling precedent that has already settled the issue of public release of Form 41 data. A bedrock principle underlying Form 41 reporting is that all carriers are subject to public release of their data, and thus no carrier is placed at an unfair disadvantage because its data is made public while data of competitors is withheld. The Department has correctly applied that principIe in denying the motions of Shuttle America and Republic. Counsel: Squire Sanders, Marshall Sinick, 202-626-6651 for Alaska Air / Carl Nelson, 202-496-5647, for American / Scott McClain, 404-773-6514 for Delta / Dow Lohnes, Jonathan Hill, 202-776-2000 for jetBlue / Sascha Van der Bellen, 202-842-3193 for Northwest / Robert Kneisley, 202-263-6284 for Southwest / Julie Oettinger, 301-229-8571 for United / Howard Kass, 202-326-5153 for US Airways
July 11, 2008 Motion for Confidential Treatment - P-1(a) - Month Ended May 31, 2008 Republic Airline Inc. d/b/a Republic Airlines hereby requests confidential treatment of certain line items on its Form 41, Schedule P-1(a) for the month ended May 31, 2008. Republic hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Republic in this docket, and Republic's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herin. Counsel: Hogan & Hartson, Sheryl Israel, 202-637-8898
OST-2005-23355 - Republic Airlines - Confidential Treatment Under 14 CFR 302.12 (Form 41, Schedules B-1, B-7, B-12, P.1.2, P-1(a), P-5.1 and P-6) July 18, 2008 Motion for Leave to File and Joint Reply of Republic Airline and Shuttle America The Joint Carriers' reliance on the so-called "definitive precedent established in the Department's final decision on ExpressJet" is completely misplaced. The Department's ExpressJet decision provides no basis for denying the requests of Republic or Shuttle. The scope of and circumstances involving Republic/Shuttle confidentiality requests are different than and unrelated to either the ExpressJet situation or to the pending request of Virgin America. Unlike ExpressJet and Virgin America, Republic and Shuttle are not seeking wholesale confidentiality of their Form 41 submissions. Rather, Republic and Shuttle seek only limited confidentiality of certain line items to maintain the confidentiality of information that the Department has already decided to not disclose to the public-aircraft cost information and the financial terms of codeshare agreements. It is not surprising that when Republic and Shuttle filed their confidentiality motions in December 2005, no objections were filed to those motions. The Joint Carriers have established no basis for denial of the Petitions of Republic or Shuttle. Republic and Shuttle respectfully request that the Staff Action be reversed, and an Order be issued granting confidential treatment to the specified Form 41 line items identified in Republic's and Shuttle's Motions. Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999
August 1, 2008 Motion for Confidential Treatment Republic Airline Inc. d/b/a Republic Airlines hereby requests confidential treatment under 14 CFR §302.12 of certain line items on its Form 41, Schedule P-1(a) for the month ended June 30, 2008. Republic hereby incorporates by reference the information and arguments set forth in the Motions for Confidential Treatment and related pleadings filed by Republic in this docket, and Republic's Petition for Review of Staff action filed on July 7, 2008, which sets forth in detail the legal bases for granting confidential treatment of the discrete competitively-sensitive commercial and financial line item data for which confidential treatment is requested herein Counsel: Hogan & Hartson, Robert Cohn, 202-637-4999 |
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