United States of America v. BBA Aviation plc, et al.; Public Comment and Response on Proposed Final Judgment, 36346-36350 [2016-13185]
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Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016 / Notices
Heights Citrus ID’s 315 acre-foot annual
CAP water entitlement. Contract
executed on March 14, 2016.
20. Mohave County Water Authority,
BCP, Arizona: Amend Exhibit D to the
Authority’s Colorado River water
delivery contract to update the list of
subcontractors with the Authority.
Contract executed on February 29, 2016.
UPPER COLORADO REGION: Bureau
of Reclamation, 125 South State Street,
Room 8100, Salt Lake City, Utah 84138–
1102, telephone 801–524–3864.
New contract actions:
26. Ephraim Irrigation Company,
Sanpete Project, Utah: The Company
proposes to enclose the Ephraim Tunnel
with a 54-inch pipe. A supplemental
O&M agreement will be necessary to
obtain the authorization to modify
Federal facilities.
27. Eden Valley Irrigation and
Drainage District, Eden Project,
Wyoming: The District proposes to raise
the level of Big Sandy Dam to shore up
its water rights. A supplemental O&M
agreement will be necessary to obtain
the authorization to modify Federal
facilities.
28. Uintah Water Conservancy
District, Central Utah Project—Vernal
Unit, Utah: Due to sloughing on the face
of Steinaker Dam north of Vernal, Utah,
a SOD fix authorized under the SOD Act
of 1978 may be necessary to perform the
various functions necessary to bring
Steinaker Reservoir back to full
capacity. This will require a repayment
contract with the United States.
29. Navajo-Gallup Water Supply
Project: Pursuant to legislation and
Section 10602(h) of Pub. L. 111–11,
project facilities may be used to treat
and convey nonproject water. Before
delivery of project water from the San
Juan River, a need will exist for
nonproject water to be delivered to the
Navajo Nation. A carriage contract has
been drafted and is currently under
internal review (Reclamation) then will
be negotiated with the Navajo Nation in
a public setting.
30. Jicarilla Apache Nation, Navajo
Project, New Mexico: Water service
agreement between the Jicarilla Apache
Nation and the San Juan Basin Water
Haulers Association for delivery of 200
acre-feet of M&I water from the
Jicarilla’s settlement water from the
Navajo Reservoir Supply. This
agreement will have a term of 5 years
(2016–2020) and will replace the
expired previous agreement which was
in place for 10 years.
31. North Fork Water Conservancy
District and Ragged Mountain Water
Users Association, Paonia Project,
Colorado. An existing contract for 2,000
acre-feet will expire on December 31,
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16:36 Jun 03, 2016
Jkt 238001
2016. The parties have requested a 5year contract that will begin when the
existing contract expires. The new
contract will be for up to 2,000 acre-feet
of water with up to 200 acre-feet
available for M&I uses.
Modified contract action:
14. South Cache Water Users
Association, Hyrum Project, Utah: The
Association desires to pipe
approximately 2,100 linear feel of the
Hyrum-Mendota Canal to combat
seepage issues below Hyrum Dam. A
supplemental O&M agreement is
necessary for Reclamation to provide
consent to the modification of the
Federal facilities.
Completed contract actions:
5. Uintah Water Conservancy District;
Vernal Unit, CUP; Utah: Proposed
carriage contract to both store up to
35,000 acre-feet of nonproject water in
Steinaker Reservoir and carry
nonproject water in the Steinaker
Service and Feeder Canals. Contract
executed on February 12, 2016.
21. Southern Ute Indian Tribe,
Animas-La Plata Project, Colorado:
Requested a water delivery contract for
33,519 acre-feet of M&I water; contract
terms to be consistent with the Colorado
Ute Settlement Act Amendments of
2000 (Title III of Pub. L. 106–554).
Contract executed on January 14, 2016.
GREAT PLAINS REGION: Bureau of
Reclamation, P.O. Box 36900, Federal
Building, 2021 4th Avenue North,
Billings, Montana 59101, telephone
406–247–7752.
New contract actions:
39. South Chester County Water
District; Lower Marias Unit, P–SMBP;
Montana: Consideration to renew of
long-term M&I water service contract
No. 14–06–600–2022A.
40. Nathan D. and Kindra Young;
Canyon Ferry Unit, P–SMBP; Montana:
Consideration to renew short-term M&I
water service contract No. 129E670093.
41. Central Oklahoma Master
Conservancy District, Norman Project,
Oklahoma: Consideration of a contract
for a supply of water made possible
when infrequent and otherwise
unmanageable flood flows of short
duration create a temporary supply of
water.
Modified contract action:
22. Helena Valley ID; Helena Valley
Unit, P–SMBP; Montana: Consideration
of a contract to allow for delivery of up
to 500 acre-feet of water for M&I
purposes.
Completed contract action:
29. Larry TenBensel; Frenchman
Cambridge, P–SMBP; Nebraska:
Consideration of a long-term Warren Act
contract. Contract executed on March
15, 2016.
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Dated: April 14, 2016.
Roseann Gonzales,
Director, Policy and Administration.
[FR Doc. 2016–13237 Filed 6–3–16; 8:45 am]
BILLING CODE 4332–90–P
DEPARTMENT OF JUSTICE
Antitrust Division
United States of America v. BBA
Aviation plc, et al.; Public Comment
and Response on Proposed Final
Judgment
Pursuant to the Antitrust Procedures
and Penalties Act, 15 U.S.C. 16(b)–(h),
the United States hereby publishes
below the comment received on the
proposed Final Judgment in United
States of America v. BBA Aviation plc,
et al., Civil Action No. 1:16–cv–00174,
together with the Response of the
United States to Public Comment.
Copies of the comment and the
United States’ Response are available for
inspection on the Antitrust Division’s
Web site at https://www.justice.gov/atr,
and at the Office of the Clerk of the
United States District Court for the
District of Columbia. Copies of these
materials may be obtained from the
Antitrust Division upon request and
payment of the copying fee set by
Department of Justice regulations.
Patricia A. Brink,
Director of Civil Enforcement.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States Of America, Plaintiff, v. BBA
Aviation PLC, Landmark U.S. Corp LLC, and
LM U.S. Member LLC, Defendants.
