BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

___________________________ ) In The Matter of ) ) Docket No. OST-2013-0048 ) Agreement Adopted by the ) Passenger Services Conference ) Of the International Air ) Transport Association as ) Resolution 787 ) __________________________ )

SURREPLY OF OPEN ALLIES FOR AIRFARE TRANSPARENCY Open Allies for Airfare Transparency (“Open Allies”) hereby responds to the June 21, 2013 Reply filed by IATA in this docket. 1 Because IATA’s Reply only further muddies the water with respect to Resolution 787, Open Allies renews its request that the Department reject IATA’s Application for approva l of that Resolution. In its Reply, IATA repeats its claim that it is merely seeking the Department’s approval of a process for developing a new XML data transmission standard and observes that the adoption of XML to support airlin e distribution is not controvers ial. IATA Reply at 4. However, as IATA itself admits ( see id. at 4-5), Resolution 787 is highly controversial. The reason is that, on its face, Resolution 787 goes well beyond an airline ag reement on development

of an XML standard and sets fo rth a new airline distribution mode l, as even IATA concedes. See, e.g. , IATA Application at 2 (sta ting that it is not asking the Department to approve the “stated business requirements or marketplace aspirations of NDC” that are included in

1 Open Allies submits this Surreply on the assu mption that the Department will accept IATA’s Reply, which was submitted with a Motion for Leave. Further, Open Allies is submitting contemporaneously herewith a Motion asking the Depart ment to accept this Surreply into the record in this proceeding. As explained in that Motion, IA TA’s Reply has for the first time proposed significant conditions to any DOT approval of Resolution 787. Open Allies believes that this Surreply, including the discussion herein regarding the proposed conditions, w ill aid the Department’s review.- 2 - Resolution 787); id. at 5 (remarking, incongruously, that DOT “should not ignore the aspirations of IATA’s NDC described in Resolution 787”). It is for this reason that IATA’s Resolution has drawn opposition from hundreds of commenters, in cluding the several hundred members of Open Allies. From the start, IATA has, as a practical matter, asked the Department to overlook the significant divide between what IATA says Resolution 787 is, on the one hand, and the plain terms of the Resolution, on the other. This request has created enormous confusion and ambiguity. If the Department were to appr ove Resolution 787, one could only wonder whether the Department approved the Resolution as writte n, or as IATA characteri zes it and has asked the Department to approve it (i.e., “only insofar as it describes a means to modernize distribution communications technology with a new XML standa rd”). This problem is compounded by the

fact that Resolution 787 is almost entire ly about a new distribution model and has almost nothing to say about an XML data transmission standard. Moreover, since its or iginal filing, IATA has further obfuscated its request by (1) adopting another reso lution on its New Distribution Capability (“NDC”) at its Annual General Meetin g that is inconsistent with Resolution 787 and (2) proposing conditions to approva l in its Reply that are contra ry to the plain language of Resolution 787. Therefore, as discussed in Part I below, IATA’s Applica tion for approval of the Resolution should be denied, withou t prejudice to its future filing of a resolution that matches its request. As Open Allies demonstrated in its Ma y 1, 2013 Answer, IATA-prepared documents show that the intent underlying Resolution 787 is to rework air line distribution by replacing the existing pro-competitive system of transparent, easily-comparable fares – which the airlines have acknowledged constrains prices – with a distribut ion system designed to facilitate the shrouding- 3 - of fares. This will allow airlines to increase pr ices, particularly for less price-sensitive business

travelers. IATA still has not shared the relevant documents with DOT, and in fact opposes Open Allies’ pending motion that it be required to produce additional relevant documents bearing on Resolution 787. Nor does IATA’s Reply address the serious concerns about the competitive impacts of its proposal raised by Open Allies and other commenters. Instead, IATA proposes certain conditions that it suggests the Department attach to its approval of the Resolution. The proposed condi tions, however, would not alter the terms of Resolution 787. As explained in Part II belo w, the conditions would only further muddy the waters and highlight the inconsistency betw een the terms of Resolution 787 and IATA’s

characterization of those terms. It speaks volumes that IATA proposes multiple conditions to try to cl arify exactly what it is and is not seeking approval for. Instead of fixing Resolution 787, the proposed conditions

underscore that Resolution 787 addresses much mo re than IATA claims to be asking the Department to approve. Rather than try to fi x the Resolution with a series of conditions, the Department should reject Resolution 787 and thereby avoid inevitable controversy over inconsistencies and ambiguities that exist between the Resolution and the conditions. The Department can then consider any new resolution or (perhaps more a ppropriately) recommended practice that IATA might de velop that is tailored to its request for approv al and that excludes the elements of NDC that have no place in a Depart ment-approved IATA resolution. In Part II below, Open Allies further addresses the problems with the conditions proposed by IATA. If the Department does not rej ect IATA’s Applicati on outright, it should require IATA to produce relevant documents, as discussed in Part III below. Such documents will help shed light- 4 - on the goals underlying Resolution 787 and allow the Department to make a more informed

decision on the Resolution. Finally, Open Allies urges the Department to refrain from even the appearance of favoring one distribution model ove r another. For reas ons explained in Pa rt IV below, the Department should allow the market to govern th e choice of distribution models and should not endorse a model collectively agreed by airline competitors.

