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 

Served January 7, 2015 

DOT -OST -2014-0229 

ANSWER OF DELTA AIR LINES 

Preliminary Statement 

Delta Air Lines denies that it engaged in unfair or deceptive practices as alleged 

in the Complaint filed on December 23, 2014. The relevant statute and regulation state 

that an air carrier offering a code-shared flight must make certain disclosures "prior to the 

purchase of a ticket," 49 U.S.C. § 41712(c), or "before booking transportation," 14 

C.P.R. § 257.5(b). The Complaint relies solely on eight "secret shopper" calls placed by 

DOT employees, in which the callers made brief inquiries about certain flights then 

"closed each conversation without booking a flight." Complaint ,-[ 28. Under the 

unambiguous text of the statute and regulation, however, Delta had up until booking or 

purchase to make the required disclosures. Because the secret shoppers voluntarily 

discontinued their calls without ever attempting to make a booking or purchase a ticket, 

the evidence cited in the Complaint is insufficient as a matter of law to show that Delta 

violated 49 U.S.C. § 41712(c) or 14 C.P.R.§ 257.5(b). 

Even if the Complaint did allege facts that stated a violation, the $660,000 civil 

penalty sought in the Complaint is grossly excessive and contrary to law. The Complaint 

1 

Answer of Delta Air Lines 
impermissibly seeks to double-count civil penalties for the exact same conduct. It also 

fails to establish that the conduct alleged here is sufficiently "similar" to previous alleged 

violations to tack on a third set of civil penalties for violating a 2010 consent order. 

Moreover, there is no basis whatsoever for imposing the maximum civil penalty of 

$27,500 per violation. No actual customer was harmed by Delta's purported violations. 

And the Complaint fails to specify exactly when during each phone call Delta should 

have made the code-share disclosures in order to avoid liability. It violates the most basic 

principles of notice and due process to seek significant civil penalties when the 

Department itself cannot articulate any coherent theory of when the alleged violations 

occurred or when it was too late for Delta to avoid a violation by making the required 

disclosures. 

RESPONSES TO SPECIFIC ALLEGATIONS 

Delta responds to the individually-numbered allegations of the Complaint as 

follows: 

Jurisdiction and Applicable Law 

1. Denied. 

2. Admitted. 

3. Admitted. 

4. The statute cited in paragraph 4 speaks for itself. 

5. The statute cited in paragraph 5 speaks for itself. 

6. The regulation cited in paragraph 6 speaks for itself. 

7. The statutes and regulations cited in paragraph 7 speak for themselves. 

8. The statute cited in paragraph 8 speaks for itself. 

2 

Answer of Delta Air Lines 
9. The statutes and regulations cited in paragraph 9 speak for themselves. 

10. The statutes and regulations cited in paragraph 10 speak for themselves. 

Background and Enforcement History 

11. Delta admits that code-sharing is a common practice among air carriers, 

and that one type of code-sharing involves flights operated by a regional carrier that are 

marketed by a mainline carrier such as Delta as a part of its global air transportation 

network. The regional carrier may be separately owned and managed, or may be a 

wholly-owned subsidiary of the mainline carrier. Within Delta's network, such flights 

are operated by regional carriers under the Delta Connection brand. Delta uses the Delta 

Connection carriers where appropriate to serve expected demand within its global 

network. This includes but is not limited to flights to airports and smaller cities not 

served by the mainline carrier. Except as admitted, paragraph 11 is denied. 

12. Delta admits that the Delta Connection flights are operated with smaller 

aircraft than Delta mainline flights. Except as admitted, paragraph 12 is denied. 

13. The policy statement cited in paragraph 13 speaks for itself. 

14. The notice of proposed rulemaking cited in paragraph 14 speaks for itself. 

15. The notice of proposed rulemaking cited in paragraph 15 speaks for itself. 

16. The notice of proposed rulemaking cited in paragraph 16 speaks for itself. 

17. Delta is without knowledge sufficient to admit or deny paragraph 1 7. 

18. The final rule cited in paragraph 18 speaks for itself. 

19. The final rule cited in paragraph 19 speaks for itself. 

20. The regulatory preamble cited in paragraph 20 speaks for itself. 

3 

Answer of Delta Air Lines 
21. Paragraph 21 states legal conclusions for which no response is required. 

To the extent a response is required, denied. Further denied that Delta has been "on 

notice" of the purported obligations discussed in paragraph 21. 

22. Paragraph 22 states legal conclusions for which no response is required. 

To the extent a response is required, denied. Further denied that Delta has been "on 

notice" of the purported obligations discussed in paragraph 22. 

23. Paragraph 23 states legal conclusions for which no response is required. 

To the extent a response is required, denied. 

24. The DOT orders cited in paragraph 24 speak for themselves. Denied that 

Delta has been "placed on notice" of any purported "obligations" discussed therein. 

25. The DOT consent order cited in paragraph 25 speaks for itself. Denied 

that the allegations in the Complaint are "similar" to the alleged violations in the 2010 

consent order. 

Facts Giving Rise to This Action 

26. Delta lacks knowledge sufficient to admit or deny paragraph 26. 

27. Delta lacks knowledge sufficient to admit or deny paragraph 27. 

28. Delta lacks knowledge sufficient to admit or deny paragraph 28. 

Claim for Relief 

29. Denied. 

30. Denied. 

31. Denied. 

4 

Answer of Delta Air Lines 
Prayer for Relief 

Delta denies that the Department is entitled to any of the relief prayed for in the 

Complaint. 

