Order 2011-6-1

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Second day of June, 2011

Continental Airlines, Inc. Docket OST 2011-0003

Served June 2, 2011

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84 

CONSENT ORDER

This consent order concerns violations by Continental Airlines, Inc., (Continental) of the 

full-fare advertising requirements specified in 14 CFR 399.84 and the statutory 

prohibition against unfair and deceptive practices, 49 U.S.C. § 41712. This order directs 

Continental to cease and desist from future violations of section 399.84 and section 

41712, and assesses the carrier a compromise civil penalty of $120,000.

Applicable Law

As an air carrier, Continental is subject to the advertising requirements of Part 399 of the 

Department’s rules. To ensure there is no unfair or deceptive practice in the purchase of 

air transportation and consumers are given accurate and complete fare information on 

which to base their airline travel plans, 14 CFR 399.84 requires that advertisements 

specifying airfares 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 from the base fare in advertisements, so long as such taxes and fees are 

levied by a government entity, and 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 advertisement where a fare is 
2

presented.1 Thus, for example, fare advertisements that 1) fail to identify the existence 

and amount of separate additional taxes and fees, 2) include only general statements 

regarding the existence of such taxes or fees, or 3) separately state carrier-imposed fees, 

such as fuel surcharges, 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. § 41712.2 

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 are permitted to 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, to a pop up,

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

prominently and immediately displayed.3

Facts and Conclusions

A recent review of Continental’s website by the Office of Aviation Enforcement and 

Proceedings (Enforcement Office) disclosed instances where Continental failed to 

comply with the Department’s full-fare advertising rule with respect to fuel surcharges 

for the “nearest airports” feature on its website. As an example, a consumer conducting a 

search for round-trip airfare from San Jose, California, to San Salvador, El Salvador, was 

taken to a landing page titled “Select Departing Flight,” showing flights operating on that 

route. On the landing page above the list of available flights, the consumer was given the 

option for fares from “nearby airports” from $298, excluding taxes and fees. Upon 

selecting the “nearby airports” option, the consumer was taken to another landing page 

listing flights and corresponding fares, where a flight departing from San Francisco was 

listed for $298, excluding taxes and fees. If the consumer selected that flight, he or she 

was taken to a third page, where the lowest fare for that flight was now listed as $538,

 1 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 October 24, 2011, 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 See, e.g., Air Jamaica, Ltd., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2008-12-

25 (December 30, 2008). 

3 For example, 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 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

excluding taxes and fees, rather than $298. This significant difference was due to 

Continental having excluded so-called “fuel surcharges” of $240 from the fare of $298 

that it initially advertised. During the time period when the fuel surcharges were omitted 

from the initial fare advertised through Continental’s “nearby airports” option, a 

significant number of consumers reviewed the option and purchased their airfare through 

the option. 

By failing to include fuel surcharges in the advertised fare where it was first presented 

Continental violated the full-fare advertising requirements specified in 14 CFR 399.84 

and the statutory prohibition against unfair and deceptive practices, 49 U.S.C. § 41712. 

Mitigation

In mitigation, Continental states that it is fully committed to compliance with the 

Department’s full-fare advertising requirements and the deficiencies in the “nearby 

airports” feature of its website were unintentional and inadvertent technology failures and 

were promptly and fully corrected. Although these failures existed on Continental’s 

website involving this “nearby airports” feature, Continental states that other booking 

paths available on the website included the fuel surcharge in the advertised amount of the 

fare. Continental further states that its website also advises the consumer in numerous 

locations throughout the booking path that additional taxes and fees, including fuel 

surcharges, may apply, and certain booking paths may advise a consumer up to seven 

different times of the potential for additional taxes and fees to be paid by the consumer, 

and all such notices are given in advance of the consumer making a purchase. According 

to Continental, all of these facts demonstrate Continental’s commitment to full 

compliance and its website design has been based on disclosures that fulfill the 

Department’s full-fare advertising rule.

Decision

The Enforcement Office has carefully considered the information provided by 

Continental and continues to believe that enforcement action is warranted. The 

Department views compliance with the Federal aviation statutes and Department

regulations and orders very seriously. The Enforcement Office and Continental have 

reached a settlement of this matter in order to avoid litigation. Without admitting or 

denying the violations described above, Continental consents to the issuance of this order 

to cease and desist from future violation of 49 U.S.C. § 41712 and 14 CFR 399.84, and to 

the assessment of $120,000 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 by 

Continental and other sellers of air transportation. 

This order is issued under the authority in 49 CFR 1.57a and 14 CFR 385.15.
4

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 Continental Airlines, Inc., violated 14 CFR 399.84 by advertising in a 

manner that failed to include the fuel surcharge in the advertised fare;

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

Airlines, Inc., engaged in unfair and deceptive trade practices and unfair methods of 

competition in violation of 49 U.S.C. § 41712;

4. We order Continental Airlines, Inc., and all other entities owned or controlled by, or 

under common ownership and control with Continental Airlines, Inc., their 

successors, affiliates, and assigns, to cease and desist from further similar violations 

of 49 U.S.C. § 41712 and 14 CFR 399.84;

5. Continental Airlines, Inc., is assessed $120,000 in compromise of civil penalties that 

might otherwise be assessed for the violations described in ordering paragraphs 2 and

3 above. Of this total amount, $60,000 shall be due and payable within 30 days of the 

date of issuance of this consent order. The remaining $60,000 shall become due and 

payable immediately only if Continental Airlines, Inc., violates this order’s cease and 

desist or payment provisions during the 12 months following the service date of this 

order, and Continental Airlines, Inc., also may be subject to further enforcement 

action for failure to comply with this order; and 

6. We order Continental Airlines, Inc., to pay the compromise civil penalty assessed in 

ordering paragraph 6, above, 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 penalty 

assessment as ordered will subject Continental Airlines, Inc., to an assessment of 

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

possible enforcement action for failure to comply with this order.
5

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