Aviation Competition: Information on the Department of Transportation's
Proposed Policy (Letter Report, 07/29/1999, GAO/RCED-99-225).

The Department of Transportation (DOT) issued a proposed policy
statement last year designed to address unfair competitive practices by
major airlines against "new entrants"--new low-fare airlines that
entered their markets. DOT decided to develop its policy statement after
17 new entrant airlines complained that major airlines were unfairly
lowering their fares, boosting capacity on some routes, or both. Also,
DOT investigated two of the complaints and analyzed industrywide data on
pricing and capacity activities by major airlines. DOT's investigations
and analyses found possible unfair competitive practices by at least
five major airlines. DOT followed an informal process and began
developing the proposed policy statement in the summer of 1997. DOT did
not consider the policy to be a rule requiring notice and comment. DOT's
proposed policy statement generally addresses the complaints dealing
with price cuts or capacity increases that the Department received as
well as the practices that DOT identified in its investigations and
analyses of industrywide data. In addition, the proposed policy
describes practices that would trigger enforcement action.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  RCED-99-225
     TITLE:  Aviation Competition: Information on the Department of
	     Transportation's Proposed Policy
      DATE:  07/29/1999
   SUBJECT:  Restrictive trade practices
	     Competition
	     Commercial aviation
	     Airline industry
	     Airline regulation
	     Agency proceedings
	     Reporting requirements

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    United States General Accounting Office GAO                Report
    to the Chairman, Committee on the Budget, House of Representatives
    July 1999          AVIATION COMPETITION Information on the
    Department of Transportation's Proposed Policy GAO/RCED-99-225 GAO
    United States General Accounting Office Washington, D.C. 20548
    Resources, Community, and Economic Development Division B-281479
    July 29, 1999 The Honorable John Kasich Chairman, Committee on the
    Budget House of Representatives Dear Mr. Chairman: On April 6,
    1998, the Department of Transportation (DOT) issued a proposed
    policy statement designed to address unfair competitive practices
    by major airlines against "new entrants"-new low-fare airlines
    that entered their markets. You asked us to provide information on
    the proposed policy to facilitate your review of the final policy,
    which the Department is required to submit to the Congress before
    implementing it. Specifically, we agreed to address the following:
    (1) Why did DOT develop the proposed policy? (2) What process did
    DOT use to develop the proposed policy? (3) Does the proposed
    policy address the specific problems that led DOT to issue it?
    Results in Brief    DOT decided to develop its proposed policy
    statement after receiving 17 complaints from new entrant airlines
    alleging that major airlines were unfairly lowering their fares,
    increasing capacity on certain routes, or both; investigating two
    of those complaints; and analyzing industrywide data concerning
    pricing and capacity activities by major airlines. DOT's
    investigations and analyses indicated possible unfair competitive
    practices by at least five major airlines. DOT concluded that the
    best approach for addressing its concerns about this conduct was
    to issue policy guidance on what, in its view, constituted unfair
    competitive practices warranting departmental action. DOT did not
    intend for the policy to discourage major airlines from competing
    against new entrants; rather, it wanted to prevent extreme
    behavior that was intended to drive a new entrant from a market.
    By issuing the proposed policy, DOT expected to initiate a
    national debate on the issues surrounding unfair competition. In
    addition, DOT officials believed that this approach would help
    with future enforcement regarding unfair competitive practices by
    major airlines in response to new low-fare airlines. DOT followed
    an informal process and began developing the proposed policy
    statement in summer 1997. DOT did not consider the policy to be a
    rule requiring notice and comment under the Administrative
    Procedure Act. The act provides an exemption from certain
    notification requirements Page 1
    GAO/RCED-99-225 Aviation Competition Policy B-281479 when an
    agency issues a general statement of policy. However, DOT
    published the proposed policy in the Federal Register for public
    notification and to obtain comments. DOT's proposed policy
    statement generally addresses the complaints dealing with price
    cuts or capacity increases that the Department received as well as
    the practices that DOT identified in its investigations and
    analyses of industrywide data. In addition, the proposed policy
    described practices that would trigger enforcement action. The
    policy described these practices as a major airline expanding its
    capacity and selling a large number of seats at very low fares in
    response to a low-fare airline entering its hub market. The
    Department would consider such practices unfair competition if
    they resulted in lower revenue for the major airline in the short
    term than would result from a reasonable alternative strategy for
    competing with a new entrant airline, such as matching the new
    entrant's low fares on a limited basis and not significantly
    increasing capacity. The Department received comments from several
    major airlines and an industry trade association that questioned
    the proposed policy's enforceability because of the vagueness of
    the wording of critical elements. For example, the comments noted
    that the proposed policy statement did not define "reasonable
    alternative response," "very low fares," or "large number of
    seats." DOT is revising the policy statement to address concerns
    about vagueness as well as other comments. The Department expects
    to issue the final policy statement in September 1999. Background
    Deregulation of the airline industry in 1978 has led to lower
    airfares and better service for most air travelers, largely
    because of increased competition spurred by the entry of new
    airlines into the industry and of established carriers into new
    markets. In many markets, the entry of low-cost airlines, such as
    Southwest, Vanguard, Spirit, AirTran, and Frontier, has resulted
    in lower fares and better service. For example, according to DOT,
    markets in which low-cost airlines compete with major airlines
    have lower fares on average-often more than 50 percent lower-than
    similar markets without such competition. In markets with low-fare
    competition, matching the prices of this competition is generally
    a reasonable response by major airlines. However, in recent years,
    some low-cost airlines have complained that this behavior by major
    airlines has not been reasonable and, instead, has been an attempt
    to drive them out of certain markets. Page 2
    GAO/RCED-99-225 Aviation Competition Policy B-281479 DOT has found
    that recent trends indicate the level of competition may be
    declining. The Department's data indicate that the number of
    airline markets in the United States with two or more competitors
    fell steadily from 1992 through 1996.1 The number of competitive
    markets increased in 1997 to just over the 1995 level, but
    remained below the levels established in 1992 and 1994. (See fig.
