BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. Served January 16, 2015 

Violations of 14 CFR Part 257 and 49 U.S.C. § 41712 

DOT -OST -2014-0229 

Enforcement Proceeding 

RESPONSE OF OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS 

TO DELTA AIR LINES' 

MOTION TO DISMISS ENFORCEMENT COMPLAINT 

Pursuant to the Department's Rules of Practice in Proceedings, 14 CFR 302.411 , the 

Office of Aviation Enforcement and Proceedings ("Enforcement Office") files this Response to 

the Motion to Dismiss Enforcement Complaint ("Motion to Dismiss") filed by Delta Air Lines, 

Inc. ("Delta"). For the reasons set forth in the accompanying Memorandum, Delta's Motion to 

Dismiss should be denied. 

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey Avenue SE 

Washington, DC 20590 

(202) 366-9350 

robert. gorman@dot. gov 

Counsel for the Office of Aviation Enforcement and Proceedings 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Delta Air Lines, Inc. Served January 16, 2015 

Violations of 14 CFR Part 257 and 49 U.S.C. § 41712 

DOT -OST -2014-0229 

Enforcement Proceeding 

MEMORANDUM IN SUPPORT OF 

RESPONSE OF OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS 

TO DELTA AIR LINES' 

MOTION TO DISMISS ENFORCEMENT COMPLAINT 

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey Avenue SE 

Washington, DC 20590 

(202) 366-9350 

robert. gorman@dot. gov 

Counsel for the Office of Aviation Enforcement and Proceedings 
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ....... .... ... .... ..... ...... . ................. ... ... .... .. ....... .... ...... ..... 3 

FACTUAL AND PROCEDURAL HISTORY ....................... .... ... .. .... .. ....... ........ .. ... .4 

INTRODUCTION AND SUMMARY OF ARGUMENT ........... ...... .... .... ... ................... 5 

STANDARD OF REVIEW ..... . .... ..... .. ... .......... .... ......... ..... ...... .... ............ ...... ....... 6 

ARGUMENT 

I. The Regulation Unambiguously Requires Disclosure of Code-share Information in 

Any Oral Communication with a Prospective Consumer. ..... ... ............ ... .. ...... ... 6 

A. Read as a Whole, the Statute and the Regulation Broadly And Unambiguously 

Protect Prospective Consumers By Requiring Early Notice of Code-Sharing 

Arrangements ..... ... ..... ..... ...... .. ......................... ... ..... . .. ............ ....... 6 

B. Delta's Interpretation is Inconsistent with the Unambiguous Text and Overarching 

Purpose of the Statute and Regulation .................................................... 9 

II. Even Assuming that the Regulation is Ambiguous, the Ambiguity Extends Only to 

the Exact Timing ofDisclosure. Here, the Preamble Provides Practical Guidance, 

Consistent with the Rule Text ...... ......... ........ ...... ................... .... ............. 1 0 

III. The Complaint Clearly Alleges Violations of the Code-Share Disclosure Rule ... .... 13 

IV. Delta's Remaining Arguments Do Not Compel, or Even Suggest, a Finding that the 

Complaint Should be Dismissed as a Matter of Law ....................................... 14 

A. Delta's Assertion of''No Consumer Harm" is Misguided ..... ....................... 14 

B. The "First Mention" Rule is Not at Issue ... .. ....................................... .... 15 

C. The Department's Proposed Amendment to the Oral Code-share Rule is 

Irrelevant ......................................................................... .. ....... .. 16 

D. The Appropriate Civil Penalty is Not at Issue at This Time .......................... 16 

CONCLUSION ...... .. .... .. ... .. .... ............... .. ........ .. .. .. .................. ... ... .. ............... 17 

2 

Enforcement Office - Response to Motion to Dismiss 
TABLE OF AUTHORITIES 

Cases 

Bell Atlantic v. Twombly, 550 U.S. 544 (2007) .... ...... ............................... ................... 6 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................... ....... .. .......... ..... ................... ..... . 6 