OPPOSITION TO AND MITIGATION OF CIVIL PENALTIES 

Pursuant to 14 C.P.R. § 302.408(b), Delta intends to rely upon the following 

arguments in opposition to, or in mitigation of, the civil penalties sought in the 

Complaint: 

1. The Complaint should be dismissed in its entirely with prejudice because 

the facts alleged therein fail to show that Delta engaged in any unfair or deceptive acts or 

practices. In particular, the facts alleged in the Complaint are insufficient as a matter of 

law to show that Delta failed to make required code-share disclosures "before booking 

transportation" or "prior to the purchase of a ticket." 

2. Delta should not be assessed a civil penalty because it has not been given 

sufficiently clear notice of exactly when the code-share disclosures purportedly should 

have been made. 14 C.P.R. § 257.5 and 49 U.S.C. § 41712(c) simply require disclosure 

at some point "before booking transportation" or "prior to the purchase of a ticket." Yet 

the Complaint suggests that Delta should have made the disclosures at an (unspecified) 

earlier point. The Complaint fails to identify exactly when in each of the eight phone 

calls Delta should have made the code-share disclosures in order to achieve compliance. 

It is fundamentally unfair and contrary to basic principles of notice and due process to 

impose significant monetary penalties when Delta has complied with the requirements of 

the statute and regulation as written and lacks clear guidance about what it should have 

done differently to avoid liability. 

5 

Answer of Delta Air Lines 
3. The civil penalties sought in the Complaint are contrary to law because the 

Complaint impermissibly double-counts the alleged violations. The Complaint seeks 

separate penalties for: (1) alleged violations of 49 U.S.C. § 41712(c) and 14 C.P.R. 

§ 257.5; and (2) alleged violations of 49 U.S.C. § 41712(a). See Complaint ~~ 29, 30. 

But all of these provisions pertain to the same general prohibition on "unfair or deceptive 

practice[s]" in§ 41712(a). Section 41712(c) states that it "shall be an unfair or deceptive 

practice under subsection (a)" if carriers fail to make the required code-share disclosures. 

And 14 C.P.R. § 257.4 states that a failure to "follow the requirements of this part" 

(which include § 257.5) is "prohibited as unfair and deceptive in violation of 49 US. C. 

§ 41712." Thus, even if Delta is found to have violated the code-share disclosure 

requirements, it should be liable for only one set of civil penalties. 

4. The Complaint seeks the maximum civil penalty of $27,500 for each 

alleged unfair or deceptive practice. Even if Delta is found to have violated the statute or 

regulation, it would be unjust, unreasonable, and contrary to law to impose the maximum 

civil penalty for each violation because, inter alia: 

a. DOT fails to identify any actual Delta customer who was deceived or 

confused by the manner in which Delta discloses code-share 

arrangements. The alleged violations thus did not result in any actual 

harm or deception to consumers. 

b. Delta takes its code-share disclosure obligations very seriously. Even 

though§ 41712(c) and§ 257.5(b) merely require disclosure at some point 

before purchase or booking, Delta encourages its reservation agents to 

make the disclosures as early in the call as possible. Indeed, even though 

6 

Answer of Delta Air Lines 
the Office's secret shoppers never attempted to make bookings or 

purchases, Delta's reservation agents still provided the code-share 

disclosures in 22 out of 30 test calls. And, consistent with § 41712(c) and 

§ 257 .5(b ), Delta's policy is to provide the required code-share disclosures 

before booking a reservation or selling a ticket, so that customers will 

have an opportunity to choose a different flight before booking 

transportation or buying a ticket if they do not wish to travel on the codeshare carrier. This policy is designed to ensure that all customers are 

provided with the information they need to make informed decisions 

before booking and ticket purchase. 

c. Delta did not commit any intentional or knowing violations of the statute 

or regulation. Delta adopted its current policy in good-faith reliance on 

the text of§ 41712(c) and§ 257.5(b), which simply requires disclosure at 

some point "before booking" or "prior to the purchase of a ticket." 

5. Delta is not liable for civil penalties for alleged violations of the Consent 

Order issued on July 9, 2010 in Docket OST-2010-0005. The Consent Order required 

Delta to cease and desist from "further similar violations." The allegations in the 

Complaint are not "similar" to the alleged violations discussed in the Consent Order. The 

Consent Order involved alleged deficiencies in Delta's electronic schedule information in 

the wake of the 2008 Delta-Northwest merger. This Complaint, in contrast, involves 

alleged deficiencies in Delta's disclosures during telephone calls with reservation agents 

that took place nearly five years after the conduct that gave rise to the Consent Order. 

7 

Answer of Delta Air Lines 
Other than the fact that they broadly involve code-share flights, there is absolutely 

nothing "similar" about the two sets of alleged violations. 

CONCLUSION 

Delta categorically denies that any of the allegations in the Complaint reflect 

violations of 49 U.S.C. § 41712 or 14 C.P.R. § 257.5. In the alternative, even if a 

violation is shown, Delta denies that it is liable for civil penalties in the amounts sought 

in the Complaint. 

J. Scott McClain 

Jon-Peter F. Kelly 

DELTA AIRLINES, 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. 

8 

Answer of Delta Air Lines 
CERTIFICATE OF SERVICE 

I hereby certify that on January 7, 2015, the original and one copy of the 

foregoing Answer of Delta Air Lines were hand-delivered to: 

U.S. Department of Transportation 

Dockets Operations, M-30 

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. (Ell-310) 

Washington, DC 20590 

s/Jeffrey M. Harris 

Jeffrey M. Harris 

9 

Answer of Delta Air Lines