Order 2012-11-1

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the First day of November, 2012

Société Air France Docket OST 2012-0002

Served November 1, 2012

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84(a) 

CONSENT ORDER

This consent order concerns Internet advertisements by Société Air France (Air France)

that violate the Department’s full fare advertising regulation, 14 CFR 399.84(a), by (1) 

failing to properly disclose applicable taxes and fees charged to consumers booking 

frequent flyer award tickets; and (2) failing to clearly distinguish between taxes and 

government-imposed fees and carrier-imposed fuel surcharges once such taxes and fees 

were disclosed. These violations constitute violations under 49 U.S.C. § 41712(a), which 

prohibits unfair and deceptive practices. This order directs Air France to cease and desist 

from future similar violations of section 399.84(a) and section 41712, and assesses the 

carrier a compromise civil penalty of $85,000.

Applicable Law

As a foreign air carrier, Air France is subject to the advertising requirements of Part 399 

of the Department’s rules and the prohibition in 49 U.S.C. § 41712 against engaging in 

unfair and deceptive practices and unfair methods of competition. On April 25, 2011, the 

Department issued a set of rules designed to enhance protections for air travel consumers 

that, among other things, required airlines to comply with the Department’s full-fare 

advertising rule as written. The full-fare rule mandates that the price advertised for 

passenger air transportation include all taxes and government-imposed fees and all 
–2–

mandatory airline- and ticket agent-imposed fees.1 This provision was codified in 14 

CFR 399.84(a), which became effective on January 26, 2012. 

Although an advertised price must now include all mandatory taxes and fees, air carriers 

are still free in addition to provide consumers with a description of taxes, governmentimposed fees, and carrier-imposed fees.2

 However, these descriptions may not be false or 

misleading, may not be displayed as prominently as the total price, may not be presented 

in the same or larger size as the total price, and must provide cost information on a per 

passenger basis that accurately reflects the cost of the item covered by the charge. On 

February 21, 2012, the Office of Aviation Enforcement and Proceedings (Enforcement 

Office) issued guidance regarding the display of taxes and fees on an Internet website that 

advertises air transportation. The Enforcement Office found that in the description of 

taxes and fees allowed under section 399.84(a), some sellers of air transportation were 

including carrier- or agent-imposed fees under a description of “government” taxes. The 

Enforcement Office noted that descriptions of taxes, fees, and surcharges must be 

accurate in all respects, including correctly identifying the entity to which they are 

attributable. The Enforcement Office gave carriers and agents sixty days, until April 21, 

2012, to change their descriptions of taxes and fees to comport with this guidance.

Violations of section 399.84(a) constitute unfair and deceptive practices in violation of 

section 41712.

Facts and Conclusions

In response to a consumer complaint, the Enforcement Office investigated the disclosure 

of taxes and fees on Air France’s United States-focused “Flying Blue” website, which is 

dedicated to the purchase and redemption of frequent-flyer award tickets. On this 

website, a member of Air France’s loyalty program, “Flying Blue,” searches for a flight 

in a manner similar to a search on Air France’s primary website by entering basic flight 

search criteria, such as origin city, destination city, and dates of flight. In response, Air 

France provides a matrix of mileage amounts needed to redeem a ticket instead of a 

monetary fare amount. However, at all times relevant to this matter, Air France did not 

provide the monetary amounts of taxes and fees that consumers were required to pay in 

conjunction with the miles in order to purchase a ticket in the initial mileage matrix. 

Instead, at the bottom of the matrix page, Air France inserted a disclaimer noting, without 

further elaboration or direction, that taxes and fees were extra. The failure to identify any 

amount of taxes and fees on the first page matrix was particularly troubling because, in 

conjunction with mileage ticket redemption, Air France imposes a fuel surcharge that can 

 1 Under the prior enforcement policy, the Department allowed taxes and government-imposed 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 were levied by a government 

entity, were not ad valorem in nature, i.e., not assessed as a percentage of the fare price, were collected on a 

per-passenger basis, and their existence and amounts were clearly indicated at the first point in the 

advertisements where a fare was presented so that consumers could immediately determine the full fare to 

be paid. The separate listing of carrier-imposed surcharges was never allowed. 2 Such descriptions, if accurate, serve the public interest by allowing consumers to discern the portion of 

their total cost that is attributable to government sources.
–3–

sometimes be several hundred dollars.3 Failure to disclose the monetary amount of 

applicable taxes and carrier-imposed fees on the first page of results after a frequent-flyer 

award flight search initiated by a consumer is a violation of section 399.84(a) and an 

unfair and deceptive practice under 49 U.S.C. § 41712(a). 

