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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

------------------------------------------------------)

)

Benjamin Edelman, )

 third-party complainant )

)

v. ) Docket DOT-OST-2013-0024

)

American Airlines, Inc. ) 

)

------------------------------------------------------)

REPLY OF BENJAMIN EDELMAN

Comments with respect to this document should be addressed to:

Benjamin Edelman

169 Walnut St.

Brookline, MA 02445

E-mail: ben@benedelman.org

Dated: April 5, 2013
Benjamin Edelman

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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

---------------------------------------------------------------)

)

Benjamin Edelman, )

 third-party complainant )

)

v. ) Docket DOT-OST-2013-0024

)

American Airlines, Inc. ) 

)

---------------------------------------------------------------)

I. My Complaint Properly Presents Practices Both Before and After the DOT‟s Notice 

of February 21, 2012........................................................................................................... 4

II. American and Systems Continue to Mischaracterize Carrier-Imposed Surcharges 

as “Tax” .............................................................................................................................. 5

A. American Employees Continue to Mischaracterize Carrier-Imposed Surcharges 

as “Tax” in Quoting and Canceling Award Travel......................................................... 5

B. American Employees Continue to Mischaracterize Carrier-Imposed Surcharges 

as “Tax” in Quoting Ordinary Paid Travel ..................................................................... 6

C. AA.COM “Itinerary Summary On Hold” Emails Systematically Mischaracterize 

Carrier-Imposed Surcharges as Tax................................................................................ 9

III. It Is Deceptive to Mischaracterize a Carrier-Imposed Surcharge as “Tax”........... 10

IV. AA Telephone Agents Regularly Quote Incorrect “Tax” without Any Special 

Customer Inquiry .............................................................................................................. 11

V. American Is Liable for Its Employees‟ Misstatements.......................................... 12

VI. I Properly Alleged that American Collects Fuel Surcharges that Are Not a 

Reasonable Estimate of Fuel Costs Above a Baseline...................................................... 13

VII. American Is Liable for the Fees It Collects for Travel on Other Carriers............. 14

VIII. American Is Liable for False Statements of “Tax” on Around-The-World 

Tickets that Are Ticketed by AA, No Matter What Agent Quotes the Fare..................... 15
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IX. The DOT‟s February 21, 2012 Notice Does Not Immunize Carriers from 

Consumer Claims Before or After That Date ................................................................... 16

X. The DOT Should Reject American‟s Extraneous Defenses.................................. 16

D. An Employee‟s Failure to “Completely Underst[an]d” a Clear Customer 

Request Cannot Excuse a Violation of the DOT‟s First Price Quote Rule .................. 16

E. My Call Recordings Are Accurate and Appropriate.......................................... 18

F. My Calls to the Executive Platinum Desk Are Representative of Standard Practice 

by American Reservations Employees ......................................................................... 20

G. I Have Received No Refunds or Other Compensation for the Practices at Issue ..

............................................................................................................................ 20

H. American Mischaracterizes the Refund I Previously Requested ....................... 22

I. American‟s References to Statements on AA.COM Are Irrelevant when AA 

Telephone Reservations Employees Make Contrary Statements ................................. 22

XI. DOT Should Order American to Provide Refunds to Affected Passengers, Insist on 

the Largest Assessment Available at Law, and/or Offset Refunds Against an Assessment.

................................................................................................................................ 24

XII. DOT Precedent Supports Considering the Aggravating Factors I Cite ................. 25

XIII. The Public Interest Favors Further DOT Investigation...................................... 26

REPLY OF BENJAMIN EDELMAN

1. My February 4, 2013 Complaint presented clear evidence of American 

Airlines employees misrepresenting carrier-imposed surcharge as “tax” in ordinary paid 

tickets booked by phone (pp. 1-2), in circle tickets booked by phone (p. 2), in award 

tickets booked by phone (pp. 2-5), in reaccomodating passengers after cancellation (pp. 

5-6), and in around-the-world tickets booked online (pp. 6-7). I also alleged fuel 

surcharges of impermissible amounts and not supported with required calculations (p. 7), 

misrepresentations of carrier-imposed surcharges in customer correspondence (pp. 7-8), 

and failure to disclose all applicable fees in the first fare quote (pp. 8-9). I supported 

these serious allegations with exceptional proof including carefully-recorded calls and 

contemporaneous screenshots. 
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2. American‟s Answer attempts to thin my Complaint by ignoring false 

statements occurring before April 21, 2012, by claiming that my proof is insufficient, and 

by seeking shelter in the fact that, even if American employees and systems made false 

statements about “tax,” the bottom line was correct. As detailed herein, these defenses 

fall flat a matter of law. I have offered ample evidence for the DOT to open a full 

investigation to determine the scope of the unlawful American practices I identified.

I. My Complaint Properly Presents Practices Both Before and After the DOT’s 

Notice of February 21, 2012 

3. My Complaint chronicles American staff and systems mischaracterizing 

carrier-imposed surcharges as “tax” both before and after the DOT‟s Notice of February 

21, 2012, and both before and after April 21, 2012 (sixty days after the publication of that 

Notice). 

4. American argues that “enforcement action based on ticket price quotations 

prior to April 21, 2012 would be inconsistent with the Notice” (Answer at pp.1-2). But 

the Notice does not call for the result American seeks. The Notice provides as follows: 

The office will provide those subject to the full fare advertising rule and 

49 U.S.C. 41712 60 days subsequent to the date of this notice to ensure 

they are in compliance before instituting enforcement action related to the

issues covered in this notice.