I. IATA Should Withdraw Resolution 787 IATA filed an Application that created confus ion and ambiguity right from the start. In that Application, it asked the Department to approve Resolution 787 only to the extent that it establishes a process for devel oping an XML standard. However, the Resolution, by its express terms and IATA’s own admission in the Appli cation and certain underlying documents, also defines a new airline distribution model, i.e., NDC . Therefore, from the very beginning, there has been substantial uncertainty regarding exac tly what IATA was asking DOT to approve, and exactly what any such approval would (and would not) cover. This uncertainty is reflected in the comments filed in res ponse to IATA’s Application, including those filed by airlines, many of which express support for NDC. Notably, Delta’s March 21, 2013 comments are completely focuse d on changes to distribution that will be effected by NDC. Delta observes (at pages 1-2) that Resolution 787 will move the industry away from a “commodity based sales model” under which airline products and serv ices are sold in a

“commoditized manner.” 2

2 Comments by other airlines also focus on the new distribution model defined in Resolution 787. For example, Finnair states (at page 1) that it supports Resolution 787 because, among other things, it would allow airlines to “provide more personalized offering and general conten t for consumers” and give consumers “more choice of options and comparability between airlines when different merchandising options are available for comparability.” The Africa n Airlines Association states (at page 1) regarding Resolution 787 that “[t]he new airline distribution model will change the way an airline distributes its- 5 - IATA’s actions since filing the Application ha ve only made matters worse. As discussed in Open Allies’ June 5, 2013 Supplemental Answer, on June 3, 2013, the 69 th IATA Annual General Meeting (“AGM”) adopted another resolution on NDC (the “AGM Resolution”). The

AGM Resolution contains statements that are at odds with Resolution 787, and only adds to the confusion and uncertainty. As Open Allies pointed out at page 4 of its Supplemental Answer,

the terms of Resolution 787 “are uncertain and shifting, and appear to have changed once again with the adoption of the AGM Resolution.” Open Allies urged that IATA “should withdraw its current application for approval and embody the pert inent principles of the AGM Resolution in a modified and final version of Resolution 787 appr oved by the PSC and re-filed with DOT. Only then can there be any certainty about the exac t agreement for which IATA seeks DOT approval, the purpose and effect of that agreement, a nd the possible consequen ces of DOT approval on distribution of airline services, airline competition and personal privacy rights.” However, IATA

did not do so. Instead, IATA filed a Reply in this docket that proposes conditions to any DOT approval of Resolution 787. The proposed conditions are not only inconsistent with Resolution 787, they are also completely different from the provisi ons in the AGM Resolution. For example, on the very important question of whether consumer s will continue to be able to easily and anonymously comparison shop (as they can today) , IATA is all over the place. Both the Application and Resolution 787 indi cate that the answer is no. See Application at 6 (referring to ending the EDIFACT standard), 10 (IATA “will not constrain the new standard by attempting to make it backward compatible”) and 11 (distrib ution through the legacy networks will continue only “for some time”); Resolution at 1.2.4 (“th ere should be no constr aints driven by any

products and services.” American Airlines, Qatar Ai rways and British Airways/Iberia similarly support Resolution 787 for reasons that are focused on NDC.- 6 - requirement for backwards compatibility”; backwards compatibility is justified “only if there is a defined business need”). The AGM Resolution, on the other hand, affirms at paragraph 2 that “the enhanced standards should support current shopping methods, including anonymous shopping by customers.” On yet a third hand, on e of the proposed condi tions (which, like the AGM Resolution do not actually amend Resolutio n 787) says: “Approval of Resolution 787 does not constitute approval of any agreement among airlines to prohibit individual carriers from continuing to utilize the EDIFACT standard.” What does all this mean? And what would Department approval mean? Open Allies subm its that the Department should not approve a Resolution surrounded by such ambiguity. Similarly, on the issue of whether Resolu tion 787 contains a mandatory requirement, Resolution 787 states that member airlines and sy stem providers “shall apply” the procedures in Resolution 787 when distributing enhanced content. This is mandatory language. By contrast, IATA asserts at page 7 of th e Application that “Resolution 787 does not obligate any IATA member to implement the provisions in whole or in part.” The AGM Resolution states at paragraph 4 that “airlines and ot her industry players w ould be free to decide whether or not to adopt the enhanced standards to support some or all of their di stribution needs.” In its Reply, IATA proposes an altogether different conditi on that says: “Approval of IATA Resolution 787 does not constitute approval of any agreement among airlines to restrict their use of any other data transmission standard(s).” Again, it is un clear exactly what DOT approval of Resolution 787 would mean in light of all these contradictory statements. In short, IATA has created a lot of confusion. At this point, there is Resolution 787, which has been overlaid by an Appl ication that appears to be de scribing a completely different resolution; these documents have then been ove rlaid by the AGM Resolution, and all of that has- 7 - been overlaid by the proposed conditions. The resu lt is a jumbled heap. If DOT were to approve Resolution 787, it would be totally unclear what such approval means and to which parts of Resolution 787 such approval extends. IATA’s request is not only ambiguous, it ha s also engendered substantial opposition from a diverse group of commenters, including Open Allies, GDSs, online and traditional travel agents, corporate travel departments, travel ag ent and tour operator a ssociations, business and consumer groups, individual consumers, and the Am erican Antitrust Institute. The opposition was generated for a simple reason – the terms of Resolution 787 are in many cases troublesome or at least ambiguous, and the trail of documents created by IATA and certain of its member airlines makes quite clear that the goal of the Resolution goes far beyond any communications standard and is in fact to re-design the cu rrent distribution busine ss model to become NDC. 3 Any such re-design of a fundamentally compe titive distribution system should remain the bailiwick of the free market, and should not be part of a Department-approved resolution by most