Case: 1:16–cv–00174
Judge: Amy Berman Jackson
RESPONSE OF PLAINTIFF UNITED
STATES TO PUBLIC COMMENT ON
THE PROPOSED FINAL JUDGMENT
Pursuant to Sections 2(b)–(h) of the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h) (‘‘APPA’’ or
‘‘Tunney Act’’), Plaintiff, the United
States of America (‘‘United States’’)
hereby files the single public comment
received concerning the proposed Final
Judgment in this case and the United
States’s response to the comment. After
careful consideration of the submitted
comment, the United States continues to
believe that the proposed Final
Judgment (‘‘PFJ’’) provides an effective
and appropriate remedy for the antitrust
violations alleged in the Complaint. The
United States will move the Court for
entry of the proposed Final Judgment
after the public comment and this
Response have been published in the
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Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016 / Notices
Federal Register pursuant to 15 U.S.C.
16(d).
sradovich on DSK3TPTVN1PROD with NOTICES
I. BACKGROUND
On February 3, 2016, the United
States filed a civil antitrust Complaint
alleging that the proposed acquisition
by Defendant BBA Aviation plc
(‘‘Signature’’) of Defendants Landmark
U.S. Corp LLC and LM U.S. Member
LLC (‘‘Landmark’’), announced on
September 23, 2015, would be likely to
substantially lessen competition in the
provision of full-service fixed-based
operator (‘‘FBO’’) services at six airports
in the United States, in violation of
Section 7 of the Clayton Act, 15 U.S.C.
18. The Complaint further alleged that,
as a result of the acquisition as
originally proposed, prices for these
services in the United States would
likely have increased and customers
would have received services of lower
quality.
At the same time the Complaint was
filed, the United States also filed a Hold
Separate Stipulation and Order (‘‘Hold
Separate Order’’); a Proposed Final
Judgment (‘‘PFJ’’); and a Competitive
Impact Statement (‘‘CIS’’) that explains
how the PFJ is designed to remedy the
likely anticompetitive effects of the
proposed acquisition. As required by
the Tunney Act, the United States
published the PFJ and CIS in the
Federal Register on February 10, 2016.
In addition, the United States ensured
that a summary of the terms of the PFJ
and CIS, together with directions for the
submission of the written comments,
were published in The Washington Post
on seven different days during the
period of February 6, 2016 to February
12, 2016. See 15 U.S.C. 16)(c). The 60day waiting period for public comments
ended on April 12, 2016. Following
expiration of that period, the United
States received one comment, which is
described below and attached hereto as
Exhibit 1.
II. STANDARD OF JUDICIAL REVIEW
The Tunney Act requires that
proposed consent judgments in antitrust
cases brought by the United States be
subject to a 60-day public comment
period, after which the court shall
determine whether entry of the
proposed Final Judgment ‘‘is in the
public interest.’’ 15 U.S.C. 16(e)(1). In
making that determination, the court, in
accordance with the statute as amended
in 2004, is required to consider:
(A) the competitive impact of such
judgment, including termination of alleged
violations, provisions for enforcement and
modification, duration of relief sought,
anticipated effects of alternative remedies
actually considered, whether its terms are
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ambiguous, and any other competitive
considerations bearing upon the adequacy of
such judgment that the court deems
necessary to a determination of whether the
consent judgment is in the public interest;
and
(B) the impact of entry of such judgment
upon competition in the relevant market or
markets, upon the public generally and
individuals alleging specific injury from the
violations set forth in the complaint
including consideration of the public benefit,
if any, to be derived from a determination of
the issues at trial.
15 U.S.C. 16(e)(1). In considering these
statutory factors, the court’s inquiry is
necessarily a limited one as the
government is entitled to ‘‘broad
discretion to settle with the defendant
within the reaches of the public
interest.’’ United States v. Microsoft
Corp., 56 F.3d 1448, 1461 (D.C. Cir.
1995); see also United States v. SBC
Commc’ns, Inc., 489 F. Supp. 2d 1, 10–
11 (D.D.C. 2007) (assessing public
interest standard under the Tunney
Act); United States v. InBev N.V./S.A.,
No. 08-cv-1965 (JR), 2009 U.S. Dist.
LEXIS 84787, at *3 (D.D.C. Aug. 11,
2009) (discussing nature of review of
consent judgment under the Tunney
Act; inquiry is limited to ‘‘whether the
government’s determination that the
proposed remedies will cure the
antitrust violations alleged in the
complaint was reasonable, and whether
the mechanisms to enforce the final
judgment are clear and manageable’’).
Under the APPA, a court considers,
among other things, the relationship
between the remedy secured and the
specific allegations set forth in the
Complaint, whether the decree is
sufficiently clear, whether the
enforcement mechanisms are sufficient,
and whether the decree may positively
harm third parties. See Microsoft, 56
F.3d at 1458–62. With respect to the
adequacy of the relief secured by the
decree, a court may not ‘‘engage in an
unrestricted evaluation of what relief
would best serve the public.’’ United
States v. BNS, Inc., 858 F.2d 456, 462
(9th Cir. 1988) (citing United States v.
Bechtel Corp., 648 F.2d 660, 666 (9th
Cir. 1981)). Instead, courts have held
that:
[t]he balancing of competing social and
political interests affected by a proposed
antitrust consent decree must be left, in the
first instance, to the discretion of the
Attorney General. The court’s role in
protecting the public interest is one of
insuring that the government has not
breached its duty to the public in consenting
to the decree. The court is required to
determine not whether a particular decree is
the one that will best serve society, but
whether the settlement in ‘‘within the
reaches of the public interest.’’ More
elaborate requirements might undermine the
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36347
effectiveness of antitrust enforcement by
consent decree.
Bechtel, 648 F.2d at 666 (emphasis
added) (citations omitted).
In determining whether a proposed
settlement is in the public interest, ‘‘the
court ‘must accord deference to the
government’s predictions about the
efficacy of its remedies.’’’ United States
v. U.S. Airways Grp., Inc., 38 F. Supp.
3d 69, 76 (D.D.C. 2014) (quoting SBC
Commc’ns, 489 F. Supp. at 17). See also
Microsoft, 56 F.3d at 1461 (noting that
the government is entitled to deference
as to its ‘‘predictions as to the effect of
the proposed remedies’’); United States
v. Archer-Daniels-Midland Co., 272 F.
Supp. 2d 1, 6 (D.D.C. 2003) (noting that
the court should grant due respect to the
United States’ ‘‘prediction as to the
effect of the proposed remedies, its
perception of the market structure, and
its views of the nature of the case’’);
United States v. Morgan Stanley, 881 F.
Supp. 2d 563, 567–68 (S.D.N.Y. 2012)
(explaining that the government is
entitled to deference in choice of
remedies).
Courts ‘‘may not require that the
remedies perfectly match the alleged
violations.’’ SBC Commc’ns, 489 F.
