Order 2011-10-11

 UNITED STATES OF AMERICA

 DEPARTMENT OF TRANSPORTATION

 OFFICE OF THE SECRETARY

 WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twenty-Fourth day of October, 2011 

Destination Southern Africa, Inc., and 

Destination Southern Africa d/b/a 

South African Airways Vacations

Docket DOT-OST 2011-0003

 

Violations of 49 U.S.C. § 41712 and

 14 CFR 399.84 Served October 24, 2011

CONSENT ORDER

This consent order concerns violations by Destination Southern Africa, Inc., and 

Destination Southern Africa d/b/a South African Airways Vacations (collectively 

“Destination Southern Africa”) of the Department’s advertising requirements specified 

in section 399.84 of the Department’s regulations (14 CFR 399.84) that also constitute 

unfair and deceptive trade practices and unfair methods of competition in violation of 

49 U.S.C. § 41712. This order directs Destination Southern Africa to cease and desist 

from future violations and assesses the company a compromise civil penalty of 

$20,000. 

Destination Southern Africa, doing business under its own name and also as South 

African Airways Vacations, is a ticket agent selling air package tours, including air 

and land tour components. It is thus subject to the advertising requirements of 

Part 399 of the Department’s rules. Destination Southern Africa currently operates the 

South African Airways Vacations air tour brand, under contract with South African 

Airways, a foreign air carrier. 

Under 14 CFR 399.84, any advertising that states a price for air transportation or an air 

tour is considered to be an unfair or deceptive practice in violation of 49 U.S.C. 

§ 41712 unless the price stated is the entire price to be paid by the customer to the air 
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carrier or ticket agent for such air transportation, tour or tour component. However, 

pursuant to its enforcement case precedent, the Department has permitted air carriers 

and ticket agents to state separately from the advertised price taxes and fees imposed 

by a government on a per-passenger basis, such as passenger facility charges and 

departure taxes, so long as their amounts appear or are indicated clearly in the 

advertisement at the first point in the advertisement where a fare is presented so that 

the consumer can determine the full price to be paid.1

 Taxes and fees imposed on an 

ad valorem basis, however, must be included in the advertised price, lest consumers be 

confused about the total amount that must be paid. On the other hand, carrier- or 

agent-imposed surcharges, e.g., fuel, insurance, and service charges, or other such 

costs, must be included in the advertised price. With respect to airfares and air tours 

advertised on the Internet, taxes and fees that are permitted to be excluded from the 

advertised price may be noted in a prominent link, placed adjacent to the stated price, 

that takes the viewer directly to the bottom of the screen, to a pop-up or to a place on a 

separate screen, where the nature and amount of such fees are displayed.2 3

In addition, the Transportation Security Administration (TSA) has promulgated a 

regulation, 49 CFR Part 1510, that imposes a security service fee in the amount of 

$2.50 per enplanement per passenger (with a $10 maximum per round trip) on most air 

transportation originating at airports in the United States. Pursuant to section 1510.7, 

all direct air carriers are required to identify the security service fee as the “September 

11th Security Fee” in advertisements and solicitations for air transportation that 

separately state the fee. The Department views the failure by an airline or its agent to 

identify the September 11th Security Fee as required by section 1510.7, or to state the 

amount of the fee when it is not part of the base fare, to be an unfair and deceptive

trade practice in violation of 49 U.S.C. § 41712.

In offering air travel packages from the United States to South Africa and other 

African countries that include air fares, guided tours, safaris, and related amenities, 

Destination Southern Africa has executed dual functions. It has promoted South 

African Airways’ air travel packages in the United States by means of e-mail 

promotions and solicitations, and advertisements that are broadcast on the radio, and 

 1

 See, e.g., Costa Cruise Lines N.V., Order 2009-9-3. 

2

 See, e.g., Lion World Travel, Ltd., d/b/a South African Airways Vacation, Order 2010-9-5, 

Tour Beyond, Inc., d/b/a China Spree Travel, Order 2011-2-6, Unique Vacations, Order 

2010-11-7, and orders cited therein, and the notice entitled: Disclosure of Additional Fees, 

Charges and Restrictions on Air Fares in Advertisements, Including “Free” Airfares, which is 

dated September 4, 2003, as well as guidance letters to the industry which can be found at: 

http://airconsumer.ost.dot.gov/rules/guidance.htm. 3

 On April 20, 2011, the Department issued a rule changing its enforcement policy with 

respect to section 399.84 to require that airlines and ticket agents comply with the rule as 

written. Under this new enforcement policy, which is effective January 24, 2012, airlines and 

ticket agents must include all government taxes and fees in every advertised fare. The 

Department’s long-standing prohibition on omitting carrier- or agent-imposed charges, such 

as fuel or insurance surcharges, or convenience fees, from advertised fares shall remain in 

effect. 
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published on www.flysaavacations.com, which is owned by South African Airways, 

but operated under contract on the carrier’s behalf by Destination Southern Africa 

d/b/a South African Airways Vacations. At the same time, Destination Southern 

Africa has promoted its own air travel packages on its own site, 

www.myafricavacation.com, and other web sites.

