BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.
__________________________________________
Complaint of )
)
JetBlue Airways Corporation ) Dockets DOT-OST-2023-0028
) DOT-OST-2023-0151
against )
)
The Kingdom of the Netherlands )
and )
The European Union )
)
under the International Air Transportation Fair )
Competitive Practices Act, as amended )
__________________________________________)

REPLY OF JETBLUE AIRWAYS CORPORATION

Communications with respect to this document should be sent to:

Robert C. Land
Senior Vice President, Government
Affairs and Associate General Counsel

Adam L. Schless
Director
Aircraft Transactions and
International Counsel

Reese Davidson
Director
International and Regulatory Counsel

JETBLUE AIRWAYS CORPORATION

1212 New York Avenue, NW
Suite 1212
Washington, D.C. 20005
(202) 715-2565
Robert.Land@jetblue.com
Adam.Schless@jetblue.com
Reese.Davidson@jetblue.com

October 20, 2023

 BEFORE THE
U.S. DEPARTMENT OF TRANSPORTATION
WASHINGTON, D.C.
__________________________________________
Complaint of )
)
JetBlue Airways Corporation ) Dockets DOT-OST-2023-0028
) DOT-OST-2023-0151
against )
)
The Kingdom of the Netherlands )
and )
The European Union )
)
under the International Air Transportation Fair )
Competitive Practices Act, as amended )
__________________________________________)

REPLY OF JETBLUE AIRWAYS CORPORATION

No party to this proceeding has disputed that, as detailed in the complaint filed by JetBlue

Airways Corporation (JetBlue) on September 28, 2023, the Government of the Netherlands

(Dutch Government) stands in flagrant violation of the U.S.-EU Open Skies agreement

(Agreement) through its implementation of a noise mitigation regulatory scheme (the

Experimental Regulation) at Amsterdam Airport Schiphol (AMS) that will result in a drastic

reduction in operations at the airport. 1 The Experimental Regulation fails to adhere to legally

binding procedures as required under the Agreement, provides no mechanism for new entrant

access and, absent Department intervention, will result in the expulsion of JetBlue, and our new

impactful low-fare service, from the U.S.-Netherlands air services market. 2

1
KLM, in its answer filed in these dockets on October 13, 2023 (KLM Answer), does not dispute that the Dutch
Government is in violation of the Agreement. Additionally, neither the Dutch Government, which is responsible for
the perpetuation of this situation, nor the European Union (EU), which is responsible for ensuring that the Dutch
Government complies with the Agreement, saw fit to file an answer to JetBlue’s complaint or a related complaint
filed by Airlines for America (A4A) in Docket DOT-OST-2023-0148 on September 22, 2023 (A4A IATFCPA
Complaint).
2
JetBlue acknowledges and appreciates the October 13, 2023, answers filed by the JetBlue Master Executive
Council, Air Line Pilots Association, International, and TWU Local 579 in these dockets, as well as the October, 20,
2023, reply filed by the Air Line Pilots Association, International, in Docket DOT-OST-2023-0148, in support of
 Neither has any party to this proceeding disputed that the U.S. Government, the EU, and

the Dutch Government should urgently convene a special session of the U.S.-EU Joint

Committee to seek a resolution of the Dutch Government’s violation of the Agreement. JetBlue

filed its complaint, however, because intergovernmental consultations alone are highly unlikely

to resolve this situation before JetBlue receives confirmation of its expulsion from AMS. This

unprecedented action by the Dutch authorities requires nothing less than an immediate,

proportional response from the Department. The time has come for the Department, using the

tools that Congress provided it under the International Air Transportation Fair Competitive

Practices Act, as amended, 49 U.S.C. § 41310 (IATFCPA), to take swift and decisive action to

bring the Dutch Government into compliance with the Agreement and demonstrate that non-

compliance will result in consequences. As explained below, JetBlue urges the Department to

begin preparations to impose a series of countermeasures upon JetBlue’s confirmation that it will

not receive an allocation of two AMS slots pairs for the IATA Summer 2024 scheduling season.

