90 Days for Ticket Agents to Comply with DOT Guidance on Internet Flight Search Displays

shutterstock_127173104The DOT Office of Aviation Enforcement and Proceedings has issued guidance on how “no available flights” Internet search results must be displayed on ticket agent websites.* The Enforcement Office is concerned that consumers are being misled when using online flight search tools to find and compare carrier flights. Many agents do not include every carrier that offers a particular flight in their flight-search tools. When this happens, the user typically receives a message that there are no available flights, even though other carriers not included in the search tool may offer that specific flight.

The Enforcement Office finds this approach deceptive and unfair to consumers who it believes won’t understand that there are carriers beyond those marketed by the agent (meaning appearing on its website) that offer the flight. Problematic messages include “no flights are available,” “no nonstop flights are available,” “no flights match your search criteria,” and “no results were found.” The Enforcement Office has decided that these types of messages can only be used “when no airline—including those not covered by the online search—offers a flight matching a consumer’s criteria.”

What does DOT view as acceptable? The site’s message must clearly state that the search tool is only displaying results from airlines marketed by the agent, so that a “no matching flights” result does not mean that no other carrier offers the flight.  Examples include:

  • “No flights are available from airlines covered by this website.”
  • “No flights offered by airlines included on our website match your search criteria.”
  • “A search of the airlines listed on this website [include hyperlink to list of airlines covered] yielded no results.”

This is as far as the agent must go—its message need not refer consumers to carriers outside the agent’s website who do offer the requested flight.

The Enforcement Office has given ticket agents 90 days from the Notice’s August 19 date of issue to comply with this guidance. It will then begin enforcement actions under 42 U.S.C. Section 4172.  Ticket agents should take this notice quite seriously. The Enforcement Office has been vigilant in monitoring air transport industry websites and is imposing much higher penalties than in prior years.

*A “ticket agent” is a person (but not a domestic or foreign air carrier or their employees) that acts as a principal or agent in selling, providing or arranging for air transportation, or offering or negotiating such transport, or even holding itself out to the public as performing any of these acts.  (49 U.S.C. § 40102(a)(45)).  

 

Posted in Airlines, DOT Office of Aviation Enforcement, Ticket Agents

TSA Drops Plan to Allow Carry-On Knives

TSA Administrator John Pistole recently dropped the TSA’s proposed plan to allow passengers to carry pocket knives and other small knives (2.36 inches or less in length, and no more than ½ inch wide) onto aircraft. Currently all knives and sharp objects (as noted in TSA’s Prohibited Items List (PIL)) must be placed in checked baggage.  This was one of the aircraft security rules that followed in the wake of 9/11, given the attackers’ use of box cutters to overpower the passengers, flight attendants and flight crews.

But with security measures now in place such as locked cockpit doors and the arming of pilots with guns, knife manufacturers like Victorinox Swiss have lobbied the TSA to follow the lead of other countries and rescind the ban. The European Union, for example, allows passengers to carry knives on board aircraft that are less than 6 centimeters in length (which is equivalent to the 2.36 inch maximum recommended by TSA). In doing so, the EU followed ICAO’s suggested PIL, which lists knives of such length as being permitted on board aircraft in some ICAO countries.

On March 13, 2013, the TSA issued a statement that it planned to follow the ICAO PIL and rescind the ban, and also allow sporting good items like bats and golf clubs in carry-on baggage. (Photos of the knives and sporting goods that TSA planned to allow are shown on its official blog). The Coalition of Flight Attendant Unions vociferously opposed the measure, and presented TSA with a legal petition signed by their members, TSA screeners, pilots, law enforcement officers (including federal air marshals), and passenger rights associations.  The U.S. Congress was also outraged and sent a letter to Pistole signed by 145 of its members opposing the change. After realizing the opposition he was up against, Pistole backtracked and said that the TSA would not pursue the change.  Just to ensure he had no funds to do so should he change his mind, the U.S. House voted to block any funding that the TSA would need to lift the ban.

One of the notable things about this latest TSA episode  is that it marks the first time that TSA sought the input of its Aviation Security Advisory Committee on whether to lift the ban. The Committee is comprised of flight attendants, air marshals, airline management and labor reps, airline consumer groups, and advocate group representing victims of aviation terrorist attacks. So far in its history, TSA has used the group to convey final rulings, but has never sought its input as part of the agency’s decision making process. Perhaps Pistole’s rough ride in trying to lift the knife ban will lead to more democratic discussions in the future regarding TSA’s more controversial measures.

Posted in Airlines, TSA Policies and Notices

Airlines’ Challenge of Ad Rule Hits End of Runway at US Supreme Court

On April 1, 2013, the U.S. Supreme Court declined to hear a challenge by three U.S. airlines to DOT’s rule requiring that all fees and taxes be included in advertised airfares.  The “rule” is actually DOT’s most recent interpretation of 14 CFR Section 399.84, the “full fare advertising rule,” which governs the advertising of fares by both carriers and ticket agents.

Prior to January 26, 2012, for enforcement purposes, DOT interpreted Section 399.84 as allowing for taxes and government-imposed fees collected by carriers and ticket agents (such as passenger facility charges and departure taxes) to be stated separately from base fares in advertisements.   Ticket agent and carrier-imposed fees, however, (i.e. surcharges for fuel or insurance) were required to be included in the advertised fare.   (See a DOT Order dated December 28, 2012, discussing the restrictions under DOT’s prior interpretation of the rule).