On September 3, 2010, the Department issued Order 2010-9-5, a consent order 

involving Lion World Travel, Ltd., d/b/a South African Airways Vacations, which at 

that time marketed air tours using South African Airways for the air portion under the 

South African Airways’ air tour brand. The order directed South African Airways 

Vacations to cease and desist from further violations of 49 U.S.C. § 41712 and 14 

CFR 399.80(f) and 14 CFR 399.84 and assessed Lion World Travel a compromise 

civil penalty of $20,000.4 

In Order 2010-9-5, the Department reiterated its longstanding policy of requiring that 

advertisements adequately disclose significant restrictions, such as advance purchase 

requirements, capacity controls, minimum-maximum stay requirements, and dates of 

travel restrictions and blackout dates in fare advertisements. The order specifically 

noted that the Department considers double occupancy requirements for tour packages 

including air and hotel to be such a significant restriction. Failure adequately to 

disclose these significant requirements for hotel/air packages likewise violates 14 CFR 

399.84. 

An investigation by the Department’s Office of Aviation Enforcement and 

Proceedings (“Enforcement Office”) disclosed that the air tour packages promoted by 

Destination Southern Africa d/b/a South African Airways Vacations on the South 

African Airways Vacations’ web site, www.flysaavacations.com, did not comply with 

Department requirements. This was likewise true of the air tour package 

advertisements displayed on Destination Southern Africa’s own web site, 

www.myafricavacation.com. More specifically, in both cases, the listed prices did 

not properly identify the existence, nature or amount of additional taxes and fees 

stated in these solicitations, including the September 11th Security Fee. 

For example, the Enforcement Office staff conducted a search starting with an 

Internet advertisement found first on the home page of South African Airways’ site. 

The advertisement consisted of a picture of a South African Airways airplane and 

stated: “SAA Vacation Package” -- “Includes air, hotel & more.” Next to that 

advertisement, another similar promotion stated: “Luxury Botswana Vacation” –

“From $4,799* p/p Includes air, hotel & more!” When staff continued by selecting 

the appropriate button, they were transferred directly to a link on the South African 

Airways Vacations web site entitled, “SPECIALS.” Only when staff then selected a 

specific vacation package and were taken to yet another web page were they able to 

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 On December 14, 2010, South African Airways terminated its contract with Lion World 

Vacations, Ltd., and on December 15, 2010, Destination Southern Africa initiated its contract 

with South African Airways, to manage the carrier’s air and land package tours, and took 

over the management of the web site, www.flysaavacations.com. 
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learn that taxes and fees, including the September 11th Security Fee, were extra and 

that restrictions may apply under what was denoted as the “Terms” of the air tour 

package. Furthermore, there was no mention adjacent to the advertised fare that taxes 

and fees were extra or that a double occupancy restriction applied. 

Our staff was able to verify that the promotions for numerous other air tour packages 

on South African Airways Vacations’ web site as well as on Destination Southern 

Africa’s own web site contained virtually identical violations of the Department’s 

full-fare advertising requirements. 

By failing to provide appropriate notice at the point where the cost of an air tour trip 

was first revealed of the existence and amount of government taxes and fees that are 

permitted to be broken out of the price that is displayed and by failing to disclose the 

existence of significant restrictions associated with the price of its air tour packages, 

such as double occupancy requirements, when the price was first listed, Destination 

Southern Africa violated the Department’s regulations and enforcement case 

precedent. 

In addition to violating the requirements of section 399.84 and related Department 

precedent and enforcement policies, Destination Southern Africa’s practices constitute 

an unfair and deceptive trade practice in violation of 49 U.S.C. § 41712. Destination 

Southern Africa engaged in a separate violation of 49 U.S.C. § 41712 by failing to 

identify the September 11th Security Fee as required by 49 CFR 1510.7. 

In mitigation and explanation, Destination Southern Africa states that it takes very 

seriously its obligation to comply with the Department’s regulations. Immediately 

after Destination Southern Africa and South African Airways were informed of the 

Department’s concerns via a telephone call, the companies recount that they began to 

correct the errors on the web sites. In fact, they recall, the majority of the problems 

were fixed before any written notice by the Department was received by Destination 

Southern Africa or South African Airways. According to the companies, the web sites 

have remained in compliance with the Department’s rules since that time, and the 

companies have taken steps to ensure that these errors do not occur in the future. The 

companies also note that during the time of the inadvertent errors, South African 

Airways was in the process of executing a transition of its South African Airways 

Vacations contract from a previous contractor to Destination Southern Africa. As a 

result, Destination Southern Africa and South African Airways declare that there was 

very little commercial activity for South African Airways Vacations during the period 

of time that the advertisements were not in compliance. 

