Air Travel Offers and the U.S. Department of Transportation: A Primer for Sellers | Cozen O’Connor

When Congress deregulated the U.S. home airline business in 1978, it included a provision within the regulation to forestall particular person states from undoing, by way of their very own regulation, that which Congress sought to attain on the federal degree – an business wherein most reliance can be positioned on aggressive market forces to encourage new entry and decide the variability, high quality, and worth of air service. This provision prevents states from enacting or implementing any legal guidelines associated to airline costs, routes, or providers. Additionally, Section 5 of the Federal Trade Commission Act (FTCA), which authorizes the Federal Trade Commission (FTC) to research and prohibit “unfair or deceptive acts or practices” and “unfair methods of competition,” expressly excludes the airline business. As a consequence, major accountability for aviation client safety, together with authority to police and take enforcement motion in response to air-related promoting practices which will hurt or mislead shoppers, resides with the U.S. Department of Transportation (DOT).

Over the years, DOT has issued myriad guidelines governing how airways, tour operators, journey businesses, and different sellers of air transportation could market air merchandise and repair choices. Most – however not all – of those guidelines have been issued underneath the authority conferred by 49 U.S.C. § 41712(a), which is patterned on Section 5 of the FTCA and thus authorizes DOT to research and prohibit unfair or misleading practices and unfair strategies of competitors. DOT’s jurisdiction underneath part 41712 is restricted to: (i) the supply or sale of air transportation (i.e., widespread carriage by air between a degree in a single state and a degree in one other state, or between U.S. and overseas factors) by (ii) U.S. and overseas air carriers or (iii) ticket brokers.¹

Sellers of scheduled air transportation that maintain out airfares or air-inclusive packages to U.S. shoppers are well-advised to familiarize themselves with DOT’s air travel-related promoting necessities. Several of those necessities are summarized under.

Advertisements for passenger air transportation that state a worth should state, as a single “all in” worth, the whole quantity to be paid by the shopper to the vendor, together with authorities taxes, airline- or agent-imposed charges, and some other necessary, i.e., unavoidable, costs. Sellers could – however aren’t required to – individually state costs which can be (and should be) included within the whole worth, as long as such costs:

1. aren’t false or deceptive;
2. aren’t displayed prominently;
3. aren’t offered in the identical or bigger measurement as the whole worth; and
4. present price info on a per passenger foundation.²

If the U.S. civil aviation safety payment is particularly recognized in promoting, it should be described because the “September 11th Security Fee.”

Airline ticket phrases which can be “material” to a client, i.e., phrases prone to have an effect on an inexpensive client’s choice to buy the ticket, should be clearly and conspicuously disclosed in commercials. Examples embody, however aren’t restricted to:

1. restrictions on refunds or itinerary modifications;
2. most/minimal keep necessities;
3. advance buy, i.e., “book by,” necessities; and
4. prolonged blackout durations.

DOT has not outlined, in a single regulation or steerage doc, all phrases that it considers to be “material,” and thus common sense and customary sense needs to be utilized when deciding what phrases to prominently determine within the commercial.

Airline and ticket agent public-facing web sites should clearly and conspicuously disclose through the on-line reserving course of that baggage charges could apply and hyperlink to a web-based location the place particulars are offered. Additionally, airline web sites should record all charges for ancillary providers, which can be offered as a variety (aside from baggage costs, for which the precise quantity should be supplied).

As a longstanding matter of enforcement discretion, DOT doesn’t apply its airfare promoting necessities to airline or ticket agent web sites that aren’t marketed to U.S. shoppers. DOT seems to a wide range of elements to resolve if a web site is, in truth, marketed to U.S. shoppers, together with however not restricted as to if the web site:

1. is in English;
2. shows costs in U.S. {dollars};
3. highlights promotions for flights to, from, or inside the United States; or
4. supplies totally different pages (or micro-sites) designed for U.S. and different shoppers.

Regardless of whether or not a web site is marketed to U.S. shoppers, as a authorized matter and as famous above, DOT’s jurisdiction over air journey affords is restricted to air transportation to, from, or inside the United States.

Each airline is required to publish to its web site, in simply accessible kind, its contract of carriage and (to the extent the airline is required by DOT to have one or each) its contingency plan for prolonged tarmac delays and customer support plan. Under DOT’s regulation implementing the Air Carrier Access Act, 49 U.S.C. § 41705, an airline that operates giant plane additionally should guarantee its major web site’s public-facing pages are accessible to people with disabilities. This DOT web site accessibility requirement doesn’t prolong to ticket agent web sites.

DOT requires that airfares (in addition to costs for air-inclusive tour merchandise) be present and obtainable when held out on the Internet, and “promptly” up to date or eliminated when an inexpensive variety of seats is not obtainable. For such on-line commercials, pricing needs to be up to date or eliminated shortly (which DOT maintains ought to happen inside 24 hours of when the vendor turns into conscious).

Offers for percentage-off reductions for airfares or air-inclusive excursions should clearly disclose how the low cost is calculated. The time period “base fare,” if used within the commercial, should correspond to an quantity that features all necessary airline or different seller-imposed costs (e.g., gas surcharges), whereas the phrases “flight,” “ticket,” or “fare” should correspond to quantities that embody all government-imposed costs (e.g., taxes) and seller-imposed costs. As a matter of longstanding enforcement coverage, DOT deems share off promotions to be misleading if the “benchmark” worth (i.e., the value to which the discounted is in contrast) was not obtainable in cheap portions and for an inexpensive interval instantly previous to the promotion.

