Robert Samstein

Complaint 

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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

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

) 

Robert Samstein, ) 

 third-party complainant ) 

) 

v. ) Docket DOT-OST-2014-____ 

) 

American Airlines, Inc. ) 

) 

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

COMPLAINT OF ROBERT SAMSTEIN

Comments with respect to this document should be addressed to: 

Robert Samstein

 

E-mail: 

Dated: March 11, 2014 
Robert Samstein

Complaint

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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

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

)

Robert Samstein, )

 third-party complainant )

)

v. ) Docket DOT-OST-2014-____

)

American Airlines, Inc. ) 

)

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

COMPLAINT OF ROBERT SAMSTEIN

1. This complaint arises out of American Airlines cancelling its morning 

nonstop service JFK-LHR on which I had redeemed and ticketed an AAdvantage award. 

AA then refused to provide alternative comparable transport unless I paid additional fees 

(repeatedly mischaracterized as “tax”), in violation of AA’s prior commitments to 

passengers and to the Department of Transportation.

I. My Ticket, AA’s Cancellation, and My Discussions with AA

A. Ticket Issuance

2. On June 30, 2013, I used AA.COM to redeem miles for one-way coach 

award travel JFK-LHR on March 30, 2014. I chose the daytime departure to avoid an 

unpleasant overnight flight in addition to our tight restrictions of needing to arrive on 

Sunday and not being able to leave on Saturday evening for religious reasons. The 

itinerary calls for departure from JFK at 9:30am and arrival to LHR at 9:30pm the same 

day. Travel was for myself and my wife (two passengers), using miles from my wife’s 
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AAdvantage account. I paid the $5 of taxes by credit card and received an itinerary and 

confirmation the same day. See Exhibit 1.

B. Flight Cancellation and Attempted Rebooking

3. On January 5, 2014 I happened to look over my itinerary on AA.COM,

and I discovered that I had been rebooked onto an alternate flight JFK-RDU-LHR with an 

extended layover at RDU and an overnight flight to LHR. To the best of my knowledge, 

AA did not provide me with any schedule notification email to that effect. (I have 

searched through the history of the email account associated with the reservation, 

mb.eichenbaum@gmail.com.)

4. I called AA reservations to enquire about the change. A reservations staff 

person told me that the original JFK-LHR morning flight had been cancelled. The 

reservations person told me that the only morning flight available was a British Airways 

flight, but that AA would require me to pay an excess of $500 in “taxes and fees” to take 

that flight.

5. I requested that the fees be waived as this was due to a schedule change. 

While on the phone I pulled up the American Airlines policy for schedule changes, 

https://www.aa.com/i18n/agency/Booking_Ticketing/Reaccom/rule_240_80.jsp . That 

page did indicate that transfer to another Oneworld carrier was an option according to 

rule 240/80. I was told that this was not an option and was offered to be rebooked on a 

flight Saturday evening March 29. I explained that this flight was not an option for me as 

I am an observant Jew and it would require travel on the Sabbath.

C. Discussions with a Reservations Supervisor

6. At this point I asked to speak to a supervisor. A man came on the phone, 

introduced himself as a supervisor, and after explaining the situation repeated that the 
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taxes would have to be charged. I discussed the rule 240/80 but was told that this does not 

apply to award reservations. After being told that my best choice is for the reservation to 

be canceled and my miles reinstated, I stated that I would call back at another point since 

I had a meeting to get to.

D. Discussions by Twitter

7. I then tried reaching out to AA via Twitter. Our exchange was as 

follows1: 

Rsamstein: @AmericanAir My flight got canceled due to rescheduling and AA 

wants me to pay $250 in fuel surcharges to get on another flight. My res is 

, the issue is that due to Sabbath observance and when I need to arrive 

only BA flights work. AA seems to have eliminated AM flights and the PM 

flights arent late enough- I assume this is somehow due to the merger-I hope you 

can help

AmericanAir: “We're sorry for the schedule change, Robert. You can be changed 

to another airline if it's available. However, the additional taxes will be collected. 

Please contact reservations for rebooking of the award.” 

