[Senate Report 109-317]
[From the U.S. Government Publishing Office]
109th Congress Report
SENATE
2d Session 109-317
_______________________________________________________________________
Calendar No. 563
AIR TRANSPORTATION TO AND FROM LOVE FIELD, TEXAS
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 3661
DATE deg.August 1, 2006.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
second session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Kurth, Deputy Staff Director
Kenneth Nahigian, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
Calendar No. 563
109th Congress Report
SENATE
2d Session 109-317
======================================================================
AIR TRANSPORTATION TO AND FROM LOVE FIELD, TEXAS
_______
August 1, 2006.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 3661]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
3661) TITLE deg. to amend section 29 of the
International Air Transportation Competition Act of 1979
relating to air transportation to and from Love Field, Texas,
having considered the same, reports favorably thereon
without amendment deg. with amendments deg.
with an amendment (in the nature of a substitute) and
recommends that the bill joint resolution deg. (as
amended) do pass.
Purpose of the Bill
The purpose of this legislation, as reported, is to modify
the provisions regarding flights to and from Love Field, in
Dallas, Texas.
Background and Needs
In 1967, Southwest Airlines became an incorporated intrastate
air carrier. Soon after, in 1968, the Cities of Dallas and Fort
Worth (Cities) agreed to construct the Dallas-Fort Worth
Regional Airport (DFW) and adopted a Regional Airport
Concurrent Bond Ordinance. That ordinance required that the
Cities phase-out the use of Love Field, Redbird, GSIA and
Meacham Field, by Certificated Air Carrier Services and
transfer air carrier operations to the Regional Airport.
In 1970, the eight carriers 1A \1\ then serving the Dallas-
Fort Worth area signed an agreement to serve DFW. Southwest
Airlines (Southwest) had not yet begun operations and did not
sign the agreement. In 1971, Southwest began service as an
exclusively intrastate airline and advised the DFW Airport
Board that it did not intend to serve DFW. In 1972, not being a
party to the DFW deal, Southwest formally petitioned the DFW
Board for an exemption from or waiver to the Concurrent Bond
Ordinance, which would allow Southwest to continue operations
at Love Field.
---------------------------------------------------------------------------
\1\ American Airlines, Braniff Airways, Continental Airlines, Delta
Airlines, Eastern Airlines, Frontier Airlines, Ozark Air Lines and
Texas International Airlines.
---------------------------------------------------------------------------
In response to Southwest's request, the Cities and the DFW
Airport Board filed suit in Federal district court seeking to
exclude Southwest from Love Field. Southwest counterclaimed,
seeking a declaration to remain at Love Field and an injunction
to protect that right. The Texas Aeronautics Commission
intervened in the suit to assert its own regulatory power over
exclusively intrastate air carriers. The Federal judge
presiding over the case rejected the Cities joint position to
deny Southwest access to Love Field, therefore ruling in
Southwest's favor.
In 1974, the Cities and the DFW Airport Board appealed the
decision and the U.S. Court of Appeals for the Fifth Circuit
affirmed the district court ruling. The U.S. Supreme Court
declined to hear an appeal.
In 1975, while the federal district court ruling was on
appeal, the City of Dallas adopted an ordinance to exclude all
commercial airlines from Love Field. The ordinance made it a
criminal offense for a certificated airline to land or takeoff
at Love Field. Southwest challenged the ordinance in Federal
district court. The Federal court permanently prohibited
enforcement of the ordinance against Southwest.
Concurrently, DFW through a state court sought to re-litigate
the question of Southwest's right to use Love Field. The
Federal court then issued an order prohibiting interested
parties from re-litigating the 1968 Concurrent Bond Ordinance,
therefore allowing Southwest to continued use and access to
Love Field.
In 1977, DFW appealed this ruling to the Fifth Circuit Court
of Appeals. The Fifth Circuit affirmed the ruling of the
district court. The Supreme Court again declined to hear an
appeal.
In 1978, Congress passed the Airline Deregulation Act of
1978. Southwest viewed deregulation as an opportunity to become
an interstate air carrier, and soon thereafter, launched its
first interstate service, between Houston, Texas and New
Orleans, Louisiana.
In 1979, Southwest filed an application with the now defunct
Federal Civil Aeronautics Board (CAB) for authority to fly
between Dallas Love Field and New Orleans. In response, DFW and
American Airlines filed objections with the CAB. The CAB
invoked the 1968 Concurrent Bond Ordinance as a basis for
denying Southwest the right to fly between Love Field and
points outside the State of Texas. However, after subsequent
hearings, the CAB granted Southwest permanent authority to fly
in the Love Field to New Orleans market.
In that same year, Congressman Jim Wright, then-House
Majority Leader, secured an amendment to the International Air
Transportation Competition Act of 1979. The amendment
prohibited commercial air service between Love Field and any
point outside the State of Texas. The provision was changed in
conference with the Senate. The compromise, commonly known
today as the ``Wright Amendment,'' limits the geographical
region which Southwest Airlines is legally permitted to serve
out of its home base at Dallas Love Field.
The Wright Amendment remained in place, unchanged, until
1996, when Legend Airlines sought to begin interstate service
from Love Field. Legend filed a petition to operate pursuant to
the exception in the Wright Amendment that appeared to permit
unrestricted interstate service by airlines operating aircraft
with a seating capacity of less than 56 passengers. In
response, however, the Department of Transportation's (DOT)
Office of General Counsel issued an opinion stating that the
Wright Amendment's exception only applied to aircraft that were
originally configured to hold fewer than 56 passengers. The
following year, Congress adopted what is known as the ``Shelby
Amendment'' as part of the Department of Transportation and
Related Agencies Appropriations Act of 1998.
