BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. 

Alleged Violations of 14 CFR Part 257 

and 49 U.S.C. § 41712 

Enforcement Proceeding 

Served January 26,2015 

DOT -OST -2014-0229 

RESPONDENT DELTA AIR LINES' MOTION FOR LEAVE 

TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS 

Pursuant to 14 C.P.R. § 302.11, Respondent Delta Air Lines respectfully moves 

for leave to file a short reply brief in support of its Motion to Dismiss the Enforcement 

Complaint in the above-captioned case. The proposed reply brief is attached. 

Delta's motion to dismiss is a potentially dispositive motion that, if granted, 

would eliminate the need for any further proceedings in this matter (thereby saving both 

parties significant time and expense). Given the importance of this motion to the future 

course of the case, Delta believes there is good cause to allow the submission of a reply. 

Moreover, Delta's motion and the Office's response raise several important questions of 

law regarding the interpretation of 49 U.S.C. § 41712(c) and 14 C.P.R. § 257.5(b). 

Allowing the filing of a short reply brief would facilitate the resolution of Delta's motion 

by ensuring that all of the relevant issues have been comprehensively addressed. 

For the aforementioned reasons, Delta submits that there is good cause to grant 

leave to file the attached reply brief. 

1 

Motion For Leave To File Reply 
J. Scott McClain 

Jon-Peter F. Kelly 

DELTA AIR LINES, INC. 

1030 Delta Boulevard 

Department 981 

Atlanta, GA 30354 

(404) 773-6514 

scott.mcclain@delta.com 

jonpeter.f.kelly@delta.com 

Respectfully submitted, 

Paul D. Clement 

Jeffrey M. Harris 

BANCROFT PLLC 

1919 M Street, NW, Ste. 470 

Washington, D.C. 20036 

(202) 234-0090 

pclement@bancroftpllc.com 

jharris@bancroftpllc.com 

Counsel for Delta Air Lines, Inc. 

2 

Motion For Leave To File Reply 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. 

Alleged Violations of 14 CFR Part 257 

and 49 U.S.C. § 41712 

Enforcement Proceeding 

Served January 26, 2015 

DOT -OST -2014-0229 

RESPONDENT DELTA AIRLINES' 

REPLY IN SUPPORT OF MOTION TO DISMISS 

In its response to Delta's Motion to Dismiss, the Office argues that a carrier can 

violate 49 U.S.C. § 41712(c) and 14 C.F.R. § 257.5(b) regardless of whether a booking 

has been made because carriers must disclose code-share arrangements at an "early" 

point in every call. That argument fails for a number of reasons. 

Most important, absolutely nothing in the text of § 41712(c) or § 257.5(b) 

requires carriers to make code-share disclosures "early" in each call. Instead, the statute 

and regulation simply require disclosure "before booking transportation" or "prior to the 

purchase of a ticket." The Office's "early" rule would render this critical language 

completely meaningless because, by definition, an "early" disclosure will take place 

before booking or purchase. The Office also proposes a two-track test in which different 

time limits would apply for "booking" customers and "non-booking" customers. But that 

convoluted rule has no textual basis whatsoever; it is also unworkable because it would 

make a carrier's regulatory obligations tum on customers' future decisions. The statute 

and regulation mention only a single time limit that applies in all circumstances: "before 

booking transportation" or "prior to the purchase of a ticket." The Office also relies on a 

1 

Delta Reply 
hodgepodge of policy arguments and non-binding sources (such as a regulatory 

preamble), but those arguments fail on their own terms and, in all events, cannot trump 

the clear language of the statute and regulation. 

I. The Office's Legal Theory Regarding The Timing Of Code-Share 

Disclosures Is Flatly Inconsistent With The Text Of The Statute And 

Regulation. 

Under the unambiguous text of the relevant statute and regulation, a carrier must 

simply make code-share disclosure "before booking transportation," § 257 .S(b ), or "prior 

to the purchase of a ticket," § 41712(c). See Delta Mem. 5-9. That is a clear, workable 

rule that provides carriers fair notice of their regulatory obligations. It also ensures that 

customers are given the information they need to make informed decisions about air 

travel. Because the code-share information must be provided before booking or 

purchase, the customer will still have an opportunity to change her mind after receiving 

the disclosure if she does not wish to travel on the code-share carrier. 