Supp. 2d at 17. Rather, the ultimate
question is whether ‘‘the remedies
[obtained in the decree are] so
inconsonant with the allegations
charged as to fall outside of the ‘reaches
of the public interest.’’’ Microsoft, 56
F.3d at 1461. Accordingly, the United
States ‘‘need only provide a factual basis
for concluding that the settlements are
reasonably adequate remedies for the
alleged harms.’’ SBC Commc’ns, 489 F.
Supp. 2d at 17; see also United States
v. Apple, Inc. 889 F. Supp. 2d 623, 631
(S.D.N.Y. 2012). And, a ‘‘proposed
decree must be approved even if it falls
short of the remedy the court would
impose on its own, as long as it falls
within the range of acceptability or is
within the reaches of the public
interest.’’ United States v. Am. Tel. &
Tel. Co., 552 F. Supp. 131, 151 (D.D.C.
1982) (citations and internal quotations
omitted); see also United States v. Alcan
Aluminum Ltd., 605 F. Supp. 619, 622
(W.D. Ky. 1985) (approving the consent
decree even though the court would
have imposed a greater remedy).
In its 2004 amendments to the
Tunney Act,1 Congress made clear its
1 The 2004 amendments substituted ‘‘shall’’ for
‘‘may’’ in directing relevant factors for courts to
consider and amended the list of factors to focus on
competitive considerations and to address
potentially ambiguous judgment terms. Compare 15
U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006);
see also SBC Commc’ns, 489 F. Supp. 2d at 11
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sradovich on DSK3TPTVN1PROD with NOTICES
intent to preserve the practical benefits
of using consent decrees in antitrust
enforcement, adding the unambiguous
instruction that ‘‘[n]othing in this
section shall be construed to require the
court to conduct an evidentiary hearing
or to require the court to permit anyone
to intervene.’’ 15 U.S.C. 16(e)(2). The
procedure for the public interest
determination is left to the discretion of
the court, with the recognition that the
court’s ‘‘scope of review remains
sharply proscribed by precedent and the
nature of the Tunney Act proceedings.’’
SBC Commc’ns, 489 F. Supp. 2d at 11;
see also United States v. Enova Corp.,
107 F. Supp. 2d 10, 17 (D.D.C. 2000)
(‘‘[T]he Tunney Act expressly allows the
court to make its public interest
determination on the basis of the
competitive impact statement and
response to public comments alone.’’);
US Airways, 38 F. Supp. 3d at 76
(same).
III. SUMMARY OF PUBLIC COMMENT
AND THE UNITED STATES’S
RESPONSE
The United States received one public
comment from the City of Dallas
(‘‘Dallas’’). Though the comment was
submitted after the deadline for
comments had passed, the United States
has nevertheless issued a full response.
Dallas submitted the comment to
express concern about the possible
anticompetitive effects of Signature’s
acquisition of Landmark at Love Field
Airport (‘‘Love Field’’), which Dallas
operates. Combined, Signature and
Landmark have 54 percent of the FBO
market and lease nearly 70 percent of
the FBO facilities at Love Field. Dallas
submitted the comment to provide
additional information about the
situation at Love Field and highlight
what Dallas believes to be competitive
concerns the PFJ does not address. In
particular, Dallas is concerned that the
PFJ would not require Signature to
report future FBO acquisitions at Love
Field to the United States. Dallas does
not, however, argue in favor of a
divesture of FBO assets at Love Field.
The United States appreciates Dallas’s
advocacy efforts on behalf of
competition at Love Field. The United
States carefully considered the effects of
the acquisition at Love Field and chose
not to take enforcement action against
such acquisition. Over the course of a
five-month investigation, the United
States reviewed party and third-party
documents, conducted economic data
analysis, and talked with dozens of
industry participants including the
(concluding that the 2004 amendments ‘‘effected
minimal changes’’ to Tunney Act review).
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effects of the merger between Landmark and
Signature at Love Field, where both
Landmark and Signature currently operate.
Presently, there are six (6) fixed base
operator (‘‘FBO’’) locations at Love Field,
operated by five different FBO entities.
Landmark operates one (1) of the FBO
locations, and Signature operates two (2) of
the locations.2 In 2015, Signature’s two (2)
locations combined sold 40 percent of the
total aviation fuel 3 at Love Field (by FBOs),
and Landmark’s single location sold 14
percent of the total aviation fuel. This, after
the proposed merger, would result in 54
percent of the fuel at Love Field being
provided by the ‘‘new’’ Signature.
The remaining three (3) FBOs sold 46
percent of the fuel, with two smaller
locations selling approximately 9 percent
each, and one larger entity selling 28 percent.
IV. CONCLUSION
In addition to conducting a majority of the
fuel sales, Landmark and Signature together
After reviewing the public comment,
lease nearly 70 percent of the total hangar,
the United States continues to believe
general aviation terminal facilities, and office
that the PFJ, as drafted, provides an
space at Love Field. A chart with a
effective and appropriate remedy for the breakdown of the data used to calculate these
percentages is enclosed with this letter as
antitrust violations alleged in the
Attachment A.
Complaint, and is therefore in the
Under the Department of Justice and
public interest. The United States will
Federal Trade Commission’s Horizontal
move this Court to enter the PFJ soon
Merger Guidelines, markets with an initial
after the comment and this response are score over 2500 on the Herfindahl-Hirschman
published in the Federal Register.
Index (‘‘HHI’’) are considered ‘‘highly
concentrated.’’ 4 When a prospective merger
Dated: May 27, 2016
in a highly concentrated market would result
Respectfully submitted,
in an HHI increase of 200 or more, the
/s/Patricia L. Sindel lllllllllll transaction ‘‘will be presumed to be likely to
Patricia L. Sindel, (D.C. Bar #997505),
enhance market power.’’ 5 Such increases in
Trial Attorney, Networks & Technology
HHI are considered indicators of transactions
Enforcement Section, U.S. Department of
‘‘for which it is particularly important to
Justice, Antitrust Division, 450 Fifth Street
examine whether other competitive factors
NW., Suite 7100, Washington, DC 20530,
confirm, reinforce, or counteract the
Telephone: (202) 598–8300, Facsimile: (202)
potentially harmful effects of increased
616–8544, Email: patricia.sindel@usdoj.gov.
concentration.’’ 6
At Love Field, the fuel flowage data
KAPLAN KIRSCH ROCKWELL
suggests that the existing market is already
April 20, 2016
highly concentrated, and that a merger of
James J. Tierney, Chief
Signature and Landmark would increase the
Networks & Technology Enforcement Section HHI by well over 200 points.7 Despite this
United States Department of Justice
potential effect, there are no indications that
Antitrust Division
the Department of Justice examined any of
450 Fifth Street NW., Suite 7100
the competitive effects of the merger at Love
Washington, DC 20530
Field. In fact, it appears that the Department
of Justice failed to consider the impact on
Re: BBA Aviation, PLC and Landmark U.S.
