BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

_____________________________________ 

 ) 

ENHANCING AIRLINE PASSENGER ) 

PROTECTIONS ) Docket No. OST-2010-0140 

_____________________________________) 

PETITION OF THE 

AMERICAN SOCIETY OF TRAVEL AGENTS, INC.

TO DEFER IMPLEMENTATION AND FOR CLARIFICATION OF 

RULES

Communications with respect to this document should be addressed to: 

Paul M. Ruden, Esquire 

Senior Vice President 

Legal & Industry Affairs 

American Society of Travel Agents, Inc. 

1101 King Street 

Alexandria, Virginia 22314 

Tel. (703) 739-6854 

Fax (703) 684-9185 

pruden@asta.org

July 6, 2011 
1

BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

_____________________________________ 

 ) 

ENHANCING AIRLINE PASSENGER ) 

PROTECTIONS ) Docket No. OST-2010-0140 

_____________________________________) 

PETITION OF THE 

AMERICAN SOCIETY OF TRAVEL AGENTS, INC.

TO DEFER IMPLEMENTATION AND FOR CLARIFICATION OF 

RULES

The American Society of Travel Agents, Inc. (ASTA)1 respectfully petitions the 

Department to defer the implementation of two rules adopted in the referenced proceeding and 

scheduled to become effective August 23, 2011, 76 Fed. Reg. 23110, April 25, 2011, until the 

Department concludes the supplemental rulemaking on disclosure and access to ancillary fees 

described at 76 Fed. Reg. 23150. The rules, described further below, are the baggage fee 

disclosure rule of section 399.85(b) and the e-ticket confirmation rule of section 399.85(c). We 

also request clarification of the meaning and application of section 399.85(c). 

We are aware of the requests for extension of implementation dates filed by various 

domestic and international airline associations. Our request differs from those in that we believe 

 

1

ASTA is the world’s largest association of professional travel agencies. Its membership includes travel 

agency companies of the traditional, on-line and hybrid varieties, as well as individual travel agents and many others 

engaged in aspects of retail and wholesale distribution of transportation services. 
2

the issues presented by the cited rules are not resolvable merely by taking more time to 

accomplish the technical tasks of implementation. While ASTA applauds and supports the 

direction the Department has taken regarding more robust consumer protection rules, and for that 

reason files this petition reluctantly, the desire for speedy action regarding airline practices 

related to baggage fees should not override the goals of providing an efficient, non-repetitive 

process for implementing all of the rules related to ancillary fees and avoiding commercial harm 

to retail firms that support such robust consumer protection rules. 

Travel agencies will experience most of the same problems detailed by the airlines in 

their petitions. Travel agencies, like airlines, should not be required to adopt practices that are 

“error prone, confuse passengers, and destroy ... efficiencies....”2

 And we cannot fail to note the 

irony of airlines arguing that “providing different baggage notice fee standards for different 

methods of purchase creates an uneven approach that will confuse passengers and treat regulated 

entities differently” while strenuously resisting any regime that would require them to provide 

ancillary fee information to travel agencies in a useable automated format. 

ASTA reaffirms its strong support for the direction the Department is taking in forcing 

airlines to provide stronger protection for consumers who, for the most part, have no realistic 

alternatives to using air transportation. ASTA will continue to work constructively with the 

Department to fashion a regulatory regime that helps consumers, including those among the 

majority of travelers that want to use the skilled services of intermediaries to buy air 

transportation. To reach the environment that consumers want and need in a way that makes 

commercial sense for those firms that provide air transportation service and sales requires, as a 

 

2

 REQUEST TO CLARIFY THE FINAL RULE AND TO EXTEND CERTAIN EFFECTIVE DATES, filed by Air 

Transport Association of America, et al., June 7, 2011, at 5. 
3

first principle, a single network of rules that integrate with each other and with existing and 

affordably attainable technologies. 

 The two rules in question here are set out in new Section 399.85 of the Statements of 

General Policy as subsections (b) and (c). 

Subsection (b) requires every travel agent with a consumer-facing website modify the 

operation of the site so that when a consumer selects a specific itinerary from among the options 

offered, the first screen quoting a fare for that itinerary must (1) state that additional baggage 

fees may apply to that itinerary and (2) refer the consumer to either airline websites where the 

actual fees can be seen or to another place within the agent’s website if the baggage fee 

information is available there. 