5. Under the plain language of the quoted provision, the DOT stated its 

intention not to bring enforcement action as to practices that completely ceased before 

April 21, 2012. But the DOT nowhere disavowed enforcement action as to practices that 

began before April 21, 2012 and continued after that date. If a single unlawful course of 

conduct began before that date and continued after that date, the Notice does not promise

to immunize the carrier for the portion of unlawful conduct preceding the Notice. To the 
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contrary, the delayed enforcement date serves only to protect carriers that wholly comply 

with the Notice by the date provided in the Notice.

II. American and Systems Continue to Mischaracterize Carrier-Imposed 

Surcharges as “Tax”

6. While American suggests that the practices at issue are largely in the past, 

my experience is sharply contrary. To complete the record and provide evidence that the 

practices I alleged are still ongoing, I offer the following subsections showing false 

statements made by American employees and systems after the submission of my 

Complaint. These further false statements confirm that, contrary to American‟s 

contention in its Answer, this matter is not moot.

A. American Employees Continue to Mischaracterize Carrier-Imposed 

Surcharges as “Tax” in Quoting and Canceling Award Travel

7. American employees continue to mischaracterize carrier-imposed 

surcharges as “tax” in quoting award travel, and I have also found that American 

employees make similar false statements when canceling award travel. 

8. On February 8, 2013, I called American Airlines telephone reservations 

staff to make an award booking for BOS-LHR. The representative quoted “tax” that was 

primarily a carrier-imposed surcharge. From the digital call recording1:

AA recording: Welcome to the Advantage Executive Platinum Desk! This call 

may be recorded. 

Agent: American Airlines, Executive Platinum. 

Edelman: Yes, for a new award travel. 

Agent: Okay I can help you with that. From where to where? 

Edelman: From Boston to London. 

Agent: Departing on what day? 

Edelman: February 10th, one-way. 

Agent: You are looking for the non-stop flight? 

 

1 Call recordings are posted to http://www.benedelman.org/airfare-advertising/americanairlines.html.
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Edelman: Yes please, in First please. 

Agent: Do you just need one seat? 

Edelman: Just one, just me traveling. Agent: I have one seat on British Airways 

flight 214 on Sunday, tenth of February out of Boston at 9:10 in the evening, get 

into London at 8:25am on Monday morning. It's 62,500 miles and the taxes are 

$438.20.

9. I issued this ticket with the genuine intent to travel on it, and I would have 

traveled on this ticket except that my plans changed in favor of other dates.

10. When I later needed to cancel this ticket, an American telephone 

representative indicated that the “taxes” would be refunded to my original form of 

payment. Here too, the agent misrepresented as “tax” certain charges that are actually 

carrier-imposed surcharges.2

11. The formal comment of Mike Borsetti is in accord, reporting an American 

representative mischaracterizing carrier-imposed surcharges as “tax” as of January 31, 

2013. See DOT-OST-2013-0024-0010 at p.1: “The representative misstated the price of 

the new itinerary to me as „taxes‟, when in reality the vast majority of it was in fuel 

surcharges.” 

B. American Employees Continue to Mischaracterize Carrier-Imposed 

Surcharges as “Tax” in Quoting Ordinary Paid Travel

12. American employees continue to mischaracterize carrier-imposed 

surcharges as “tax” in quoting ordinary paid travel, including misstatements of many 

hundreds of dollars on tickets with little or, I believe, no travel on other carriers.

13. On February 20, 2013, I put an itinerary on hold on AA.COM at the 

lowest available fare, then called American telephone reservations staff to request that the 

ticket be priced in a “B” fare. (I sought to use a restricted upgrade certificate not valid on 

 

2 Before placing this call, I did not consider the possibility that an American employee would make a false 

statement of “tax” as I canceled the ticket. I therefore did not record this call and do not have a call 

recording of it.
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the initial fare.) After an extended discussion in which the American representative 

struggled to find the B fare, I was quoted “tax” that was primarily a carrier-imposed 

surcharge. From the digital call recording:

AA recording: Welcome to the Advantage Executive Platinum Desk! This call 

may be recorded. 

Agent: American Airlines, Executive Platinum 

Edelman: Yes, could I give you a record locator? 

Agent: Yes, go ahead. 

Edelman: [reads record locator]

Agent: All right, and what did you want to change on this? 

Edelman: I wanted to try to price it in a different fare class, B as in Bravo. I don't 

need the changeability or refundability. Just much easier to upgrade with some 

upgrade certificates that I have. It looks like there might be a very good B-fare on 

this route. 

Agent: Well, let me check and see one moment. 

...

Agent: We're getting a rate of $1303.10, and that's the BLX going out and the 

BLW coming back. 

Edelman: Could you confirm the fare versus the tax for me, just jot it down here?

Agent: All right Mr. Edelman, thanks again for holding. Your taxes were $575.10. 

Your fare was $728.

14. After receiving this fare quote, I asked that the reservation be placed on 

hold. I later called back to make small changes to routing and dates. I was again quoted 

a “tax” that consisted primarily of carrier-imposed surcharge. From the recording:

AA recording: Welcome to the Advantage Executive Platinum Desk! This call

may be recorded. 

Agent: Executive Platinum Desk! This is [agent name omitted]

Edelman: Yes, could I give you a record locator? 

Agent: Yes, what is the locator? 

Edelman: [reads record locator] The outbound is just perfect. For the return I'd 

like to change to March 15th. 

Agent: March 15th? 

