BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Complaint of Benjamin Edelman, Esq. Docket DOT-OST-2013-0025 

SUR-REPLY OF BRITISH AIRWAYS PLC TO REPLY OF COMPLAINANT 

Communications with respect to this document should be sent to: 

Richard Mendles 

General Counsel, Americas 

James B. Blaney 

Senior Counsel, Americas 

British Airways Plc 

2 Park Avenue, Suite 1100 

New York, NY 10016 

richard.mendles@ba.com 

jim.blaney@ba.com 

 

Richard F. Hans 

Keara M. Gordon 

Colleen Carey 

DLA Piper LLP 

1251 Avenue of the Americas 

New York, NY 10020 

keara.gordon@dlapiper.com 

richard.hans@dlapiper.com 

colleen.carey@dlapiper.com 

 

Don H. Hainbach 

Erin M. Tallardy 

Garofalo Goerlich Hainbach PC 

1200 New Hampshire Avenue NW 

Washington, DC 20036 

Phone: 202-776-3970 

dhainbach@ggh-airlaw.com 

etallardy@ggh-airlaw.com 

May 3, 2013
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Complaint of Benjamin Edelman, Esq. Docket DOT-OST-2013-0025 

SUR-REPLY OF BRITISH AIRWAYS PLC TO REPLY OF COMPLAINANT 

 British Airways Plc (“British Airways” or “BA”) hereby responds to the reply (the 

“Reply”) filed by Benjamin Edelman (“Mr. Edelman” or “Complainant”) to BA’s answer (the 

“Answer”), which responded to Mr. Edelman’s complaint (the “Complaint”) alleging that BA 

misrepresented airline-imposed fuel surcharges as taxes in violation of 49 U.S.C. § 41712 and 

that BA’s fuel surcharges exceeded actual fuel costs. BA respectfully requests that the 

Department of Transportation (“DOT”) decline to conduct an enforcement proceeding and 

dismiss the Complaint pursuant to 14 C.F.R. § 302.406(a)(2). 

Introduction 

 Mr. Edelman’s Complaint advanced a host of unfounded allegations against BA, one of 

which was a brazen claim that BA’s fuel surcharges exceeded its cost of fuel. In his Reply, Mr. 

Edelman conclusively disproves that assertion: he admits that BA’s fuel surcharges do not 

exceed its actual fuel cost on at least two of his three sample routes, for LHR-LAX, thus 

effectively admitting that he was wrong. (Reply at 6-7.) For the reasons set forth in this brief, 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 2 

his analysis is similarly flawed and thus produces an equally errant conclusion with regard to the 

third sample route, BOS-LHR. 

 Mr. Edelman’s Reply also impliedly concedes other arguments. 

• For example, in its Answer, BA established that the price of jet fuel, with limited 

exceptions, has risen significantly and nearly continuously since 2003, and that its fuel 

surcharge, while never recouping the entire cost of fuel, generally has tracked (although 

not precisely) the rising fuel market. (Answer at 3-4.) Mr. Edelman does not dispute 

those facts. 

• BA established that there cannot be – for a host of reasons – an exact correlation between 

the fuel surcharge imposed and the cost of fuel actually expended on a particular flight. 

(Answer at 5-7.) Mr. Edelman does not dispute that such a calculation would be 

impossible. Instead, he claims that such a standard is “perfection,” and he claims he 

never demanded that. But, he does demand precisely that. 

• BA asserted that it was clear that Mr. Edelman was not confused, much less deceived, by 

anything he viewed on the BA website. (Answer at 2.) In response to that challenge, Mr. 

Edelman is mute. 

• BA established that the relief that Mr. Edelman seeks is unavailable to him, citing case 

law establishing that there is no private right of action under 49 U.S.C. § 41712. (Answer 

at 2-3.) Again, Mr. Edelman makes no argument in response. 

 For all of the reasons herein and in its Answer, BA respectfully urges the DOT to decline 

to commence an investigation or formal enforcement proceeding. Finally, since the parties have 

completed two rounds of briefing, we ask that the DOT not permit any further pleadings. 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 3 

I. THE CRUSHING COST OF FUEL JUSTIFIES A FUEL SURCHARGE. 

 Mr. Edelman’s complaints about the imposition of a fuel surcharge ignore a significant 

fact: since 2003, the annual cost of jet fuel to BA has more than quadrupled, from £842 million 

as of March 2003, to a staggering £3.7 billion in 2012. 

