BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Docket

Docket DOT-OST-2013-0214 

ANSWER OF AIR EUROPA LINEAS AEREAS, S.A.U.

IN OPPOSITION TO MOTION FOR LEAVE FOR SUPPLEMENTAL FILINGS

Communications with respect to this document should be sent to:

Aaron A. Goerlich

Garofalo Goerlich Hainbach PC

1200 New Hampshire Avenue NW

Washington, DC 20036-6802

Tel (202) 776-3974

Fax (202) 776-3975

agoerlich@ggh-airlaw.com

Counsel for Air Europa Lineas

 Aereas, S.A.U.

February 10, 2014

BENJAMIN EDELMAN,

Third-Party Complainant

v.

AIR EUROPA LINEAS AEREAS, S.A.U.,

Respondent

 
BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Docket

 

Docket DOT-OST-2013-0214

ANSWER OF AIR EUROPA LINEAS AEREAS, S.A.U.

IN OPPOSITION TO MOTION FOR LEAVE FOR SUPPLEMENTAL FILINGS

Air Europa Lineas Aereas, S.AU. (Air Europa), pursuant to Rule 11(c) of the 

Department’s Rules of Practice, submits the following Answer in opposition to the 

Complainant’s Motion for Leave for Supplemental Filings. Air Europa opposes the 

Motion on the basis that acceptance of the Complainant’s proposed Reply would serve 

no useful purpose. The Motion should therefore be denied and the Reply rejected. 

1. In Part I of his proposed Reply, Mr. Edelman acknowledges that Air Europa’s 

website marketed to U.S. consumers meets the Department’s requirements.

1 Yet, he 

attempts to persuade the Department to embark on a “fishing expedition” regarding the 

past. The Department can easily confirm the site is in compliance, and likely has done 

so by now. To Air Europa’s knowledge, DOT has not received a single complaint about 

 

1 Reply, Paragraph 7.

BENJAMIN EDELMAN,

Third-Party Complainant

v.

AIR EUROPA LINEAS AEREAS, S.A.U.,

Respondent
the site (apart from Mr. Edelman’s), and Air Europa itself has received no complaints. 

Under these circumstances, it would waste the Department’s limited and valuable 

resources to do anything other than dismiss Mr. Edelman’s complaint.

In support of his ongoing crusade against Air Europa, Mr. Edelman has attached 

to his Reply two screenshots he says were downloaded from Air Europa’s U.S. site 10 

months ago. Close examination of the screenshots reveals they depict the third step,

called review, of the Air Europa online booking process then in effect. Screenshots of 

the first two steps – search and flights – have not been provided. 

This is significant because the Department’s price-advertising rule applies only to 

“advertising or solicitation.”

2

 It is doubtful step three of an online booking process, 

which cannot be reached until the first two steps have been completed, constitutes 

advertising or solicitation. DOT Enforcement Office guidance appears to concur: “The 

Department’s new consumer rule, ‘Enhancing Airline Passenger Protections,’ 76 Fed. 

Reg. 23110 (Apr. 25, 2011), requires, among other things, that the first price quote 

presented must be the full price, including all taxes, fees and all carrier surcharges.”

3

 

2 The rule is limited by its terms to “any advertising or solicitation....” 14 CFR § 399.84(a) 

(emphasis added).

3 Additional Guidance on Airfare/Air Tour Price Advertisements, DOT Office of Aviation Enforcement and Proceedings, February 21, 2012, at 1-2 (emphasis added). There is no suggestion Air Europa 

has not quoted all-inclusive prices as required.
There is no need to dwell on this point, however. Even on the assumption most 

favorable to Mr. Edelman’s arguments – that Air Europa’s U.S. site was previously 

noncompliant and was brought into compliance only recently – no useful purpose would 

be served by a continued expenditure of Department resources on this matter. The 

Department should proceed to the next case (of which Mr. Edelman has supplied 

several) rather than revisit the past.

2. Regarding Parts II, III and IV of the Reply, little need be said. If Mr. Edelman 

wishes to pursue a fundamental change to long-standing U.S. laws, regulations and 

policies concerning air carrier websites marketed to consumers outside the United 

States, he is free to do so. A DOT enforcement complaint, however, is not the place to

do it. Perhaps Mr. Edelman should consider a rulemaking petition under 49 CFR Part 5. 

Mr. Edelman asserts that “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.”

4

 But as Mr. Edelman points out, a user must be physically outside the 

United States to be taken to a non-U.S. Air Europa site. Mr. Edelman thus argues in 

essence that the Department’s regulations should attach to U.S. consumers wherever 

they may wander internationally. To Air Europa’s understanding, U.S. consumerprotection rules and regulations do not override the applicability of local laws or regula-

 

4 Reply, Paragraph 14.
tions while U.S. consumers are abroad.5

 The notion that U.S. rules and regulations 

should do so is unworkable both practically and legally.6

 

* * *

For the reasons stated above, the Motion should be denied and the Reply 

rejected. The Assistant General Counsel for Aviation Enforcement and Proceedings, in 

accordance with Rule 406(a)(2), should issue an order dismissing the Complaint in its 

entirety.

Respectfully submitted,

Aaron A. Goerlich

Garofalo Goerlich Hainbach PC

Counsel for Air Europa Lineas

 Aereas, S.A.U.

 

5 According to the U.S. Department of State, “While in a foreign country, a U.S. citizen is subject 

to that country's laws and regulations which sometimes differ significantly from those in the United 

States and may not afford the protections available to the individual under U.S. law.” Source: 

http://travel.state.gov/content/passports/english/emergencies/arrest.html (February 10, 2014).

6 The function of Air Europa’s website when accessed from countries other than the United States 

is outside the Department’s jurisdiction. Nevertheless, in response to Mr. Edelman’s criticism (Reply, 

Paragraph 14), Air Europa notes that (1) the automatic routing of a user to his or her country-specific 

site, or to the Spain site if no country-specific site exists, is clearly in the best interests of consumers; (2) 

the country-specific web page labeling utilized by Air Europa is both unmistakable and very similar to the 

design utilized by various international carriers; and (3) the notion that a U.S. consumer, while abroad, 

would be taken to a site where fares are quoted in Euros – as is the case with Air Europa’s Spain site –

and not realize he or she was on a non-U.S. site strains credulity.
CERTIFICATE OF SERVICE

I certify that on February 10, 2014, I served the foregoing answer by electronic 

mail upon Benjamin Edelman (ben@benedelman.org).

 _______________________________

Aaron A. Goerlich