Decker v. Northwest Environmental Defense Center, _ U.S._, 133 S.Ct. 1326 (2013) ........... 11 

Auer v. Robbins, 519 U.S. 452 (1997) ........... .............. ................ ... ..... .. .. ... .. ... ... ..... 11 

Wyoming Outdoor Council v. US Forest Service, 165 F.3d 43 (D.C. Cir. 1999) .... ... ........... 11 

Statutes 

49 U.S.C. § 41712 ....................................... ........................................... ..... passim 

49 U.S.C. § 46301 .. .. ... ... ... ... .. ....... ............ .. ...... .. .... .... .... .. .... ... .... ......... ...... ..... 17 

15 U.S.C. § 45(n) ... ...... ... ..... ........ .. ...... ... ............................ ................. ............. 14 

Regulations 

14 CFR 257.5 ... .. ........................ ........... ... .... .... ...... ...... .... .... ...... ......... .... . passim 

14 CFR Part 383 ....... ..... ..... .... .... ... ... ... ... ............ .... .. .............................. ..... ... 17 

Other Authorities 

64 Fed. Reg. 12845-46 ...................... .... .................... ............... ... ... ...... ............... 11 

79 Fed. Reg. 29970, 29999 ............................ .................. ...... ... ... ................... .... 16 

3 

Enforcement Office - Response to Motion to Dismiss 
FACTUAL AND PROCEDURAL IDSTORY 

In 2013 and 2014, the Office of Aviation Enforcement and Proceedings ("Enforcement 

Office") conducted an investigation to determine whether representatives of Delta Air Lines, Inc. 

("Delta") properly disclosed code-share information to prospective consumers during telephone 

conversations. This investigation was one of a number of similar investigations into the codeshare disclosure practices of airlines and ticket agents. 

In this particular investigation, Transportation Industry Analysts of the Enforcement 

Office engaged in a total of 50 test calls with Delta's telephone representatives. For each 

conversation, the Analyst expressed interest in a specific flight that was known to be operated 

under a code-sharing arrangement (the "target flight"). The Delta representative would provide 

information about the target flight (e.g., its availability, flight number, arrival time, departure 

time, city pair, and/or price). The Analyst would then determine whether the representative 

provided the required code-share information about that target flight. The Analysts terminated 

each conversation without booking a reservation. 

While Delta's representatives often did provide the required code-share information to 

the Analysts, they failed to do so a significant percentage of the time (approximately 16%, or in 

eight out of 50 calls). Details of those eight calls are set forth in paragraph 28 of the Complaint. 

After efforts to settle this matter failed, on December 23, 2014, the Enforcement Office 

filed a Notice of Enforcement Proceeding and accompanying Complaint. The Complaint alleges 

violations of 49 U.S.C. § 41712, 14 CFR 257.5, and a 2010 consent order involving prior codeshare disclosure violations by Delta. On January 7, 2015, Delta filed an Answer and a Motion to 

Dismiss. The Enforcement Office now files this Response to the Motion to Dismiss. 

4 

Enforcement Offi ce - Response to Motion to Dismiss 
INTRODUCTION AND SUMMARY OF ARGUMENT 

Delta bases its Motion to Dismiss on the central premise that a violation of the 

Department's code-share disclosure rule cannot take place as a matter of law unless the 

consumer actually books a flight. This premise is fundamentally flawed. Consistent with the 

purpose and plain text of the relevant statute and regulation, code-share information must be 

provided early during any conversation with a prospective consumer regarding a code-share 

flight. lbis disclosure must take place regardless of whether the prospective consumer actually 

books a flight at the end of the conversation. That basic standard is easily understood and has 

been well known for many years. Delta's technical, "booking-centered" argument provides no 

basis for dismissing the Complaint as a matter of law. 

