Communications with respect to this document should be sent to:

Mike Borsetti

101 California St Ste 4100

San Francisco, CA 94111

mike@borsetti.com

21 November 2014

BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Mike Borsetti et al.

vs. 

British Airways Plc

Violations of 14 CFR Parts 250, 259, and 

374, and 49 U.S.C. § 41712

Docket DOT-OST-2014-0166

REPLY OF MIKE BORSETTI
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BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Mike Borsetti et al.

vs. 

British Airways Plc

Docket DOT-OST-2014-0166

REPLY OF MIKE BORSETTI

1. BA mocks the record as lengthy (Answer, p. 4). But it was BA’s blunder, at 

best negligent and at worst intentional, in accepting bookings BA knew it could not accommodate. Then BA again failed to follow through in correspondence, including failing 

to reply (in a timely matter or sometimes at all), failing to support its calculations with 

methodology, and by its own admission sending refunds for mistaken amounts and of 

insufficient number. These BA errors, and no fault of mine, give rise to this unfortunate

docket. If the record is lengthy, that reflects only my repeated efforts to obtain satisfaction 

from BA before troubling the Department.

2. Prior to my Complaint, BA had stopped responding to my queries (Complaint ¶29). After my formal filing, BA admitted a portion of its error by issuing an additional credit, asked AA to refund upgrade certificates, itemized the credits it had already 
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issued, admitted to having issued checks in error, and provided for the first time the methodology (but not the supporting calculations) it used (p. 5)1

. 

3. Yet BA’s refund still fall short by an astounding $1,002 (39%) when calculated using the methodology BA introduced in its Answer (footnote 7, p. 6):

Ticket number 

(original)

Ticket 

Price

USD Journeys

Distance 

of the 

journey

LAXLHR distance 

Flight 

price2

75% of 

flight 

price

001XXXXXX0001/02 2,777.80 MIL X/NYC SFO X/LAX X/LON MIL 12,969 5,454 1,168.18 $876.13 

001XXXXXX4028/29 1,378.30 SFO X/LAX X/LON MIL X/NYC SFO 12,969 5,454 579.63 $434.72 

001XXXXXX4030/31 1,187.10 SFO X/LAX X/LON MIL X/NYC SFO 12,969 5,454 499.22 $374.42 

001XXXXXX2758/59 2,779.60 MIL X/NYC SFO X/LAX X/LON MIL 12,969 5,454 1,168.94 $876.70 

TOTAL refund due under this methodology3$2,561.98

Refunds issued by BA ($949 + $611) $1,560.00

Shortfall ($1,001.98)

4. By BA’s own admission (p. 10), the timing of its refunds violated 14 CFR

259.5(b)(5) and Part 374 not once, but three times: excessive periods of (1) 23 days between acknowledging receipt and asking for credit card number, (2) 43 days thereafter 

before issuing refund for 3 tickets, and (3) 198 days to refund the fourth ticket4. Furthermore, none of the refunds was for a correct amount.

5. BA confirmed our reservations well before American Airlines cancelled its 

flight AA 136 (p. 3). AA’s FLIFO records shows the flight cancelled at 1807 Central Time 

(16:07 Pacific Time), but BA had confirmed our reservations at or about 14:58 PT, almost 

 

1 BA ignored at least five times my commonsense request for their methodology, initially made on 20 March 

(see Complaint appendix p. 35) and repeated, as a result of BA’s continuously ignoring it, twice on 25 March 

(pp. 42 and 46), and again on 5 April (p. 52) and on 2 June (p. 65).

2 Calculated as ticket price * (flight distance / journey distance).

3 This calculation requires only information in the original ticket plus publicly-available IATA distance.

4 BA acknowledged my initial letter on 20 February (Complaint appendix p. 5) but did not request a credit 

card number until 15 March (p. 18), 23 days later. I provided such number on 5 April (pp 52-53) but BA did 

not issue the refund for 3 tickets until 21 May (p. 64), 43 days later, and for the fourth ticket until 20 October 

(Answer), 198 days later. BA does not dispute the timing of the correspondence or of its refunds. 
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a full hour before. Whatever complications the cancelation caused, they postdated our 

confirmed reaccommodation onto BA service. The cancellation is not relevant.

6. BA admits to having accepted business class bookings “from travel agents 

and American reservations agents” with the knowledge that it had no space to accommodate them in such class (“only economy classes were available”, p. 3). BA says that passengers were “continued to be booked” “in the premium classes”, indicating that BA allowed its reservation system to accept and confirm reservations for seats it knew it did not 

have. This willful overbooking5is a clear violation of 49 U.S.C. § 41712, and calls for 

careful examination by the Department.

7. BA’s asserts that “all passengers holding confirmed reservations were carried” (p. 8), but this claim is not credible. It directly contradicts statements made by Mr. 

Vincent Calhoun (check-in manager) when denying us check-in (Complaint ¶6-9) and our 

witnessing people being turned away at check-in (¶10). It does not consider passengers 

involuntarily downgraded.6 The DOT should examine all bookings and cancellations for 

that flight. For example, had it not been for our knowledge of our rights and our overall 

insistence, BA might have cancelled our bookings or coded us as “no-shows.” Implausibly 

many cancellations or no-shows could indicate others treated similarly.