Edelman: Yes, and it'll be Boston to London. I don't need to go to Manchester 

after all. We'll see if that's possible. And I prefer to route via Chicago for a better 

night's sleep if I can. Uh, flight American 1081, connecting to 98 please. 
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Agent: If we keep it in B inventory, that would be $1325.50, Mr. Edelman. 

Edelman: What's the fare and what's the tax? 

Agent: Yes, it is 496 pounds is the base fare, the tax is... oh, in American dollars, 

that's $767, and it's, uh, $554.50 of taxes. Let me double-check. 

Edelman: OK, that adds up. 

Agent: Uh huh, that's correct sir, that's $554.50 of taxes.

15. Because I sought to pay in part with vouchers, I traveled to the 

Manchester, UK airport ticketing desk (the closest ticketing location to me on that day). 

At the airport, I requested a printout showing the total amount I paid, inclusive of 

vouchers. Airport staff provided the document shown in Attachment 1. The document 

reports “taxes” of GBP 359.92, which approximately matches the $554.50 to $575.10

quoted by American‟s telephone representatives. Two lines below, I believe that the 

document reveals that the largest “tax” is “YR.” I understand “YR” to be a code which 

travel professionals recognize as a carrier-imposed surcharge rather than a genuine “tax.” 

However, ordinary consumers have no way and no reason to know the meaning the label 

“YR,” particularly when it appears within the “tax” heading and particularly when the 

amount at issue is included within the total “tax.”

16. This ticket included only a single 151 mile segment on British Airways, 

MAN-LHR. Furthermore, I believe that the fare calculation (visible within Attachment 

1) indicates that even if I had chosen a routing wholly on American (e.g. MAN-JFKBOS-LHR or MAN-JFK-BOS-ORD-LHR), the same carrier-imposed surcharge would 

have been collected and would have been presented in the same way to me, both by 

telephone and in the written fare quote. 
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C. AA.COM “Itinerary Summary On Hold” Emails Systematically 

Mischaracterize Carrier-Imposed Surcharges as Tax

17. On April 3, 2013, I used AA.COM to search for award travel from Boston 

to London. I was quoted the required number of miles as well as “taxes & fees.” I 

selected an option labeled “Hold” to temporarily reserve the reservation.

18. I immediately received the email shown in Attachment 2.

3

 The price 

section of the email provides as follows:

19. The row labeled “Taxes” falsely reports that “Taxes” on this ticket are 

438.20 USD. The subsequent row labeled “Total Taxes” reports, again falsely, that 

“Total Taxes” on this ticket are 438.20 USD. In fact, these amounts consist primarily of 

carrier-imposed surcharge.

20. American may be expected to seek shelter in the fact that the preceding 

row reads “Taxes and Fees Per Ticket.” But the format and indentation of the collection 

of rows suggests that the “Taxes and Fees” heading encompasses, potentially, multiple 

lines to follow – some of which may be are “Taxes” and some of which may be “Fees.” 

When American subsequently presents only lines reading “Taxes,” and no lines reading

“Fees,” American necessarily (but falsely) tells consumers that the amount at issue on 

 

3

I present the email exactly as I saw it in Gmail, except that I have obscured the names of personal Gmail 

contacts who are by default presented by Google (left sidebar). Their names are irrelevant to this matter.
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this specific ticket consists solely of “Taxes” and not at all of “Fees.” In this context, the 

presence of the words “and fees” implies that other tickets may include fees, but that this 

ticket does not do so.

21. American made these statements entirely before purchase. Indeed, 

American presents a red “Purchase” button at both the top and bottom of the email. 

22. American may be expected to argue that prior statements on AA.COM 

correctly characterized the amounts at issue as “Taxes & Fees”. But American is obliged 

to be accurate in every statement to consumers, not just in some statements to consumers. 

Indeed, the DOT has previously found “unfair and deceptive in violation of section 

41712” a carrier that “properly listed” fare and tax on initial pages but later added a false 

statement of “Tax” that was not truthful. See February 21, 2012 Notice at p.2 (“... but 

the confirming page...”).

23. American cannot seek shelter in the hyperlink associated with the label 

reading “Taxes and Fees Per Ticket.” For one, this hyperlink is nonfunctional: the 

hyperlink mistakenly points to a relative URL, /i18n/disclaimers/taxfeedisclaimc.jsp , 

which is not a valid URL when referenced from an email. Clicking the hyperlink 

therefore yields no popup, notice, or other information. The correct URL, 

http://www.aa.com/i18n/disclaimers/taxfeedisclaimc.jsp , is a valid web page but offers 

no support for American‟s false characterization of a carrier-imposed surcharge as “Tax.”

III. It Is Deceptive to Mischaracterize a Carrier-Imposed Surcharge as “Tax”

24. Facing the indisputable evidence in my Complaint that multiple American 

employees mischaracterized carrier-imposed surcharges as “tax,” American resorts to 

arguing that these misstatements were not “actual material consumer deception” (Answer 
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at p.3). But the DOT has already found that when carriers use the term “taxes” to 

describe carrier-imposed fees, those practices “were deceptive and in violation of section 

41712” (DOT February 21, 2012 Notice at p.1) (emphasis added). 

25. American attempts to recast the question as “whether American actually 

deceived any consumer regarding the full amount to be paid for his or her air 

transportation” (Answer at p.3, emphasis added). But this is contrary to the DOT‟s 

February 21, 2012 Notice. Rather, the notice confirms that a false statement of “tax” is 

deceptive in and of itself, even if the quoted total is accurate.