The Complaint sets forth ample evidence that Delta violated the code-share disclosure 

rule and committed an unfair and deceptive practice. In each of the telephone exchanges 

described in the Complaint, Delta's representatives provided important information about its 

flights to prospective consumers, such as the flight number, the time of arrival, and the price of 

the flight. In each case, however, they failed to disclose one key fact that is required to be 

disclosed by statute and rule -- the fact that the flight was operated by another airline. Delta's 

significant failure rate constitutes evidence of a practice that is unfair and deceptive to 

consumers. 

Delta's argument regarding the absence of direct consumer harm is unsupported by law; 

moreover, it misconstrues the proper standard for determining unfair and deceptive practices. 

Finally, Delta claims that the Enforcement Office is somehow attempting to enforce a strict "first 

mention" standard; this claim is demonstrably incorrect. 

5 

Enforcement Office - Response to Motion to Dismiss 
The Complaint sets forth plausible prima facie factual evidence of code-share violations 

under existing, well-understood legal standards. Accordingly, Delta's Motion to Dismiss should 

be denied. 

STANDARD OF REVIEW 

The Enforcement Office does not dispute Delta's statement of the standard of review: to 

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the complaint must 

articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. 

Twombly, 550 U.S. 544, 570 (2007). The allegations in the complaint must be accepted as true, 

but the plaintiff must "plead[] factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). 

ARGUMENT 

I. The Regulation Unambiguously Requires Disclosure of Code-share Information in 

Any Oral Communication With a Prospective Consumer. 

A. Read as a Whole, the Statute and the Regulation Broadly And Unambiguously 

Protect Prospective Consumers By Requiring Early Notice of Code-Sharing 

Arrangements 

As Delta recognizes, 49 U.S.C. § 41712(c)(l) states that it is an unfair or deceptive 

practice for an air carrier to fail to provide code-share information "whether verbally in oral 

communication or written or electronic communication, prior to the purchase of a ticket " 1 

1 The statute provides: 

(c) Disclosure Requirement for Sellers of Tickets for Flights.-

( I) In general.- It shall be an unfair or deceptive practice under subsection (a) for any ticket 

agent, air carrier, foreign air carrier, or other person offering to sell tickets for air transportation 

on a flight of an air carrier to fail to disclose, whether verbally in oral communication or in 

writing in written or electronic communication, prior to the purchase of a ticket-

( A) the name of the air carrier providing the air transportation; and 

6 

Enforcement Office - Response to Motion to Dismiss 
Section 41712(c)(1) is written simply and broadly: it requires code-share disclosure in oral, 

written, or electronic communications. It also requires that these disclosures take place before, 

not after, any purchase. 

Congress enacted section 41712( c) in 201 0, when the code-share disclosure regulation 

(14 CFR 257.5) had already been in effect for many years. Congress, being aware of this 

regulatory backdrop, not only enacted section 41712(c)(1) in broad terms, but also added section 

41712( c )(2)(requiring code-share disclosure on the first display of a website following a search 

of a requested itinerary). Through its enactment of§ 41712(c), Congress demonstrated its intent 

that code-share information should be provided early to prospective consumers. 

The Department's code-share disclosure regulation, 14 CFR 257.5, applies the broad rule 

in more detail by setting forth specific requirements for each type of communication? For 

example, code-share information must be prominently included in advertisements. 14 CFR 

257.5(d). Code-share information must also be included "in written or electronic schedule 

information provided by carriers in the United States to the public, the Official Airline Guides 

and comparable publications, and, where applicable, computer reservations systems." 14 CFR 

257.5(a). This rule ensures, among other things, that code-share information appears on a 

carrier's website when the site first displays a code-share flight in response to a consumer 

inquiry. Through these regulations, prospective consumers learn of code-sharing arrangements 

long before they decide to book a flight, and indeed regardless of whether they book a flight at 

all. 

(B) if the flight has more than one flight segment, the name of each air carrier providing the air 

transportation for each such flight segment. 

2 See 14 CFR 257.5(a) (written and electronic schedule information); 257.5(b) (oral disclosure); 

257.5(c) (other written notices); and 257.5(d) (advertisements). 

