1 

UNITED STATES OF AMERICA 

BEFORE THE 

DEPARTMENT OF TRANSPORTATION



 

Agreement Adopted by the Passenger ) 

Services Conference of the International ) Docket OST-2013-0048 

Air Transport Association ) 



MOTION FOR EXTENSION OF TIME, MOTION FOR LEAVE TO FILE AN 

OTHERWISE UNAUTHORIZED DOCUMENT, AND RESPONSE OF THE 

AMERICAN ANTITRUST INSTITUTE

Motion for Extension of Time under 14 C.F.R. 302.9(a)(2)

 The American Antitrust (AAI)1 respectfully moves for an extension of time under 

14 C.F.R. § 302.9(a)(2) to file an otherwise unauthorized document pursuant to 14 C.F.R. 

§ 302.6(c)(1) to respond to the Reply of the International Air Transport Association, U.S. 

Department of Transportation Docket OST-2013-0048, June 21, 2013 (hereinafter “IATA 

Reply”). Under § 302.6(d), a motion for leave to file a further responsive document must 

be filed within seven days of the document to which the proposed filing is responsive, 

unless, among other things, an extension is allowed under § 302.9(a)(2). Under § 

302.9(a)(2), a Department of Transportation (DOT) decisionmaker, as appropriate, may 

permit the filing of a further responsive document after the expiration of a specified time 

period where good cause for the failure to act on time is clearly shown. 

                                                       

1 The AAI is an independent and nonprofit education, research, and advocacy 

organization whose mission is to advance the role of competition in the economy, protect 

consumers, and sustain the vitality of the antitrust laws. The AAI is managed by its Board 

of Directors, with the guidance of an Advisory Board consisting of approximately 130 

prominent antitrust lawyers, law professors, economists, and business experts. The AAI’s 

Board of Directors alone has approved this filing for AAI. The individual views of 

members of the Advisory Board may differ from AAI positions. 
2 

 Here, the DOT should find good cause to allow an extension of time. Although 

the AAI was timely served with the IATA Reply by U.S. mail, it did not receive and 

discover the IATA Reply, which was an optional filing not required under 14 C.F.R. § 

302.6(a), until after the expiration of the seven-day statutory period. The AAI prepared 

the above-referenced motions and responsive comments promptly upon learning of the 

existence of the IATA Reply. The IATA Reply also is deficient in several respects that 

bear critically upon a proper evaluation of IATA’s application for approval of Resolution 

787 (“Application”). Because allowing the AAI to respond to the IATA Reply would aid 

the DOT in its evaluation by elucidating these deficiencies, the AAI submits that an 

extension of time is in the public interest. For all of these reasons, the DOT should 

exercise its discretion to grant the AAI’s motion for an extension of time to file an 

otherwise unauthorized document. 

Motion for Leave to File an Otherwise Unauthorized Document

 The AAI also moves for leave to file an otherwise unauthorized document 

pursuant to14 C.F.R. § 302.6(c)(1) to respond to the IATA Reply. Under § 302.6(c)(1), 

the DOT will accept otherwise unauthorized documents if leave has been obtained on 

written motion for good cause shown. Here, the DOT should find good cause to allow 

the AAI to file a response to the IATA Reply, for several reasons. First, the IATA Reply 

suggests ordering language, admonitions, or restrictions that the DOT could incorporate 

in its approval that tacitly or explicitly would purport to alter the scope of such approval 

in ways the Application would not.2

 Because this language was not included in the 

                                                       

2 See IATA Reply at 9, 12, 14, 15. 
3 

Application itself, the AAI has never had the opportunity to comment on IATA’s full 

proposal. Allowing the AAI to file a response to the IATA Reply would afford the AAI 

an opportunity to address IATA’s now “complete” proposal for the first time. Second, as 

discussed in AAI’s responsive comments incorporated into this motion below, the IATA 

Reply sidesteps important concerns about the potential competitive effects of Resolution 

787. The AAI submits that full consideration of the potential competitive effects of 

Resolution 787 is in the public interest. For all of these reasons, the DOT should grant 

the AAI’s motion for leave to file an otherwise unauthorized document. 

