Continental Air Lines, Inc. v. Civil Aeronautics Board

519 F.2d 944, 171 U.S. App. D.C. 295, 1975 U.S. App. LEXIS 12688
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 22, 1975
DocketNo. 74-1651
StatusPublished
Cited by4 cases

This text of 519 F.2d 944 (Continental Air Lines, Inc. v. Civil Aeronautics Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Air Lines, Inc. v. Civil Aeronautics Board, 519 F.2d 944, 171 U.S. App. D.C. 295, 1975 U.S. App. LEXIS 12688 (D.C. Cir. 1975).

Opinion

Opinion for the Court filed by Circuit Judge Leventhal.

LEVENTHAL, Circuit Judge:

Continental Air Lines, Inc. petitions for review of two orders of the Civil Aeronautics Board (CAB) entered in the Board’s Additional Service to San Diego Case. The challenged orders — Order 72-12 — 29, December 8, 1972, and Order 74— 5 — 17, May 3, 1974 — rejected the recommendations of the Administrative Law Judge (ALJ) that competitive nonstop authority be certificated between San Diego and Denver.1 The ALJ had selected Continental to provide the competitive service.

Petitioner contends that the Board’s order should be set aside on the ground that the CAB “failed to give adequate weight to the statutory mandate favoring competition” and “failed to engage in reasoned decision-making.”2 The Board responds that its orders were adequately supported by the need for caution at a time when the industry was “plagued by retrenchment and lagging traffic growth” and by the “crucial problem of diminished fuel supplies.” 3

We find that, as a general matter, § 102 of the Federal Aviation Act requires the Board to foster competition as a means of enhancing the development and improvement of air transportation service on routes generating sufficient traffic to support competing carriers.4 We are cognizant that in some cir[298]*298cumstances the other considerations set forth in § 102 may conflict with and predominate over the public interest in competition.5 The Board urges in effect that here the need to foster sound economic conditions in view of the industry’s financial posture and the fuel situation overrides the benefits of competition. After a careful examination of the record, we conclude that the Board’s position is not supported by substantial evidence and that its rejection of competitive nonstop service in the San Diego-Denver market is not in accord with the public interest considerations set forth in § 102 of the Act. Accordingly, we remand the case for further proceedings consistent with Part IV of this opinion.

I. Background

We begin with a summary of the seven years of administrative proceedings culminating in the orders under review.

The challenged orders are the last of a series of CAB rulings entered in the Additional Service to San Diego Case. That proceeding arose out of an application filed by United Air Lines on January 12, 1967, requesting permission to provide nonstop service in several San Diego markets.6 On May 26, 1967, the CAB issued a show cause order which rejected United’s San Diego-Denver nonstop request, but proposed to give United nonstop authorization for the San Diego-New York and San Diego-Chicago routes.7 In response to the City of Denver’s petition for reconsideration, the Board sua sponte issued a second order to show cause why Western Air Lines, the primary San Diego-Denver carrier, should not be permitted to provide nonstop service in that market.8 The Board’s proposals prompted numerous objections and competitive filings from other airlines. By order of April 3, 1968, the CAB instituted the Additional Service to San Diego Case, setting a consolidated hearing on applications for nonstop authority between San Diego and New York/Newark, Washington/Baltimore, Chicago and Denver.9

Following the submission of briefs by numerous carriers and local groups and three days of hearings, the ALJ issued his initial decision on September 4, 1969. The ALJ recommended that competitive nonstop authority be authorized in all four markets under consideration. With regard to the San Diego-Denver market, he adopted the Bureau of Operating Rights’ forecast that there would be “not less than 100,335 passengers in 1970.” Based on this “conservative” estimate he found “ample traffic to support two carriers on an economic basis without regard to the support of through traffic flowing over the route.” 10 The ALJ se[299]*299lected Western and Continental to provide the competing nonstop service. Western was a “logical choice” because it carried the great bulk of the San Diego-Denver passengers on its one stop flights routed via Phoenix.11 Continental was chosen ahead of United, TWA and Air West as the second carrier because of United’s past “record of neglect and indifference” toward the market and because of Continental’s superior proposed pattern of service; attractive fare schedules; substantial beyond market benefits; and history as “an extremely vigorous, aggressive, and efficient carrier 12

The CAB exercised its right of discretionary review of the ALJ’s initial decision, issuing its opinion on April 9, 1970.13 The Board adopted the ALJ’s findings regarding the need for competitive nonstop service in the Chicago, New York/Newark, and Washington/Baltimore markets but decided, by a vote of 3 — 2, to certificate only one nonstop carrier, Western, in the San Diego-Denver market. This departure from the ALJ’s determination rested primarily on the majority’s view that “the examiner’s forecast may be too optimistic” given “the recent lag in nationwide traffic growth.”14 Although the CAB noted that a competitive authorization would provide a spur to better service and significant benefits to beyond segment markets, it concluded that Western’s possible “sizeable operating loss if competitive service is instituted” in conjunction with the adequacy of Western’s proposed service to meet the needs of the market rendered a denial of a competing nonstop carrier certification “more consistent with the goal of fostering sound economic conditions in air transportation. . ” 15 The dissenting Board members emphasized that the projection of 100,335 passengers (275 per day) in 1970 was “a very conservative estimate” which did not include either “true San Diego passengers who are reported as Los Angeles passengers (because they traveled from Los Angeles to San Diego by surface transportation or intrastate airlines) or “the substantial number of passengers carried between these points who will move beyond Denver to points on the routes of both Western and Continental.” 16 In addition, the dissent noted that within the past year the Board had made grants of competitive nonstop service in a number of substantially smaller markets.17

[300]*300A number of parties, including Continental, sought reconsideration of the Board’s determination. Petitioner claimed that the majority lacked substantial evidence to support its determination that the traffic forecast of the ALJ and the Bureau of Operating Rights was too optimistic. It noted that the lag in national traffic had not affected the market at issue — the San Diego-Denver market had grown 34% between 1967 and 1968 and both San Diego and Denver experienced an increase in total traffic well in excess of the national average. Continental reinforced its argument by pointing out that the traffic estimates of three other carriers paralleled or exceeded the ALJ’s forecast and that the ALJ’s figure was significantly understated because- of the factors noted by the dissenting members.18

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519 F.2d 944, 171 U.S. App. D.C. 295, 1975 U.S. App. LEXIS 12688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-air-lines-inc-v-civil-aeronautics-board-cadc-1975.