Hopes that the House would vote on the proposal to repeal the Wright amendment before fall vanished Wednesday.
It now appears lawmakers will not vote on the North Texas plan to bring long-haul flights to Dallas Love Field until after Labor Day when Congress returns from its August recess.
Plans to make a last-minute push for a vote ended Wednesday, when House Speaker Dennis Hastert agreed to refer the bill to the House Judiciary Committee. Mr. Hastert was acting on a written request received Monday from Judiciary Committee Chairman James Sensenbrenner, R-Wisc. The speaker set a Sept. 15 deadline for the judiciary committee to finish its work.
Rep. Kay Granger, R-Fort Worth, said she was disappointed but predicted the plan would eventually be enacted.
"It was extremely ambitious, the schedule we were asking for," she said. "I don't have any doubts we will get this done. There is a lot of momentum."
North Texas members of the House were hopeful they could get a vote this week and generate a sense of momentum that would have spilled over into the Senate.
The Senate will be in session for another week and could still vote on the proposal before the August recess.
Plans to get a rapid House vote began to fade early in the week, when it took longer than expected for the staff of the House Transportation and Infrastructure Committee to hammer out the language in a joint House-Senate version of the bill.
Efforts to bring the Senate version of the bill to a vote were complicated by several pages of comments questioning the competitive aspects of the plan generated by the Antitrust Division of the Justice Department.
The comments were circulated Tuesday on Capitol Hill, but the Justice Department subsequently issued a statement saying they were not opposing the proposal.
Critics, including the Justice Department, question a 20-gate cap placed on Love Field in the agreement and included in the proposed legislation.
Senators are assessing the concerns raised by the Justice Department. Proponents of repealing the Wright legislation now must worry that the comments might foment more opposition during the August recess.
"It looked like things were moving pretty smoothly until this," said Sen. John Cornyn, R-Texas. "And now, I don't know whether this is a speed bump or a brick wall. We need to study it further to figure that out."
House and Senate sponsors of the Wright bill maintain that cities have a legal right to limit the number of gates at airports they own.
Antitrust experts agree, but they say the involvement of the airlines in such a deal creates the antitrust concerns that the local parties are trying to address through federal legislation.
The Justice Department memo disclosed this week said the restrictions outlined in the agreement involving the two airlines were "hard-core" violations of antitrust law.
Under a provision of antitrust law known as the Noerr-Pennington doctrine, companies are allowed to make agreements that may be anticompetitive if the goal is to influence a government body to take action. The principle, based on free-speech rights, allows companies to join together to seek legal action that might benefit them while eliminating competition.
But two airlines could only carry out their agreement if it received the government approval they came together to pursue, said James Weiss, who once headed a section of the Justice Department's Antitrust Division overseeing transportation issues.
"The concerns of the Justice Department are likely due to the fact that the legislation would implement an agreement and immunize an agreement that would otherwise violate the antitrust laws," said Mr. Weiss, now a partner at Preston Gates & Ellis LLP.
The head of the House subcommittee over aviation, Rep. John Mica, R-Fla., identified the concerns earlier this month at a hearing on the Wright proposal.
Mr. Mica wanted a simpler version of the legislation and asked which pieces of the agreement could conceivably be implemented without federal law. A D/FW Airport official acknowledged that the gate limitations could be done on their own.
Still, Mr. Mica responded, "You'd probably be sued, so this is your cover."
Days later, Love Terminal Partners sued the five parties under federal antitrust claims. The company owns the six-gate Love Field terminal that would be demolished under the deal.
The House version already has been approved by the transportation committee. But Mr. Sensenbrenner claimed partial jurisdiction over the legislation so his committee could examine antitrust issues in the proposal.
The legislation would implement the June 15 agreement to repeal the Wright amendment in eight years. It was signed by the mayors of Dallas and Fort Worth and Dallas/Fort Worth International Airport, as well as American Airlines Inc. and Southwest Airlines Co.
In his letter to the speaker, Mr. Sensenbrenner points to language in the bill that would bulletproof the plan from federal antitrust laws. He noted that the bill deems the five parties to be in compliance with "competition laws."
"While not explicitly defined in the legislation, 'competition laws' encompass those related to the protections of trade against unlawful restraints, price discrimination, price fixing, abuse of market for anticompetitive purposes and monopolies," Mr. Sensenbrenner wrote to Mr. Hastert.
The judiciary panel has several options for dealing with the legislation. It can send the bill on to the full House with either a favorable or unfavorable recommendation.
Or, the panel could amend any provision within its jurisdiction. Amending the bill would pose the most serious problems for proponents because it would force the House to renegotiate the new terms with their Senate colleagues.
With this bill, that becomes exceedingly complex because lawmakers have to check back with all five parties in North Texas.
"There are two cities, two airlines and an airport that all have a part of it," Ms. Granger said. "We are trying to keep that coalition together. That makes it more complicated."
Mr. Sensenbrenner did not say there was anything wrong with the legislation. That left some North Texas lawmakers to speculate that he wants to protect his committee's jurisdiction on antitrust matters while reviewing the legislation for potential problems.
In the Senate, Sen. Patrick Leahy, D-Vt., has raised similar issues about a version of the bill that is attached to a $69 billion transportation spending bill.
Sen. Kay Bailey Hutchison, R-Texas, got her proposal added to the spending bill as a backup measure in case her free-standing bill to repeal the Wright amendment is blocked.
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