Response of the American Antitrust Institute

I. Introduction 

 The AAI incorporates these responsive comments to the IATA Reply (“AAI 

Response”) into its motion for leave to file a further responsive document in the abovecaptioned proceeding pursuant to 14 C.F.R. § 306(c)(2). As a general matter, the IATA 

Reply raises more questions regarding Resolution 787 than it purports to answer. For 

example, the document contains additional ordering language, admonitions, and 

restrictions that will undoubtedly have a material impact on the interpretation of the 

original Resolution 787 language. The Reply also carves out and largely eliminates 

discussion of the New Distribution Capability (NDC) from the XML technical standard 

proposal. Yet XML and NDC are closely intertwined in Resolution 787. Finally, 

fundamental questions remain as to the substantive implications of IATA’s filing 

approach in purportedly seeking approval only of an XML messaging standard. 
4 

 The foregoing problems collectively serve to make Resolution 787 a “moving 

target” for which IATA asks for DOT approval. This disadvantages not only the DOT, 

but also industry stakeholders and public interest proponents in their quest to provide 

useful input as part of the DOT’s open advocacy process. Moreover, Resolution 787 is 

perhaps one of the most important instances in which the DOT will be asked to opine on 

an issue where consumer protection and competition issues intersect so closely. As many 

commenters have aptly pointed out, the authentication provisions of Resolution 787 raise 

fundamental issues associated with consumer privacy and choice. The NDC standard – 

which Resolution 787 intertwines with the XML standard – generates significant 

concerns regarding the competitive process and outcomes surrounding the distribution of 

airline products and services. The IATA Reply does nothing to address commenters’ 

concerns regarding the vast implications of the “nexus” of these two major public policy 

issues. Those issues are arguably at the heart of the DOT’s statutory mission in 

overseeing the domestic aviation industry. 

 IATA’s Reply is deficient or non-responsive to the issues raised by the AAI in its 

comments filed in this docket on May 1, 2013 (“AAI Comments”),3

 in at least two 

respects: (1) IATA sidesteps the competitive issues surrounding the NDC model raised in 

AAI’s Comments; and (2) IATA does not address the substantive risks inherent in 

transitioning to the XML standard through a Tier 3 approval of Resolution 787, as 

compared to Tier 1 adoption of an XML standard by itself. For the reasons described 

below, the cumulatively assembled language of Resolution 787, IATA’s Application, and 

                                                       

3 American Antitrust Institute, Comments of the American Antitrust Institute, U.S. 

Department of Transportation Docket OST-2013-0048, May 1, 2013 (hereinafter “AAI 

Comments”) 
5 

IATA’s Reply should lead the DOT to reject IATA’s request for approval in its current 

form. 

II. IATA’s Reply Sidesteps the Competitive Issues Raised by the NDC Model by 

Redefining Resolution 787 Solely Around the XML Standard 

 Numerous commenters in this proceeding articulated concerns regarding the 

competitive effects of Resolution 787, particularly the process through which the NDC 

proposal was crafted within IATA and the potential effect of the agreement on 

competition. AAI, for example, noted that Resolution 787 raised important policy issues 

relating to potential anticompetitive coordination among rivals. AAI’s Comments 

explained that the NDC proposal may potentially constitute an anticompetitive agreement 

among competitors on the “rules” of competition. Integral to this concern was that the 

stakeholder process for developing Resolution 787 did not appear open, transparent, and 

inclusive, but rather was confined only to a small group of member airlines charged with 

promulgating the NDC proposal.4

 In its Reply, IATA almost entirely sidesteps the competitive concerns centered on 

anticompetitive coordination raised in AAI’s Comments. Instead, the Reply attempts to 

refocus the debate solely on the technical XML standard and to introduce qualifying 

language that takes the NDC proposal out of the unwanted spotlight. Indeed, unlike the 

Resolution 787 proposal, in which NDC shared the stage with XML, there is scarce 

reference at all to NDC in the body of IATA’s Reply. What attention is paid to NDC 

resides primarily in Appendix A, which addresses comments regarding the adoption of 

NDC by IATA’s membership at their Annual General Meeting on June 3, 2013 – well 

after the passage of Resolution 787 as it was filed in this proceeding. 

