Petition for Rulemaking and Request for Sanctions against Delta Air Lines. Inc. of Donald L. Pevsner, Esq.

PETITION FOR RULEMAKING AND Docket

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REQUEST FOR SANCTIONS AGAINST DELTA AIR LINES, INC.

Communications with respect to this document should be directed to:

April 15, 2011 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, DC 20590

Petition for Rulemaking and Request for Sanctions against Delta Air Lines, Inc. of Donald L. Pevsner, Esq. Docket



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PETITION FOR RULEMAKING COMES NOW Donald L. Pevsner, Esq., probonopublico, and files this



### --- Petition for Rulemaking pursuant to 14 C.F.R. §302.16, as to both domestic air transportation and foreign air transportation: the latter pursuantto 14 C.F.R. §302.502. The requested remedies by the Department and, as may be relevant, its Secretary, are authorized pursuant to 49 U.S.C. §41501 and §41507 with regard to foreign air transportation, and by 49 U.S.C. §41712
as to both domestic and foreign air transportation: (1)On April 12, 2011, your Petitioner was forced to cancel a long-planned trip in domestic air transportation becauseofthe present, inequitable limitations in Tariff Rule 240: set forth in Delta Air Lines, Inc.'s Domestic General Rules Tariff, as amendedonFebruary 5, 2011, at Page 42 thereof. Specifically, despite a delay ofover two hours on Petitioner's Delta Air Lines Flight 

### #2032 that would have created a misconnection in Atlanta en route to Petitioner's destination ofBuffalo, NY, Delta refused on tariffgrounds to either provide air transportation on another carrier or to provide any remedy for Petitioner's substantial losses other than refund ofhis Charlotte-Atlanta-Buffaloticket. As the reason for Delta's position was the fact that the long Charlotte delay
was caused by ATC in Atlanta, its unconcerned and cavalier treatment of your Petitioner is in fact permitted by the present wording of Rule 240 (B). It is important to note thatevery other air carrier maintains virtually-identical-2-

tariffprovisions in both domestic and foreign air transportation. Accordingly, your Petitioner requests the following, vitally-important change-sto Rule 240 by mandate ofthe Department, as to both domestic and foreign air transportation, pursuantto the specific statutory authority granted to the Department by the above-cited Sections of49 U.S.C.: (a)Force majeure provisions presently set forth in Rule 240(B) of the Delta Air Lines domestic and foreign General Rules Tariff, and similar provisions in all other air carrier and foreign air carrier tariffs, shall not exemptany air carrier or foreign carrier from an express duty to arrange for transportation ofany fare-paying passenger on another air carrier or foreign air carrier ifsuch action will result in such passenger's trip being completed earlier than the ticketed trip which has been delayed
or canceled by the original air carrier or foreign air carrier. (b)No aircarrier or foreign air carrier shall impose any additional charge upon any affected passenger for such mandatory arrangement ofalternate air transportation or foreign air transportation, whether on an identical routing
oron a re-routing that is acceptable to the passenger. (c)When the delay or cancellation is the fault ofthe air carrier or foreign aircarrier, rather than a force majeure situation, the present language ofDelta Air Lines' Tariff Rule 240(C) and ofall other air carrier and foreign air carrier tariffs containing similar language shall be amended to strike all provisions that make the provision ofsuch alternate air transportation on another air carrier or foreign air carrier discretionery as to the nonperforming carrier. The specific Delta Air Lines language is as follows:

II C.l. Delta will transportyou to your destination on our next flight on which seats are available
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### Atoursole discretion, we may arrange for your travel on another-3-

carrier or via ground transportation.II [EmphasisAdded] In actual practice, as your Petitioner discovered on April 12, 2011, the present tariff language results in a grossly-inequitable situation whereby the affected passenger is wholly at the mercy of low-level gateor counter agents at the airportofdeparture. These worthies deliver IIgastronomic jurisprudencell in the manner ofJudge Roy Bean, the 19th-century IILaw West ofthe PecosII, in which frequent-flyer elite status and the willingness of
an affected passenger to become a sycophant in order to achieve on-the-spot equity createa condition ofprima facie discrimination, which is ofcourse prohibited by several important Sections of49 U.S.C. An affected passenger should be entitled to much more by way ofcurative air carrier action than the brush-offreceived by your Petitioner at the hands of Delta Air Lines on April 12, 2011: lilt's an ATC problem. We donlthavetodoanything for you.II [EmphasisAdded] (3)It is very important to note that an across-the-board, Departmentmandated tariffrevision on point will result in millions ofsituations in which
a passenger ofone airline will be provided alternate air transportation or foreign air transportation on another airline. Theseprovisionsofalternate airtransportation will notbe lIone-way" in nature;**!.~.,** solelyfrom one aircarrierorforeignaircarriertoanotheraircarrierorforeignaircarrier, butwill instead be reciprocal in nature. As such, there should be no financial benefit or detriment to any singlecarrier, but rather a IIspreading ofthe riskll (the basic principle, after all, ofinsurance itself) among all carriers. As this would greatly benefit presently-damaged passengers, while