26. There is ample intuitive, legal, and social science basis for the DOT‟s 

prior conclusion that a false statement of “tax” is unfair, deceptive and contrary to the 

public interest. A full briefing of this question appears to be beyond the scope of this 

docket, particularly in light of the DOT‟s prior conclusion on this exact subject.

IV. AA Telephone Agents Regularly Quote Incorrect “Tax” without Any Special 

Customer Inquiry

27. American‟s Answer suggests that its employees‟ statements are in some 

way unusual and limited to answers to my “oral inquiries” (Answer at p.4). American 

mischaracterizes the transcripts in my Complaint. In the majority of the examples I 

provided, American employees quoted “tax” without any special prompting from me and 

without any special “inquiry” from me about tax. 

28. Specifically, of the six call recordings in my initial Complaint, four entail 

American employees affirmatively but falsely quoting “tax” without any request from 

me. See the four transcripts at heading “Ongoing Misrepresentations by American 

Airlines Telephone Representatives: Award Bookings” in my Complaint (pp. 2-5). My 

January 14, 2012 test call is representative: After confirming that award seats were 
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available on the dates I requested, and without any special request from me, the American 

employee stated “All right, round trip in first class. It's going to be a total of 125 thousand 

miles and it‟s giving me taxes of $938.80.” The relevant transcript excerpts are provided 

in my initial Complaint, and full call recordings are available at 

http://www.benedelman.org/airfare-advertising/americanairlines.html . 

29. My February 8, 2013 booking (presents at paragraph 8 above) offers two 

additional, and more recent, example of American employees mischaracterizing carrierimposed fees as “tax” without a customer affirmatively inquiring as to whether the 

charges are fare or tax.

V. American Is Liable for Its Employees’ Misstatements 

30. American seeks shelter in the fact that “American has provided to its 

reservations agents ... all of the information necessary to fully and accurately” present 

fares (Answer at p.4). But American must do more than provide accurate information to 

its employees. Rather, American must assure that its employees are in fact truthful in 

their statements to customers. My Complaint provides ample evidence that numerous 

American employees in multiple departments (including Executive Platinum 

reservations, the Around the World desk, and customer correspondence) mischaracterize 

carrier-imposed fees as “tax.” Whether these misstatements result from the information 

available to American‟s employees, the training employees have received, the computer 

displays provided to employees, or other causes to be determined by DOT, American is 

liable for its employees‟ misstatements. It is no answer to claim that employees had 

accurate information available and could have made accurate statements had they chosen 

to do so. They did not. They are employees acting for the benefit of their employer, and 
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under the well-established principle of respondeat superior, American is liable for their 

actions.

31. Nor is it any answer to claim that American‟s employees were 

“confus[ed]” (Answer at p.14). American‟s employees made unqualified, unequivocal, 

and unambiguous statements about “tax” which simply did not exist. Multiple employees 

made the same false statements in the same circumstances. The false statements were 

repeated both orally and in writing. Call recordings and emails reveal no sign of 

“confusion,” misunderstanding, or deviation from training or standard practice.

VI. I Properly Alleged that American Collects Fuel Surcharges that Are Not a 

Reasonable Estimate of Fuel Costs Above a Baseline

32. My complaint alleged that when American collects a fuel surcharge for 

travel on British Airways, the surcharge “is not a reasonable estimate of the perpassenger fuel costs incurred by the carrier above some baseline” (Complaint p.7). 

American claims that my Complaint offers “no support” for this claim (Answer p.9). 

American is mistaken. Specifically, my Complaint states: “See the evidence in my 

companion complaint, „complaint as to price advertising violations by British Airways‟”

(p.7). My British Airways complaint was formally docketed as DOT-OST-2013-0025,

just one day after my Complaint in this matter; it is prominently available on my web site

(cross-linked with the call recordings that American‟s counsel have reviewed), and 

otherwise publicly known. In light of the clear citation in my Complaint, American 

cannot seriously claim to be unaware of my companion complaint as to British Airways.

My arguments and factual support are properly before American, and American should 

answer in substance.
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VII. American Is Liable for the Fees It Collects for Travel on Other Carriers

33. American understates its control over the fees that it collects. 

34. As a threshold matter, American is under no obligation to collect any 

surcharge it deems unlawful. For example, if American concludes that British Airways 

fuel surcharges are not a reasonable estimate of fuel costs above a baseline, or are 

otherwise unlawful, American could refuse to sell a British Airways flight, or any other 

flight. Even if, as American argues, “the fees associated with award travel booked by 

American on another airline are within the discretion of that airline,” American is under 

no duty to sell tickets with fees it believes to be unlawful; it could instead refuse to sell 

tickets that would be subject to an unlawful fuel surcharge.

35. Furthermore, contrary to American‟s Answer at p.9, American does far 

more than “arrange” travel on British Airways. Rather, American describes the charges 

to customers, seeks customers‟ agreement to pay the charges, charges customers‟ 

payment cards, serves as the merchant of record, and issues a ticket for travel. These 

many aspects of control rightly oblige American to comply with applicable law as to such 

charges.

36. American‟s special relationship with British Airways makes it particularly 

unconvincing for American to argue that the surcharges at issue are “imposed by British 

Airways” and “within the discretion of that airline,” or to argue that that “American 

merely collects” the fees at issue (Answer at p.9). Just five years ago, American and 

British Airways sought and received DOT permission to coordinate pricing for their joint 

services. See Joint Application for Antitrust Immunity, DOT-OST-2008-0252-0001 at 

p.14 (“The Joint Applicants will cooperate in establishing fares, rates and pricing 

strategies for services provided under their alliance agreements and the JBA”). American 
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and British also indicated that they would “broadly shar[e] revenue on a metal neutral 

foundation” (Id. at p.11). There can be no serious dispute that carrier-imposed surcharges 

and fuel surcharges are “revenue” and “fares, rates and pricing” within the meaning of

these statements. Thanks to the full antitrust immunity DOT provided to American and 

British Airways based on their representations in the 2008-0252 docket, American both 

influences and benefits from British Airways surcharges. Having sought these privileges 

from DOT and represented to DOT that it would use them, American cannot now 

disavow them by pushing all responsibility to British Airways.

