[Federal Register Volume 87, Number 166 (Monday, August 29, 2022)]
[Rules and Regulations]
[Pages 52677-52681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18170]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 399

[Docket No. DOT-OST-2019-0182]
RIN 2105-ZA18


Guidance Regarding Interpretation of Unfair and Deceptive 
Practices

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Guidance regarding interpretation of unfair and deceptive 
practices.

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SUMMARY: The U.S. Department of Transportation (DOT or the Department) 
is issuing a guidance document to inform the public and regulated 
entities about DOT's interpretation of the terms unfair, deceptive, and 
practices as it relates to its statutory authority to prohibit unfair 
or deceptive practices. The Department is taking this action to better 
define the terms unfair and deceptive in response to an Executive order 
issued by President Biden on July 9, 2021, on promoting competition in 
the American economy.

DATES: This final guidance document is effective August 29, 2022.

ADDRESSES: This guidance will appear on the Department's aviation 
consumer protection website at https://www.transportation.gov/airconsumer/guidance-aviation-rules-and-statutes. The Department's 
final rule regarding unfair and deceptive practices and related 
documents are available on the docket at https://www.regulations.gov; 
follow the online instructions for accessing DOT-OST-2019-0182.

FOR FURTHER INFORMATION CONTACT: Robert Gorman, Kimberly Graber, or 
Blane Workie, Office of Aviation Consumer Protection, U.S. Department 
of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-
366-9342, 202-366-7152 (fax); [email protected]; 
[email protected]; or [email protected] (email).

SUPPLEMENTARY INFORMATION:

Background

    The Department's authority to regulate unfair and deceptive 
practices in air transportation or the sale of air transportation is 
found at 49 U.S.C. 41712 (``section 41712'').\1\ Section 41712(a) gives 
the Department the authority to investigate and decide whether an air 
carrier, foreign air carrier, or ticket agent is engaged in an unfair 
or deceptive practice in air transportation or the sale of air 
transportation. In addition to this general provision, Congress has 
also defined two specific practices as being unfair or deceptive.\2\
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    \1\ In addition to section 41712, the Department's authority to 
regulate unfair and deceptive practices is based in the Department's 
rulemaking authority under 49 U.S.C. 40113, which states that the 
Department may take action that it considers necessary to carry out 
this part, including prescribing regulations.
    \2\ See 49 U.S.C. 41712(b) (failing to notify the purchaser of 
such an electronic ticket of its expiration date, if any, is unfair 
or deceptive within the meaning of section 41712(a)); 49 U.S.C. 
41712(c) (failing to disclose the name of the air carrier providing 
the air transportation, as required by statute, is unfair or 
deceptive within the meaning of section 41712(a)).

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[[Page 52678]]

