Order 2011-10-5

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Seventeenth day of October, 2011

Orbitz Worldwide, LLC. Docket OST 2011-0003

Served October 17, 2011

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84 

CONSENT ORDER

This consent order concerns Internet advertisements by Orbitz Worldwide, LLC.,

(Orbitz) that violated the advertising requirements specified in 14 CFR Part 399, as well 

as 49 U.S.C. § 41712, which prohibits unfair and deceptive practices. It directs Orbitz to 

cease and desist from future violations of Part 399 and section 41712, and assesses the 

company a compromise civil penalty of $60,000. 

Applicable Law

As a ticket agent, Orbitz is subject to the advertising requirements of Part 399 of the 

Department’s rules. Pursuant to 14 CFR 399.84, carriers advertising airfares must state 

the full price to be paid by the consumer. Under long-standing enforcement case 

precedent, the Department has allowed taxes and fees collected by carriers and ticket 

agents, such as passenger facility charges and departure taxes, to be stated separately 
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from base fares in advertisements, so long as such taxes and fees are levied by a 

government entity, are not ad valorem in nature, i.e., not assessed as a percentage of the 

fare price, are collected on a per-passenger basis, and their existence and amounts are 

clearly indicated at the first point in the advertisements where a fare is presented so that 

consumers can immediately determine the full fare to be paid. Thus, for example, fare 

advertisements that 1) fail entirely to identify the existence and amount of separate 

additional taxes and fees at the first point at which a fare is displayed, or 2) include only 

general statements regarding the existence of such taxes and fees do not comply with 

section 399.84 or the Department’s enforcement case precedent. Violations of section 

399.84 constitute unfair and deceptive practices in violation of 49 U.S.C. § 41712.1 

In print advertisements, an asterisk or other symbol placed proximate to the advertised 

fare may refer the reader to the bottom of the advertisement where the nature and amount 

of the fees that may be stated separately are shown. In Internet advertising displays, 

taxes and fees that properly may be stated separately from the advertised fare may be 

disclosed through a prominent link placed adjacent to the stated fare that notes that taxes 

and fees are extra and directly takes the viewer to the bottom of the screen, or to a pop-up 

or a place on a separate screen, where the nature and amount of taxes and fees are 

prominently and immediately displayed.2 

Finally, when advertising a fare, a seller must have a reasonable number of seats 

available at that fare for the period during which the fare is being offered.3 Failure to 

have a reasonable number of seats available at the advertised fare violates 399.84 and 

constitutes an unfair and deceptive trade practice under 49 U.S.C. § 41712. 

 1 See, e.g., US Airways, Inc., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2011-6-2 (June 2, 

2011); Delta Air Lines, Inc. Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2010-5-30 (May 

28, 2010). 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 surcharges or convenience fees, from advertised 

fares remains in effect.

2 For example, under current policies, a carrier or ticket agent could advertise a flight in the following 

manner: “$260 + Taxes and Fees” with the phrase “Taxes and Fees” set off as a hyperlink that takes the 

viewer directly to the bottom of the screen or to a pop-up or a place on a separate screen, where the nature 

and amount of taxes and fees are prominently and immediately displayed. See Department notices entitled 

“Disclosure of Air Fare Variations: Web vs. Other Sources, Surcharges that May be Listed Separately in 

Advertisements,” dated November 4, 2004; “Disclosure of Additional Fees, Charges, and Restrictions on 

Air Fares in Advertisements, Including ‘Free’ Airfares,” dated September 4, 2003; and “Prohibition on 

Deceptive Practices in the Marketing of Airfares to the Public Using the Internet,” dated January 18, 2001, 

available at: http:airconsumer.ost.dot.gov/rules/guidance.htm.

3 See, e.g., AirTran Airways, Inc., Order 2010-5-29 (May 29, 2010); American Trans Air, Inc., Order 97-

12-1 (December 1, 1997); Continental Airlines, Inc., Order 93-10-49 (October 29, 1993). 
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Facts and Conclusions

For a period of time in early 2011, Orbitz’s homepage displayed advertisements that did 

not provide any information on additional taxes and fees. Nowhere in the advertisement 

itself or on the homepage were the nature and amount of the additional taxes stated. 

Rather, once the consumer clicked on the advertisement, he or she was taken to a landing

page where the advertisements were once again displayed followed by fine print at the 

bottom of the page explaining the nature and exact amounts of fees. Thus, consumers 

were not notified of the additional taxes and fees applicable to the fare sale until after 

they arrived at the landing page and scrolled down to the bottom of the page. Orbitz’s 

failure to provide proper notice of taxes and fees that may legally be stated separately 

from the fare violates 14 CFR 399.84 and 49 U.S.C. § 41712. 