    1.) Moreover, while the number of passengers benefiting from low-
    fare competition grew steadily for years, the trend was reversed
    in 1997, when both the number and percentage of passengers in
    markets with low-fare competition declined. Figure 1: Number of
    Markets With Two or More Competitors, 1992 Through       Number of
    markets 1997                                    14,000 13,000
    12,000 11,000 1992    1994     1995     1996     1997 Note: The
    Department was not able to provide us with data for 1993 or for
    years prior to 1992. Source: U.S. Department of Transportation.
    The aviation industry has several unique pricing and service
    characteristics that set it apart from other industries and affect
    how airlines compete. Airlines operate networks in which
    passengers flying on the same segment of a flight may have
    different origins or destinations. On any given flight segment,
    typically there are passengers whose entire one-way trip is only
    that segment (called "local traffic") and other passengers who are
    connecting to or from other flights (called "flow traffic"). For
    example, a flight from Washington, D.C., to Chicago would 1The
    Department was not able to provide us with data for 1993 or years
    prior to 1992. Page 3
    GAO/RCED-99-225 Aviation Competition Policy B-281479 have
    passengers traveling between the two cities as well as other
    passengers who would connect to flights going to other cities.
    Thus, when airlines set their prices for flights on a given
    segment, they must be aware that if they sell too many tickets to
    passengers traveling on only that segment, they risk supplanting a
    passenger who could use that segment to fly on a more profitable
    route. In addition, airlines charge different prices to different
    passengers even when those passengers are flying to the same
    place. For example, passengers traveling on short notice usually
    pay more than passengers who are able to plan in advance.
    Generally, the prices are set so that those passengers who require
    the greatest flexibility pay the highest price and those who
    require less flexibility pay lower prices. The airlines try to
    fill as many seats as possible with passengers paying high fares.
    However, rather than allowing seats to go unsold, the airlines
    will sometimes sell unsold tickets at deep discounts to receive
    some revenue from passengers who otherwise would not have taken
    the flight. As a result, different passengers on any route or
    flight segment may pay substantially different amounts for their
    trips. Unique aspects of the air transportation industry allow
    major airlines to respond quickly to competition with changes in
    price and capacity. Using computerized reservation systems,
    airlines can change their prices almost instantaneously as
    competitive conditions change or as they manage the number of
    seats remaining to be sold. Similarly, the number of seats
    available on a particular route can change rapidly because
    airlines can shift resources between markets much more readily
    than firms in other industries. In response to market conditions,
    an airline can increase its capacity on a route by increasing the
    number of flights, the size of the aircraft, or both. The Proposed
    Policy      On April 6, 1998, DOT issued a proposed policy
    statement regarding unfair Was Intended to          exclusionary
    conduct in the air transportation industry that was designed to
    address unfair competitive practices by major airlines in response
    to Address Unfair           new entrant airlines that provide
    competing service in the major airlines' Competitive Practices
    hub airports.2 The proposed policy describes three practices that
    would 2Specifically, the draft policy proposes that a major
    airline is engaging in unfair exclusionary practices if, in
    response to new entry into its hub markets, it pursues a strategy
    of price cuts and/or capacity increases that either (1) causes it
    to forgo more revenue than all of the new entrant's capacity could
    have diverted from it or (2) results in substantially lower
    operating profits-or greater operating losses-in the short run
    than would result from a reasonable alternative strategy for
    competing with the new entrant. The draft policy defines new
    entrant airlines as independent airlines that have started jet
    service within the last 10 years and pursue strategies of charging
    low fares. Page 4
    GAO/RCED-99-225 Aviation Competition Policy B-281479 trigger an
    investigation by DOT. Specifically, DOT will initiate an
    investigation when a major airline (1) adds capacity and sells a
    large number of seats at very low fares, (2) carries more local
    passengers at the new entrant's low fares than the new entrant's
    total seat capacity, or (3) carries more local passengers at the
    new entrant's low fares than the new entrant carries at low fares.
