BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION . 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. Served February 4, 2015 

Violations of 14 CFR Part 257 and 49 U.S.C. § 41712 

DOT-OST-2014-0229 

Enforcement Proceeding 

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS' 

MOTION FOR LEAVE TO FILE A RESPONSE TO DELTA'S REPLY 

On January 29, 2015, the Office of Hearings granted Delta Air Lines' Motion for Leave to 

File a Reply in Support of its Motion to Dismiss. The Office of Hearings reasoned that good 

cause existed to permit a Reply, in light of the potentially dispositive nature of the Motion to 

Dismiss, the importance of the Motion to Dismiss to the future course of the case, and the need to 

comprehensively address important legal issues regarding the interpretation of 49 U.S.C. 

§ 41712(c) and 14 CFR 257.5. 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 brief Response to Delta's Reply. A Response is necessary to clarify the issues in the 

case, and to correct certain misstatements of the Enforcement Office's position contained within 

Delta's accepted Reply. The Response is attached hereto. 

Enforcement Office - Motion for Leave to File Response 1 
Respectfully submitted, 

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey Avenue SE 

Washington, DC 20590 

(202) 366-9350 

robert. gorman@dot. gov 

Counsel for the Office of Aviation Enforcement and Proceedings 

Enforcement Office - Motion for Leave to File Response 2 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. Served February 4, 2015 

Violations of 14 CFR Part 257 and 49 U.S.C. § 41712 

DOT -OST -2014-0229 

Enforcement Proceeding 

RESPONSE OF OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS 

TO DELTA AIR LINES' REPLY IN SUPPORT OF MOTION TO DISMISS 

It is a cardinal principle of statutory construction that courts must give effect, if possible, to 

every clause and word of a statute, by reading them as a whole and context. Hibbs v. Winn, 542 

U.S. 88, 101 (2004). Delta contends in its Reply that neither the statute nor the regulation requires 

the airline to disclose code-share information in oral communications where there is no booking 

because ofthe use of the phrase "before booking transportation" in 14 CFR 257.5(b) and "prior to 

the purchase of a 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 a prospective 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 state that disclosure can take place "at any time" before booking transportation. 

Delta's interpretation of the statute and regulation is unreasonable and would lead to an 

absurd result. Under Delta's interpretation, if there is no booking, its telephone reservation agent 

Enforcement Office - Motion for Leave to File Response 3 
may 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, if there 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 of the statute and regulation is to provide 

prospective consumers code-share information before they decide to book a flight, and indeed 

regardless of whether they book a flight at all. In the case of advertisements 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 intended to require early disclosure for internet searches but not 

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 of the 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 

Enforcement Office - Motion for Leave to File Response 4 
his/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 last moment before booking. 

The Enforcement Office's interpretation of the 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 of code-share arrangements when the consumer is inquiring about a codeshare flight. There is nothing in the regulation or statute indicating that if the 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 of the requirement is to inform a prospective 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 must take 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 of the 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 of the call. 

As Delta observes, carriers do not know in advance whether a call will be brief or long, or whether 

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 of the rule text as it stands. This is not to say, however, that the Enforcement 

Office is requiring an "early rule," or a "relatively early rule." Delta's Reply at 1, 4 (emphasis 

Enforcement Office - Motion for Leave to File Response 5 
The 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 

designed to preclude carriers from attempting to satisfy the 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 of having 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 "at any time" before booking. 

The Enforcement Office's interpretation of the 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 of calls 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 it in over 80% of the 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 of the test calls, which were generally brief, and which all 

ended without a booking. Airlines have regularly pointed out over the years the cost of call 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 "if the regulation actually required a disclosure in every call-even for 'nonbooking' customers-it would be extremely odd for the one and only time limit mentioned in the 

regulation to be expressly linked to booking." Reply at 5. There is nothing odd about applying the 

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 a booking does not take place. 

Enforcement Office - Motion for Leave to File Response 6 
customers 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., United Airlines, Docket OST 2009-0001, DOT Order 2009-7-6 (July 9, 2009); 

US Airways, 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 of policy 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 indicated that it shared that view. While Delta may disagree with the 

soundness of that policy, such a disagreement is hardly a basis for dismissing the Complaint as a 

matter of law. 

Blane A. W orkie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey 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-desist provisions of DOT Order 2010-07-4. 

Enforcement Office - Motion for Leave to File Response 7 
Counsel for the Office of Aviation Enforcement and Proceedings 

Enforcement Office - Motion for Leave to File Response 8 
CERTIFICATE OF SERVICE 

I hereby certify that on February 4, 2015, the original and one copy of the 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 of Transportation 

Dockets Operations, M-30 

West Building, Ground Floor 

Room W12-10 

1200 New Jersey A venue SE 

Washington, DC 20590 

I further certify that one copy of the forgoing document was hand-delivered to: 

The Honorable J.E. Sullivan, Administrative Law Judge 

U.S. Department ofTransportation 

Office ofHearings, M-20 

1200 New Jersey 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-return receipt requested at the following addresses: 

J. Scott McClain 

Jon-Peter F. Kelly 

Delta Air Lines, Inc. 

1030 Delta Boulevard, Dept. 981 

Atlanta, GA 30354-1989 

Scott.McClain@delta.com 

JonPeter.F.Kelly@delta.com 

Paul D. Clement 

Jeffrey M. Harris 

BANCROFT PLLC 

1919 M Street, NW, Ste. 470 

Washington, DC 20036 

pclement@bancroftpllc.com 

jharris@bancroftpllc.com 

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

By: 1Z~ VIA. 

Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey Avenue SE 

Washington, DC 20590 

(202) 366-9350 

robert. gorman@dot. gov 

Enforcement Office - Motion for Leave to File Response 9