Order 2013

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 22 nd day of July 2013

Third Party Complaint of

F. Bennett Cushman II

v. British Airways Plc Docket OST 20 1 3

- 0 101

Violations of 49 U.S.C. § 41712 and

14 CFR 259.5(b)(4 ) Served July 22, 2013

O RDER OF D ISMISSAL

On May 13 , 2013, Mr. F. Bennett Cushman II (the Complainant) filed a third

- party complaint under 14 CFR 302.401 against British Airways Plc ( British Airways ) alleging

that the carrier fail ed to comply with the reservations

- holding requirements of 14 CFR 259.5(b)(4)

. The complaint also alleges a general practice on the part of British Airways reservations agents to deny the applicability of U.S. regulations to its operations and urges the Department to impose sanctions on the carrier fo r its violations of section

259 .5 (b)(4) and general denial of U.S. jurisdiction

. This order finds no support for the

assertions made in the complaint, although it does find that the carrier did commit minor violations of 14 CFR Part 374, which were not alleged by the complainant and can be

dealt with by a warning . We therefore dismiss the complaint

.

The Complaint

The compl aint is based on Mr. Cushman’s reservations on British Airways made on March 30, 2013, for business class travel in September 2013

. 1 Within 24 hours Mr.

1 There is some confusion in the pleadings as to the itinerary of the March 30 booking. In the complaint the initial itinerary of Mr. Cushman is described as a journey from San Francisco to Paris and return to Boston; the British Airways answer refers to a San Francisco to Paris booking by way of London and Mr. Cushman’s reply does not dispute that this was the itinerary that was2

Cushman tried to make two changes to the reservation ; on atte mpting to make the second change, British Airways informed him that there would be $500 change fee. To avoid the change fee, Mr. Cushman attempted to cancel the entire trip but was told , according to the complaint, that the cancellation would result in the same $500 change fee. The

carrier charged the complainant’s credit card for a total of $4,012, representing the base

fare and the $500 cancellation or change fee. There was also a separate charge of $458 for seat assignments. These charges are, according to the complaint, in violation of section 259.5(b)(4), which requires that a carrier hold a reservation for 24 hours without

payment and allow cancellation of the reservation without penalty provided the

r eservation is made one week or more prior to the date of travel.

According to th e complaint, the carrier initially refunded the seat assignment fee for the travel and for another itinerary, but not until April 17, after numerous communications between the carrier and the complainant, did the carrier complete processing the refund of

t he entire balance. The complainant concedes that he eventually received a full refund of

the fare and the seat assignment and cancellation fee s

.

In a more general allegation, the complainant alleges that during numerous phone calls to

a British Airways reservations number in late April 2013 “a number of BA employees routinely and misleadingly told Mr. Cushman that he was not protect ed by the U.S. DOT rules [including section 259 .5(b)(4) ] . . . because BA is a ‘foreign’ carrier and not subject

to the U.S . DOT rules.” The complaint urges the Department to investigate these “illegal or unfair or deceptive practices” and impose appropriate fines and other sanctions

.

Answer of British Airways and Subsequent Pleadings

In its answer of May 28 , 2013, British Airways asserts that its conduct with respect to Mr. Cushman’s reservations was entirely consistent with the requirements of the

reservation

- hold provision of section 259.5(b)(4) and that the complaint’s broader allegations of carrier deception are vague, unsubstantiated and groundless. British Airways points out that section 259.5(b)(4) requires a refund for reservations cancelled within 24 hours, which Mr. Cushman received; nothing in the rule specifically refers to change fees but British Airways refunded those as well. 2 According to British Airways, the refund was processed in two stages . The refund of the seat assignme nt charges of $478 was completed on April 1; processing of a credit for the balance of the $4,470.34 (or $4, 012.34) debi ted to Mr. Cushman’s a ccount was completed on April 17

. 3 The

later cancelled. In a March 31 , 2013, booking, Mr. Tuttle and Mr. Cushman booked flights from San Francisco to Paris by way of London.

2 The Office of Aviation Enforcement and Proceedings issued a n industry guidance notice on this point on May 31, 2013, which advises carriers to disclose the option to cancel and rebook an itinerary, without a change fee, when a consumer wants to make an itinerary change or face possible future enforcement action

. 3 A violation of the requirements of 14 CFR Part 374 may have occurred in processing the second portion of Mr. Cushman’s claim, since the merchant did not complete its processing

within seven days of his cancellation refund request as required under Federal Reserve’s Regulation Z (12 CFR 226.12(e)). Mr. Cushman, however, did not allege this violation in his3

allegation of a general denial of the Department’s jurisdiction is not supported in the complaint and is an attempt, British Airways asserts, to apply a varnish of altruism to a complaint which in fact derives exclusively from Mr. Cushman’ s personal experience.

British Airways’ answer also describes efforts by the carrie r to recompense the complainant for any personal inconvenience with offers of frequent flyer awards and

credits toward future travel as well as cash

. Mr. Cushman refused these offers according to British Airways.