8. BA seeks leniency because we were “ultimately carried” (pp. 2 and 8). But 

BA did all it could to prevent us from traveling, including refusing to accept us and our 

 

5 Given BA’s size and sophistication, it cannot content that oral instructions to a single American Airlines 

employee at LAX are an appropriate process. The correct response is to “zero out” availability in the GDS.

6 Many passengers would not accept BA economy class travel as a reaccommodation for business class travel 

on other carriers. Had BA’s reservation system not offered confirmed business class space, we would have 

found another option, particularly given the condition of my 82 year old mother.
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baggage (Complaint ¶6-9). It provided us with double-downgraded seats only after everyone else had boarded. Far from providing what it had promised, BA carried us only 

because I persevered and despite BA’s attempts and intention to leave us behind. 

9. BA further seeks leniency because the situation at the airport was chaotic 

(p. 8). But other than BA turning away confirmed passengers at check-in (Complaint ¶10), 

we saw no “chaos”. Chaos would be inconsistent with BA’s assertion that “all passengers 

holding confirmed reservations were carried” (p.8), indicating routine operation.

10. BA is mistaken in claiming it complied with 259.7(c) (p. 11). BA replies on 

its replies of 17 March, 25 March, 21 May and 5 June, but these are not substantive written 

responses in that they do not address a single issue raised in my informal DOT complaint 

(appendix p. 11-12) and therefore cannot satisfy the requirements of 259.7(c). BA’s further claim that it “is continuing to investigate” is unconvincing, both because the DOT’s 

instructions called for receiving a copy of the substantive response within 60 days (Appendix p. 13-14), which was not received (p. 63), and because BA failed to provide the 

required notice to me and the DOT that an investigation was ongoing.

11. BA claims that its failure to publish its check-in deadlines does not constitute a violation because of a lack of a specific “Department requirement” (p. 10). I contend 

that conditions of carriage that refuse carriage and liability on the basis of unpublished 

criteria7are inherently deceptive and in violation of 49 U.S.C. § 41712.

 

7 BA General Conditions of Carriage, at 7(a)(35), state that BA has the right to refuse carrying passengers 

that “failed to complete the check-in process by the check-in deadline” and, at 6(e), that BA is not “liable to 

[a passenger] for any loss or expense [the passenger] suffers if [he] fails to meet check-in deadlines”, but BA 

does not specify such deadlines a priori anywhere. An informal search reveals that BA is the only major 

transatlantic carrier to omit this requirement.
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12. BA errs in asserting that my “claim for damages under EC 261/2004 demonstrates my decision to invoke the consumer protections provided by the European regulatory scheme” (p. 7). I invoked EC261/2004 because it provided a reasonable method to 

calculate the refund due under the Tariff in the absence of a U.S. regulation on point 

(Complaint ¶54). I am open to any other “reasonable” approach that BA or the Department 

might propose, but I submit that the refund provided by E.U. law is per se reasonable and 

should be the default absent some contradictory U.S. requirement. Prior to my formal 

complaint, BA had provided no response as to what it considered reasonable or why.

13. BA mistakenly claims that tariff “Rule 90(D) need not be considered” (p. 

12) and that the Department should limit my “ability to invoke” “U.S. regulations” (p. 8). 

But BA is always bound by the tariff and, for travel between the U.S. and U.K., by all 

laws and regulations of both jurisdictions. The applicable rules are in no way inconsistent; 

quite the contrary, both provide for refunds in this circumstance (though E.U. rules are 

more specific as to the amount of refund to be provided). If BA wants to avoid U.S. legal 

duties, it should discontinue service to the U.S.

14. I brought this matter to the attention of the Department with great reluctance

only after thoroughly exhausting regular channels. BA in its answer admits to many violations. An enforcement action is warranted, not only to make me whole but to prevent 

BA from attempting similar behavior towards other passengers.

15. This reply is made on behalf of all four passengers. My wife and mother 

have reviewed it, and approve it, and my son is a minor under my guardianship.

Respectfully submitted,

/s/

Mike Borsetti
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CERTIFICATE OF SERVICE

A copy of the foregoing has been served as required by 14 C.F.R. § 302.7 this day of 21 

November 2014 upon the following parties via electronic mail, and no indication was received that any transmission had failed:

 For the U.S. Department of Transportation:

o Blane Workie, Acting Assistant General Counsel for Aviation Enforcement and Proceedings: blane.workie@dot.gov

o Clereece Kroha, Senior Trial Attorney, Office of Aviation Enforcement 

and Proceedings: clereece.kroha@dot.gov

 For British Airways Plc:

o Richard Mendles, General Counsel, Americas: richard.mendles@ba.com

o James B. Blaney, Senior Counsel, Americas: jim.blaney@ba.com

o Don H. Hainbach, Garofalo Goerlich Hainbach PC: dhainbach@ggh-airlaw.com

o Jason E. Maddux, Garofalo Goerlich Hainbach PC: jmaddux@ggh-airlaw.com

/s/

Mike Borsetti