Order 2010-5-29

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

AirTran Airways, 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 AirTran Airways, Inc., (AirTran Airways) 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 

AirTran Airways to cease and desist from future violations of section 399.84 and section 

41712, and assesses the carrier a compromise civil penalty of $20,000.

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

of the Department’s rules. Section 399.84 of the Department's regulations requires that 

any advertising or solicitation for air transportation that states a price for such air 

transportation must state the entire price to be paid. Consequently, when advertising a 

fare, a carrier must have a reasonable number of seats available at that fare for the period 

during which the fare is being offered.1

 Failure to have a reasonable number of seats 

available at the advertised fare violates section 399.84 and constitutes an unfair and 

deceptive trade practice under 49 U.S.C. § 41712.

On February 16, 2010, AirTran Airways published a press release on its website 

advertising its “Leave the Blizzard Behind Sale.” The sale lasted for 72 hours and 

applied for travel on AirTran Airways before May 26, 2010. The press release advertised

fares “starting as low as $39” one-way. However, an investigation revealed that there 

 1 See, e.g., American Trans Air, Inc., Order 97-12-1 (Issued December 1, 1997); Continental Airlines, Inc., 

Order 93-10-49 (Issued October 29, 1993).
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were no seats available for $39 as part of the sale. In fact, the lowest available fare for 

the sale was $44 which was the fare that was advertised on AirTran’s website and in 

email communications sent out to its Net Escape subscribers. By advertising an airfare 

that was not available, AirTran Airways 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, AirTran Airways states that the reference in the press release to a $39 fare 

was the only place in which that fare was mentioned. AirTran Airways maintains that all 

other advertising material for the 72-hour sale correctly referenced the $44 fare including 

the "landing page" on AirTran Airways website to which consumers were taken when 

they clicked on the sale reference on the main web page and in the 4,500,000 emails 

distributed at the time of the sale to AirTran Airways Net Escape subscribers customized 

by market. According to AirTran Airways there was no print media advertising of the 

sale and no reference to fare levels in radio advertising, and the reference to a $39 fare in 

the press release resulted from an oversight by the drafter who used a template from a 

January 2010 fare sale that offered $39 fares with the language in both press releases 

being otherwise almost identical. AirTran Airways states that it was not aware of the

error until it was contacted by the Office of Aviation Enforcement and Proceedings

(Enforcement Office) in early March 2010. AirTran Airways further states that it has 

received no consumer complaints with respect to the reference to a $39 fare, but, in 

accordance with its standard policies, it would have honored the fare if it had been 

contacted by a consumer. AirTran Airways stated that it has put in place a new review 

process with respect to press releases mentioning fare sales that requires approval by two 

separate managers.

The Enforcement Office has carefully considered the information provided by AirTran

Airways, but continues to believe that enforcement action is warranted. The Enforcement 

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

litigation. AirTran Airways, without admitting any violation, consents to the issuance of 

this order to cease and desist from future violations of 49 U.S.C. § 41712 and section 

399.84 of the Department’s regulations, and to the assessment of $20,000 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 

AirTran Airways, as well as by other air carriers and foreign air carriers. 

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;
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2. We find that AirTran Airways, Inc., violated 14 CFR 399.84 by causing to be 

published air fare advertisements that listed an airfare that was not available for 

purchase by the public; 

3. We find that by violating 14 CFR 399.84 as described in ordering paragraph 2, 

above, AirTran Airways, 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 AirTran Airways, Inc., and all other entities owned or controlled by or 

under common ownership with AirTran Airways, 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 AirTran Airways, Inc., a compromise civil penalty of $20,000 in lieu 

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

ordering paragraphs 2 and 3, above. Of this total penalty amount, $10,000 shall 

be due and payable within 15 days from the date of issuance of this order. The 

remaining $10,000 shall become due and payable if AirTran Airways, Inc., 

violates this order’s cease and desist or payment provisions within one year 

following the date of issuance of this order, in which case the entire unpaid 

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

AirTran Airways, Inc., may be subject to additional enforcement action for failure 

to comply with this order. Failure to pay the penalty as ordered shall also subject 

AirTran Airways, Inc., to the assessment of interest, penalty, and collection 

charges under the Debt Collection Act; and

6. Payment shall be made 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.

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