Order 2012-1-1

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Fourth day of January, 2012

AirTran Airways, Inc. Docket OST 2012-0002

Served January 4, 2012

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84 

CONSENT ORDER

This consent order concerns Internet advertisements by AirTran Airways, Inc., (AirTran) 

that violate the advertising requirements specified in 14 CFR 399.84, as well as 49

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

cease and desist from future violations of 399.84 and section 41712, and assesses the 

carrier a compromise civil penalty of $60,000. 

Applicable Law

As an air carrier, AirTran 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 

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 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 
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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 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 

Facts and Conclusions

For a period of time in the fall of 2011 AirTran displayed an advertisement on various 

third-party websites stating “Select destination on SALE Starting at $59 one way.” The 

advertisement contained two asterisks, one following the fare and the other below the fare 

next to a statement reading, without further elaboration, “Additional taxes, fees, 

exclusions apply.” Nowhere in the advertisement 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 on AirTran’s website, where a list of routes and prices were 

displayed and consumers were not advised of the details of the additional taxes and fees, 

stated in fine print, unless they scrolled to the bottom of the page. AirTran’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. 

 Mitigation

In mitigation, AirTran states that it places very high importance on compliance with all 

Department regulations and guidance. AirTran states that it published the advertisement 

at issue in this consent order in good faith believing it to be in substantial compliance 

with Department guidance, and the advertisement did not generate any consumer 

 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 26, 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.
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complaints. However, upon notification of possible non-compliance, AirTran points out 

that it took immediate action to ensure all its banner advertisements displayed tax and fee 

information in a fully compliant manner. Due to an unintentional oversight, AirTran 

asserts that the advertisement in question was not properly vetted before publication. 

AirTran states that Southwest, which recently purchased the carrier now reviews all 

AirTran advertising and subjects it to the same stringent compliance standards that apply 

to Southwest’s own advertising. 

Decision

The Department views compliance with the Federal aviation statutes and regulations very 

seriously. The Enforcement Office has carefully considered the information provided by 

AirTran and continues to believe that enforcement action is warranted. The Enforcement 

Office and AirTran have reached a settlement of this matter in order to avoid litigation.

Without admitting or denying the violations described above, AirTran 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 by AirTran 

and other sellers of air transportation. 

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 AirTran Airways, Inc., violated 14 CFR 399.84 by advertising fares that 

failed to state the entire price to be paid;

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

AirTran Airways, Inc., engaged in unfair and deceptive practices and unfair methods

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

4. We order AirTran Airways, Inc., and all other entities owned or controlled by, or 

under common ownership and control with AirTran Airways, Inc., its successors, 

affiliates, and assignees, to cease and desist from further similar violations of 14 CFR 

399.84 and 49 U.S.C. § 41712. Failure to comply with this cease and desist provision 

shall subject AirTran Airways, Inc., and its successors and assignees to possible 

further enforcement action;
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5. We assess AirTran Airways, Inc., $60,000 in compromise of civil penalties that might 

otherwise be assessed for the violations described above. Of this total penalty amount, 

$30,000 shall be due and payable within 30 days of the date of issuance of this order. 

The remaining $30,000 shall become due and payable immediately if AirTran 

Airways, Inc., violates this order’s cease and desist provisions within one year 

following the date of issuance of this order, or fails to comply with the order’s 

payment provisions; and

6. We order AirTran Airways, Inc., to remit the payment assessed in ordering 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 AirTran Airways, Inc., to the assessment of interest, 

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