Order 2010-9-25

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the day of 24th of September, 2010

MN Airlines, LLC d/b/a

Sun Country Airlines Docket OST 2010-0005

Served September 24, 2010

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84 

CONSENT ORDER

This consent order concerns Internet advertisements by MN Airlines, LLC d/b/a Sun 

Country Airlines (Sun Country) that violate the advertising requirements specified in 14 

CFR Part 399, as well as 49 U.S.C. § 41712, which prohibits unfair and deceptive 

practices. It directs Sun Country to cease and desist from future violations of Part 399 

and Section 41712, and assesses the carrier a compromise civil penalty of $40,000. 

Applicable Law

As an air carrier, Sun Country is subject to the advertising requirements of Part 399 of the 

Department’s rules. To ensure that consumers are not deceived and are given accurate 

and complete fare information on which to base their airline travel plans, 14 CFR 399.84 

requires that advertisements specifying airfares 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 the base fare 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 

advertisement where a fare is presented. Thus, fare advertisements that fail to identify 

the existence and amount of separate additional taxes and fees or include only general 
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statements regarding the existence of such taxes or 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 print advertisements, an asterisk or other symbol placed proximate to the advertised 

fare may refer the reader to the bottom of the advertisement where the nature and amount 

of the fees that may be stated separately are shown. 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 place 

on a separate screen, where the nature and amount of taxes and fees are prominently and 

immediately displayed.2

 

Furthermore, 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. Failure to have 

a reasonable number of seats available at the advertised fare violates 399.84 and 

constitutes an unfair and deceptive trade practice under 49 U.S.C. § 41712.3

 

Facts and Conclusions

A recent review of Sun Country’s website by the Office of Aviation Enforcement and 

Proceedings (Enforcement Office) disclosed instances where Sun County failed to 

comply with the Department’s full-fare advertising rule and case precedent. Sun 

Country’s homepage contained an advertisement with the following statement: “Fall Fare 

Sale [with fares starting] from $89* one-way... .” Although an asterisk appeared after 

the stated fare of $89, there was no language regarding taxes and fees on the page on 

which the asterisk appeared, nor was there a hyperlink proximate to the fare that took a 

consumer to a separate screen where the full amount of taxes and fees were disclosed. 

Rather, once the consumer clicked on the link on the advertisement, he or she was taken 

to a landing page where “Fall Fare Sale” destinations appeared and the nature and exact 

amount of the taxes and fees were disclosed in fine print at the bottom. Thus, consumers 

were not notified of the existence and amount of additional taxes and fees applicable to 

the Fall Fare Sale until after they arrived at the landing page and scrolled down to the 

 1 See, e.g., Air Jamaica, Ltd., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2008-12-25 

(December 30, 2008). 

2 For example, 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 the 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.

3 See, e.g., AirTran Airways, Inc., Order 2010-5-29 (Issued May 29, 2010); 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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bottom. Sun Country’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. 

Further, Sun Country’s advertisement on its homepage listed three cities (Palm Springs, 

New York City, and Phoenix) as destination cities directly below the language stating 

“Fall Fare Sale from $89*.” However, there were no fares available to any of those three 

cities for $89. Rather, the lowest available fares to those destinations were either $129 or

$99. Advertising fares “from $89” to the three cities listed on the homepage when, in 

fact, an $89 fare was not available to those cities violates 14 CFR 399.84 and 49 U.S.C. 

§ 41712. 

Mitigation

In mitigation, Sun Country states that the subject non-compliant advertising ran for a 

short period of time, and only on the Sun Country Airlines website. The carrier further 

states that the website posting was created by a new employee who failed to get the 

normal clearances from management before posting. The carrier asserts that it has since 

reemphasized its review procedures for all advertising content, and has provided those 

more formal procedures in written form to all involved employees.

Decision

The Enforcement Office has carefully considered the information provided by MN 

Airlines, LLC d/b/a Sun Country Airlines and continues to believe that enforcement 

action is warranted. The Department views compliance with the Federal aviation statutes 

and regulations very seriously. The Enforcement Office and MN Airlines, LLC d/b/a 

Sun Country Airlines have reached a settlement of this matter in order to avoid litigation. 

This settlement was reached in the ordinary course of business and pursuant to applicable 

law. Without admitting or denying the violations described above, MN Airlines, LLC 

d/b/a Sun Country Airlines consents to the issuance of this order to cease and desist from 

future violation of 49 U.S.C. § 41712 and 14 CFR 399.84, 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 a strong deterrent 

against future noncompliance with the Department’s advertising requirements. 

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;
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2. We find that MN Airlines, LLC d/b/a Sun Country Airlines violated 14 CFR 399.84 

by advertising fares that failed to provide proper notice of taxes and fees that legally 

may be stated separately from the fare and by advertising fares to destinations at a 

price when fares at those prices were not available;

3. We find that engaging in the conduct described in paragraph 2 above, MN Airlines, 

LLC d/b/a Sun Country Airlines engaged in unfair and deceptive trade practices and 

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

4. We order MN Airlines, LLC d/b/a Sun Country Airlines and all other entities owned 

or controlled by, or under common ownership and control with MN Airlines, LLC 

d/b/a Sun Country Airlines their successors, affiliates, and assigns, to cease and desist 

from further similar violations of 49 U.S.C. § 41712 and 14 CFR 399.84. Failure to 

comply with this cease and desist provision shall subject MN Airlines, LLC d/b/a Sun 

Country Airlines and their successors and assignees to further enforcement action;

5. MN Airlines, LLC d/b/a Sun Country Airlines is assessed $40,000 in compromise of 

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

ordering paragraphs 2 and 3 above. Of this total penalty amount, $20,000 shall be 

due in three installments. The first payment of $7,000 shall be due and payable 

within 30 days of the date of issuance of this consent order. The second payment of 

$6,500 is due and payable within 60 days of the date of issuance of this consent order. 

The third payment of $6,500 is due and payable within 90 days of the date of issuance 

of this consent order. The remaining $20,000 shall become due and payable 

immediately if MN Airlines, LLC d/b/a Sun Country Airlines violates this order’s 

cease and desist or payment provisions during the 12 months following the service 

date of this order, and MN Airlines, LLC d/b/a Sun Country Airlines also may be 

subject to further enforcement action for failure to comply with this order; and 

6. Payments 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. The wire transfers shall be executed in accordance with the instructions 

contained in the Attachment to this order. Failure to pay the compromise penalty 

assessment as ordered will subject MN Airlines, LLC d/b/a Sun Country Airlines to 

an assessment of interest, penalty, and collection charges under the Debt Collection 

Act, and to possible enforcement action for failure to comply with this order.
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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:

SAMUEL PODBERESKY

Assistant General Counsel for

 Aviation Enforcement and Proceedings

(SEAL)

An electronic version of this document is available at 

www.regulations.gov