Underscoring the urgent need for DOT intervention is the fact that the Experimental

Regulation takes effect on March 31, 2024, which coincides with the beginning of the Summer

2024 scheduling season. Moreover, in less than two weeks, Airport Coordination Netherlands

(ACNL), the slot coordinator for AMS, will publish its Summer 2024 allocations. JetBlue

reasonably expects that it will not be allocated any slots. 3 The elimination of JetBlue’s low-fare

JetBlue’s complaint and calling on the Department to invoke its authority under the IATFCPA to address the Dutch
Government’s non-compliance with the Agreement. JetBlue urges the Department to consider the adverse impact
that an expulsion of JetBlue from AMS, and reduced services by other U.S. carriers, will have on the aviation
professionals represented by these unions.
3
Indeed, on September 1, 2023, the same day that the Dutch Government announced it would be moving ahead with
the Experimental Regulation, ACNL advised JetBlue there was a near mathematical certainty that JetBlue would
receive no slots for the Summer 2024 scheduling season.
AMS service would leave consumers with fewer choices, less competition and higher average

fares. 4

Although all U.S. passenger airlines with scheduled operations at AMS are selling tickets

now for travel on or after March 31, 2024, and thus will be harmed by the implementation of the

Experimental Regulation through a forced reduction in services, JetBlue is uniquely positioned

among such airlines because it faces actual expulsion from the airport and, by extension, the

U.S.-Netherlands air services market. The forced exit of JetBlue, the only U.S.-low cost carrier

operating in both the U.S.-Netherlands market specifically and the transatlantic market more

broadly, would harm consumers by eliminating the substantial fare savings detailed in JetBlue’s

complaint.

As the Department has previously warned the Dutch Government, “[a]ny indication that

the Government of the Netherlands has precluded open entry at AMS would jeopardize the

predicate on which the Department grants antitrust immunity to multiple joint ventures operating

in the U.S.-Amsterdam market.” 5 The very basis for the Department’s requirement that an open

skies agreement be in place before considering an application for antitrust immunity is to ensure

the existence of conditions for new entry to be timely, likely, and sufficient to counter

competitive harm that might otherwise result from immunized coordination. By effectively

blocking new entry, the Experimental Regulation calls into question not only prior grants of

4
JetBlue joined, and continues to support, the A4A IATFCPA Complaint. JetBlue also shares the view of all parties
that filed answers in response to JetBlue’s complaint that intergovernmental consultations must be convened
urgently in pursuit of an immediate resolution of the serious harm that is looming for JetBlue and the other U.S.
carriers that serve AMS. As explained in JetBlue’s complaint, however, the harm to JetBlue, which is a new entrant
at AMS, is unique: only JetBlue among U.S. carriers faces total expulsion from AMS.
5
Letter from Cindy A. Baraban, Deputy Ass’t Sec. for Aviation & International Affairs, U.S. Dep’t of Transp., to
Jan Hendrik Dronkers, Secretary General, Ministry of Infrastructure & Water Management, The Netherlands (Aug.
18, 2023) (Baraban Letter) (emphasis added). JetBlue understands that the Dutch Government never provided any
formal written response to this Department letter before “doubling down” and announcing, on September 1, 2023,
that it was moving ahead with the Experimental Regulation.
antitrust immunity, but whether the Agreement, as it relates to the Netherlands, continues to

satisfy the elements necessary to be deemed an open skies agreement. 6

The stakes in this proceeding could not be higher. The Department has long viewed the

denial of a U.S. carrier’s right to operate services provided for under an air transport agreement

“as a most serious violation.” 7 If the Dutch Government is allowed to effectively expel new

entrant JetBlue from AMS without facing any consequential and proportional countermeasures

from the Department, other governments may decide to follow suit, unilaterally withholding

market access for U.S. carriers in contravention of commitments made in air transport

agreements with the United States. The Department must take decisive action now in defense of

U.S. carriers’ bilateral traffic rights and U.S. aviation workers.

