Order 2010-5-30

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the 28th day of May, 2010

Delta Air Lines, Inc. Docket OST 2010-0005

Served May 28, 2010

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84 

CONSENT ORDER

This consent order concerns violations by Delta Air Lines, Inc., (Delta) of the full fare 

advertisement requirements specified in 14 CFR Part 399 and 49 U.S.C. § 41712, which 

prohibit unfair and deceptive practices. This order directs Delta to cease and desist from 

future violations, and assesses the carrier a compromise civil penalty of $40,000.

Delta, as an air carrier, is subject to the advertising requirements of Part 399 of the 

Department’s rules. Under section 399.84 of those rules, any advertising by an air carrier 

that states a price for air transportation is considered to be an unfair or deceptive practice 

or unfair method of competition in violation of 49 U.S.C. § 41712 unless the price stated 

is the entire price to be paid by the customer to the air carrier for such air transportation. 

Under long-standing enforcement case precedent, the Department permits taxes and fees, 

such as passenger facility charges and departure taxes, that are collected by carriers and 

other sellers of air transportation to be stated separately in advertisements, so long as the 

charges 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 so that 

consumers can determine the full fare to be paid. On Internet displays, these charges may 

be noted through a prominent link placed next to the stated fare that advises the viewer 

that taxes and fees are extra and takes the viewer to the bottom of the screen, or directly 

to a separate screen, where the nature and amount of such fees are displayed. 

Delta advertised fares on the “Deals & Offers” section of its website that did not contain 

appropriate notice of the amount or nature of additional taxes and fees that were excluded 

from the advertised fare at the first point in which the fares were displayed. These fares 
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were followed by an asterisk that referred the reader to a statement below the quoted 

fares that stated, “Additional taxes/fees/restrictions/baggage charges may apply – see 

individual sale for more details.” The summary statement did not detail what additional 

taxes and fees were not included in the advertised fares, or their amounts. Furthermore, 

the statement that taxes and fees are additional was not a hyperlink; rather, the name of 

the city being featured was the hyperlink and, while it was adjacent to the advertised fare, 

it did not take viewers directly to a separate screen or directly to a pop-up where the 

nature and amount of excluded taxes and fees were displayed. Instead, the hyperlink took 

viewers to a second page containing a more detailed description of the sale, where

viewers had to scroll down past the first screen to the bottom of that page to see the 

required tax and fee disclosures. By failing to provide appropriate notice of the taxes and 

fees applicable to these fares, Delta violated 14 CFR 399.84 and engaged in an unfair or 

deceptive practice and unfair method of competition in violation of 49 U.S.C. § 41712. 

In mitigation, Delta states that it did not violate the Department’s full fare rule and did 

not engage in an unfair or deceptive practice and unfair method of competition in 

violation of 49 U.S.C. § 41712. Delta asserts that its Internet display, which combined 

asterisked and single hyperlink notification (both of which are permitted under the 

Department’s full fare guidelines), fully complied with the Department’s requirements. 

For example, Delta asserts that its “Deals & Offers” webpage notified customers of the 

taxes and fees at the first point of the fare display by placing an asterisk prominently and 

proximately next to the column labeled “One-way Fares” and by providing a concise 

summary explanation immediately below the listed fares in the same font and text size as 

the displayed fares. Delta states that the asterisked disclosure complied with the 

Department’s guidance. Delta also asserts that its use of a single hyperlink from the 

“Deals & Offers” page directing the customer to a webpage which contained the full 

explanation of the applicable taxes and fees was consistent with the Department’s 

guidance and precedent. Delta notes that at all times in this matter it has fully cooperated 

with the Department and that, despite its disagreement with the Enforcement Office’s 

interpretation of the full fare guidance, it promptly changed its website in accordance 

with that interpretation.

The Department views compliance with its full-price advertising rule seriously. The 

Office of Aviation Enforcement and Proceedings (Enforcement Office) has carefully 

considered the information provided by Delta Air Lines, Inc., but continues to believe 

that enforcement action is warranted. In particular, we wish to make clear that, contrary 

to Delta’s stated understanding, in permitting Internet fare advertisers to disclose through 

a hyperlink the taxes and fees that may properly be stated separately from the advertised 

fare, the Department always has required that the hyperlink itself be clear and take the 

reader directly to the place on the linked screen (or a pop-up) where the required tax and 

fee disclosures are made. It does consumers seeking information on taxes and fees little 

good to have an obscure link to that information and then to be taken to a place on a 

webpage that requires the consumer to search through one or more screens for that 

important information. Delta states that, although it believes enforcement action is not 

warranted, it has agreed to settle this matter without admitting to a violation to avoid the 

burden and expense of litigation. Thus, in order to avoid litigation, the Enforcement 
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Office and Delta have reached a settlement in this matter in which Delta, while not 

admitting the above allegations, accepts the findings and conclusions stated herein. Delta 

Air Lines, Inc., 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 of the Department’s regulations, and 

to the assessment of $40,000 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 an adequate 

deterrence to future noncompliance with the Department’s advertising requirements by 

Delta Air Lines, Inc., as well as by other air carriers, foreign air carriers, and other sellers 

of air transportation. 

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

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 Delta Air Lines, Inc., violated 14 CFR 399.84 by causing to be 

published air fare advertisements that failed to state the entire price to be paid 

by the consumer at the first point at which the fare is displayed; 

3. We find that by violating 14 CFR 399.84 as described in ordering paragraph 

2, above, Delta Air Lines, Inc., has engaged in an unfair and deceptive 

practice and unfair method of competition in violation of 49 U.S.C. § 41712; 

4. We order Delta Air Lines, Inc., and all other entities owned or controlled by 

or under common ownership with Delta Air Lines, Inc., and their successors 

and assignees, to cease and desist from violations of 14 CFR 399.84 and 

49 U.S.C. § 41712;

5. We assess Delta Air Lines, Inc., a compromise civil penalty of $40,000 in lieu 

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

ordering paragraphs 2 and 3, above. Failure to pay the penalty as ordered 

shall subject Delta Air Lines, Inc., to the assessment of interest, penalty, and 

collection charges under the Debt Collection Act, and to possible additional 

enforcement action for failure to comply with this order; and

6. Payment shall be made within 15 days of the issuance date of this order by 

wire transfer through the Federal Reserve Communication System, commonly 

known as “Fed Wire,” to the account of the U.S. Treasury in accordance with 

the attached instructions.
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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