In 2012, the U.S. Department of Transportation (DOT) introduced the "Enhancing Airline Passenger Protections II" consumer rule dramatically changing the way carriers, travel agencies and tour operators can advertise and sell air transportation. DOT requires companies or individuals that advertise, sell or arrange air travel to comply with the consumer rule or face cease and desist orders and punishing fines. Outlined below are key components of the consumer rule.
Importantly, the term "advertisement" is broadly defined as it applies to the rule summary paragraphs that follow to encompass any form of solicitation
for air transportation, irrespective of the medium of communication used or whether the communication is intended to reach a mass audience or a single individual person. The definition not only applies to solicitations made in conventional print, radio and television, but also to travel brochures, billboards, press releases, website banner ads, Google ads and in fare quotes provided by travel agents in emails and over social media. Further, DOT's advertising rules also apply to advertisements where air fares are "bundled" with a hotel, cruise, tour, car rental or other service.
All advertised and quoted air fares must state the entire price to be paid by consumers, including all taxes, fees and other mandatory charges collected by sellers of air transportation. Carriers, tour operators and travel agents may display individual price components (ie. the fare, fees and taxes) along with the total. However, the price break-out of the components may not be false or misleading, must be presented on a per passenger basis, and should be displayed in smaller, less prominent type than the total price of the ticket.
Baggage Fee Disclosures
Airlines, travel agencies and tour operators are required to disclose baggage fees to consumers whenever they book a flight. If booking online, the first screen containing a fare quotation for a specific itinerary must show if there will be additional baggage fees, and inform consumers where they can go to view those fees. Information on baggage fees also must be included on all e-ticket confirmations, and for most trips the same baggage allowances and fees must apply throughout a passenger’s journey. Travel agents can use hyperlinks to refer consumers to the page on the carrier's website or to a page on their own websites where baggage fee information is displayed.
The DOT rule on code-share applies when one company is listed as the primary airline on a schedule or itinerary but another airline is actually operating the flight (eg. Lufthansa Flight 43 from New York to Berlin operated by JetBlue Airlines). Pursuant to the code-share rule, airlines and travel agencies must inform consumers, in any communication with the public (oral, written or electronic), of the code-share service before booking transportation. They must specify the name of the transporting carrier by its corporate name and any other name under which that service is held out to the public. Written notice of code-share service is required where an itinerary is issued by a travel agent. In printed advertisements, including those published online, the code-share relationship must be prominently disclosed and an abbreviated notice must be included in any radio or television advertisement.
During the online booking process, the code-share service must be disclosed and made "easily visible" in any schedule displayed in response to an itinerary request by a consumer. To be easily visible, the disclosure should be on the same screen as the itinerary and immediately adjacent to that itinerary and to each alternative itinerary, if applicable. To be compliant and therefore prominently displayed, the code-share disclosure cannot be made through a hyperlink or rollover. On a web page generating search results, it is insufficient to state, using general terms, that a certain flight "may be operated by a different carrier." Instead, the online travel agency must specifically identify the operating carrier with its corporate name prominently displayed.
"Each Way," not "One Way"
Travel agents are prohibited from using the term “one-way” when advertising airfares if roundtrip travel is required. Additionally, agents can only use the term, “each-way” – when roundtrip is required – if disclosure of the roundtrip purchase agreement is “clearly and conspicuously” noted in the advertisement.
Opt-Ins Permitted, Opt-Outs Prohibited
Optional ancillary services sold in conjunction with air transportation or an air transportation package, such as travel insurance, may not be bundled with consumer purchases in a default setting mode requiring the consumer to opt-out rather than opt-in. A carrier, travel agent or tour operator can no longer “pre-check” boxes for travel insurance or other ancillary services and include its cost in the total to be paid. The consumer must affirmatively agree to the service and the fee for the service by “opting-in” (e.g. checking the box).
Post-Purchase and Post-Deposit Price Increases
In order to offset increased fees, fuel surcharges, taxes, fluctuations in foreign exchange rates and supplemental price increases for air transportation are sometimes transferred to the client after making an air travel purchase or placing a deposit on one.
As a general rule, post-purchase price increases by sellers of travel are strictly prohibited but an important limited exception applies. A seller of air transportation or a tour that includes air transportation can increase the price post-purchase if the increase is due to an increase in a government-imposed tax or fee (e.g. foreign departure tax). The seller must notify the consumer of the potential for such an increase and obtain the client’s written consent
to the potential for such increase at the time of the purchase. Similarly, airlines, travel agents and tour operators who have accepted a deposit on an air transportation sale are permitted to increase the price for that air transportation before a consumer has paid the full amount agreed upon if the seller obtains the client’s written consent
to the potential for such an increase prior to accepting any payment. Both the post-purchase and post-deposit price increase rules apply when there is an increase in the price of the seat, baggage fees or fuel surcharges.
DOT vigorously investigates and enforces violations
of the consumer rule, penalizing violators by issuing consent orders and assessing crippling fines. Violations by carriers and online travel agencies have incurred fines as much as one million dollars or more, while small travel agency or tour operator violators have usually been required to pay five-figure fines. To enforce the consumer rule, DOT investigators routinely call or email unsuspecting businesses posing, undercover, as consumers shopping for air transportation and then monitoring the communications for possible violations of full fare advertising, baggage fee disclosure, code share and other requirements.