Making things up doesn't actually effect whether you are in violation of the statute.

The statute specifically applies to obtaining transportation, on a common carrier, in violation of the rules of the common carrier. The statute applies when the form of payment is contrary to the applicable rules (award miles sold, in violation of the program rules).

Moreover, I don't think that you can find any authority to suggest that a criminal statute relating to sales of mileage is preempted by the federal law in the area. What federal law do you think says that it is legal to sell a ticket purchased with mileage?

Neither does it affect it. Then why do you insist on doing so?

And selling miles or award tickets is in no way a violation of the rules of the carrier. You are confusing carrier and loyalty program. Mileage programs are not the carrier in any instance. Violating a Mileage Plus rule is not a volation of a United Airlines rule.

None, but federal law says that no state or local government may make any laws pertaining to air travel. Period.

While I appreciate your extensive posting to FT (about 10 times more posts, just since 2004, than I have posted as an "Original" member), I don't want other people to be confused by the incorrect information in your post. So, see my clarifications below.

Before you try to play word games it would be helpful if you checked a dictionary. I correctly used the word "effect" as in "cause [making up facts] and effect [applicability of statute]." But don't feel badly - your mistake of confusing the words "effect" and "affect" is a common one according to Wikipedia.


As you might know, I have been an attorney for 28 years. I don't know if you have any formal legal training. I am not saying that all lawyers agree and I am not saying that a non-lawyer can't debate a legal topic. But I am saying that you seem to be using a "non legal" approach to this discussion, which doesn't work well when you are discussing the applicability of a criminal statute.

You refer specifically to United, where you apparently have the most experience. And you claim that there is a relevant legal distinction between United (the common carrier) and its loyalty program. So I went to their rules, and the first rule says, in part "Mileage Plus membership and its benefits are offered at the discretion of United Airlines and its affiliated companies (collectively, "United")". And rule#8 says "The sale or barter of any such mileage, certificates, awards or benefits other than by United is expressly prohibited." So the use of an award ticket, which has been sold (or otherwise transferred in violation of the rules) is a violation of the rules of United. Finally, they use the name "Mileage Plus" for their program. This term is a registered trademark, so I went to the records of the US Patent & Trademark Office which indicates that "Mileage Plus" is another name for certain services provided by United Airlines. In fact, the registration shows that it is for "Transportation of Persons, Mail and Property by Air."

In other words, from the information I have reviewed, the "loyalty program" (as you call it) IS United (the common carrier). And, reading the statute, it is clear that it was intended to cover tickets and what you might refer to as "awards."


Unfortunately, I believe the information you have posted here is wrong. (My prior message tried to give you an "out", by requesting that you post some authority other than your opinion, but you declined to accept.)

What we are referring to is preemption. While there are many areas in which states are prohibited from involvement in air travel, I am unaware of any cases which would prohibit a state criminal statute such as the one we are discussing. Once again, if you have any reference, I would be happy to consider it.

As a brief piece of information, here is an extract from an article published in Trial magazine:

"Express preemption is based on the actual language of a federal statute and is found when Congress expresses a clear intent to preempt state law. (1) It is well-settled law that the Federal Aviation Act of 1958 did not expressly preempt state regulation. (2) In fact, the act contains a broad savings clause that states, "A remedy under this law is in addition to any other remedies provided by law." (3)

In aviation cases, express preemption applies only where the plaintiff's state law claim falls under one of the amendments to the Federal Aviation Act: the Airline Deregulation Act of 1978, which expressly prohibits states from enacting or enforcing "any law, rule, regulation, standard, or other provision ... related to a price, route, or service of any air carrier having authority ... to provide air transportation" (4); or the General Aviation Revitalization Act of 1994 (GARA), which provides an 18-year period of repose on civil actions for death, injury, or damage to property relating to general aviation aircraft and their component parts. (5) Outside of those two exceptions, there is no express preemption of state law aviation claims.

Implied preemption may occur either as "field preemption" or "conflict preemption." Congress's intent to preempt an entire field can be inferred when a scheme of federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it." (6)

Conflict preemption exists "where 'compliance with both federal and state regulations is a physical impossibility' or where the state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'""

the selling part is made with Coop Superpoints (which doesn't immediatly effect miles&more), the salesprice is agreed as a price for Superpoints - after the price for the sale of Superpoints is agreed they are then transferred into miles&more miles.

* Selling of Superpoints is within the rules of Coop's Superpoint program - it is even encouraged by Coop as they offer an easy online modul to transfer Superpoints to any other Superpoints account, and in add by a Supercard online modul for converting Superpoints (from any Coop account) online into any miles&more account.
* Selling of miles (or award tickets etc) is against the rules of the miles&more program., but transferring Superpoints from any Coop account to any miles&more account is within all rules.

I'd put my money on affect, not effect. My reasoning, FWIW:

If doing x produces result y, then it has effected or brought about that result (not affected that result). But if doing x does not produce a result as such, rather it somehow influences something else, e.g., how we answer the question of whether conduct is illegal or not, then it has affected it. For example, if I knew that Joe had embezzled from his former employer, it would influence or affect my thinking, and I might not hire him as a bookkeeper.

