BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC 20590

1 ; ; c., MOTION FOR RECONSIDERATION: BY DONALD L. PEVSNER, ESQ. OF ORDER 2012-11-4 DOCKET DOT -OST -2012-0109

COMES NOW Donald L. Pevsner, Esq

. , original Petitioner and Complainant in this Docket, and moves the Department for prompt reconsideration of Order 2012-11-4, which dismissed his pleadings in this case, and as grounds therefore says: (1 )APPENDIX A to this Motion is an Internet article written by movant in April, 2013, and updated through February 13, 2014

. It sets forth, in detail, the great wrongs done to passengers in foreign air transportation by USDOT since 1978, and is expressly incorporated into this Motion as an integral part thereof. The total unconcern of key newspapers, of "palace guard" Congressional staffers, of the White House Counsel and of alleged pro-consumer organizations is described as a highly-pertinent part of a syndrome of total system failure to protect the consumer in this important matter, which now consists of unlawful overcharges in excess of $6 mil l ion per day and $2

.3 billion per year. But the ultimate responsibility for this outrage rests squarely with USDOT itself. (2)ln Order 2012-11-4, high USDOT official and decisionmaker Samuel Podberesky made the following, incredible statement, which I could hardly believe that he had dared to put in writing at all: "We have

... decided to dismiss Petitioner's request that we open a formal investigation pursuant to 49 U.S.C. Chapter 415 into the reasonableness of the $250 [now $300-400] change penalty imposed by most air carriers and foreign air carriers on nonrefundable tickets in foreign air transportation. 49 U

. S

.C. 41501 requires carriers to establish reasonable rates and rules in foreign air transportation and the Department is authorized pursuant to 49 U.S

.C. 41509 to cancel a rule that is unreasonable after notice and hearing. However, in the 34 [now 36] years since the passage of the Airline Deregulation Act of 1978,the Department has declined to use this authority to strike down fare rules in foreign air transportation." (3)Mr

. Podberesky goes on to state, in terms that would gladden the heart of the staunchest conservative CEO or Tea Party libertarian, that:

"In our view, the public benefits in low fares found to exist under these policies could be undone by the government intrusion requested by Petitioner

. " This is pernicious and spurious laissezfaire nonsense. He similarly has the disingenuous gall to state that:

"

.. . Petitioner has not offered any specific evidence that the international Change fees are unreasonable." The appropriate place at which such evidence would have been more-than-amply presented would have been at a formal USDOT Hearing on the reasonableness of the change penalty fees in foreign air transportation, which statutory and equitable remedy was conveniently foreclosed by Mr

. Podberesky's summary dismissal of the entire Petition on Election Day, 2012, under a Democratic President. Finally, he opined that passengers who wished to avoid change penalty fees could always buy fully-refundable tickets, which always cost many times the price of tickets bearing such change fees

. In his unbridled and smug arrogance and unconcern, Mr. Podberesky has surpassed the oft-quoted statement of William Henry Vanderbilt: "The public be damned", which is precisely the meaning of his decision in Order 2012- 11-4. (4)49 U.S.C

. 41501, which has been on the statute books in principle at least since the Federal Aviation Act of 1958, is still there for a very good reason: Congress, which could have repealed it at any time since the AirlineDeregulation Act of 1978 (which disastrously removed this essential consumer protection from domestic air

transportation) , deliberately did not do so, choosing instead to leave this statute's broad protection in place to protect the citizens of the United States (and citizens of other countries making trips in foreign air transportation)

. However, Mr

. Podberesky, who was the "gray eminence" of USDOT "consumer protection" for decades prior to his retirement about three months ago, made the unilateral decision to simply ignore the express statutory mandate of 49 U.S.C. 41501 and replace it with a hitherto-secret DOT policy of simply disdaining the will of Congress, and of the citizens who elected it. In brief, as stated in Mr. Podberesky's own words, USDOT has functioned as a law unto itself for the past 36 years with regard to 49 U.S.C. 41501