                                                       

4

 AAI Comments at 8-10, 11-12. 
6 

 In refocusing the debate exclusively on XML, the IATA Reply essentially asks 

the DOT to “pay no attention to the man behind the curtain.” That “man,” of course, is 

the NDC standard that is intimately intertwined with the XML standard according to the 

plain language of the Resolution 787 proposal. Moreover, what meager response the 

IATA Reply offers to the competition issues raised in the AAI Comments falls short 

because it mischaracterizes the relevant issues. The Reply summarily states, for example, 

that opponents (citing AAI, among others) contend that Resolution 787 is not in the 

public interest because “it would displace today’s fare filing system.”5

 The Reply also 

interprets concerns over the lack of transparency and inclusiveness in IATA’s process for 

producing the NDC as “excluding other distribution system participants from assisting in 

the XML data transmission standard.”6

 

 These characterizations are a misreading of the AAI’s concerns. For example, the 

AAI Comments state: 

Imposition of a uniform distribution model (NDC) that is the product of an 

agreement among the largest airlines could soften existing competition between 

airlines and between the airlines’ direct-connect distribution channel and other 

channels of distribution, such as online and offline retail and corporate travel 

agencies.7

 

AAI’s focus is on how a mandated NDC standard developed through a potentially 

anticompetitive agreement among major airlines on “rules” could soften intra-channel 

and inter-channel competition. Indeed, the concern is not the preservation of the existing 

airline fare filing system, but promotion of a competitive process that produces robust 

                                                       

5

 IATA Reply at 7. 

6 Id. at 21. 

7

 AAI Comments at 11. 
7 

rivalry between market participants and distribution channels and models, thus delivering 

benefits to consumers. 

 The IATA Reply offers a similarly errant characterization of AAI’s concerns over 

IATA’s internal process for reaching agreement on the NDC model. AAI’s Comments 

note: 

[Absent an open and inclusive industry stakeholder process], the Application 

raises fundamental concerns about the intent of the XML-NDC proposal as a 

competition-neutral or competition-enhancing process. The record evidence 

indicates that IATA’s adoption of Resolution 787 may not reflect an open and 

inclusive stakeholder process. . . . Deviation from an inclusive process would cast 

a shadow on the intent of Resolution 787, potentially raising pressing policy 

questions or even – if the outcome is anticompetitive – antitrust liability.8

AAI’s concern is not that some distribution system participants were simply excluded 

from “assisting in the XML data transmission standard.” Rather, the salient issue is that 

such exclusion could reveal a Resolution 787 development process that potentially 

involved anticompetitive collaboration among major airlines, the outcome of which could 

be harmful to competition and consumers. Not only does the Reply miss this fundamental 

point, it fails to address the logistical question of why the IATA membership voted out 

the NDC standard before two critical meetings of stakeholder groups were scheduled. 

 In addition to sidestepping the difficult competitive concerns raised by the 

development process and substance of the XML-NDC proposal, IATA takes a “BandAid” approach to solving the circumscribed set of competitive concerns the Reply does 

choose to address. This solution is to suggest a variety of caveats and qualifiers to a 

proposed DOT approval order. As described in more detail below, the AAI notes that the 

first ordering language proposed in the IATA Reply poses more questions than it 

                                                       

8

 AAI Comments at 8, 9-10. 
8 

answers: “Approval of Resolution 787 does not constitute approval of any agreement 

among airlines regarding any method of distributing air transportation.”9

 At a minimum, 

the proposed language highlights the incongruity in IATA’s Reply, namely that the 

proposed language is one of the few instances where the document even refers to NDC. 

If the proposed language rises to the level of a proposed amendment to Resolution 787 or 

the Application, then surely the issues raised by commenters regarding the NDC 

distribution standard deserve more discussion in the IATA Reply. Second, if in fact the 

Resolution 787 proposal does not constitute approval of any agreement among airlines 

regarding any method of distribution, then it does not belong in IATA’s DOT filing. 

IATA should therefore withdraw its Application, untangle the NDC standard from the 

XML standard, and resubmit an appropriate application. 

