BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. 20590 '**~.)** i. ,,

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Petition for Rulemaking and Third-Party Complaint of Donald L. Pevsner, Esq. Docket t>o-r-os-r•Zot2.-ato(\_

PETITION FOR RULEMAKING AND THIRD-PARTY COMPLAINT

Communications with respect to this document should be directed to:

July 2, 2012 DONALD L. PEVSNER, Attorney-at-Law 2010 Valle Cay Drive Vilas, NC 28692 TEL.: (828)297-7823 FAX.: (828)297-7824 EMAIL: donpevsner@aol.comBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. 20590

Petition for Rulemaking and Third-Party Complaintof Donald L. Pevsner, Esq. Docket



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## ------------------------------ PETITION FOR RULEMAKING COMES NOW Donald L. Pevsner, Esq., pro bono publico, and asks the Department to initiate a Rulemaking proceeding with regard to all air carriers and foreign air carriers providing air transportation or foreign air transportation to United States airports, and as grounds therefor says: (1)This Petition for Rulemaking is filed pursuant to 14CFR §302.502, §302.505 and §302.16. (2)Petitioner alleges thatthe Domestic General Rules TariffofDelta Air Lines, Inc., as amended through May 25, 2012, and all similar tariffs of other air carriers and foreign air carriers, arecausing greateconomic harm to passengers by unilaterally forcing them to accept schedule changes on nonrefundable tickets, with the only alternative being to pay a rapacious change penalty that is typically $150 in air transportation and $250 in foreign air transportation. (3)Petitioner was presented with this situation by Delta Air Lines, Inc. on June 29, 2012, when Delta had a schedule change ofapproximately one-halfhour
on his departing flight that, as the new departure time was earlier, would have adversely impacted his business arrangements. At that time, Delta cited Rule 240 ofits Tariffasjustification for imposing a $150 domestic change penalty. However, Delta Rule 240 states the following: "In the eventofflight cancellation, diversion, delaysof

greaterthan 90 minutes...(Delta will provide a full refund on a nonrefundable ticket)11-2-

It is patently obvious that there is a world ofdifference between a flight delayand a unilateral schedulechangeby the carrier providing the air transportation or foreign air transportation. It is also clear that the Domestic and International Rules Tariffs of Delta Air Lines, Inc., and most probably ofall other air carriers and foreign carriers providing air transportation or foreign air transportation, do notcontain specific language governing the refundability ofnonrefundable tickets in this express situation. (4)A passenger books an airline ticket based upon the schedule displayed to him or his travel agent at the time ofpurchase. That schedule forms an integral part ofthe contract ofcarriagebetween the passenger and the carrier. It is a prima facie breach ofcontract for the carrier to change its schedule unilaterally without simultaneously providing the passenger with the right to obtain a full refund in such case, ifthe new schedule is unacceptable to him for any reason whatsoever. The sordid reason why carriers have not given the passenger this crucial right under their existing Tariffs is because, with the vast majority ofall airline tickets being nonrefundable in the current airlineenvironment, they prefer to mulct their passengers ofbillions ofdollars in 11change penalties11 as a particularlyinequitable and disgraceful profitcenter. (5)Petitioner therefore requests that the Department promptly initiate a formal Rulemaking procedure that will mandate that the following, new language be added to all Domestic and Foreign Rules Tariffs ofall air carriers and foreign air carriers providing air transportation, overseas air transportation and foreign air transportation:-3-

11A passenger shall be entitled to, and shall receive on request,

a full refund ofhis total ticket price, including his fare and all fees, taxes and other charges, should the carrier issuing the ticket attempt to impose a unilateral schedule changeon the passenger between the time ofpurchase and the time oftravel. Should the passenger opt to exchange his ticket for another ticket upon such occurrence, no carrier may impose any 11change penalty11 whatsoever for such exchange. 11

THIRD-PARTY COMPLAINT
(1)Complainantalleges that the standard $250 change penalty currently imposed by mostair carriers and foreign air carriers on nonrefundable tickets, which are the vast majorityofall tickets sold in foreign air transportation, is expressly violative of49 USC §41501, which expressly states the following:

11Every air carrier and foreign air carrier shall establish, comply with,

and enforce- (1)

### reasonableprices, classifications, 

### rulesand practices related to foreign air transportation; " (Emphasis Added) (2)A long line ofCAB and DOT legal precedents defines "reasonable11 [formerly 11just and reasonable11] as meaning 

### "reasonablyrelated tothe costofproviding theservice11• (3)When the airlines first perceived that imposing change penalties would create
a highly-lucrative ancillaryprofit center for them, the initial charge for
a flight change was $25. Today, it has been standardized at a rapacious $250, ata time when many such changes are made online directly by the passenger, with zero airline reservations employee time utilized at all. In brief, there is not the slightest relationship between the legal mandate ofa "reasonable11 charge for a change penalty imposed by 49 USD §41501 and the current $250 mass gouging being inflicted upon a helpless air traveling public by most air carriers and foreign air carriers.-4-
( 4)Accordingly, Complainant requests that the Department promptly open
a formal investigationirto the lawfulness ofa charge that, in Petitioner's view, is at least ten times more than a truly "reasonable" charge for changing a ticket to a different flight(s) in foreign air transportation. (5)The Airline Deregulation Act of 1978, which has dreadful as well as positive attributes, regrettably stripped legal authority from the CAB and the Department to similarly regulate rates, fares and charges in domestic air transportation. In this specific case, this is beyond lamentable. However, it is possible that the Department may use other sections of applicable law to compel the greedy US domestic airline industry to drastically-reduce their own current $150 change penalty fee. The classic tactic of "jawboning" also obviously applies here. Petitioner requests that the Department take prompt action on point as well, using whatever tactics stand a reasonable chance ofprevailing in this noxious consumer issue.

July 2,2012 

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## (lyA Donald

# L.~s~~r Attorney-at-Law [probonopublico] 2010 Valle Cay Drive Vilas, N C 28692 TEL.: (828)297-7823 FAX.: (828)297-7824 EMAIL: donpevsner@aol.com

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CERTIFICATE OF SERVICE

I, Donald L. Pevsner, do hereby certify that I have served the following respondents to this Petition for Rulemaking and Third-Party Complaint by First Class Mail, on this second day ofJuly, 2012:
( 1)Air Transport Association ATTN.: David Berg, General Counsel 1301 Pennsylvania Avenue, NW, Suite 1100 Washington, DC 20004 (2)lnternational Air Transport Association ATTN.: Douglas Lavin, Regional Vice President, North America 601 Pennsylvania Avenue, North Building, Suite 301 Washington, DC 20004 (3)Richard 11Ben11 Hirst General Counsel Delta Air Lines, Inc. 1050 Delta Drive Atlanta, GA 30320 (4)Samuel Podberesky USDOT/OST Washington, DC 20590-6-

VERIFICATION

Pursuant to Title 18 United States Code Section 1001, I, Donald L. Pevsner, in my individual capacity and as the authorized representativeofthe pleader, have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious or fraudulent statementor knowlingly used any documents which contain such statements in connection with the preparation, filing or prosecution ofthe pleading. Iunderstand that an individual who is found to have violated the provisions of 18 USC Section 1001 shall be fined or imprisoned not more than five years,
or both.

July 2, 2012