Further, Orbitz advertised on its “Dynamo” pages, the “cheapest most-recent weekend 

and cheapest most-recent any-time fares found by other Orbitz.com users.” These fares 

were supposed to be updated every twenty-four hours. However, they were not. Rather,

consumers who selected a fare from a “Dynamo” page were taken to a landing page 

where an entirely different fare was displayed. As stated above, advertising a fare that is 

no longer available or failing to have a reasonable number of seats available at the 

advertised fare violates 14 CFR 399.84 and 49 U.S.C. § 41712. 

 Mitigation

In mitigation, Orbitz states that it endeavors to maintain full compliance with the 

regulations and policies that govern advertising by ticket agents, and that any violations 

were inadvertent and were promptly corrected. Orbitz asserts that it has a long record of 

working with the Department to address any concerns that may arise, has fully 

cooperated with the Department in the course of this investigation, and has reaffirmed its 

commitment to provide complete and accurate information. In particular, in response to 

the Department’s concerns, Orbitz states that it has revised how disclosures are provided 

about the nature and amount of taxes that are applicable to a fare to conform with the 

Department’s requirements. In regard to the “Dynamo” pages, Orbitz has corrected the 

underlying data processing issue that resulted in the listing of fares that previously had 

been found by users, but not within the time period stated on those pages. Additionally, 

according to Orbitz, a mitigating factor is the lack of clear and consistent guidance to 

carriers and ticket agents. In regard to the “Dynamo” pages, Orbitz states that although 

stale data regrettably was included on those pages, consumers were specifically warned 

that those pages displayed “found” fares, which might not be available even if the data 

had been as current as intended – but also might still be available even if the data were

not as current as intended. Orbitz argues that the limited guidance that the Department 

previously has provided regarding fare availability standards does not specifically address 

the issue of “found” fares, and Orbitz understands that the issue in this case is not that

such fares were displayed but that the description of them did not match the actual 
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displays. But with these factors noted, Orbitz accepts that its practices did not conform 

with the Department’s requirements, and in order to affirm its commitment to the

consumer and resolving this matter, Orbitz has agreed to enter into this consent order.

Decision

The Enforcement Office has carefully considered the information provided by Orbitz and 

continues to believe that enforcement action is warranted. The Department views 

compliance with the Federal aviation statutes and regulations very seriously. The 

Enforcement Office and Orbitz have reached a settlement of this matter in order to avoid

litigation. Without admitting or denying the violations described above, Orbitz consents 

to the issuance of this order to cease and desist from future violations of 49 U.S.C. 

§ 41712 and 14 CFR 399.84, and to the assessment of $60,000 in compromise of 

potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

This compromise assessment is appropriate considering the nature and extent of the 

violations described herein and serves the public interest. It represents a strong deterrent 

against future noncompliance with the Department’s advertising requirements. 

This order is issued under the authority in 49 CFR 1.57a and 14 CFR 385.15.

ACCORDINGLY,

1. Based on the above information, we approve this settlement and the provisions of this 

order as being in the public interest;

2. We find that Orbitz Worldwide, LLC., violated 14 CFR 399.84 by failing to state the 

full price of advertised fares;

3. We find that Orbitz Worldwide, LLC., engaged in unfair and deceptive trade 

practices and unfair methods of competition in violation of 49 U.S.C. § 41712 by 

violating 14 CFR 399.84 and by failing to have a reasonable number of seats 

available for sale at the advertised price;

4. We order Orbitz Worldwide, LLC., and all other entities owned or controlled by, or 

under common ownership and control with Orbitz Worldwide, LLC., its successors, 

affiliates, and assigns, to cease and desist from further similar violations of 49 U.S.C. 

§ 41712 and 14 CFR 399.84. Failure to comply with this cease and desist provision 

shall subject Orbitz Worldwide, LLC., and its successors and assignees to further 

enforcement action;

5. We assess Orbitz Worldwide, LLC., $60,000 in compromise of civil penalties that 

might otherwise be assessed for the violations described above; and
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6. We order Orbitz Worldwide, LLC., to remit the payment ordered in paragraph 5 

above by wire transfer through the Federal Reserve Communications System, 

commonly known as "Fed Wire," to the account of the U.S. Treasury in accordance 

with the instructions contained in the attachment to this order. Failure to pay the 

penalty as ordered shall subject Orbitz Worldwide, LLC., to the assessment of 

interest, penalty, and collection charges under the Debt Collection Act, and to 

possible additional enforcement action for failure to comply with this order.

This order will become a final order of the Department 10 days after its service date 

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