Subsection (c) goes further – it applies to all e-ticket confirmations issued by a travel 

agent at the completion of an online purchase or in a post-purchase email confirmation. Each of 

these actions is required to include (1) the passenger’s free baggage allowance and (2) the fee for 

a carry-on bag and first and second checked bags. The information must be in either (a) text 

form in the e-ticket confirmation document or (b) a hyperlink to an airline website where the 

information is displayed. The rule mandates that the fee information must be stated as specific 

fees applicable to that passenger’s precise purchase, accounting for frequent flyer status, time of 

purchase and any other factor affecting the baggage charges. How this information, in this form, 

is to be found simultaneously at an airline website for a booking made on either an agent’s 

website or over the phone and through a GDS booking entry is not apparent to us. We will return 

to this issue shortly. 
4

I. THE BAGGAGE FEE DISCLOSURE RULE IS COMMERCIALLY RUINOUS. 

As is evident from ASTA’s earlier comments in this proceeding, travel agents are strong 

supporters of comparison shopping and the full disclosure of all costs that is implied by that 

approach to distribution. We also believe we understand why the Department decided to 

advance a rule related only to baggage fees while it considered the broader and more impactful 

question of full disclosure and purchase of optional fees at the point and time of air fare 

purchase. The chosen instrument, Section 399.85(b), is, however, not well suited as an interim 

solution to disclosure while the larger issue is parsed. There are several reasons for this. 

First, the rule requires a travel agency selling air travel through a web site to take one of 

two steps, the first an act of commercial suicide and the second legally and commercially 

dangerous. 

The rule requires, simultaneously with the first exposure of the itinerary-specific fare, 

disclosure of the fact that additional baggage fees may apply to the chosen itinerary. The agency 

may comply by providing either a link to an airline website to see the “actual fees” or a link to 

another place within the agent’s web site where the information resides. But when the agency 

refers its customer to the web site of a competitor,

3

 the airline whose itinerary has been selected 

by the consumer, it is effectively inviting the customer to go away and not return. This, of 

course, is the approach labeled by the airline industry as “the most efficient means” to disclose 

baggage charges.4

 It may be efficient for airlines to disclose to their direct customers in this 

 

3

 We are, of course, aware of the “principle” that a principal and its agent do not by definition compete with each 

other. We are pretty sure the Department understands that this idea has no application whatever to the economic 

realities of air travel distribution where the principals not only compete but have made it clear they want as much of 

the business to come to their websites as possible.

4

 REQUEST TO CLARIFY THE FINAL RULE AND TO EXTEND CERTAIN EFFECTIVE DATES, filed by Air 

Transport Association of America, et al., June 7, 2011, at 3. 
5

manner but it is most assuredly not the most efficient way for travel agents to disclose to the 

consumers that choose to buy air travel through them. 

We are aware of no regulation anywhere that requires such a commercially damaging 

action by a retailer. There is no way, without large expense, to create such links without causing 

the customer to leave the agency’s web site. Once departed, and aware of the baggage fees on 

that one airline, Airline A, the customer would have to re-enter the agency’s web site and reenter all the information for the trip in order to consummate the purchase on Airline A. While 

doing all this, the customer will be exposed to changes in the air fare that may occur while she is 

reviewing the baggage fee information to discern its actual application to her itinerary. And if 

she is concerned about the magnitude of the charges and thinks there may be lower fees on 

another airline, Airline B, she will have to either return to the agency’s site for a link to Airline B 

or move to Airline B’s site directly, re-entering the search information to determine if the total 

cost there is more or less than the first airline. And so on to Airline C and, in some cases, D or E. 

The agency that sends his customer on this “journey” is unlikely to see the customer 

again. A consumer faced with the ability to see only a part of the transaction, and realizing that 

baggage fees alone may drastically increase the total travel price, is not likely to return to the 

original site to complete only a portion of the transaction. 

Threatened with loss of customers in such cases, agencies will try to avoid this approach, 

as they should. 

The only other option, under the rule, is for the agency to somehow acquire the ancillary 

fee data for all airlines and place that large volume of information somewhere on its own website 

with a programmed link system such that a consumer who has made at least a preliminary choice 

of Airline A, for example, can go directly to Airline A’s ancillary fee information on the agency 
6

website. This seems simple enough to state, but in practice it is fraught with legal and practical 

difficulties, making it unreasonable as a substitute for the true solution, which is airlines passing 

of ancillary fee information dynamically to the agent in response to booking inquiries similarly 

to the way that fares are delivered. 

The legal problem arises because there are no airlines thus far willing to commit to 

provide travel agencies with technically usable access to their ancillary services/fees on a 

dynamic basis. Therefore, the only ways an agency could acquire the information from the 

airlines are to (1) have someone visit each airline website and literally copy and paste (and 

reformat) the ancillary fee information into pages of the agency’s own web site, or (2) attempt 

some type of web screen-scraping to capture the information in response to particular queries 

that are robotically entered on the airlines’ sites to replicate the consumer’s travel request.5

 

Manually obtaining the information is impractical because of the cost of manpower to 

achieve it initially and the manpower cost of constantly monitoring all airline websites for 

updates. The irony of this is inescapable – thousands of man hours of work, fraught with 

probability of error, to manually collect information that is readily available in electronic format 

but deliberately withheld by airlines, a major step backward. No agency could afford to do this 

without significant increases in fees it charges to consumers and damage to its reputation and 

business every time the information turns out to be out-of-date. And customer frustration with 

the need to wade through pages of rules to find out what their real baggage fees are will be 

palpable. 

