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

- 201 4

- 0166

REPLY OF MIKE BORSETTIReply

1 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. B A mocks the record as lengthy (Answer, p. 4)

. But it was BA’s blunder , at best negligent and at worst intentional, in accept ing bookings BA knew it could not accommodate . T hen BA again fail ed to follow through in correspondence, including failing to reply ( i n a timely matter or sometimes at all) , failing to support its calculations with methodology, and by its own admission sendin g refunds for mistaken amounts and of
insufficient number

. T hese 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 tr oubling 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 issu ing an additional credit, asked AA to refund upgrade certificates, itemized the credits it had alreadyReply

2

issued, admitted to having issued checks in error, and provide d for the first time the methodology (but not the supporting calculations) it used (p

. 5) 1

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

Ticket number (original) Ticket

Price USD Journeys Distance of the journey LAX
LHR distance Flight

price 2 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 methodology 3 $ 2,561.98 R efunds 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 ticket 4

. Furthermore, n one of the refunds w as 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 commonsens e 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 dist ance / journey dist ance)

. 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 tic kets 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.Reply

3

a full hour before . Whatever complication s the cancelation caused, they postdated our
confirmed reaccom m odation onto BA service. The cancellation is not relevant.
6. BA admits to having accept ed business class bookings “from travel agents
and Amer ican 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”, i ndicating that BA allowed its reservation system to accept and confirm reservations for seats it knew it did not have. This willful overbooking 5 is a clear violation of 49 U.S.C. § 41712, and calls for
careful examination by the Department.
7. BA’s assert s 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 T he DOT should examine all bookings and cancellations for that flight. For example, h ad it not been for our knowledge of our rights and our overall insistence, BA might have cancel led 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, incl uding refusing to accept us and our

5 Given BA’s size and sophistication , it cannot content that oral instru ctions 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 oth er 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.Reply

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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 i ntention 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 ”

. C haos would be inconsistent with BA’s asser tion that “all passengers holding confirmed reservations were carried” (p.8) , indicating routine operation

. 10. BA is mistaken in claim ing it compl ied with 259.7(c) (p. 1 1 )

. BA replies on
its repl ies of 17 March, 25 March, 21 May and 5 June, but th ese are not s ubstantive written

res ponse s in that they do not addres s 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 claim s that its failure to publi sh 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 refus e carriage and liability on the basis of unpublished
criteria 7 are inherently decept ive 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 “l iable to [a passenger] for any loss or expense [ the passenger] suffers if [he] fails to meet check

- in deadl ines” , 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

.Reply

5 12. BA errs in assertin g 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 pro vided a reasonable method to
calculate the refund due under the Tariff in the absence of a U.S. r egulation 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 c onsidered 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 th e 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 pro vided). 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 r elu ctance only after thoroughly exhausting regular channels . BA in its answer admits to many viol ations. 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 BorsettiReply

6 CERTIFICATE OF SERVI CE

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 Couns el, 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