BEFORETHE U.S. DEPARTMENT OFTRANSPORTATION
. OFFICE OFHEARINGS

WASHINGTON,D.C.

DeltaAirLines, Inc. Served February4, 2015
Violations of14 CFRPart257 and 49 U.S.C. § 41712 DOT-OST-2014-0229

EnforcementProceeding

OFFICE OFAVIATIONENFORCEMENTAND PROCEEDINGS' MOTIONFORLEAVETOFILE A RESPONSETO DELTA'S REPLY OnJanuary 29, 2015, the Office ofHearings granted Delta Air Lines' Motion for Leave to File a Reply in Support of its Motion to Dismiss. The Office ofHearings reasoned that good
cause existed to permit a Reply, in light of the potentially dispositive nature of the Motion to Dismiss, the importance ofthe Motion to Dismiss to the future course ofthe case, and the need to comprehensively address important legal issues regarding the interpretation of 49 U.S.C. §41712(c) and 14 CFR257.5. See Order, 1129/2015, at 2. For the reasons identified in the Order, and pursuant to 14 CFR 302.6(c), the Office of Aviation Enforcement and Proceedings (Enforcement Office) submits that good cause exists to permit a briefResponse to Delta's Reply. A Response is necessary to clarify the issues in the case, and to correct certain misstatements ofthe Enforcement Office's position contained within Delta's accepted Reply. The Response is attachedhereto.

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- Motionfor Leaveto File Response 1Respectfully submitted,

BlaneA. Workie Assistant General Counsel for Aviation Enforcement and Proceedings

Robert M. Gorman U.S. DepartmentofTransportation Office ofthe General Counsel 1200NewJersey Avenue SE Washington, DC 20590 (202) 366-9350 robert.gorman@dot.gov Counsel for the Office of AviationEnforcement andProceedings



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- Motionfor LeavetoFile Response 2BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

Delta AirLines, Inc. Served February 4, 2015
Violations of14 CFRPart257 and 49 U.S.C. § 41712 DOT-OST-2014-0229

EnforcementProceeding

RESPONSE OFOFFICEOFAVIATIONENFORCEMENTAND PROCEEDINGS TODELTAAIRLINES' REPLYIN SUPPORT OFMOTIONTODISMISS Itis a cardinal principle ofstatutory constructionthat courts must give effect, ifpossible, to every clause and word ofa statute, by reading them as a whole and context. Hibbs v. Winn, 542 U.S. 88, 101 (2004). Delta contends in its Reply thatneitherthe statute nor the regulation requires the airline to disclose code-share information in oral communications where there is no booking because ofthe use ofthe phrase "before booking transportation" in 14 CFR 257.5(b) and "priorto the purchase ofa ticket" in 49 U.S.C. § 41712(c). This interpretation would render meaningless the language in 14 CFR 257.5(b) that code-share disclosure must be provided "in any direct oral communications in the United States with aprospective consumer." Delta also asserts that, under the statute and regulation, it is not required to disclose code-share information until the moment immediately before a booking is made by a consumer, although neither the statute nor the regulation statethat disclosure can take place "atany time" before bookingtransportation. Delta's interpretation ofthe statute and regulation is unreasonable and would lead to an absurd result. Under Delta's interpretation, ifthere is no booking, its telephone reservation agent 

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- Motionfor Leave to File Response 3may engage in oral communications with a prospective consumer where the agent provides the
consumer the flight number, the departure and arrival time, and the price of the flight, but withholds information about the carrier operating that flight. This is misleading because in the consumer's mind, the carrier is presumptively Delta, if the consumer has called Delta's reservations number, as the Enforcement Office's Analysts did. Moreover, under Delta's interpretation, ifthere is a booking, its agent can wait up until the moment right before booking (e.g., after its agent obtains credit card information from the passenger but before the agent charges that card) to disclose to the consumer the carrier that is operating the flight. This interpretation would render both the statute and regulation meaningless and is contrary to clear legislative intent. As noted in our Reply, the overarching goal ofthe statute and regulation is to provide prospective consumers code-share information before they decide to book a flight, and indeed regardless ofwhether they book a flight at all. In the case ofadvertisements and internet offers, disclosure must take place even where it is not at all clear that a booking will eventually result. Likewise, with respect to oral communications, the regulation (14 CFR 257.5(b)) provides that code-share disclosure must take place during any oral communication with a prospective
consumer concerning a code-share flight. Delta asserts that Congress intendedto require early disclosure for internet searches butnot for telephone calls, because § 41712(c)(2) requires disclosure at "first display" for internet searches, and this language is not used when referencing oral communication. This contention is meritless. It makes sense for Congress to use "first display" for internet searches but not for telephone calls because ofthe inherent difference in transmitting information verbally, compared to transmitting information through the internet. Oral communication is essentially a conversation; an airline representative needs to obtain information·from the consumer about EnforcementOffice