The Shelby Amendment specifies that the Wright Amendment's 56
passenger exception includes ``any aircraft, except aircraft
exceeding gross aircraft weight of 300,000 pounds, reconfigured
to accommodate 56 or fewer passengers if the total number of
passenger seats installed on the aircraft does not exceed 56.''
In addition, the Shelby Amendment added Kansas, Alabama and
Mississippi to the list of States previously included by the
Wright Amendment. On November 30, 2005, the Transportation,
Treasury, Housing and Urban Development, the Judiciary, the
District of Columbia, and Independent Agencies Appropriations
Act of 2006 was enacted and signed into law. (P.L. 109-115).
Section 181 of that law amended section 29(c) of the
International Air Transportation Competition Act of 1979,
adding the State of Missouri to the list of Wright Amendment
exempted states.
In March 2006, at the urging of some members of Congress, the
Cities of Dallas and Fort Worth passed resolutions requesting
Congress provide them time to develop a local solution. As this
dispute has been debated for many years in Congress, Members
believed that a local solution was needed, requiring input from
all of the stakeholders. On June 15, 2006, the mayors of Dallas
and Fort Worth and other officials held a press conference to
announce that the Cities, the DFW Airport Board, Southwest, and
American Airlines had reached an agreement that would lead to
the repeal of the Wright Amendment.
On July 11, 2006, representatives of the Cities, DFW
International Airport Board, American Airlines, and Southwest
signed, executed and finalized the local agreement.
The Love Field Agreement
WHEREAS, certain Members of the United States Congress have
introduced legislation to either repeal or further modify the
restrictions of the Wright Amendment, as amended by the 1997
Shelby Amendment and the 2005 Amendment (herein referred to as
the ``Wright Amendment''), or prohibit commercial air passenger
service at Dallas Love Field Airport (``Love Field''); and
WHEREAS, certain Congressional leaders informed the Cities
of Dallas and Fort Worth (collectively, the ``Cities'') that it
would be preferable for the Cities to present a local solution
for addressing airport issues in the North Central Texas region
and particularly, in the Dallas/Fort Worth metropolitan area,
prior to any further action being taken by Congress that would
directly impact aviation services in the region; and
WHEREAS, in response to various pending and proposed
Congressional actions that would further affect, modify, or
repeal the Wright Amendment, the City Councils of Dallas and
Fort Worth, on March 8, 2006 and March 7, 2006, respectively,
passed a Concurrent Resolution (identified as Dallas Resolution
No. 06-0870 and Fort Worth Resolution No. 3319-03-2006),
requesting members of the United States Congress to refrain
from taking any action regarding, or making any further
amendments to, the Wright Amendment in order to allow the
Cities an opportunity to work towards a local solution for
addressing airport issues in the North Central Texas region,
and to present a mutually agreed upon plan to the Congress for
its consideration; and
WHEREAS, the City of Dallas, pursuant to Resolution No. 06-
0997, adopted April 6, 2006, commissioned an Impact Analysis/
Master Plan Update for Love Field by DMJM Aviation, Inc., to
provide updated information and analysis as to aircraft noise,
air quality, traffic impact, and economic impact at Love Field
if the Wright Amendment were repealed or substantially
modified; and
WHEREAS, the Love Field Impact Analysis Update prepared by
DMJM Aviation, Inc. and GRA, Inc. found that, in the absence of
the Wright Amendment, the overall impacts of operating 20 gates
at Love Field under a ``No Wright Amendment scenario'' are the
most comparable to the environmental thresholds agreed to and
established in the 2001 Master Plan/Impact Analysis 32 gate
scenario with the Wright Amendment in place; and
WHEREAS, earlier this year, the Honorable Laura Miller,
Mayor of Dallas, and the Honorable Mike Moncrief, Mayor of Fort
Worth, held a series of meetings with interested parties in an
effort to reach a local agreement regarding Love Field that
would end the prolonged and divisive controversies between the
two Cities and that would serve and protect the interests of
all citizens of the Dallas-Fort Worth area, including residents
living in the vicinity of Love Field, as well as business,
consumer, and other constituencies affected by the Love Field
controversies; and
WHEREAS, after investigation and analysis of the available
facts and giving due consideration to the economic,
environmental, and personal welfare and interests of their
respective residents, the general public, and the holders of
DFW Airport Joint Revenue Bonds, the Cities of Dallas and Fort
Worth conferred, deliberated, and agreed to a local solution
regarding the Wright Amendment and related matters that best
serves such interests given the likelihood that Congress could
take action to repeal or substantially modify the Wright
Amendment; and
WHEREAS, the Mayors, in consultation with other leaders in
the two cities, first were able to reach a basic agreement
between themselves and with representatives of the Dallas/Fort
Worth International Airport Board (``DFW Board''); and
WHEREAS, the Mayors, representatives of the DFW Board, and
other governmental officials then met separately with Southwest
Airlines and American Airlines to advise those airlines that
the local governments would announce a local solution and
recommend it to Congress and that they wanted the airlines to
consent to, and endorse, the local solution; and
WHEREAS, the Mayors and representatives of the DFW Board
thereafter conducted certain limited negotiations separately
with Southwest Airlines and American Airlines; and
WHEREAS, Southwest Airlines and American Airlines
concluded, separately, that the local solution reached among,
and urged upon them by, the local governments would be
favorably received by the Congress, and that under the
circumstances presented, the airlines should support the effort
of the Cities and the DFW Board and acquiesce in, and agree to
support, the local solution; and
WHEREAS, the City Councils of Dallas and Fort Worth, on
June 28, 2006 and July 11, 2006, respectively, passed a
Concurrent Resolution (identified as Dallas Resolution No. 06-
1838 and Fort Worth Resolution No. 3386-07-2006) and the DFW
Board on June 29, 2006 passed Resolution No. 2006-06-210,
approving the Joint Statement signed by the City of Dallas,
City of Fort Worth, Southwest Airlines, American Airlines, and
the DFW Board on June 15, 2006, authorizing the execution of
this Contract between the Parties incorporating the substance
of the Joint Statement, and requesting the United States
Congress to enact legislation consistent therewith;
Therefore, the Parties agree as follows:
article i
1. The City of Dallas, the City of Fort Worth, Southwest
Airlines, American Airlines, and DFW Board, (herein, the
``Parties,'') agree to seek the enactment of legislation to
allow for the full implementation of this Contract including,
but not limited to, amending section 29 of the International
Air Transportation Competition Act of 1979, more commonly known
as the ``Wright Amendment'' and ultimately effect its repeal as
follows:
a. To immediately allow airlines serving Love Field
to offer through ticketing between Love Field and any
destinations (including international destinations)
through any point in Texas, New Mexico, Oklahoma,
Kansas, Arkansas, Louisiana, Mississippi, Missouri, and
Alabama, and to market such services;
b. Except as provided herein, to eliminate all the
remaining restrictions on air service from Love Field
after eight years from the enactment of legislation;
and
c. To limit charter flights as set forth in Article
II, Section 16 of this Contract.