7 

Enforcement Office - Response to Motion to Dismiss 
Similarly, with respect to oral disclosures, the regulation states: 

(b) Oral notice to prospective consumers. In any direct oral communication in 

the United States with a prospective consumer and in any telephone calls placed 

from the United States concerning a flight that is part of a code-sharing 

arrangement or long-term wet lease, a ticket agent doing business in the United 

States or a carrier shall tell the consumer, before booking transportation, that the 

transporting carrier is not the carrier whose designator code will appear on the 

ticket and shall identify the transporting carrier by its corporate name and any 

other name under which that service is held out to the public. 

Id. (emphasis added). 

The plain language of the oral code-share disclosure rule sets forth two basic principles. 

First, code-share information must be provided "in any direct oral communication" or "any 

telephone call" with a "prospective" consumer about a code-share flight. 3 Second, if that 

communication happens to result in a booking, the code-share information must be provided 

before the booking, not after the fact. 

This common-sense interpretation Is fully consistent with section 41712(c), which 

broadly states that code-share information must be provided to prospective consumers, and it 

must be provided before a booking, not after the fact. This interpretation is also fully consistent 

with the remainder of section 257.5, which protects prospective consumers who read 

advertisements or begin searching for flights online, even if no bookings take place. 

3 This does not mean that code-share information must be provided if a consumer simply 

expresses interest in flying between two cities on a given day, but a specific flight has not been 

identified or offered. However, once a specific flight has been identified and that flight is part of 

a code-sharing arrangement, then the carrier's obligation to disclose code-share information is 

triggered. 

8 

Enforcement Office - Response to Motion to Dismiss 
B. Delta's Interpretation is Inconsistent with the Unambiguous Text and 

Overarching Purpose of the Statute and Regulation. 

Delta does not dispute that its representatives failed to disclose the required code-share 

information during each of the telephone calls described in the Complaint. Nevertheless, 

according to Delta, it is impossible to find any code-share disclosure violations in this matter, 

because the time to disclose the code-share information had not yet expired. Motion to Dismiss 

at 9. Delta arrives at this position by importing the "before booking" provision into every oral 

communication, even those communications where a prospective consumer is not yet prepared to 

book a flight. Delta asserts that without a completed booking, there can be no code-share 

violation as a matter of law. 

This position is unavailing. First, it distorts the "before booking" provision far beyond its 

clear, intended meaning. "Before booking" is a clear and concise way to indicate that disclosing 

codeshare information after a booking is insufficient to comply, should there be a booking. The 

phrase "before booking" logically applies to those instances where a booking takes place; it has 

no function in those instances where a booking does not take place. Moreover, Delta's 

interpretation runs contrary to the regulation's clear, intended purpose. As noted above, the 

regulation mandates code-share disclosures in advertisements and electronic schedules, in order 

to inform prospective consumers of code-share arrangements, regardless of whether bookings 

result. Likewise, the oral code-share disclosure rule should be read with the view of informing 

"prospective" consumers, not just those actual consumers who happen to complete a booking. 

Delta's attempt to convert an important clarifying provision for a small subset of cases into a 

technical deadline for all cases is unavailing, and is no basis for dismissing the Complaint.4 

4 While Delta's representatives failed to disclose the required code-share information in a 

significant percentage of calls, the fact that this information was properly disclosed in most of 

9 

Enforcement Office - Response to Motion to Dismiss 
II. Even Assuming that the Regulation is Ambiguous, the Ambiguity Extends Only 

to the Exact Timing of Disclosure. Here, the Preamble Provides Practical 

Guidance, Consistent with the Rule Text. 

As explained above, the regulation is unambiguous because it plainly requires code-share 

disclosure in any oral communications with prospective consumers regarding a code-share flight. 

According to this plain language, a carrier commits a code-share disclosure violation if it 

engages in an oral communication about a code-share flight and fails to disclose the required 

code-share information during that communication. 