. It is highly germane to ask the fundamental question: "Who gave USDOT the right to disregard a valid and binding Federal statute, and to dismiss all attempts by consumer advocates such as the undersigned to avail themselves and the public of its protection?" Upon reading Mr. Podberesky's description of USDOT's unilateral , total abdication of the regulatory responsibility conferred upon it by 49 U.S.C. 41501, and probably by other, related Federal statutes as well , I suddenly became aware of why at least eight of my own prior USDOT pro bono publico filings had been summarily dismissed , with the same laissez-faire pap "justification" proffered by Mr. Podberesky, over the past fifteen years. The feeling was like being hit over the head with a mallet, coupled with a dramatic loss of faith in government per se. This is manifestly not the way a democracy is supposed to work, and USDOT is not supposed to be a "Star Chamber" in which the rule of law is cavalierly disregarded with utter contempt. (5)USDOT (and, before it, the CAB) has occasionally chosen to disregard the mandates of other sections of the Federal Aviation Act of 1958, as amended , over the decades. Significantly, however, most of these earlier decisions were made because the air travel consumer would be helped, not harmed, by them. Two classic examples of this principle at work were Departmental refusal to prohibit airlines from selling tickets below posted tariff prices, and refusal to enforce particularly-onerous provisions governing affinity and other charter flights

. However, the instant case, and others under the Podberesky modus operandi over the past several decades, is diametrically opposed to the earlier concept of not causing harm to the consumer. Just ask any family of four that has just been hit with $1,600 in change penalty fees on a trip from the USA to Europe: about one-third of the entire cost of all four round-trip tickets. (6)Secretary of Transportation Anthony Foxx, to whom a copy of this Motion is being sent today, is probably unaware of the history in this Docket, as well as (one hopes) the prior decision of USDOT officials like Samuel Podberesky to treat 49 U

. S.C

. 41501 like something in which one wraps rotting fish

. However, Secretary Foxx will no longer be able to claim lack of knowledge of this scandal upon the filing of this Motion. When the Department which he now heads maintains a formally-stated policy of treating governing Federal law like a parking ticket tossed into the nearest gutter, he must either take steps to swiftly cure that inequity or face the justified annihilation of his reputation and integrity

. WHEREFORE, movant expressly requests that Secretary of Transportation Anthony Foxx, personally or via delegation within USDOT: (a)Grant this Motion for Reconsideration of Order 2012-11-4 in Docket DOT-OST-2012-01 09; and (b)Promptly order formal Hearings to be held at USDOT to determine the reasonableness of change penalty fees in foreign air transportation that cost $25 not much more than a decade ago, but which are now topping-out at $400 on all but shorthaul international routes. (c)Order that the Podberesky treatment of 49 U

. S

.C

. 41501 be abolishe f.orthwith, and that ever belatedly, be required to obey the Federal statutes that govern it e ex.is~tenc

.e

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## o 

# ~VSN R Attorney-at-Law [pro bono publico] [Florida Bar #115778: Inactive] 2010 Valle Cay Drive Vilas, NC 28692 TEL.: (828)297-7823 FAX.: (828)297-7824 EMAIL: donpevsner@aol

.comCERTIFICATE OF SERVICE

I , Donald L. Pevsner, Esq ., do hereby certify that true copies of the foregoing Motion for Reconsideration and APPENDIX A thereof have been sent, First Class Mai l , to the following respondents on this eighth day of April , 2014: (a)Secretary of Transportation Anthony Foxx USDOT 1200 New Jersey Avenue, SE Washington , DC 20590 (b)Ai r Transport Association 1301 Pennsylvania Avenue, NW, Suite 1100 Washington , DC 20004 (c)lnternational Ai r Transport Association 1201 F Street, NW, Suite 650 Washington , DC 20004 (d)Alexander Van der Bellen Associate General Counsel Delta Air Lines, Inc. 1212 New York Avenue, NW Washington , DC 20005 [sent by email to:sascha

.vanderbellen@delta

.com 1APPENDIXA EXCESSIVE INTERNATIONAL AIRLINE TICKET CHANGE PENALTIES : U

. S

. DEPARTMENT OF TRANSPORTATION ABANDONS

ITS REGULATORY RESPONSIBILITY

by DONALD L. PEVSNER
Many newspaper stories have been written about how the airlines have turned airline ticket provisions that were once free, or available at nominal cost, into obscenely-large profit centers. A classic example is the change penalty on most domestic and international airline tickets