of the world’s airlines. Open Allies, in particular, submitted documents showing that: a. the XML standard-setting exercise that IATA says it is proposing is inextricably intertwined with a new business model for the pricing and sale of airline tickets; b. the purpose and effect of the new business model is to impose on consumers and the travel industry a new opaque model for the pricing and sale of airline tickets that would undermine or even end the current transparent and pro-competitive regime of published prices that any consumer can shop anonymously;

c. IATA and the airlines have confirmed that the existing transparent system of publicly available fares that can be vi ewed anonymously has constrained their ability to raise prices; and d. NDC is the “solution” to that problem.

3 See pages 17-29 of the May 1, 2013 Open Allies Answer for an analysis of these documents.- 8 - In its Reply, IATA ignores the documents demonstrating that NDC is designed to eliminate fare transparency, except to state (at pa ge 17) that commenters who argue that IATA is seeking to replace the existing system “seem to be proceeding on the mistaken premise that the

standardized format envisioned in Resolution 787 mandates a change in business practice.” However, IATA also acknowledges, as it must , that Resolution 787 – which according to IATA’s own definition is a binding action agr eed by airline competitors – describes a new business model. Indeed, any objective reading of Resolution 787 reveals that it deals almost entirely with the new business model and very litt le with an XML standard. Contrary to IATA’s claim (at page 22 of the Reply) that opponents of approval have failed to meet their burden of proof, Open Allies’ unrefuted showing based on IATA-generated documents regarding the intent and likely harmful effect of Resolution 787 demons trates that the agreement is adverse to the public interest. IATA portrays concerns expressed by co mmenters as “hobgoblins invented by those vested in the status quo.” Reply at 18. It also states that “commercial opponents appear in the main to be current beneficiaries of the legacy distribution system.” Id. at 5. These comments belittle the serious concerns raised by co mmenters and ignore the depth and breadth of opposition to the Application. For example, the Global Business Travel A ssociation, which describes itself as the “leading trade association serving business trav el buyers and providers, serving a network of more than 20,000 business travel professions,” urged DOT to reject Resolution 787, saying (at page 6 of its April 4, 2013 Comments): Based on the lack of clarity and extremely limited information provided to date, the business travel buyer community has no choice but to urge the DOT not to approve the Application until any benefit or adverse impact is cl early defined. Business travel- 9 - buyers want and need a voice in this regulatory proceeding, as well as in the development and implementation of changes to fare distribution models. With hundreds of billions of dollars spent on airfare each year, no interest is mo re directly impacted by more or less transparency and more or less choice than the business travel community. The Consumer Travel Alliance, joined by Airlinepassengers.com, likewise urged rejection (at page 2 of its April 29, 2013 Comments): IATA’s Application for Approval of an Agreement (Resolution 787) by the Department of Tran sportation (DOT) should be DOA.

● DOT should never approve an application that seeks to limit technology.

● DOT should never approve an application that seeks to limit consumers’ ability to comparison shop for prices across an industry.

● If these are not the goals of IATA, then DOT does not have sufficient information in this application to make an informed decision. The American Antitrust Institute also e xplained (at pages 6 and 7 of its May 1, 2013 Comments) why Resolution 787, in its present fo rm, should not receive Department approval: If the intent – as the Application states – is limited to implementing a new technical standard governi ng data interchange, then IATA should withdraw its Application an d issue such a standard without requesting DOT approval. If IATA does not withdraw its Application, the DOT should not assume the risk of accidentally “smuggling in” any aspects of the NDC model by granting unneeded approval for the XML standard. Approval of the NDC standard is a separate matter for purposes of regulatory oversight and should be presented to the agency at another time, subjected to sepa rate notice requirements, and opened up for comment. Anythi ng less than a separation of dockets serves to muddy the waters around the Resolution 787 proposal, risks confusing the public on the scope and breadth of the competitive issues surrounding NDC, and seriously threatens to short circuit full DOT review. The AAI submits, therefore, that the DOT cannot approve Resolution 787 in its current form. The DOT- 10 - should place the burden on IATA to resolve the tension between Resolution 787 and the language in IATA’s Application for which it seeks approval. Specifically, IATA must take the necessary steps to eliminate confusion as to whether it now seeks approval of the XML standard (which it belie ves it does not n eed), the NDC standard (which it believes it does not currently seek), neither, or both. The Department should respond by disapproving Resolution 787, while signaling that it would consider a more narrowly tailored resolution that comports with IATA ’s request to adopt a new messaging standard. 4 Open Allies and others could th en comment on a resolution that is consistent with IATA’s stated goal, rather than the current ambiguous Resolution, made even more so by the jumble of conditions that in some cases conflict with its very terms. II. IATA’s Proposed Conditions Do Not Solve the Problem The conditions proposed by IATA do not reso lve the problem of th e disparity between the express terms of Resolution 787 and IATA’s characterization of the Resolution. As shown below, the conditions are incons istent with the plain language of Resolution 787. Consequently, they further confuse rather than clarify the intent, scope and ef fect of the Resolution, and would likewise confuse the scope and meaning of a ny DOT approval. Moreover, the proffered conditions do not in any event remedy the pr oblems posed by Resolution 787.