RSamstein: “The additional taxes are the cost of a paid ticket. I will just cancel 

and rebook on another airline. Though my travel agent said this violates DOT 

rules and I should file a complaint.” 

AmericanAir: “Our apologies again. AAdvantage will reinstate your miles and 

refund your taxes for no charge.” 

E. Further Discussions with a Reservations Supervisor 

8. A few days later I called again and asked to speak to a supervisor. I began 

to explain the situation but was cut off and told that she was aware of the situation and 

was reading the “notes” on the reservation. She again confirmed that these “taxes” would 

have to be charged despite the fact that this was due to a schedule change. I argued that 

my original flight was canceled due to a marketing promotion between American Airlines 

and British Airways whereby the flight was transferred to BA to allow the claim that all 

their flights had lie-flat business class seats. (See discussion in paragraph 18, below.) 

 

1 Where Twitter’s length limitations required multiple sequential messages, I combined those messages to 

restore the messages as both parties intended to send them.
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She explained that there was nothing that she could do, and so I asked to speak to 

someone that could help. I was told I could receive a call back later from a manager.

F. Discussions with the Duty Manager

9. Later that day, I received a follow up call from a woman who explained 

she was the duty manager and received an indication that I wanted to speak with her. She 

emphatically stated that there was nothing that could be done about the taxes and fees 

since they had to be paid and AA was not going to pay them. I pointed out that these were 

not taxes but rather fuel surcharges. I again asked about the policy described online 

which allows for carrier change and she stated that it would only be allowed in the case 

of an “emergent” schedule change within a day or two of flying. She stated that if the 

American flights did not work with my schedule then my miles could be redeposited to 

my account but that this “offer” would not last indefinitely. I was given an ultimatum that 

I had to decide immediately otherwise I would not be offered it again. I stated that this 

was unreasonable and she granted me a day to decide before it would no longer be an 

option. The next day, without any other option, I was forced to cancel the flight and have 

my miles reinstated. I did not “agree” to that option in any meaningful sense. Rather, it 

was imposed on me as a result of American’s refusal to provide any alternative that better 

met my needs and matched the ticket I had ticketed and confirmed. I was forced to make 

more expensive alternate arrangements as this was now only a few months before my 

travels rather than my original reservation which I made fully nine months in advance.
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II. AA is Obliged to Provide Transportation on BA without Additional Charge

A. AA General Tariff

10. I believe the situation at issue may be appropriately considered as a 

change in schedule. AA’s International General Tariff provides as follows: 

When a passenger will be delayed because of a change in its schedule, carrier will 

arrange to:

transport the passenger over its own lines to the destination, next stopover point or 

transfer point shown on its portion of the ticket, without stopover at no additional 

cost to the passenger, provided that a passenger who paid an Economy Class fare 

will be transported on one of its First Class flights only if such flight will provide 

an earlier arrival than its next Economy Class flight on which space is available.

endorse the unused ticket for the purpose of rerouting over another carrier; or

refund in accordance with Rule 90 (REFUNDS).

11. I believe the three listed options are intended to be alternatives, separated 

by “or.” 

12. The section is ambiguous as to who gets to choose among the three 

options. Following the standard principle of contract law that an ambiguous contract is 

construed in favor of the party that did not draft it, I interpret the section to allow the 

passenger to make that choice. (That interpretation also matches the options enumerated 

in AA’s Schedule Change page, discussed in paragraph 13 and onwards below.)

13. I choose the second of these options. Specifically, I choose to be endorsed 

to the nonstop BA operated service JFK-LHR. Note that the second option makes no 

mention of any obligation to pay any difference in fare, tax, or surcharge.

B. AA “Schedule Change” Web Page and Rule 240/80

14. I also reviewed AA’s Schedule Change page which, according to AA, 

gives the “Rule 240/80” rules for schedule irregularities. At heading AA Schedule 

Change, the page provides as follows:
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[schedule change of] 91 minutes and greater

Or the flight changes from a non-stop to a connecting flight

 If original inventory is not available may book an AA flight next lowest 

available inventory, same cabin, up to and including B inventory.

