Order 2014

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the Ninth day of July , 201 4

Delta Air Lines, Inc. Docket OST 201 4

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Violations of 49 U.S.C. § 41712 and Served July 9 , 2014

14 CFR 399.84

CONSENT ORDER

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

advertis ing requirements specified in 14 CFR 399 .84 and the statutory prohibition against

unfair a nd deceptive practices, 49 U.S.C. § 41712

. It directs Delta to cease and desist

from fut ure violations of section 399 .84 and s ection 41712, and assesses the carrier a compromise civil penalty of $ 100 ,000

.

Applicable Law

A s an air c arrier

, Delta is subj ect to the full fare advertising requirements of Part 399 of the Department’s rules. Pursuant to 14 CFR 399.84 (b)

, an each way airfare that is available only when purchased for roundtrip travel must be advertised as “each way” and

in such a manner that th e disclosure of the roundtrip purchase requirement is clearly and conspicuously noted in the advertisement and the disclosure is stated prominen tly and proximately to the each way fare amount. 1 Advertisements that fail to properly disclose a

1 On April 2 0, 2011, t he Department issued a rule amending section 399.84 t hat, among other things, codified the Department’s longstanding enforcement policy on advertising each way fares. Pr ior to the amendment, c arriers had long been on notice that when advertising each way fares that are available only when purchased for roundtrip travel, the disclosure of the roundtrip purchase requirement in the advertisement must be clear and conspicuous , and prominent and proximate to the advertised fares. See,

e.g., Martinair Holland, N.V., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 1999

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- 16; America West Airlines, Inc., Violations of 49 U.S.C. § 41712 and 14 CFR 399, Order 2003

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- 39; ATA2

roundtrip pur chase requirement do not comply with section 399.84 (b) and constitute an unfair and deceptive trade practice in violation of 49 U.S.C. § 41712.

Background

From November 201 2 to February 2014, Delta advertised a number of “Fare Specials” on the homepage o f its website. Although the advertised fares were each way fares and required a roundtrip purchase, that condition was not clearly and conspicuously noted. Instead, e ach fare advertised in the “Fare Specials” section was followed by an asterisk

that refer red to a disclaimer at the bottom of the list of fares that stated in light

- colored fine print that “Fees/restrictions/baggage fees may apply, round

- trip purchase required.”

The disclosure was also not stated prominen tly and proximately to the each way far e

amount

. Instead, the fare s linked to a second web page containing a disclosure that the

advertised fares were, in fact, each way fares subject to a round trip purchase requirement. As such, Delta failed to properly state that the advertised fares we re “e ach way” fares on its homepage as specifically required by section 399.84(b). Further, t he disclaimer in fine print provided by Delta at the bottom of the advertisement body wa s insufficient to provide clear and conspicuous notice of a roundtrip purchase requirement

, and the fine print disclaimer in this case was not prominent and proximate to the advertised fare. As such, Delta violated section 399.84(b) and 49 U.S.C. § 41712 by not properly disclosing that the advertised fares were “each way” fares on it s homepage.

Mitigation

In mitigation, Delta maintains that, although the fares at issue were not explicitly described as “each way” on its homepage, the risk of consumer confusion was minimal

because t he ast erisked explanation on the homepage explicit ly state d : “[R]ound

- trip purchase re quired.” Delta contends that t his notice only made sense if the fares we re each way fares. Delta further states that any possibl e confusion would have been dispelled when the customer clicked on the “Book N ow” hyperlin k which would then

take the customer to a second page . Delta notes that on that second page, emblazoned in large font immediately under the fare at the top of the screen, wa s the prominent notice,

“Each

- Way Based on Re quired Round

- Trip Purchase.” Thus, a ccording to Delta, even if a customer found the notice on the homepage confusing, there could have been no confusion after the customer viewed the second page, which was a necessary step before making a purchase.

Nevertheless, Delta states that it place s a high priority on clearly and accurately representing its fares to the traveling public and certainly does not want to create any potential confusion. For that reason, Delta revised the text of the explanatory notice in the fare box on the homepage t o say, “ Fares displayed are each

- way ; round

- trip purchase is required.” Further, Delta increased the size of the text and changed its color (from grey

Airlines, Inc., Violations of 49 U.S.C. § 41712 and 14 CFR Part 399, Order 2005

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- 11; United Airlines, Inc., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2009

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to white) so that it stands out in greater contrast with the blue background. Delta believes

that these measures fully addressed the Department’s concerns and eliminated any possibility of customer confusion.

Decision

The Office of Aviation Enforcement and Proceedings ( Enforcement Office ) has carefully considered the information provided by Delta

, but co ntinues to believe that enforcement

action is warranted. The Enforcement Office and Delta have reached a settlement of this matter in order to avoid litigation. W ithout admitting any violation, Delta consents to the

issuance of this order to cease and de sist from future violations of 49 U.S.C. § 41712 and

14 CFR 399 .84 and to the assessment of $ 10 0,000 in compromise of potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

This compromise assessment is appropriate considerin g the nature and extent of the violations described herein and serves the public interest. It represents a strong deterre nt to future noncompliance with the Department’s advertising requirements by Delta and

other carriers

.

This order is issued under th e authority contained in 49 CFR Part 1

.

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 (b) by publ ish ing each

way airfare advertisements that were only available when purchased for roundtrip travel without advertising such fares as “each way” fares and by failing to clearly and conspicuously disclose the round

- trip purchase requirement prominently and proximately to the each way fare amount ;

3. We find that by violating 14 CFR 399.84 (b) 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;

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. We order Delta Air Lines, Inc., and its successors and assignees to cease and

desist from v iolations of 14 CFR 399.84 and 49 U.S.C. § 41712 . Failure to comply with this cease and desist provision shall subject Delta Air Lines, Inc.,

a nd its successors and assignees to further enforcement action ;

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. We assess Delta Air Lines, Inc., a compromise civil penalty of $ 10 0,000 in lieu of civil penalties that might otherwise be assessed for the violations described in ordering paragraphs 2 and 3, above . Of this total penalty amount, $ 50 ,000 shall be due and payable within thirty days of the date of the issuance of this order. The remaining portion of the civil penalty amount, $ 50 ,000, shall become due and4

payable immediately if, within one ye ar of the date of issuance of this order, Delta Air Lines, Inc., violates this order’s cease

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- desist provision or fails to comply with the order’s payment provision, in which case Delta Air Lines, Inc., may be subject to additional enforcement action fo r violation of this order ; and

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. We order Delta Air Lines, Inc., to pay th e compromise civil penalty assessed in ordering par agraph 5, above

. Payments shall be made by wire transfer through the Federal Reserve Communications System, commonly known as "Fe d 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 penalty as prescribed shall subject Delta Air Lines, Inc., to the

assessme nt of interest, penalty, and collection charges under the Debt Collection Act and to possible 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 Dep artment takes review on its own

initiative.

BY:

BLANE A. WORKIE

Acting Assistant General Counsel for

Aviation Enforcement and Proceedings

An electronic version of this document is available at www.regulations.gov