A. IATA’s Efforts to Disclaim that Re solution 787 Defines a New Distribution Model Are Ineffectual In responding to commenters’ concerns that Resolution 787 embraces a new airline

distribution model and thus IATA’s request for approval appears to cover much more than what IATA says, IATA disclaims any ability or desire to dictate to any airline a particular business

4 The necessary amendments could be accomplis hed rapidly by IATA using the mail vote procedures for resolutions to be approved by traffic conferences found at Article IX of the Provisions for the Conduct of The IATA Traffic Conferences. Unde r the provisions of Article IX, any resolution may be adopted by mail vote if that vote is requested by the IATA Director General (subsection 1.4), with the voting period set by subsection 3 at 21 days.- 11 - model. This response misses the point. To th e extent Resolution 787 re presents an agreement among airline competitors on a new distribution model (as appears to be the case from the text of the Resolution and underlying IATA -prepared documents), DOT’s approval will confer the agency’s imprimatur on that distribution model – regardless of IATA’s ability or intent to dictate anything to its airline members. This potential outcome raises serious concerns for Open Allies (and many other commenters) for two broad reasons. First, Open Allies believes that a Department-approved airline agreement on NDC would likely harm consumers and competition because it would supplant the existing regime of transparent and pro-competitive comparison shopping, provide a means to increase fares – especially for less price-sensitive business travelers, reduce competition, penalize consumers who decline to provide their personal information, and invade consumer privacy. Moreover, the choice of dist ribution models, and the means of implementing them, should be left to the market. DOT should ha ve no place in sanctioning a joint airline effort to impose their will by dictating th e choice of distribution model to individual airlines that might not support such model and to travel retailers. As the Department has repeatedly recogni zed, the way in which travel options are presented to consumers is important. Airlines should not be permitted to collectively agree on a methodology for such presentation, particularly where, as here, that methodology would undermine comparative shopping. I ndividual airlines and indepe ndent, non-airline entities

involved in the distribution and sa le of air travel such as GDS s and online ticket agents have considerable expertise and should have the option to develop and select distribution models of- 12 - their choice. Such decisions should not be made by agreement among horizontal airline competitors with the imprimatur of the federal government. 5 Second, because of the uncertainty and am biguities surrounding IATA’s request, NDC would not receive (and has not re ceived) a full airing in this do cket. Nonetheless, the plain language of Resolution 787 indica tes that NDC is part (indeed, the main part) of what the Department is being asked to approve. 6 IATA’s proposed condition does not remedy this problem. That condition states: Approval of Resolution 787 does not constitute approval of any agreement among airlines regarding any method of distributing air transportation. It is hard to figure out exac tly what would be left of Re solution 787 if IATA’s proposed condition were imposed, and the Department and othe rs should not be given the task of doing so.

5 IATA agrees that “[h]ow distribution practices e volve should be left to the market.” Reply at 18. Consequently, there is no basis for the De partment to approve Resolution 787 as written.

6 See, e.g. , Sections 1.1, 1.2.5.1 and 3.1. Section 1. 1 states in relevant part: “This resolution recognizes that a standard process is required for airl ines to create their own product offer within their own systems (i.e. assemble fares, schedules and ava ilability - all in one transaction) which will be provided directly by and owned by the airline. This will enable more agile pricing and more personalized offerings. In this way, all product offers (including ancillaries) will be available for distribution through all channels that an airline wishes to sell them through. In this regard, this IATA standard will enable the creation of a Dynamic Airline Shopping engine A pplication Programme Interface (DAS API) based on IATA XML messages. The focus of this resoluti on will describe the main business processes that are required to support it.” Section 1.2.5.1 in turn provides that Enhanced Airline Distribution shall “allow individual carriers to determine its own prices and the nature of those products offered, depending on who the requestor is and what they are requesting. This will require authentication and the provision of historical data based on previous transactions.” Finally, Section 3.1 specifies the kinds of pers onal information that carriers have agreed among themselves they have the right to demand before quoting prices to consumers. See also pages 17-26 of the Open Allies Answer for discussion of the IATA-pre pared documents that conf irm the Resolution is an agreement on a new method for how air travel will be distributed, with that model premised on “knowing who is making the request.”- 13 - Instead, the Department should not act unless IA TA puts forward for appr oval a resolution that clearly covers only that fo r which it seeks approval. 7 B. Passenger Privacy IATA claims on page 10 of its Reply that “n othing in Resolution 787 directs airlines to require authentication before tr ansmitting an offer through the tr avel agency channel.” This claim is flatly contrary to the words of Resolution 787. Specifically, section 1.2.5.1 of the

Resolution states that Enhanced Distribution “will require auth entication and the provision of historical data based on pr evious transactions.”

