Orde r 2012

- 9

- 19

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the Seventeenth day of September , 2012

Solar Tours

, Inc. Docket OST 2012

- 0002

Served September 17 , 2012 Violations of 49 U.S.C. § 41712 and

14 CFR 257.5

CONSENT ORDER This consent order concerns Internet advertisements by Solar Tours, Inc.

, ( Solar ) that failed

to disclose code

- share arrangements as required by 14 CFR Part 257 and 49 U.S.C. § 41712(c). These failures also constitute separate and distinct unfair and deceptive practices prohibited by section 41712(a). Th e consent order directs Solar to cease and desist

from future violations of Pa rt 257 and section 41712 and assesses Solar a compromise civil penalty of $ 3 0,000.

Applicable Law

Solar is a ticket agent 1 and is therefore subject to the detailed code

- share disclosure requirements found in 49 U.S.C. § 41712(c) and Part 257. Under section 41712(c), ticket agents are required to disclose the name of the operating carrier providing the service for each segment of a passenger’s itinerary “on the first display of the Web site following a search of a requested itinerary in a format that is easily visible to a viewer.” Additionally, section 257.4 of the Department’s code

- share disclosure rule states that the

holdi ng out or sale of scheduled passenger air transportation involving a code

- sharing arrangement is unfair and deceptive in violation of 49 U.S.C. § 41712, unless, in conjunction with that holding out or sale, the advertiser follows certain notice requirement s, including those of 14 CFR 257.5(d). The specific terms of section 257.5(d) require that print advertisements, including those published on the Internet, “prominently disclose that the advertised service may involve travel on another carrier,” “clearly

1 A “ticket agent” is “a person (except an air carrier, a foreign air carrier, or an employee of an air carrier or foreign air carrier) that as a principal or agent sells, offers for sale, negotiates for, or holds itself out as selling, providing, or arranging for air transport ation.” 49 U.S.C. § 40102(a)(45).2

indicate the nature of the service in reasonably sized type,” and “identify all potential transporting carriers... by corporate name and by any other name under which that service is held out to the public.” Failure to disclose code

- share arrangements as re quired by Part 257 and section 41712(c) constitutes an unfair and deceptive practice and unfair method of competition in violation of section 41712(a).

Facts and Conclusions An investigation by the Office of Aviation Enforcement and Proceedings (Enforceme nt Office) revealed a lack of compliance by Solar with section 257.5 of the Department’s

code

- share disclosure rule and 49 U.S.C. § 41712(c). For a period of time during 2012

, on its Internet website

, Solar failed to properly disclose the existence of cod e

- sharing arrangements when advertising code

- share flights operated on behalf of a major air carrier by a regional air carrier. Specifically, Solar did not display the corporate names of the transporting carriers and any other names under which those flig hts were held out to the public during the flight selection and booking process . As a result consumers were

unable to learn the identity of the airline that would actually operate the aircraft on which they would be flying.

Mitigation In mitigati on Solar states that its website, www.flycheapabroad.com , was commercially irrelevant to the company, was not promoted and is now disabled. Solar explains that because it viewed this website as insignificant, its information technology team did not make changes to the www.flycheapabroad.com website when it performed the upgrade s that all ow ed the company’s other websites to properly display code

- share flights.

Decision The Enforcement Office has carefully considered the information provided by Solar and

believes that enforcement action is warranted. The Enforcement Office and Solar ha ve reached a settlement of this matter in order to avoid litigation. Without admitting or denying the violations described above, Solar consents to the issuance of this order to cease and desist from similar violations of 49 U.S.C. § 41712 and 14 CFR Part 257 and to the assessment of $3 0,000 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 code

- share disclosure requir ements.

This order is issued under the authority contained in 49 CFR Part 1.

ACCORDINGLY,

1. Based on the above information, we approve this settlement and the provisions of this order as being in the public interest;3

2. We find that Solar Tours, Inc. , vio lated 14 CFR 257.5(d) and 4 9 U.S.C. § 41712(c) by failing to properly disclose code

- sharing arrangements;

3. We find that by engaging in the conduct and violations described in ordering paragraph 2, above, Solar Tours, Inc. , engaged in an unfair and decepti ve trade practice and unfair method of competition in violation of 49 U.S.C. § 41712(a);

4. We order Solar Tours, Inc. , and all other entities owned or controlled by, or under common ownership and control with Solar Tours, Inc. , their successors and assign ee s, to cease and desist from further similar violations of 49 U.S.C. § 41712, and 14 CFR 257.5. Failure to comply with this cease and desist provision shall subject these

entities to further enforcement action;

5. We assess Solar Tours, Inc. , $ 3 0,000 in civil penalties in compromise of civil penalties that might otherwise be assessed for the violations found in ordering paragraphs 2 and 3 above

. Of this total penalty amount, $ 15

, 0 00, shall be due and payable as follows: $ 5,000 shall be due and payable w ithin 15 days of the date of issuance of this order, and two additional payments of $5,000 each shall be due and payable on December 15, 2012, and March 15, 2013. The remaining portion of the civil penalty amount, $15,000, shall become due and payable if, within one year of the date of issuance of this order, Solar Tours, Inc., violates this order’s cease and desist provisions or fails to comply with this order’s payment provisions, in which

case Solar Tours, Inc

. , may become subject to additional enforcem ent action for any violation of the order; and

6. Payment shall be made through Pay.gov 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 Solar Tours, Inc.

, to the assessment of interest, penalty, and collection charges under the Debt Collection Act and to further enforcement action for failing 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:

SAMUEL PODBERESKY

Assistant General Counsel for

Aviation Enforcement and Proceedings

(SEAL)

An electronic version of this document is available at www.regulations.gov