    The proposed policy also states that these actions must result in
    lower local revenue for the major airline than would result from a
    reasonable alternative response. The proposed policy states that
    DOT does not intend to discourage major airlines from competing
    against new entrants at hub markets. Matching the new entrant's
    low fares on a limited basis and not significantly increasing
    capacity would be permissible under the proposed policy, but
    extreme behavior intended to drive the new entrant from the hub
    market would trigger enforcement. DOT would determine whether
    carriers had engaged in unfair practices and decide whether to
    initiate enforcement on a case-by-case basis (see app. I). DOT
    Developed Evidence    Before DOT began developing the proposed
    policy statement in summer of Possible Unfair        1997, it
    received 32 complaints from airlines, travel industry
    associations, Practices                 Members of Congress, and
    others concerning unfair competition in the airline industry.
    Seventeen of the 32 complaints dealt with new entrant airlines'
    concerns about unfair pricing and capacity increases by larger
    airlines. The remaining complaints addressed concerns such as
    access to gates and other airport facilities, display biases in
    computerized reservation systems that would result in a major
    airline's flight being listed ahead of a new entrant's flight, and
    unfair use of travel agent commissions. Many of the complaints
    dealt with more than one issue. (See fig. 2.) The Department
    received the complaints in various ways, including letters,
    meetings, and telephone calls. Page 5
    GAO/RCED-99-225 Aviation Competition Policy B-281479 Figure 2:
    Issues Addressed in 32 Complaints Received by DOT,         20
    Number of complaints March 1993 Through May 1997 17 15 12      11
    10                                                        9 5 2
    2 0 CRSs    Gates Pricing
    Other Capacity Commissions Issues addressed Notes: Some complaints
    addressed more than one issue. "CRSs" refers to computerized
    reservation systems; "commissions" refers to commissions paid to
    travel agencies. Source: U.S. Department of Transportation. The 17
    complaints of unfair pricing and capacity increases were raised
    from March 1993 through May 1997, involved 7 major airlines and 10
    new entrants, and included at least 27 routes.3 For example, in
    May 1997, Reno Air complained about Northwest Airlines' practices
    in the Detroit-Reno market. According to Reno Air, Northwest
    entered the market only after Reno Air had indicated that it would
    serve the market. After Reno Air initiated service, the airline
    alleged that Northwest substantially undercut its fares and
    increased service to become the dominant airline in the market.
    Then, when Reno Air reduced its service in the market, Northwest
    also reduced service, according to Reno Air. As shown in figure 3,
    the complaints DOT received encompassed many of the major
    airlines' hub airports, including Atlanta, Dallas/Fort Worth,
    Denver, Detroit, Minneapolis/St. Paul, and Pittsburgh. 3In some
    cases, the routes were not specified. Page 6
    GAO/RCED-99-225 Aviation Competition Policy B-281479 Figure 3:
    Routes Cited in 17 Complaints Concerning Pricing and Capacity That
    Were Received, March 1993 Through May 1997 Minneapolis/ St. Paul
    Detroit Pittsburgh Denver Atlanta Dallas/Ft. Worth Source: U.S.
    Department of Transportation. According to DOT officials, they
    handled some of the 17 complaints from new entrant airlines by
    informally negotiating with the parties. In some cases, DOT
    initially requested further information from the airlines.