Love Field whatsoever, or, alternatively,
Corp LLC
failed to adequately explain why it chose to
Case No. 1:16-cv-00174
ignore those impacts.
Dear Mr. Tierney:
These facts and the Department’s own
As counsel to the City of Dallas (‘‘City’’),
guidelines demonstrate the need to carefully
Kaplan Kirsch & Rockwell LLP (‘‘Firm’’)
scrutinize the merger’s potential effects at
submits these comments in the matter of
Love Field. Yet, the materials published by
United States v. BBA Aviation, et al., case no. the Department of Justice in the Federal
1:16-cv-00174, concerning the merger of BBA Register and filed with the United States
Aviation (parent corporation to Signature
District Court for the District of Columbia
Flight Support Corporation (‘‘Signature’’)),
make no reference to operations at Love
and Landmark U.S. Corp LLC (‘‘Landmark’’).
Field.
The Firm and the City recognize that the
deadline for comments on this matter has
2 Signature operates both Signature Flight
passed, but respectfully request that the
Support (also known as Signature North) and
Department of Justice accept these comments Dalfort Fueling.
despite their tardiness.1
3 100LL and Jet-A.
The City owns and operates Dallas Love
4 Horizontal Merger Guidelines § 5.3.
Field Airport (‘‘Love Field’’). The City is
5 Id.
concerned about the possible anticompetitive
6 Id.
Aviation Director for the City of Dallas.
As a result of this investigation, the
United States did not allege a violation
of the Clayton Act resulting from the
acquisition of Love Field in its
Complaint. Therefore, the comment
submitted by Dallas is not a comment
addressing the question before the
Court, which is whether the proposed
remedy will cure the antitrust violations
alleged in the Complaint. Should any
future acquisitions by Signature at Love
Field raise a possibility of competitive
harm, Dallas or any other affected party
may raise those concerns with the
United States to be evaluated at such
future date.
1 See81
Fed. Reg. 7144 (Feb. 10, 2016) (setting 60day comment period).
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7 The City recognizes that HHI is typically
calculated using revenue data, but such information
is proprietary and unavailable to the City.
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Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016 / Notices
The proposed consent decree requires
Signature and Landmark to divest their assets
from six airports where both currently
operate, but there is not even an
acknowledgement that both firms operate
FBOs at Love Field.8 While the City does not
necessarily advocate for a divestiture of
Signature or Landmark’s assets at Love Field,
the lack of discussion or findings on the issue
is troubling, especially when such an absence
is inconsistent with the Department’s own
guidance on this issue.
The proposed consent decree not only
imposes no constraints on SignatureLandmark operations at Love Field, but
would effectively allow Signature-Landmark
to acquire another FBO at Love Field. The
proposal allows such an acquisition at ‘‘an
airport where [the merged entity] is already
providing FBO Services in the United States
unless (1) the assumption or acquisition is
valued at less than $20 million dollars, or (2)
at least two Full-Service FBOs not involved
in the transaction provide FBO Services at
the airport where the assumption or
acquisition will take place.’’ 9 This provision
will be insufficient to protect the competitive
environment at Love Field 10 because BBA
could acquire the remaining FBOs without
Department of Justice scrutiny or permission.
The new Signature-Landmark entity could
acquire the next-largest FBO at Love Field
because of the exception allowing such
acquisition when there are two other FBOs at
the airport, and could then acquire the other
entities if they are valued below $20
million.11 By failing to address this potential
issue now, the Department of Justice leaves
open the possibility that BBA could later
acquire an exclusive right at Love Field.
The City urges the Department of Justice to
include more specific protections for Love
Field and other airports that are not proposed
for divestiture, but where the market power
of the merged entity could pose a serious
threat of further market concentration.
Specifically, the City suggests including
provisions that would serve to prevent the
future purchase of FBOs at any airport where
Signature and Landmark both operated prior
to the merger, regardless of the value of the
transaction or presence of additional FBOs.
As explained above, the current provision in
the proposed consent decree is too narrow to
adequately protect Love Field. A broader
provision would better protect Love Field
and other airports from potential
anticompetitive environments.
Thank you for your time and consideration
in this matter. If you have any questions
about any of the comments in this letter,
please do not hesitate to contact me.
Sincerely,
/s/ lllllllllllllllllll
Peter J. Kirsch by Nicholas M. Clabbers,
On behalf of: City of Dallas, Department of
Aviation, 8008 Herb Kelleher Way, LB16,
Dallas, Texas 75235.
ATTACHMENT A
FBO fuel sales at Dallas Love Field
(2015 totals)
100 LL
(gals)
FBO
Signature Flight Support ..............................................................................................................
Signature Dalfort ..........................................................................................................................
Landmark Aviation .......................................................................................................................
Total Signature + Landmark ........................................................................................................
All Other FBOs ............................................................................................................................
S+L Market Share Post-Merger 1 ................................................................................................
9,992
8,335
37,380
55,707
101,600
35.4%
Jet A
(gals)
4,126,136
3,935,851
2,881,685
10,943,672
9,238,107
54.2%
Total
4,136,128
3,944,186
2,919,065
10,999,379
9,339,707
54%
FBO Facility Leaseholds at Dallas Love Field
(as of 2015)
FBO
Hangars
(sqft)
Terminal and
offices
(sqft)
Signature Flight Support ...................................................................................................................
Signature Dalfort ...............................................................................................................................
Landmark Aviation ............................................................................................................................
Total Signature + Landmark .............................................................................................................
All Other FBOs 2 ...............................................................................................................................
S + L Percentages Post-Merger .......................................................................................................
220,500 .......
400,703 .......
106,890 .......
728,093 .......
N/A ..............
Unknown .....
97,688 .........
14,212 .........
79,848 .........
191,748 .......
N/A ..............
Unknown .....
Total
318,188
414,915
186,738
919,841
432,108
68%
sradovich on DSK3TPTVN1PROD with NOTICES
1 The calculations of approximate market share are based solely on the fuel quantities sold, as the City does not have access to proprietary
revenue data.
2 The data available for the other FBOs does not delineate between hangar and office space.
8 The City also notes that there is no discussion
of San Antonio International Airport or Teterboro
Airport, the two other U.S. airports where both
Signature and Landmark presently operate.
9 81 FR at 7155 (emphasis added).