Actually, effect is a noun in the phrase "cause and effect" while you are using it as a verb.The verb usage requires an object:Despite your 28 years as an attorney (pretty passive aggressive in dropping that part in, btw), you managed to use the word wrong. No big deal.

sbrower,

I do have formal legal training, but I'm not sure I agree with your interpretation of the statute. Granted, it's sufficiently unclear that God only knows what the courts would do with it, but I suggest you that you're applying it overzealously.

Ticket Scalping.
Except as otherwise provided in Section 26002.5 of the Government Code and Sections 40180.5 and 99151 of the Public Utilities Code, any person, firm, corporation, partnership, or association that shall sell to another any ticket, pass, scrip, mileage or commutation book, coupon, or other instrument for passage on a common carrier, for the use of any person not entitled to use the same according to the terms thereof, or of the book or portion thereof from which it was detached, shall be guilty of a misdemeanor.

Without evidence to the contrary, I assume that we agree that the statute is to be interpreted in the plain English meaning of its text, no?

That having been said, let us analyze the type of transaction in question.

It is not a sale of a ticket, as the issuance of the ticket post-dates the completion of the contractual arrangement (ie the transfer of the miles).

It is in fact a sale of miles.

For starters, I venture that the cited § does not govern the sale of miles held by an individual account owner who has earned them through travel or otherwise, but rather (based on the construction of the list), "mileage books", whatever those may be.

I concede that this, however, would likely not be a serious barrier to a conviction under the statute.

What is noteworthy, however, is that the miles must have been sold explicitly for use for transport on a common carrier. This brings us back to my previous point: the contractual agreement ended upon sale (actually transfer) of the miles. So long as the seller was not in fact offering the airline ticket, but rather just the requisite miles, he cannot be guilty of the offense of providing such a ticket (or miles) for passage on a common carrier, as the use of the miles would be at the discretion of the now-legal owner.

For example, you cannot hold that the statute would apply if I sold you my UA miles, and you proceeded to use them to buy yourself magazine subscriptions. It only holds if we explicitly contract that I purchase for you, in violation of the terms of the mileage program, a ticket for transport on a common carrier. This is a limited, unusual, and rarely applicable set of circumstances.

Yes, it could happen the way you choose to interpret it. I just don't think it ever does, and any half-decent lawyer could shove enough reasonable doubt (assuming that is the standard) up the court's tuchis that it will be thrown out forthwith.

I would stay away from ebay and then you should be fine.

Craigslist can be difficult but well... it's an option. Depending on how badly you want to sell them.

FT with Cupon Connection gives you an option to trade but you cant sell them against cash here. You would get travel gift cards or other miles/points in return.

YMMV.

Why should it be illegal in California to sell miles ?

Cheers,
S

Does "ticket scalping" appear somewhere in the code, or is that the search term used to bring this section up? If "ticket scalping" in fact is part of the code, then the relevance of this section to the sale of airline miles might be more doubtful, since it might be hard to construe the sale of miles as ticket scalping.

UA has a rather low cap (15K) on the number of miles that can be transferred from one person's account to another's, and the transfer fees are substantial. So, I doubt that many "sales" involve actual transfers of miles rather than a sale of what miles can fetch, most often award travel, but sometimes other things, e.g., magazine subscriptions. Hence, in most cases it will be difficult to maintain, "It is not a sale of a ticket, as the issuance of the ticket post-dates the completion of the contractual arrangement (ie the transfer of the miles)."

I agree that "you cannot hold that the statute would apply if I sold you my UA miles, and you proceeded to use them to buy yourself magazine subscriptions. It only holds if we explicitly contract that I purchase for you, in violation of the terms of the mileage program, a ticket for transport on a common carrier." I disagree that "this is a limited, unusual, and rarely applicable set of circumstances."

"Mileage books"?! I see nothing about "mileage books;" I see a code provision which pertains to the sale to another of "any ticket, pass, scrip, mileage or commutation book, coupon, or other instrument for passage on a common carrier."

Another vote for "affect." But I have long ago tried to ignore such common mistakes. 'isle' seats rather than aisle and 'definately' rather than definitely are very common errors that come to mind. So many people make very basic spelling errors - even when FT highlights spelling errors in red :confused:.

But don't feel badly - your mistake of confusing the words "effect" and "affect" is a common one according to Wikipedia :)

It has to be a mileage book or commutation book based on where the comma is.

It's a matter of correct word choice (affect or effect), not one of correct spelling. But in any event, it's all a quibble here.

I agree that the punctuation leaves in doubt the meaning, which would help anyone charged with the putative penal code violation of selling airline miles defend themselves, that is if any prosecutor were crazy enough to go after them on this. (BTW, the state of California isn't so flush at present that it can afford follies, right?)

I am getting very nervous if posts with incorrect US-english word choice and/or incorrect spelling get critisized on this FT international message-board :o

Don't you just LOVE these ego-free, totally objective discussions about legal and semantics issues? (Oh, boy. Now I'll get it from ALL sides.) ;)