    According to Department officials, they investigated two
    complaints and shared information about those two investigations
    as well as information about three other complaints with the
    Department of Justice. According to a DOT official, 15 of the 17
    complaints are closed and 2 that were under investigation remained
    open in June 1999. According to Department officials, their
    investigations indicated possible unfair competitive practices by
    two major airlines. For example, in one case, DOT found evidence
    that a major airline was specifically targeting new entrant
    airlines. Documents obtained from the airline indicated that when
    a new entrant obtained 5 percent of a local market, the major
    airline's strategy was to respond aggressively, in stages, with
    the intent of Page 7
    GAO/RCED-99-225 Aviation Competition Policy B-281479 driving the
    new entrant out of the market. First, the airline matched the new
    entrant's low fares, but with restrictions-such as requirements
    for the advance purchase of tickets and a Saturday night stayover-
    then it eliminated the restrictions, and, finally, it increased
    the number of seats available at the low fare. The Department's
    analysis of data on fares, revenues, and the number of passengers
    for one route indicated that the major airline was selling such a
    large number of tickets at the low fare offered by the new
    entrant, that it sold low-fare tickets to many passengers who
    would otherwise have paid higher fares, resulting in substantially
    lower revenue from the route than it would have realized if it had
    been seriously attempting to bolster its revenue. Over the first
    year that the new entrant served the route, the major airline
    shifted traffic from high-fare categories to low-fare categories,
    which resulted in a significant decrease in revenue for the major
    airline despite a significant increase in passengers over that
    period. In addition, the Department examined at least 40 to 50
    routes on which other major airlines competed with new entrants or
    with Southwest Airlines4 and found behavior that caused it
    concern. For the analysis, DOT used data for 1992 through the
    first quarter of 1997 that it collected routinely from airlines on
    fares, traffic, and revenue. For three major airlines, DOT found
    examples of pricing or capacity behavior similar to the behavior
    it identified in its investigations. The Department published
    several of these examples in August 1998.5 For instance, the
    Department reported that during the first quarter of 1996, a new
    entrant airline started service on a 450-mile route. The major
    airline serving the route initially did not increase its sale of
    low-fare seats, and its revenue for the first two quarters of 1996
    changed very little. However, during the third quarter of 1996,
    the major airline greatly expanded its capacity and increased the
    number of seats it sold at low fares by almost half. During that
    quarter, the major airline's revenue on that route dropped by
    about a third. (See fig. 4.) The new entrant left the market the
    following quarter, after which the major airline sold fewer seats
    at low fares and sold a large percentage of its seats at higher
    fares. The major airline's average fares were about $190 just
    before the new entrant began service, fell to just over $80 when
    it was competing with the new entrant, and rose to almost $250 6
    months after the new entrant departed the market. 4Southwest
    Airlines is considered a low-fare airline but has been in
    operation since before deregulation and, therefore, is not a new
    entrant. 5U.S. Department of Transportation, "Competition in the
    U.S. Domestic Airline Industry: The Need for a Policy to Prevent
    Unfair Practices." Page 8
    GAO/RCED-99-225 Aviation Competition Policy B-281479 Figure 4:
    Total Passengers and Total Revenue for a Major Airline Competing
    Passengers in thousands
    Revenue (dollars in thousands) 10 With a New Entrant Airline
    70 9 60 8 50 7 40
    6 30      Quarter 1           Quarter 2           Quarter 3
    Quarter 4           Quarter 1     5 1996                1996
    1996                  1996                1997 Passengers Revenue
    Note: The new entrant entered the market in the first quarter 1996
    and left the market in the fourth quarter 1996. Source: U.S.
    Department of Transportation. Information from these
    investigations and analyses was presented to senior DOT officials,
    who concluded that the best approach for addressing the
    Department's concerns about pricing and capacity-setting was to
    issue policy guidance on what the Department viewed as potentially
    unfair competitive practices that warranted formal enforcement. In
    particular, the Department took this approach because the
    Secretary of Transportation wanted to have a national dialogue on
    the concerns regarding unfair competition. In part, that dialogue
    took the form of meetings that the Department held with industry
    and community groups after the proposed policy statement was
    issued. In addition, according to a Department official, this
    approach would help with future enforcement since the lack of a
    description of unfair competitive practices concerning pricing and
    capacity-setting had inhibited DOT from taking enforcement actions
    in the past. Page 9
    GAO/RCED-99-225 Aviation Competition Policy B-281479 Complaints of
    Unfair         DOT continued to receive complaints of unfair
    competitive practices after it Practices Continued After    began
    developing the proposed policy statement in summer 1997. From DOT
    Developed the            September 1997 through February 19986-
    while DOT was developing the Proposed Policy              policy
    statement-it received seven complaints against major airlines from
    other airlines, Members of Congress, an industry association, and
    city officials. After issuing the proposed policy-from late April
    1998 through May 1999-the Department received an additional 21
    complaints from similar groups as well as travel agents and state
    officials. Eleven of the 28 complaints concerned pricing or
    capacity increases. For example, in April 1999, the Attorney
    General of Minnesota complained that Northwest Airlines appeared
    to be offering low fares and increased capacity in selected
    Minneapolis-St. Paul markets in anticipation of the inauguration
    of scheduled service by a new entrant-Sun Country Airlines-on June
    1, 1999. The remaining 17 complaints concerned issues involving
    access to gates and airport space, computerized reservation
    systems, travel agent commissions, and airline ticketing
    practices. Twenty-five of the 28 complaints have been closed, and
    3 are pending further action by the Department. According to DOT
    officials, the Department has a total of five open complaints-two
    were received prior to its developing the proposed policy, and
    three were received since it issued the proposed policy. On May
    13, 1999, the Department of Justice filed an antitrust lawsuit
    against American Airlines, charging that the airline tried to
    monopolize service to and from Dallas/Fort Worth by driving out
    low-fare airlines. The lawsuit specifically focused on American's
    responses to Vanguard Airlines, Sun Jet, and Western Pacific on
    four Dallas/Fort Worth routes to Wichita, Kansas; Kansas City,
    Missouri; Long Beach, California; and Colorado Springs, Colorado.
