Thursday, August 6, 2009
A brief story that ran earlier this week, see Jon Kell, US Airways Plan Codeshare Deal in US, Japan, Dow Jones Newswire, Aug. 4, 2009 (available here), framed the pending US Airways/All Nippon Airways codeshare application, see Joint Application . . . for Statements of Authorization, Dkt. No. OST-2009-0181 (Aug. 4, 2009), against the backdrop of the ongoing dispute over the future of the Transportation Department's antitrust immunity powers. The problem, however, is that the airlines' application has nothing to do with DOT's authority to immunize international intercarrier agreements.
Since 1987, the DOT has required codeshare arrangements between U.S. and foreign carriers to be filed for approval under 14 C.F.R. § 212. Unlike antitrust immunity for alliances, international codesharing has received official support as a way to enhance global service options for consumers, see U.S. International Air Transport Policy Statement, 60 Fed. Reg. 21,841 (May 3, 1995), and should thus be kept--for purposes of present aeropolitics at least--conceptually distinct. It is also important to note that one of the key prerequisites for any DOT grant of antitrust immunity, namely that the foreign carrier's home State has signed an open skies agreement with the U.S., is left unsatisfied by the restrictive U.S./Japan bilateral air services agreement, reprinted in 3 Av. L. Rep. (CCH) ¶ ¶ 26,366a et seq.