Benjamin Edelman Reply

1 of 8 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

---------------------------------------------------- -- ) ) Benjamin Edelman, ) third

- party complainant ) )
v. ) Docket DOT

- OST

- 2013

- 0214 ) Air Europa ) )

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

REPLY OF BENJAMIN E DELMAN Comments with respect to this document should be addressed to: Benjamin Edelman 169 Wa lnut St. Brookline, MA 02445 E

- mail: ben@benedelman.org

Dated: January 30 , 2014Benjamin Edelman Reply

2 of 8 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

--------------------------------------------------------------- ) ) Benjamin Edelman, ) thir d

- party complainant ) )
v. ) Docket DOT

- OST

- 2013

- 0214 ) A ir Europa ) )

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

REPLY OF BENJAMIN EDELMAN

I. There Is Reason to Believe the Air Europa US Site Made the False Statements at Issue on the Dates at Issue 1. My Complaint of December 16, 2013 alleged, among other things, that air Europa’s web site mischaracterized carrier

- imposed surcharge as “tax.” Air Europa’s response noted tha t my screenshots show Air Europa’s “Spain” site, which Air Europa argues is not marketed to US consumers

. O n that basis Air Europa denies that DOT has jurisdiction to investigate my complaint or the false statements I found.
2. I urge the D epartment of Transportation to inquire whether Air Europa’s
US web site mischaracterized carrier

- imposed surcharge on December 16, 2013, the date of my complaint. Air Europa’s archived web site code, archived screenshots, change logs, and other records sh ould make it straightforward for Air Europa to answer this question.Benjamin Edelman Reply

3 of 8 3. If the Air Europa US site made such a mischaracterization as of th e date of my complaint , the DOT need not evaluate the jurisdictional defenses in Air Europa’s

answer
. This would greatly simplify the set of issues before the DOT.
4. Air Europa’s Answer of January 14, 2014 does not indicate whether, as of the date of my complaint, the Air Europa US web site engaged in the practices alleged in my complaint (including mischaracterizing carrier

- imposed surcha rges as “tax”).
5. By email, I asked Air Europa counsel whether the Air Europa US site engaged in the practices alleged in my complaint as of the date of my complaint. He
declined to answer.
6. My screenshot records confirm that Air Europa’s US web site did make
these mischaracterizations as of April 4, 2013

. See Exhibit 1

. ( Note that that screenshot

was prepared by one of my students, under my supervision

. )
7. As of the date of Air Europa’s Answer, Air Europa’s US site no lo nger makes the mischaracterizations identified in my complaint

. I do not know when Air Europa’s US site ceased to make these mischaracterizations. By email, I asked Air Europa counsel when the Air Europa US site ceased to make the se mischaracterizations

. He declined to answer.
8. I believe that the Air Europa US site also made these mischaracterizations
in my testing of early December 2013 . I believe that I tested the Air Europa US site in early December 2013 as I conducted research to evaluate whether to file a complaint as to Air Europa practices. I offer this paragraph on information and belief b ecause I tested

n umerous sites in a brief period

. I did not retain a screenshot of those practices , norBenjamin Edelman Reply

4 of 8 prepare notes or other records of my observations, because I planned to reproduce the practice in subsequent testing immedia tely before filing.

II. There Exists No Conflict of Law 9. Air Europa couches its jurisdictional defense in the argument that if DOT price advertising rules applied to Air Europa’s Spain site, Air Europa would be “forc[ed] to choose, at [its] peril, whose rules t o follow where the rules are not harmonious.” Air Europa ’ s concern is speculative. I n fact , on every question at issue, DOT r equirements are entirely harmonious with rules i n Spain and the EC

. 10. Air Europa does not and cannot identify any Spanish law or EC regulation requiring or authorizing Air Europa to characterize a carr ier

- imposed surcharge as a
“tax

. ” Indeed, the EU CPC Report on Airlines’ Taxes, Fees, Charges, and Surcharges 1 criticizes exactly those false statements. Air Europa’s statement of “tax” is literally and unambiguously false, and there is no serious sugges tion that any country’s laws or regulations permit such a false statement, not to mention requiring it.
11. Nor can Air Europa identify any Spanish law or EC regulation requiring or authorizing Air Europa to disclose compulsory booking fees only midway through the booking process. Indeed, EC Regulation 1008/2008 2 , Provision Article 23(1), requires
that “ The final price to be paid shall at all times be indicated and shall include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and
fees which are unavoidable and foresee able at the time of publication

. ” This requirement exactly rules out late

- disclosed surcharges such as what my complaint demonstrated on
the Air Europa site.