III. IATA’s Reply does not Explain Why the DOT Should Assume the Risk of 

Approving Resolution 787 When a Transition to the XML Standard Could 

Have Been Filed under the Expedited Tier 1 Procedure 

 IATA’s Reply does not address the serious risks it asks the DOT to voluntarily 

assume by granting unneeded approval of the XML standard. In its Application and 

Reply, IATA has always maintained that it believes “Resolution 787 could have been 

filed for information only under DOT Order 2012-4-18 (Tier 1),” because IATA is 

seeking approval of Resolution 787 “only insofar as it describes a means to modernize 

distribution communications technology with a new XML standard.”10 Taking it at its 

word, IATA has never offered a reasonable explanation for why its implementation of a 

                                                       

9

 IATA Reply at 9. 

10 Application at 2, 17. 
9 

non-exclusive, non-mandatory XML messaging standard is before the DOT in a Tier 3 

application for approval.11 

 IATA’s Application should be rejected in its current form because IATA 

continues to believe it does not need the only approval it purports to seek.12 This fact 

might be insignificant if Resolution 787 described only the XML messaging standard that 

could have been filed under Tier 1, because the DOT could then approve the resolution 

without any risk that approval would be construed as something over and above that 

which already qualifies for expedited approval. The plain language of Resolution 787, 

however, describes and intimately intertwines the NDC distribution standard with the 

XML messaging standard. The Application in its current form, which seeks approval of 

Resolution 787 in its current form, therefore invites obvious confusion about whether 

DOT approval can be construed as approval of the NDC standard, or any aspects of the 

NDC standard. Among other things, this confusion would be highly susceptible to 

dangerous interpretations in other administrative or judicial proceedings, because 

                                                       

11 See Dep’t of Trans., Order 2012-4-18, Action on IATA Agreement, Application for 

Further Exemption From Condition #2, at 1-2 (Apr. 13, 2012) (hereinafter Order 2012-4-

18) (granting broad exemption to Condition #2 “designed to facilitate prompt 

implementation of routine but essential standard setting . . . agreements without antitrust 

immunity”); Dep’t of Trans., Order 2002-1-15, Action on IATA Agreement, Order 

Granting Exemption, at 1, A3 (hereinafter Order 2002-1-15) (granting exemption from 

advance approval for 37 specified resolutions or best practices, including Resolution 783, 

described as “Passenger and Airport Data Interchange Standards [(PADIS)] Board”); 

Resolution 783, IATA Passenger Services Conference Manual I & II at 725-26 

(hereinafter Resolution 783) (“A [PADIS] Board . . . is established to develop and 

maintain . . . eXtensible Markup Language (XML) specifications and also future 

specifications for electronic interchange of data for airline passenger travel . . . .”) 

(emphasis added); Resolution 787 at 1.2.2 (“PADIS message standards shall be used for 

the transmission of data. Development of messaging standards shall be in accordance 

with the provisions of Resolution 783.”) (emphasis added). 

12 In both its Application and Reply, IATA has never retreated from its statement that 

“Resolution 787 could have been filed for information only under DOT Order 2012-4-18 

(Tier 1).” Application at 17 (emphasis added). 
10 

decisionmakers would be forced to form their own conclusions about why otherwise 

unnecessary approval was sought and awarded. One such conclusion is that more must 

have been intended by both IATA and the DOT, respectively.13

 In its Reply, IATA tacitly acknowledges the risk of unintentional full or partial 

NDC approval by asking the DOT to implement ordering language, admonitions, or 

restrictions that would purportedly limit the scope of approval. The DOT, however, 

should decline this invitation to negotiate with itself. IATA’s new language would only 

invite more interpretive confusion because it does nothing to alter the language of 

Resolution 787, which intimately intertwines the NDC standard with the XML standard. 

Moreover, IATA’s proposed language does not specify to which sections of Resolution 

787 it would apply. As such, it would only add to the morass of existing litigation 

questions created by the dissonance between the language of IATA’s Application for 

approval and the language of Resolution 787. The proposed ordering language would 

simply interject new litigation questions about how the new language applies to each. 

 Instead of asking future decisionmakers to make a jigsaw-puzzle determination as 

to the scope of approval actually conferred, IATA should withdraw its Application, issue 

the XML standard under Tier 1, and submit a separate application for approval of the 

NDC standard at another time, subject to separate notice requirements, with full 

opportunity for public comment. Otherwise, the DOT should reject IATA’s Application. 

