NEW DEVELOPMENTS IN UNITED, SPIRIT AND JETBLUE’S ONGOING EWR SLOTS BATTLE
July 19, 2022
On May 31, 2022, United issued a reply to Spirit Airlines, Inc. (“Spirit”) and JetBlue Airways (“JetBlue”) to respond to the challenge initiated by the latter to the FAA’s decision not to backfill 16 peak-hour operations slots at Newark-Liberty International Airport (“EWR or Newark”). Spirit and JetBlue had previously criticized United for dominating operations at EWR and being anticompetitive. The discord revolves around 16 of the 36 slots transferred from United to Southwest Airlines, Inc. (“Southwest”) in 2010 while EWR was a Level 3 airport. These slots reverted to the FAA after Southwest ceased operations at EWR in 2019, which in the meantime had been re-designated as a Level 2 airport (meaning that Southwest could not sell the slots). The transfer was originally carried out in response to concerns expressed by the Department of Justice (DOJ) of the potential anticompetitive effects of the then announced merger between United and Continental Airlines.
In its reply, United states it has not increased the number of peak-hour flights at EWR over the past five years and accuses Spirit and JetBlue of scheduling new and unapproved flights during the afternoon peak, thus disregarding the “voluntary cooperation” that is expected from carriers operating to Level 2 airports and further burdening one of the most delayed airports in the country. Furthermore, United argues that both Spirit and JetBlue have built a narrative allowing them to disregard FAA policies on the grounds that the benefits from the competition inherent to their low-cost nature outweigh the potential reality of further congestion at EWR. Finally, United counters the accusations of anticompetitive behavior by stating that it rejects “the notion that there is something sinister about having a large number of flights” at EWR while also renewing its request for FAA to publish all “Reference IDs issued at EWR by carrier by hour”.
Following this, on June 15, 2022, Spirit published a comment to United’s reply asserting that in its May 31, 2022, letter, United “continues its effort to block competition at Newark Liberty International Airport under the banner of relieving congestion” by arguing that Spirit had made incorrect assertions. Spirit also alleges that the arguments United puts forth in its reply are done to protect its “virtual monopoly” at EWR and proposes that it, FAA, United, and other airlines that wish to obtain the slots, should participate in a scheduling conference where all carriers could agree to equitable reductions in operations at EWR and work out the conflict. To date, United has not yet submitted a further comment and there have been no further developments in regard to the issue.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622), Drew Derco (dderco@eckertseamans.com 202-659-6665).
*Editor’s Note: We would like to give special thanks to Summer Intern, Thiseas Efthymiou for his contributions to this month’s posts.
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