The Office's response to Delta's motion suffers from a basic yet critical flaw: 

namely, a failure to articulate any coherent theory of exactly when in each of the eight 

calls at issue Delta should have made the code-share disclosures to avoid committing an 

unfair or deceptive practice. When the Office initially accused Delta of violating the 

statute and regulation-and sought "a compromise civil penalty of $200,000"-it argued 

that "section 41712(c) and section 257.5(b) require that oral code-share disclosures be 

provided when an agent first mentions a code-share flight in response to a consumer 

inquiry." Delta Mem. Ex. A (April 7, 2014 Letter). Perhaps recognizing that a firstmention rule has no basis in the text of the statute or regulation-and, indeed, is nearly 

identical to a proposed rule that DOT rejected during the 1999 rulemaking, see Delta 

2 

Delta Reply 
Mem. 14-15-the Office now backtracks from its earlier position and disavows any 

reliance on a first-mention rule. See DOT Resp. 5, 15-16, n.12. 

Having abandoned the first-mention rule, the Office struggles to articulate any 

theory of exactly when Delta should have made the code-share disclosures to avoid 

committing a violation. For example, at various points in its brief, the Office claims that 

Delta should have made the disclosures "early" or "relatively early" in each call. See 

DOT Resp. 5, 7, 12 n.8, 17. But it is not clear that there is any meaningful difference 

between an "early" rule and a "first mention" rule. Indeed, in at least four of the secret 

shopper calls at issue here, there appears to have been only one mention of the flight in 

question. See Complaint ,-r,-r 28(d), (f), (g), (h). Thus, those calls could give rise to 

liability under the Office's theory only if the "early" rule effectively required disclosure 

at the first mention of a flight. 

In all events, the Office's "early" test is every bit as indefensible as a "first 

mention" rule. It is one of the most basic principles of interpretation that a statute or 

regulation must be construed "so that effect is given to all its provisions, so that no part 

will be inoperative or superfluous, void or insignificant." Hibbs v. Winn, 542 U.S. 88, 

101 (2004). If carriers were required to make code-share disclosures at an "early" point 

in each call, then the language about "before booking transportation" and "prior to the 

purchase of a ticket" in § 41712(c) and § 257.5(b) would be rendered completely 

meaningless. By definition, a booking or purchase is the last thing discussed on the call. 

Thus, if the Office were correct that disclosures must always be provided at an "early" or 

"relatively early" point, there would have been no need for Congress and DOT to 

separately provide that the disclosures must take place before booking or purchase. 

3 

Delta Reply 
In an attempt to give some residual meaning to the "booking" and "purchase" 

language in§ 41712(c) and§ 257.5(b), the Office contorts the text even further. That is, 

the Office proffers a two-part test in which carriers must make an "early" disclosure for 

customers who do not book tickets, but can merely make the disclosure "before booking" 

for customers who do book tickets. See DOT Resp. 8-10 & n.5. With all due respect, 

that makes no sense whatsoever. Carriers obviously have no way of knowing in advance 

which customers will book and which will not. It would be absurd to have a legal rule 

under which the permissible time period for disclosure turns on this after-the-fact 

distinction. But the more fundamental flaw with the Office's two-track legal standard is 

that it has no basis in§ 41712(c) and§ 257.5(b). Nothing in the text of these provisions 

remotely suggests that Congress and DOT created two entirely distinct sets of rules 

depending on whether a customer ultimately books travel. The statute and regulation 

mention only one time limit, which makes clear that a carrier fully complies with its 

obligations as long as the disclosure is made before "booking" or "purchase." 

In support of its "early" rule, the Office also cites 49 U.S.C. § 41712(c)(2), which 

provides that code-share disclosures for Internet searches "shall be provided on the first 

display of the Web site following a search of a requested itinerary in a format that is 

easily visible to the viewer." The Office argues that, through this provision, "Congress 

demonstrated its intent that code-share information should be provided early to 

prospective consumers." DOT Resp. 7. But the Office's inference from§ 41712(c)(2) is 

exactly backwards. Where "Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate inclusion or exclusion." 

4 

Delta Reply 
Russello v. United States, 464 U.S. 16, 23 (1983). The fact that§ 41712(c)(2) expressly 

requires disclosure at "first display" for Internet searches shows that Congress knew how 

to impose an "early-disclosure" rule when it wanted to do so. Thus, if anything, that 

provision only underscores that the statute and regulation regarding code-share 

disclosures in telephone calls do not include an atextual "early disclosure" rule. 

Finally, because § 257.5(b) refers to "any direct oral communication," the Office 

argues that a disclosure must be provided in every oral communication about a codeshare flight, regardless of whether a booking is made. DOT Resp. 8. But "[i]t is a 

fundamental canon of statutory construction that the words of a statute must be read in 

their context and with a view to their place in the overall statutory scheme." Davis v. 

Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989). When § 257.5(b) is properly 

read as a whole, it becomes apparent that the Office's interpretation is untenable. If the 

regulation actually required a disclosure in every call-even for "non-booking" 

customers-it would be extremely odd for the one and only time limit mentioned in the 

regulation to be expressly linked to booking. 1 

The Office's position also gives rise to a number of practical difficulties that 

further underscore why the regulation should not be extended beyond its plain terms. 

Since "non-booking" calls can vary widely in terms of both length and substance-and 

since it is the customer who ultimately chooses when to end a "non-booking" call-it 

would be extremely difficult to craft a workable rule regarding when and how the codeThe Office also argues that the regulation's reference to "prospective" 

customers supports its view. DOT Resp. 8-9. But, of course, even customers who 

ultimately book tickets are merely "prospective" customers at the time the disclosure is 

made. The reference to "prospective" customers thus hardly suggests that a booking is 

irrelevant or unnecessary. 

5 

Delta Reply 
share disclosures must be made in such calls. For example, the Office concedes that 

disclosure need not be provided if a customer "simply expresses interest in flying 

between two cities on a given day." DOT Resp. 8 n.3. But the Office claims that the 

code-share obligation is "triggered" once "a specific flight has been identified." !d. That 

distinction appears nowhere in the text of the statute or regulation, and would be very 

difficult to apply in practice. Indeed, in at least two of the eight calls at issue here, there 

was never any mention of "specific" flight numbers, see Complaint ~~ 28(f), (h), so it is 

unclear why those would constitute violations even under the Office's view of the law. 

The lack of clarity in how the Office's legal theory would apply even to the facts of this 

case only underscores the fundamental mismatch between the Office's theory and the text 

of§ 41712(c) and§ 257.5(b). 

* * * 

In sum, it strains credulity for the Office to criticize Delta's position as "bookingcentered," see DOT Resp. 5, when the one and only time limit actually mentioned in the 

regulation is "before booking transportation." As between a time limit that is explicitly 

included in the text of the regulation ("before booking transportation") and a time limit 

that appears nowhere in the regulation ("early" or "relatively early"), the choice should 

be obvious. When§ 41712(c) and§ 257.5(b) are applied as written, it is crystal clear that 

the Office's secret shopper evidence is insufficient as a matter of law to show that Delta 

failed to provide the required disclosures "before booking transportation" or "prior to the 

purchase of a ticket." See Delta Mem. 7-9. 

6 

Delta Reply 
II. The Regulatory Preamble Does Not Support The Office's Position. 

The Office's reliance on the 1999 regulatory preamble is equally unavailing. For 

example, the Office relies on statements in the preamble suggesting that code-share 

disclosures must be made during the "'information and decisionmaking portion of the 

conversation."' DOT Resp. 11 (quoting 64 Fed. Reg. at 12,845-46). But, as Delta 

explained, the "information and decisionmaking" phase of the call necessarily continues 

until a purchase or booking has been made. Delta Mem. 11-13. As long as the disclosure 

is provided at some point before booking, the customer has been given the necessary 

information and is able to make a fully-informed decision about whether to purchase the 

ticket on the code-share carrier. Nothing more is required. 

The Office asserts that Delta's understanding of "information and 

decisionmaking" is "not particularly helpful for those common instances where the 

consumer ends the information and decisionmaking phase by hanging up the telephone 

without booking." DOT Resp. 12. But, once again, it is entirely unworkable to have a 

legal rule in which a carrier's obligations turn on the customer's voluntary actions. The 

carrier can hardly be faulted if a customer voluntarily "ends the information and 

decisionmaking phase" before the disclosure has been made. Moreover, if a customer 

"hang[ s] up the telephone without booking," this strongly suggests that the customer 

already has all the information she needs to decide not to buy the flight. Maybe the price 

was too high, or maybe the flight times were not convenient. But, either way, once a 

customer has already made the decision not to book, it is extremely unlikely that a codeshare disclosure would have affected the customer's decision. 

7 

Delta Reply 
III. The Office's Policy Arguments Provide No Basis For Departing From The 

Clear Text Of The Statute And Regulation. 

As a matter of policy, the Office asserts that the "clear, intended purpose" of the 

statute and regulation was "to inform prospective consumers of code-share arrangements, 

regardless of whether bookings result." DOT Resp. 9 (emphasis added). 