. Until April 22 , 2013, the standard domestic change penalty was $150 per ticket. Only Southwest Airlines does not impose domestic change penalties. On international tickets, the standard change penalty was $250 per ticket, which is about 25% of the total price of an Economy Class round-trip excursion-fare ticket to Europe

. It used to be $25 before the airlines became greedy beyond any rational expectation. The Airline Deregulation Act of 1978, which is proving to be a major anti-consumer disaster at a time when there are only four giant US airlines left to "compete" , removed Federal jurisdiction over domestic airl ine rates, fares and charges. However, Congress mandated decades ago, and still mandates, that the U

. S

. Department of Transportation continue to regUlate international airline rates, fares and charges

. The pertinent Federal statute is 49 U

. S

.C

. (United States Code) Section 41501 , which remains the law of the land at this writing : "Every air carrier and foreign air carrier shall establish , comply with and enforce-- (1 )reasonable prices, classifications, rules, and practices related to foreign air transportation." A long string of legal precedents defines " reasonable" as meaning "reasonably related to the cost of providing the service

. " On July 2 ,2012 , this writer asked the U.S

. Department of Transportation, by formal Complaint, to open an investigation into the lawfulness of the then-standard $250 change penalty imposed by most air carriers and foreign air carriers on most tickets in foreign air transportation; i.e

. , on international flights to and from the USA. It is eminently clear that the airlines' transaction cost to change an international ticket is practically zero when the passenger does this himself online, and less than $10 when he does it on the telephone with an airline reservations agent. Add "lost opportunity costs" created by unfilled, canceled seats, and a reasonable total cost will not exceed $35-40

. (SOURCE: A prominent airline consultant who has been a senior executive for four major world airlines over the past 35 years.) On November 6, 2012--Election Day for a twice-victorious Democratic President--the Department dismissed the Complaint. The decision maker, a top USDOT official named Samuel Podberesky, used the following language to evade the statutory USDOT responsibility to protect international airline passengers under the applicable statute: "We have

. . . decided to dismiss Petitioner's request that we open a formal investigation pursuant to 49 U

. S

.C

. Chapter 415 into the reasonableness of the $250 change penalty imposed by most air carriers and foreign air carriers on nonrefundable tickets i n foreign air transportation

. 49 U.S.C

. 41501 requires carriers to establish reasonable rates and rules i n foreign ai r transportation and the Department is authorized pursuant to 49 U

. S.C

. 41509 to cancel a rule that is unreasonable after notice and hearing

. However, in the 34 years since the passage 

### of the Airline Deregulation Act 

### [of 1978J, the Department has declined 

### to use this authority 

### to strike down fare rules in foreign air transportation. Moreover, Petitioner has not offered any specific evidence that the international change fees are unreasonable [the appropriate forum for this would have been at 

### a formal USDOT hearing] or demonstrated why we should deviate from our long-standing policy. Passengers can choose whether 

### to buy 

### a refundable or nonrefundable ticket 

### at the time 

### of purchase [with refundable, penalty-free tickets always costing many times the price 

### of nonrefundable tickets] and can choose between carriers offering different fare products [but all airlines except Southwest rip passengers off mercilessly on nonrefundable tickets]

. If the freedom to change plans without paying 

### a

### penalty is 

### a contingency for which the passenger wants to plan, refundable tickets are available in foreign air transportation [with the added cost usually being thousands of dollars extra, rather than $250J

. In our view, the public benefits in low fares found 

### to exist under these policies could be undone by the government intrusion requested by Petitioner [spurious laissez-faire nonsense}, " 

### [Emphasis AddedJ [Order 2012-11-4, Docket DOT-OST-2012-0109, issued on November 6,2012. The enti re Docket contents is available at www. regulations

.gov ; just enter the Docket Number above in the box at the top of the page.) The dollar amount of confiscatory ai rl i ne ticket change penalties is appallingly large. For the year ending June 30, 2013, there were 177,292,438 nonstop international passengers between the USA and foreign countries carried by both U