 If no AA flights are available may select an alternate flight on AA* (AA 

codeshare) maintaining same inventory, origin/destination, fare and fare basis as 

originally ticketed.

Restricted to oneworld® codeshare partners: If no AA flights are available may 

select an alternate flight on a oneworld AA*, if original inventory is not available 

may book next lowest available inventory, same cabin, up to and including B 

inventory, excludes W inventory for premium economy on AA*.

15. The proposed schedule change is a change from a nonstop to a connecting 

flight, which triggers the quoted provisions. I am therefore entitled to the benefits of this 

section. I elected to use either the second or third option. I note that when the initial 

agent examined my record, there was award inventory on that flight, which I take to 

satisfy the second-listed option (“maintaining same inventory”). Furthermore, even if 

that inventory was not available, the third-listed option provides that I could be booked 

into a higher available inventory since 1) no AA flights are available within a reasonable 

period of time, and 2) BA is a Oneworld codeshare partner.

16. As discussed in paragraph 8, an AA duty manager indicated to me that 

Aadvantage tickets are not protected by rule 240/80 or AA’s web site statements about

reaccommodation. I note that AA’s Schedule Change page indicates exactly the contrary. 

Specifically, the top of the page indicates that “Rule 240 protects all ticketed customers 

including AAdvantage, AA codeshare and Travel Agents free/reduced rate” and “Rule 80 

protects all ticketed customers including AAdvantage, AA codeshare and Travel Agents 

free/reduced rate.”
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C. AA Commitments to DOT in Its Request for Antitrust Immunity with BA 

and Others

17. AA’s request for additional fees, when reaccommodating me after AA’s 

cancellation, is inconsistent with the representations and commitments AA and BA made 

to DOT when seeking antitrust immunity. See their Joint Application for Antitrust 

Immunity, docket DOT-2008-0252, which lists as the supposed sixth benefit of the JBA: 

“The Joint Applicants will offer reciprocal frequent flyer programs to allow members of

one carrier’s frequent flyer program to accrue mileage and redeem awards on the services 

of another” (p.15, emphasis added) including “full reciprocity of frequent flyer benefits 

between American and British Airways” (p.16, emphasis added) and indeed “metal 

neutrality” (p.22). Here, even in response to a cancellation of ticketed and confirmed 

travel, AA is not treating BA flights in a “reciprocal” or “neutral[]” manner (not to 

mention “full reciprocity”)—although AA had specifically promised all of these benefits. 

18. AA and BA sought a significant concession from DOT in waiving 

antitrust laws as to their joint operation. For years, DOT was appropriately hesitant, 

noting the significant risks to pricing and service. AA and BA made forceful 

commitments in order to attempt to address DOT’s concerns and other concerns. AA and 

BA must now uphold the plain and literal meaning of their commitments.

D. The Consumer Harm Resulting from AA Cancelling My Confirmed Ticketed 

Travel for a Marketing Benefit with BA

19. As best I can tell, AA canceled my original flight due to a marketing 

promotion between American Airlines and British Airways whereby the flight was 

transferred to BA to allow the claim that all their flights had lie-flat business class seats. 

See http://www.appointmentgroup.com/2013/10/tag/news-from-london/ba-and-aa-tooffer-flat-beds-on-all-flights-between-london-and-new-york/: “A fully lie-flat bed in 
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business class on all 17 flights between London and New York – that’s 1000 flat beds in 

business class a day in each direction.” See also 

http://www.aa.com/i18n/urls/moreeurope.jsp, reporting “Beginning March 30, 2014, if 

you’re traveling in First or Business Class between New York and London, you can 

experience the unparalleled comfort of fully lie-flat seats on every American or British 

Airways flight.” On information and belief, AA has sufficient aircraft with the specified 

seats and could serve all JFK-LHR frequencies with such aircraft, but AA instead 

allocates those aircraft to other routes. On information and belief, this is the reason why 

AA canceled its morning service JFK-LHR, prompting the problems I experienced.

20. While AA’s flat beds may benefit some passengers, such as those who 

travel in business class, that is of zero value to me. My ticket was for travel in coach. 

