Yes, And For Good Reasons
I. AIRLINE CLAIM
Airlines assert that a U.S. Department of Transportation (DOT) requirement that they prominently display the full price of an airline ticket (base fare, taxes, fees) in a print or online advertisement treats them differently than other industries. They are correct.
II. THE LAW
Point 1. Air transportation is the subject of a deliberate public policy enshrined in the Federal Deregulation Act of 1978 that recognizes that the industry is affected by a public interest. Nothing comparable exists for other consumer products industries.
Point 2. The Federal Deregulation Act consolidated virtually all consumer protections at DOT via the federal preemption doctrine. The Ginsburg v. Northwest Airlines decision of the U.S. Supreme Court from last week is a very recent illustration of the fact that except for the protection that DOT gives them, airline consumers, with the rare exception of a contract claim where the airline has made and then breached some express commitment, are absolutely bereft of any rights or remedies for unfair or deceptive acts or practices.
III. IN PRACTICE
If a sofa, car company or big box retailer deceives a consumer, she has multiple remedies and places where she can seek redress including the courts, State AG offices and the Federal Trade Commission. Not so for airline consumers. Other retail items are typically, if not exclusively, sold subject to sales taxes. Airline tickets have many other forms of taxes, not to mention airlines’ propensity to add their own mandatory fees such as fuel surcharges and an explosion of ancillary fees (e.g., for checked bags). Car sales, for example, are typically subject to right-to-reject within some period of time, but if you try that with an airfare you were snookered into buying, you pay a penalty, which is very substantial relative to the price of the ticket. Sofas and other consumer products can normally be returned anytime.
IV. THRESHOLD QUESTION
In what other industry in the U.S. are consumers totally deprived of the right to bring state law claims and federal law claims even in the face of proven deceptive practices? Answer: none, which is why DOT must be deferred to in its effort to provide airline consumers the only legal protections against deceptive advertising they have.
Airlines don’t want to be treated like everybody else. If they did they would give up the virtual immunity from legal challenges and claims for damages they enjoy by virtue of preemption of state law, or perhaps agree to a private right to sue in federal court for airline violations of 49 USC Section 41712 and the possibility of class actions under that statute. But of course they would never agree to that because they like being treated better than every other industry in the U.S. when it comes to having to answer for unfair or deceptive conduct.
Kevin Mitchell is the Chairman of Business Travel Coalition
Founded in 1994, the mission of Business Travel Coalition is to interpret industry and government policies and practices and provide a platform so that the managed travel community can influence issues of strategic importance to their organizations.