. S

. and foreign airlines (both outbound and inbound). It is a reasonable estimate that over 90% of these passengers were traveling on nonrefundable tickets containing the then-standard $250 change-penalty provision , as fully-refundable tickets are so expensive that no one but a fool or an expense-account businessman at an unobservant corporation would ever buy one. USDOT's David Smallen [TEL. : (202)366-5568; EMAIL: 

### david

.smallen@dot

.gov 1 has advised this writer that airline change penalties imposed by U.S. airl ines-only on international tickets for the year ending September 30, 2013 totaled $1 ,004,895,000

. As U

. S

. carriers carry 54

.5% of all international traffic to and from the USA, one must add a further $838,949,020 to cover the change penalties imposed by foreign air carriers on the remaining 45

.5% of international passengers carried by them

. THE YEARLY TOTAL EQUALS $1 ,843,844,020 for the year ending September 30, 2013

. As al l airlines have raised thei r standard i nternational change penalty from $250 to $300 since Un ited Ai rlines started this obscene ball of greed roll i ng on April 22 , 2013, the annualized future total of international ticket change penalties now exceeds $2

.2 billion, with over 7

.3 mill ion mulcted international airline passengers each year. On February 10, 2014, Delta Air Lines i ncreased its change penalty on long haul international tickets from $300 to $400

. It is highly probable that its "competitors" wi ll match this unconscionable increase shortly

. After al l , with the U.S. Department of Transportation totally ignoring valid Federal law mandating international pricing reasonableness, what is to stop Delta (or any other airline) from increasing its price-gouging? It is not impossible to foresee a future in which international ai rl ine tickets are treated by the airlines like theatre tickets, with the entire price paid forfeited to them if the passenger does not travel as originally-ticketed

. Given a maximum reasonable change penalty Charge of approximately $35-40, as stated above, the overcharge component now equals an appal ling $260-360 per changed international airl ine ticket, meaning that the new $400 penalty charge contains a 90%+ unlawful-overcharge element. For the press, Congress and USDOT to sit on their unconcerned posteriors in the face of such unlawful and scandalous airl ine price-gouging is an intolerable situation

. As described above, USDOT lost its authority to regulate domestic airline ticket change penalties (and almost everything else pertai ning to what airlines charge domestically) in 1978

. However, the total amount of domestic Change penalties ( @ $200 per changed ticket) imposed by the U.S. domestic airlines is equally outrageous, if technically " legal " due to a total absence of Federal regu lation. In my USDOT Petition for Rulemaking and Complaint, I sought to have USDOT order full ticket refunds on request in cases where the ai rlines unilaterally changed their flight schedu les between the dates of ticket purchase and departure

. This wou ld have been a very nice partial end-run around the Airl i ne Deregulation Act of 1978 on the domestic side, and an equitable remedy on the international side as well. True to form , USDOT also dismissed this count of the Petition

. It is not an exaggeration to state that the rampant overreaching of the Airl ine Deregulation Act of 1978 cries-out for prompt Congressional re-regulation of gouges like the current ai rl ine ticket change penalties in domestic air transportation. However, given a right-wing Republican House of Representatives, and a Democratic Senate whose members don't have to worry about paying to change their own ai rline tickets (special "Government Affai rs" airl i ne reservations desks in WaShington coddle all Members of Congress on such issues), this is not about to happen. In plain English , USDOT has admitted in writing that it has stubbornly refused to enforce clear and valid Federal law for 36 

### years at this writing , thereby flouting the clear di rection and intent of Congress, to the ultimate detriment of the mulcted i nternational airl i ne passenger. DOT's defiance of Federal law and total abdication of its regulatory responsibi lity is nothing less than a rank and incredible outrage

. One would think that the leading US newspapers, and responsible Members of Congress, would be motivated toreport on this major consumer story (the former) and compel USDOT to exercise its Congressionally-mandated

regulatory function (the latter)

. So, I decided in late April , 2013 to try to do something about it in both arenas. The results were an unmitigated disaster, and a litany of unconcern, supercilious annoyance, hostility and unbridled arrogance: (1)NEWSPAPERS: (a)The high-and-mighty NEW YORK TIMES' Washington Bureau employs reporter Matt Wald as its chief aviation reporter