The second approach, web scraping, has been found illegal in every known case where it 

has been litigated. See the Temporary Injunction in American Airlines, Inc.v. Farechase, Inc., 

 

5

 We think this because the rule refers to “actual fees” and not, for example, top collections of policies regarding 

fees and their application. If “actual fees” means something else, we would appreciate the Department’s 

clarification. 
7

Cause No. 067-194022-02. See Southwest Airlines Co. v. Farechase, Inc., 318 F. Supp.2d 435 

(N.D. Texas 2004). Asking travel agencies to continually take the risk of suit by an airline over 

screen-scraping is too high a price to pay while the ancillary fees rulemaking is moving to 

conclusion. If the end result of that rulemaking is a requirement that airlines provide ancillary fee 

information to travel agencies through GDSs, all of the issues involving massive manual labor, 

error-prone procedures and risk of inaccuracies will be eliminated. If the Department chooses 

another path, the consequences will have to be assessed, but it should not, in the meantime, 

impose huge costs and high risks on the retail distribution system while it concludes its analysis 

of the future course. The travel agency community is not responsible for the airlines’ refusal to 

share the ancillary fee information and should not bear the costs of an interim solution. 

For the same reasons the Department should avoid any approach that requires the 

programming work to be done twice. That is a likely outcome if the Department proceeds with 

section 399.85(b) while the ancillary fees rulemaking moves forward over the year-plus 

timetable that has been established. The magnitude of programming and other costs to either 

manually collect and display the data or the costs to screen-scrape the information will be very 

large, beyond the means of most small and medium sized agencies. We again note the 

complaints of the airline associations about the IT costs of complying with 399.85(c). If those 

costs are large for the airlines, they will be gigantic for travel agencies. Economic impacts of 

this magnitude would force most agencies with booking engine web sites to terminate them 

rather than face enforcement action by the Department for failure to disclose or, worse, disclose 

inaccurately the ancillary fee data for a particular passenger. Creating such incentives disserves 

consumers by further restricting the access points at which ancillary fee information can be 

reliably obtained. 
8

Finally, as noted earlier, representatives of virtually all airlines of consequence to the 

United States market have requested long extensions of time in which to try to comply with the 

rules that would have gone into effect on August 23, 2011. The granting of substantially what the 

airlines seek will materially close the gap between the implementation of the rules and the third 

rulemaking on ancillary fees. This is a further compelling reason for the Department to defer 

implementation of these costly rules until a comprehensive decision is rendered in the fees 

rulemaking. 

II. THE E-TICKET CONFIRMATION RULE WILL IMPOSE MASSIVE AND 

REDUNDANT INTERIM COSTS ON THE RETAIL DISTRIBUTION SYSTEM 

Section 399.85(c) presents even more formidable problems. As applied to travel agents, 

the fees for carry-on and first and second checked bags must be either (1) written in text on the eticket confirmation, or (2) revealed by hyperlink to an airline website, or (3) revealed by link to a 

place on the agent’s website. Moreover, the fee “must be expressed as specific charges” that 

account for the buyer’s status and the particular buying elements of the transaction. These 

include, but are not limited to, the traveler’s frequent flyer status, the time of purchase relative to 

departure, the time of day of the departure, the credit card used to make the purchase and any 

other condition or status that affects the actual fees to be paid by that passenger in order to be 

accompanied by her luggage. And this rule applies to at least the 194 carriers who settle 

transactions through the Airlines Reporting Corporation. 

 This rule suffers from the same defects as the rule in section 399.85(b) but there are 

others. 

By definition the e-ticket confirmation follows the consummation of the ticket purchase. 

To understand the problem of compliance with section 399.85(c), each of the options provided to 

a travel agency must be examined. 
9

First, there is the option to produce an e-ticket confirmation with the required disclosures 

in text. If the rule means what it appears to say, we do not understand how the calculation of the 

actual applicable baggage fees is to occur, taking into account all relevant criteria as determined 

by the policies and practices of the chosen airline. Doing this calculation requires a program to 

do the calculation and access to a timely and accurate set of airline fee policies that can be read 

and manipulated by the program. Where would an agent acquire such a program, since none 

exists now? 

The agency could pay to create the program itself and integrate it into all of its other 

systems so that the e-ticket confirmation processor would read the calculation and include it in 

the confirmation. This program would have to be implemented either by manual processes of 

collecting and inputting all relevant airline policies or by creating a robot program that would 

enter each airline’s website and find the policies. Such a program would be extremely expensive 

to create and would be a solution at most for a handful of the largest, wealthiest and most 

technologically advanced agencies. For the rest, this is no solution at all. 