VerDate Sep<11>2014
16:36 Jun 03, 2016
Jkt 238001
10 The City is also concerned that even greater
concentration of FBO business at Love Field may
result in violations of the Federal Aviation
Administration Grant Assurances, which
specifically prohibit the granting of ‘‘exclusive
rights’’ to aeronautical service providers. See FAA
Order 5.190.6B, ¶8.1. The City has an affirmative
PO 00000
Frm 00096
Fmt 4703
Sfmt 9990
obligation to ensure that an exclusive right is not
created at Love Field.
11 The City presently has no information about
the value of any of the other FBOs at Love Field,
but all are small entities that operate only at Love
Field.
E:\FR\FM\06JNN1.SGM
06JNN1
36350
Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016 / Notices
without the exhibits and signature
pages, the cost is $16.50.
[FR Doc. 2016–13185 Filed 6–3–16; 8:45 am]
BILLING CODE 4410–11–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed
Consent Decree Under the
Comprehensive Environmental
Response, Compensation, and Liability
Act
On May 27, 2016, the Department of
Justice (‘‘DOJ’’) lodged a proposed
Consent Decree with the United States
District Court for the Northern District
of Illinois in the lawsuit entitled United
States v. Pilkington North America, Inc.,
Civil Action No. 16–5654.
The United States filed this lawsuit
under the Comprehensive
Environmental Response,
Compensation, and Liability Act
(‘‘CERCLA’’). The Complaint seeks
reimbursement of response costs and
injunctive relief under CERCLA for
hazardous substance contamination at
the Ottawa Township Flat Glass Site
(‘‘Site’’).
The publication of this notice opens
a period for public comment on the
proposed Consent Decree. Comments
should be addressed to the Assistant
Attorney General, Environment and
Natural Resources Division, and should
refer to United States v. Pilkington
North America, Inc., D.J. Ref. No. 90–
11–3–11237. All comments must be
submitted no later than thirty (30) days
after the publication date of this Notice.
Comments may be submitted either by
email or by mail:
To submit
comments:
Send them to:
By email .......
pubcomment-ees.enrd@
usdoj.gov.
Assistant Attorney General,
U.S. DOJ—ENRD, P.O.
Box 7611, Washington, DC
20044–7611.
sradovich on DSK3TPTVN1PROD with NOTICES
By mail .........
During the public comment period,
the proposed Consent Decree may be
examined and downloaded at the
following DOJ Web site: https://
www.justice.gov/enrd/consent-decrees.
We will provide a paper copy of the
proposed Consent Decree upon written
request and payment of reproduction
costs. Please mail your request and
payment to: Consent Decree Library,
U.S. DOJ—ENRD, P.O. Box 7611,
Washington, DC 20044–7611.
Please enclose a check or money order
for $94.75 (25 cents per page
reproduction cost) payable to the United
States Treasury. For a paper copy
VerDate Sep<11>2014
16:36 Jun 03, 2016
Jkt 238001
Randall M. Stone,
Acting Assistant Section Chief,
Environmental Enforcement Section,
Environment and Natural Resources Division.
[FR Doc. 2016–13188 Filed 6–3–16; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
[CPCLO Order No. 004–2016]
Privacy Act of 1974; Systems of
Records; Extension of Comment
Period
Federal Bureau of
Investigation, United States Department
of Justice.
ACTION: Notice of a modified system of
records notice; extension of comment
period.
AGENCY:
The Department of Justice
(Department or DOJ), Federal Bureau of
Investigation (FBI), is extending the
comment period for its proposal to
modify an existing FBI system of
records notice titled, ‘‘Fingerprint
Identification Records System (FIRS),’’
JUSTICE/FBI–009, which would be
retitled, ‘‘The Next Generation
Identification (NGI) System,’’ JUSTICE/
FBI–009, published in the Federal
Register on May 5, 2016 (81 FR 27284).
The original comment period is
scheduled to expire on June 6, 2016.
The Department is now extending the
time period for public comments by 30
days. The updated comment period is
scheduled to expire on July 6, 2016.
This action will allow interested
persons additional time to analyze the
proposal and prepare their comments.
DATES: Comments on the notice
published May 5, 2016 (81 FR 27284)
must be submitted on or before July 6,
2016.
ADDRESSES: Submit comments to the
Department of Justice, ATTN: Privacy
Analyst, Office of Privacy and Civil
Liberties, Department of Justice,
National Place Building, 1331
Pennsylvania Avenue NW., Suite 1000,
Washington, DC 20530, or by facsimile
at 202–307–0693. To ensure proper
handling, please reference either this
CPCLO Order No., or the CPCLO Order
No. from the notice of modified system
of records notice (CPCLO Order No.
002–2016) on your correspondence.
FOR FURTHER INFORMATION CONTACT:
Roxane M. Panarella, Criminal Justice
Information Services Division (CJIS),
Privacy Attorney, 1000 Custer Hollow
Road, Clarksburg WV 26306.
SUMMARY:
PO 00000
Frm 00097
Fmt 4703
Sfmt 4703
On May 5,
2016, the Department requested
comments on its proposal to modify an
existing FBI system of records notice
titled, ‘‘Fingerprint Identification
Records System (FIRS),’’ JUSTICE/FBI–
009, and its proposal to amend the
Department’s Privacy Act regulations by
establishing an exemption for records in
this system of records from certain
provisions of the Privacy Act pursuant
to 5 U.S.C. 552a(j) and (k).
Both the notice of a modified system
of records notice and notice of proposed
rulemaking for this system of records
originally provided that comments must
be received by June 6, 2016. The
Department has received requests to
extend these comment periods. The
Department believes that extending the
comment periods would be appropriate
in order to provide the public additional
time to consider and comment on the
proposals addressed in these notices.
Therefore, the Department is extending
both public comment periods for 30
days, until July 6, 2016. Elsewhere in
the Federal Register, the Department is
extending the comment period for the
accompanying notice of proposed
rulemaking.
SUPPLEMENTARY INFORMATION:
Dated: June 1, 2016.
Erika Brown Lee,
Chief Privacy and Civil Liberties Officer, U.S.
Department of Justice.
[FR Doc. 2016–13353 Filed 6–3–16; 8:45 am]
BILLING CODE 4410–02–P
DEPARTMENT OF LABOR
Comment Request for Information
Collection for the Evaluation of the
Disability Employment Initiative Round
5 and Future Rounds; Correction
Office of Disability
Employment Policy, Department of
Labor.
AGENCY:
ACTION:
Notice; correction.