2. The Parties agree that non-stop international commercial
passenger service to and from the Dallas-Fort Worth area shall
be limited exclusively to DFW International Airport (``DFW
Airport''). The Cities shall work jointly to encourage all such
flights into DFW Airport.
3. The Parties agree that consistent with a revised Love
Field Master Plan, based upon the 2006 Love Field Impact
Analysis Update prepared by DMJM Aviation, Inc., the number of
gates available for passenger air service at Love Field will
be, as soon as practicable, reduced from the 32 gates
envisioned in the 2001 Love Field Master Plan to 20 gates and
that Love Field will thereafter be limited permanently to a
maximum of 20 gates.
a. Airlines may not subdivide a ``gate.'' A gate
shall consist of one passenger hold room and one
passenger loading jet bridge supporting one aircraft
parking space, and no hardstand operations, except as
allowed herein, shall be permitted. Nothing shall
preclude any airline from utilizing hardstands for RON
parking, maintenance, training, or for irregular
operations (i.e. flights that were scheduled originally
for one of the twenty available gates and cannot be
accommodated thereon due to weather, maintenance or
unforeseen emergencies), or other uses that do not
involve passenger air service.
b. American Airlines and Southwest Airlines agree to
voluntarily surrender gate rights under existing leases
in order to reduce the number of gates as necessary to
implement this agreement. During the four year period
from the date the legislation as provided herein is
signed into law: Southwest Airlines shall have the
preferential use of 15 gates under its existing lease
to be used for passenger operations; American Airlines
shall have the preferential use of 3 gates under its
existing lease to be used for passenger operations; and
ExpressJet Airlines, Inc., shall have the preferential
use of 2 gates under its existing lease to be used for
passenger operations. Thereafter, Southwest Airlines
shall have the preferential use of 16 gates under its
existing lease to be used for passenger operations;
American Airlines shall have the preferential use of 2
gates under its existing lease to be used for passenger
operations; and ExpressJet Airlines, Inc., shall have
the preferential use of 2 gates under its existing
lease to be used for passenger operations. In
consideration of Southwest Airlines' substantial
divestment of gates at Love Field and the need to
renovate or reconstruct significant portions of the
concourses, Southwest Airlines shall have the sole
discretion (after consultation with the City) to
determine which of its gates it uses within its
existing leasehold at Love Field during all phases of
reconstruction. Upon the earlier of (i) the completion
of the concourse renovation, or (ii) 4 years from the
date the legislation as provided herein is signed into
law, all Parties agree that facilities will be modified
as necessary, up to and including demolition, to ensure
that Love Field can accommodate only 20 gates for
passenger service. To the extent a new entrant carrier
seeks to enter Love Field, the City of Dallas will seek
voluntary accommodation from its existing carriers to
accommodate the new entrant service. If the existing
carriers are not able or are not willing to accommodate
the new entrant service, then the City of Dallas agrees
to require the sharing of preferential lease gates,
pursuant to Dallas' existing lease agreements. To the
extent that any existing airline gates leased at Love
Field revert to the City of Dallas, these gates shall
be converted to common use during the existing term of
the lease.
4. The City of Dallas agrees that it will negotiate a
voluntary noise curfew at Love Field precluding scheduling
passenger airline flights between 11 p.m. and 6 a.m. Southwest
Airlines and American Airlines shall enter into agreements with
respect thereto with the City of Dallas.
5. The City of Dallas agrees that it will significantly
redevelop portions of Love Field, including the modernization
of the main terminal, consistent with a revised Love Field
Master Plan based upon the Love Field Impact Analysis Update
prepared by DMJM Aviation, Inc. (the ``Love Field Modernization
Program'' or ``LFMP''). In addition, the City agrees that it
will acquire all or a portion of the lease on the Lemmon Avenue
facility, up to and including condemnation, necessary to
fulfill its obligations under this Contract. The City of Dallas
further agrees to the demolition of the gates at the Lemmon
Avenue facility immediately upon acquisition of the current
lease to ensure that that facility can never again be used for
passenger service.
The Parties agree that a minimum investment of $150 million
and up to a maximum of $200 million in 2006 dollars (the
``Spending Cap''), as adjusted for inflation, will be made by
the City of Dallas for the LFMP, and that the capital and
operating costs for the LFMP may be recovered through increased
landing fees, space rental charges, or Passenger Facility
Charges (``PFCs''). The Parties contemplate that financing the
LFMP will include both the retirement of existing debt and the
issuance of new debt for the LFMP.