With regard to when the disclosure must take place if there is no booking, the 

regulation's terms provide that the disclosure must take place in any oral communication with a 

prospective consumer once a specific flight that is part of a code-sharing arrangement has been 

identified. This triggering point, the offering of a code-share flight, may occur at some point 

between the beginning and the end of the communication. The regulation is otherwise silent as 

to the exact timing of disclosure in those instances where a booking does not take place. 5 

The Enforcement Office submits that in non-booking scenarios, once the triggering event 

occurs (the offering of a specific flight that is part of a code-sharing arrangement), the carrier 

must disclose before the communication ends. In contrast, Delta argues that the "before 

booking" provision applies to non-booking scenarios, and that this provision gives a carrier extra 

time to comply (i.e., until a booking takes place). However, it is important to note that the 

regulation does not state that the disclosure can take place "at any time" before booking 

transportation. Delta's interpretation would read these words into the rule text, where they do 

not exist. 

the calls suggests that Delta, in practice, construes the code-share regulation as the Department 

does. 

5 As noted above, where a booking takes place, the disclosure must take place before booking. 

10 

Enforcement Office - Response to Motion to Dismiss 
Assuming arguendo that the regulation is ambiguous, it is appropriate to turn to the 

preamble to provide guidance, so long as the preamble does not "trump" the text itself. Wyoming 

Outdoor Council v. US Forest Service, 165 F.3d 43, 53 (D.C. Cir. 1999).

6 The preamble states, 

in relevant part, that disclosure should take place during the "information and decisionmaking 

portion ofthe conversation." 64 Fed. Reg. at 12845-46. More specifically, the carrier "may not 

wait until after the consumer has decided to make the reservation or purchase the ticket and 

disclose the code-sharing arrangement only when reading back the flight information." ld. 7 The 

preamble recognizes the common-sense view that when prospective consumers are gathering 

flight information from an airline representative over the telephone, one important piece of 

information that should be disclosed is a fact of which many consumers are unaware: namely, 

that the flight may be operated by an entirely separate carrier. In short, the preamble advises that 

disclosure should take place during the portion of the conversation when the consumer is 

evaluating options, before making a decision to reserve or purchase. 

6 The United States Supreme Court has long held that reviewing courts should generally give 

deference to an agency's own interpretation of its ambiguous regulations, so long as the 

interpretation is reasonable, it is not plainly inconsistent with the language of the regulation 

itself, and there is no indication that the interpretation at issue is a change from prior practice or 

is a post hoc justification adopted in response to litigation. Decker v. Northwest Environmental 

Defense Center, _ U.S._ , 133 S.Ct. 1326, 1337 (2013), citing, inter alia, Auer v. Robbins, 519 

U.S. 452, 461 (1997). Recognizing that the Office of Hearings is not an Article III Court, the 

Enforcement Office submits that these principles are helpful but not necessary to the disposition 

of Delta's motion. 

7 Delta argues: "The quoted statements from the preamble simply reaffirm that it is insufficient 

for a carrier to 'read back' information about a code-share arrangement after the customer has 

made a reservation or purchased a ticket." Motion to Dismiss at 11 (emphasis in original). Delta 

misconstrues the preamble language by removing the words "decided to." The actual preamble 

text states: the carrier "may not wait until after the consumer has decided to make the 

reservation or purchase the ticket and disclose the code-sharing arrangement only when reading 

back the flight information." Again, the preamble makes reference to a pre-decisional stage, not 

just a pre-booking stage. 

11 

Enforcement Office- Response to Motion to Dismiss 
This guidance has been available to Delta and all other carriers since 1999. Moreover, it 

is perfectly consistent with, and does not trump or override, the regulatory text. The preamble: 

(1) recognizes the regulation's time frame for providing disclosure as when a passenger is 

considering a specific flight to reserve or purchase; and (2) advises that the disclosure should 

take place in this information-gathering, pre-decisional (not merely pre-booking) stage of the 

conversation. 