IATA also takes issue with the notion that the collection of personal information will enable airlines to better identify less price-se nsitive business travelers who are willing to pay higher fares. IATA says this notion “strains credulity” and is “contrary to business reality”

because the airlines will not “ punish their most loyal and highest yield customers with higher fares or fees than they would impose on those w ho have little or no prio r relationship with the airline.” IATA Reply at 11-12. However, the “bus iness reality” is that ai rlines already structure their fares in a way that imposes higher rates on business traveler s (who are indeed their highest yield customers), while offering lower fares to le isure travelers who do not have the same loyalty

7 If despite these serious shortcomings the Department nonetheless were to approve the Application (an outcome which Open Allies strongl y opposes), the proposed condition should be revised, along the following lines: Approval of Resolution 787 does not cons titute approval of any agreement among airlines regarding any method of distributing air transportation, and this approval shall terminate in the event the IATA airlines agree upon NDC or any other distribution model without first obtaining separate DOT approval. The proposed additional language is consistent with IA TA’s representations in the Application. To be clear, if IATA were to seek approval of NDC in a separate proceeding, Open Allies would likely oppose such application, since Open Allies does not believe that DOT approval of an agreement by airline competitors to adopt and implement a particular distribution model serves the public interest.- 14 - to the airline. It is, quite frankly, hard to imag ine any other reason for inqu iring as to whether the purpose of the trip is business or pleasure. 8 IATA’s argument at page 12 of its Reply that airlines will not use personal information to enhance their ability to price discriminate beca use consumers will seek fare quotes anonymously or obtain competing offers likewise is flawed. First, it assumes consumers will still have the ability to engage in anonymous fare shopping once NDC is implemented, which may very well be a false assumption for reasons discussed in the Open Allies Answer and below. Second, for business travelers who require nonstop service, th ere may be no viable competing offers if the airline has the only nonstop service in the market and has adopted NDC for that market. Finally, IATA’s statement at page 12 that airlines will st ill be subject to privacy laws is hollow because such laws will not prevent airlines from using personal information to price discriminate and may not include adequate protections for such inform ation. In this regard, it is important to keep

in mind that this is not a situation where cons umers will have a real choice about whether to provide personal information, gi ven the binding nature of an IATA resolution. In the face of these concerns, IATA proposes the following condition: Approval of IATA Resolution 787 does not constitute approval of any agreement among airlines to require, as a condition of receiving an offer for air transportation , the disclosure by any passenger of personal information of any kind. 9 One problem with this condition is that it could be read as mean ing that the condition would be satisfied if consumers were provid ed as little as one – and only one – fare quote for a particular

8 In today’s transparent distribution model bus iness travelers who shop anonymously can take advantage of published fares set by the airlines to ga in sales from the marginal customers, that is, those who would not fly if fares were set above a certain le vel. In an NDC world, business travelers would lose that capability and thus would pay more, particularly on routes with only one airline offering the nonstop services that time-sensitive business travelers strongly prefer.

9 Emphasis added.- 15 - itinerary. Further, it seems inconsistent with the actual language of Resolution 787, as explained

above. Notably, IATA’s Reply also contains a slightly different formulation of this condition at page 33: Approval of IATA Resolution 787 does not constitute approval of any agreement among airlines to require, as a condition of receiving at least one offer for airline transportation, the disclosure by any passenger of personal information of any kind. The “at least one offer” language lends support to the conclusion that IATA is in fact proposing a

condition that would be met if a nonymous shoppers were given only one offer, even if priced at a punitively high level. Of course, any agreement between competing airlines to limit offers to anonymous shoppers to only one offer plainly would be anticompetitive and would constitute illegal price fixing. 10 C. Mandatory Effect of Resolution 787 In its Reply, IATA acknowledges that the Re solution would have mandatory effect since

if an IATA member airline chooses to distribute enhanced content, it would be required to use an IATA-developed XML standard. 11 IATA says this is not a problem because the Resolution 787 standards are non-exclusive. IATA proposes a condition to approval that would state:

10 To avoid such a reading, the phrase “as a condition of receiving an offer [or “at least one offer”] for air transportation” would need to be de leted, so that the full condition would state: Approval of IATA Resolution 787 does no t constitute approval of any agreement among airlines to require the disclosure by any passenger of personal information of any kind. Such a revision would not disturb any existing DOT approva ls that enable airlines to require the data they need to fulfill their contracts of carriag e with those who have purchased tickets.