    The Department also has general authority to issue regulations 
necessary to carry out section 41712. Many of the Department's existing 
aviation consumer protection rules were issued under the authority of 
section 41712, including but not limited to the tarmac delay rule,\3\ 
the full-fare advertising rule,\4\ the prohibition on post-purchase 
price increases,\5\ and the rules on oversales and denied boarding 
compensation.\6\
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    \3\ 14 CFR 259.4.
    \4\ 14 CFR 399.84(a).
    \5\ 14 CFR 399.88(a).
    \6\ 14 CFR part 250.
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    Section 41712 does not define ``unfair,'' ``deceptive,'' or 
``practice.'' On December 7, 2020, the Department issued a final rule 
titled ``Defining Unfair or Deceptive Practices'' (``UDP Final 
Rule'').\7\ In this rule, the Department noted that section 41712 was 
modeled on section 5 of the Federal Trade Commission (FTC) Act.\8\ The 
Department explained that while section 5 vests FTC with broad 
authority to prohibit unfair or deceptive practices in most industries, 
Congress granted the Department the exclusive authority to prohibit 
unfair or deceptive practices of air carriers and foreign air carriers. 
The Department noted that DOT and FTC share the authority to prohibit 
unfair or deceptive practices by ticket agents in the sale of air 
transportation.
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    \7\ 85 FR 78707 (December 7, 2020); available at https://www.federalregister.gov/documents/2020/12/07/2020-26416/defining-unfair-or-deceptive-practices.
    \8\ 15 U.S.C. 45.
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    Accordingly, DOT determined that it was appropriate to define the 
terms ``unfair'' and ``deceptive'' in ways that reflect both FTC 
precedent and DOT's own long-standing interpretation of those terms. 
Specifically, DOT defined a practice as being unfair to consumers if 
``it causes or is likely to cause substantial injury, which is not 
reasonably avoidable, and the harm is not outweighed by benefits to 
consumers or competition.'' \9\ DOT defined a practice as being 
deceptive to consumers ``if it is likely to mislead a consumer, acting 
reasonably under the circumstances, with respect to a material matter. 
A matter is material if it is likely to have affected the consumer's 
conduct or decision with respect to a product or service.'' \10\ Like 
FTC, the Department stated that proof of intent is not necessary to 
establish either unfairness or deception.\11\ The Department found it 
unnecessary to define ``practice.'' \12\
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    \9\ 14 CFR 399.79(b)(1).
    \10\ 14 CFR 399.79(b)(2).
    \11\ 14 CFR 399.79(c).
    \12\ 85 FR 78710.
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    Among its major provisions, the UDP Final Rule requires DOT to 
employ its definitions of ``unfair'' and ``deceptive'' when issuing 
future rulemakings or taking future enforcement action.\13\ The rule 
provided, however, that if Congress directs DOT by statute to issue 
regulations specifically declaring a practice to be unfair or 
deceptive, then DOT may do so without reference to the general 
definitions.\14\ The rule also clarified that if a specific regulation 
already applies to the conduct at issue, then the Department may rely 
on the terms of that regulation.\15\
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    \13\ 14 CFR 399.75(a)(rulemaking); 399.75(b)(enforcement).
    \14\ 14 CFR 399.75(a).
    \15\ 14 CFR 399.79(d).
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    On July 9, 2021, the President issued Executive Order 14036, 
``Promoting Competition in the American Economy.'' \16\ That Order 
directed the Department to take a number of actions to protect aviation 
consumers, including that the Department start development of proposed 
amendments to its definitions of the terms ``unfair'' and ``deceptive'' 
in section 41712. Pursuant to the Executive Order, DOT stated that it 
would fulfill the requirements of the Executive Order by issuing an 
interpretive rule (i.e., this guidance document) that would clearly 
apprise the public of the Department's interpretation of the 
definitions of the terms ``unfair'' and ``deceptive.'' \17\
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    \16\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
    \17\ ``Procedures in Regulating Unfair or Deceptive Practices,'' 
87 FR 5655 (Feb. 2, 2022).
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Guidance Regarding Interpretation of Unfair and Deceptive Practices

    The purpose of this guidance document is to provide the public and 
regulated entities with greater transparency with respect to DOT's 
Office of Aviation Consumer Protection (OACP)'s interpretation of the 
terms that are found in section 41712 and defined in the Department's 
regulations at 14 CFR 399.79. This guidance document does not have the 
force and effect of law, is not legally binding in its own right, and 
will not be relied on by the Department as a separate basis for 
enforcement or other administrative penalty beyond the underlying 
authorities in statute and regulation.

Elements of Unfairness

    In the Department's final rule titled ``Defining Unfair or 
Deceptive Practices'' (``UDP Final Rule''), DOT defined a practice as 
``unfair'' if it ``causes or is likely to cause substantial injury, 
which is not reasonably avoidable, and the harm is not outweighed by 
benefits to consumers or competition.'' \18\ We will address each 
element in turn.
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    \18\ 14 CFR 399.79(b).
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1. ``Causes or Is Likely To Cause''
    In keeping with FTC precedent, DOT is of the view that a practice 
may ``cause'' harm even if it is not the only cause of the harm, and 
even if it is not the most proximate cause of the harm.\19\ Moreover, 
the Department is not required to wait for substantial injury to take 
place before taking action against an unfair practice. The Department 
may take action against practices which are ``likely to cause'' 
substantial injury as well.\20\ When making such determinations, DOT 
examines not only the probability of the harm occurring, but also the 
magnitude of the injury if it does occur. As FTC has observed, ``a 
practice may be unfair if the magnitude of the potential injury is 
large, even if the likelihood of the injury occurring is low.'' \21\
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    \19\ Opinion of the Commission, In the Matter of LabMD, Inc. 
(July 19, 2016) at 10, available at https://www.ftc.gov/system/files/documents/cases/160729labmd-opinion.pdf (``LabMD'').
    \20\ FTC has similar authority to declare a practice unfair if 
it is likely to cause substantial injury. See 15 U.S.C. 45(n).
    \21\ LabMD at 10.
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2. ``Substantial'' Injury
    The UDP Final Rule uses the terms ``harm'' and ``injury'' 
interchangeably.\22\ The Department did not define ``substantial 
injury'' in the UDP Final Rule, other than observing that the term 
``would necessarily exclude trivial or speculative'' harm.\23\
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    \22\ 14 CFR 399.79(b).
    \23\ 85 FR 78710 n. 25.
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    Substantial injury would be determined by the totality of the 
circumstances. As FTC has written, ``it is well established that 
substantial injury may be demonstrated by a showing of a small amount 
of harm to a large number of people, as well as a large amount of harm 
to a small number of people.'' \24\ Substantial harm is typically of an 
economic nature. For example, the Department has found that delay in 
providing refunds to consumers constitutes substantial harm to 
consumers who did not receive the service they paid for and did not 
have

