Order 2010-2-16

 UNITED STATES OF AMERICA

 DEPARTMENT OF TRANSPORTATION 

 OFFICE OF THE SECRETARY 

 WASHINGTON, D.C.

Issued by the Department of Transportation

On the Eighteenth Day of February, 2010

Southern Sky Air & Tours, LLC d/b/a Served February 18, 2010

Myrtle Beach Direct Air & Tours

Violations of 49 U.S.C. § 41712 and

 14 CFR 399.84 and 380.27 Docket DOT-OST 2010-0005

CONSENT ORDER

This consent order concerns fare displays by Southern Sky Air & Tours, LLC d/b/a Myrtle 

Beach Direct Air & Tours, (Direct Air) a U.S. Public Charter operator, on its website and in 

other print and Internet advertisements that failed to comply with the Department’s rule on 

full fare advertising, 14 CFR 399.84, and therefore constituted an unfair and deceptive 

practice and unfair method of competition in violation of 14 CFR 380.27 and 49 U.S.C. 

§ 41712. The carrier separately violated 14 CFR 380.27 and 49 U.S.C. § 41712 by failing to 

provide consumers adequate notice of its policy to charge fees in addition to its advertised 

fare for checked baggage. This order assesses Direct Air a compromise civil penalty of 

$35,000 and directs the carrier to cease and desist from further similar violations. 

Applicable Law

To ensure that consumers receive accurate and complete information on available airfares, 

section 399.84 of the Department’s rules (14 CFR 399.84) requires that fare advertisements 

by air carriers or their agents state the full price to be charged to the consumer. These 

requirements extend to advertisements on Internet sites. Under its enforcement case 

precedent, the Department has allowed certain government taxes and fees to be stated 

separately in fare advertisements, provided that the consumer is informed of these charges in 

conveniently accessible text. Fees or charges may be listed separately, under Department 

precedent, provided that they are levied by a government entity, are not ad valorem in nature, 

are collected on a per-passenger basis, and their existence and amount are clearly indicated in 
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the advertisement so that the consumer can determine the full fare to be paid.1 On Internet 

displays, these charges may be noted through a prominent link placed next to the stated fare 

that takes the viewer to the bottom of the screen, or to a separate screen, where the nature and 

amount of such fees are displayed. However, all carrier-imposed fees, such as “convenience 

fees,” must be included in the initial fare quoted in an advertisement. Similarly, notice must 

be provided as to the existence of conditions related to the advertisement of “free” air 

transportation or associated promotional items, especially those requiring payment of taxes 

and fees, such as car rentals and hotels, in conjunction with the purchase of one or more other 

tickets. On September 4, 2003, the Department’s Office of Aviation Enforcement and 

Proceedings (Enforcement Office) provided guidance to the industry regarding the disclosure 

of additional fees, charges and restrictions on airfares in advertisements, including “free” 

airfares.2 That guidance advised the industry that conditions, such as a requirement to pay 

taxes and fees, related to “free” tickets should be noted prominently and proximately to the 

offer of a free ticket, at a minimum through the use of an asterisk or other symbol that directs 

the reader’s attention to the information explaining the conditions in easily readable print 

elsewhere in the advertisement. This notice requirement extends to the advertisement of other 

free promotional items, such as car rentals and hotels, when advertised in connection with 

airfares. 

As for the disclosure of charges associated with checked baggage, the Enforcement Office 

provided guidance to the industry on May 19, 2008, regarding such disclosure requirements.3

That guidance advised the industry that limiting passengers to fewer than two free checked 

bags of the size and weight that have generally been free in the past and assessing passengers 

a charge in addition to the airfare for such checked baggage is a significant condition on 

airfares that must be clearly disclosed to consumers. The notice of such a significant 

condition should, at a minimum, be placed on the first screen of a carrier’s website in which it 

offers a fare quotation of a specific itinerary selected by a consumer. Generally, the notice for 

additional baggage fees may consist of either (1) an asterisk or similar character in close 

proximity to the fare quotation referring to a statement on the same screen that “additional 

baggage charge may apply,” or (2) a more detailed summary of the baggage charges on the 

same screen as the fare quotation. Furthermore, regardless of the notice used, the text should 

contain a hyperlink to a full description of the carrier’s baggage policies. 