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Posted in Recent Developments In Aviation Law

DOT May Prohibit Some Alitalia Flights due to Italy’s Airport User Fees

For many years U.S. air carriers have argued that Italy’s two-tiered airport user fees are discriminatory.  Italy’s airports charge lower landing and take-off fees for intra-EU flights, while fees for extra-EU flights (those going to or from Italy via a foreign location) are much higher.  Both DOT and the U.S. State Department have argued to the European Union (and directly to Italian authorities) that these different fees discriminate against U.S. carriers and violate the user charges provision (Article 12) of the U.S.-EU Air Transport Agreement (“the Agreement”).   Italy, however, has steadfastly refused to lower the fees.  The EU recently required the Italian government to justify the higher fees or eliminate them, but resolution of the issue from the EU side could take many months.

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Posted in Recent Developments In Aviation Law

Cozen Aviation Lawyers Author Summary of U.S. Aviation Law

Cozen O’Connor aviation attorneys Mark Atwood and Allan Mendelsohn were selected by the Global Legal Group to provide an overview of U.S. aviation law in the International Comparative Legal Guide to Aviation Law 2013. The Global Legal Group (GLG) publishes cross-border summaries of law in several different practice areas. The publication is the first aviation law summary offered by the GLG, and provides an overview of the aviation laws in 27 countries, including the U.S., Canada, Germany, Mexico, and the United Kingdom, among others. We believe that this guide will prove an invaluable reference for both aviation attorneys and the airline industry, and we look forward to watching the growth of this publication in the years to come.

Posted in Recent Developments In Aviation Law

Major Air Carrier Nations Oppose EU Emissions Trading Scheme

With less than two months to go before the European Union’s controversial Emissions Trading Scheme (ETS) takes effect for air transport, non-European nations are starting to take action to prevent application of this scheme to non-EU carriers. Beginning January 1, 2012, the ETS would require airlines – whether they are European or not – to have emissions “credits” in order to operate into the EU. These credits must cover the entire estimated amount of CO2 that the operation is expected to emit. The ETS has been in force since 2005 for other industries, including ground transport, but until now it has not been applied to air services.

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Posted in EU Emissions Trading Scheme

President Signs 2012 FAA Reauthorization Act

On February 15, 2012, President Obama signed into law the reauthorization act for the FAA (titled the “FAA Modernization and Reform Act of 2012” (H.R. 658)). The Act is the first longterm funding for the FAA in 5 years.  Because of ongoing Congressional partisan bickering over the Act, the FAA has instead been funded since 2007 by 23 short-term extensions. While most of the discussion about the Act has been its $63 billion in funding for the FAA through 2015 and its ratcheting up of pressure on the FAA to complete the NextGen air traffic control system, the Act also contains some notable provisions for the air carrier industry.

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Posted in Essential Air Service, EU Emissions Trading Scheme, FAA Legislation, Reauthorization Act 2012, Tarmac Delays

French High Court Rules That Forum Non Conveniens Doesn’t Apply in U.S. Air Crash Suit

On December 7, 2011, the French high court, the Cour de Cassation, ruled that a United States District Court could not use the doctrine of forum non conveniens under Article 33 of the 1999 Montreal Convention to transfer to Martinique suits brought because of the crash of a Colombian air carrier. The case had been dismissed by the U.S. District Court on the grounds that forum non conveniens is an available procedural tool under Article 33, and that the doctrine favored litigation in Martinique where all of the crash victims resided or were citizens. That decision was affirmed by the Eleventh Circuit Court of Appeals. It is expected that the plaintiffs will soon refile their suit in the United States.

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Posted in Forum Non Conveniens, Montreal Convention, Recent Developments In Aviation Law

Major Air Carrier Nations Oppose EU Emissions Trading Schemes

With less than two months to go before the European Union’s controversial Emissions Trading Scheme (ETS) takes effect for air transport, non-European nations are starting to take action to prevent application of this scheme to non-EU carriers. Beginning January 1, 2012, the ETS would require airlines – whether they are European or not – to have emissions “credits” in order to operate into the EU. These credits must cover the entire estimated amount of CO2 that the operation is expected to emit. The ETS has been in force since 2005 for other industries, including ground transport, but until now it has not been applied to air services.

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Posted in EU Emissions Trading Scheme

Legal Aspects of Aircraft Lease Agreements

Mark Atwood, of Cozen O’Connor’s Washington D.C. Office, spoke last month at a legal seminar in Dubai, UAE, on “Legal Aspects of Aircraft Lease Agreements,” co-sponsored by Cozen O’Connor and United Insurance Brokers. Participants included representatives of carriers and leasing companies in the UAE, Qatar, Bangladesh and Kenya. The seminar, which covered operating leases, wet leases and the insurance aspects of aircraft leases, was the latest of several such seminars held earlier this year in Washington and London under the auspices of AeroPodium. The next leasing seminar is scheduled for December 9 in the firm’s Washington D.C. office.  Details can be found at AeroPodium.

The level of participation at the seminar pointed up the extent to which the UAE and Qatar are becoming major hubs not only of international air service, but of all manner of aviation and aerospace activity.

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Posted in Aircraft Leasing, Insurance
Aviation Law Advisor
Cozen O’Connor’s aviation attorneys are committed to keeping their clients apprised of recent developments in the aviation industry. The world of aviation is complex and fast-moving with many participants, including aircraft manufacturers, air carriers, airports, airport operators, FBOs, repair stations and maintenance providers, insurers, airline investors, corporate and private aircraft owners and operators, and aircraft leasing and management companies. Our clients are in every sector of the industry. This blog is just one tool that we use to keep them updated on the litigation, regulatory, legislative and international developments that affect their operations every day.
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