21. I am perfectly happy to see AA take actions that benefit only a subset of 

customers. But here, as a result of the benefit AA sought to provide to business class 

customers, AA seeks to impose significant harm on me—requiring me to pay hundreds of 

dollars of extra fees, or to accept an indirect routing with hours more travel time. These 

are significant downsides that should concern the DOT.

III. AA Continues to Mischaracterize Carrier-Imposed Fees as “Taxes”

22. At least two of the AA representatives spoke with (I believe both of the 

supervisors) used the term “taxes” to describe the fees at issue. See the discussions 

summarized in section I above. When agents used the term “taxes,” they used it until I 

corrected them. I provide my summaries of the discussions from memory; I do not have 

call recordings, and more than two months has elapsed since the discussions. But I did 
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know that the charges were large, and it didn’t make sense that they were taxes. I 

remember remarking, at the time, that the agents were misusing the word “taxes.”

23. Furthermore, in its written reply via Twitter, AA staff specifically used the 

term “taxes” to describe the amount I needed to pay (“the additional taxes will be 

collected”). I had sent my record locator and had indicated that I was seeking to be 

reaccomodated on BA flights. Furthermore, I had carefully and correctly used the term 

“fuel surcharges” to describe the fee at issue. AA’s Twitter team thus had all the 

information it needed to confirm that the charge at issue is a surcharge, not a tax, and 

furthermore I had led by example by correctly characterizing the charge. Nonetheless, 

AA’s Twitter team nonetheless falsely used the term “taxes.”

24. I note that these practices are ongoing and recent. My experience

occurred during January 2014. My experience indicates that supervisors are also making 

the mischaracterization.

A. My Experiences Matches Others’ Reports

25. I have reviewed the complaints of Benjamin Edelman as to American 

employees mischaracterizing carrier-imposed surcharges as “tax.” My experience is 

similar. I note that Mr. Edelman’s initial complaint flagged the problem of 

reaccomodation after cancellation as one of the circumstances in which AA staff 

mischaracterize carrier-imposed surcharges as tax. Reviewing subsequent briefing, I see 

that AA argued Mr. Edelman did not have standing to bring such a complaint because he 

did not personally suffer such a cancellation. I do.

26. I reviewed the formal comment of Shawn Cole, who describes an AA 

agent who was hostile to him (indeed, disconnected his call) after Mr. Cole noted that a 

carrier-imposed surcharge is not a “tax.” My experience is broadly similar. I perceived 
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that agents were less helpful to me after I brought this error to their attention. The agents 

did not seem to recognize the important difference between an amount retained by a 

carrier versus an amount paid to a government, airport, or similar authority.

B. DOT’s Prior Ruling on Similar AA Practices

27. In its Consent Order of December 11, 2013, DOT affirmed that AA has 

misrepresented carrier-imposed surcharges as “tax,” and that doing so is unfair and 

deceptive. DOT ordered AA to cease these practices, and AA confirmed having done so. 

Inexplicably, and contrary to its representation in the Consent Order, AA continues 

similar practices to this day.

C. AA’s Special Duties In Light of Its JBA with BA 

28. AA staff repeatedly used the word “taxes” and otherwise indicated that it 

“must” and “has” to collect the taxes. These claims are particularly puzzling in light of 

American’s special relationship with British Airways. Just six years ago, American and 

British Airways sought and received DOT permission to coordinate pricing for their joint 

services. See Joint Application for Antitrust Immunity, DOT-OST-2008-0252-0001 at 

p.14 (“The Joint Applicants will cooperate in establishing fares, rates and pricing 

strategies for services provided under their alliance agreements and the JBA”). American 

and British Airways also indicated that they would “broadly shar[e] revenue on a metal 

neutral foundation” (Id. at p.11). There can be no serious dispute that carrier-imposed 

surcharges and fuel surcharges are “revenue” and “fares, rates and pricing” within the 

meaning of these statements. Thanks to the full antitrust immunity DOT provided to 

American and British Airways based on their representations in the 2008-0252 docket, 

American both influences and benefits from British Airways surcharges. Having sought 

these privileges from DOT and represented to DOT that it would use them, AA cannot 
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now disavow them by claiming that all fees are the responsibility of BA or otherwise 

outside AA’s control.