The Department of Labor,
published a document in the Federal
Register of January 12, 2016, concerning
a request for comments for information
collection for the evaluation of the
Disability Employment Initiative round
5 and future rounds. The document
contained a comment period of 30 days
instead of the required 60 days. This
correction notice reopens the comment
period for an additional 30 days.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Cherise Hunter by telephone at 202–
693–4931 (this is not a toll-free number)
or by email at hunter.cherise@dol.gov.
E:\FR\FM\06JNN1.SGM
06JNN1
]]>Agencies
[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Notices]
[Pages 36346-36350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13185]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States of America v. BBA Aviation plc, et al.; Public
Comment and Response on Proposed Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h), the United States hereby publishes below the comment
received on the proposed Final Judgment in United States of America v.
BBA Aviation plc, et al., Civil Action No. 1:16-cv-00174, together with
the Response of the United States to Public Comment.
Copies of the comment and the United States' Response are available
for inspection on the Antitrust Division's Web site at https://www.justice.gov/atr, and at the Office of the Clerk of the United
States District Court for the District of Columbia. Copies of these
materials may be obtained from the Antitrust Division upon request and
payment of the copying fee set by Department of Justice regulations.
Patricia A. Brink,
Director of Civil Enforcement.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
United States Of America, Plaintiff, v. BBA Aviation PLC,
Landmark U.S. Corp LLC, and LM U.S. Member LLC, Defendants.
Case: 1:16-cv-00174
Judge: Amy Berman Jackson
RESPONSE OF PLAINTIFF UNITED STATES TO PUBLIC COMMENT ON THE PROPOSED
FINAL JUDGMENT
Pursuant to Sections 2(b)-(h) of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''),
Plaintiff, the United States of America (``United States'') hereby
files the single public comment received concerning the proposed Final
Judgment in this case and the United States's response to the comment.
After careful consideration of the submitted comment, the United States
continues to believe that the proposed Final Judgment (``PFJ'')
provides an effective and appropriate remedy for the antitrust
violations alleged in the Complaint. The United States will move the
Court for entry of the proposed Final Judgment after the public comment
and this Response have been published in the
[[Page 36347]]
Federal Register pursuant to 15 U.S.C. 16(d).
I. BACKGROUND
On February 3, 2016, the United States filed a civil antitrust
Complaint alleging that the proposed acquisition by Defendant BBA
Aviation plc (``Signature'') of Defendants Landmark U.S. Corp LLC and
LM U.S. Member LLC (``Landmark''), announced on September 23, 2015,
would be likely to substantially lessen competition in the provision of
full-service fixed-based operator (``FBO'') services at six airports in
the United States, in violation of Section 7 of the Clayton Act, 15
U.S.C. 18. The Complaint further alleged that, as a result of the
acquisition as originally proposed, prices for these services in the
United States would likely have increased and customers would have
received services of lower quality.
At the same time the Complaint was filed, the United States also
filed a Hold Separate Stipulation and Order (``Hold Separate Order'');
a Proposed Final Judgment (``PFJ''); and a Competitive Impact Statement
(``CIS'') that explains how the PFJ is designed to remedy the likely
anticompetitive effects of the proposed acquisition. As required by the
Tunney Act, the United States published the PFJ and CIS in the Federal
Register on February 10, 2016. In addition, the United States ensured
that a summary of the terms of the PFJ and CIS, together with
directions for the submission of the written comments, were published
in The Washington Post on seven different days during the period of
February 6, 2016 to February 12, 2016. See 15 U.S.C. 16)(c). The 60-day
waiting period for public comments ended on April 12, 2016. Following
expiration of that period, the United States received one comment,
which is described below and attached hereto as Exhibit 1.
II. STANDARD OF JUDICIAL REVIEW
The Tunney Act requires that proposed consent judgments in
antitrust cases brought by the United States be subject to a 60-day
public comment period, after which the court shall determine whether
entry of the proposed Final Judgment ``is in the public interest.'' 15
U.S.C. 16(e)(1). In making that determination, the court, in accordance
with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1). In considering these statutory factors, the court's
inquiry is necessarily a limited one as the government is entitled to
``broad discretion to settle with the defendant within the reaches of
the public interest.'' United States v. Microsoft Corp., 56 F.3d 1448,
1461 (D.C. Cir. 1995); see also United States v. SBC Commc'ns, Inc.,
489 F. Supp. 2d 1, 10-11 (D.D.C. 2007) (assessing public interest
standard under the Tunney Act); United States v. InBev N.V./S.A., No.
08-cv-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11,
2009) (discussing nature of review of consent judgment under the Tunney
Act; inquiry is limited to ``whether the government's determination
that the proposed remedies will cure the antitrust violations alleged
in the complaint was reasonable, and whether the mechanisms to enforce
the final judgment are clear and manageable'').
Under the APPA, a court considers, among other things, the
relationship between the remedy secured and the specific allegations
set forth in the Complaint, whether the decree is sufficiently clear,
whether the enforcement mechanisms are sufficient, and whether the
decree may positively harm third parties. See Microsoft, 56 F.3d at
1458-62. With respect to the adequacy of the relief secured by the
decree, a court may not ``engage in an unrestricted evaluation of what
relief would best serve the public.'' United States v. BNS, Inc., 858
F.2d 456, 462 (9th Cir. 1988) (citing United States v. Bechtel Corp.,
648 F.2d 660, 666 (9th Cir. 1981)). Instead, courts have held that:
[t]he balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's
role in protecting the public interest is one of insuring that the
government has not breached its duty to the public in consenting to
the decree. The court is required to determine not whether a
particular decree is the one that will best serve society, but
whether the settlement in ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).
In determining whether a proposed settlement is in the public
interest, ``the court `must accord deference to the government's
predictions about the efficacy of its remedies.''' United States v.
U.S. Airways Grp., Inc., 38 F. Supp. 3d 69, 76 (D.D.C. 2014) (quoting
SBC Commc'ns, 489 F. Supp. at 17). See also Microsoft, 56 F.3d at 1461
(noting that the government is entitled to deference as to its
``predictions as to the effect of the proposed remedies''); United
States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C.
2003) (noting that the court should grant due respect to the United
States' ``prediction as to the effect of the proposed remedies, its
perception of the market structure, and its views of the nature of the
case''); United States v. Morgan Stanley, 881 F. Supp. 2d 563, 567-68
(S.D.N.Y. 2012) (explaining that the government is entitled to
deference in choice of remedies).
Courts ``may not require that the remedies perfectly match the
alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17. Rather, the
ultimate question is whether ``the remedies [obtained in the decree
are] so inconsonant with the allegations charged as to fall outside of
the `reaches of the public interest.''' Microsoft, 56 F.3d at 1461.