 In an attempt to defray a portion of these skyrocketing costs, BA imposes a fuel 

surcharge on its flights. In so doing, BA is not unique or an outlier – many airlines began to 

impose fuel surcharges in the same period and that remains the industry practice today. And, 

fuel surcharges are not limited to airlines; they are imposed by numerous other transportationrelated industries, such as: agribusiness companies, concrete companies, food delivery services, 

railroads, records management companies, shredding services, shipping companies, 

transportation companies, trucking companies and waste management and environmental 

services. 

 BA’s fuel surcharge was introduced after the end of fiscal year 2004 (March 31, 2004), 

when BA paid a 9.5 percent increase in fuel and oil costs over the prior year, (for a total of £922 

million), and it predicted an additional £150 million fuel cost increase in 2004/2005. By March 

2005, fuel prices were at “record highs”; the cost of fuel was up 75 percent from early December 

2003, which resulted in a “heavy hit to the bottom line.” Fuel was “the major cost issue” for BA 

at that time. And, as explained in BA’s Answer, with limited exceptions, the cost of jet fuel rose 

significantly and nearly continuously since 2003. (Answer at 3-4.) 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 4 

II. MR. EDELMAN’S ANALYSIS REMAINS FLAWED. 

 Mr. Edelman’s revised analysis conclusively disproves his initial (incorrect) assertion 

that BA’s fuel surcharges exceeded its actual fuel cost on at least two of his three sample routes, 

for LHR-LAX. (Complaint at 2-3; Reply at 6-7.) As to the remaining BOS-LHR route, Mr. 

Edelman’s revised analysis continues to suffer from misinformation and a fundamental 

misunderstanding of airline economics. BA does not intend to engage in a never-ending loop of 

dueling calculations with Mr. Edelman. Nevertheless, BA is compelled to point out certain 

glaring misconceptions that continue to inflate Mr. Edelman’s estimated fuel surcharge revenue 

and underestimate BA’s cost of fuel. 

1. Mr. Edelman’s Analysis Continues to Underestimate the Cost of Fuel. 

 Mr. Edelman’s analysis assumed that BA’s planes contain the exact amount of fuel 

necessary to get passengers to their destination and no more, based on the scheduled flight time, 

which BA pointed out was incorrect. (Answer at 7-8.) In response, Mr. Edelman continues 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 5 

improperly to assert that the calculation should be based on the exact amount of fuel necessary to 

reach a destination, without allowances. (See Reply at 5.) 

 European Union regulations require BA to carry more than the exact amount of fuel 

required to travel between two points. The European regulations require operators to calculate 

the usable fuel to include sufficient fuel to taxi, fly to the destination, have sufficient additional 

reserve fuel, which includes fuel to fly to an alternate airport, and any additional fuel the 

commander may require. EU OPS 1.255. For a six hour and twenty minute flight, such as the 

one Mr. Edelman focuses upon from BOS-LHR, the regulations require that BA, at a minimum, 

carry the amount of jet fuel necessary to fly for eight to nine hours. Those requirements, as well 

as comparable requirements imposed on U.S. carriers by the Federal Aviation Administration, 

reflect the inescapable fact that the fuel required for a typical flight exceeds the bare minimum 

suggested by Mr. Edelman’s calculations. 

 Furthermore, Mr. Edelman attempts to explain the inaccuracies in his initial analysis by 

complaining that he had to rely on publicly available information to support it, suggesting that 

the use of publicly available information constituted the failing in his analysis.1

 (Reply at 5.) He 

misses the point. BA’s criticism, among others, was that Mr. Edelman used stale and inaccurate 

information rather than availing himself of more recent, publicly available information, such as 

the information BA used in its Answer. For example, Mr. Edelman obtained fuel consumption 

information from a 2003 BA website rather than the updated information available from BA’s 

2007 Factbook, which disclosed higher fuel consumption figures. Mr. Edelman’s use of such 

stale information improperly underestimated the cost of fuel to BA in his analysis. 

 

1

 BA also relied solely on publicly available information since information concerning BA’s fuel costs and 

fuel surcharge revenue is confidential, competitively-sensitive information that would damage BA if it were 

disclosed in a public filing. 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 6 

 Finally, Mr. Edelman’s attempt to use the fuel surcharge analysis contained within the 

comment of Mike Borsetti as confirmation of the accuracy of his own analysis is misguided 

because Mr. Borsetti’s analysis is similarly flawed. Mr. Borsetti’s fuel cost for the BOS-LHR 

flight ($1,009.5 per tonne) was alleged to be based on “the current highest average price paid ... 

compiled weekly by IATA.” (DOT-OST-2013-0025-0060.) Yet a review of the actual price 

from IATA’s website as of January 25, 2013 (shortly before Mr. Edelman filed his complaint) 

was actually $1,054.8 per tonne and the price as of March 1, 2013 was even higher at $1,078.3 

per tonne. Moreover, Mr. Borsetti, like Mr. Edelman, also failed to factor in European Union 

regulations that require the plane to carry approximately the jet fuel necessary to fly for eight to 

nine hours. Both of these errors significantly understate BA’s cost of fuel. 

