[Congressional Record Volume 147, Number 11 (Monday, January 29, 2001)]
[Senate]
[Pages S649-S650]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. REID:
  S. 199. A bill to amend title 49, United States Code, to authorize 
the Secretary of Transportation to oversee the competitive activities 
of air carriers following a concentration in the airline industry, and 
for other purposes; to the Committee on Commerce, Science, and 
Transportation.
  Mr. REID. Mr. President, I rise today because I am deeply concerned 
with the sudden increase in airline merger proposals. Many have 
predicted that if the proposed merger of United Airlines and US Airways 
is allowed to go forward, it will be followed by mergers of other major 
airlines, and we will soon have an industry dominated by mega-carriers.
  American Airlines recently bought Reno Air, and now is proposing a 
merger of American Airlines and Trans World Airlines. If this trend 
continues, we could end up with only three airlines in America. That 
could drive prices sky high and cut the number of available flights, 
which will be terrible for consumers.
  I know first hand that mergers can hurt consumers. In my own state, 
the Reno-Tahoe International Airport lost flights when American 
Airlines bought Reno Air. Flights were reduced significantly and now it 
is harder for people to fly in and out of the Reno and Lake Tahoe 
areas.
  The purpose of deregulation was to encourage competition. Evidence 
seems to support a reduction in competition. It seems to be having an 
opposite effect. I am very concerned with the recent airline merger 
proposals and the merger frenzy that may follow. We must maintain as 
much competition as possible in the airline industry.
  This legislation will protect consumers against monopolistic abuses. 
I emphasize that this type of legislation is not my preferred 
approach--I would greatly prefer to continue to have consumers 
protected by adequate competition in a free market.
  I emphasize that the bill is not a ``deregulation'' bill. Airlines 
will remain free to set prices and provide service without prior 
government approval. However, the bill will give DOT authority to 
intervene if the airlines take unfair advantage of the absence of 
sufficient competition.
  We are at a critical juncture for the future of a competitive airline 
industry. The inescapable lesson of 22 years of deregulation is that 
mergers and a reduction in competition often lead to higher fares for 
the American traveling public. We cannot stand idly by and allow the 
benefits of deregulation to be derailed by a wave of mergers.
  Mr. President, my bill will take effect as a result of consolidation 
or mergers that occur between two or more of the top seven airline 
carriers, or if three or fewer of those air carriers control more than 
70% of domestic revenue passenger miles. Highlights of my Airline 
Competition Preservation bill are as follows:
  Monopolistic Fares--The Secretary of Transportation is authorized to 
require reduction in fares that are unreasonably high. The factors to 
be considered include:
  Whether the fare in question is higher than fares charged in similar 
markets; whether the fare has been increased in excess of cost 
increases; and whether there is a reasonable relationship between fares 
charged leisure travelers and those charged business travelers.
  If a fare is found to be unreasonably high, the Secretary may order 
that it

[[Page S650]]

be reduced, that the reduced fare be offered for a specified number of 
seats and that rebates be offered.
  Preventing Unfair Practices Against Low Fare New Entrants: If a 
dominant incumbent carrier responds to low fare service by a new 
entrant by matching the low fare, and offering two or more times the 
low fare seats as the new entrant, the dominant carrier must continue 
to offer the low fare for two years.
  Increasing Competition At Hubs: If a dominant carrier at a hub 
airport is taking advantage of its monopoly power by offering fares 5% 
or more above industry average fares, in more than 20% of hub markets, 
DOT may take steps to facilitate added competition at the hub.
  Mr. President, no one wants the federal government to micro manage 
private industry. But our airways are not just a private industry--they 
are a public trust. People need to be able to fly across our vast 
nation--to do business, to see family members, and to enjoy their 
lives. If these mergers proceed without the competitive protections I 
am proposing, then the ultimate irony of deregulation will be that we 
will have traded government concern for the public interest, for 
private monopoly control in the interests of the industry.
  I ask unanimous consent that the text of the Airline Competition 
Preservation Act of 2001 be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 199

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Airline Competition 
     Preservation Act of 2001''.

     SEC. 2. OVERSIGHT OF AIR CARRIER PRICING.

       (a) In General.--Chapter 415 of title 49, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 41512. Oversight of air carrier pricing

