Benjamin Edelman Opposition to Motion to Strike Comments

1 of 7 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS WASHINGTON, D.C.

---------------------------------------------------- -- ) ) Benjamin Edelman, ) third

- party complainant ) )
v. ) Docket DOT

- OST

- 2013

- 0214 ) Air Europa ) )

------------------------------------------------------ ) OPPOSITION OF BENJAMIN E DELMAN TO AIR EUROPA’S MOTION TO STRIKE COMMENTS Comments with respect to this document should be addressed to: Benjamin Edelman 169 Walnut St. Brookline, MA 02445 E

- mail: ben@benedelman.org

Dated: March 11 , 2014Benjamin Edelman Opposition to Motion to Strike Comments

2 of 7 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS WASHINGTON, D.C.

--------------------- ------------------------------------------ ) ) Benjamin Edelman, ) thir d

- party complainant ) )
v. ) Docket DOT

- OST

- 2013

- 0214 ) A ir Europa ) )

--------------------------------------------------------------- ) OPPOSITION OF BENJAMIN EDELMAN TO AIR EUROPA’S MOTION TO STRIKE COMMENTS
1. On February 21, 2014, Edward Hasbrouck filed a single 1.5

- page
comment (excluding cover). On March 2, Mike Borsetti filed a single 2

- page comment (excluding cover and certificate of service). As best I can tell, both commenters used the standard Regulations.gov “Comment Now ! ” func tion, a distinctive blue button associated
with most documents on that site. (See Attachment 1.) Mr. Borsetti also served his comment on both parties and the DOT by email.
2. Air Europa’s March 10, 2014 motion seeks to strike those comments. Air Europa argues that “Neither co mmenter is a party to this proceeding, and neither has submitted a motion for leave to file,” so Air Europa says “The comments are not authorized under the Department’s rules and should be stricken.”
3. Air Europe mischaracterizes the comments and applicable rules. The comments are not appearance s of non

- parties. The comments are, as Regulations.gov’sBenjamin Edelman Opposition to Motion to Strike Comments

3 of 7 own labeling and submission systems plainly indicate , merely comments. (Attachment 1:

“ Comments of Edward Hasbrouck ” and “ Comments in Support of an Enforcement
Action ” , emphasis added.) Indeed, t he commenters do not receive the procedural benefits that would be granted t o those who file appeara nces
. F or example, as commenters, the commenters need not be included on service lists in subsequent motion practice.
4. No leave is required to submit a public comment

. The Regulations.gov
site indicates no such r equirement. Air Europa cites authority for the required process for an appearance by a non
- party , but Air Europa cites no authority disallowing public
comments of this sort.
5. On Air Europa’s view , no member of the public could file a comment via Regulations.gov as to any third

- party complaint , and perhaps in any enforcement proceeding, except with prior DOT approval. If such approval were regularly granted, as I believe it would be, that would be make

- work for the DOT and for interested members of the public

. Indeed, it would reduce the number of comments to a small fraction of the

current amount , since most commenters would neither know how to obtain the required permission nor care to do so. This approach would also ignore the obvious utility of the simple “Comment Now ! ” function already built into Regulations.gov a nd provided for exactly this purpose.
6. Air Europa’s vision is manifestly contrary to the Presidential
M emorandum on Transparency and Open Government (January 21, 2009) . That memorandum calls for “participatory” “public participation” to “enhance[] the Government’s effectiveness and improve[] the quality of its decisions.” TheBenjamin Edelman Opposition to Motion to Strike Comments

4 of 7 memorandum continues: “Knowledge is widely dispersed in society, and public officials
benefit from ha ving access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policy

- making and to provide their Government with the benefits of their collective expertise and
information.” T he Regulations.gov site provides a “ Comment Now!” button for p recisely
these reasons. The commenters provided the specialized expertise that the Memorandum anticipated, at no charge to the DOT or taxpayers, requiring no time or effort from DOT
staf f beyond the l imited time to read the brief comments (if DOT staff so choose)

. 7. Nor can there be any suggestion that the Regulations.gov “ Comment
Now ! ” button is a mere default inapt in this docket. Even within this docket, some
documents have “ Comment Now !” buttons and other documents have no such button

. See Exhibit 1 (showing six documents in the docket available for comment, but one
marked “ Comments Not Accepted ” and one marked “ Comment Period Closed. ” The

commen ters chose to comment on documents that include that button , during a time when the button was operational and available

. 8. Air Europa then resorts to 14 CFR § 300.5(b), prohibiting any person from “disrupt[ing] or interfere[ing] with the fair and orderly disposition of a DOT proceeding.”
Whatever behavior this secti on prohibits, it does not p rohibit concise, relevant public comments submitted via the official Regulations.gov system provided for that purpose.
9. By all indications, Air Europa’s real complaint against the commenters is that Air Europa doesn’t like the substanc e of their remarks

. Air Europa is entitled to that
view . Unless DOT orders Air Europa to respond to the comments, Air Europa need not do so and, indeed, can ignore them completely . Alternatively, Air Europa could respondBenjamin Edelman Opposition to Motion to Strike Comments

5 of 7 in substance, e.g. arguing why the commen ters, in its view, misstate applicable law or
fact (perhaps after seeking leav e for such a supplemental filing) . But Air Europa ’s
dislike of the commenters’ r emarks is not grounds for the comments to be stricken.
10. In my view, the commenters raise a timely and significant point: Air Europa’s January 14 Answer and February 10 Answer both fail to address the crucial question in my initial complaint

— whether, on the date of filing of my complaint, Air Europa’s US site in fact made the false statement I allege (whether or not the screenshot in my complaint proves that such false statement s were made on the US site ). Air Europa could easily answer that question. D espite f our clear invitations to do so (in my complaint , in my reply , and in both the commenters ’ submissions) , Air Europa has failed to do so. Here, public comment serves a valuable purpose

— allowing the concerned public to reveal its skepticism of Air Europa’s silence on this crucial question, making it
that much clear er that Air Europa has not tol d the DOT the practice of its US site as of the date in question.
11. For these reasons, I ask that the comments remain in the record, to be given whatever weight DOT staff see fit.

Respectfully submitted , /s/ Benjamin EdelmanBenjamin Edelman Opposition to Motion to Strike Comments

6 of 7 Exhibit 1Benjamin Edelman Opposition to Motion to Strike Comments

7 of 7 Certificate of Service

I h ereby certify that I have, this 11 th day of March , 2014 caused a c opy of the foregoing Reply to be served by electronic mail on the following persons:
Aaron A. Goerlich, Esq. agoerlich@ggh

- airlaw.com Robert Gorman , Esq. robert.gorman @dot.g ov Mike Borsetti mike@borsetti.com Edward Hasbrouck edward@hasbrouck.org

/s/

_____________________ Benjamin Edelm an