- Motionfor LeavetoFile Response 4his/her travel plans before the representative can meaningfully disclose code-share information. This does not mean, as Delta appears to contend, that Congress intended to allow airlines to withhold code-share information from consumers during oral communications if there is no booking, or to provide code-share information to passengers who book air transportation at the very lastmomentbefore booking. The Enforcement Office's interpretation ofthe statute and regulation

-- namely, that the code-share disclosure requirement applies uniformly to all oral communications concerning codeshare flights

-- is much more reasonable and consistent with Congressional intent. Carriers must inform all consumers ofcode-share arrangements when the consumer is inquiring about a codeshare flight. There is nothing in the regulation or statute indicating that ifthe oral communication ends without a booking, no disclosure is required. The statute and regulation do not state the precise moment the disclosure must take place, but since the purpose ofthe requirement is to inform aprospective consumer that the flight he or she may be interested in involves a code-share arrangement, it is logical to conclude that disclosure must take place before the communication about a flight option ends. 1 It is irrelevant whether a booking occurs; in either case, disclosure musttake place.
Delta complains that the Enforcement Office "struggles to articulate any theory of exactly when" disclosure should take place where a booking does not occur. Reply at 3 (emphasis in original). There is no struggle. The statute and regulation require disclosure in all oral communications. As such, the carrier must disclose code-share information before the oral communication ends. The text ofthe statute and regulation do not set a more precise time frame. The preamble advises, however, that disclosure should take place during the "information and decisionmaking"portion ofthe call. As Delta observes, carriers do notknow in advance whether a call will be brieforlong, orwhether it will end in a booking. Thus, from a compliance perspective, if a carrier offers a code-share flight but delays disclosure, it runs the risk that the prospective consumer will terminate the conversation before disclosure takes place. In this sense, the Enforcement Office simply observes the practical effects ofthe rule text as it stands. This is not to say, however, thatthe Enforcement Office is requiring an "early rule," or a "relatively early rule." Delta's Reply at 1, 4 (emphasis 

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- Motionfor Leaveto File Response 5The statute and regulation contain the qualifiers "prior to the purchase of a ticket" (49 U.S.C. § 41712(c)) and "before booking transportation" (14 CFR 257.5(b)). These qualifiers are designedto preclude carriers from attemptingto satisfythe disclosure rule by disclosing before the communication ends, but after the booking has been completed. When placed in proper context, these qualifiers are clearly designed to preclude exculpatory after-the-fact disclosure; they are not designed to be a condition ofhaving to provide disclosure. Nor are they designed to spell out exactly when, before booking, the disclosure should take place. Notably, the statute and the rule do not state that disclosure may take place "atany time" before booking. The Enforcement Office's interpretation ofthe statute and regulation is not a confusing or illogical "two-tier" or "two-track" system as Delta alleges; it is a single rule ensuring disclosure in all cases, with a particular requirement that in the case ofcalls that result in a booking, it must
occur before booking? In fact, this rule is so simple and well-understood that Delta's own telephone representatives followed itin over 80% ofthe test calls. Finally, as set forth in our Complaint, Delta's failure to provide the required code-share disclosure is not only a violation of the explicit disclosure requirement of the regulation and statute, it is also an unfair and deceptive practice that violates 49 U.S.C. §41712(a). The Enforcement Office has consistently found that the practice of failing to inform prospective added). In any event, Delta's own representatives apparently understand and easily apply the rule: they did disclose in the majority ofthe test calls, which were generally brief, and which all ended without a booking. Airlines have regularly pointed out overthe years the cost ofcall center "talk time" when the Department has deliberated oral disclosure requirements. Carriers are unlikely to implement a disclosure called for in a rule in situations where they believe the disclosure is not required. 2 Delta argues that "ifthe regulation actually required a disclosure in every call-even for 'nonbooking' customers-itwould be extremely odd for the one and only time limit mentioned in the regulationto be expressly linkedto booking." Reply at 5. There is nothing odd about applyingthe phrase "before booking" to those situations where a booking occurs. It would be more illogical to conclude, as Delta does, that "before booking" has meaning where abooking does nottake place. EnforcementOffice

