BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Docket

Docket DOT-OST-2013-0214 

ANSWER OF AIR EUROPA LINEAS AEREAS, S.A.U.

TO THIRD-PARTY ENFORCEMENT COMPLAINT

Communications with respect to this document should be sent to:

Aaron A. Goerlich

Garofalo Goerlich Hainbach PC

1200 New Hampshire Avenue NW

Washington, DC 20036-6802

Tel (202) 776-3974

Fax (202) 776-3975

agoerlich@ggh-airlaw.com

Counsel for Air Europa Lineas

 Aereas, S.A.U.

January 14, 2014

BENJAMIN EDELMAN,

Third-Party Complainant

v.

AIR EUROPA LINEAS AEREAS, S.A.U.,

Respondent

 
BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Docket

 Docket DOT-OST-2013-0214

ANSWER OF AIR EUROPA LINEAS AEREAS, S.A.U.

TO THIRD-PARTY ENFORCEMENT COMPLAINT

Air Europa Lineas Aereas, S.A.U. (Air Europa), pursuant to Rule 405 of the 

Department’s Rules of Practice, 14 CFR § 302.405, submits the following answer to the 

third-party enforcement complaint (Complaint) of Benjamin Edelman. Air Europa 

requests that the Assistant General Counsel for Aviation Enforcement and Proceedings 

dismiss the Complaint in accordance with Rule 406(a)(2). 

Summary

Air Europa is a Spanish air carrier operating in numerous countries including 

Spain and the United States. The Complaint is addressed entirely to Air Europa’s 

website marketed to consumers in Spain. The Complaint is not addressed to Air 

Europa’s website marketed to consumers in the United States. The Department lacks 

jurisdiction over the website that is the subject of the Complaint. The Complaint should 

be dismissed.

BENJAMIN EDELMAN,

Third-Party Complainant

v.

AIR EUROPA LINEAS AEREAS, S.A.U.,

Respondent
Answer

Notwithstanding that the Department lacks jurisdiction over Air Europa’s website 

marketed to consumers in Spain, this answer and the affirmative defenses below are

submitted in compliance with Rule 408(b). Any allegation of the Complaint not 

addressed below is denied. Several of the Complaint’s allegations are conclusions of 

law as distinguished from allegations of fact. Air Europa is without knowledge to 

respond to conclusions of law.

1. Air Europa denies Paragraph 1 of the Complaint.

2. Air Europa is without knowledge sufficient to respond to Paragraph 2 of the 

Complaint.

3. Regarding Paragraph 3 of the Complaint, Air Europa admits that Attachments 

1 through 4 of the Complaint are copies of pages from its website marketed to 

consumers in Spain. Air Europa denies that Attachments 1 through 4 of the Complaint 

are copies of pages from its website marketed to consumers in the United States.

4. Air Europa is without knowledge sufficient to respond to Paragraph 4 of the 

Complaint.

5. Air Europa denies Paragraph 5 of the Complaint.

6. Air Europa is without knowledge sufficient to respond to Paragraph 6 of the 

Complaint.

7. Air Europa is without knowledge sufficient to respond to Paragraph 7 of the 

Complaint.
8. Air Europa is without knowledge sufficient to respond to Paragraph 8 of the 

Complaint.

9. Air Europa is without knowledge sufficient to respond to Paragraph 9 of the 

Complaint.

10. Paragraph 10 of the Complaint is a request to the Department, not an 

allegation. The only action taken by the Department in this matter should be dismissal 

of the Complaint.

Affirmative Defenses

1. The Department has made clear that carrier websites marketed to non-U.S. 

consumers are outside the scope of the DOT price advertising rule, 14 CFR § 399.84. 

The pertinent guidance states:

[A]dvertisements marketed to United States consumers for air transportation 

within, to or from the U.S. are covered by the rule. With regard to the marketing 

of fares via websites, the Enforcement Office will look at a variety of factors to 

determine if a website is marketed to United States consumers, including but not 

limited to whether the website is in English, whether the seller of air 

transportation displays prices in U.S. dollars, whether the seller uses banner 

advertisements or highlights special deals for flights to or from the United States, 

and whether the seller has an option on its website that differentiates sites or 

pages designed for U.S. and for other consumers.1

 

Air Europa invites the Department’s attention to the upper right-hand corner of 

each of the four attachments to the Complaint. The words España - EN - English

appear in each case, denoting that the page is taken from the English-language version 

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

on Enhancing Airline Passenger Protections, p. 23 (DOT Office of Aviation Enforcement & Proceedings, 

issued August 19, 2011, revised through June 15, 2012).
(EN) of the Spain-marketed website (España). By contrast, each page of Air Europa’s 

U.S.-marketed site contains the words USA - EN - English.