The Spending Cap shall be exclusive of the costs connected
with the acquisition and demolition of the Lemmon Avenue gates
and of the capital costs associated with the development and
construction of a ``people mover'' connector to the DART mass
transit system (``the Connector''). The costs for the
acquisition and demolition of the Lemmon Avenue gates will be
recovered from airport users, but the capital costs for the
Connector may not be included in airline terminal rents or
landing fees, except as expressly provided for herein below.
The City of Dallas may seek approval to use PFC revenues for
the Connector, and Southwest Airlines agrees to support such
application. The City of Dallas shall, in addition, seek State,
Federal, DART, and any other available public funds to
supplement such PFC funds; provided, however, that nothing
herein shall obligate the City of Dallas to undertake the
Connector project. Notwithstanding the preceding, in the event
PFC funds are not approved for the Connector, the City of
Dallas may use airport funds for the Connector; provided,
however, if airport funds are used for the Connector, the City
of Dallas shall be obligated to apply for, and use, PFCs to pay
for PFC eligible portions of the LFMP. In any event, the
combined total spending for both the LFMP and the Connector,
exclusive of PFCs, shall not exceed the Spending Cap, except as
provided immediately below.
In the event that PFCs are not approved for either the
Connector or the LFMP, as provided herein, terminal rents and
landing fees may be used for such improvements, thus exceeding
the Spending Cap; provided, however, that the City shall use
its best efforts to seek and use PFCs, State, Federal, DART,
and any other available public funds (other than City of Dallas
general funds) as the only sources of funding for the Connector
and to avoid impacting terminal rents and landing fees.
Except as otherwise provided herein, capital costs in
excess of the aforementioned Spending Cap that impact terminal
rents and landing fees shall be subject to agreement between
Southwest Airlines and the City of Dallas, except that,
following consultation with Southwest Airlines, the City of
Dallas may proceed with necessary projects required for reasons
of safety, security, normal maintenance and repair, or Federal
mandate, and such costs may be included in terminal rents and
landing fees. The operating reserve of Love Field shall never
exceed one year's operating costs (operating and maintenance
plus debt service) during the term of Southwest Airlines'
lease.
To recover the costs of the LFMP, the City of Dallas shall
negotiate amendments of the Leases of Terminal Building
Premises previously entered into with Southwest Airlines,
American Airlines, and ExpressJet Airlines, Inc., and will also
adopt City ordinances modifying the terminal rents and landing
fees to be paid by airline users of Love Field.
Southwest Airlines and the City of Dallas shall agree on a
phase-in of the LFMP and will decide which party will fund and
manage the construction of the LFMP. Southwest Airlines'
expenditures for its share of the LFMP's capital costs shall be
credited toward the minimum and maximum requirements. To the
extent possible, the LFMP shall be completed by the expiration
of the 8-year period.
6. The Cities agree that they will both oppose efforts to
initiate commercial passenger air service at any area airport
other than DFW Airport (and Love Field, subject to the
provisions contained herein) during the eight-year period.
``Commercial passenger air service'' does not include a
spaceport or air taxi service as defined by Part 135 of the
Federal Aviation Regulations. The Cities agree to jointly
oppose any attempts to repeal or further modify the Wright
Amendment earlier than the eight-year period. To the extent any
other airport within an eighty-mile radius of Love Field seeks
to initiate scheduled commercial passenger service within this
eight-year period, both the Cities agree to work diligently to
bring that service to DFW Airport, or if that effort fails,
then to airports owned by the Cities of Dallas and/or Fort
Worth.
7. The continuation of this Contract beyond December 31,
2006, is conditioned on Congress having enacted legislation
prior thereto, allowing the Parties to implement the terms and
spirit of this Contract. It is the position of the Parties that
Congress should not exempt additional States from the Wright
Amendment during the eight-year period before it is eliminated.
8. This Contract shall not be modified except upon mutual
agreement of all of the Parties.
9. The Cities acknowledge their outstanding DFW Airport
bond covenants, to the extent such covenants are legally
enforceable, and nothing in this Contract is intended to nor
shall contravene such covenants. By the execution of this
Contract, Southwest Airlines does not surrender any of its
rights to operate at Love Field except as explicitly outlined
in this Contract.
10. If Southwest Airlines or its affiliate or code share
partner (except for published/scheduled code share service from
DFW Airport to Midway Airport as of June 14, 2006) chooses to
operate passenger service from another airport within an 80-
mile radius of Love Field in addition to its operations at Love
Field, then for every such gate which Southwest Airlines, its
affiliate or code share partner, operates or uses at another
airport within this radius, Southwest Airlines will voluntarily
relinquish control of an equivalent number of gates at Love
Field, up to 8 gates and such gates shall be made available to
other carriers. If other carriers are not interested in these
gates, then they can be made available to Southwest Airlines
for its use on a common use basis. This requirement to
relinquish gates shall expire in 2025. This provision shall not
apply to a code share partner not operating under Southwest
Airlines' or its affiliates' code at an airport within this 80-
mile radius.
11. If American Airlines or its affiliate or code share
partner chooses to operate passenger service from another
airport within an 80-mile radius of Love Field in addition to
its operations at DFW Airport and Love Field, then for every
such gate which American Airlines, its affiliate or code share
partner, operates or uses at another airport within this radius
except for DFW Airport and Love Field, American Airlines will
voluntarily relinquish control of an equivalent number of gates
at Love Field, up to one and one-half gates and such gates
shall be made available to other carriers. If other carriers
are not interested in these gates, then they can be made
available to American Airlines for its use on a common use
basis. This requirement to relinquish gates shall expire in
2025. This provision shall not apply to a code share partner
not operating under American Airlines' or its affiliates' code
at an airport within this 80-mile radius.
12. Each carrier shall enter into separate agreements and
take such actions, as necessary or appropriate, to implement
its obligations under this Contract. Similarly, the Cities
shall enter into such agreements and take such actions, as
necessary or appropriate, to implement the Contract. All such
agreements and actions are subject to the requirements of law.