2. Mr. Edelman’s Analysis Continues to Inflate Fuel Surcharge Revenue. 

 Mr. Edelman criticizes BA for not using the “most precise data” available for load 

factors, which he contends are reflected in “BA’s 2012 Traffic Statistics.” (Reply at 6.) Mr. 

Edelman’s source material, however, was not BA-specific but instead reflected the aggregate 

load factors for International Airlines Group (“IAG”), which reported the combined load factors 

for BA and Iberia Airlines. (Complaint at 3.) A review of IAG’s publicly available January 

2013 Group Traffic and Capacity Statistics reveals that BA’s load factors are much lower than 

those utilized by Mr. Edelman (BA’s passenger load factor for the North America route was 77 

percent and its cargo load factor was 69.6 percent). Therefore, Mr. Edelman’s analysis is flawed 

and his estimate of fuel surcharge revenue remains improperly inflated. Making these simple 

adjustments would drop Mr. Edelman’s estimate of BA’s fuel surcharge revenue below his 

estimate of BA’s cost of fuel on any route, including the BOS-LHR route. 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 7 

3. Mr. Edelman’s Basis Fare is Well Below the Average Fare Paid by Customers on that 

Flight. 

Mr. Edelman asserts that BA’s fuel surcharge is not a reasonable estimate of perpassenger fuel costs above a baseline and supports this inaccurate assertion with a price quote he 

obtained for a flight from BOS-LHR, which departed on March 4, 2013. (Complaint at 2.) As 

an initial matter, Mr. Edelman selected for his analysis one of the least desirable (and, as such, 

least expensive) flights: a daytime departure on a Monday in March.2 That quote reflected a base 

fare of $182, which resulted in the fuel surcharge exceeding 70 percent of the round-trip ticket 

price. (Complaint at Attachment 6.) As BA has already explained, Mr. Edelman’s analysis was 

not an accurate representation of the fares paid for that flight. In fact, the base fare relied upon 

by Mr. Edelman ($182) was the lowest base fare paid by any BOS-LHR economy class 

passenger on that flight. Moreover, it was well below the average base fare price of 

approximately $796 paid by BOS-LHR passengers in economy class on that flight. The fuel 

surcharge for the average base fare paid by an economy class BOS-LHR passenger represented 

only approximately 36 percent of the ticket price, and for many of the tickets on that flight, the 

fuel surcharge was a significantly lower percentage than that. 

III. BA’S CARRIER CHARGES COMPLY WITH DOT RULES. 

 Mr. Edelman’s allegations regarding the “Carrier Charges” terminology are even more 

misplaced than his fuel surcharge allegations. (Reply at 9-10.) Although he cites the DOT’s 

February 21, 2012 Guidance (the “February Guidance”), Mr. Edelman fails to acknowledge that 

 

2

 In contrast to Mr. Edelman’s selected flight, economy passengers typically prefer nighttime flights and they 

prefer to travel on weekends. March is also during the low season for travel between the U.S. and the U.K. 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 8 

the February Guidance specifically addresses and authorizes the carrier charge terminology: 

“Language such as ‘Taxes and carrier-imposed fees’ would be acceptable, for example.”3

 Mr. Edelman also fails to acknowledge that the “Carrier Charges” terminology reflects 

widespread industry practice. For example: 

• Delta’s website refers to $645.70 in “taxes/carrier-imposed fees” in connection with a 

JFK-LHR routing and further indicates that $458 of the “carrier-imposed fees” are 

attributable to a “carrier-imposed international surcharge,” 

• Lufthansa’s website refers to an “international surcharge,” 

• Air France’s site refers to a “carrier surcharge” as well as to a “carrier imposed 

surcharge,” and 

• KLM’s site refers to a “carrier-imposed international surcharge.” 

 The transition from use of the term “fuel surcharges” to the terminology “Carrier 

Charges” resulted from BA’s understanding, primarily based on the February Guidance, that the 

DOT preferred that terminology. BA’s Answer, as well as the balance of this Sur-reply, refute 

any allegation that BA did not comply with the requirement that it provide a reasonable estimate 

of costs incurred above a historical baseline. 

