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 FILING S

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 f or Air Europa Lineas

Aereas, S.A.U.

February 10 , 2014

BENJAMIN EDELMAN,

Third

- Party Complainant

v.

AIR EUROPA LINEAS AEREAS, S.A.U.

, RespondentBEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Docket

Docket DOT

- OST

- 20 13

- 0214

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

IN OPPOSITION TO MOTION FOR LEAVE FOR SUPPLEMENTAL FILINGS

Air Europa Lineas A e reas, S

. AU

. (Air Europa), pursuant to R ule 11(c) of the

Department’s Rules of P ractice, submits the followi ng Answer in o pposition to the

Complainant’s M otion for L eave for Supplemental F iling s

. Air Europa oppos es the

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

no useful purpose. The M otion shou ld therefore be denied and the R eply re jected.

1. In Part I of his proposed R eply, Mr. Edelman acknowled ges 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 th e

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.

, Respondentthe site ( apart from Mr. Edelman’s ) , and Air Europa itself has received no compla int s

.

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

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

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

to his R eply two scr eenshot s he says w ere downloaded from Air Europa’s U

. S

. site 10

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

called review

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

the first two step s

– 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 t he 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), requir es, 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 Enforce

ment 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. E ven on the assumption most

favorable to Mr. Edelman ’s argumen ts

– 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 cas e (of which Mr. Edelman has supplied

several) rather than revisit the past.

2. Regarding P arts II

, III and IV of the R eply, little need be said. If Mr. Edelman

wishes to pursue a fundamental change to long

- standing U

. S

. law s , regulation s and

policies co ncerning air carrier websites marketed to consumers outside the United

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

do it

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

.

Mr. Ede lman assert s 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 th us 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

. consumer

protection rules and regul ations do not override the applicability of local laws or regula

-

4 Rep ly, Paragraph 14.tions while U

. S

. consumers are abroad. 5 The notion that U.S. rules and regula tions

should do so is unworkable both practically and legally. 6

* * *

For the reasons st ated above, the M otion should be denied and the R eply

rejected. The A ssistant G eneral C ounsel for Aviation E nforcement and Proceedings, in

accordance with R ule 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 prote ctions available to the individual under U.S. law.” Source:

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

6 T he 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

- specifi c 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. c onsumer, 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.C ERTIFICATE OF SERVICE

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

mail upon Be njamin Edelman (ben@benedelman.org).

_______________________________ Aaron A. Goerlich