By Ben Goldstein

Air Transport World

December 6, 2019

Spirit Airlines
 is suing the US Department of Transportation (DOT), alleging the department violated federal law by withholding peak-hour slots at Newark Liberty International Airport (EWR) formerly belonging to Southwest Airlines.

Dallas-based Southwest announced July 25 its plans to cease operations at EWR by Nov. 3. The FAA has since received requests from multiple carriers, including Florida-based ultra-LCC Spirit, seeking approval for new operations to replace those previously conducted by Southwest. 

The carrier had operated up to 40 daily peak summer operations at EWR, around 6 of which were during peak hours. On Oct. 2, FAA announced its decision not to reallocate Southwest’s vacant peak-hour slots to other carriers for summer 2020, opting instead to study the effects of fewer operations on summertime congestion at the airport.

In a petition filed Nov. 25 with the US District Court for the District of Columbia, lawyers for Spirit criticized the FAA’s decision as “arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.”

FAA has designated EWR an IATA Level 2 “schedule facilitated” airport, which allows the agency to cap the number of takeoffs and landings during peak hours at 79 per hour. That is one rung above Level 3 “coordinated” airports, such as New York JFK, the most slot-constrained category, which gives FAA complete control over slot allocation.

A Jan. 2 deadline for motions and first replies in the case has been set by the appeals court.

Spirit believes the appeal is necessary to preserve competition and ensure low fares are available at EWR, spokesman Erik Hofmeyer said. He noted that United Airlines currently holds nearly 80% of authorizations at the airport, and would operate more than 90 monopoly routes unless new competitors are allowed to pick up slots.

“While we acknowledge that the airport has operational challenges, the remedy shouldn’t be to retire competitive capacity. Rather, all carriers should shoulder the burden in a proportional manner to mitigate delays at the airport, while still preserving competition for consumers,” Hofmeyer said.

A DOT representative could not immediately be reached for comment.

“By law, DOT is supposed to be promoting competition, not preventing it,” said Kurt Ebenhoch, executive director of consumer group Travel Fairness Now. “DOT’s refusal to reallocate Southwest’s unused slots to new competitors only fortifies United’s fortress hub, resulting in consumers paying more and getting less.”

Spirit has been aggressively expanding in recent years, growing capacity by double-digits annually, and recently added new 2020 service from Newark to San Juan, Puerto Rico and several large US cities. The carrier recently announced an MOU with Airbus to purchase 50 new A320neo-family aircraft, including A319neos, A320neos and A321neos, with options to purchase up to 50 more. Spirit most recently had 132 aircraft, with an average age of 6.5 years, in its all-A320-family in-service fleet.