8 

Delta argues that the entire time period up to the instant of a final booking is part of the 

"information and decisionmaking phase." Motion to Dismiss at 12. That is not correct, and it is 

not particularly helpful for those common instances where the consumer ends the information 

and decisionmaking phase by hanging up the telephone without booking. Again, the preamble 

reflects the view (expressed in the regulation itself) that the regulation protects all consumers 

who seek flight information from airlines, not merely the smaller subset of consumers who 

happen to actually complete the conversation with a booking. 

8 There are several phases to an exchange between a prospective consumer and an airline 

representative: (1) the stage where the agent obtains general information about the prospective 

consumer's travel plans; (2) the information and decisionmaking stage, where the prospective 

consumer is evaluating specific options; (3) the decision as to whether or not to book a flight, 

and if so, the selection of a specific flight; (4) a post-decision stage, where the agent may, for 

example, confirm all of the information that reflects the customer's decision; and (5) the 

completion of the booking. The preamble advises that the disclosure should take place in phase 

(2). 

Because the code-share information should be provided at this relatively early pre-decisional 

stage, it stands to reason that carriers will discharge this obligation by disclosing code-share 

information at that time. As noted above, Delta often does so, but at the same time, it failed to 

make any disclosure in a significant percentage of test calls. 

12 

Enforcement Office - Response to Motion to Dismiss 
III. The Complaint Clearly Alleges Violations of the Code-Share Disclosure Rule. 

In its Complaint, the Enforcement Office alleges eight violations 14 CFR 257.5(b) as it is 

properly understood. One example will suffice as an illustration. 

On September 24, 2014, Analyst Jessica Ilich called Delta's reservations and information 

line, expressing interest in a one-way flight from Atlanta, GA, to Baton Rouge, LA, on October 

11 , 2014. The target flight was flight #5166, departing at 9:00a.m. For this flight, the corporate 

name of the operating carrier was ExpressJet; the marketing name of the operating carrier was 

Delta Connection. The Delta agent stated that they had six flights on that route; Ms. Ilich stated 

that she would like the first flight of the day. During this conversation, the Delta agent stated 

that they had a flight leaving at 9:00a.m., flight nwnber 5166, at a fare of $390.10. Ms. Ilich 

stated that she would have to think about that fare. The agent asked if there was anything else he 

could assist with, and Ms. llich said no. At no time did the Delta agent disclose the required 

code-share information. See Complaint at 28g; Affidavit of Jessica Ilich, Exhibit G. 

Here, Delta's representative engaged in an oral communication with a prospective 

conswner about a specific code-share flight. The communication ended without any disclosure 

of the required code-share information. These facts are amply sufficient to support a finding that 

Delta violated 14 CFR 257 .5(b ). 

Turning to the language of the preamble for guidance (asswning that such guidance is 

necessary), the result is the same. The agent engaged in the information and decisionmaking 

phase of a conversation with a prospective conswner about a specific code-share flight. In that 

telephone call, the agent provided extensive information about one of several flights that were 

available on the route in question. The agent provided information such as the code-share 

flight's nwnber, the time of departure, the city pair, and the price. The agent even went so far as 

13 

Enforcement Ofiice - Response to Motion to Dismiss 
to ask whether there was "anything else he could assist with."9 This is the portion of the 

conversation where the preamble advises that the disclosure should have been provided - before 

a decision is made, and while the prospective consumer is evaluating options. Similar fact 

patterns exist with the other code-share disclosure violations described in Paragraph 28 of the 

Complaint and the accompanying affidavits. 

IV. Delta's Remaining Arguments Do Not Compel, or Even Suggest, a Finding that the 

Complaint Should Be Dismissed as a Matter of Law. 

A. Delta's Assertion of "No Consumer Harm" Is Misguided. 

Early and often, Delta reminds the Office of Hearings that the code-share disclosure 

violations in this case were discovered by Transportation Industry Analysts.

10 Delta's point is 

unclear. The carrier appears to argue that evidence of harm to a specific consumer is a necessary 

prerequisite to an enforcement action. Delta cites no law for this proposition, the logic of which 

would undermine any undercover investigation. 