11 This acknowledgment is contrary to IATA’s assertion in the Application that “Resolution 787 does not obligate any IATA member to implement the provi sions in whole or in part.” Application at 7.- 16 - Approval of IATA Resolution 787 does not constitute approval of any agreement among airlines to restrict their use of any other data transmission standard(s). As a practical matter, however, the require ment to use the Resolution 787 procedures when distributing enhanced content will result in the IATA XML standard being the only one (or nearly the only one) used by airlines and other tr avel distributors. An airline that has already undertaken the time and expense of making its syst em compatible with IATA’s XML standard is extremely unlikely to choose to incur the addition al time and expense involved with coding to use a different standard. Open Allies urges the De partment to leave the choice of such standards to the marketplace and not to favor one standa rd over another by endorsing a collective airline agreement imposing a particular standard. 12 D. Data Ownership The issue of data ownership highlights a nother inconsistency between Resolution 787 and IATA’s depiction of the Re solution. Section 1.2.7 of Resoluti on 787 explicitly states: “This

distribution model assumes each ai rline distributing its individual products and services is the owner of its own content.” Similarly, Section 1.1 states categorically th at the “product offer ... will be provided directly by and owned by the airlin e.” In response to concerns expressed about these provisions, IATA concedes that “data owners hip is an issue separate from the standard for

data transmission and not to be resolved under Re solution 787.” IATA Reply at 15. It proposes the following condition to approval to clarif y that DOT’s approval does not extend to any agreement among airlines regard ing the ownership of data:

12 Alternatively, were any condition along these lines to be imposed, Open Allies suggests the following condition in place of the one proposed by IATA: Approval of IATA Resolution 787 does no t constitute approval of any agreement among airlines to require the use of any pa rticular data transmission standard(s).- 17 - Approval of Resolution 787 does not constitute approval of any agreement among airlines regarding the ownership of the data that would be transmitte d via the XML-based data transmission standard envisioned in the Resolution. Again, IATA proposes a condition to approval that is inconsis tent with the express terms of the Resolution, thereby resul ting in confusion. The Departme nt should expect no less than that IATA will present a resolution that matc hes its request for approval and nothing more. 13 E. Backwards Compatibility Section 1.2.4 of Resolution 787 explicitly stat es that “there should be no constraints driven by any requirement for backwards compatib ility” and that any just ification for backwards compatibility must be based only on “a defined business need.” In re sponse to concerns expressed by commenters about this provision, IATA argues that “freedom from a backward compatibility constraint will expedite development of the proposed XML enhanced content standard and reduce development costs.” IATA Re ply at 16. Even if this is true, championing speed and development cost reduction as justific ations for not allowing backwards compatibility implicitly assumes that the new system is good and the old one is bad. Here, that is not at all evident. The existing pro-competitive system of transparent, easily-comparable airfares has constrained fare increases, as even IATA has r ecognized. It is not clear, and certainly has not been shown by IATA, that NDC or IATA’s putat ive XML standard (or a rush to implement either) will benefit cons umers. Further, Section 1.2.4 is an agreement among horizontal airline

13 Alternatively, if any condition were to be imposed along these lines, DOT should modify IATA’s proposed condition to car ve out completely data owners hip issues and any references in Resolution 787 to same: This approval does not in any way add ress the issue of data ownership and specifically does not include approval of Section 1.2.7 of Resolution 787 or of any other reference to ownership in the Resolution.- 18 - competitors not to support other distribution models that provide consumers with fare transparency. Such an agreement is improper and should not be condoned by DOT. IATA proposes the following condition: Approval of Resolution 787 does not constitute approval of any agreement among airlines to prohib it individual carriers from continuing to utilize the EDIFACT standard. This condition does not address Open Allies’ concern that the opaque NDC business model would not be compatible with the current system of transparent, public ly-filed fares that any consumer can shop anonymously. 14 Further, IATA’s proposed condition is also too narrow because it focuses only on the EDIFACT standard and not on the use of existing (or future) XML

standards that would co mpete with the putative IATA XML standard. 15 III. If the Department Does Not Reject IATA ’s Application Outright, It Should Require IATA to Produce Relevant Documents On March 18, 2013 (one week af ter IATA filed the Applicat ion), Open Allies filed a motion for a scheduling order that included a request that IATA be required to produce relevant documents in IATA’s possession relating to Resolu tion 787. In that Motion (at 3-4), Open Allies stated the reason for the request and described th e limited scope of documents it was requesting: Given sharply contrasting views about the consequences for consumers and other stakeholders of this inter-carrier agreement, and the magnitude of the adverse effects for consumers if the agreement is as described in some IATA documents that are

14 Notably, the AGM Resolution states at paragr aph 2 that new standards “should support current shopping methods, including anonymous shopping by customers.” However, no such language appears in Resolution 787 or in IATA’s proposed conditions . Open Allies urges the Department to reject Resolution 787 and make clear that it will not approv e any amended version of the Resolution that does not include this language.

15 The following condition on backwards compa tibility would be more appropriate if any condition were to be adopted along these lines: Nothing in this approval shall authorize any restriction on backwards compatibility, and this approval specifically does not include approval of Section 1.2.4 of Resolution 787.- 19 - already available, we respectfully submit that IATA (including its relevant subgroups of carrier members, notably the Passenger Distribution Group members) should be required to produce in this proceeding all documents in IATA ’s possession (whether authored by IATA or not) that relate to Resolution 787 or NDC. In its decision of March 28, 2013, the Departme nt extended the dead line for answers to IATA’s application but deferred action on this re quest. In both its Answer of May 1, 2013 and its Supplemental Answer of June 5, 2013, Open Allie s renewed that request, unless DOT were to dismiss IATA’s application. At page 25 of its Reply, IATA urges DOT to reject this request, saying that “the massive fishing expedition so ught by opponents and the consequent cost and delay it would occasion ar e clearly inappropriate.” IATA’s protests about Open Allies’ targeted request for documents are entirely unconvincing. First, on the subject of delay, Open Allies filed the request for disclosure of information that would help shed light on the true nature of this controve rsial agreement just one