Anything less than a separation of dockets serves to muddy the waters around the 

Resolution 787 proposal, risks confusing the public on the scope and breadth of the 

                                                       

13 Cf., e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 174 (1st ed. 2012) (discussing the “surplusage canon” and suggesting that no 

statutory provision “should be given an interpretation that causes it . . . to have no 

consequence”). 
11 

competitive issues surrounding NDC, and seriously threatens to short circuit full DOT 

review. 

 In its Reply, IATA’s only response to being confronted with this substantively 

problematic aspect of its filing is to suggest that its approach was procedurally 

cognizable. That IATA had a cognizable procedural path to filing a Tier 3 application is 

obvious – nothing in Order 2012-4-18 affirmatively prevents IATA from seeking Tier 3 

approval – but it also misses the point. IATA maintains that it was obligated to proceed 

with a Tier 3 application because it sought approval of the XML standard using a PSC 

Resolution, and it is required to file all such conference resolutions for DOT review 

under Condition #2 to the approval of the Traffic Conference Provisions.14 This “no 

choice” argument is specious if IATA truly seeks approval only to implement the XML 

standard. Resolution 787 expressly provides that message standards shall be developed in 

accordance with the provisions of Resolution 783, and Order 2002-1-15 exempts 

Resolution 783 from Condition #2.15 The argument is also plainly irreconcilable with 

both IATA’s Application, which clearly states that it could have “filed” under Tier 1,16

and other arguments made simultaneously in IATA’s Reply, which clearly states that 

IATA “decided” to file under Tier 3.17

                                                       

14 IATA Reply at 26-27. 

15 Resolution 787 at 1.2.2; Order 2002-1-15 at 1, A3. Resolution 783 provides for the 

creation of a Board to, among other things, “develop and maintain . . . eXtensible Markup 

Language (XML) specifications and also future specifications for electronic interchange 

of data for airline passenger travel . . .”. See also id., Order 2002-1-15, Order 2012-4-18, 

and Resolution 787, supra note 11. 

17 IATA Reply at 27 (“IATA decided to skip the false start that would result from filing 

under Tier 1”) (emphasis added). 
12 

 More fundamentally, however, the “no choice” argument conflates IATA’s 

internal decisionmaking with its obligations under Condition #2 to the approval of the 

Traffic Conference Provisions. IATA is master of its internal operations and makes its 

own decisions as to how to seek approval for a technical standard. If IATA’s decision to 

present XML for approval to the DOT using a PSC Resolution tied to a highly 

controversial new distribution standard committed IATA to submitting the XML standard 

to unnecessary scrutiny, with great cost and delay, this may be grounds for introspection 

on IATA’s part. It is not, however, a basis for approval of the Application in its current 

form. The Application is substantively problematic because it creates obvious confusion 

regarding the scope of approval being sought, and the scope of approval that would be 

conferred. 

 IATA also suggests that seeking approval for the XML standard under Tier 1 

would have been a waste of time because of the likely public outcry, and proceeding 

under Tier 3 allows it to “skip the false start,” consistent with unspecified DOT staff 

guidance.18 This argument ignores the elephant in the room. Any suggestion that the 

legions of concerned commenters were moved by the threat of an XML messaging 

standard, rather than NDC, should not be taken seriously. As IATA itself notes, “XML 

has become the standard way to describe data structures and transmit data over the 

Internet,” and many of the commenters to this proceeding already use it.19 The DOT has 

already exempted from approval a PADIS Board established “to develop and maintain . . 

                                                       

18 Id. IATA does not specify the nature or timing of the “informal” staff guidance, or if 

DOT staff was fully aware at the time that IATA planned to submit a resolution 

describing two standards, one of which qualified for Tier 1 approval and one of which did 

not, and that it would attempt to seek approval only for the standard qualifying for Tier 1 

approval. 

19 Application at 4. 
13 

. eXtensible Markup Language (XML) specifications and also future specifications for 

electronic interchange of data for airline passenger travel.”20 Of the approximately 400 

comments filed, those who oppose Resolution 787 have almost unanimously expressed 

concerns about NDC, while not a single commenter argued against approval exclusively 

on the basis of competition or consumer protection concerns caused by the 

implementation of an XML standard.21 The DOT has already confirmed for IATA that 

“the work of the service conferences [that] involves technical standards and procedures . . 