Such agreements shall include amendments to: (i) American
Airlines' Love Field terminal lease; and (ii) Southwest
Airlines' Love Field terminal lease. The City of Dallas shall
develop a revised Love Field Master Plan consistent with this
Contract.
13. In the event that Congress at any time, enacts
legislation that repeals the Wright Amendment sooner than the
eight years identified in paragraph 1.b. of Article I. herein,
or authorizes service (except for through ticketing service as
contemplated by paragraph 1.a. of Article I. herein) between
Love Field and one or more domestic or international
destinations other than those currently allowed under the
Wright Amendment during the eight year period, and if Southwest
Airlines or its affiliate or code share partner commences non-
stop service to or from Love Field to a destination not
currently allowed under the Wright Amendment, then Southwest
Airlines will voluntarily relinquish control of 8 gates and
such gates will be made available to other carriers. If other
carriers are not interested in these gates, then they can be
made available to Southwest Airlines for their use on a common
use basis. This provision shall not apply to a code share
partner not operating under Southwest Airlines' or its
affiliates' code. Likewise, in the event that Congress, at any
time, enacts legislation that repeals the Wright Amendment
sooner than the eight years identified in paragraph 1.b. of
Article I. herein, or authorizes service (except for through
ticketing service as contemplated by paragraph 1.a. of Article
I. herein) between Love Field and one or more domestic or
international destinations other than those currently allowed
under the Wright Amendment during the eight year period, and if
American Airlines or its affiliate or code share partner
commences non-stop service to or from Love Field to a
destination not currently allowed under the Wright Amendment,
then American Airlines will voluntarily relinquish control of
half of its gates and such gates will be made available to
other carriers. If other carriers are not interested in these
gates, then they can be made available to American Airlines for
its use on a common use basis. This provision shall not apply
to a code share partner not operating under American Airlines'
or its affiliates' code.
14. The Parties hereby represent to the Congress of the
United States, and to the Citizens of the Dallas-Fort Worth
area that they approve of and support the local solution as set
forth in this Contract. The Parties each separately covenant
that they will support, encourage and seek the passage of
legislation necessary and appropriate to implement the terms
and spirit of this Contract. The Parties each separately
covenant that they will oppose any legislative effort that is
inconsistent with the terms of this Contract.
15. The Parties agree that the final documentation to
implement this local solution shall be consistent with all
Federal rules, regulations and laws. The Parties agree that for
this Contract to be binding, it must be executed by all parties
no later than July 15th, 2006.
16. If the U.S. Congress does not enact legislation by
December 31, 2006, that would allow the Parties to implement
the terms and spirit of this Contract, including, but not
limited to, the 20 gate restriction at Love Field, then this
Contract is null and void unless all parties agree to extend
this Contract.
17. As part of this Contract, the City of Dallas agrees to
grant American Airlines and Southwest Airlines options to
extend their existing terminal leases until 2028.
article ii. additional provisions
1. Subject to Federal Grant Assurances, etc.--Nothing in
this Contract shall require the City of Dallas, the City of
Fort Worth or the DFW Airport Board to take any action that
would result in (i) the loss of eligibility for future Federal
airport grants for either city or the DFW Airport Board or (ii)
FAA disapproval of any Passenger Facility Charge (PFC)
application for either city or the DFW Airport Board, or (iii)
either city or the DFW Airport Board being found to be in non-
compliance with its existing obligations under Federal aviation
law.
2. Funding.--Any capital spending obligations of the City
of Dallas under this Contract for airport projects that require
the expenditure of public funds or the creation of any monetary
obligation shall be limited obligations, payable solely from
airport revenues or the proceeds of airport revenue bonds
issued by or on behalf of the City of Dallas, such revenue
bonds being payable and secured by the revenues derived from
the ownership and operation of Love Field. In order to satisfy
its obligations hereunder, the City of Dallas agrees to use
best efforts to issue and sell revenue bonds in such amounts
and on terms that are commercially reasonable in the credit
markets. Southwest Airlines and American Airlines hereby each
agree to enter into such additional agreements that are
necessary to facilitate the issuance of such revenue bonds,
provided, however, nothing herein shall obligate either airline
to be an obligor or guarantor of such bonds. Neither the
obligations under this Contract nor the obligations with
respect to such revenue bonds shall constitute a debt of the
City of Dallas payable from, or require the payment or
expenditure of funds of the City of Dallas from, ad valorem or
other taxes imposed by the City of Dallas.
3. Venue.--The Parties agree that in the event of any
litigation in connection with this Contract, or should any
legal action be necessary to enforce the terms of this
Contract, exclusive venue shall lie in either Dallas County,
Texas or Tarrant County, Texas.
4. Non-liability for Other Parties' Obligations, Costs, and
Attorneys Fees.--Each Party hereunder shall only be responsible
and liable for its own obligations, costs, and attorneys fees
in connection with the performance of this Contract, or any
dispute or litigation that may arise in connection with this
Contract.
5. Applicable Laws and Representations.--This Contract is
made subject to the provisions of the Charter and ordinances of
the cities of Dallas and Fort Worth, in existence as of the
date hereof, and all applicable State and Federal laws. Each
City, as to itself only, represents and warrants that its
existing Charter and ordinances do not preclude such City from
executing this Contract or performing its obligations under
this Contract in accordance with its terms. American Airlines,
Southwest Airlines and the DFW Board, each as to itself only,
represent and warrant that it has the full power and authority
to enter into this Contract and perform its obligations under
this Contract in accordance with its terms.
6. Effective Date.--Notwithstanding anything to the
contrary herein, the Parties agree that (i) Sections 1, 7, 8,
9, 14, 15, and 16 of Article I. and all Sections of Article II.
shall take effect as of the last date of execution of this
Contract by any of the Parties and (ii) the remaining Sections
of Article I. shall take effect on the date that legislation
that would allow the Parties to implement the terms and spirit
of this Contract is signed into law.