The U.S. Government recently asked the European Commission’s Directorate for

Mobility and Transport for a special session of the U.S.-EU Joint Committee to discuss this

matter, to be held during the week of October 23, 2023. JetBlue understands the Dutch

Government has refused to make itself available during that timeframe, and has instead proposed

that such a meeting be held in mid-November, which would be after ACNL’s allocation of slots

for the Summer 2024 scheduling season, the first step in implementing the Experimental

Regulation (which will decrease annual aircraft movements from 500,000 to 460,000). 8

6
Order 92-8-13 (Aug. 5, 1992), at 7-8 (establishing basic criteria for the Department’s definition of “open skies,”
including open entry on all routes, and explaining that a determination of whether such criteria have been met
“would always be subject to public interest considerations, including factors in an individual case that could
seriously affect the ability of U.S. carriers to realize the benefits of an open-skies agreement, such as access to key
airports”) (emphasis added).
7
Order 93-11-22 (Nov. 8, 1993), at 6.
8
Absent Department intervention, this drastic decrease in authorized aircraft movements will involve the
confiscation of U.S. incumbent carriers’ historic slots at AMS. American Airlines has estimated that such
confiscation will cost it “tens of millions of dollars in lost revenue opportunity.” Answer of American Airlines, Inc.
(Oct. 13, 2023) in Docket DOT-OST-2023-0148. With no fewer than four U.S. passenger airlines scheduled to
operate a total average of up to 26 daily flights in the U.S.-AMS market for travel during the Summer 2024
scheduling season, the overall adverse economic impact of the Experimental Regulation on U.S. carriers, and
resulting consumer harm, will be substantial.
 JetBlue supports intergovernmental consultations so long as the Dutch Government is

making good-faith efforts to resolve this situation – which begins with the Dutch Government

promptly participating in a Joint Committee special session and not deferring consultations until

after Summer 2024 slots have been allocated and U.S. airlines are faced with the prospect of

having to cancel flights and re-accommodate impacted passengers. JetBlue sincerely hopes that

the Dutch Government can be brought into compliance with the Agreement through the Joint

Committee process. However, given the Dutch Government’s persistent unwillingness to alter

course, non-cooperation with attempts to promptly convene a special session of the Joint

Committee, and failure to provide any explanation to either JetBlue or the Department on how

new entrant access will be assured under the Experimental Regulation, it would be unrealistic at

this late stage to place hope in consultations alone.

JetBlue therefore urges the Department to immediately invoke its authority under the

IATFCPA, either independent of or concurrent with the consultative process, so that it is

prepared to promptly enact countermeasures if this situation is not fully resolved by November 2,

2023 (the date by when Summer 2024 allocations must be made under the IATA calendar of

coordination activities that implement the Worldwide Airport Slot Guidelines (WASG)).

Consultations alone do not constitute remedial countermeasures under the IATFCPA. To the

contrary, Congress gave the Department very specific tools under the IATFCPA, to be used in

conjunction with consultations, and the Department has repeatedly pursued both paths in tandem.

As highlighted in JetBlue’s complaint, there are a range of countermeasures that the

Department could impose under the IATFCPA that would be proportional to the threatened harm

facing JetBlue under the Dutch Government’s irresponsible and illegal implementation of the

Experimental Regulation. Among these are a requirement that KLM file its U.S. schedules for
the Summer 2024 scheduling season pursuant to 14 C.F.R. Part 213 in order for the Department

to identify those services that should be suspended pending a resolution of this situation. 9 Given

that JetBlue faces imminent expulsion from slot-controlled AMS (the only Dutch airport that

provides U.S. passenger carriers with access to the U.S.-Netherlands market), the only

proportional schedule reduction would be a suspension of all KLM services at John F. Kennedy

International Airport (JFK), 10 the sole slot-controlled international airport in the United States,

and where KLM has benefitted from slots created and overseen by the U.S. Government, and

allocated in a manner consistent with the WASG. 11

Alternatively, the Department should actively consider imposing a limitation on the

antitrust immunity granted to KLM and the Blue Skies alliance, carving out the U.S.-AMS