In a reply dated June 10, 2013, Mr. Cushman repeated the assertions contained in his complaint and laid emphasis on the fact that the carrier’s answer was not submitted with

the verification referred to in section 302.4(b ). 4 Mr. Cushman’s reply asserts that the British Airways ’ answe r lacked sufficient specificity, contain ed “numerous inaccurate or

m isleading statements,” and urged again that the Depar tment initiate a broad investigation of the carrier’s practices. Mr. Cushman stated that he refused a $500 credit as insufficient compensation for the delay and aggravation he suffered

. The reply also

refers again to an “inexplicable” bogus charge of $3, 512.34 (in the complaint it was

referred to as “ a mysterious and never

- ever explained” extra charge) which was applied

to Mr. Cushman’s credit card but was eventually refunded. 5 Mr. Cushman repeats his

assertion that the fact that the carrier eventually tendered the appropriate refunds does not constitute compliance with section 259.4.

British Airways, in response, filed a surreply on June 19, 2013. The pleading takes issue with a number of arguments raised in Mr. Cushman’s reply. First, with respect t o the verification argument, the carrier points out that the Department issued a waiver of the literal requirements of section 302.4(b) in March 10, 2000, limiting its application to

initial and continuing fitness proceedings. For more than 13 years , Brit ish Airways points out, the Department has accepted thousands of pleadings without verification pursuant to this waiver and Mr. Cushman has not offered any rationale for insisting on

complaint. Because of the complexity of the factual situation (i.e., based on our review of the record it appears there were three bookings, two changes and two cancellations within a 24

- hour period) , the isolated nature of the event and the brief duration of the carrier’s noncompliance, we are closing this matter with a warning to the carrier to refrain from such actions in the future.

4 Mr. Cushman’s reply was filed without obtaining the consent of opposing counsel, without an accompanying motion for leave to file an otherwise unauthorized document , as required by the Department’s rules (14 CFR 302.6), and 12 days following the pleading to which it responded. Nevertheless, in the interest of developing a more complete record, we have considered the complainant’s subsequent pleadings , including this reply, a surreply dated June 21,

and two comments

. 5 The British Airways answer makes clear that this “inexplicable” charge was the base fare

for the March 30 reservation. The total claim was for $3,512.34 (the fare), a $500 change fee for the second change and a $458 seat assignment fee. The later was refunded by April 1; the other

two ch arges were processed by April 17

. Mr. Cushman’s reply also states that “there were also additional ticket fees of $7116.68 for two cancelled tickets.” It is not clear to what this charge relates. It was not mentioned in the complaint itself and may refer to other trips booked and cancelled by Messrs. Cushman an d Tuttle. In any event, there is no allegation of delay in receiving credit for these cancelled bookings.4

verification in this instance

. Second, as to the offer of a $500 credit mentioned in the reply, British Airways reaffirms that the offer was in fact for $1

, 000 , as stated in the carrier’s answer, and attached copies of an e

- mail exchange referring to that amount and Mr. Tuttle’s rejection of that offer

. 6

Decision

We will dismiss the complaint

. The allegations contained in Mr. Cushman’s complaint concerning British Airways’ general practice of denying U.S. jurisdiction are entirely unsupported except for the allegations in the complaint. We are aware of no similar complai nts lodged with the Department against the carrier. With regard to Mr.

Cushman’s personal experience in making and then cancelling a number of reservations on March 30, 2013, he did receive his refunds albeit a few days late which is

understandable consid ering the history and complexity of the transactions in question

. We have reviewed the Department’s records of consumer complaints on this issue and over the previous three years and again found no pattern indicating violations of Part 259

or Part 374 by British Airways

.

6 Four pleadings were filed subsequent to the June 19 answer . On June 21, Mr. Cushman filed a surreply to the British Airways surreply of June 19 essen tially reiterating that a broad

based investigation of the air carrier was warranted on the basis of Mr. Tuttle’s and Mr. Cushman’s telephone conversations with British Airways reservations agents in which the agents allegedly denied the carrier was subject to U.S. laws. In addition, the pleading states that the

initial offer to Mr. Cushman of a $500 credit to settle the matter came from another office within the carrier, but the pleading does not deny receiving and rejecting the $1000 cash offer o n April

26 as reflected in the e

- mails attached to the carrier’s June 19 motion . A second pleading was filed by a Mr. A lfonso Estevez , who did not identify himself, who asserted that Mr. Tuttle is not an active member of any bar association and as a result is not entitled to act as Mr. Cushman’s representative. On July 2, British Airways file d a motion to strike all pleadings subsequent to its May 29 answer as raising no new or relevant issues. Finally, on July 5, the Complainant filed a response to the c arrier’s July 2 motion. We deny the carrier’s July 2 motion; we have considered

claims made in Mr. Cushman’s June 21 and July 5 pleading s and have determined that they merely restate previous factual assertions and arguments . As to Mr. E ste vez ’s claims, we note that the Department’s rules of practice impose no specific licensing requirements on those acting as representatives for complainants in Department proceedings. Mr. Tuttle clearly is acting with

Mr. Cushman’ s approval in this proceeding and we will accept the complainant’s pleadings.5

ACCORDINGLY, I dismiss the c omplaint in Docket OST

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This order is issued under authority assigned in 14 CFR 302.406(b) and shall be effective as the final action of the Department within 30 days after service.

By:

Samuel Podberesky

Assistant General Counsel for Aviation Enforcement and Proceedings

An electronic version of this document is available on the World Wide Web at http://dms.dot.gov//reports /reports_aviation.asp