7. Non-severability.
(a) The terms of this Contract are not severable.
Therefore, in the event any one or more of the
provisions contained in this Contract shall for any
reason be held to be invalid, illegal, or unenforceable
in any respect, then this Contract shall be considered
null and void and unenforceable, except as otherwise
may be agreed to by all Parties.
(b) Notwithstanding paragraph (a) hereof, each Party
shall use its best efforts to restore or replace the
affected provisions so as to effectuate the original
intent of the Parties.
8. Counterparts.--This Contract may be executed in any
number of counterparts, each of which shall be deemed an
original and constitute one and the same instrument.
9. Captions.--The captions to the various clauses of this
Contract are for informational purposes only and shall not
alter the substance of the terms and conditions of this
Contract.
10. Successors and Assigns; Sublessees.--This Contract
shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and assigns. Further,
the Parties agree that any sublessee or other entity who
subleases or uses either American Airlines' or Southwest
Airlines' gates at Love Field is subject to and bound by the
terms of this Contract, including, but not limited to,
paragraph 13 of Article I.
11. No Third Party Beneficiaries.--The provisions of this
Contract are solely for the benefit of the Parties hereto; and
nothing in this Contract, express or implied, shall create or
grant any benefit, or any legal or equitable right, remedy, or
claim hereunder, contractual or otherwise, to any other person
or entity.
12. Notices.--All notices required or permitted under this
Contract shall be personally delivered or mailed to the
respective Parties by depositing same in the United States
mail, postage prepaid, at the addresses shown below, unless and
until the Parties are otherwise notified in writing of a new
address by any Party. Mailed notices shall be deemed
communicated as of five days after mailing.
13. Partial Waiver of Governmental Immunity.--The Cities
and the DFW Board, by signing this Contract and to the extent
permitted by law, waive their respective immunity from suit by
the Parties, but only with respect to a suit to enforce this
Contract by a Party seeking a restraining order, preliminary or
permanent injunctive relief, specific performance, mandamus, or
declaratory relief. The Cities and the DFW Board do not waive
any other defense or bar against suit available to the Cities
or the DFW Board.
14. No Individual Liability.--To the extent allowed by law,
no officer, agent, employee, or representative of any of the
Parties shall be liable in his or her individual capacity, nor
shall such person be subject to personal liability arising
under this Contract.
15. Limitation of Remedies.--Under no circumstances shall
any party be liable to any other party hereunder, in contract
or in tort, for monetary damages resulting in whole or in part
for any breach by such party, whether negligent or with or
without fault on its part, of any provision of this contract.
Provided, however (and in exchange for the foregoing sentence),
in the event of any such breach or threatened breach by any
party, all parties agree that each non-breaching party will be
entitled to seek all equitable remedies including, without
limitation, decrees of specific performance, restraining
orders, writs of preliminary and permanent injunction and
mandamus, as well as declaratory relief, to enforce this
contract. Provided, further, as a prerequisite to the filing of
any lawsuit by any party, all parties shall in good faith
submit any dispute to non-binding mediation, which must be
completed within 60 days from the date notice requesting
mediation is communicated pursuant to section 12 of article ii
of this contract.
16. Love Field General Aviation, U.S. Government Flights
and Charter Flights.--Nothing in this Contract is intended to
affect general aviation service at Love Field, including, but
not limited to, flights to or from Love Field by general
aviation aircraft for air taxi service, private or sport
flying, aerial photography, crop dusting, business flying,
medical evacuation, flight training, police or fire fighting,
and similar general aviation purposes, or by aircraft operated
by any agency of the U.S. Government or by any airline under
contract to any agency of the U.S. Government. Charter flights
at Love Field shall be limited to destinations within the 50
United States and the District of Columbia and shall be limited
to no more than ten per month per air carrier except as
otherwise permitted by Section 29(c) of the Wright Amendment.
All flights operated by air carriers that lease terminal gate
space shall depart from and arrive at one of those leased
gates. Charter flights operated by air carriers that do not
lease terminal space may operate from non-terminal facilities
or one of the 20 terminal gates. For the purposes of this
Contract, ``charter flight'' shall have the meaning currently
given in 14 C.F.R. 212.2 (2006). This limitation shall remain
in effect permanently.
17. Entire Agreement.--This Contract embodies the complete
agreement of the Parties hereto relating to the matters in this
Contract; and except as otherwise provided herein, cannot be
modified without written agreement of all the Parties, to be
attached to and made a part of this Contract.
Executed as of this the 11th day of July, 2006.
Legislative History
On November 10, 2005, the Aviation Subcommittee held a
hearing to examine the economic, regional, and national impacts
that repeal of the Wright Amendment would have on the U.S.
aviation system. Those testifying before the Subcommittee were
representatives of American Airlines, Southwest, DFW, the North
Dallas Chamber of Commerce, Love Field Citizens Action
Committee, the Campbell-Hill Aviation Group, Inc., and Eclat
Consulting.
On July 13, 2006, Senator Hutchison introduced S. 3661, ``A
bill to amend section 29 of the International Air
Transportation Competition Act of 1979 relating to air
transportation to and from Love Field, Texas.'' Senators
Cornyn, Inhofe and Harkin originally cosponsored the bill.
On July 19, 2006, the Commerce, Science, and Transportation
Committee met in Executive Session, and the bill, S. 3661, was
ordered to be reported favorably with an amendment in the
nature of a substitute by a roll call vote of 21-1.
Estimated Costs
In compliance with subsection (a)(3) of paragraph 11 of
rule XXVI of the Standing Rules of the Senate, the Committee
states that, in its opinion, it is necessary to dispense with
the requirements of paragraphs (1) and (2) of that subsection
in order to expedite the business of the Senate.