week after IATA filed its Application. Open Allies’ reque st was a legitimate and necessary effort to get the full set of facts on the table. It was not an effort to cause delay. IATA’s complaint about delay rings hollow given that it took IATA over seven w eeks to submit a Reply to the timely filed opposing comments in this proceeding. Second, IATA’s description of Open Allies’ re quest as a “massive fishing expedition” is wrong. The request is narrowly targeted to seek only documents “related to Resolution 787 or NDC.” No subject matter other than the very Resolution for wh ich IATA seeks approval is covered by the request. Third, IATA’s vague and unsubstantiated clai ms of “consequent cost” fall short of establishing that the request is unduly burdensome. IATA makes no attempt whatsoever to explain even the magnitude of the likely costs of document produc tion, much less detail them. If- 20 - such generalized protests about the burden (a nd delay) required to pr oduce relevant documents were sufficient to carry the day, no party woul d ever be required to make disclosure of documents in its possession. IATA is the party seeking approval here. The cost of complying with an appropriately tailored doc ument request would pale in comp arison to the global effort it has invested to date in promoting NDC. Accordingly, unless the Department reject s IATA’s Application (which Open Allies urges for the reasons stated above), it should require IATA to produce relevant documents as described in Open Allies’ Motion of March 18, 2013. It is only reasonable to allow interested parties (and the Department) to review the unde rlying documents to better understand what Resolution 787 is about, particul arly in these circumstances wh ere substantial uncertainty and confusion remain on that key question.

IV. DOT Should Allow the Market to Govern the Development and Choice of Distribution Models IATA suggests that Resolution 787 and its NDC model are needed because the “legacy” systems have resisted and slow ed change and are wedded to out dated standards that no longer serve the industry. Nothing could be further from the truth. GDSs have long been, and continue to be, at the forefront of technol ogical developments in travel distribution. Moreover, as IATA itself acknowledges (Reply at 4), GDSs al ready use XML as a messaging standard. See also IATA Application at 5 (referring to the Sabre Red, Travelport Agencia and Amadeus Airline Retailing Platform products); Sabre’s Ma y 1, 2013 Answer (describing Sabre’s XML implementations); Amadeus Answer at 1-3 and Exhibit I (discussing and providing examples of Amadeus’ XML capabilities). In fact, to a subs tantial degree GDSs provide the technology used by IATA member airlines.- 21 - The results of an IATA survey (publish ed on May 23, 2012) of airlines and GDSs on their respective XML readiness show that GDSs are far more ready than ma ny airlines to handle XML messaging. 16 At the attached numbered slide 7, IATA compiled the airline responses to questions about the capability of their major sy stems to utilize XML. The attached numbered slide 10 summarizes the results of responses to those questions by “IT Providers,” that is, the GDSs. When the two sets of results are compared, they establish that the airlines as a group lack the capability to use XML and have markedly infe rior XML capabilities to those of the GDSs. Turning to the numeric scores, on a 5 point scale where 1 is fully capable, and 5 is not capable, of having their major systems use XML, the un-weighted airline average was 2.71 and the weighted average was 2.29. By contrast, the IT supplier average ra ting was 1.38. In other words, the average score that GDSs attained for XML readiness was far superior to the ratings the airlines gave themselves. 17 The fact that the industry is already moving in the directi on urged by IATA demonstrates that the marketplace around competitive technology for airline distribution is working and should be allowed to govern future developments. There is no need for the Department to interfere and to appear to favor one distribution model over another by approving Resolution 787 and the NDC model that, IATA’s claims notwithstanding, remains embe dded in the terms of that

Resolution.

16 The two relevant slides (7 and 10) of the survey results are attached at Exhibit 1. Open Allies would be happy to make the full study available upon re quest, but did not attach all of the survey results (which exceed 50 pages) because of its bulk.

17 IATA made no effort on the IT supplier side, unlike on the airline side, to produce a weighted average that accounted for the vol umes processed. Open Allies member s believe the relatively greater readiness of GDSs to handle XML messaging would have been even more striking if a weighted average had been produced by IATA for IT Suppliers.- 22 - V. Non-Airline Stakeholders Have Not Had a Voice in Resolution 787 IATA paints the Resolution 787 exercise as one where non-airl ine stakeholders have been extensively involved. As the Answ ers of the American Society of Travel Agents, the European Travel Agents’ and Tour Operators’ Associati ons and the Guild of European Business Travel Agents, Business Travel Coalition and Open Allies make clear, this picture is not accurate. Nonairline stakeholders have had no meaningful voi ce in the design of NDC and the adoption by the

airlines of Resolution 787. IATA also observes (at page 21) that non-airline stakeholders representing travel agents, GDSs and other technology providers are participating in a Distri bution Data Exchange Working Group (“DDXWG”). While some representatives 18 have been invited to attend the DDXWG sessions, they have been completely excluded fr om the development of the IATA XML standard, which is being handled exclusively by IATA and Farelogix. Everyone else has been shut out of this process. DDXWG did not choose the Op en Axis XML schema over the Open Travel Alliance schema. Rather, that decision wa s made by the IATA Passenger Distribution Group, where only airlines have a vote. Open Allies members stand ready to work w ith IATA should it decide to propose a new standard. Today, Open Allies sent to IATA the le tter attached hereto as Exhibit II, again making that request should Resolution 787 not be approved. Any such standard should protect the

interests of consumers and have no adverse im pact on transparency or competition, unlike IATA’s current approach.

