Order 2014-7-7 

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, 2014

Delta Air Lines, Inc. Docket OST 2014-0001

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 

advertising requirements specified in 14 CFR 399.84 and the statutory prohibition against 

unfair and deceptive practices, 49 U.S.C. § 41712. It directs Delta to cease and desist 

from future violations of section 399.84 and section 41712, and assesses the carrier a 

compromise civil penalty of $100,000.

Applicable Law

As an air carrier, Delta is subject 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 the disclosure of the roundtrip purchase requirement is clearly and 

conspicuously noted in the advertisement and the disclosure is stated prominently and 

proximately to the each way fare amount.1 Advertisements that fail to properly disclose a 

 1 On April 20, 2011, the Department issued a rule amending section 399.84 that, among other things, 

codified the Department’s longstanding enforcement policy on advertising each way fares. Prior to the 

amendment, carriers 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 1999-6-16; 

America West Airlines, Inc., Violations of 49 U.S.C. § 41712 and 14 CFR 399, Order 2003-7-39; ATA
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roundtrip purchase 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 2012 to February 2014, Delta advertised a number of “Fare Specials” on 

the homepage of its website. Although the advertised fares were each way fares and 

required a roundtrip purchase, that condition was not clearly and conspicuously noted. 

Instead, each fare advertised in the “Fare Specials” section was followed by an asterisk 

that referred 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 prominently and proximately to the each way fare 

amount. Instead, the fares linked to a second web page containing a disclosure that the 

advertised fares were, in fact, each way fares subject to a roundtrip purchase requirement. 

As such, Delta failed to properly state that the advertised fares were “each way” fares on 

its homepage as specifically required by section 399.84(b). Further, the disclaimer in fine 

print provided by Delta at the bottom of the advertisement body was 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 its 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 the asterisked explanation on the homepage explicitly stated: “[R]ound-trip 

purchase required.” Delta contends that this notice only made sense if the fares were 

each way fares. Delta further states that any possible confusion would have been

dispelled when the customer clicked on the “Book Now” hyperlink 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, was the prominent notice, 

“Each-Way Based on Required Round-Trip Purchase.” Thus, according 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 places 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 to 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 2005-10-11; United Airlines, 

Inc., Violations of 49 U.S.C. § 41712 and 14 CFR 399.84, Order 2009-8-17.

 
3

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 continues to believe that enforcement 

action is warranted. The Enforcement Office and Delta have reached a settlement of this 

matter in order to avoid litigation. Without admitting any violation, Delta 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 $100,000 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

to future noncompliance with the Department’s advertising requirements by Delta and

other carriers.

This order is issued under the 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 publishing eachway 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; 

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

desist from violations 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.,

and its successors and assignees to further enforcement action;

5. We assess Delta Air Lines, Inc., a compromise civil penalty of $100,000 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 and 
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payable immediately if, within one year of the date of issuance of this order, Delta 

Air Lines, Inc., violates this order’s cease-and-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 for violation of this order; and

6. We order Delta Air Lines, Inc., to pay the compromise civil penalty assessed in 

ordering paragraph 5, above. 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 penalty as prescribed shall subject Delta Air Lines, Inc., to the 

assessment 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 Department 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