9
KLM argues that countermeasures would unfairly “punish” it for its government’s actions. Countermeasures,
however, are not a “punishment” but rather a proportional mechanism to ensure that, in this case, KLM, the Dutch
national carrier, does not derive a commercial and competitive benefit from its government’s illegal action. Absent
specific countermeasures, KLM will be able to maintain (and even potentially increase) its existing level of U.S.
services while JetBlue is excluded from, and other U.S. carriers are forced to reduce their service levels in, the U.S.-
Netherlands market. As further evidence of their non-punitive nature, countermeasures would only need to remain in
effect until the Dutch Government complies with the Agreement.
KLM also maintains that any DOT limitation on the number of flights KLM may operate to the United States would
actually help the Dutch authorities’ efforts to reduce AMS flying (KLM Answer at 10-11), but such an argument is
based on a false choice. After the Experimental Regulation becomes effective, KLM will continue to hold an
enormous number of AMS slots. Absent DOT countermeasures, the fact that KLM’s total slot holdings will be
reduced will not prevent it from maintaining (and even potentially increasing) the number of flights it operates to the
United States because it could simply shift slots from non-U.S. routes to support KLM’s U.S. flying.
10
Such a countermeasure would not be truly proportional because KLM would continue to participate in the JFK-
AMS market through flights operated by Delta, its antitrust-immunized joint venture partner. Under that joint
venture, KLM is indifferent to whether it or Delta operates a particular flight, so KLM could not claim that such a
countermeasure would result in KLM’s expulsion from JFK (in contrast to JetBlue’s imminent expulsion from
AMS).
11
As noted in JetBlue’s complaint, and in contrast to the slot administrative predictability, transparency and
accommodations that KLM has benefited from at JFK, ACNL has unreasonably interpreted the EU Slot Regulation
(Council Regulation (EEC) No. 95/93) to reject JetBlue’s proposed leasing of slots from a codeshare or interline
partner with a presence at AMS. This interpretation, standing alone, constitutes unreasonable and unjustifiable
discrimination against a U.S. new entrant carrier. The FAA routinely allows airline alliance partners to utilize each
other’s slot holdings to optimize the timing of their operations at slot-controlled JFK. ACNL also has the discretion,
under the WASG, to re-categorize ad hoc slots (such as those allocated to JetBlue for the Summer 2023 scheduling
season and which it currently uses to serve AMS) as eligible for historic status, but has inexplicably failed to do so,
further exacerbating the unjustifiable and unreasonable access restriction faced by JetBlue.
market from the scope of such immunity until the Dutch Government satisfactorily restores the

“predicate” necessary for the limitation’s removal, i.e., the restoration of conditions that will

allow for new entry to be timely, likely, and sufficient to deliver meaningful competition to the

alliance. 12 If the Department decides not to impose either a scheduling reduction on KLM or a

Blue Skies alliance immunity carve-out for the U.S.-AMS market, then at a minimum the

Department should require that KLM transfer, as a condition of continuing to enjoy the

extraordinary privilege of immunity from the U.S. antitrust laws, at least two AMS slot pairs for

the Summer 2024 scheduling season to JetBlue. Such a slot transfer would allow JetBlue to

continue providing competition in the market with its low fares and award-winning service –

competition that has already benefitted thousands of U.S.-AMS passengers.

In conclusion, the Dutch Government would like nothing more than for the Department

to limit its engagement on this matter to well-intentioned participation in a potentially protracted

series of intergovernmental consultations (presumably to be convened at the Dutch

12
KLM argues that “DOT has expressed deep skepticism about the efficacy of carve outs” (KLM Answer at 12), but
that argument misses JetBlue’s point. In considering whether to initially grant immunity where a proposed alliance
would hold a high combined share of a nonstop city-pair market with little actual or potential competition, the
Department has considered – and in some cases imposed – a city-pair-specific carve-out from its grant of immunity.
Here, the Department should consider imposing a condition or limitation on the Blue Skies alliance’s existing grant
of immunity relating to AMS on the basis that the predicate for granting antitrust immunity for coordination in the
U.S.-AMS market no longer exists as a result of the Dutch Government’s violation of the Agreement. This has
nothing to do with whether the Blue Skies alliance’s joint venture is sufficiently “metal neutral,” as KLM argues. Id.
In any event, the Department has essentially accepted the premise that revisiting the scope of immunity granted to
the Blue Skies alliance is among the tools at the Department’s disposal for resolving this situation. See Baraban
Letter, supra (noting that the Dutch Government’s prevention of new entrant access at AMS “would jeopardize the
predicate” on which antitrust immunity was granted for alliance coordination in the U.S.-AMS market). JetBlue
suggests that the Department take the logical and necessary next step and consider, among a range of potential
countermeasures, attaching a condition to Order 2019-11-14 that excludes the U.S.-AMS market from the scope of
antitrust immunity granted to the Blue Skies alliance.
As to KLM’s argument that such a carve-out would be “catastrophic” and “in no way proportional to any harm
JetBlue might suffer” (KLM Answer at 11), KLM overlooks the Experimental Regulation’s adverse economic
impact on the U.S. airline industry as a whole and the trade position of the United States with respect to the
Netherlands specifically. The true costs resulting from implementation of the Experimental Regulation – for U.S.
carriers, airline employees and customers – will likely vastly exceed the revenue impact to KLM if it is prevented
from enjoying immunized coordination with its Blue Skies alliance partners in the U.S.-AMS market pending a
resolution of this situation.
Government’s leisurely convenience 13), while JetBlue faces expulsion from AMS and other U.S.