18 While IATA continues to suggest in public statements that full collaboration with industry associations is occurring, in fact it has refused to recognize association re presentatives as legitimate representatives for their industry segments in the actual development process. Meetings of industry association staff and leaders with a few IATA manage ment representatives are not equivalent to full, transparent and open participation in the developmen t process. The American Society of Travel Agents, among others, has been excluded from that process.CONCLUSION

For the above reasons, the Department should disapprove Resolution 787 without prejudice to re-filing of a more narrowly tailored resolution that is focused exclusively on an

XML communications standard, Le., the standard for which lATA purports to seek approval. If

the Department chooses not to reject the pending Resolution, it should require lATA to provide

the documents requested by Open Allies before any further action is taken.

July 15,2013 Respectfully submitted, 

# I/tvJ ({)J 

# IA}; 0

# ~" Andrew Weinstem ExecLltive Director Open Allies for Airfare Transparency 913 S Street, NW Washington, DC 20001 202-667-4967 andrewwstn@gmail.com

# EXHIBIT I IATA SURVEY RESULTS (SLIDES 7 AND 10)1stEATF Survey – XMLB. OVERALL DATA PROCESSING ENVIRONMENT4. Are your major systems in thefollowing business areasCAPABLE of using XMLtechnology to exchange datawith 3rd parties?Please use the following rating scale:1 - Fully capable2 - Mostly capable3 - Capable to a limited extent4 - Capable to a very limited extent5 - Not capablea. Airline distributionb. Reservations managementc. Departure controld. Planning and scheduling (incl.slot management)e. Flight operationsf. Airport operationsg. Baggage handling23 May 20127AIRLINES2.712.643.003.003.00 3.002.912.292.482.863.032.882.762.3912345a b c d e f gAverage rankingHighest rankingLowest rankingWeighed average(no)(all)1stEATF Survey – XMLB. OVERALL DATA PROCESSING ENVIRONMENT4. Are your major systems in thefollowing business areasCAPABLE of using XMLtechnology to exchange datawith 3rd parties?Please use the following rating scale:1 - Fully capable2 - Mostly capable3 - Capable to a limited extent4 - Capable to a very limited extent5 - Not capablea. Airline distributionb. Reservations managementc. Departure controld. Planning and scheduling (incl.slot management)e. Flight operationsf. Airport operationsg. Baggage handling23 May 2012101.381.141.172.001.202.001.6012345a b c d e f gAverage rankingHighest rankingLowest rankingIT SUPPLIERS(no)(all)

# EXHIBIT II

OPEN ALLIES LETTER TO IATAOpen Allies for Airfare Transparency 913 S Street, NW, Washington, DC 20001

– 202

- 667

- 4967

– info@faretransparency.org 15! July 2013 Mr.!Tony!Tyler Director!General!&!CEO International!Air!Transport!Association 33!route!de!l’Aéroport 1215!Genève!15 Switzerland Dear!Mr.!Tyler,

I!am! writing!on!behalf!of!Open!Allies for!Airfare!Transparency! to!urge!IATA!to! withdraw! Resolution!787!on!Enhanced!Airline!Distribution!from!further!review!at!the!U.S.!Department!of! Transportation!(DOT) so! that! IATA can! launch productive!discussions with! other s takeholders in! the! airline travel distribution! system! on!a!more!constructive!and!viable! approach!to!this! important! issue. As!you! predicted!in!your!original!DOT!filing ,! Resolution!787!has!prompted!a!deep!backlash! acr oss!the!travel!industry! on! both!content!and!process!grounds

.!! Open!Allies and!other!key! travel!industry! organization s were! excluded!from the!discussion s and drafting!of!Re solution! 787,!and!our!nearly!400!memb ers!are! seriously! concerned!about!its!potential!impact s

. Thus,!we!urge!you!to!withdraw!this! proposal!and!work!with partners!who!distribute!your! members’! services!

– including! independent!distributors!and!sellers!of!air!travel,!corporate! travel!departments,! and! travel!trade!a ssociations

– to!create!and!propose!a! broadly

X supported new!resolution

. Should!you!agree!to!do!so,! we!stand!ready!to!work!quickly!and!collegially!to!bridge!our! difference s!on!these!matters,!and!we!believe!we!can!find!common!ground! by!the!end!of!the! year

. No!matter!how the!opportunity!emerges, we!look!forward!to!starting!with!a!clean!slate!and! working!constructively!with!IATA! should!it!wish! to! work!toward!the! establ ish ment!of a!common! technological!standard that!will!benefit!consumers!and!all!other!stakeholders.!!!!!!!!! Andrew!Weinstein Executive!Director Open!Allies!for!Airfare!Transparency