Section 5 of the Federal Trade Commission Act, on which section 41712 is based, 

provides that an act is unfair if it "causes or is likely to cause substantial injury to consumers 

which is not reasonably avoidable by consumers themselves and not outweighed by 

countervailing benefits to consumers or to competition." 15 U.S.C. § 45(n) (emphasis added). 

Similarly, the FTC defines a deceptive practice as "a representation, omission or practice that is 

9 At this point, it is clear that the agent had provided all of the information that he was going to 

provide, in the absence of any other question by the Analyst. 

10 Delta correctly observes that the Analysts could have booked the flights and then cancelled 

without penalty for 24 hours. Delta states that it is "baffling" that the Analysts did not do so. 

Motion to Dismiss at 8, n.l . This decision was hardly baffling: going through the process of 

charging this many flights to personal or government credit cards, and then cancelling the flights, 

would have been an unnecessary waste of both Delta's and the Enforcement Office's time and 

resources, and would have unnecessarily tied up Delta inventory and potentially denied seats to 

consumers. Moreover, bookings are not necessary to find violations as a matter oflaw. 

14 

Enforcement Office - Response to Motion to Dismiss 
likely to mislead the consumer acting reasonably m the circumstances, to the consumer's 

detriment." 11 

The overarching goal of the code-share disclosure rule, like other rules enforced by the 

Enforcement Office, is to protect consumers from unfair or deceptive practices. The 

Enforcement Office may investigate and discover such practices on its own initiative. 49 U.S.C. 

§ 41712(a). Here, the Enforcement Office discovered evidence that Delta failed to make the 

proper code-share disclosures in 16% of test calls. Given this rate of failure, it is hardly a leap of 

logic to conclude that similar failures are taking place every day in a substantial number of 

telephone contacts that Delta processes with its consumers. Indeed, individual consumers may 

be unlikely to complain that a code-share violation has taken place, precisely because they may 

not be aware of the code-share arrangement (or the code-share disclosure rule itself) in the first 

place. The evidence described in the Complaint is easily sufficient to sustain action for unfair 

and deceptive practices, because it demonstrates a significant likelihood that Delta's actions are 

harmful and misleading to unsuspecting consumers. 

B. The "First Mention" Rule is Not at Issue. 

Delta repeatedly insists that the Enforcement Office is attempting to enforce a "first 

mention" ru1e (i.e., a ru1e that code-share disclosure must take place at the frrsr mention of a 

code-share flight). This is simply not the case. The Complaint does not recite any instance 

where Delta representatives provided full disclosure, but not at the frrst mention. Instead, the 

Complaint alleges eight instances where Delta failed entirely to provide code-share information 

II http://www.ftc.gov/public-statements/1983/ l 0/ftc-policy-statement-deception 

added). 

15 

Enforcement Office- Response to Motion to Dismiss 

(emphasis 
during the information and decisionmaking portion of the conversation. The "first mention" 

standard has no bearing on this action. 12 

C. The Department's Proposed Amendment to the Oral Code-share Rule is 

Irrelevant 

Similarly, Delta takes issue with the fact that the Department has proposed changing the 

text of 14 CFR 257.5(b) to incorporate a "first mention" rule. Notice of Proposed Rulemaking, 

Transparency of Airline Ancillary Fees and Other Consumer Protection Issues, 79 Fed.Reg. 

29970, 29999 (May 23, 2014). Delta reasons: "of course, this amendment to the regulation 

would be entirely unnecessary and redundant if the regulation already meant what the Office 

claims it means." Motion to Dismiss at 15 (emphasis in original). Delta's central premise, 

again, is that the Enforcement Office is privately measuring Delta's performance against a "first 

mention" standard. That premise is demonstrably incorrect, and distracts from the issues in the 

case, where Delta's telephone reservation agents in 16% of test calls failed to disclose the full, 

required code-share information. The merits, timing, and motivations for proposing a "first 

mention" rule are all irrelevant to the central question of whether the Complaint states a claim 

when measured against well-established legal standards. 