    Justice charged that American repeatedly sought to drive these
    small start-up airlines out of Dallas/Fort Worth by adding flights
    and cutting fares. According to Justice, after American drove out
    a new entrant, it reestablished high fares and reduced service.
    The suit further alleged that for the flights that American added,
    the costs exceeded the revenues generated. According to Justice,
    American expected to recoup those temporary losses by charging
    higher fares after a new entrant ceased operations. For example,
    according to Justice, American increased fares for the Dallas/Fort
    Worth-Wichita route by more than 50 percent after Vanguard stopped
    serving that market. American has stated that it merely matched
    the fares that Vanguard set and that its actions on the
    Dallas/Fort Worth routes will prove to be nothing more than 6DOT
    did not receive any complaints from June through August 1997. Page
    10                                         GAO/RCED-99-225
    Aviation Competition Policy B-281479 those of a tough competitor
    in a highly competitive industry. American filed a response to the
    complaint on July 13, 1999. DOT's Process to                In
    summer 1997, DOT's Office of the Assistant Secretary for Aviation
    and Develop the Proposed International Affairs and the Office of
    the General Counsel began developing the proposed policy
    statement. Since DOT considered the policy Policy Statement Has
    to be exempt from the notice and comment requirements under the
    Been Informal                   Administrative Procedure Act, it
    followed an informal process in developing it. DOT's early efforts
    in developing the proposed policy focused on defining unfair
    competitive practices. In addition, the Department of Justice and
    the Federal Trade Commission (FTC) reviewed and commented on the
    proposed policy before it was issued. DOT Followed an Informal
    From summer 1997 through early 1998, staff from DOT's Office of
    the Process                         Assistant Secretary for
    Aviation and International Affairs and the Office of the General
    Counsel developed and drafted the policy statement. Meetings among
    senior officials from these offices were held during this period
    to review and comment on the proposed policy. The document was
    revised in an iterative manner based on comments from within the
    Department. During this process, the Secretary of Transportation
    decided to issue a policy statement. A general statement of policy
    does not have to follow certain procedures established under the
    Administrative Procedure Act-such as issuing in the Federal
    Register a proposed rulemaking for public comment and then a final
    rule. Although DOT does not consider the proposed policy to be a
    rule subject to notice and comment requirements, the Department
    did publish it in the Federal Register for public notification and
    to obtain public comments. Initially, DOT allowed a 60-day period
    for filing comments and a 90-day deadline for filing reply
    comments. DOT extended the deadline for filing comments until
    September 25, 1998. DOT established a docket for receipt of public
    comments and, according to Department officials, received over
    5,000 comments by the final deadline. Additional comments were
    received after the deadline passed. DOT allows late comments to be
    considered. Comments by some major airlines suggest the proposed
    policy is a rule that should be subject to the notice and comment
    provisions of the Administrative Procedure Act. For example, an
    industry association and a major airline stated that the proposed
    policy was a substantive rule because it would proscribe specific
    conduct by major airlines. Because Page 11
    GAO/RCED-99-225 Aviation Competition Policy B-281479 DOT did not
    follow certain provisions of the act, some commenters further
    stated that the Department did not provide sufficient information
    to constitute adequate notice and a meaningful opportunity for
    interested persons to comment on the proposed policy. In
    particular, some major airlines commented that DOT provided
    insufficient information in the public record about its informal
    investigations and other data supporting the policy. However, some
    small airlines, which would be defined as "new entrants" under the
    policy, commented that the policy statement was in compliance with
    the Administrative Procedure Act. For example, one airline stated
    that the policy was an interpretive, rather than a substantive
    rule, because the policy did not create new requirements or change
    existing ones. Under the Administrative Procedure Act, an
    interpretive rule or a general statement of policy is exempt from
    the notice and comment requirements of the act. DOT's Efforts
    Focused on    DOT's early efforts to develop the proposed policy
    focused on defining Defining Unfair             unfair competitive
    practices in terms of pricing and levels of capacity and
    Competitive Practices       revenue. Reducing prices to increase
    business and match the prices of new competitors is generally a
    reasonable competitive response. However, the Supreme Court has
    ruled that this behavior is not always reasonable and has defined
    it as predatory pricing under the antitrust laws when a company
    (1) sets prices below an appropriate measure of costs and (2) has
    a reasonable likelihood of recapturing its losses by setting
    higher prices after its competition leaves the market.7 For the
    airline industry, the appropriate measure of cost is often
    considered to be the incremental cost of serving additional
    passengers. DOT's proposed policy on unfair competitive practices
    by major airlines differs from predatory pricing under the
    antitrust laws because it focuses on a firm's forgone revenue
    rather than the relationship between the firm's prices and costs.
