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 EDELMAN

Comments with respect to this document should be addressed to:

Benjamin Edelman

169 Walnut St.

Brookline, MA 02445

E-mail: ben@benedelman.org

Dated: January 30, 2014
Benjamin Edelman

Reply

2 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 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 that my screenshots show Air Europa’s “Spain” site, which Air Europa 

argues is not marketed to US consumers. On that basis Air Europa denies that DOT has 

jurisdiction to investigate my complaint or the false statements I found.

2. I urge the Department 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 should 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 the 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 surcharges 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 longer 

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 these 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 because I tested 

numerous sites in a brief period. I did not retain a screenshot of those practices, nor 
Benjamin Edelman

Reply

4 of 8

prepare notes or other records of my observations, because I planned to reproduce the 

practice in subsequent testing immediately 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 to follow where the rules are not harmonious.” Air 

Europa’s concern is speculative. In fact, on every question at issue, DOT requirements

are entirely harmonious with rules in 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 carrier-imposed surcharge as a 

“tax.” Indeed, the EU CPC Report on Airlines’ Taxes, Fees, Charges, and Surcharges1

criticizes exactly those false statements. Air Europa’s statement of “tax” is literally and 

unambiguously false, and there is no serious suggestion 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 1008/20082, 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 foreseeable 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:NOT
Benjamin Edelman

Reply

5 of 8

12. Thus, Air Europa’s worry of a conflict of law 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 indicates 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 contract with consumers, a violation of 14 CFR § 399.80(f), and, no doubt, a violation 

of myriad other statutes and regulations. Neither statute nor DOT guidance ever 

permitted carriers to make false statements of “tax”; such false statements were 

prohibited before 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, the 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 an Air Europa server detects a user 

located outside the United States, the Air Europa site automatically and without warning

transports that user to the version of the Air Europa site marketed to users from that 

country or, if no such country-specific site exists, to the Air Europa Spain site. (Indeed, I

was in Singapore on the day when I prepared the screenshots shown in my complaint, and 

I believe Air Europa transported 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.) 

Consider the effects on US passengers who often travel internationally (an important set 

of passengers since Air Europa sells international air transport). If a passenger attempts 
Benjamin 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 and protections that DOT otherwise 

guarantees to US consumers. But DOT rules require no such result. Having designed its 

site to silently and automatically transport these US passengers to a near-identicallooking “Spain” site, labeled as “Spain” in a way that users are unlikely to notice (due to 

color scheme, layout, and size3), Air Europa should accept the responsibility 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 

§399.85, 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 alleged 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 answered “Air Europa denies Paragraph 5 of the Complaint.” 

Air Europa offered no specific facts or legal theories in 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 “.Com Disclosures”, 

http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertisingdisclosure-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 hereby certify that I have, this 30th day of January, 2014 caused a copy 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 Edelman