When Congress deregulated the U.S. domestic airline industry in 1978, it included a provision in the law to prevent individual states from undoing, through their own regulation, that which Congress sought to achieve at the federal level –  an industry in which maximum reliance would be placed on competitive market forces to encourage new entry and determine the variety, quality, and price of air service. This provision prevents states from enacting or enforcing any laws related to airline prices, routes, or services. Additionally, Section 5 of the Federal Trade Commission Act (FTCA), which authorizes the Federal Trade Commission (FTC) to investigate and prohibit “unfair or deceptive acts or practices” and “unfair methods of competition,” expressly excludes the airline industry. As a consequence, primary responsibility for aviation consumer protection, including authority to police and take enforcement action in response to air-related advertising practices that may harm or mislead consumers, resides with the U.S. Department of Transportation (DOT).

Over the years, DOT has issued myriad rules governing how airlines, tour operators, travel agencies, and other sellers of air transportation may market air products and service offerings. Most – but not all – of these rules have been issued under the authority conferred by 49 U.S.C. § 41712(a), which is patterned on Section 5 of the FTCA and thus authorizes DOT to investigate and prohibit unfair or deceptive practices and unfair methods of competition. DOT’s jurisdiction under section 41712 is limited to: (i) the provision or sale of air transportation (i.e., common carriage by air between a point in one state and a point in another state, or between U.S. and foreign points) by (ii) U.S. and foreign air carriers or (iii) ticket agents.¹

Sellers of scheduled air transportation that hold out airfares or air-inclusive packages to U.S. consumers are well-advised to familiarize themselves with DOT’s air travel-related advertising requirements. Several of these requirements are summarized below.

Full Fare Rule

Advertisements for passenger air transportation that state a price must state, as a single “all in” price, the total amount to be paid by the customer to the seller, including government taxes, airline- or agent-imposed fees, and any other mandatory, i.e., unavoidable, charges. Sellers may – but are not required to – separately state charges that are (and must be) included in the total price, so long as such charges:

1. are not false or misleading;
2. are not displayed prominently;
3. are not presented in the same or larger size as the total price; and
4. provide cost information on a per passenger basis.²

If the U.S. civil aviation security fee is specifically identified in advertising, it must be described as the “September 11th Security Fee.” 

Material Terms and Conditions

Airline ticket terms that are “material” to a consumer, i.e., terms likely to affect a reasonable consumer’s decision to purchase the ticket, must be clearly and conspicuously disclosed in advertisements. Examples include, but are not limited to:

1. restrictions on refunds or itinerary changes;
2. maximum/minimum stay requirements;
3. advance purchase, i.e., “book by,” requirements; and
4. lengthy blackout periods.

DOT has not defined, in a single regulation or guidance document, all terms that it considers to be “material,” and thus good judgment and common sense should be applied when deciding what terms to prominently identify in the advertisement.

Baggage Fees and Other Ancillary Charges

Airline and ticket agent public-facing websites must clearly and conspicuously disclose during the online booking process that baggage fees may apply and link to an online location where details are presented. Additionally, airline websites must list all fees for ancillary services, which may be presented as a range (other than baggage charges, for which the exact amount must be provided). 

Covered Websites

As a longstanding matter of enforcement discretion, DOT does not apply its airfare advertising requirements to airline or ticket agent websites that are not marketed to U.S. consumers. DOT looks to a variety of factors to decide if a website is, in fact, marketed to U.S. consumers, including but not limited to whether the website:

1. is in English;
2. displays prices in U.S. dollars;
3. highlights promotions for flights to, from, or within the United States; or
4. provides different pages (or micro-sites) designed for U.S. and other consumers.

Regardless of whether a website is marketed to U.S. consumers, as a legal matter and as noted above, DOT’s jurisdiction over air travel offers is limited to air transportation to, from, or within the United States.

Each airline is required to post to its website, in easily accessible form, its contract of carriage and (to the extent the airline is required by DOT to have one or both) its contingency plan for lengthy tarmac delays and customer service plan. Under DOT’s regulation implementing the Air Carrier Access Act, 49 U.S.C. § 41705, an airline that operates large aircraft also must ensure its primary website’s public-facing pages are accessible to individuals with disabilities. This DOT website accessibility requirement does not extend to ticket agent websites.

Availability of Internet Offers

DOT requires that airfares (as well as prices for air-inclusive tour products) be current and available when held out on the Internet, and “promptly” updated or removed when a reasonable number of seats is no longer available. For such online advertisements, pricing should be updated or removed quickly (which DOT maintains should occur within 24 hours of when the seller becomes aware).  