. This worthy did not even bother to reply

. At the TIMES' New York headquarters, a Business reporter who refused to identify himself brushed-off this writer with such hostility that, after I duly reamed him out, he actually called me a few minutes later with a contrite tone in his voice

. Under the circumstances, I refused to speak to him further

. (b)The Washington POST's aviation reporter, one Ashley Halsey III, refused to reply to two voice-mail messages. When I remonstrated with his editor, one Henri Chauvin, I got such a negative reception that my response to him on the telephone was unprintable. Among other things, Mr. Chauvin (from whose name the word "chauvinism" derives) barked at me initially, "You have five minutes

. " He then added that "when anyone calls my cell phone, the house had better be burning down

. " (His voice-mail recording gave me his cell phone number without the pompous bluster.) (c)Three reporters at THE WALL STREET JOURNAL--Jack Nicas, Susan Carey and a Chicago-based aviation reporter who referred me to them--totally ignored this story. Newspapers are a dying business, and deservedly so. In 2009, the NEW YORK TIMES went begging to the world's richest man , Mexican telephone monopolist Carlos Slim Helu, for a $250 million loan at a whopping 14% interest rate. The loan was repaid on August 15, 2011. More recently, having paid $1

. 1 billion forthe BOSTON GLOBE in 1993, the New York Times Company sold it on August 2 , 2013 for a paltry $70 million , taking a $1 ,030,000,000 loss

. A plethora of Ochs-Sulzberger family inheritors continues to whine loudly over the precipitous decline in their Times Company stock, while actually having to contemplate working for a living for the first time in their pampered lives

. Over at the WASHINGTON POST, that Company's only profitable (but declining) asset is Kaplan, lnc.: the test-preparation service, which grossed $2.2 billion in revenue in CY2012 amidst scandals and lawsuits involving its online university degree programs. As a direct result, the owning Graham family sold the POST to Amazon CEO Jeff Bezos for a pathetically-low $250 million, on August 5, 2013, following the demise of its NEWSWEEK Magazine

. All of this is "poetic justice" for the cavalier and peremptory way in which these supremely-arrogant newspaper "institutions" routinely conduct their affairs with anyone but the rich, powerful and well-connected. Given the welcome presence of the Internet, I would much rather write my own story with my own unedited facts, and post it on my own website for dissemination, than speak to one more unqualified , oblivious, incompetent, self-important newspaper reporter at nearly any newspaper in the nation. I have done so here. (2)CONGRESS : (a)Senator Barbara Boxer's Washington office was a disorganized disaster. I wasted over three hours over the course of a week trying to reach a responsible policy staffer. Two of her Senior Legislative Assistants--Lynn Abramson and Cerin Lindgrensavage--never returned several voicemail messages. Her Senior Counsel , one Brian McKeon, chided me for "bothering the staff'. I told him, appropriately, to go to hell. (b)Senator Elizabeth Warren's office provided zero assistance, though I did speak to her chief "issues" person , one Ganesh Sitaraman , who couldn't have cared less. (c)Senator Maria Cantwell , who chairs the Senate Commerce Subcommittee on Aviation Operations, Safety and Security (which should be leading the fight against USDOT on this issue) , has a Seattle-based Chief of Staff named Jennifer Griffith who was "unavailable." I did manage to speak to a junior Seattle staffer named Christian Chiles, who at least understood the issues and sympathized with the consumer. I asked him to find me a senior Washington policy person in Senator Cantwell's office, and have them call me back to discuss them. Ten months later, no one has bothered to call. (The appropriate person is one Michael Daum.) (d)Senator Charles Schumer-a notorious Senate "grandstander"-- issued a press release about eightmonths ago which asked the U.S. airlines to voluntarily roil-back their new $200 domestic change penalty to its

prior $150 level. Given the realities of capitalism, and a total lack of government regulation of domestic rates, fares and charges since 1978, this was an ill-informed and idiotic pipe-dream. I thereupon suggested that Senator Schumer pressure USDOT on the international change penalty instead , where a clear Federal law mandates its regulatory enforcement function