37. See also the Comments of Mike Borsetti, DOT-OST-2013-0024-0011 at 

p.3 (“American directly benefits from the „British Airways‟ fuel surcharges it charges on 

awards”).

VIII. American Is Liable for False Statements of “Tax” on Around-The-World 

Tickets that Are Ticketed by AA, No Matter What Agent Quotes the Fare

38. Under settled DOT authority, American is equally liable for misstatements 

on the OneWorld Around the World booking tool. American argues that that tool “is the 

product of oneworld Management Company and not American Airlines” (Answer p.8), 

suggesting that American is not liable for false statements made by that tool. But the 

DOT has long held that airlines are responsible for the actions and omissions of their 

agents, including travel agents acting on their behalf. The DOT most recently restated 

this principle in its Final Rule for Enhancing Airline Passenger Protections, which at 

23143 reaffirms that “airlines have always been legally responsible along with their 

agents for their agents‟ advertising violations and they will continue to be under the 

revised rule.” American is jointly and severally liable for the wrongful actions made by 

its agent oMC in the course of advertising pricing for American electronic tickets. 
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IX. The DOT’s February 21, 2012 Notice Does Not Immunize Carriers from 

Consumer Claims Before or After That Date

39. In my March 25, 2012 letter to Gary Kennedy, I sought a refund for 

carrier-imposed surcharges that had been falsely described to me, prior to purchase, as 

“tax.” See Attachment 12 to my Complaint. Mr. Nelson‟s June 26, 2012 response

denied that refund in part because, he argued, the DOT‟s February 21, 2012 Notice only 

became effective on April 21, 2012 and thus, he argued, could not apply to the practices I 

complained about. See Attachment 13 to my Complaint.

40. The plain language of the DOT‟s February 21, 2012 Notice confirms that 

the Notice does nothing to extinguish meritorious claims a consumer might have, as to 

conduct occurring either before or after that Notice. Neither Mr. Nelson‟s letter nor 

American‟s Answer quotes or cites any contrary provision of the Notice. American‟s 

Answer characterizes this portion of our dispute as me “tak[ing] issue with the legal 

position taken by American” and me “disput[ing] American‟s reading of the notice.” But 

American does more than merely misinterpret the Notice. Rather, American seeks to use 

the Notice as a shield to meritorious consumer claims. The DOT should not allow its 

Notice to be misused in this way. Instead, the DOT should explicitly advise carriers that 

the Notice offers neither support nor protection for a carrier denying refunds to customers

who suffered misrepresentation of carrier-imposed fees as “tax” prior to purchase. 

X. The DOT Should Reject American’s Extraneous Defenses

D. An Employee’s Failure to “Completely Underst[an]d” a Clear Customer 

Request Cannot Excuse a Violation of the DOT’s First Price Quote Rule

41. My Complaint alleged that after I requested award travel for two 

passengers I described as “relatives,” an American telephone reservations representative 

failed to mention telephone ticketing fees that American later required me to pay before a 
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ticket could be issued. I claimed that this practice violated the DOT‟s requirement that 

“the first price quote presented must be the full price, including all taxes, fees and all 

carrier surcharges” (emphasis added). See Complaint, p.8.

42. In its Answer, American responds that “Since virtually all calls to the 

AAdvantage Executive Platinum desk are by members for their own travel, such that no 

telephone reservation fees normally apply, the first agent may not have completely 

understood the nature of the transaction and, therefore, the agent may have inadvertently 

failed to mention the applicable telephone reservations fee” (p.12). But the agent had 

specifically asked me for the names of both passengers, and I gave two names both 

distinct from my own (differing first names and surnames). I believe I also provided date 

of birth for both passengers (both different from my own date of birth), consistent with 

American‟s standard requirement that dates of birth be provided when a reservation is 

placed on hold. I believe I had even casually indicated my relationship with the travelers. 

American‟s computerized records should be in accord, confirming that passenger names 

and dates of birth were both entered when the itinerary was first placed on hold, and 

necessarily confirming that I was not among the passengers.

43. If an American reservations employee mistakenly believed that I was a 

member of the traveling party, that belief was erroneous. Specifically, that belief was

irreconcilable with the undisputed facts of my request (including my providing two 

passenger names not my own and two dates of birth not my own) and manifestly 

unreasonable. In any event, the DOT “first price quote” rule offers no exception for 

employee error. Rather, after an American employee quoted a fare for the itinerary I 

requested, American was obliged to honor that fare. Instead, American refused to do so, 
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despite multiple requests from me that American reconsider this position (including the 

two replies in Attachment 11 to my Complaint).

44. American also errs in arguing that it did not violate the “first price quote 

rule” because the full price was made known before I purchased the ticket. The rule 

could not be more clear: “the first price quote presented must be the full price” (emphasis 

added). The plain language of the rule leaves no room for a carrier to add additional fees 

in a subsequent phone call.