1 http://ec.europa.eu/consumers/enforcement/docs/airline_charges_report.pdf 2 http://eur

- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008R1008:EN:NOTBenjamin Edelman Reply

5 of 8 12. Thus, Air Europa’s worry of a conflict of la w is inapt . US and European law are entirely harmonious on all questions at issue.

III. DOT Should Exercise Authority Over All Air Europa Marketing of Flights To/From the US 13. Air Europa quotes and applies DOT guidance as to 14 CFR § 399.84
wherein DOT indicat es its intention not to bring enforcement actions , under § 399.84, as to certain websites not marketed to US consumers. But the practices at issue go beyond violations of 14 CFR § 399.84. For example, a false statement of “tax” is also a breach
of contra ct with consumers, a violation of 14 CFR § 399.80(f) , and, no doubt, a violation
of myriad other statutes and regulations

. N either statute nor DOT guidance ever permitted carriers to make false statements of “tax”; such false statements were prohibited be fore the Second Rule on Enhancing Airline Passenger Protections , and DOT guidance on enforcement offers Air Europa no shelter as to false statements of “tax.”
14. Meanwhile, t he design of Air Europa’s web site creates a reasonable probability that US consumers will end up using the Air Europa Spain site unintentionally

. On information and belief, when a n Air Europa s erver detects a user located outside the United States, the Air Europa site automatically and without warning transports that user to the version o f the Air Europa site marketed to users from that country or, if no such country

- specific s ite exists, to the Air Europa Spain site. ( Indeed, I
was in S i ngapore on the da y when I prepared the screenshots shown in my complaint, and
I believe A i r Europa tra nsported me to its Spain site silently and automatically

– a result
that I did not anticipate and did not realize until after receiving Air Europa’s answer. )
C onsider the effects on US passengers who often travel internationally (an important set of passengers since Air Europa sells international air transp ort). If a passenger attemptsBenjamin Edelman Reply

6 of 8 to book Air Europa travel at a time when the passenger happens to be outside the US, the passenger will be directed to the Air Europa Spain site. On Air Europa’s theory, that passenger then forfeits the important benefits an d protections that DOT otherwise guarantees to US consumers. But DOT rules require no such result. Having designed its site to silently and automatically transport th e se US passengers to a near

- identical

looking “Spain” site, labeled as “ Spain ” in a way that users are unlikely to notice (due to color scheme, layout, and size 3 ), Air Europa should accept the responsibilit y of complying with US law as to US passengers travelling to/from the US

. 15. The plain language of 14 CFR § 399.84 is in accord. Notice no restriction, within the language of § 399.84, to web site marketed to US passengers. Compare § 3 99.85, repeatedly referencing “website [s] accessible [to] the general public in the U. S .”

IV. Contrary to Air Europa’s Answer, The Statements At Issue Are Literally False 16. Paragraph 5 of my Complaint allege d that “Air Europa’s statement of ‘tax’ is literally false.” In support, I offered ITA records of actual taxes and carrier surcharges.
17. Air Europa answer ed “Air Europa denies Paragraph 5 of the Complaint.” Air Europa offer ed no specific facts or legal theories i n support of this response.
18. DOT should invite Air Europa to substantiate its denial of the allegation

. Alternatively, DOT should reject that denial as both unsupported and incorrect

.

Respectfully submitted , /s/ Benjamin Edelman

3 See e.g. the generally

- applicable principles in the FTC ’ s guidance on “

. C o m Disclosures ” , http://www.ftc.gov/sites/default/files/attach ments/press

- releases/ftc

- staff

- revises

- online

- advertising

disclosure

- guidelines/130312dotcomdisclosures.pdf

.Benjamin Edelman Reply

7 of 8 Attachment 1 (screenshots prepared April 4, 2013)Benjamin Edelman Reply

8 of 8 Certificate of Service

I h ereby certify that I have, this 30 th day of January, 2014 caused a c opy of the foregoing Reply to be served by electronic mail on the following persons:
Aaron A. Goerlich, Esq. agoerlich@ggh

- airlaw.com Samuel Podberesky, Esq. sam.podberesky@dot.gov

/s/

_____________________ Benjamin Edelm an