Has A Lobbying Organization Created A "Tainted Proceeding" For Air Carriers With USDOT Applications?

Has A Lobbying Organization Created A “Tainted Proceeding” For Air Carriers With USDOT Applications?

Washington, DC-based EngageCuba may have created a basis for litigation against the United States Department of Transportation (USDOT) by United States-based air carriers that do not receive from the USDOT desired routings for the Republic of Cuba.

The USDOT application criteria (https://www.regulations.gov/#!documentDetail;D=DOT-OST-2016-0021-0001) does not include a measure relating to the advocacy/lobbying activities by an air carrier as a means test for awarding routes:

“The Department’s principal objective in this proceeding will be to maximize public benefits. In this regard, the Department will consider which applicants will be most likely to offer and maintain the best service for the traveling and shipping public. The Department will also consider the effects of the applicants’ service proposals on the overall competitive environment, including effects on market structure and competition in the U.S.-Cuba market, and any other market(s) shown to be relevant.  In addition, where relevant, the Department will consider other factors historically used for carrier selection.”

A relevant portion of a 22 March 2016 letter from EngageCuba to The Honorable Anthony Foxx, Secretary of United States Department of Transportation in Washington DC, includes:

"While many U.S. companies have expressed interest in doing business in Cuba, [Atlanta, Georgia-based] Delta [Air Lines] is one of the select few who, by supporting Engage Cuba, have signaled a true commitment to public policy change. We are proud to offer our support of Delta’s proposal to offer scheduled passenger service to Cuba."

That the letter includes the statement, "... is one of the select few who, by supporting Engage Cuba…" can be inferred as creating a political litmus test, rather than a purely commercial context, for the designation of routing authorities.

This effort may be construed as a lobbying organization seeking to influence the USDOT by conveying that a supporting company is doing what others are not, or have not been invited (permitted) to do, relating to advocating for a change in United States policy, and should thus be awarded route authority instead of a company that is not a (financial) supporter of the lobbying organization, but may have a superior business plan.

If Delta Air Lines receives a route authority, might another air carrier have a basis for (administratively) litigating that a lobbying organization supported by Delta Air Lines wrote a letter to the United States Secretary of Transportation stating that Delta Air Lines should be awarded route authority(s) not because of market analysis or competitive analysis or superior business plan, but because the company is lobbying for a "public policy change."

From an executive at an air carrier: "… a business risk… they will contact me for something and I will remind them of their support for Delta Air Lines."

From an executive at an air carrier: "We will carefully review all DOT route decisions to confirm that they were awarded on the commercial merits."