    DOT's policy defines unfair competitive practices as fare cuts and
    capacity increases resulting in short-term revenue losses that
    will be recouped after the competitor is driven from the market.
    DOT noted that it can be difficult to determine when the airlines'
    normal practices of cutting prices and increasing capacity would
    be illegal predatory pricing under the antitrust laws because of
    the industry's cost characteristics, among other things. 7See
    Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation, 509
    U.S. 209 (1993). Page 12
    GAO/RCED-99-225 Aviation Competition Policy B-281479 DOT believes
    that because airlines incur costs over their entire route
    networks, defining the cost of serving a route or the incremental
    cost of serving additional passengers depends on the circumstances
    involved. For example, DOT noted that the incremental cost of
    serving an additional passenger depends on whether that passenger
    can be served on a flight that is less than full or if that
    passenger would displace another passenger on the flight. The
    incremental cost of a passenger on a flight that would otherwise
    fly with an empty seat is very low. However, according to DOT, the
    incremental cost of another passenger on a full flight is the
    forgone revenue from the passenger who would be displaced because
    the flight is full. In addition, DOT noted that if the airline
    decides to add flights or use larger aircraft, the incremental
    cost would be the additional cost associated with those decisions.
    Other Federal Agencies        Several months before issuing the
    proposed policy statement, DOT met Involved in Developing the
    with officials from Justice and FTC, who reviewed and commented on
    the Proposed Policy               document. DOT consulted with
    these agencies because of their responsibility for enforcing
    federal antitrust laws. According to officials from Justice and
    FTC, their comments mainly dealt with the description in the
    policy statement of their agencies' respective missions and
    responsibilities. DOT revised the language of the proposed policy
    statement to address those concerns. Staff from the Office of
    Management and Budget did not formally review the policy statement
    but, along with staff from Justice and FTC, attended meetings held
    by DOT to review drafts of the policy statement. DOT Expects to
    Issue the      Senior DOT officials have stated that they plan to
    issue the final policy in Final Policy in               September
    1999. The Department has been revising the policy statement
    September 1999                based on the comments that it
    received. The Congress required DOT to send it the final policy
    and mandated that the policy will not become effective until at
    least 12 weeks after it is received.8 Prior to issuing the final
    policy, the Congress also required the Department to send it a
    report on competitive practices in the airline industry. The
    report is to include (1) a description of and examples of
    complaints received by the Secretary concerning acts of unfair
    competition or predatory pricing in the airline industry; (2) a
    description of options available to the Secretary for addressing
    acts of unfair competition or 8See P.L. 105-277. The law states
    that the 12-week period includes only weeks in which the House of
    Representatives is in session for at least 1 day. Page 13
    GAO/RCED-99-225 Aviation Competition Policy B-281479 predatory
    pricing; (3) an analysis of the policy statement, including
    information on the impact of the final policy on such things as
    scheduled service to small and medium-sized communities, air
    fares, and members of frequent flyer programs; and (4) a
    description of the manner in which the Secretary plans to
    coordinate the handling of complaints against air carriers filed
    with the Secretary and similar complaints filed with the Attorney
    General. DOT staff are preparing the competitive practices report
    and expect to deliver it to the Congress in September along with
    the final policy. Proposed Policy         In issuing the proposed
    policy statement, the intent of DOT was to address Addresses
    Potential     what it viewed as potentially unfair competitive
    practices by some major airlines and to help with future
    enforcement by identifying some practices Problem Practices,
    that would trigger an enforcement proceeding. DOT's proposed
    policy and DOT Plans           statement generally addresses the
    complaints dealing with price cuts and capacity increases that the
    Department received as well as the behaviors Revisions to Improve
    that DOT identified in its investigations and analyses of
    industrywide data. Its Enforceability      As we discussed earlier
    in this report, DOT's proposed policy statement addresses unfair
    competitive practices in the form of a major airline expanding its
    capacity and selling a large number of seats at very low fares,
    which results in lower revenue in the short term than would result
    from a reasonable alternative strategy for competing with a new
    entrant airline at the major airline's hub airport. However, DOT
    acknowledges that the policy's description of unfair competitive
    practices may be vague and plans to revise it. The proposed policy
    statement generally addresses 16 of the 17 complaints dealing with
