Originally Posted by
vision20
Here is the problem with your arguments.
1) Although I do agree with intents 1) and 2) you really didn't read the DOT reg very carefully. They specifically outlined 3) to include (and please read this carefully) "situation where a carrier mistakenly offers an airfare due to a computer problem or human error and a consumer purchases the ticket at that fare before the carrier is able to fix the mistake". Why? They state very overtly that it is UNFAIR. There is nothing in the regulation that indicates that the consumer needed to "know" it was a mistake. That is completely irrelevant. The issue is FAIRNESS. They recognize that a consumer will make plans based on the purchase price which includes nonrefundable lodging, transportation etc. Since much of this also affects also same-day travelers, they decided not to impose a time-restriction.
2) There was no "gaming of the system". The term "gaming" seems to imply that the users fraudulently broke into the system to produce these fares. All of these consumers simply used the site as the site was designed. The address as others have already indicated is irrelevant as well. Continuing to harp on the "manner in which the system was accessed" really shows poor understanding of global e-commerce. Only a person who does not routinely make purchases outside of US would think of this as "gaming" the system. To give you a simple example, let's say Katie Melua's new CD was being sold on the UK version of Amazon for $.99 at 90% less than what it was selling on the US version of the site. Would it be considered "gaming the system" if consumers went to that site and purchased the CD to have it shipped to the states? Hardly.
The DOT reg is not divorced from its purpose as I CLEARLY indicated. The reg specifically states its purpose which fits this scenario EXACTLY. That is why UA is repeatedly trying to frame this as a "third-party" error, which as we all know is another faulty argument doomed for failure.
Ultimately I don't know how the DOT will respond either but I'm hopeful they will do the right thing.
1. You assume that because the agency said that it is generally unfair, that means that every single expected application of the principle is unfair.
Consider this example. A lot of people criticize US drug laws as draconian. It is unfair, they argue, to lock up casual drug users for long sentences. However, suppose there is a local drug dealer who sells hard drugs exclusively to young children. That drug dealer is prosecuted under the same law, the Controlled Substances Act.
The Controlled Substances Act can be both GENERALLY unfair and totally fair when applied to that particular drug dealer.
The DOT certainly did not go through and hypothesize every single possible scenario in which a mistake fare was offered. Rather, they made a rule based on the principle of protecting people who purchased such tickets and then acted in reasonable reliance thereon, only to later face a demand for a much higher fare or cancellation of their trip. That, the DOT determined to be unfair.
Do you really believe that the DOT also determined that it would be unfair to cancel, within a few hours, the ticket of a person who deliberately exploited an error in the coding of an airline's website by engaging in conduct that could be called dodgy-- purchasing in a currency they had no reason to use and perhaps including an inaccurate credit card billing address-- to get a fare that's 100 fold too low?
I don't think that the DOT ever made THAT determination. Maybe they did. Or maybe they determined that they didn't want to go down that road even though they knew it was a possibility. I think that's your best hope.
But I suspect the DOT is likely to see the manner of ticketing as relevant here.
2. "Gaming" is different than fraud (though bear in mind that with respect to RESCISSION of a contract, fraud doctrines do not require a showing that the buyer lied, merely that he or she misled or did not tell the full truth). If you have ever played poker, there's a distinction between cheats and angle shooters.
A cheat is someone who deliberately violates explicit rules. For instance, putting cards up your sleeve is cheating. The equivalent here might be a person who uses a stolen credit card to purchase an airline ticket, and flies on it. That's cheating.
An angle-shooter is someone who always maintains an argument that he or she is in technical compliance of the rules, but does not believe there is any such thing as the "spirit of the law" and believes that any action that maintains technical compliance but pursues an advantage is permissible.
An example in poker is a player who, while the player to her right is deciding how to act, makes a motion with her cards as if to fold them. The player to her right then bets out, and rather than folding, she raises. According to the rules, her action out of turn is not binding, and she is entitled to raise. However, she is shooting an angle-- doing something in technical compliance with the rules but which gives her a weak claim should something go wrong.
And that last part is the point-- let's say she makes that folding motion and the cards fly out of her hands and into the muck. If she has had a history of trying to trick players with that action, do you think the floorman is going to allow her to retrieve her cards?
I am undecided as to exactly what representations were being made by United's customers here. I do think there are plausible arguments that you weren't EXACTLY asked for your residence. But at the same time, you WERE asked a bunch of questions that at least are related to residence, and those questions were answered in a way that they would not have been answered, in most instances, absent the fact that the user knew there was a mistake fare that could be claimed if the buyer appeared Danish to the website.
I think that's clearly a form of gamesmanship. It's shooting an angle. And I'm coming to believe that a number of people don't realize that there are gradations of user conduct that fall somewhere between "full and complete adherence with the letter and spirit of all regulations and complete and upfront dealing without relying on technicalities of any sort" and "despicable fraud".
I am suggesting that "gaming" is a good description for such in between cases. If you think there's a better description, however, I am all ears.
Finally, don't read too much into United's invocation of "third parties". They are not required to reveal their legal arguments to you. I assure you, if their lawyers aren't screaming from the rooftops about user conduct to the DOT, they aren't doing their jobs.