. seldom raises public interest issues.”22

 Public outcry over XML alone is even more implausible if movement to XML 

would be made expressly and unequivocally non-exclusive and non-mandatory, as IATA 

contends.23 Although a mandatory, exclusive technical standard (whether express or de 

facto) can occasionally lead to anticompetitive effects, 24 there is simply no basis to 

suspect that a truly non-exclusive, optional XML “standard” would draw the ire of 

competition and consumer protection advocates. Indeed, one has to wonder about the 

purpose, or utility, of seeking to adopt an optional, non-exclusive XML “standard” if it is 

                                                       

20 Order 2002-1-15 at 1, A3. 

21 See generally, Dep’t of Trans., Public Comments on Agreement Adopted by the 

Passenger Services Conference of the International Air Transport Association, Docket 

No. OST-2013-0048, available at http://www.regulations.gov (search docket number). In 

its Reply, IATA cites only Open Allies for Airfare Transparency as a lone commenter 

with concerns specifically tied to the XML standard. IATA Reply at 20. However, the 

vast majority of this commenter’s concerns pertain to NDC. See Comments of Open 

Allies for Airfare Transparency on Notice of Proposed Rulemaking, Enhancing Airline 

Passenger Protections, Docket No. DOT-OST-2010-0140. 

22 Order 2002-1-15 at 2-3. 

23 See Application at 7 (contending that “[n]othing in [Resolution 787] compels 

conversion to the use of XML.”); IATA Reply at 13-14 (arguing that the text of 

Resolution 787 can be read to suggest that movement to the XML standard would be 

non-exclusive and non-mandatory). 

24 See, e.g., George S. Cary, Larry C. Work-Dembowski & Paul S. Hayes, Antitrust 

Implications of Abuse of Standard-Setting, 15 G. Mas. L. Rev. 1241 (2008). 
14 

conceptually separate from seeking approval to implement NDC,25 particularly given the 

pace of innovation in electronic messaging standards and the possibility that XML will 

soon undergo fundamental changes or be surpassed by a competing technology.26 

 IATA would be wise to “skip the false start” if and when it openly seeks full 

approval of NDC, but it would be highly disingenuous to suggest that implementing an 

optional XML messaging standard by itself, without any reference to NDC, would 

generate a comparable public outcry. Such a view is not borne out by the experience of 

any other standards setting organization that has implemented an XML messaging 

standard in the 15 years since the WC3 first adopted its XML 1.0 Recommendation.27 

Contrary to IATA’s suggestion, the enormous outpouring of public attention to this 

matter favors separating the XML and NDC dockets, not approving the Application and 

Resolution 787 in their current form. 

 If IATA insists on pressing this application in its current form, IATA’s request for 

approval of Resolution 787 should be denied in its entirety. If IATA seeks approval 

solely and exclusively to implement a non-exclusive, non-mandatory XML technical 

standard for electronic data transmission, it should file for separate approval pursuant to 

the expedited Tier 1 procedure described in Order 2012-4-18. 

                                                       

25 Accord supra note 13 and accompanying text. 

26 Five editions of XML 1.0 have been released since its inception 15 years ago, see

Worldwide Web Consortium, Extensible Markup Language (XML) 1.0 (Fifth Edition), 

Nov. 26, 2008, available at http://www.w3.org/TR/2008/REC-xml-20081126/, and some 

experts believe that competing standards are superior, see, e.g., David Mertz, XML 

Matters: YAML Improves on XML, IBM developerWorks, Oct. 1, 2002, available at

http://www.ibm.com/developerworks/library/x-matters23.html (arguing that “YAML is a 

great deal simpler to read, edit, modify, and produce than XML”). 

27 See Press Release, World Wide Web Consortium, The World Wide Web Consortium 

Issues XML 1.0 as a W3C Recommendation (Feb. 10, 1998), available at

http://www.w3.org/Press/1998/XML10-REC. 
15 

Respectfully submitted, 

Diana L. Moss, Ph.D. 

Vice President 

American Antitrust Institute 

720-233-5971 

dmoss@antitrustinstitute.org 

Randy M. Stutz 

Senior Counsel and Director of Special Projects

American Antitrust Institute 

202-905-9420 

rstutz@antitrustinstitute.org 

July 12, 2013