- Motionfor LeavetoFile Response 6customers that the flight they are interested in will be operated by another carrier before the
consumer makes a decision whether to purchase that flight is an unfair and deceptive practice? See, e.g., See, e.g., UnitedAirlines, Docket OST 2009-0001, DOT Order 2009-7-6 (July 9, 2009); USAirways, Inc., Docket OST 2009-0001, Order 2009-8-2 (August 10, 2009); FC USA, Inc., v. Liberty Travel, Docket OST 2013-0004, DOT Order 2013-8-25 (August 29, 2013); and Alaska Airlines, Inc., Docket OST 2014-0001, DOT Order 2014-6-15 (June 27, 2014). The remainder of Delta's Reply consists largely of policy disagreements concermng whether disclosure is helpful to consumers when a booking does not actually take place. Reply at 7-9. The Department has determined as a matter ofpolicy that code-share disclosures, like fullfare disclosures, should take place proactively for the benefit of all consumers. By enacting 49 U.S.C. §41712(c), Congress indicatedthat it sharedthat view. While Deltamay disagree withthe soundness ofthat policy, such a disagreement is hardly a basis for dismissing the Complaint as a matter oflaw. Blane A. Workie Assistant General Counsel for AviationEnforcement andProceedings

Robert M. Gorman U.S. Department ofTransportation Office ofthe General Counsel 1200NewJersey Avenue SE Washington, DC 20590 (202) 366-9350 robert.gorman@dot.gov
3 Dismissal under F.R.C.P. 12(b)(6) is appropriate only when the Complaint fails to state a claim that is plausible on its face. Bell Atlantic vs. Twombly, 550 U.S. 544, 570 (2007). Here, the Enforcement Office has alleged specific facts giving rise to plausible claims not only under 49 U.S.C. § 41712(c) (codeshare disclosure) but also under 49 U.S.C. §41712(a) (general unfair and deceptive practices). The Enforcement Office submits that the facts as alleged in the Complaint should be measured separately under each subsection of section 41712, because the elements of each claim are different. The Enforcement Office has also alleged plausible violations of the cease-and-desistprovisions ofDOT Order 2010-07-4. 

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- Motionfor LeavetoFile Response 7Counsel for the Office of AviationEnforcement andProceedings



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- Motionfor LeavetoFile Response 8CERTIFICATE OF SERVICE I hereby certify that on February 4, 2015, the original and one copy ofthe foregoing "Office of Aviation Enforcement and Proceedings' Motion for Leave to File a Response to Delta's Reply," and accompanying Response, were hand-delivered to: U.S. Department ofTransportation Dockets Operations, M-30 WestBuilding, Ground Floor Room W12-10 1200NewJersey Avenue SE Washington, DC 20590 I further certify that one copy ofthe forgoing document was hand-deliveredto: The Honorable J.E. Sullivan, Administrative Law Judge U.S. Department ofTransportation Office ofHearings, M-20 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 I further certify that copies of the foregoing document were served on the Respondent by electronic mail and certified mail-returnreceiptrequested atthe following addresses: J. Scott McClain Jon-PeterF. Kelly DeltaAir Lines, Inc. 1030 DeltaBoulevard, Dept. 981 Atlanta, GA 30354-1989 Scott.McClain@delta.com JonPeter.F.Kelly@delta.com Paul D. Clement Jeffrey M. Harris BANCROFTPLLC 1919 M Street, NW, Ste. 470 Washington, DC 20036 pclement@bancroftpllc.com jharris@bancroftpllc.com
BlaneA. Workie Assistant General Counsel for AviationEnforcement and Proceedings By:

# 1Z~ VIA. RobertM. Gorman U.S. DepartmentofTransportation Office ofthe General Counsel 1200 NewJersey Avenue SE Washington, DC 20590 (202) 366-9350 robert.gorman@dot.gov 

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- Motionfor LeavetoFile Response 9