BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Petition of Donald L. Pevsner, Esq. for Rulemaking and Request for Sanctions ) ) ) ) ) ) ) Docket DOT-OST-2011-0079

ANSWER OF DELTA AIR LINES, INC.

Communications with respect to this document should be addressed to:

Alexander Van der Bellen Managing Director – Government Affairs & Associate General Counsel DELTA AIR LINES, INC. 1212 New York Avenue, N.W. Washington, D.C. 20005 (202) 842-4184 sascha.vanderbellen@delta.com

April 28, 2011BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Petition of Donald L. Pevsner, Esq. for Rulemaking and Request for Sanctions ) ) ) ) ) ) ) Docket DOT-OST-2011-0079

ANSWER OF DELTA AIR LINES, INC.



### Delta hereby responds to Mr. Pevs ner’s petition for rulemaking and request for sanctions. Delta respectfully submits that there is no basis for the Department to take either of these actions, and urges that Mr. Pevsner’s complaint be dismissed. On April 12, 2011, Mr. Pevs ner held a Delta ticket for travel from Charlotte to Buffalo via Atlanta. The first leg, Delta flight 2032, was scheduled to depart Charlotte for Atlanta at 8:25 am, but was subject to an FAA-imposed ground stop. Consequently, due to circumstances beyond Delta’s control, flight 2032 was unable to depart on time.

Mr. Pevsner concedes that Delta’s c ontract of carriage clearly provides that if a flight is disrupted by a forc e majeure event, Delta will transport the passenger on the next availabl e Delta flight. Delta may also, in its sole discretion, arrange for travel on another ca rrier. (Delta Domestic Tariff Rule 240 (b)). Contrary to Mr. Pevsner’s extravagant assertions, he was not “treated like carrion.” (page 5). Delta’s customer se rvice agents handled Mr. Pevsner withAnswer of Delta Page 2



### dignity and respect. However, the agents’ efforts to offer assistance were greeted with profanity, r udeness, and abusive behavior. To provide a more complete and accurate picture of the events, Delta is contemporaneously providing a copy of its cu stomer service records and a gent reports to the DOT’s

Assistant General Counsel for En forcement and Mr. Pevsner. Mr. Pevsner represents himself to be an experienced air traveler. While Delta strives to maintain and improve upon high standards of on-time performance, the potential for delay from external, uncontrollable causes, such as ATC delays was certainly not unknown to Mr. Pevsner. Delta Rule 240(a) provides that Delta will use reasonable e fforts to operate in accordance with its schedule, but that the schedule times ar e not guaranteed. Delta could have and would have transported Mr. Pevsner from C harlotte to Buffalo in accordance with the contract of carriage, but, due to a tight schedule of his own choosing, 1 

### Mr. Pevsner claims that the purpose of his trip would have been defeated by the delay. Although Delta was under no obli gation to do so, Delta voluntarily refunded the full ticket price and provided Mr. Pevsner, in addition, a courtesy $50 transportation voucher for use on a future flight.

Mr. Pevsner received the full benefit of the bargain he made, which is clearly specified in the contract of ca rriage. By choosing a connecting itinerary via Atlanta, Mr. Pevsner was able to secure a deeply discounted ticket at a fraction of the price US Airways charges for its four daily nonstop flights between Charlotte and Buffalo. Mr. Pevsner paid a total of $93.90 for a one way

1 Delta offered multiple connecting itineraries from Charlotte to Buffalo at earlier times that would have enabled Mr. Pevsner to meet his personal schedule requirements.Answer of Delta Page 3



### connecting ticket via Atlanta. US Airw ays’ current lowest discounted one-way fare is $408.20. Based on Delta’s ticketi ng agreement with US Airways, it would have cost Delta $133.84 to re-accommodate Mr. Pevsner on US Airways (over 40 percent more than the cost Mr. Pevsner paid for his original ticket). Mr. Pevsner’s proposal to re-write airline contracts of carriage to create a mandatory re-accommodation obligation on other carri ers for force majeure events would chill and deter low fare competitive pric ing options, which benefit consumers. The delays to Mr. Pevsner’s journey were caused not by Delta, but by the FAA ground stop and TSA security procedures which caused him to miss an alternative connecting flight via Detroit, wh ich Delta had arranged to assist him. In these circumstances, Delta believes Mr. Pevsner’s petition and request for

sanctions are without merit and should be dismissed.

Respectfully submitted,

_________________________________ Alexander Van der Bellen Managing Director, Government Affairs & Associate General Counsel DELTA AIR LINES, INC.Answer of Delta Page 4

Delta’s Response to Specific Allegations Pursuant to Rule 302.408(b)

1. Delta admits that flight DL2032 from Charlotte to Atlanta was delayed due to an FAA-imposed air traffic control ground stop. (Complaint p.1) 2. Delta admits that its tariff rule 240 provides that Delta will transport passengers delayed by a force majeure event on the next available Delta flight, or, at Delta’s sole discretion, on another carrier or ground transportation. (Complaint p.2-4). 3. Delta admits that it attempted to provide Mr. Pevsner an alternate routing via Detroit. (Complaint at 4) 4. Delta admits that Mr. Pevsner failed to present himself at the boarding gate before the Detroit flight had closed for departure. (Complaint at 4-5). 5. Delta admits that it refused to delay the Detroit flight and the numerous passengers onboard, so that Mr. Pevsner could board the flight late. (Complaint at 5). 6. Delta has no knowledge of the TSA screening and training procedures which allegedly delayed Mr. Pevsner and caused him to miss the Detroit flight. (Complaint at 4). 7. Delta admits that it offered Mr. Pevsner a courtesy $50 transportation voucher; Delta further asserts that it voluntarily refunded Mr. Pevsner’s full ticket price, although Delta was under no obligation to do so. (Complaint at 5). 8. Delta admits that Mr. Pevsner demanded additional compensation and credits for unrelated transactions, and that Delta declined to accede to those demands. (Complaint at 6).

9. Delta denies that Mr. Pevsner was treated “like carrion” or in an “unconcerned and cavalier” manner. (Complaint at 1, 7). 10. As an affirmative defense, Delta asserts that with respect to the alleged incident, Delta engaged in no unfair or deceptive practices, nor operated in contravention of any statute or regulation of the Department of Transportation.CERTIFICATE OF SERVICE A copy of the foregoing Answer has been served this 28 th day of April, 2011, upon the following persons via email:

sam.podberesky@dot.gov dayton.lehman@dot.gov DonPevsner@aol.com