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 wit h 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

- air law.com

Counsel f or Air Europa Lineas Aereas, S.A.U.

January 14, 2014

BENJAMIN EDELMAN,
Third

- Party Complainant

v.

AIR EUROPA LINEAS AEREAS, S.A.U.

, RespondentBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.

Docket
Docket DOT

- OST

- 20 13

- 0214

ANSWER O F 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 enforceme nt complaint (Complaint) of Benjamin Edelman . Air Europa

requests that the Assistant General Counsel for Aviation Enforcement and Proceedings

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

Summary

Air Europa is a Spanish air carr ier 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 Uni ted 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.

, RespondentAnswer

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

marketed to consumers in Sp ain , t his answer and the affirmative defense s below are

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

addressed below is denied. Several of the Complain t ’s allegations are conclusions of

law as distinguished from al legations 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 m arketed 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 Paragr aph 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

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

of the Complaint.

Affirmative Defense s

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.

T he pertinent guidance states :

[A]dvertisements marketed to United States consumers for air transpor tation

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

li mited 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 attachment s to the Complaint. T he words España

- EN

- English

appear i n 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 Offi ce of Aviation Enforcement & Proceedings

, i ssued August 19, 2011, revised through June 15, 2012)

.(EN) of the Spain

- marketed website (Esp aña )

. By contrast, e ach page of Air Europa’s

U.S.

- marketed site contains the words USA

- EN

- Englis h

.

In additi on to this clear designation , e ach 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. U sers of Air Europa’s Spain

- marketed web site can choose to view the s ite in

the Spanish, Catalan, or English language. ( The latter is advantageou s 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 sit e is

offered in one language: English.

b. F ares on the Spain

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

- marketed site are quoted in U.S. Dollars.

c. R oute and fare promotion on the Spain

- marketed site is focused on outbound

service to a var iety of foreign destinations (Madrid

- Sao Paulo, for example) and on

Spanish domestic service (Barcelona

- Mallorca, for example )

. R oute and fare promotion

on the U.S.

- marketed site is focused on outbound service to Spain ( Miami

- Madrid

, for

example) and to o ther points in Europe ( New York

- Lisbon , for example).

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

for U.S. and for other consumers . A drop

- down l ist of country

- specific sites is accessed

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

upper right

- hand corner of the page. When t he cursor i s moved to the appropriate

country on the list

, the pertinent language or choice of languages is displayed

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

An additional point is that the reservations number displayed at the lower left

hand corner of the initial page is keyed to the option chosen . That is, the telephonenumber displayed is unique to the country selecte d ( 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. T h e matter is outside the scope of the

Department’s price advertising r ule.

2. T he DOT guidance quoted above is unambiguous. Nevertheless, it is

additionally the case that the Department c ould not lawfully assert jurisdiction over a

website not marketed to U.S. consumers.

F lights with in Spain and between Spain and third countries do not co nstitute “air

transportation” as defined in U.S. law; the Department has no jurisdiction ove r any
aspect of such service. While f lights 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 e xamples include

in applicability of DOT’s denied boarding compensation and tarmac delay rules to U.S.

- bound flights at foreign airports . S ee 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

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

jurisdiction over websites marketed to non

- U.S. consumers would create an im possible

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

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

approval of the President for suc h 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 na tional

interest. 2

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

* * *

B ecause 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 dism issing the

C omplaint in its entirety.

Respectfully submitted,

Aaron A. Goer lich 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 Cod e. Part A includes 49 USC § 41712, among other laws

.C ERTIFICATE 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