. After all , a dramatic decrease in the international ticket change penalty while a grossly-overinflated domestic change penalty remained would raise all sorts of consumer " red flags" , and probably force the airlines to lower domestic penalties as well , even without regulation. No one ever got back to me from the office of this self-promoting blowhard , who remains "Wall Street's best friend on Capitol Hill " and who never met a hedge-fund billionaire he didn't truckle to via preserving capital gains Federal income tax breaks on
"carried interest" that none of them deserves

. (e)Senator Kirsten Gillibrand , the junior New York Senator, has not bothered to reply to my request that she proceed to pressure USDOT as well. I do not expect any response, as she is far too busy reading recent, favorable profi les of herself in THE NEW YORKER and THE NEW YORK TIMES to give a damn about the air-travel consumer in her own State: the nation's busiest international travel market by far

. (f)Richard Swayze is a top Majority staffer at the Senate Commerce Subcommittee on Aviation Operations, Safety and Security. In two weeks, he did virtually nothing to put me in touch with senior Legislative Assistants in the above Senators' offices

. After I realized that he spent most of his time in " meetings", and was brushed-off by h i m once too often , I decided that further attempts to get him to act were an utter waste of my time. With a Congress l i ke this, no wonder the January 8, 2013 Public Policy Poll gives its members a wretched 9% approval rating , with 85% of the polled public viewing Congress in a negative light. Cockroaches did a lot better in the same poll. From personal experience, their staffers are even worse, and insulate their entrenched, elected bosses even better than AI Capone's "torpedoes" protected him during the " Roaring Twenties". The best way to force USDOT to do its job is for both Congress and the White House to "jawbone" the new Secretary of Transportation , former Charlotte, NC Mayor Anthony Foxx

. A responsible press, if there is such a thing , also needs to banner this scandal across the nation

. An alternate method is for a major consumer organization like CONSUMERS UNION (publisher of CONSUMER REPORTS Magazine) to ask for a Writ of Mandamus from the U

. S

. Court of Appeals for the District of Columbia (or another) Circuit, that will force the Secretary of Transportation to hold hearings to determine the reasonableness of the now-$400 change penalty on nonrefundable international ai rl ine tickets

. I requested that CONSUMERS UNION take such action on Apri l 8, 2013

. However, on April 19, 2013, CONSUMERS UNION refused to lift a fi nger, and even refused to report the story to its readers. The culprits are its (thankfully-departing) President and CEO, James Guest, and its Washington-based Director of Federal Pol icy, Ellen Bloom. Mr. Guest prefers to peddle $14 " New Car Price Reports" to his readership, while carefully omitting to mention that the same information is available free from websites such as www. nada

.com : a mockery of his organization's sanctimoniously-proclaimed "ethics"

. The WaShington , DC-based consumer organization , PUBLIC CITIZEN , founded by Ralph Nader, refused to intervene as well , under the " leadership" of one Robert Weissman

. It remains to be seen whether FLYERS' RIGHTS or CONSUMER TRAVEL ALLIANCE will possess the requ isite level of duty and responsibility to belatedly issue a press release describing the current situation , and campaign for swift reform on point. For a consumer advocate such as myself to try to penetrate the White House political swamp without being a large campaign donor first is ludicrous

. I got dumped by its low-level , call-screening telephone switchboard operators into the mean i ngless "Comment Line" recording when I tried several times to reach a responsible Pol icy person there

. And White House Counsel Kath ryn Ruemmler never replied to a copy of th is article that I mai led to her in early January, 2014

. Such is the way of our political world

. But it is a very valid question to ask why a top USDOT staffer in a Democratic Administration--Mr

. Podberesky-has been more of a laissez-faire advocate in this important consumer matter than the most rabid "Tea Party" member

. Fortunately for us all , Mr

. Podberesky retired from USDOT in January, 2014

. His first stop after leaving his USDOT desk for the last time should be a Koch Brothers' front organization , or the Heritage Foundation , where he would doubtless be welcomed with open arms and wallets

. Vilas, North Carolina UPDATED February 13, 2014 EMAIL: DonPevsner@aol

.com*DONALD L. PEVSNER, a Member of The Florida Bar, has been a prominent aviation consumer advocate since

1972, donating his time to the public interest. He is a former syndicated newspaper columnist for Universal Press Syndicate on travel consumer affairs.