    alleged price cuts or capacity increases that DOT received prior
    to developing it. One complaint of alleged price cuts did not
    cover routes from a hub airport of a major airline and, therefore,
    would not be covered by the proposed policy. Another complaint
    included four routes, only one of which would be covered by the
    proposed policy because it was the only route that included a hub
    airport of a major airline. According to DOT, the 10 new entrant
    airlines that made these complaints started operations within the
    last 10 years and, therefore, would be encompassed by the proposed
    policy. For the most part, the complaints did not mention whether
    the major airlines involved received lower revenues in the short
    term because of their actions; therefore, we were not able to
    assess whether the complaints dealt with this aspect of the policy
    statement. Page 14                               GAO/RCED-99-225
    Aviation Competition Policy B-281479 Similarly, the proposed
    policy statement addresses the pricing and capacity-setting
    practices that DOT identified in its investigations and analyses
    of industrywide data. In its two investigations, DOT examined new
    entrant airlines' complaints that the major carrier in particular
    markets added capacity and matched or undercut the new entrants'
    fares. In one complaint, the new entrant specifically mentioned
    that the major airline's actions were designed to force the new
    entrant to leave the markets and did not constitute a legitimate
    competitive response to new entry. As we discussed earlier in this
    report, in one investigation, DOT also found that the major
    airline's pricing and capacity-setting activities resulted in
    substantial diversion of its revenue, behavior the proposed policy
    statement addresses. In addition, DOT's analyses of industrywide
    data indicated that three other major airlines exhibited behavior
    that is addressed by the proposed policy statement. As we
    discussed earlier in this report, DOT's analyses of major
    airlines' practices in markets in which they were competing with
    new entrants showed that the major airlines greatly increased the
    total number of seats sold, but earned substantially less revenue
    because they were selling so many seats at low fares. Finally, DOT
    intends the proposed policy statement to help with future
    enforcement by describing practices that would trigger an
    investigation. The Department, however, has received comments from
    several major airlines and an industry trade association that
    question the proposed policy's enforceability. For example, the
    trade association commented that the proposed policy is "riddled
    with vague and undefined terms, and no carrier can know in advance
    whether its response to a new entrant will later be judged
    unreasonable by DOT." The commenter noted that critical terms in
    the proposed policy-such as "reasonable alternative response,"
    "very low fares," and "large number of seats"-are undefined and do
    not provide meaningful guidance to airlines in distinguishing
    prohibited from permitted practices. These concerns were echoed in
    other comments. Such vagueness, according to a major airline, will
    lead to arbitrary enforcement. Another major airline, commenting
    on the vagueness of the proposed policy, stated that the policy
    imposes an impossible burden on major airlines to guess at its
    meaning as well as how the marketplace and competitors will react
    to the airline's price and capacity offerings. In addition, one
    smaller airline commented on the need to revise the wording of the
    three "triggers" for enforcement, noting that they could be
    construed more broadly than the Department intended. According to
    senior Department officials, the policy statement is being revised
    to Page 15                                GAO/RCED-99-225 Aviation
    Competition Policy B-281479 address concerns about vagueness as
    well as other concerns raised in the comments. Agency Comments
    We provided the Office of the Secretary of Transportation with a
    draft of this report for review and comment. The Deputy Assistant
    Secretary for Aviation and International Affairs and the Assistant
    General Counsel for Aviation Enforcement and Proceedings advised
    us that they generally agreed with the information presented in
    our report. They also provided several technical corrections,
    which we incorporated as appropriate. Scope and          To
    address this report's three objectives, we interviewed officials
    from Methodology        DOT's Office of the General Counsel and
    Office of the Assistant Secretary for Aviation and International
    Affairs. To gather information on why DOT developed the proposed
    policy statement, we also obtained from the Department
    documentation of complaints it received about unfair competition
    practices. To determine what process DOT used to develop the
    proposed policy, we reviewed the Department's docket for public
    comments on the process it used. We also interviewed officials
    from the Department of Justice, FTC, and the Office of Management
    and Budget to obtain information on DOT's consultations with them.
    To determine if the proposed policy statement addressed the
    problems identified in the complaints, we compared the proposed
    policy statement with the list of complaints we obtained from DOT.