E. My Call Recordings Are Accurate and Appropriate

45. American‟s Answer questions whether my call recordings are authentic. 

Specifically, in its Supplement to Answer at p.1, American claims that “the website 

recordings appear to have been edited.” I edited the files only for listeners‟ convenience, 

specifically to remove irrelevant discussion (omitting silence and discussion of 

extraneous matters such as ticketing deadlines and change penalties). Each cut is marked 

with a distinctive “fast-forward” sound. The limited edits make no change to the 

discussion relevant to the practices at issue.

46. For readers‟ convenience, the transcripts in my Complaint similarly 

present only the relevant material. I saw no need to transcribe (or lengthen my Complaint

to include) irrelevant sections with the additional details discussed above. I removed no 

relevant information.

47. As indicated in my initial Complaint, I retain full call recordings in digital 

form. On March 23, 2013, I indicated to AA counsel that I would be happy to provide 

full digital recordings (without any edits or cuts of any kind). On March 25, 2013, I 

modified http://www.benedelman.org/airfare-advertising/americanairlines.html to 

provide full call recordings (edited only to remove personal information such as my 
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AAdvantage number, all agent names, all record locators, all payment card numbers) but 

retaining all other extraneous discussion.4

48. Importantly, American itself authorized my preparation of these call 

recordings. American admits that its telephone reservation system automatically and in 

every instance states “this call may be recorded,” a statement which I included in each 

transcript and in each excerpted recording. The literal meaning of this statement is to 

authorize both American and any interested customer to record the call if they care to do 

so. This grant of permission is unqualified and unambiguous. Even if it were 

ambiguous, standard principles of contract interpretation would require that any 

ambiguity be construed in my favor and against American, further buttressing and 

reaffirming my authorization to record the calls. Finally, American employees providing

fare quotes to customers have no reasonable expectation of privacy in their statements 

(particularly since their employer already puts them on notice that they may be recorded), 

nor does American have any proper grounds to object to such recordings.

49. Even as AA criticizes my call recordings as improper, American

elsewhere criticizes my failure to prepare and provide recordings of all the calls at issue. 

See Answer, footnote 8 at p.11, criticizing a section of my Complaint as unreliable in part 

because the call was “unrecorded.”5 See also p.12, criticizing a section of my Complaint

as difficult to evaluate because “there is no recording of the call to verify the details of 

this telephone exchange.” But I and others had no specific reason to expect deceptive 

 

4 As to the two calls discussed in Section II.B of this Reply, the calls are particularly lengthy and contain 

extended discussion as to my travel plans. I therefore consider the full call recordings unsuitable for public 

posting, but I stand ready to provide the full call recordings to AA counsel and to DOT. My excerpted 

transcripts and excerpted call recordings present all material relevant to the practices here at issue.

5 American also criticizes my complaint as “second hand” to the extent that it relies on interviewing my 

colleague Shawn Cole. For a first-hand account directly from Mr. Cole, see DOT-OST-2013-0024-0009. 

In all material respects, Mr. Cole‟s first-hand submission matches my complaint.
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practices in these calls with American employees, and in that period it was not my 

standard practice to record calls with American employees. To the extent that I do have 

call recordings, my recordings should be applauded for providing an exceptionally clear 

basis for DOT to evaluate the American practices I experienced. There simply is nothing 

improper about my call recordings.

F. My Calls to the Executive Platinum Desk Are Representative of Standard 

Practice by American Reservations Employees

50. In its reference to my calls to the Executive Platinum Desk (Answer at 

p.3), American seems to suggest that my experience in some way results from my use of 

that department rather than some other part of American. I understand that American‟s 

Executive Platinum Desk representatives are telephone reservations employees with 

supervisor status. As such, they might reasonably be expected to provide service of at 

least the quality and accuracy of other American reservations employees. Furthermore, 

my Complaint also demonstrated misstatements from other departments (including the 

Around the World Desk and passenger correspondence). American‟s repeated references 

to the Executive Platinum Desk are irrelevant to my Complaint.

G. I Have Received No Refunds or Other Compensation for the Practices at 

Issue

51. American‟s Answer occasionally suggests that I have received refunds or 

other compensation from American. For example, in Answer footnote 1 (p. 3), American 

says that “from time to time Mr. Edelman corresponded with American seeking refunds 

for various reasons and on several occasions American agreed to do so as an 

accommodation to Mr. Edelman.” But none of these refunds were in any way related to 

the matters raised in my Complaint. I believe most or all of the refunds I received were 
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exactly as provided by American‟s tariff (e.g. voluntary refunds of refundable tickets, 

involuntary refunds after flight cancellation).6 These refunds are entirely irrelevant.

52. American also suggests that I have received AAdvantage miles “on 

numerous occasions in the past” (Answer p.16). I believe each of these credits was an 

ordinary customer service matter (e.g. broken seat, involuntary downgrade for which I 

agreed to accept miles rather than cash), unrelated to questions of pricing or price 

advertising and also entirely irrelevant. In a million miles of paid flying, such incidents 

are to be expected. They are irrelevant to the dispute at hand.