D. The Appropriate Civil Penalty is Not at Issue at this Time. 

In its Motion to Dismiss, Delta makes passing reference to the fact that the Enforcement 

Office seeks $660,000 in civil penalties in this case. Delta suggests that the Enforcement Office 

has double-counted violations, and/or improperly seeks the maximum amount of $27,500 per 

violation. It is a fact that violations of section 41712 carry a maximum penalty of $27,500. 49 

12 The Enforcement Office recognizes that the "first mention" rule does appear in certain precomplaint correspondence and consent orders. Those documents have no bearing on this action, 

which focuses on the Enforcement Office's evidence as set forth in the Complaint measured 

against the proper legal standard, including the standard of review. 

16 

Enforcement Office - Response to Motion to Dismiss 
U.S.C. § 46301; 14 CFR Part 383. The Office of Hearings has the authority to determine the 

appropriate penalty for the violations at issue, up to the maximum allowable by law. Moreover, 

the Office of Hearings cannot determine the number of violations until after deciding the Motion 

to Dismiss. These questions regarding the scope of the penalty are best reserved to a later time. 

CONCLUSION 

The narrow question at issue in this Motion to Dismiss is whether the Complaint states a 

claim as a matter of law. At the pleading stage, a liberal standard of review applies: the Office 

of Hearings must accept well-pleaded facts as true, and is limited to determining only if the 

Complaint alleges plausible prima facie evidence of violations. That standard is easily met here. 

The broad, express purpose of the code-share disclosure statute and regulation is to ensure that 

prospective consumers are informed about code-sharing arrangements early in the process while 

they are gathering information and making decisions about whether and how to book a flight. 

Delta's fundamental argument -- that these protections do not exist unless the consumer 

completes a booking - subverts this purpose and runs contrary to the plain language of the statute 

and rule. The Enforcement Office respectfully requests that Delta's Motion to Dismiss be denied 

in its entirety, because it is predicated on legal standards that simply do not apply. 

Blane 

~~bA A. Workie v~ 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey Avenue SE 

Washington, DC 20590 

(202) 366-9350 

robert. gorman@dot. gov 

17 

Enforcement Office - Response to Motion to Dismiss 
CERTIFICATE OF SERVICE 

I hereby certify that on January 16, 2015, the original and one copy of the foregoing "Response 

of Office of Aviation Enforcement and Proceedings to Delta Air Lines' Motion to Dismiss 

Enforcement Complaint," and Memorandum in support thereof, were hand-delivered to: 

U.S. Department of Transportation 

Dockets Operations, M-30 

West Building, Ground Floor 

Room W12-10 

1200 New Jersey Avenue SE 

Washington, DC 20590 

I further certify that one copy of the forgoing document was hand-delivered to: 

The Honorable J.E. Sullivan, Administrative Law Judge 

U.S. Department of Transportation 

Office ofHearings, M-20 

1200 New Jersey Avenue, SE (E11-310) 

Washington, DC 20590 

I further certify that copies of the foregoing document were served on the Respondent by 

electronic mail and certified mail-return receipt requested at the following addresses: 

J. Scott McClain 

Jon-Peter F. Kelly 

Delta Air Lines, Inc. 

1030 Delta Boulevard, Dept. 981 

Atlanta, GA 30354-1989 

Scott.McClain@delta.com 

JonPeter .F .Kelly@delta.com 

Paul D. Clement 

Jeffrey M. Harris 

BANCROFT PLLC 

1919 M Street, NW, Ste. 470 

Washington, DC 20036 

pclement@bancroftpllc.com 

jharris@bancroftpllc.com 

Blane A. Workie 

Assistant General Counsel for 

Aviation Enforcement and Proceedings 

By: (__(v ~ Robert M. Gorman 

U.S. Department of Transportation 

Office of the General Counsel 

1200 New Jersey Avenue SE 

Washington, DC 20590 

(202) 366-9350 

robert. gorman@dot. gov 

18 

Enforcement Office - Response to Motion to Dismiss