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The Prehearing Conference

Faced with a series of applications involving the North East quadrant of the United States, the Civil Aeronautics Board issued an order early in 1953 that initiated the New York Chicago case, and invited any parties that had not yet filed to submit their applications. The order named the examiner in charge of the case, and stated that he would soon be calling a prehearing conference. From the time of the notice of prehearing conference, the case was considered to be a "formal adjudication."

This meant not only that no airline representative could discuss the case with members or staff of the board except " on the record", but that the examiner himself was not isolated and could not talk about the case with either the members on the staff of the Board. The examiner, of course, had access to the Civil Aeronautics Board library, and he was familiar with the previous decisions of the board. But he could not know how the current would have viewed diversion vs route strengthening, competition vs service to the public, etc, and at least in the theory, he could not even know how fellow examiners were looking at the same issues in other cases. All of this was a consequence of the "separation of functions" enforced rigorously by the Civil Aeronautics Board.

The Consolidation Order

Following the preparing conference, a consolidation order was drafted by the board's opinion writing division and submitted to the members of the board. The members informally accepted the draft plus a suggestion made by the chairman and on May 6, 1953, the formal order of consolidation was issued over the board's signature. The consolidation order adhered essentially to the notice of Pre-hearing Conference in defining the area to be covered in the case.

Enter A New Comer

Does Fahad New York Chicago case had proceeded roughly like other major route cases, both before and after. One feature made the New York Chicago case different however. The North American Airlines group, the most successful and the non-scheduled carriers, had filed an application on April 3, 1953, for a nationwide air coach system, at fares "materially below" those charged by the majors. Now North American moved to bring its application into the New York Chicago case.

Preparation For The Hearing

By now half a year had gone by, accompanied by substantial skirmishing and at least one major decision of great importance. The examiner was now in a position to issue a revised schedule of dates for the filing of:

a) Service proposals

b) Exhibits in chief

c) Rebuttal exhibits.

The Hearing

Eventually the hearing date arrived, and for six and half weeks the hearing went on, five days a week, five hours a day, with only three working days off. Fifty Two attorneys entered appearances, representing eleven carriers, the Bureau of Air Operations and thirty cities, Chambers of Commerce, and comparable organisations.

Testimony for American Airlines

The testimony offered for American Airlines and the examinations of its witnesses were typical in many respects of trunk line presentations in major route cases.

American was represented by members of a large, distinguished Washington law firm, Covington and Burling.

Cross Examination

Each cross examiner sought to bring out the impact, if any, of American's proposed service on the service his client was giving or proposing to give, to show weaknesses or inadequacies in American's past service and present proposals and to get from the witness some statement helpful to his client's case.

Testimony for North America

The American testimony and controversies over Americans exhibits had led to some stormy and involved scenes. These were pale and simple, however, to what took place when North American's case was put on. The presentation and reception of American's case were typical for a major carrier in a major Civil Aeronautics Board route preceding of that period. An illustration of the thoroughly untypical was provided by North American.

North American's testimony ran through the major part of seven hearing days.

Actual cross examination dealt mainly with such topics as the realism of the proposed schedules and cost estimates and North American's finances and history.

The Initial Decision

The examiner's decision in New York Chicago up 148 pages as eventually printed in the Civil Aeronautics Board reports, including various appendices. If the examiner was the one person familiar with the complete record, one could hope that the board - and certainly all the Counsel for the parties and the board's opinion - writers - would study his decision with care. The experienced examiners, all law trained and many with prior experience on the staff of the Civil Aeronautics Board were proud of their ability to reduce each party's position as well as the "evidence" to manageable and comprehensible proportions, not coloured by the value judgements that went into their conclusions and recommendations.

Decision By The Board

All parties routinely Appealed major route cases to the board, and responded to the appeals of their Rivals. But though the record was fixed and the "objective facts" could not normally be overturned, decisions about competition and efficiency, service to the public and strengthening weaker carriers, diversion, load factors, and the rest were not really "facts" but exercises in judgement. American Airlines might take exception to "the examiner's failure to conclude that the public convenience and necessity require American's entry into Pittsburgh or Philadelphia might except to" the examiner's finding that competitive service between Philadelphia, on the one hand, and Pittsburgh, Cleveland and Detroit, on the other, is not required by the public convenience and necessity.

The briefs to the board tended to be shorter and less technical then the briefs to the examiner, but apart from comments on the initial decision, not substantially different from the first round briefs. Most Counsel incorporated some statements from their earlier briefs by reference.

All the carrier parties requested opportunity for oral argument - the one time Counsel could be sure to have the attention of all five members of the board, as contrasted to opinion writers, staff assistants and the like. Originally each applicant for a route grant was assigned 30 minutes, and intervenors 10 minutes. After various parties complained, a revised schedule was worked out, providing for nearly two full days of arguments.

Navin Kumar Jaggi

Sayesha Suri


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