53. In its Supplemental Answer at ¶37, American claims to have provided a 

travel voucher in an amount matching the telephone ticketing fee that was not disclosed 

in the first fare quote. I received no such voucher. In a brief investigation, American 

counsel and I were unable to determine why the transmission email did not reach me. In 

any event, even if I had received the voucher, it would have been restricted in various 

ways (e.g. usable only in a certain time period for certain kinds of tickets) and hence less 

valuable than the funds charged as a ticketing fee. Thus, even if I had received the 

voucher, it would not moot my Complaint of a fee impermissibly not included in the first 

fare quote. Furthermore, American indisputably previously refused to refund the fee 

(including the multiple denials presented in Attachment 11 to my Complaint). In 

addition, the purported voucher was sent, according to American‟s records, fully four 

months after my first message to American on this subject, fully two months after my 

final message to American on this subject, and after at least three separate denials from 

 

6

I recall one complaint relating to price advertising: I once questioned American‟s failure to disclose an 

“upgrade tax” at the time in the manner I believed to be required by law. American provided either a 

refund or a voucher, which resolved this dispute. This was at least five years ago and wholly unrelated to 

the surcharge matters raised in my complaint in this docket.
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American on this subject (including internal escalation, per Attachment 11: “... 

reaffirmed our decision ...”). The delay and prior denials confirm that American‟s policy 

was to collect and to retain a fee not disclosed in the first fare quote, notwithstanding the 

DOT‟s “first fare quote” requirement.

H. American Mischaracterizes the Refund I Previously Requested

54. American mistakenly claims that my letter of December 31, 2011 to 

American‟s counsel sought “a refund of $8,261.60” (Answer p.2). The plain language of 

the letter reveals otherwise. 

55. I wrote that “the agent told me I had been charged „fuel tax collection by 

British Airways‟ of $309.60, $251 (for each of two passengers), and $502.” Because no 

such “tax” exists, I sought a refund of any amount that was “label[ed] as „tax‟ [but] is not 

required by any law or regulation, and that is not remitted to any government, airport, or 

similar authority.” See Attachment 3 to my Complaint.

56. The amount at issue, as to the three tickets there at issue, is 

$309.60+($251*2)+$502=$1,313.60. Contrary to American‟s allegation, I never 

requested a refund of $8,261.60, not in my December 31, 2011 letter nor anywhere else.

I. American’s References to Statements on AA.COM Are Irrelevant when AA 

Telephone Reservations Employees Make Contrary Statements 

57. American has repeatedly sought shelter in information that was available 

at AA.COM, even when its telephone reservation employees provided false statements of 

“tax.” For example, in its Answer, American relies on “the AA.com booking path which 

clearly and correctly labeled all applicable taxes and carrier charges” (p.2). Similarly, 

Mr. Kennedy‟s January 11, 2012 letter to me (Complaint, Attachment 4) presents 

AA.COM statements as to the existence of fuel surcharges as well as, American argues, 

correct presentation of actual “tax” at AA.COM.
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58. When a customer purchases a ticket in a telephone call to an American 

telephone reservations employee, statements on AA.COM are irrelevant. Crucially, for 

each of the tickets for which American seeks shelter in AA.COM statements, I purchased 

the ticket via a telephone call to American telephone reservations employees. I clearly 

conveyed this fact to American in my letter of March 25, 2012: “In your letter of January 

11, you describe the messages that might have appeared on screen had I used AA.COM 

to purchase certain travel .... But in fact I was unable to purchase this ticket on AA.COM

due to its complexity .... I therefore ticketed this itinerary via AA telephone reservation 

agents” (Complaint, Attachment 12) (emphasis added). I also pointed out that during the 

relevant period, award travel on British Airways could only be booked by telephone and 

not on AA.COM, making it particularly unlikely that customers would look to AA.COM 

for statements about the taxes or fees that apply to such bookings. Finally, in the event of 

a conflict between a general statement on AA.COM and a personalized fare quote from a 

telephone reservations employee processing a customer‟s specific itinerary, the customer 

rightly and reasonably relies on the latter. Accurate general statements somewhere on 

AA.COM cannot cure the false statements made by an American telephone employee in 

response to a customer‟s individual request.

59. I have been abundantly clear that I ticketed these tickets by making 

telephone calls to American employees. Yet AA continues to describe these itineraries as 

“air fare purchases [I] made on aa.com” (Answer p.2) and to seek shelter in statements 

that could have appeared at AA.COM. The DOT should reject American‟s reliance on 

these AA.COM statements as irrelevant, illogical, and inapt.
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XI. DOT Should Order American to Provide Refunds to Affected Passengers, 

Insist on the Largest Assessment Available at Law, and/or Offset Refunds 

Against an Assessment

60. Relying on Statland v. American Airlines, 998 F.2d 539, 541 (7th Cir. 

1993), American argues that it is “beyond the DOT‟s jurisdiction to order” refunds to 

ticket purchasers (Answer at p. 14). But Statland holds nothing of the kind. In Statland, 

American Airlines withheld funds which a customer claimed should have been refunded. 

The customer filed suit in federal court under Section 411(b) of the Federal Aviation Act, 

which the Statland court rejected, holding that there is no private right of action under 

411(b). This is inapposite to the matter at hand. The unavailability of a private right of 

action in federal court in no way implies that the DOT lacks jurisdiction. Quite the 

contrary, the Statland court explicitly instructed that plaintiff to proceed to the DOT: The 

final sentence of the decision provides that “[i]f [Statland] wants American to change its 

ticket refund policies, she may complain to the Department of Transportation.”

61. Other than its misplaced reliance on Statland, American offers no 

authority for its contention that the DOT lacks authority to order refunds to affected 

passengers.

62. In the event that the DOT nonetheless concludes that it lacks the authority 

to order American Airlines to provide refunds to affected passengers, or that that the 

DOT otherwise declines to order American to do so, the DOT should impose the largest 

assessment available at law. While giving appropriate weight to any mitigating factors

American may raise, the DOT should note American‟s considered and repeated refusal to 

offer refunds even to passengers who capably document the false statements made by 

American representatives and who specifically request such refunds. American‟s refusal 
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to provide such refunds – retaining ill-gotten gains from false statements by its 

employees and its systems – is proper cause for a larger assessment.