 

1 Examples of such additional charges are passenger facility charges (PFCs) and international departure taxes.

2 See, Notice entitled, “Disclosure of Additional Fees, Charges and Restrictions on Air Fares in Advertisements, 

including “Free” Airfares,” dated September 4, 2003, which can be found at the following site: 

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

3 See, Notice entitled, “Guidance on Disclosure of Policies and Charges Associated with Checked Baggage,” 

dated May 19, 2008, which can be found at the following site: http://airconsumer.dot.gov/rules/guidance.htm.
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Background

Direct Air is a South Carolina-based U.S. Public Charter operator4 authorized to engage in 

charter air transportation using large aircraft under the Department’s rules, 14 CFR Part 380.

Direct Air violated the Department’s full fare advertising requirements by displaying fares on 

its website which, on their initial presentation, did not include a carrier-assessed convenience 

fee. Convenience fees, as with other carrier-imposed fees that are mandatory for on-line 

booking, must be included in initial base fares displayed in website advertisements and other 

Internet advertisements, or in a range of lowest to highest fares inclusive of the fee, both on 

the carrier’s site and on the sites of secondary vendors. On Direct Air’s website, inclusion of 

the fee in the quoted fare did not occur until the latter stages of the booking process. In other 

Internet ads, inclusion of the fee in the quoted fare did not occur until the consumer was 

directed to Direct Air’s website and then only after the consumer was in the latter stages of 

the booking process. 

Direct Air separately violated the Department’s full fare advertising requirements by failing to 

provide proper notice of certain government-imposed taxes and fees in its advertisements. 

While the Department has allowed certain government taxes and fees to be stated separately 

in fare advertisements, the Department requires that these taxes and fees be provided to the 

consumer in conveniently accessible text. In Internet ads, these may be accomplished through 

use of a hyperlink that takes the reader directly to a statement of the nature and amount of 

those taxes and fees. Direct Air’s advertisements on other websites did provide notice that 

instructed the reader to “click here for terms and conditions.” However, this hyperlink took

the reader to Direct Air’s general website home page, where the nature and amount of such 

fees were stated in smaller text on the left hand side of the home page. 

In other print advertisements, Direct Air published a promotion that entitled consumers to buy 

one airfare and get the second airfare free, or buy one airfare and get a free car/van rental.5 

Direct Air violated 14 CFR 399.84 by failing to adequately disclose the taxes and fees 

associated with the “free” air transportation or car/van rental that must be paid. Direct Air 

must at a minimum in such advertisements include an asterisk or other symbol that directs the 

reader’s attention to a statement of the nature and amount of taxes and fees that must be paid 

in connection with the “free” terms. 

Finally, Direct Air failed to provide consumers adequate notice on its website of additional 

fees associated with checked baggage, in that consumers were not told the amount of such 

charges until the latter stages of the booking process. This conduct constituted an unfair and 

deceptive practice in violation of 14 CFR 380.27 and 49 U.S.C. § 41712. 

 

4 14 CFR 380.2 defines a U.S. Public Charter operator as an indirect air carrier that is a citizen of the United 

States as defined in 49 U.S.C. § 40102(a) and that is authorized to engage in the formation of groups for 

transportation on Public Charters in accordance with 14 CFR Part 380.