       ``(a) Effective Date.--
       ``(1) In general.--This section shall take effect 
     immediately upon a determination by the Secretary of 
     Transportation that 3 or fewer air carriers account for 70 
     percent or more of the scheduled revenue passenger miles in 
     interstate air transportation as a result of--
       ``(A) the consolidation or merger of the properties (or a 
     substantial portion of the properties) of 2 or more of the 7 
     air carriers that account for the highest number of scheduled 
     revenue passenger miles in interstate air transportation into 
     a single entity that owns or operates the properties 
     previously in separate ownership; or
       ``(B) the acquisition (by purchase, lease, or contract to 
     operate) of the properties (or a substantial portion of the 
     properties) of 1 or more of the 7 air carriers described in 
     subparagraph (A) by another of such carriers.
       ``(2) Use of data.--For the purpose of determining the 
     number of scheduled revenue passenger miles under paragraph 
     (1), the Secretary shall use data from the latest year for 
     which complete data is available.
       ``(3) Determination of air carrier concentration.--In 
     making a determination under paragraph (1), the Secretary 
     shall attribute to an air carrier those scheduled revenue 
     passenger miles in interstate air transportation of the air 
     carrier that is consolidated, merged, or acquired that are 
     associated with routes adopted by the remaining carrier.
       ``(b) Fares of Air Carriers.--
       ``(1) In general.--On the initiative of the Secretary or on 
     a complaint filed with the Secretary, the Secretary may 
     undertake an investigation to determine whether an air 
     carrier is charging a fare or an average fare for interstate 
     air transportation on a route that is unreasonably high.
       ``(2) Considerations.--In determining whether a fare or an 
     average fare of an air carrier for interstate air 
     transportation on a route is unreasonably high, the Secretary 
     shall consider, among other factors, whether--
       ``(A) the fare or average fare is higher than the fare or 
     average fare charged by the carrier on other routes in 
     interstate air transportation of comparable distances;
       ``(B) the fare or average fare has increased by a 
     significant amount in excess of any increase in the cost to 
     operate flights on the route; and
       ``(C) the range of fares specified on the route or the 
     carrier's entire fare system offers a reasonable balance and 
     a fair allocation of costs between passengers who are 
     primarily price sensitive and passengers who are primarily 
     time sensitive.
       ``(3) Actions in response to unreasonable fares.--If the 
     Secretary determines that an air carrier is charging a fare 
     or an average fare for interstate air transportation on a 
     route that is unreasonably high, the Secretary, after 
     providing the carrier an opportunity for a hearing, may order 
     the carrier--
       ``(A) to reduce the fare;
       ``(B) to offer the reduced fare for a specific number of 
     seats on the route; and
       ``(C) to offer rebates to individuals who have been charged 
     the fare.
       ``(4) Period of effectiveness of order.--An order issued by 
     the Secretary under this subsection shall remain in effect 
     for a period to be determined by the Secretary.
       ``(c) Actions of Dominant Air Carriers in Response to New 
     Entrants.--If, with respect to a route in interstate air 
     transportation to or from a hub airport, a dominant air 
     carrier at the airport--
       ``(1) institutes or changes its fares for air 
     transportation on the route in a manner that results in fares 
     that are lower than or comparable to the fares offered by a 
     new entrant air carrier for such air transportation; and
       ``(2) increases the passenger capacity at which such fares 
     are offered on the route to a level which is--
       ``(A) 2 or more times the capacity previously offered by 
     the carrier at such fares on the route; and
       ``(B) 2 or more times the total capacity offered by the new 
     entrant air carrier on the route, the dominant air carrier, 
     in the 2-year period beginning on the date that such fares 
     and additional capacity are instituted, shall continue to 
     offer such fares with respect to not less than 80 percent 
     of the highest number of seats per week for which the 
     dominant air carrier has offered the fares.
       ``(d) Ensuring Competition at Hub Airports.--
       ``(1) In general.--On the initiative of the Secretary or on 
     a complaint filed with the Secretary, the Secretary may 
     undertake an investigation to determine whether a dominant 
     air carrier at a hub airport is charging higher than average 
     fares at the airport.
       ``(2) Higher than average fares.--For purposes of paragraph 
     (1), the Secretary may determine that a dominant air carrier 
     is charging higher than average fares at a hub airport if the 
     carrier is charging, with respect to 20 percent or more of 
     its routes in interstate air transportation that begin or end 
     at the airport, an average fare that is at least 5 percent 
     higher than the average fare being charged by all air 
     carriers on routes in interstate air transportation of 
     comparable distances and density, after adjustments for costs 
     that are carrier or airport specific, such as passenger 
     facility charges or employee compensation.
       ``(3) Actions in response to unfair competition.--If the 
     Secretary determines under paragraph (1) that a dominant air 
     carrier is charging higher than average fares at a hub 
     airport, the Secretary, after providing the carrier an 
     opportunity for a hearing, may order the carrier to take 
     actions to increase opportunities for competition at the hub 
     airport, including--
       ``(A) requiring the carrier to make gates, slots, and other 
     airport facilities available to other air carriers on 
     reasonable and competitive terms;
       ``(B) requiring adjustments in the commissions paid by the 
     carrier to travel agents;
       ``(C) requiring adjustments in the carrier's frequent flyer 
     program; and
       ``(D) requiring adjustments in the carrier's corporate 
     discount arrangements and comparable corporate arrangements.
       ``(e) Definitions.--In this section, the following 
     definitions apply:
       ``(1) Dominant air carrier.--The term `dominant air 
     carrier', with respect to a hub airport, means an air carrier 
     that accounts for more than 50 percent of the total annual 
     boardings at the airport in the preceding 2-year period or a 
     shorter period specified in paragraph (3).
       ``(2) Hub airport.--The term `hub airport' means an airport 
     that each year has at least .25 percent of the total annual 
     boardings in the United States.
       ``(3) Interstate air transportation.--The term `interstate 
     air transportation' includes intrastate air transportation.
       ``(4) New entrant air carrier.--The term `new entrant air 
     carrier', with respect to a hub airport, means an air carrier 
     that accounts for less than 5 percent of the total annual 
     boardings at the airport in the preceding 2-year period or in 
     a shorter period specified by the Secretary if the carrier 
     has operated at the airport less than 2 years.''.
       (b) Conforming Amendment.--The analysis for such chapter is 
     amended by adding at the end the following:

``41512. Oversight of air carrier pricing.''.
                                 ______