63. Finally, if the DOT declines to order American to make refunds to 

affected passengers, DOT should provide in its assessment that if American makes 

refunds to affected passengers, some or all of those refunds are offset against the 

assessment resulting from this matter. See e.g. Spirit Airlines Inc. Violations of 49 USC 

§41712 and 14 CFR 399.84, docket OST-2008-0031-0019, a consent order resulting 

certain Spirit price advertising practices. The consent order in that matter provided that 

the assessment “may be offset for verified refunds paid to customers for ... fees charged 

to customers in violation of” applicable law and regulation (p.3).

XII. DOT Precedent Supports Considering the Aggravating Factors I Cite 

64. American argues that the “aggravating factors” I cite are not “worthy of 

weight” in the DOT‟s proceedings (Answer at p.15 and Supplement at ¶47). But DOT 

has repeatedly cited many of these same factors. See e.g. DOT-OST-2012-0002 Order 

2012-10-1, British Airways Plc, Violations of Articles 17 and 19 of the Montreal 

Convention, 14 CFR 399.84 and 49 U.S.C. §41712, citing “the nature and extent of the 

violations described herein, and the size and sophistication of the carrier” as factors to be 

considered in setting the amount of the compromise assessment. Page 10 of my 

Complaint noted several of the same factors that the DOT flagged in its 2012-0002 

decision as to British Airways. These factors deserve weight for the same reasons that 

led DOT staff to apply the factors in the British Airways matter and in other matters.
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XIII. The Public Interest Favors Further DOT Investigation

65. The public interest favors further DOT investigation due to the following 

factors:

66. American employees and systems made statements that were literally 

false – asking consumers to pay “tax” in amounts that never existed. Literal falsity, in 

statements made to customers as to price prior to purchase, is inherently unfair and 

deceptive and favors further investigation by DOT to determine the full scope of activity.

67. The amounts at issue are substantial. American regularly charged many 

hundreds of dollars of nonexistent “tax” on a single ticket.

68. American‟s false statements are likely to deceive consumers into believing 

that government taxes and fees associated with travel are higher than is actually the case.

69. American‟s false statements inflate users‟ understanding of the value of 

American‟s AAdvantage program. American‟s false statements cause consumers to 

believe that their “award” redemptions require only cash payment of genuine 

government-imposed taxes, when in fact there are large carrier-imposed surcharge 

copayments. American‟s false statements thereby induce consumers to ascribe greater 

value to AAdvantage miles than is actually the case, causing consumers to endeavor to 

earn AAdvantage miles to a greater extent than they otherwise would.

70. American‟s misstatements of “tax” are likely to extend beyond the specific 

areas I have uncovered. I have personally found such misstatements in seven contexts 

(telephone booking of paid tickets, telephone booking of award tickets, telephone 

bookings of circle tickets, telephone cancelation of award tickets, customer 

correspondence, online booking of circle tickets, and online award hold confirmation 

emails) and I have heard from others about similar misstatements in two contexts 
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(reaccommodation after cancellation and reaccommodation after aircraft downgrade). 

These myriad contexts suggest that other contexts are probably unknown. Indeed, I 

uncovered American‟s false statements in online award hold confirmation emails only on 

April 3, 2013. A DOT investigation is likely to uncover other contexts, unknown to me 

and not disclosed by American, in which American employees and systems 

mischaracterize carrier-imposed surcharges as “tax.”

71. Further DOT investigation can appropriately expand the factual record. 

My Complaint presented only those practices of which I have knowledge, based on my 

own travels, the test calls I performed, and (where indicated) the experiences of others 

who both noted improprieties in their experiences and conveyed their experiences to me. 

In contrast, DOT can obtain superior evidence including call recordings prepared by 

American in its ordinary course of business (which may reveal other false statements 

made to other customers); training materials, scripts, and on-screen displays that facilitate

the oral statements of American‟s telephone representatives (which may reveal how 

employees were trained to present carrier-imposed fees); templates and change logs for 

web site fare quotes and receipts (which may reveal what statements American systems 

made to customers on an automated basis, including the full time period during which 

these statements were made); and customer complaints (which may reveal whether other 

consumers recognized and complained about improprieties, and if so how American 

responded to those complaints).

72. The public interest also favors further DOT investigation because 

American‟s actions stand sharply in contrast to DOT regulation and to the DOT‟s 

February 21, 2012 Notice. The DOT gave carriers every opportunity to comply with 
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DOT‟s requirements, including a 60-day enforcement delay. Now that there is evidence 

that American did not comply, DOT should endeavor to determine the full scope of that 

noncompliance.

Pursuant to Title 18 United States Code Section 1001, I certify that I have not in 

any manner knowingly and willfully falsified, concealed or failed to disclose any material 

fact or made any false, fictitious, or fraudulent statement or knowingly used any 

documents which contain such statements in connection with the preparation, filing or 

prosecution of the pleading. I understand that an individual who is found to have violated 

the provisions of 18 U.S.C. section 1001 shall be fined or imprisoned not more than five 

years, or both

Respectfully submitted,

Benjamin Edelman
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Attachment 1
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Attachment 2
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Certificate of Service

I hereby certify that I have, this 5th day of April, 2013 caused a copy of the foregoing 

Reply to be served by electronic mail on the following persons:

Robert Silverberg, Esq. rsilverberg@sgbdc.com

Samuel Podberesky, Esq. sam.podberesky@dot.gov

_____________________

Benjamin Edelman