5 The language used by Direct Air in the advertisement was “Buy One Get One Free Mid-August and 

September... or Free Car/Van Rental.”
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Mitigation

In mitigation and explanation, Direct Air states that it takes compliance with government 

requirements very seriously. Direct Air further states that it thought its practice of advertising 

and disclosing taxes and fees associated with airfares complied fully with Department rules, 

guidance and precedent. Immediately upon learning of the Enforcement Office’s concern 

with Direct Air’s practice of advertising and disclosing taxes and fees associated with airfares, 

Direct Air states that it undertook the difficult task of reprogramming its website and ensuring 

that its advertising complied with Department regulations. Direct Air states that being a small 

business with only six employees, it necessarily relied on third-party website programming 

contractors to implement the changes to its website. That, in turn, resulted in lengthy delays 

in completing the desired changes, considerable disruption to Direct Air’s business, and 

significant costs in the form of fees paid to its contractors. Direct Air states it has cooperated 

fully with the Department’s investigation and has received no consumer complaints regarding 

the booking process, advertising and marketing discussed in this order. 

Decision

We have carefully considered all the facts in this matter, including those presented by 

Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, and we believe that 

enforcement action is warranted in this instance. Southern Sky Air & Tours, LLC d/b/a 

Myrtle Beach Direct Air & Tours, for its part, in order to avoid litigation and without 

admitting the alleged violations, agrees to the issuance of this order to cease and desist from 

further violations of 49 U.S.C. § 41712 and 14 CFR 399.84 and 380.27 and to an assessment 

of $35,000 in compromise of potential civil penalties. Of this total penalty amount, $17,500 

shall be due and payable within 30 days from the date of issuance of this order. The 

remaining $17,500 shall become due and payable if, within one year following the date of 

issuance of this order, Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & 

Tours, violates this order’s cease and desist or payment provisions, in which case the entire 

unpaid portion of the civil penalty shall become due and payable immediately, and Southern 

Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, may be subject to additional 

enforcement action for failure to comply with this order. This compromise assessment is 

appropriate in view of the nature and extent of the violations in question and serves the public 

interest. This settlement, moreover, represents a deterrent to future noncompliance with the 

Department’s advertising regulations and 14 CFR 380.27 and 49 U.S.C. § 41712 by Southern 

Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, as well as by other sellers of 

air transportation. 

ACCORDINGLY,

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

order as being in the public interest;
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2. We find that Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, 

violated 14 CFR 399.84 by failing to include additional carrier imposed fees, referred to as 

convenience fees, in the fares advertised on its website; 

3. We find that Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, 

violated 14 CFR 399.84 by excluding government taxes and fees from its Internet fare 

advertisements without proper notice and thereby not stating the full price to be paid;

4. We find that Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, 

violated 14 CFR 399.84 by not providing adequate notice of conditions related to the 

advertisement of “free” air transportation and car/van rentals;

5. We find that Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, 

violated 14 CFR 399.84 by not providing adequate notice regarding additional baggage 

charges;

6. We find that by engaging in the conduct described in paragraphs 2, 3, 4, and 5, above, 

Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, has engaged in 

unfair and deceptive trade practices and unfair methods of competition in violation of 14 CFR 

380.27 and 49 U.S.C. § 41712;

7. Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, its 

successors, affiliates, and assigns, are ordered to cease and desist from further violations of 14 

CFR 399.84 and 380.27 and 49 U.S.C. § 41712; 

8. Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, is assessed 

$35,000 in compromise of civil penalties that might otherwise be assessed for the violations 

described in ordering paragraphs 2, 3, 4, 5, and 6, above. Of this total penalty amount, 

$17,500 shall be due and payable within 30 days from the date of issuance of this order. The 

remaining $17,500 shall become due and payable if, within one year following the date of 

issuance of this order, Southern Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & 

Tours, violates this order’s cease and desist or payment provisions, in which case the entire 

unpaid portion of the civil penalty shall become due and payable immediately, and Southern 

Sky Air & Tours, LLC d/b/a Myrtle Beach Direct Air & Tours, may be subject to additional 

enforcement action for failure to comply with this order; and

9. Payment shall be made 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 any portion of 

the penalty as ordered shall subject Southern Sky Air & Tours, LLC d/b/a Myrtle Beach 

Direct Air & Tours, to the assessment of interest, penalty, and collection charges under the 

Debt Collection Act.
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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