    Similarly, we compared the proposed policy statement with DOT's
    findings from its investigations and analyses. For this last
    objective, we also analyzed comments in the docket about the
    enforceability of the proposed policy statement. To determine
    DOT's authority to promulgate the proposed policy statement, we
    reviewed the Administrative Procedure Act and the provisions of
    title 49, U.S. Code, concerning DOT's authority to enforce
    competitive practices in the airline industry. We also interviewed
    officials from DOT and the Department of Justice. We conducted our
    work from December 1998 through July 1999 in accordance with
    generally accepted government auditing standards. We are providing
    Rodney E. Slater, Secretary of Transportation, with copies of this
    report. We will make copies available to others on request. If
    Page 16                               GAO/RCED-99-225 Aviation
    Competition Policy B-281479 you or your staff have any questions
    about this report, please call me at (202) 512-2834. Key
    contributors to this report are listed in appendix II. Sincerely
    yours, John H. Anderson, Jr. Director, Transportation Issues Page
    17                               GAO/RCED-99-225 Aviation
    Competition Policy Appendix I DOT's Authority to Prohibit Unfair
    Aviation Competition The Department of Transportation's (DOT)
    legal authority to undertake enforcement actions against airlines
    engaged in unfair practices affecting competition in the industry
    stems from sections 40101 and 41712 of title 49, U.S. Code. In
    section 40101, the Congress directed DOT to consider the following
    issues, among others, to be in the public interest: (1) the
    prevention of predatory or anticompetitive practices in the
    airline industry; (2) the avoidance of unreasonable industry
    concentration, excessive market domination, monopoly powers, and
    other conditions that would allow an airline to unreasonably
    increase fares, reduce service, or exclude competition; and (3)
    the encouragement of entry by new and existing air carriers. Under
    section 41712, DOT has authority to prohibit business practices
    that are deceptive practices or unfair methods of competition. The
    Congress originally granted the legal authority in section 41712
    to the Civil Aeronautics Board (CAB). When CAB was abolished in
    1984 during the process of airline deregulation, the Congress
    granted DOT that same legal authority to prohibit unfair or
    deceptive business practices. DOT and CAB have used this authority
    to address various practices, including deceptive practices
    involving ticket agents, advertising and sale of air
    transportation, and carrier-owned computerized reservation
    systems. In some areas-such as deceptive advertising-DOT has taken
    enforcement action, including assessing penalties. In addition,
    DOT has adopted regulations in areas such as computerized
    reservation systems. DOT has a range of compliance tools
    available. The Department has informally negotiated with the
    affected parties to resolve a problem-the Department refers to
    this as "jawboning." The Department has informally investigated
    some complaints and asked the parties to provide relevant data and
    documents.9 In addition, section 41712 authorizes DOT to conduct a
    formal investigation and hearing on unfair practices.10 DOT can
    initiate this activity on its own or after receiving a complaint.
    DOT first determines whether an enforcement proceeding is
    warranted. Next, DOT notifies the affected parties that an
    enforcement proceeding is commencing or notifies the complaining
    party that no such proceeding will be instituted. The DOT Deputy
    General Counsel and Assistant General Counsel for Aviation
    Enforcement and Proceedings have overall responsibility for the
    9DOT can conduct informal investigations using the procedures
    described in 14 C.F.R. 305 (Rules of Practice in Informal
    Nonpublic Investigations) and can collect information using the
    authority provided under 49 U.S.C. 41708. 10Procedures for
    investigations for enforcement and subsequent legal proceedings
    are described in subpart B of 14 C.F.R. part 302 (Aviation
    Proceedings Before the Office of the Secretary). Page 18
    GAO/RCED-99-225 Aviation Competition Policy Appendix I DOT's
    Authority to Prohibit Unfair Aviation Competition prosecution in
    the proceedings. If necessary, the Assistant General Counsel may
    develop an information request to gather facts from the affected
    parties. If the Assistant General Counsel determines that
    enforcement action is warranted, a complaint is filed, and the
    proceeding is assigned to one of the Department's administrative
    law judges for a formal hearing. If the judge determines that a
    violation has occurred, the judge may order the airline to "cease
    and desist" from the illegal conduct and, under certain
    circumstances, impose civil penalties. Failure to comply with an
    order could also result in fines. The judge's decision may be
    reviewed by the Department, and the U.S. Court of Appeals has the
    authority to review the Department's final order. At any point in
    the process, the Deputy General Counsel and Assistant General
    Counsel can settle a case with the party involved. Lastly, DOT can
    refer cases to the Department of Justice, which has the authority
    to enforce federal antitrust laws. Until May 1999, when Justice
    filed a lawsuit against American Airlines, it had never used that
    authority to file an antitrust lawsuit concerning predatory
    pricing in the airline industry. Page 19
    GAO/RCED-99-225 Aviation Competition Policy Appendix II GAO
    Contacts and Staff Acknowledgments GAO Contacts       John H.
    Anderson, Jr., (202) 512-2834 Janet Barbee, (202) 512-8856
    Acknowledgments    In addition to those named above, Sharon Dyer,
    Joseph Kile, Teresa Spisak, and Michael Volpe made key
    contributions to this report. (348137)           Page 20
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