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causing little or no economic detrimentto any air carrier or foreign air carrier, it would appear that the Department has a manifest duty to impose the changes requested by your Petitioner if, indeed, itcontinues to champion 

### consumer protection as one ofits primary goals.
REQUEST FOR SANCTIONS AGAINST DELTA AIR LINES, INC.
(1)As discussed above, your Petitioner was the victim ofan ATC delay in Atlanta ofover two hours' duration on the morning ofApril 12, 2011. When it became obvious that his Atlanta connection would be missed, Petitioner deplaned to discover a totally-unmanned departure gate. He then proceeded to the Delta ticket counter at Charlotte International Airport, and spoke to one of Delta Air Lines' "redjacket" counter supervisors. This agent looked in his computer, advised by Petitioner that he must arrive in Buffalo, NY no later than 2:30PM in order to make
a further ground connection, and found another Delta flight (at Gate AS) that would take Petitioner from Charlotte to Detroit, with a connection from there to Buffalo that would arrive at 1:13PM. Then, the "red.jacket" counter supervisortelephoned Gate A5, and advised that gate agent that Petitioner
was on his way and to make surethan his seat was held on that new flight. (2)Petitioner then proceeded back through airport security (wich took awhile,
as the TSA personnel were arbitrarily closing clearance lanes and taking lessons on new screening machines at their victims' expense). When Petitioner arrived at Gate A5, the Delta Detroit flight was still loading baggage. However, the gate agent refused to let me board, repeating the-5-

robotic mantra that, IIWe must depart on-time.II I then proceeded to telephone from the immediate gate area for more than ten minutes, and the airplane never left Gate A5 in that time. The gate agent, too, refused to use Rule 240 to place me on another airline to Buffalo, and further advised that lIall Delta flights for the rest ofthe day from Atlanta to Buffalo are sold-out.II With that, I drove 104 miles back to my home in a state ofsheer infuriation, and spent the following two hours canceling ground arrangements on this five-day trip while attempting to minimize cancellation penalties imposed by those suppliers. Atthe end ofthe day, my net out-of-pocket expenses totaled $414.48. (3)A Delta Air Lines reservations supervisor offered me a paltry $50 voucher good for a future flight on Delta, in alleged compensation for
a full day's wasted time and a canceled trip that I had been eagerly awaiting for months. As I have vowed never to fly Delta Air Lines again, I rejected her ludicrous IIcustomer relationsll offer. My suggestion that Delta Air Lines instead permit me to cancel a future frequent-flyer-award trip without charging mearapacious $150 to redeposit those 40,000 miles to my Delta FT account was summariIy rejected by this same supervisor. Ithen emailed Richard B. Hirst, General Counsel ofDelta Air Lines, with the same request. He failed to reply for 72 hours, whereupon Idecided to seek a lot more equity for millions ofother victimized passengers in the instant Petition for Rulemaking instead. (4)The Department has the authority, and indeed the necessity, to financially penalizecarriers that treat their customers like carrion. Petitioner therefore requests that the Department penalize Delta with a-6-

monetary fine that will be sufficient in size to compel Delta to employ counter and gate agents who are not rank incompetents in the performance oftheir duties, and will result in far fewer cases ofmalfeasance and negligence such as that which was unilaterally imposed on Petitioner
on April 12, 2011.

publico]

April 15, 2011 VERIFICATION Pursuant to Title 18 United States Code Section 1001, I, Donald L. Pevsner, in my individual capacity and as the authorized representative ofthe 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 knowingly used any documents which contain such statements in connection with the preparation, filing or prosecution ofthe pleading. I understand that an individual who is found to have violated the provisions of 18 U.S.C. Section 1001 shall be fined or imprisoned not

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more than five

CERTIFICATE OF SERVICE
I, Donald L. Pevsner, Esq., do hereby certify that I have served the following respondents to this Petition for Rulemaking and Request for Sanctions by First Class Mail, on this fifteenth day ofApril, 2011: (1)Richard B. Hirst: General Counsel Delta Air Lines, Inc. 1050 Delta Drive Atlanta, GA 30320 (2)Douglas Lavin: Regional Vice President, North America International Air Transport Association 601 Pennsylvania Avenue, NW: North Building, Suite 300 Washington, DC 20004 (3)David Berg: General Counsel Air Transport Association 1301 Pennsylvania Avenue, NW: Suite 1100 Washington, DC 20004 (4)Samuel Podberesky, Esq. USDOT Washington, DC

DONALD L. PEVSNER,.