That is revisionist history. In the 1994 notice of proposed rulemaking that 

culminated in § 257.5(b), DOT identified several reasons why a stronger code-share 

regulation was needed as a matter of policy. For example, DOT noted "complaints from 

consumers who mistakenly assumed that their carrier would use jet aircraft, rather than 

propeller-driven aircraft." 59 Fed. Reg. 40,836, 40,838 (1994). Other customers 

complained that they "got no or fewer [frequent-flier] miles when they flew on the codesharing partner's flights." Id. Still others "reported not knowing where to check in" at 

the airport, or "only discovered at the airport that their flight was being operated by an 

airline they preferred not to use." Id. DOT believed these problems could be avoided "if 

carriers ... notify [customers] adequately" about code-share arrangements. I d. 

DOT's stated policy rationales for adopting a stronger code-share disclosure rule 

only make sense in the context of consumers who actually purchase tickets. A customer 

who does not buy a ticket is surely indifferent as to whether the (non-purchased) flight 

involves a jet aircraft or a propeller plane. And a customer who does not make a booking 

is unlikely to have concerns about not earning frequent flier miles or not knowing where 

to check in upon arriving at the airport. 

A carrier's failure to give a code-share disclosure to a customer who does not 

book a ticket simply will not result in "deception" or "unfairness." Indeed, as noted 

above, DOT believes that code-share flights are less desirable than mainline flights 

8 

Delta Reply 
because they are often operated with smaller aircraft. See 59 Fed. Reg. at 40,838; 

Complaint ~ 12. It is difficult to imagine any circumstance in which a customer who 

chose not to buy a particular flight after speaking with a reservation agent would have 

bought the flight if only he knew that it was being operated through a code-share 

arrangement. If anything, the customer's decision not to buy the flight would likely be 

vindicated if he later learned that the (non-purchased) flight was operated by a code-share 

carrier using a smaller aircraft. Given that a code-share disclosure will rarely, if ever, be 

material to the decision not to purchase a ticket, the Office cannot credibly claim that 

Delta's view of the law will undermine its efforts to prevent "deception" or "unfairness." 

In sum, the Office fails to articulate any legitimate policy goal that would be 

undermined if a carrier fails to make code-share disclosures to shoppers who do not 

actually buy tickets or make bookings. This mismatch between the Office's legal theory 

and the policies underlying the code-share rules is not surprising. Given that the statutory 

obligation is expressly linked to "purchases" and the regulatory obligation is expressly 

linked to "bookings," it is crystal clear that the statute and regulation were intended to 

protect those consumers who actually make purchases or bookings. 

CONCLUSION 

The Office clearly believes that it is in the public interest to require carriers to 

make code-share disclosures at a very early point in each call. The proper way to 

accomplish that goal is to change the text of the regulation clearly and prospectively, as 

DOT is currently proposing in a pending rulemaking proceeding. See 79 Fed. Reg. 

29,970 (2014). The answer is not to saddle a carrier with $660,000 of civil penalties for 

9 

Delta Reply 
violating requirements that appear nowhere in the text of the statute or regulation as 

written. The Complaint should be dismissed in its entirety with prejudice. 

Delta Reply 

J. Scott McClain 

Jon-Peter F. Kelly 

DELTA AIRLINES, INC. 

1030 Delta Boulevard 

Department 981 

Atlanta, GA 30354 

(404) 773-6514 

scott.mcclain@delta.com 

jon peter .f.kelly@delta.com 

Respectfully submitted, 

Paul D. Clement 

Jeffrey M. Harris 

BANCROFT PLLC 

1919 M Street, NW, Ste. 470 

Washington, D.C. 20036 

(202) 234-0090 

pclement@bancroftpllc.com 

jharris@bancroftpllc.com 

Counsel for Delta Air Lines, Inc. 

10 
CERTIFICATE OF SERVICE 

I hereby certify that on January 26, 2015, the original and one copy of the 

foregoing Motion for Leave to File Reply and Reply in Support of Motion to Dismiss 

were hand-delivered to: 

U.S. Department of Transportation 

Dockets Operations, M-30 

West Building, Ground Floor 

Room W12-10 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

I further certify that one copy of the foregoing document was hand-delivered to: 

Delta Reply 

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings, C-70 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (W96-431) 

Washington, DC 20590 

Robert Gorman 

Senior Trial Attorney 

Office of Aviation Enforcement and Proceedings, C-70 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (W96-413) 

Washington, DC 20590 

The Honorable J .E. Sullivan 

Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

s/Jeffrey M. Harris 

Jeffrey M. Harris 

11