The Enforcement Office has carefully considered all of the information available to it, 

including that provided by Destination Southern Africa, but continues to believe that 

enforcement action is warranted. In this connection and in order to avoid litigation, 

the Enforcement Office and Destination Southern Africa and Destination Southern 

Africa d/b/a South African Airways Vacations have reached a settlement in this 

matter. While neither admitting nor denying the above allegations, Destination 
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Southern Africa and Destination Southern Africa d/b/a South African Airways

Vacations accept the findings and conclusions stated herein in order to avoid potential 

litigation. Under this order, Destination Southern Africa and Destination Southern 

Africa d/b/a South African Airways Vacations are assessed $20,000 in compromise of 

potential penalties otherwise assessable under the provisions of 49 U.S.C. § 46301. 

The penalty amount is to be remitted in three payments as described in Ordering 

Paragraph 5, below. 

The Enforcement Office believes that the assessment of a civil penalty of $20,000 is 

appropriate in light of the nature and extent of the violations in question and will 

provide an effective deterrent to unlawful conduct in the future by Destination 

Southern Africa and Destination Southern Africa d/b/a South African Airways 

Vacations and other sellers of air tours and transportation. 

This order is issued under the authority contained in 49 CFR 1.57a and 14 CFR 

385.15. 

ACCORDINGLY,

1. Based on the above discussion, we approve this settlement and the 

provisions of this order as being in the public interest;

2. We find that Destination Southern Africa, Inc., and Destination Southern 

Africa d/b/a South African Airways Vacations violated 14 CFR 399.84, as 

described above, by causing to be published advertisements that failed to state 

the entire price to be paid by the passenger to the firms for certain air 

transportation;

3. We find that by engaging in the conduct described in paragraph 2, above,

and by failing to identify the September 11th Security Fee as required by 49 

CFR 1510.7, Destination Southern Africa, Inc., and Destination Southern 

Africa d/b/a South African Airways Vacations engaged in an unfair and 

deceptive practice and an unfair method of competition in violation of 49 

U.S.C. § 41712; 

4. We order Destination Southern Africa, Inc., and Destination Southern 

Africa d/b/a South African Airways Vacations and all other entities owned and 

controlled by, or under common ownership and control with Destination 

Southern Africa, Inc., and Destination Southern Africa d/b/a South African 

Airways Vacations, and their successors and assignees, to cease and desist 

from future violations of 14 CFR 399.84, and 49 U.S.C. § 41712;
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5. Destination Southern Africa, Inc., and Destination Southern Africa d/b/a 

South African Airways Vacations are assessed $20,000 in compromise of civil 

penalties that might otherwise be assessed for the violations found in ordering 

paragraphs 2 and 3 of this order. Of this total penalty amount, $10,000 shall be 

due and payable in three payments. The first payment of $4,000 shall be due 

and payable within 15 days of the date of issuance of this order. Two 

additional payments of $3,000 each shall be due and payable on February 1, 

2012, and May 1, 2012. If Destination Southern Africa, Inc., or Destination 

Southern Africa d/b/a South African Airways Vacations violates this order’s 

cease and desist provisions or fails to comply with this order’s payment 

provisions, Destination Southern Africa, Inc., and Destination Southern Africa 

d/b/a South African Airways Vacations may become subject to additional 

enforcement action for violation of the order and the Department’s statute and 

regulations; 

6. Payments shall be made by wire transfer through the Federal Reserve 

Communications System, commonly known as “Fed Wire,” to the account of 

the U.S. Treasury. The wire transfer shall be executed in accordance with the 

instructions contained in the Attachment to this order. Failure to pay the 

compromise assessment as ordered shall subject Destination Southern Africa, 

Inc., and Destination Southern Africa d/b/a South African Airways Vacations

to the assessment of interest, penalty, and collection charges under the Debt 

Collection Act, and possible enforcement action for failure to comply with this 

order; and 

7. We order Destination Southern Africa, Inc., and Destination Southern 

Africa d/b/a South African Airways Vacations to retain for two years following 

the issuance of this order copies of all advertisements of air tours or air tour 

components they cause to be published in printed format or circulate as current, 

including on their Internet web sites during the one-year period following the 

issuance of this order. This material shall be provided to the Office of Aviation

Enforcement and Proceedings upon request. 
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This order will become a final order of the Department 10 days after its service unless 

a timely petition for review is filed or the Department takes review on its own motion.

BY:

ROSALIND A. KNAPP

Deputy General Counsel

(SEAL)

An electronic version of this document is available

at www.regulations.gov