Furthermore, the Enforcement Office found that after consumers selected flights from the 

search itinerary results page, they were taken to a summary page, where, in fine print at 

the bottom, Air France’s fuel surcharge was included under the rubric “taxes,” while a 

separate rubric, “surcharge,” listed the amount of carrier-imposed charges as being zero. 

This method of describing the fuel surcharge continued after the deadline to alter taxes 

and fees descriptions set by the Enforcement Office in its February 21, 2012, guidance. 

Failure to accurately describe carrier-imposed surcharges and leading consumers to 

believe a carrier-imposed charge is a tax is a violation of section 399.84(a) and an unfair 

and deceptive practice and an unfair method of competition in violation of 49 U.S.C. 

§ 41712(a).

Mitigation

In mitigation, Air France emphasizes that it takes very seriously its responsibilities and 

obligations to comply with the Department’s consumer protection rules and regulations. 

Air France states that its general U.S.-facing website was in full compliance with 

the Department’s full fare advertising rule even before the new rule became 

effective on January 26, 2012. Air France further notes that the alleged violations 

did not involve Air France’s general website, but rather related solely to the separate 

Flying Blue travel rewards website, which has a much smaller universe of users. Air 

France asserts that it was aware of only two complaints relating to travel award fee 

disclosures. Air France states that it undertook substantial and immediate efforts to 

bring the U.S.-facing Flying Blue website into compliance, but that it faced difficulties 

and complexities in resolving the technology issue because the basic architecture of the 

website had to be modified to accomplish the necessary revisions. These 

modifications, according to Air France, required changes to the website’s 

complicated hard-code protocol, requiring reliance on a different technical team 

than was used for revisions to Air France’s general website, as well as coordination 

with different teams in the U.S. and France. Air France states that the process was 

unexpectedly time-consuming. To further underscore its compliance attitude, Air 

France states that it shut down the U.S.-facing award booking function for a period of 

time until technological modifications were finalized. 

Decision

The Enforcement Office has carefully considered the information provided by Société 

Air France but continues to believe that enforcement action is warranted. The 

 3 Although not addressed in this order, 14 CFR 399.84(a) requires that any “fuel surcharge” accurately 

reflect the added cost of fuel per passenger over some baseline for the travel in question. See Additional 

Guidance on Airfare/Air Tour Price Advertisements, issued on February 21, 2012, available at 

http://airconsumer.dot.gov/rules/guidance.htm.
–4–

Department views compliance with 14 CFR 399.84(a) seriously. The Enforcement Office 

and Société Air France have reached a settlement of this matter in order to avoid 

litigation. Without admitting or denying the violations described above, Société Air 

France, accepts the findings and conclusions stated herein, and consents to the issuance 

of this order to cease and desist from future violations of 14 CFR 399.84(a) and 49 

U.S.C. § 41712 and to the assessment of $85,000 in compromise of potential civil 

penalties otherwise assessable 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 

to future noncompliance with the Department’s advertising requirements by Société Air 

France, as well as by other foreign air carriers and sellers of air transportation.

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

ACCORDINGLY,

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

this order as being in the public interest;

2. We find that Société Air France violated 14 CFR 399.84(a) by failing to properly 

disclose the full price of frequent-flyer award tickets;

3. We find that Société Air France violated 14 CFR 399.84(a) by describing a carrierimposed surcharge as a “tax” when it was not a tax; 

4. We find that by engaging in the conduct described in paragraphs 2 and 3, above, 

Société Air France engaged in an unfair and deceptive practice and unfair method 

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

5. We order Société Air France and all other entities owned or controlled by or 

under common ownership with Société Air France and their successors and 

assignees to cease and desist from violations of 14 CFR 399.84(a) and 49 U.S.C. 

§ 41712; 

6. We assess Société Air France a compromise civil penalty of $85,000 in lieu of 

civil penalties that might otherwise be assessed for the violations found in 

ordering paragraphs 2 through 4, above. Of this total penalty amount, $42,500 

shall be due and payable as follows: $14,167 shall be due and payable within 

sixty (60) days from the date of issuance of this order, $14,167 shall be due and 

payable within 120 days from the date of issuance of this order, and $14,166 shall 

be due and payable within 180 days from the date of issuance of this order. The 

remaining $42,500 shall become due and payable immediately if Société Air 

France violates this order’s cease and desist provision within one-year following 

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

provisions; and

 
–5–

7. We order Société Air France to pay the penalty assessed in paragraph 6 through 

Pay.gov to the account of the U.S. Treasury. Payments shall be made in 

accordance with the instructions contained in the Attachment to this order. 

Failure to pay the penalty as ordered shall subject Société Air France 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

An electronic version of this document is available at

www.regulations.gov