carriers are forced to reduce the number of flights they operate at AMS. This complaint presents

a clear-cut, indisputable case of an egregious violation of the Agreement, which in turn

constitutes a per se “unjustifiable or unreasonable restriction on access,” precisely the type of

conduct that the IATFCPA is intended to remedy. Nothing less than swift, decisive Departmental

action, in the form of the proportional countermeasures JetBlue has described herein, will

constitute a sufficient response. JetBlue therefore respectfully requests that the Department

expeditiously prepare to implement proportional countermeasures absent immediate action by

the Dutch Government to return to compliance with the Agreement, including by assuring

JetBlue’s continuing ability to operate at least two roundtrip flights per day at AMS during the

Summer 2024 scheduling season and beyond.

Respectfully submitted,

Robert C. Land
Senior Vice President, Government
Affairs and Associate General Counsel

13
KLM appears to share its government’s lack of urgency, even going so far as to suggest that the Department
refrain from imposing countermeasures in deference to the Dutch political calendar (until after forthcoming Dutch
elections) because that may create “breathing room.” KLM Answer at 13. JetBlue respectfully notes that it is about
to experience a more serious “breathing” problem than KLM or its government, one that will occur upon JetBlue’s
imminent receipt of a death sentence for its existing services at AMS.
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served by electronic mail this 20th day of
October, 2023, on the following:
Airlines for America kglatz@airlines.org;
dmullen@airlines.org;
rroberts@airlines.org;
Alaska dheffernan@cozen.com;
rwelford@cozen.com;
ALPA david.semanchik@alpa.org;
American robert.wirick@aa.com;
molly.wilkinson@aa.com;
bruce.wark@aa.com;
brent.alex@aa.com;
Atlas Air sascha.vanderbellen@atlasair.com;
Delta chris.walker@delta.com;
steven.seiden@delta.com;
European Union kristian.hedberg@eeas.europa.eu;
FedEx Express anne.bechdolt@fedex.com;
brian.hedberg@fedex.com;
Hawaiian perkmann@cooley.com;
JetBlue MEC, ALPA chris.kenney@alpa.org;
KLM charles.donley@pillsburylaw.com;
edward.sauer@pillsburylaw.com;
Netherlands Embassy/ Netherlands Ministry lilian-van.ek@minbuza.nl;
of Infrastructure and Water Management lieske.streefkerk@minbuza.nl;
Polar kevin.montgomery@polaraircargo.com;
Southwest leslie.abbott@wnco.com;
bobkneisleyLLC@gmail.com;
Spirit dkirstein@yklaw.com;
jyoung@yklaw.com;
TWU Local 579 tbest@579twu.org;
United dan.weiss@united.com;
steve.morrissey@united.com;
amna.arshad@freshfields.com;
UPS dsmalls@ups.com;
State/FAA/DOT/Commerce gomezHN@state.gov;
moffatas@state.gov;
john.s.duncan@faa.gov;
carol.petsonk@dot.gov;
benjamin.taylor@dot.gov;
brett.kruger@dot.gov;
robert.finamore@dot.gov;
joseph.landart@dot.gov;
kristen.gatlin@dot.gov;
 eugene.alford@dot.gov;
todd.homan@dot.gov;
peter.irvine@dot.gov;
albert.muldoon@dot.gov;
fahad.ahmad@dot.gov;
jason.horner@dot.gov;
kevin.bryan@dot.gov;
caroline.kaufman@trade.gov;
Airlineinfo info@airlineinfo.com;