BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. 

Alleged Violations of 14 CFR Part 257 

and 49 U.S.C. § 41712 

Enforcement Proceeding 

Leave to file granted 

February 10,2015 

Served February 26, 2015 

DOT-OST-2014-0229 

RESPONDENT DELTA AIR LINES' 

FINAL SUR-REPLY IN SUPPORT OF MOTION TO DISMISS 

Pursuant to the Order issued by Judge Sullivan on February 10, 2015, Respondent 

Delta Air Lines respectfully submits this Final Sur-reply in support of its Motion to 

Dismiss the Enforcement Complaint. 

A. Delta's position is clear, workable, and grounded in the unambiguous text 

of the relevant statute and regulation: a carrier complies with its code-share disclosure 

obligations as long as it makes the required disclosures "before booking transportation," 

14 C.F.R. § 257.5(b), or "prior to the purchase of a ticket," 49 U.S. C. § 41712(c). 

The Office, in contrast, remains unable to articulate any workable rule of when 

the code-share disclosure must be made, much less a rule that has some basis in the text 

of the statute and regulation. Indeed, the Office has now changed its legal theory at least 

three times in this proceeding alone. The Office initially demanded a $200,000 

"compromise civil penalty" on the ground that Delta had violated a "first mention" rule. 

See Delta Mot. To Dismiss Exhibit A (Apr. 7, 2014 letter). Then, in its response to 

Delta's motion to dismiss, the Office disclaimed reliance on a "first mention" rule and 

instead asserted that "code-share information must be provided early during any 

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Delta Final Sur-reply 
conversation" with a prospective customer. DOT Resp. 5; see id. at 6 (statute and 

regulation "requir[ e] early notice of code-share arrangements"); id. at 7 ("code-share 

information should be provided early"); id. at 12 n.8 ("relatively early"); id. at 17 ("early 

in the process"). 

Remarkably, the Office now abandons its "early" rule as well, arguing (at 5-6 & 

n.1) that a code-share disclosure must be made in every telephone call "before the oral 

communication ends." But there are two obvious problems with that rule. First, it has no 

basis in the text of the statute or regulation. Congress and DOT easily could have written 

the statute and regulation to require disclosure "in any direct oral communication, before 

the communication ends." But they did no such thing. Instead, the regulation requires a 

carrier to "tell the consumer, before booking transportation, that the transporting carrier 

is not the carrier whose designator code will appear on the ticket." 14 C.F.R. § 257.5(b) 

(emphasis added). If carriers were actually required to make a disclosure in every 

telephone call, regardless of whether a booking occurred, it would have made no sense 

for the only time limit in the statute and regulation to be expressly linked to booking. 

Second, it is unfair and unworkable to have a rule in which carriers' regulatory 

obligations turn on actions that are entirely within the customer's control. A carrier can 

hardly be faulted if-as in the case of the Office's secret shoppers-a caller voluntarily 

ends the call before disclosure has been made. The Office notes (at 5-6 n.1) that Delta 

often provides code-share disclosures to customers even when they do not book tickets. 

But the fact that Delta encourages its reservation agents to make code-share disclosures 

as soon as possible does not in any way suggest that the failure to make disclosures in 

this manner is an "unfair" or "deceptive" practice that can result in a $27,500 fine. 

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Delta Final Sur-reply 
The Office asserts (at 1-2) that Delta's position would "render meaningless" the 

language in the regulation stating that disclosure must be made "in any direct oral 

communication." But, when properly read in the context of the regulation as a whole, 

this language simply underscores that the code-share disclosure must always be made 

"before booking transportation." The word "any" hardly suggests-as the Office 

contends-that a violation can be established even when no booking has been made. To 

take another example, consider a hypothetical SEC regulation that states: "In any 

proposed securities offering, the company shall issue a prospectus before shares are sold 

to the public." The fact that this regulation uses the word "any" does not change the fact 

that the relevant time limit is "before shares are sold to the public." And a company 

would obviously have no obligation to issue a prospectus if shares were not sold to the 

public. The code-share regulation is no different: the reference to "any direct oral 

communication" does not change the fact that the regulatory obligation is explicitly 

linked to "booking transportation," and that no violation can be shown unless a customer 

makes a booking or purchase without receiving the required disclosure. 

Based on the regulation's reference to "prospective" customers, the Office further 

contends (at 5) that "it is logical to conclude that disclosure must take place before the 

communication about a flight option ends." But the use of the word "prospective" to 

modify "consumer" simply reflects the obvious fact that any caller is a "prospective" 

customer until he actually books a ticket. See Delta Reply at 5 n.1. Indeed, the same 

sentence that contains the word "prospective" also clearly states that the carrier must 

make the code-share disclosure "before booking transportation." 14 C.P.R. § 257.5(b). It 

is not "logical to conclude" from this sentence as a whole that the carrier must make the 

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Delta Final Sur-reply 
disclosure "before the communication about a flight option ends," even if the customer 

hangs up without booking a ticket. To the contrary, interpreting the sentence in that way 

would violate basic principles of statutory construction by reading the phrase "before 

booking transportation" out of the regulation entirely. See Hibbs v. Winn, 542 U.S. 88, 

101 (2004) (statute or regulation must be construed "so that effect is given to all its 

provisions, so that no part will be inoperative or superfluous, void or insignificant"). 

The Office also asserts (at 3-4) that it would be "absurd" and "misleading" for a 

carrier to fail to provide code-share information to consumers who do not book tickets. 