 Mr. Edelman’s additional allegation regarding the “Charges applied to your flight” page 

is nonsensical. (Reply at 9-10, Attachment 1.) That page is conspicuously named “Charges 

applied to your flight” and clearly distinguished between “Government, authority and airport 

charges,” on the one hand, and “British Airways fees and carrier charges,” on the other hand. 

There is virtually no possibility that any consumer could possibly be confused. As Mr. Edelman 

 

3

 BA respectfully submits there is no meaningful distinction between the word “fees” and the word 

“charges.” For example, Merriam-Webster’s Dictionary defines a fee as “a sum .... charged for a service” and a 

charge as “the price demanded for something.” 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 9 

is likely aware, the “tax breakdown” language he references is lifted from the backend code 

defining the structure—not content—of the website. Mr. Edelman is simply attempting to create 

an issue where none exists.4

IV. BA’S ONBUSINESS WEB PAGES ARE NOT OFFERED TO THE GENERAL 

 PUBLIC.

 BA welcomes Mr. Edelman’s acknowledgment that OnBusiness is a business-to-business 

(“B2B”) initiative. (Reply at 10.) BA respectfully disagrees, however, that the fact that the 

OnBusiness program is not offered to the public is irrelevant. 

 The DOT’s consumer protection regulations, including its regulations governing Internet 

advertisements, historically have been applied to protect the general public. See, e.g., 

Department notices entitled “Prohibition on Deceptive Practices In the Marketing of Airfare To 

the Public Using the Internet,” dated January 18, 2001 and “Revised Enforcement Policy on 

Deceptive Practices Regarding Service Fees Charged by Travel Agents In the Marketing and 

Sale of Airfares To the Public Via the Internet,” dated December 19, 2001 (emphasis added).

 The DOT also recently confirmed that its consumer protection rules regarding disclosure 

of ancillary fee information are intended to protect the general public and do not apply to nonpublic arrangements between carriers and corporate travel offices. It stated, 

The rules regarding display of ancillary fee information, including 

baggage allowances and fees, only apply to displays of flight schedules 

and fares that are available to the general public. With respect to flight 

displays that are not available to the general public, an online booking tool 

is not required to display ancillary fee information as it is for publicly 

available service .... For example, if an online booking tool provided 

limited access to displays of flight schedules and fares that are only 

available to a specific group with special access, such as airline 

employees, or a company’s employees pursuant to a carrier’s contract with 

 

4

 Out of an overabundance of caution, BA is in the process of changing that page’s structural code from “Tax 

Breakdown” to “Breakdown of Taxes, Fees and Carrier Charges.” 
Sur-Reply of British Airways to Reply of Complainant 

May 3, 2013 

Page 10 

that company, the requirement to display ancillary fee information does 

not apply to those limited access displays. 

Answers to Frequently Asked Questions Concerning the Enforcement of the Second Final Rule 

on Enhancing Airline Passengers Protections (EAPP#2), Section VII, Question #7, Revised on 

June 15, 2012 (emphasis added). 

 The OnBusiness Terms and Conditions specify that “Membership is not open to 

individuals” and the OnBusiness program is not held out to the general public. BA is not aware 

of any precedent for the DOT applying its consumer protection regulations to travel 

arrangements between carriers and corporate travel departments. BA’s practice is also consistent 

with the practice of U.S. carriers. As such, the allegations regarding the OnBusiness program are 

without merit. 

V. MR. EDELMAN MISCHARACTERIZES THE NATURE OF THE TENSION 

 BETWEEN THE EU AND US RULES. 

Mr. Edelman mischaracterizes the “tension” between the US and EU rules raised by BA 

in its Answer. EU rules require (in relation to the sale of flights to or from the EU) that the 

indication of the final price to be paid for a flight shall be accompanied by details of “other 

charges, surcharges or fees, such as those related to security or fuel.” Regulation (EC) 

No. 1008/2008 of the European Parliament and of the Council [2008] L 293/3, Art. 23. This 

means that any fuel surcharge should be described as such, rather than using the “carrier charge” 

terminology suggested by the DOT. To ensure compliance with EU rules, BA has continued to 

use the term “fuel surcharge” for all of its worldwide flights, but, in deference to the DOT’s 

preference for the term “carrier charges,” has done so using the terminology “European fuel 

surcharge/U.S. carrier charge.” It is this tension to which BA previously referred which, 

contrary to Mr. Edelman’s assertions, is entirely genuine.