Moreover, to assure accuracy in the calculations, they must take place in real time, 

virtually concurrent with the execution of the reservation order. That in turn means that the 

agency must have created a programming interface that can reach into the airline’s database, 

manipulate the controlling information and produce the list of fees for insertion into the e-ticket 

confirmation. There is no way an agency could accomplish this without the cooperation of the 

airline – in fact, every airline with baggage fee policies – and there is no indication that the 

airlines are going to cooperate with agencies in this regard. And this process would easily be 

defeated by decisions the airline made to change its website design or operation. 
10

 The option to disclose the information by hyperlink to the airline website(s) involved in 

the itinerary is not a solution. If there is more than one airline, the agency’s software would have 

to be modified so that its confirmations would refer to multiple websites when necessary. But to 

what does the agency link point? How is the airline’s website going to be aware that the agency 

has booked Passenger Jones on that airline in the agency’s GDS? If the website is not aware, it 

will not be able to do the calculations and create the complying information for the passenger 

who, upon receipt of the confirmation, may try to link to the airline to confirm the baggage fees. 

Writing a program at each airline to assure that each carrier’s website would be aware of a GDS 

booking made by any agent on any airline and to do the baggage fee calculation would, we 

suggest, be an enormously costly undertaking. The new rules do not require the airlines to do 

this and, given their stated positions of antagonism to sharing ancillary fee information with 

travel agents, it is most unlikely they would choose to undertake the work or bear those costs. 

 So we come to the third option, which is the travel agency provides on the confirmation a 

link to its own website where the baggage fee disclosure will reside. The problem with this is 

the same one faced by the airlines but worse. The agency would have to create programs that 

would reach out to airline websites to somehow secure the fee policies in all their complexity and 

conduct the calculation immediately upon the making of the reservation. If the creation of this 

type of program by 194 airlines is a costly undertaking, it is simply impossible for the 9,977 

travel agency firms in business on May 22, 2011.6

 If, on the other hand, the rule does not require the calculation of specific charges as it 

appears to say, but requires only a link to a place where the chosen airline’s policies for baggage 

fees are set out, the rule becomes little more than an e-ticket version of the initial baggage fee 

disclosure rule in section 399.85(b). If that is what 399.85(c) really means, the rule is subject to 

 

6

 Data from Airlines Reporting Corporation. 
11

the same infirmities as 399.85(b) and should be deferred until a regulatory regime for all 

ancillary fees can be devised. There is a high likelihood that the work involved in complying 

with section 399.85(c) will have to be modified when the final rule in the supplemental 

rulemaking is issued. Enforcing the e-ticket rule starting August 23, 2011, means that agencies 

will inevitably incur incremental costs that could be avoided by doing the compliance work one 

time when the final rules are adopted in the supplemental rulemaking. 

 We do not believe the GDSs are a potential source of solution to the problems recited 

above. The GDSs have the same problem as travel agencies in securing the data from the 

airlines. To the best of our knowledge there is no system in place that will enable the tasks that 

appear to be required by section 399.85(c) in either an airline or GDS environment. E-ticket 

confirmations are a real-time function so the only commercially viable process is one that 

delivers the fully vetted fee calculation electronically and immediately upon completion of the 

booking process. Even if one or more airlines decided to produce this calculation within their 

internal reservations systems in response to each agency reservation, an extreme improbability, 

no software exists that can reach into an airline database and extract the completed calculation 

for insertion into an agency-generated e-confirmation. 

 It is clear, we submit, that the e-ticket confirmation rule cannot be complied with in a 

commercially viable manner if it is interpreted as written. If, on the other hand, it only refers to 

airline policies, it remains an impractical solution and in some circumstances requires illegal 

actions by travel agents seeking to comply. The best course forward is to defer implementation 

of the rule until its implications can be thoroughly debated during the supplemental rulemaking. 

By that approach there will be one set of disclosure rules adopted at the same time that will have 

the benefit of full vetting of commercial, technical and legal feasibility. 
12

III. CONCLUSION 

We emphasize in closing that ASTA is not opposed to fee disclosures on agency websites 

and on e-ticket confirmations. Our concerns are that the rules as written will impose huge and 

unnecessary costs on the industry, the effect of which must inevitably be to drive still more 

agencies from the business of issuing airline tickets and to deter others from doing so using 

Internet technologies because the burden of compliance will exceed any benefit the agencies 

stand to gain from using those technologies to sell and grow their business and offer the public 

more options for buying air travel. The superior path forward is to defer implementation of the 

baggage disclosure and e-ticket confirmation rules until they can be re-crafted in the context of a 

complete set of disclosure rules that have been fully debated and understood. 

Respectfully submitted, 

Paul M. Ruden 

Senior Vice President 

Legal & Industry Affairs