Order 2011-9-18

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twenty-Sixth day of September, 2011

Virgin Atlantic Airways, Ltd. Docket OST 2011-0003

Served September 26, 2011

Violations of 49 U.S.C. § 41712 and 

14 CFR 399.84 

CONSENT ORDER

This consent order concerns Internet advertisements by Virgin Atlantic Airways, Ltd., 

(Virgin Atlantic) that violate the advertising requirements specified in 14 CFR 399.84, as 

well as 49 U.S.C. § 41712, which prohibits unfair and deceptive practices. It directs 

Virgin Atlantic to cease and desist from future violations of 399.84 and section 41712, 

and assesses the carrier a compromise civil penalty of $50,000. 

Applicable Law

As a foreign air carrier, Virgin Atlantic is subject to the advertising requirements of Part 

399 of the Department’s rules. Pursuant to 14 CFR 399.84, carriers advertising airfares 

must 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 base fares 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 advertisements where a fare is presented so that 

consumers can immediately determine the full fare to be paid. Thus, for example, fare 

advertisements that 1) fail entirely to identify the existence and amount of separate 

additional taxes and fees at the first point at which a fare is displayed, or 2) include only 
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general statements regarding the existence of such taxes and 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 pop-up 

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

prominently and immediately displayed.2

 

Facts and Conclusions

For a period of time Virgin Atlantic displayed advertisements on several websites that did 

not provide direct access to information on additional taxes and fees. Rather, once the 

consumer clicked on the advertised fare, he or she was taken to a landing page where 

sample routes and prices were displayed, as well as fine print, reached only after scrolling 

to the bottom of the page which explained the nature and amounts of additional taxes and 

fees. Virgin Atlantic’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. 

 Mitigation

In mitigation, Virgin Atlantic states that it takes its obligation to comply with the 

Department's regulations very seriously and that any defects in its advertising were 

inadvertent and were caused by changes to the format of its website copy which caused a 

reader to have to scroll down to review the terms and conditions applicable to the 

advertised fare. Virgin notes that the format of the ads varied by the scope and nature of 

 1 See, e.g., US Airways, Inc., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2011-6-2 (June 2, 

2011); Delta Air Lines, Inc. Violations of 49 U.S.C. § 41712 and 14 CFR 399.84 Order 2010-5-30 (May 

28, 2010). On April 20, 2011, the Department issued a rule changing its enforcement policy with respect to 

section 399.84 to require that airlines and ticket agents comply with the rule as written. Under this new 

enforcement policy, which is effective January 24, 2012, airlines and ticket agents must include all 

government taxes and fees in every advertised fare. The Department’s long-standing prohibition on 

omitting carrier-or agent-imposed charges, such as fuel surcharges or convenience fees, from advertised 

fares remains in effect.

2 For example, under current policies, 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 a pop-up or a 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.
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the markets being promoted. Upon notice of the Department's concerns, Virgin Atlantic

immediately removed all online advertising until revisions were made, and revised both 

its banner ads and its landing page before placing the ads back online. Virgin Atlantic 

addressed the Department's concerns by adding a hyperlink to the banner ads' fee 

disclosure that leads directly to the terms and conditions, and revised its landing page to 

prominently display the round trip disclosure. On its own initiative, Virgin Atlantic states 

that it took added steps to make the banner ad disclosure more prominent and completely 

revised and reformatted its terms and conditions, making it easier for the consumer to 

follow. Virgin Atlantic notes that it has fully cooperated with the Department in this 

matter and further states that it continues to pride itself on its reputation for customer 

care, as well as its compliance disposition. 

Decision

The Department views compliance with the Federal aviation statutes and regulations very 

seriously. The Enforcement Office has carefully considered the information provided by 

Virgin Atlantic and continues to believe that enforcement action is warranted. The 

Enforcement Office and Virgin Atlantic have reached a settlement of this matter in order 

to avoid litigation. Without admitting or denying the violations described above, Virgin 

Atlantic 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, and to the assessment of $50,000 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;

2. We find that Virgin Atlantic Airways, Ltd., violated 14 CFR 399.84 by advertising 

fares that failed to state the entire price to be paid;

3. We find that by engaging in the conduct described in ordering paragraph 2, above, 

Virgin Atlantic Airways, Ltd., engaged in unfair and deceptive practices and unfair 

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

4. We order Virgin Atlantic Airways, Ltd., and all other entities owned or controlled by, 

or under common ownership and control with Virgin Atlantic Airways, Ltd., their 

successors, affiliates, and assigns, to cease and desist from further similar violations 

of 14 CFR 399.84 and 49 U.S.C. § 41712. Failure to comply with this cease and 
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desist provision shall subject Virgin Atlantic Airways, Ltd., and its successors and 

assignees to further enforcement action;

5. We assess Virgin Atlantic Airways, Ltd., $50,000 in compromise of civil penalties 

that might otherwise be assessed for the violations described above. Of this total 

penalty amount, $25,000 shall be due and payable within 30 days of the date of 

issuance of this order. The remaining $25,000 shall become due and payable 

immediately if Virgin Atlantic Airways, Ltd., violates this order’s cease and desist 

provisions within one-year; and

6. We order Virgin Atlantic Airways, Ltd., to remit the payment assessed in ordering

paragraph 5 above 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 the penalty as ordered shall subject Virgin Atlantic Airways, Ltd., to the 

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

and to additional enforcement action for failure 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:

ROSALIND A. KNAPP

Deputy General Counsel

(SEAL)

An electronic version of this document is available at 

www.regulations.gov