Darren Martin and Robert Samstein Reply

1 of 7 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS WASHINGTON, D.C.

---------------------------------------------------- -- ) Darren Martin , )

third

- party complainant )
v. ) Docket DOT

- OST

- 201 4

- 0029 American Airlines, Inc. )

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

---------------------------------------------------- -- ) Robert Samstein , )

third

- party complainant )
v. ) Do cket DOT

- OST

- 2014

- 0033 American Airlines, Inc. )

------------------------------------------------------ )
CONSOLIDATED REPLY OF DARREN MARTIN AND ROBERT SAMSTEIN Comments with respect to this document should be addressed to:
Darren Martin 36 Royal St Wate rtown, MA 02472 E

- mail: darren_martin02115@yahoo.com
Robert Samstein 500 E 63 rd St Apt 7B New York, NY 10065 E

- mail: rsamstein@gmail.com

Dated: April 2 4 , 2014Darren Martin and Robert Samstein Reply

2 of 7 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF AVIAT ION 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. )

------------------------------------------------------ )
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 advantage 1 , 3) sought additional payment for travel
on the obvious JBA alternative flights, 4) attributed those charges to BA (although AA is entitled
to share th e revenue), and 5) repeatedly mischaracterized th e charges as “tax.” If the prohibition
on “un fair” 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 “ indiff erence 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 “ ful l 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”Darren Martin and Robert Samstein Reply

3 of 7 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 opp osite 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 cease d its daytime JFK

- LHR, BA adds a
second such daytime flight

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

. Bu t
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 reaccom m odation after a cancellation or significant schedule change. The plain language of the rule does not state who choose s 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)

. I t gives no indication that AA gets to decide . At best, the word is ambiguous.Darren Martin and Robert Samstein Reply

4 of 7 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 R efunds page 2 :

“ For schedule changes of more than 120 minutes, the customer is eligible to rece ive a ref und 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 pa rtner, 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, operat ed 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 define d “own line” in the tar iff. Meanwhile , the similar and near

homophone “online” has clear meaning : a BA flight sold as an AA codeshare is “online” to AA. 4 Our interpretation is particularly convincing because t he 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).Darren Martin and Robert Samstein Reply

5 of 7 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 propose d no increase in flight segments or
distance , and w e sough t transport only on flights with ATI JBA revenue

- shar ing. AA ’s worry of costly re accommodation is speculative , better addressed if and when that problem actually arises.
III. AA’s Web Site Statements Confirm the Propriety of the Reaccommodation We S eek
12. We easily found a web page where AA specifically grant s permis sion for the change we sought

. The page specifically affirmed that “A A dvantage” tickets a re 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 ru les for our tickets, neither before or after purchase. One example: O n information and belief, AAdvantage routing rules are not available to passengers at any time. 7 With key rules not
available from AA , web page s become the best available authority

. 14. The need to give meaning to every section of a document confirms our interpretation o f the web page at issue

. The page says “ Rule 240 protects all ticketed customers including AAdvantage

... ” Yet t ravel agents cannot issue 8 or change 9 AAdvantage awards. W hat 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 ma y not be sold by travel agents.” See f oot n ote 10

. 9 www.aa.com/intl/in/agency/travelExceptionPolicy.jsp : “ All changes to AAdvantage tickets require contacting AA ”Darren Martin and Robert Samstein Reply

6 of 7 can be ascribed to “ AAdvantage ” in a document purportedly only for travel agents? T he provisions must apply to p assenge r s who booked awards directly with AA

— passengers like us.
15. Separately , AA argues that fees for travel on BA are disclosed elsewher e on aa.com. But

a fare quote to an individual customer, for a specific itinerary, trump s vague general statements
elsewhere on aa.com. Crucially, partial fare rules available on aa.com say nothing of a surcharge
for reacco m modation on BA; quite the contrary, the “detailed fare rules” popup says “applies for transportation on Ameri can Airlines /... British Airways ” with no reference to any surcharge for
BA travel

. 10 Nor does the AA General Tariff re ference 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 permi ssion 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” carrie s 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. W e were fortunate to recognize AA’s false statements of “tax,” but ordinary consumers
would usually accept that “tax” i s genuinely compulsory and would thus agree to pay. AA ’s

answer ignores this crucial difference , and the harm predictably resulting from misstatement s
. Respectfully submitted , /s/ /s/ Darren Martin Robert Samstein

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

.Darren Martin and Robert Samstein Reply

7 of 7 Certificate of Service

I h ereby cer tify that I have, this 2 4 th day of April , 2014 caused a c opy 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