In addition to this clear designation, each of the factors identified in the DOT 

guidance quoted above serves to confirm that the España - EN - English site is 

marketed to Spanish consumers.

a. Users of Air Europa’s Spain-marketed website can choose to view the site in 

the Spanish, Catalan, or English language. (The latter is advantageous for vacation

home owners, retirees, and other residents of Spain for whom English is the first or 

best-understood language of the three offered.) Air Europa’s U.S.-marketed site is 

offered in one language: English.

b. Fares on the Spain-marketed site are quoted in Euros. Fares on the U.S.-

marketed site are quoted in U.S. Dollars.

c. Route and fare promotion on the Spain-marketed site is focused on outbound 

service to a variety of foreign destinations (Madrid-Sao Paulo, for example) and on 

Spanish domestic service (Barcelona-Mallorca, for example). Route and fare promotion 

on the U.S.-marketed site is focused on outbound service to Spain (Miami-Madrid, for 

example) and to other points in Europe (New York-Lisbon, for example).

d. An option on Air Europa’s homepage differentiates sites or pages designed 

for U.S. and for other consumers. A drop-down list of country-specific sites is accessed 

automatically by placing the cursor over the globe symbol or the country selection at the 

upper right-hand corner of the page. When the cursor is moved to the appropriate 

country on the list, the pertinent language or choice of languages is displayed 

automatically. The country/language site combination is selected with a single click.

An additional point is that the reservations number displayed at the lower lefthand corner of the initial page is keyed to the option chosen. That is, the telephone 
number displayed is unique to the country selected (Spain in the case of the 

attachments to the Complaint).

In sum, there is no question the Complaint is addressed to a website marketed to 

consumers in Spain, not the United States. The matter is outside the scope of the 

Department’s price advertising rule.

2. The DOT guidance quoted above is unambiguous. Nevertheless, it is 

additionally the case that the Department could not lawfully assert jurisdiction over a 

website not marketed to U.S. consumers.

Flights within Spain and between Spain and third countries do not constitute “air 

transportation” as defined in U.S. law; the Department has no jurisdiction over any 

aspect of such service. While flights between Spain and the United States constitute air 

transportation as defined in U.S. law, the Department consistently does not exercise 

jurisdiction over matters internal to foreign countries. Prominent examples include 

inapplicability of DOT’s denied boarding compensation and tarmac delay rules to U.S.-

bound flights at foreign airports. See 14 CFR §§ 250.2 and 259.4(a).

Extraterritorial application of DOT consumer-protection regulations would be 

unacceptable from a variety of perspectives. Chief among them in the present 

circumstances is that the Government of Spain is best suited to address the interests of 

Spanish consumers and air carriers. Moreover, an attempt by the Department to assert 

jurisdiction over websites marketed to non-U.S. consumers would create an impossible 

compliance situation, forcing carriers to choose, at their peril, whose rules to follow

where the rules are not harmonious.

Lastly, and most significantly, the Department’s authority to regulate abroad is 

limited by 49 USC § 40120(b), which requires an international agreement and the active 

approval of the President for such regulation to occur. The statute states in its entirety:
The President may extend (in the way and for periods the President considers 

necessary) the application of this part to outside the United States when— (1) an 

international arrangement gives the United States Government authority to make 

the extension; and (2) the President decides the extension is in the national 

interest.2

Neither of the conditions prescribed by the statute has been met.

* * *

Because the Complaint is addressed to a website marketed to consumers in 

Spain, not the United States, the Department cannot entertain the Complaint. Air 

Europa requests that the Assistant General Counsel for Aviation Enforcement and 

Proceedings, in accordance with Rule 406(a)(2), issue an order dismissing the 

Complaint in its entirety.

Respectfully submitted,

Aaron A. Goerlich

Garofalo Goerlich Hainbach PC

Counsel for Air Europa Lineas

 Aereas, S.A.U.

January 14, 2014

 2 As used in the quoted statute, “this part” refers to Part A, Air Commerce and Safety, Subtitle VII, 

Aviation Programs, Title 49, Transportation, United States Code. Part A includes 49 USC § 41712, 

among other laws.
CERTIFICATE OF SERVICE

I certify that on January 14, 2014, I served the foregoing answer by electronic 

mail upon Benjamin Edelman (ben@benedelman.org).

 _______________________________

Aaron A. Goerlich