When marketed, each-way fares obtainable solely as a part of a round-trip buy should be accompanied by a transparent and conspicuous disclosure of the round-trip buy requirement, with such disclosure outstanding and in shut proximity to the marketed fare. Such fares must not ever be described or in any other case held out as “one-way,” no matter any accompanying disclosures.

To the extent a ticket agent retains a service payment for refunding an airline ticket on account of a canceled flight or a considerably delayed or modified flight, the payment’s existence and quantity, and its non-refundable nature, should be clearly disclosed when the ticket is bought. Service charges which can be just for processing fee for a flight the patron discovered is probably not retained when dealing with such refunds.

Optional providers (e.g., journey insurance coverage) is probably not robotically added to the patron’s buy if no motion is taken. Fees for optionally available providers could solely be added to the whole worth if the patron has first affirmatively agreed to (i.e., “opted in”) to the service and payment.

Before accepting any partial fee (e.g., deposit) for an airfare or air-inclusive tour which may be topic to a rise previous to full fee, sellers should get hold of written client consent to the potential worth improve earlier than the partial fee is accepted. Sellers could by no means improve the value for an airfare or air-inclusive tour after full fee has been made, besides when on account of a rise in government-imposed taxes, after which solely when the patron has supplied his or her prior written consent to such a post-purchase worth improve.

When transacting with prospects through phone channels or bodily areas, ticket brokers that aren’t small businesses3 should disclose and supply web-based low cost fares if the shopper signifies that she or he is unable to make use of the ticket agent’s web site on account of a incapacity.

Airlines should enable reservations to be held on the quoted fare with out fee, or canceled with out penalty, for at the least 24 hours after the reservation is made, supplied the reservation is made at the least seven days previous to departure. This requirement doesn’t apply to different sellers of air transportation.

Air transportation can’t be held out as “free” the place taxes or different necessary costs apply to make use of the ticket. Offers without cost air transportation additionally should clearly and conspicuously determine any vital circumstances relevant to the ticket. In the case of “two-for-one” promotions, the supply ought to state if the eligible fare is increased than different fares available in the market obtainable on the identical airline.

Flight schedule info that includes codeshare service (i.e., an association whereby a service’s designator code (corresponding to AA, DL, or UA) is used to determine a flight operated by one other service), when displayed on-line in response to a search question, should disclose the company identify of the working service and some other identify underneath which the service is held out, e.g., “operated by ABC Airlines d/b/a XYZ Express.” The disclosure should seem prominently in textual content format instantly adjoining to the codeshare flight within the preliminary search outcomes, supplied that for cell web sites or functions, solely the company identify want be disclosed. Static written schedules (whether or not digital or print) should disclose codeshare service through an simply identifiable mark (e.g., an asterisk) that corresponds to textual content disclosing the working service’s company identify and some other identify underneath which the service is held out. Additional necessities apply to print, tv, and radio commercials for service in markets which will contain codeshare service.

E-ticket confirmations and itinerary receipts should embody:

1. a abstract of costs to test an ordinary measurement first and second bag in addition to any costs for carry-on baggage (supplied that ticket brokers could as an alternative present a hyperlink to a location the place such particulars are offered);
2. discover of airline contract phrases integrated by reference;
3. discover of any codeshare service, to incorporate the working service’s company identify and some other identify underneath which such service is held out; and
4. discover of airline overbooking practices and the provision of denied boarding compensation.

E-ticket confirmations and itinerary receipts additionally ought to embody (within the case of home carriage) the salient options of phrases that enable the vendor to limit refunds of the ticket worth, impose financial penalties (e.g., change charges), or elevate the value after full fee on account of government-imposed tax will increase, and (within the case of worldwide carriage) discover of service legal responsibility limits underneath the Warsaw system and Montreal Convention.

The necessities summarized above are restricted to affords for scheduled air transportation. Different DOT necessities apply within the case of affords for constitution air transportation, together with public charters.

¹ Under 49 U.S.C. § 40102(a)(45), a ticket agent is “a person (except an air carrier, a foreign air carrier, or an employee of an air carrier or foreign air carrier) that as a principal or agent sells, offers for sale, negotiates for, or holds itself out as selling, providing, or arranging for, air transportation.”

² The Trump administration reportedly plans to amend 14 C.F.R. § 399.84(a), DOT’s full fare promoting rule, to “eliminate overly prescriptive requirements which prevent airlines from highlighting government taxes on air transportation.” See Office of Information and Regulatory Affairs, Office of Management and Budget, “Spring 2025 Unified Agenda of Regulatory and Deregulatory Action,” obtainable at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202504&RIN=2105-AF37. However, except and till part 399.84(a) is amended by way of a remaining rule, the complete fare promoting requirement described herein continues to use to U.S. air carriers, overseas air carriers, and ticket brokers.

³ A ticket agent’s qualification as a small enterprise is set by the U.S. Small Business Administration. As of April 2026, a ticket agent with whole annual revenues of lower than $25 million (excluding funds acquired in belief for an unaffiliated third social gathering, such fee for airline or different journey provider bookings, however together with any commissions) is taken into account a small enterprise.