Darren Martin and Robert Samstein

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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

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Darren Martin, )

third-party complainant )

v. ) Docket DOT-OST-2014-0029

American Airlines, Inc. ) 

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Robert Samstein, )

third-party complainant )

v. ) Docket DOT-OST-2014-0033

American Airlines, Inc. ) 

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CONSOLIDATED REPLY OF DARREN MARTIN AND ROBERT SAMSTEIN

Comments with respect to this document should be addressed to:

Darren Martin

36 Royal St

Watertown, MA 02472

E-mail: darren_martin02115@yahoo.com

Robert Samstein

500 E 63rd St Apt 7B

New York, NY 10065

E-mail: rsamstein@gmail.com

Dated: April 24, 2014
Darren Martin and Robert Samstein

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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

------------------------------------------------------)

Darren Martin, ) Docket DOT-OST-2014-0029

third-party complainant -and- )

Robert Samstein, ) Docket DOT-OST-2014-0033

third-party complainant )

)

v. ) 

)

American Airlines, Inc. ) 

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CONSOLIDATED REPLY OF DARREN MARTIN AND ROBERT SAMSTEIN

1. AA 1) sold award tickets which we could only change upon payment of high penalties, 

then 2) canceled our flights for its business advantage1

, 3) sought additional payment for travel 

on the obvious JBA alternative flights, 4) attributed those charges to BA (although AA is entitled 

to share the revenue), and 5) repeatedly mischaracterized the charges as “tax.” If the prohibition 

on “unfair” practices prohibits anything, we submit that it must prohibit this.

I. The Plain Language of the AA-BA JBA Promises the Benefits We Seek

2. The AA-BA Application for Antitrust Immunity promised “reciprocal frequent flyer 

programs” including “full reciprocity of frequent flyer benefits between American and British 

Airways” and indeed “metal neutrality” (emphasis added). AA and BA specifically touted the 

need for “indifference as to which airline actually carries the customer” in order to maximize the 

supposed consumer benefits from the JBA. 

3. AA says these promises have been fulfilled because “Members of American’s 

AAdvantage program may use their miles earned on American and redeem them for award travel 

on British Airways and vice versa.” But the Joint Application promises more than that single 

benefit: The application calls for “full reciprocity” and “completely reciprocal frequent flier 

 

1 AA to Dallas Aviation Blog: “so we can consistently offer a fully lie-flat product in all of the premium cabins” 
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programs” (p.22). Ordinary reciprocity means the ability to redeem on the other carrier, so “full” 

“complete[]” reciprocity must mean something more. We submit that “full reciprocity” includes 

reaccommodation on the other carrier, without additional charge, after a cancellation for the 

carrier’s own business reasons. In contrast, AA sought additional payment of approximately 

$250 per passenger (one-way) to let us travel on BA—a high fee, the opposite of “indifference.”

4. Our interpretation of the JBA is also consistent with AA’s promise of “expanded and 

enhanced route and schedule options” (p.24). AA flew BOS-LHR continuously from 1991 to 

2013, but after DOT approved the JBA, AA ended that service. AA also suspended its 

longstanding daily widebody daytime service JFK-LHR, leaving this route to BA only. A 

passenger seeking award travel on these routes must now accept a connection or pay carrier

surcharges that reduce award value by about 50% in coach. Having promised “expanded and 

enhanced” service in exchange for antitrust immunity, AA should not now be permitted to cancel 

that service and seek additional fees for the obvious JBA-operated ATI-immunized replacement.

5. In a revealing twist, the same day that AA ceased its daytime JFK-LHR, BA adds a 

second such daytime flight. The second BA flight is the clear replacement for AA’s flight. But 

for Samstein to use that flight, even after being ticketed and confirmed on its AA predecessor, 

AA says he must pay $250. Having promised “metal neutrality,” AA should be held to its word.

II. The Ambiguous Tariff Should Be Interpreted In Our Favor

6. Rule 80 provides three options for reaccommodation after a cancellation or significant 

schedule change. The plain language of the rule does not state who chooses which option to use.

Under longstanding principles of contract law, this ambiguity should be resolved to our benefit. 

7. AA says the tariff wording “carrier will arrange” means only the carrier gets to choose. 

But “arrange” conveys administrative duties (like notifying passengers and reissuing tickets). It

gives no indication that AA gets to decide. At best, the word is ambiguous. 
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8. AA could have drafted Rule 80 to explicitly state that it alone gets to choose. Passengers 

or DOT could then challenge such a provision as unfair, deceptive, or otherwise improper. AA 

had the power to draft the tariff as it saw fit. The ambiguity is AA’s own choice.

9. AA’s proffered interpretation of Rule 80 is particularly unconvincing because it is 

inconsistent with other sections other AA statements and DOT policy. See AA’s Refunds page

2

: 

“For schedule changes of more than 120 minutes, the customer is eligible to receive a refund to 

original form of payment.” See AA’s Schedule Change page, letting a passenger and travel agent 

choose among a new AA flight, a codeshare, a oneworld partner, or a refund. See DOT’s 

September 25, 2011 letter: “refunds should be provided upon request to passengers who wish to 

cancel their trip as a result of a flight cancellation or significant schedule change.” If AA’s 

interpretation of Rule 80 is correct, AA need not provide any choice at all; AA alone could

decide which option to choose. But then Rule 80 would contradict the choice explicitly and 

repeatedly promised by these other authorities.