“Percentage Off” Offers

Offers for percentage-off discounts for airfares or air-inclusive tours must clearly disclose how the discount is calculated. The term “base fare,”  if used in the advertisement, must correspond to an amount that includes all mandatory airline or other seller-imposed charges (e.g., fuel surcharges), while the terms “flight,” “ticket,” or “fare” must correspond to amounts that include all government-imposed charges (e.g., taxes) and seller-imposed charges. As a matter of longstanding enforcement policy, DOT deems percentage off promotions to be deceptive if the “benchmark” price (i.e., the price to which the discounted is compared) was not available in reasonable quantities and for a reasonable period immediately prior to the promotion.

Advertising “Each Way” Fares

When advertised, each-way fares available only as part of a round-trip purchase must be accompanied by a clear and conspicuous disclosure of the round-trip purchase requirement, with such disclosure prominent and in close proximity to the advertised fare. Such fares must never be described or otherwise held out as “one-way,” irrespective of any accompanying disclosures.  

Service Fees

To the extent a ticket agent retains a service fee for refunding an airline ticket due to a canceled flight or a significantly delayed or changed flight, the fee’s existence and amount, and its non-refundable nature, must be clearly disclosed when the ticket is purchased. Service fees that are only for processing payment for a flight the consumer found may not be retained when handling such refunds.     

Fees for Optional Services

Optional services (e.g., travel insurance) may not be automatically added to the consumer’s purchase if no action is taken. Fees for optional services may only be added to the total price if the consumer has first affirmatively agreed to (i.e., “opted in”) to the service and fee.

Price Increases

Before accepting any partial payment (e.g., deposit) for an airfare or air-inclusive tour that may be subject to an increase prior to full payment, sellers must obtain written consumer consent to the potential price increase before the partial payment is accepted. Sellers may never increase the price for an airfare or air-inclusive tour after full payment has been made, except when due to an increase in government-imposed taxes, and then only when the consumer has provided his or her prior written consent to such a post-purchase price increase. 

Web-based Discounts and Passengers with Disabilities

When transacting with customers via telephone channels or physical locations, ticket agents that are not small businesses3 must disclose and offer web-based discount fares if the customer indicates that he or she is unable to use the ticket agent’s website due to a disability.  

24-Hour Hold or Cancellation

Airlines must allow reservations to be held at the quoted fare without payment, or canceled without penalty, for at least 24 hours after the reservation is made, provided the reservation is made at least seven days prior to departure. This requirement does not apply to other sellers of air transportation.

Offers for “Free” Air Travel

Air transportation cannot be held out as “free” where taxes or other mandatory charges apply to use the ticket. Offers for free air transportation also must clearly and conspicuously identify any significant conditions applicable to the ticket. In the case of “two-for-one” promotions, the offer should state if the eligible fare is higher than other fares in the market available on the same airline. 

Codeshare Disclosures

Flight schedule information that involves codeshare service (i.e., an arrangement whereby a carrier's designator code (such as AA, DL, or UA) is used to identify a flight operated by another carrier), when displayed online in response to a search query, must disclose the corporate name of the operating carrier and any other name under which the service is held out, e.g., “operated by ABC Airlines d/b/a XYZ Express.” The disclosure must appear prominently in text format immediately adjacent to the codeshare flight in the initial search results, provided that for mobile websites or applications, only the corporate name need be disclosed. Static written schedules (whether electronic or print) must disclose codeshare service via an easily identifiable mark (e.g., an asterisk) that corresponds to text disclosing the operating carrier’s corporate name and any other name under which the service is held out. Additional requirements apply to print, television, and radio advertisements for service in markets that may involve codeshare service.    

Ticketing Disclosures

E-ticket confirmations and itinerary receipts must include:

1. a summary of charges to check a standard size first and second bag as well as any charges for carry-on baggage (provided that ticket agents may instead provide a link to a location where such details are presented);
2. notice of airline contract terms incorporated by reference;
3. notice of any codeshare service, to include the operating carrier’s corporate name and any other name under which such service is held out; and
4. notice of airline overbooking practices and the availability of denied boarding compensation.

E-ticket confirmations and itinerary receipts also should include (in the case of domestic carriage) the salient features of terms that allow the seller to restrict refunds of the ticket price, impose monetary penalties (e.g., change fees), or raise the price after full payment due to government-imposed tax increases, and (in the case of international carriage) notice of carrier liability limits under the Warsaw system and Montreal Convention.

Offers for Charter Air Transportation

The requirements summarized above are limited to offers for scheduled air transportation. Different DOT requirements apply in the case of offers for charter air transportation, including public charters.