IV. The Scope of the Problem 

29. I gather that AA staff are uniformly applying their demand for additional 

payments (“taxes”) when award passengers are reaccommodated after cancellation of 

ticketed and confirmed AA flights. 

30. I understand that AA canceled the JFK-LHR day flight for most of 2014. 

AA’s JFK-LHR previously had 777-200ER service, accommodating 247 passengers per 

flight. If 8.8% passengers on these flights were on award tickets (based on a recent AA 

SEC filing), that would be 650 affected passengers per month in each direction. Even 

crediting that not all passengers book far in advance, there are surely thousands of 

passengers affected by that cancellation. The closest alternative eastbound flight is the 

BA day flight. But by all indications AA is refusing to reaccommodate passengers on 

that flight. AA’s refusal to reaccommodate affected JFK-LHR passengers is particularly 

troubling because AA admitted cancelling its JFK-LHR day flight purely for commercial 

reasons (paragraph 18 above). This is far from the passenger benefits AA promised when 

seeking JBA approval from DOT.

31. The amount at issue is substantial. AA staff told me that I would need to 

pay a surcharge of approximately $250 per person one-way to fly JFK-LHR on the flight 

operated by BA. On the same period, on the same routing, I see that round-trip tickets 

including all taxes and fees are as little as $1300. After deducting genuine government 

taxes, a $500 round-trip surcharge is nearly half of the value that passengers expect to be 

covered by award point redemption.
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32. I ask that the Department of Transportation:

(1) Exercise its authority under 49 USC 41712 to open an investigation of 

American Airlines for having engaged in, and continuing to engage in,

the unfair or deceptive practices described above;

(2) Order American Airlines to provide to the DOT and to me all notes, 

PNR annotations, call recordings, and other records prepared by its 

systems and its staff in the course of the discussions herein; 

(3) Pursuant to such investigation, order American Airlines to refund to 

ticket purchasers all monies at any time represented to ticket 

purchasers as “taxes” or government-imposed fees, but not actually 

remitted to governments;

(4) Order American Airlines to honor its general tariff, published policies 

for reaccommodation after cancellation and significant schedule 

changes, without exception for award ticket redemptions and without 

requiring any additional payment of any carrier-imposed surcharges;

(5) Order American Airlines to provide heightened and remedial training 

to all agents, including specific corrective training to the agents who 

spoke with me;

(6) Require American Airlines to post a clear notice on its web site to alert 

award passengers of their rights in this circumstance and to assist such 

passengers in vindicating those rights even if American employees 

mistakenly attempt to deny those rights;
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(7) Require American to search its records for other customers similarly 

situated, including those who complained about related matters and 

those who suffered similar schedule changes and cancellations, and 

require American to provide the details of such customers and 

complaints to DOT;

(8) Impose appropriate civil penalties on American Airlines; and 

(9) Refer this matter to appropriate US and foreign tax collection agencies 

for investigation of possible tax fraud or other violations of tax law in 

non-payment to governments of monies collected as “taxes” or 

government-imposed fees.

I suggest that when DOT imposes monetary penalties for this further violation, 

DOT should consider the fact that the 2013-12-6 Consent Order specifically requires that 

AA permanently cease and desist from precisely these practices. A heightened penalty is 

appropriate in light of American’s sophistication and size, the duration of the practices at 

issue, the continuation of these practices after consumer complaints, the continuation of 

these practices after DOT inquiry, the continuation of these practice after AA had 

specifically promised DOT that these practices had ceased (and had entered into a formal 

binding consent order to that effect), and the continuation of these practices even by AA 

supervisors and duty managers.

Respectfully submitted,

/s/

Robert Samstein
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Attachment 1
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Certificate of Service

I hereby certify that I have, this 11th day of March, 2014 caused a copy of the foregoing 

Complaint to be served by electronic mail on the following persons:

Robert Silverberg, Esq. rsilverberg@sgbdc.com

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

/s/

_____________________

Robert Samstein