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
July 21, 2006.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3661, a bill to
amend section 29 of the International Air Transportation
Competition Act of 1979 relating to air transportation to and
from Love Field, Texas.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
S. 3661--A bill to amend section 29 of the International Air
Transportation Competition Act of 1979 relating to air
transportation to and from Love Field, Texas
S. 3661 would amend provisions of federal law that set
certain restrictions on commercial air transportation to and
from Love Field, an airport located near the cities of Dallas
and Forth Worth, Texas. Based on information from the
Department of Transportation, CBO estimates enacting S. 3661
would have no significant impact on the federal budget. The
bill would not affect direct spending or revenues.
S. 3661 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act. The
bill would make the necessary changes in federal law to
implement an agreement among the cities of Dallas and Forth
Worth and American and Southwest Airlines. Any costs to those
cities or the state of Texas would be incurred voluntarily.
The CBO staff contact for this estimate is Megan Carroll.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
Because S. 3661 does not create any new programs, the
legislation would have no regulatory impact. The legislation,
as reported, would provide a one-time safety review and
notification option to Congress from the Federal Aviation
Administration (FAA) on the affected airport and airspace,
within a 30-day period. The legislation, as reported, would
have no further affect on the number or types of individuals
and businesses regulated.
NUMBER OF PERSONS COVERED
S. 3661 is expected to increase the air traffic out of the
affected airport, with a resulting increase in passenger
traffic slightly above current levels.
ECONOMIC IMPACT
No negative impact to taxpayers is expected from the
enactment of S. 3661.
PRIVACY
S. 3661 would not have an adverse effect on the personal
privacy of any individuals that would be impacted by this
legislation.
PAPERWORK
The Committee does not anticipate any significant increase
in paperwork burdens as a result of S. 3661.
Section-by-Section Analysis
Section 1. Findings
The findings are a brief review of historical facts
surrounding and leading to the legislation along with an
explanation of the unique and local circumstances surrounding
the issue. The findings in the Committee-passed legislation
were as follows:
(1) The Dallas-Fort Worth region is served by two large
airports, Dallas-Fort Worth International Airport and Love
Field. American Airlines and Southwest each have their
headquarters, respectively, at these two airports.
(2) Dallas-Fort Worth International Airport ranks fourth
nationally and had more than 28 million enplanements in 2005.
Love Field ranks fifty-sixth and had nearly 3 million
enplanements in 2005.
(3) The history of the development and creation of the
Dallas-Fort Worth International Airport and the subsequent use
of Love Field has been one of continuous disagreement, frequent
litigation, and constant uncertainty within the local
communities. As a result of these factors, this has been the
only time that Congress has intervened, with the consent of the
local communities, to promulgate specific rules relating to the
scope of a locally owned airport. Having done so, the dispute
cannot end without a change in federal statutes. Therefore,
Congress recognizes the completely unique historical
circumstances involving these two airport and cities and the
previous unprecedented history of legislation. This legislation
is based on the compelling consensus of the civic parties to
resolve the dispute on a permanent basis, assure the end of
litigation, and establish long-term stability.
(4) In 1979, Congress intervened and passed legislation
known as the Wright Amendment which imposed restrictions at
Love Field limiting service from the airport to points within
the State of Texas and States contiguous to Texas. Congress has
since allowed service to the additional States of Alabama,
Kansas, Mississippi, and Missouri. At the urging of
Congressional leaders, local community leaders have reached
consensus on a proposal for eliminating the restrictions at
Love Field in a manner deemed equitable by the involved
parties. That consensus is reflected in an agreement dated July
11, 2006.
(5) The agreement dated July 11, 2006, does not limit an
air carrier's access to the Dallas Fort Worth metropolitan
area, and in fact may increase access opportunities to other
carriers and communities. It is not Congressional intent to
limit any air carrier's access to either airport.
(6) At the urging of the Civil Aeronautics Board (CAB), the
communities originally intended to create one large
international airport, and close Love Field to commercial air
transportation. Funding for the new airport was, in part,
predicated on the closing of Love Field to commercial service,
and was agreed to by the carriers then serving Love Field.
Southwest, created after the local decision was made, asserted
its rights and as a result a new international airport was
built, and Love Field remained open.
(7) Congress also recognizes that the agreement, dated July
11, 2006, does not harm any city that is currently being served
by these airports, and thus the agreement does not adversely
affect the airline industry or other communities that are
currently receiving service, or hope to receive service in the
future.
(8) Congress finds that the agreement, dated July 11, 2006,
furthers the public interest as consumers in, and accessing,
the Dallas and Fort Worth areas should benefit from increased
competition.
(9) Congress also recognizes that each of the parties was
forced to make concessions to reach an agreement. The two
carriers, Southwest and American Airlines, did so
independently, determining what is in each of their interests
separately. The negotiations between the two communities forced
each carrier to respond, individually, to a host of options,
which ultimately were included, as part of the agreement dated
July 11, 2006.
(10) Nothing in the agreement dated July 11, 2006, is
intended to eliminate the jurisdiction of DOT, the Federal
Aviation Administration and the Transportation Security
Administration with respect to the aviation safety and security
responsibilities of those agencies.
Section 2. Modification of provisions regarding flights to and from
Love Field
The Wright amendment is modified to allow air carriers to
immediately provide ticketing from Love Field to any U.S. or
foreign destination through any other point in Texas, New
Mexico, Oklahoma, Kansas, Arkansas, Louisiana, Mississippi,
Missouri, and Alabama.
In addition, the Wright amendment in its entirety would be
repealed eight years after the date of enactment. The
provisions of this Act remain in effect.