Accordingly, the United States ``need only provide a factual basis for
concluding that the settlements are reasonably adequate remedies for
the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17; see also
United States v. Apple, Inc. 889 F. Supp. 2d 623, 631 (S.D.N.Y. 2012).
And, a ``proposed decree must be approved even if it falls short of the
remedy the court would impose on its own, as long as it falls within
the range of acceptability or is within the reaches of the public
interest.'' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151
(D.D.C. 1982) (citations and internal quotations omitted); see also
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky.
1985) (approving the consent decree even though the court would have
imposed a greater remedy).
In its 2004 amendments to the Tunney Act,\1\ Congress made clear
its
[[Page 36348]]
intent to preserve the practical benefits of using consent decrees in
antitrust enforcement, adding the unambiguous instruction that
``[n]othing in this section shall be construed to require the court to
conduct an evidentiary hearing or to require the court to permit anyone
to intervene.'' 15 U.S.C. 16(e)(2). The procedure for the public
interest determination is left to the discretion of the court, with the
recognition that the court's ``scope of review remains sharply
proscribed by precedent and the nature of the Tunney Act proceedings.''
SBC Commc'ns, 489 F. Supp. 2d at 11; see also United States v. Enova
Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (``[T]he Tunney Act
expressly allows the court to make its public interest determination on
the basis of the competitive impact statement and response to public
comments alone.''); US Airways, 38 F. Supp. 3d at 76 (same).
---------------------------------------------------------------------------
\1\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for courts to consider and amended the
list of factors to focus on competitive considerations and to
address potentially ambiguous judgment terms. Compare 15 U.S.C.
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns,
489 F. Supp. 2d at 11 (concluding that the 2004 amendments
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------
III. SUMMARY OF PUBLIC COMMENT AND THE UNITED STATES'S RESPONSE
The United States received one public comment from the City of
Dallas (``Dallas''). Though the comment was submitted after the
deadline for comments had passed, the United States has nevertheless
issued a full response. Dallas submitted the comment to express concern
about the possible anticompetitive effects of Signature's acquisition
of Landmark at Love Field Airport (``Love Field''), which Dallas
operates. Combined, Signature and Landmark have 54 percent of the FBO
market and lease nearly 70 percent of the FBO facilities at Love Field.
Dallas submitted the comment to provide additional information about
the situation at Love Field and highlight what Dallas believes to be
competitive concerns the PFJ does not address. In particular, Dallas is
concerned that the PFJ would not require Signature to report future FBO
acquisitions at Love Field to the United States. Dallas does not,
however, argue in favor of a divesture of FBO assets at Love Field.
The United States appreciates Dallas's advocacy efforts on behalf
of competition at Love Field. The United States carefully considered
the effects of the acquisition at Love Field and chose not to take
enforcement action against such acquisition. Over the course of a five-
month investigation, the United States reviewed party and third-party
documents, conducted economic data analysis, and talked with dozens of
industry participants including the Aviation Director for the City of
Dallas. As a result of this investigation, the United States did not
allege a violation of the Clayton Act resulting from the acquisition of
Love Field in its Complaint. Therefore, the comment submitted by Dallas
is not a comment addressing the question before the Court, which is
whether the proposed remedy will cure the antitrust violations alleged
in the Complaint. Should any future acquisitions by Signature at Love
Field raise a possibility of competitive harm, Dallas or any other
affected party may raise those concerns with the United States to be
evaluated at such future date.
IV. CONCLUSION
After reviewing the public comment, the United States continues to
believe that the PFJ, as drafted, provides an effective and appropriate
remedy for the antitrust violations alleged in the Complaint, and is
therefore in the public interest. The United States will move this
Court to enter the PFJ soon after the comment and this response are
published in the Federal Register.
Dated: May 27, 2016
Respectfully submitted,
/s/Patricia L. Sindel--------------------------------------------------
Patricia L. Sindel, (D.C. Bar #997505),
Trial Attorney, Networks & Technology Enforcement Section, U.S.
Department of Justice, Antitrust Division, 450 Fifth Street NW.,
Suite 7100, Washington, DC 20530, Telephone: (202) 598-8300,
Facsimile: (202) 616-8544, Email: patricia.sindel@usdoj.gov.
KAPLAN KIRSCH ROCKWELL
April 20, 2016
James J. Tierney, Chief
Networks & Technology Enforcement Section
United States Department of Justice
Antitrust Division
450 Fifth Street NW., Suite 7100
Washington, DC 20530
Re: BBA Aviation, PLC and Landmark U.S. Corp LLC
Case No. 1:16-cv-00174
Dear Mr. Tierney:
As counsel to the City of Dallas (``City''), Kaplan Kirsch &
Rockwell LLP (``Firm'') submits these comments in the matter of
United States v. BBA Aviation, et al., case no. 1:16-cv-00174,
concerning the merger of BBA Aviation (parent corporation to
Signature Flight Support Corporation (``Signature'')), and Landmark
U.S. Corp LLC (``Landmark''). The Firm and the City recognize that
the deadline for comments on this matter has passed, but
respectfully request that the Department of Justice accept these
comments despite their tardiness.\1\
---------------------------------------------------------------------------
\1\ See81 Fed. Reg. 7144 (Feb. 10, 2016) (setting 60-day comment
period).
---------------------------------------------------------------------------
The City owns and operates Dallas Love Field Airport (``Love
Field''). The City is concerned about the possible anticompetitive
effects of the merger between Landmark and Signature at Love Field,
where both Landmark and Signature currently operate.
Presently, there are six (6) fixed base operator (``FBO'')
locations at Love Field, operated by five different FBO entities.
Landmark operates one (1) of the FBO locations, and Signature
operates two (2) of the locations.\2\ In 2015, Signature's two (2)
locations combined sold 40 percent of the total aviation fuel \3\ at
Love Field (by FBOs), and Landmark's single location sold 14 percent
of the total aviation fuel. This, after the proposed merger, would
result in 54 percent of the fuel at Love Field being provided by the
``new'' Signature.
---------------------------------------------------------------------------
\2\ Signature operates both Signature Flight Support (also known
as Signature North) and Dalfort Fueling.
\3\ 100LL and Jet-A.
---------------------------------------------------------------------------
The remaining three (3) FBOs sold 46 percent of the fuel, with
two smaller locations selling approximately 9 percent each, and one
larger entity selling 28 percent. In addition to conducting a
majority of the fuel sales, Landmark and Signature together lease
nearly 70 percent of the total hangar, general aviation terminal
facilities, and office space at Love Field. A chart with a breakdown
of the data used to calculate these percentages is enclosed with
this letter as Attachment A.