But the Office ignores the fundamental mismatch between its legal theory and the policy 

goals of the disclosure rules. The primary policy concerns underlying the regulation were 

that-absent a stronger disclosure rule-customers who booked flights might not know 

that they would be traveling on a regional airline or smaller plane, might not know how 

they would earn frequent flier miles, and might not know where to check in at the airport. 

See Delta Reply 8-9 (citing 59 Fed. Reg. 40,836, 40,838 (1994)). In light of these 

explicit policy concerns-all of which apply only to customers who actually book 

tickets-it is not surprising that the regulation applies only to customers who "book[] 

transportation." The Office (at 7) dismisses all of this as a "policy disagreement," but 

Delta's arguments directly quote DOT's own stated policy rationales for adopting the 

current regulation. 

B. Finally, the Office concludes by raising yet another new argument. Even 

if Delta's conduct did not violate the statute and regulation that specifically address codeshare disclosures, the Office contends (at 6-7 & n.3) that Delta's actions violate the 

general prohibition on unfair or deceptive practices in § 41712(a). That argument gets 

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Delta Final Sur-reply 
things exactly backwards. When a statute or regulation contains both specific provisions 

and general provisions, it is the specific that controls the general. "The law is settled that 

however inclusive may be the general language of a statute, it will not be held to apply to 

a matter specifically dealt with in another part of the same enactment." Fourco Glass v. 

Transmirra Prods., 353 U.S. 222, 228 (1957); see also RadLAX Hotel v. Amalgamated 

Bank, 132 S. Ct. 2065, 2070 (2012) (specific-controls-the-general rule applies when a 

"general" prohibition and a "more limited, specific" prohibition "exist side-by-side"). 

This rule of interpretation has "special force" where an agency has targeted 

"specific problems with specific solutions." Doe v. Nat'l Bd. of Med. Examiners, 199 

F.3d 146, 155 (3d Cir. 1999). For example, the Americans with Disabilities Act 

("ADA") contains general provisiOns regarding discrimination m public 

accommodations, as well as specific provisions regarding accommodations for written 

examinations. In Doe, the plaintiff sought to challenge a written examination under the 

ADA's general prohibition on discrimination. The Third Circuit (including then-Judge 

Ali to), had little difficulty rejecting that argument. Because Congress adopted a "specific 

definition of what [the ADA] requires in the context of examinations," it was wholly 

inappropriate for the plaintiff to seek to challenge an examination under the general antidiscrimination provision. Id. at 154-55; see also HCSC-Laundry v. United States, 450 

U.S. 1, 6 (1981) (more-specific provision of tax code governed non-profit status of a 

hospital, rather than general non-profit provision); Mittleman v. PRC, 757 F.3d 300, 305-

06 (D.C. Cir. 2014) (party cannot seek review under general judicial review statute where 

a more-specific provision precludes review). 

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Delta Final Sur-reply 
Here, Congress and DOT have targeted the "specific problem" of code-share 

arrangements with the "specific solution[s]" in § 257.5(b) and § 41712(c)(l). Doe, 199 

F.3d at 155. It is thus plainly inappropriate for DOT to claim that Delta's code-share 

disclosures independently violate the general prohibition on unfair or deceptive practices 

in§ 41712(a). 1 

CONCLUSION 

This should be an easy case. The relevant statute and regulation impose a clear 

and unambiguous time limit for when the code-share disclosure must be made: "before 

booking transportation" or "prior to the purchase of a ticket." Ifthe Office believes that a 

stricter rule is needed, it should encourage DOT to change the regulation on a prospective 

basis through the rulemaking process. But the Complaint fails to show that Delta 

violated the text of the statute and regulation as currently written, and should accordingly 

be dismissed in its entirety with prejudice. 

1 The Office asserts in a footnote (at 7 n.3) that Delta's motion to dismiss should 

be denied because the Office has alleged "plausible violations" of a 2010 consent order 

between Delta and DOT. But any alleged violations ofthe consent order are derivative of 

the alleged violations of the code-share statute and regulation. See Complaint 'lf31 

(Delta's purported "failure to disclose all required code-share information to prospective 

consumers ... constitutes eight violations of' the consent order). If the Office's claims 

under § 257.5 and § 41712(c) fail as a matter of law-as they plainly do-then any 

claims for a violation of the consent order must be dismissed as well. 

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Delta Final Sur-reply 
J. Scott McClain 

Jon-Peter F. Kelly 

DELTA AIR LINES, INC. 

1030 Delta Boulevard 

Department 981 

Atlanta, GA 30354 

(404) 773-6514 

scott.mcclain@delta.com 

jonpeter.f.kelly@delta.com 

Respectfully submitted, 

Paul D. Clement 

Jeffrey M. Harris 

BANCROFT PLLC 

1919 M Street, NW, Ste. 470 

Washington, D.C. 20036 

(202) 234-0090 

pclement@bancroftpllc.com 

jharris@bancroftpllc.com 

Counsel for Delta Air Lines, Inc. 

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Delta Final Sur-reply 
CERTIFICATE OF SERVICE 

I hereby certify that on February 26, 2015, the original and one copy of the 

foregoing Final Sur-reply in Support of Motion to Dismiss were hand-delivered to: 

U.S. Department of Transportation 

Dockets Operations, M-3 0 

West Building, Ground Floor 

Room W12-10 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

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

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings, C-70 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (W96-431) 

Washington, DC 20590 

Robert Gorman 

Senior Trial Attorney 

Office of Aviation Enforcement and Proceedings, C-70 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (W96-413) 

Washington, DC 20590 

The Honorable J .E. Sullivan 

Administrative Law Judge 

U.S. Department of Transportation 

Office ofHearings, M-20 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

s/Jeffrey M. Harris 

Jeffrey M. Harris 

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Delta Final Sur-reply