Section 3. Treatment of international non-stop flights to and from Love
Field
This section states that non-stop international flights may
not arrive or depart from Love Field.
Section 4. Charter flights at Love Field
This section states that charter flights at Love Field
would be treated in the same manner in which they are treated
under the current Wright Amendment and would be treated in that
manner in perpetuity.
The Committee notes that the ``commercial passenger air
service'' restriction referred to in section 6 of the agreement
does not include Class IV Part 139 commercial passenger air
service as defined by the Federal Aviation Regulation. The
Committee notes that since ``commercial passenger air service''
is not clearly defined, this section is not intended to allow
the parties of the agreement to work against service at
airports seeking to engage in unscheduled charter passenger
operations for their communities.
Section 5. Agreement of the parties
Subsection (a) states that the agreement of the parties
would be deemed to comply with title 49, United States Code,
and any other competition laws. Subsection (b) would limit
statutory construction so that nothing in this section shall be
construed (1) to limit the obligation of the parties under
existing programs of DOT and FAA relating to aviation safety,
labor, environmental, national historic preservation, civil
rights, small business concerns, veteran's preference, and
disability access, (2) to limit the obligation of the parties
under the existing aviation security programs of the U.S.
Department of Homeland Security and the Transportation Security
Administration at Love Field, Texas, or (3) to authorize the
parties to offer marketing incentives that are in violation of
Federal laws, rules, orders, agreements, and other
requirements. Subsection (c) would set the number of gates at
Love Field to a maximum of 20. Subsection (d) would ensure that
nothing in the agreement would affect general aviation.
Subsection (e) would prohibit DOT or FAA from taking any action
that is inconsistent with the provisions of the agreement.
The Committee notes that the Act and this section are not
intended to affect efforts by other communities within an 80-
mile radius of Love Field in seeking to develop their airport
infrastructure, obtain Federal grants or other Federal funding,
obtain Part 139 certification or meet other Federal
requirements to obtain commercial air service.
Section 6. Jurisdiction
This section states that DOT would have exclusive
jurisdiction with respect to the agreement described in section
5(a).
Section 7. Applicability
Subsection (a) states that this Act would apply only to
actions taken with respect to Love Field, Texas, or
transportation to or from Love Field, Texas, under the
agreement described in section 5(a), and would have no other
application to any other airport. Subsection (b) states that
the provisions of this Act would not take effect, if within 30
days after the date of enactment; the Administrator of the FAA
would determine and notify Congress that aviation operations in
the airspace of Love Field cannot be accommodated in compliance
with FAA safety standards.
Rollcall Votes in Committee
Senator Hutchison offered an amendment in the nature of a
substitute. On a rollcall vote of 21 yeas and 1 nay as follows,
the amendment was adopted:
YEAS--21 NAYS--1
Mr. McCain\1\ Mr. Rockefeller
Mr. Burns
Mr. Lott
Mrs. Hutchison
Ms. Snowe
Mr. Smith\1\
Mr. Ensign
Mr. Allen
Mr. Sununu\1\
Mr. DeMint\1\
Mr. Vitter\1\
Mr. Inouye
Mr. Kerry\1\
Mr. Dorgan\1\
Mrs. Boxer
Mr. Nelson of Florida\1\
Ms. Cantwell
Mr. Lautenberg\1\
Mr. Nelson of Nebraska
Mr. Pryor
Mr. Stevens
\1\By proxy
Additional, Supplemental, or Minority Views deg.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
INTERNATIONAL AIR TRANSPORTATION COMPETITION ACT OF 1979
Sec. 29. (a) Except as provided in subsection (c),
notwithstanding any other provision of law, neither the
Secretary of Transportation, the Civil Aeronautics Board, nor
any other officer or employee of the United States shall issue,
reissue, amend, revise, or otherwise modify (either by action
or inaction) any certificate or other authority to permit or
otherwise authorize any person to provide the transportation of
individuals, by air, as a common carrier for compensation or
hire between Love Field, Texas, and one or more points outside
the State of Texas, except (1) charter air transportation not
to exceed ten flights per month, and (2) air transportation
provided by commuter airlines operating aircraft with a
passenger capacity of 56 passengers or less.
(b) Except as provided in subsections (a) and (c),
notwithstanding any other provision of law, or any certificate
or other authority heretofore or hereafter issued thereunder,
no person shall provide or offer to provide the transportation
of individuals, by air, for compensation or hire as a common
carrier between Love Field, Texas, and one or more points
outside the State of Texas, except that a person providing
service to a point outside of Texas from Love Field on November
1, 1979, may continue to provide service to such point.
(c) Subsections (a) and (b) shall not apply with respect
to, and it is found consistent with the public convenience and
necessity to authorize, transportation of individuals, by air,
on a flight between Love Field, Texas, and one or more points
within the States of Louisiana, Arkansas, Oklahoma, New Mexico,
Missouri, and Texas by an air [carrier, if (1) such air carrier
does not offer or provide any through service or ticketing with
another air carrier or foreign air carrier, and (2) such air
carrier does not offer for sale transportation to or from, and
the flight or aircraft does not serve, any point which is
outside any such State. Nothing in this subsection shall be
construed to give authority not otherwise provided by law to
the Secretary of Transportation, the Civil Aeronautics Board,
any other officer or employee of the United States, or any
other person.] carrier. Air carriers and, with regard to
foreign air transportation, foreign air carriers, may offer for
sale and provide through service and ticketing to or from Love
Field, Texas, and any domestic or foreign destination through
any point within Texas, New Mexico, Oklahoma, Kansas, Arkansas,
Louisiana, Mississippi, Missouri, or Alabama.
(d) This section shall not take effect if enacted after the
enactment of the Aviation Safety and Noise Abatement Act of
1979. \2\
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\2\ Section 29 would be repealed 8 years after the date of
enactment of the bill.
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