Under the Department of Justice and Federal Trade Commission's
Horizontal Merger Guidelines, markets with an initial score over
2500 on the Herfindahl-Hirschman Index (``HHI'') are considered
``highly concentrated.'' \4\ When a prospective merger in a highly
concentrated market would result in an HHI increase of 200 or more,
the transaction ``will be presumed to be likely to enhance market
power.'' \5\ Such increases in HHI are considered indicators of
transactions ``for which it is particularly important to examine
whether other competitive factors confirm, reinforce, or counteract
the potentially harmful effects of increased concentration.'' \6\
---------------------------------------------------------------------------
\4\ Horizontal Merger Guidelines Sec. 5.3.
\5\ Id.
\6\ Id.
---------------------------------------------------------------------------
At Love Field, the fuel flowage data suggests that the existing
market is already highly concentrated, and that a merger of
Signature and Landmark would increase the HHI by well over 200
points.\7\ Despite this potential effect, there are no indications
that the Department of Justice examined any of the competitive
effects of the merger at Love Field. In fact, it appears that the
Department of Justice failed to consider the impact on Love Field
whatsoever, or, alternatively, failed to adequately explain why it
chose to ignore those impacts.
---------------------------------------------------------------------------
\7\ The City recognizes that HHI is typically calculated using
revenue data, but such information is proprietary and unavailable to
the City.
---------------------------------------------------------------------------
These facts and the Department's own guidelines demonstrate the
need to carefully scrutinize the merger's potential effects at Love
Field. Yet, the materials published by the Department of Justice in
the Federal Register and filed with the United States District Court
for the District of Columbia make no reference to operations at Love
Field.
[[Page 36349]]
The proposed consent decree requires Signature and Landmark to
divest their assets from six airports where both currently operate,
but there is not even an acknowledgement that both firms operate
FBOs at Love Field.\8\ While the City does not necessarily advocate
for a divestiture of Signature or Landmark's assets at Love Field,
the lack of discussion or findings on the issue is troubling,
especially when such an absence is inconsistent with the
Department's own guidance on this issue.
---------------------------------------------------------------------------
\8\ The City also notes that there is no discussion of San
Antonio International Airport or Teterboro Airport, the two other
U.S. airports where both Signature and Landmark presently operate.
---------------------------------------------------------------------------
The proposed consent decree not only imposes no constraints on
Signature-Landmark operations at Love Field, but would effectively
allow Signature-Landmark to acquire another FBO at Love Field. The
proposal allows such an acquisition at ``an airport where [the
merged entity] is already providing FBO Services in the United
States unless (1) the assumption or acquisition is valued at less
than $20 million dollars, or (2) at least two Full-Service FBOs not
involved in the transaction provide FBO Services at the airport
where the assumption or acquisition will take place.'' \9\ This
provision will be insufficient to protect the competitive
environment at Love Field \10\ because BBA could acquire the
remaining FBOs without Department of Justice scrutiny or permission.
The new Signature-Landmark entity could acquire the next-largest FBO
at Love Field because of the exception allowing such acquisition
when there are two other FBOs at the airport, and could then acquire
the other entities if they are valued below $20 million.\11\ By
failing to address this potential issue now, the Department of
Justice leaves open the possibility that BBA could later acquire an
exclusive right at Love Field.
---------------------------------------------------------------------------
\9\ 81 FR at 7155 (emphasis added).
\10\ The City is also concerned that even greater concentration
of FBO business at Love Field may result in violations of the
Federal Aviation Administration Grant Assurances, which specifically
prohibit the granting of ``exclusive rights'' to aeronautical
service providers. See FAA Order 5.190.6B, ]8.1. The City has an
affirmative obligation to ensure that an exclusive right is not
created at Love Field.
\11\ The City presently has no information about the value of
any of the other FBOs at Love Field, but all are small entities that
operate only at Love Field.
---------------------------------------------------------------------------
The City urges the Department of Justice to include more
specific protections for Love Field and other airports that are not
proposed for divestiture, but where the market power of the merged
entity could pose a serious threat of further market concentration.
Specifically, the City suggests including provisions that would
serve to prevent the future purchase of FBOs at any airport where
Signature and Landmark both operated prior to the merger, regardless
of the value of the transaction or presence of additional FBOs. As
explained above, the current provision in the proposed consent
decree is too narrow to adequately protect Love Field. A broader
provision would better protect Love Field and other airports from
potential anticompetitive environments.
Thank you for your time and consideration in this matter. If you
have any questions about any of the comments in this letter, please
do not hesitate to contact me.
Sincerely,
/s/--------------------------------------------------------------------
Peter J. Kirsch by Nicholas M. Clabbers,
On behalf of: City of Dallas, Department of Aviation, 8008 Herb
Kelleher Way, LB16, Dallas, Texas 75235.
Attachment A
----------------------------------------------------------------------------------------------------------------
FBO fuel sales at Dallas Love Field (2015 totals)
-----------------------------------------------------------------------------------------------------------------
FBO 100 LL (gals) Jet A (gals) Total
----------------------------------------------------------------------------------------------------------------
Signature Flight Support........................................ 9,992 4,126,136 4,136,128
Signature Dalfort............................................... 8,335 3,935,851 3,944,186
Landmark Aviation............................................... 37,380 2,881,685 2,919,065
Total Signature + Landmark...................................... 55,707 10,943,672 10,999,379
All Other FBOs.................................................. 101,600 9,238,107 9,339,707
S+L Market Share Post-Merger \1\................................ 35.4% 54.2% 54%
----------------------------------------------------------------------------------------------------------------
FBO Facility Leaseholds at Dallas Love Field (as of 2015)
-----------------------------------------------------------------------------------------------------------------
Terminal and offices
FBO Hangars (sqft) (sqft) Total
----------------------------------------------------------------------------------------------------------------
Signature Flight Support............... 220,500.................... 97,688.................... 318,188
Signature Dalfort...................... 400,703.................... 14,212.................... 414,915
Landmark Aviation...................... 106,890.................... 79,848.................... 186,738
Total Signature + Landmark............. 728,093.................... 191,748................... 919,841
All Other FBOs \2\..................... N/A........................ N/A....................... 432,108
S + L Percentages Post-Merger.......... Unknown.................... Unknown................... 68%
----------------------------------------------------------------------------------------------------------------
\1\ The calculations of approximate market share are based solely on the fuel quantities sold, as the City does
not have access to proprietary revenue data.
\2\ The data available for the other FBOs does not delineate between hangar and office space.
[[Page 36350]]
[FR Doc. 2016-13185 Filed 6-3-16; 8:45 am]
BILLING CODE 4410-11-P