10. Examining the first section of Rule 80, AA says the word “own” means only flights 

operated by AA because a broader interpretation “would read the word ‘own’ completely out of 

the rule.” AA misstates our argument. Suppose DOT finds, as we urge, that AA must transport us 

on BA JBA revenue-sharing service without additional charge.3 That would be consistent with 

an understanding of “own” that is limited to flights bearing the AA code, operated by AA and

JBA partners. Far from “read out of the rule,” the phrase “own line” would still sharply limit the 

choice of carriers (e.g. ruling out DL service BOS/JFK-LHR). Here too, any ambiguity is AA’s 

choice: AA could have defined “own line” in the tariff. Meanwhile, the similar and nearhomophone “online” has clear meaning: a BA flight sold as an AA codeshare is “online” to AA.4

Our interpretation is particularly convincing because the BA flights are part of the AA-BA 

2 http://www.aa.com/i18n/utility/FAQs/customerService/Refunds.jsp

3 We take no position on whether “own” includes non-revenue-sharing codeshares, a question not at issue here. 4 A customer makes an online (not interline) connection when connecting from one flight to another, both sold with 

the same airline’s code. Example: BOS-JFK (operated by AA), then JFK-LHR (operated by BA but sold as AA). 
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antitrust immunized alliance, for which the carriers sought and received “full reciprocity,” “metal 

neutrality” and revenue sharing to make AA “indifferen[t] which airline actually carries the 

customer” (p.27). AA’s narrow definition of “own” is the opposite of indifference.

11. AA offers alarmist tales of hypothetical future passengers seeking endorsements to 

unreasonable carriers or routings. But our requests were manifestly reasonable. We would have 

accepted any AA-operated flights broadly matching what we ticketed, but AA could offer 

nothing within 8 hours of our ticketed flights. We proposed no increase in flight segments or 

distance, and we sought transport only on flights with ATI JBA revenue-sharing. AA’s worry of 

costly reaccommodation is speculative, better addressed if and when that problem actually arises.

III. AA’s Web Site Statements Confirm the Propriety of the Reaccommodation We Seek

12. We easily found a web page where AA specifically grants permission for the change we 

sought. The page specifically affirmed that “AAdvantage” tickets are among the tickets covered 

by that policy. In response, AA criticizes our reliance on web site statements it says it intended 

only for travel agents.5 But AA put this material on the web without security of any kind. It is the 

first result for obvious Google searches.6 AA cannot be surprised when consumers find it. 

13. Our reliance on AA web pages is particularly natural because AA did not provide the full

fare rules for our tickets, neither before or after purchase. One example: On information and 

belief, AAdvantage routing rules are not available to passengers at any time.7 With key rules not 

available from AA, web pages become the best available authority.

14. The need to give meaning to every section of a document confirms our interpretation of 

the web page at issue. The page says “Rule 240 protects all ticketed customers including 

AAdvantage...” Yet travel agents cannot issue8 or change9 AAdvantage awards. What meaning 

 

5 After we filed our complaint, AA added the heading “travel agency guidelines.” Dated screenshot on file. 6 We used Google to search for “American Airlines schedule change” (without quotes). Screenshot on file.

7 We question whether this satisfies AA’s obligations under 14 CFR 221.107. Perhaps DOT should inquire. 8 aa.com fare rules window: “may only be sold by BA or AA and may not be sold by travel agents.” See footnote 10. 9 www.aa.com/intl/in/agency/travelExceptionPolicy.jsp: “All changes to AAdvantage tickets require contacting AA”
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can be ascribed to “AAdvantage” in a document purportedly only for travel agents? The 

provisions must apply to passengers who booked awards directly with AA—passengers like us.

15. Separately, AA argues that fees for travel on BA are disclosed elsewhere on aa.com. But 

a fare quote to an individual customer, for a specific itinerary, trumps vague general statements 

elsewhere on aa.com. Crucially, partial fare rules available on aa.com say nothing of a surcharge 

for reaccommodation on BA; quite the contrary, the “detailed fare rules” popup says “applies for 

transportation on American Airlines /... British Airways” with no reference to any surcharge for 

BA travel.

10 Nor does the AA General Tariff reference a surcharge for travel on BA.

IV. American’s Award Chart Is Irrelevant to Schedule Changes

16. In Answer Section II.E, AA argues that its award chart grants it permission to collect 

surcharges for AAdvantage award travel on BA. But the award chart is inapposite. At issue are 

fees for reaccommodation after cancelation, not an initial ticket purchase or a voluntary change.

V. AA’s Misstatements of “Tax” Are Independently Actionable 

17. AA’s false statements of “tax” are actionable no matter the propriety of additional charge 

for travel on BA. The false “tax” carries heightened public importance in light of AA’s sworn 

commitment, in the Consent Order of December 11, 2013 to “cease and desist from” the 

behaviors discussed there. Far from ceasing, AA actually continued those practices repeatedly

and even in writing and by supervisors and duty managers. These violations call for strict 

enforcement, particularly since the December 2013 civil penalty was modest in amount.

18. We were fortunate to recognize AA’s false statements of “tax,” but ordinary consumers 

would usually accept that “tax” is genuinely compulsory and would thus agree to pay. AA’s 

answer ignores this crucial difference, and the harm predictably resulting from misstatements.

Respectfully submitted,

/s/ /s/

Darren Martin Robert Samstein 

10 Screenshot on file and available at http://postimg.org/image/byzaskx5z/ .
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Certificate of Service

I hereby certify that I have, this 24th day of April, 2014 caused a copy of the foregoing Reply to 

be served by electronic mail on the following persons:

Robert Silverberg, Esq. rsilverberg@sgbdc.com

Robert Gorman, Esq. robert.gorman@dot.gov

Robert Samstein rsamstein@gmail.com

/s/

_____________________

Darren Martin