[[Page 52679]]

access to their money for a significant time.\25\ However, it is well 
established that harm need not be financial in order to be substantial. 
For example, the Department found that delaying passengers on the 
tarmac for a substantial length of time without the opportunity to 
deplane or without adequate food, water, lavatory facilities, and 
medical attention imposes substantial harm.\26\ Substantial harm may 
also be found in intangible injury, such as to an individual's privacy 
or reputation.\27\ Extended delays in obtaining relief, and the time 
and expense of pursuing a claim, can also constitute substantial 
harm.\28\
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    \24\ LabMD at 9.
    \25\ See Order and Settlement Agreement, Nov. 23, 2021 
(available at https://www.transportation.gov/sites/dot.gov/files/2021-11/Air%20Canada%20-%20Order%20And%20Settlement%20Agreement.pdf) 
(``Air Canada Order'') at 5.
    \26\ See ``Enhancing Airline Passenger Protections,'' 74 FR 
68983 (Dec. 30, 2009); available at https://www.federalregister.gov/documents/2009/12/30/E9-30615/enhancing-airline-passenger-protections (also noting that the rule was also premised on an 
airline's statutory duty to provide ``safe and adequate'' interstate 
air transportation).
    \27\ Mishandling the private information of consumers may be 
considered an unfair or deceptive practice within the meaning of 
section 41712. See https://www.transportation.gov/individuals/aviation-consumer-protection/privacy; see also LabMD at 19 (``the 
privacy harm resulting from the unauthorized disclosure of sensitive 
health or medical information is in and of itself a substantial 
injury under section 5(n),'' even without further evidence that the 
information was used to cause further harm); Spokeo, Inc. v. 
Robbins, 578 U.S. 330 (2016) ``intangible injuries may nevertheless 
be concrete'' for purposes of satisfying the case or controversy 
requirement of standing in Article III courts).
    \28\ Air Canada Order at 5; see also DOT Order 2009-9-8 (2009) 
at 5.
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3. Not Reasonably Avoidable
    For a practice to be unfair, the harm must not have been reasonably 
avoidable by the consumer.\29\ For example, a lengthy tarmac delay 
imposes unavoidable harm because the passenger lacks the opportunity to 
deplane. It has also been the longstanding view of OACP that it would 
be an unfair practice for a carrier to fail to provide a refund, on 
request, for flights to or from the United States that were canceled or 
significantly changed by the carrier, in part because the harm was not 
reasonably avoidable by the traveler. We came to this conclusion even 
if the passenger purchased a ``non-refundable'' ticket. We concluded 
that a consumer acting reasonably would believe that he or she was 
entitled to a refund under U.S. law if the carrier cancelled or 
significantly changed the flight, regardless of the reason for the 
cancellation or significant change. We further concluded that a 
reasonable consumer would not believe that it is necessary to purchase 
a more expensive refundable ticket in order to be able to recoup the 
ticket price when the airline fails to provide the service paid for 
through no action or fault of the consumer, because reasonable 
consumers understand that ``refundable'' tickets are valuable because 
they ensure a refund if the passenger cancels the flight.\30\ The 
Department has issued a notice of proposed rulemaking that would 
propose to codify OACP's interpretation that section 41712 requires 
airlines to provide prompt refunds when a carrier cancels or makes a 
significant change and the passenger does not take an alternative 
flight offered by the airline, including when the original ticket 
purchased is non-refundable.\31\
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    \29\ See FTC Policy Statement on Unfairness, available at 
https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness (FTC generally does not intend to second-guess the wisdom 
of consumer decisions, but it does intend to halt seller behavior 
that ``unreasonably creates or takes advantage of an obstacle to the 
free exercise of consumer decisionmaking.'')
    \30\ Air Canada Order at 5.
    \31\ 87 FR 51550 (August 22, 2022), available at https://www.federalregister.gov/documents/2022/08/22/2022-16853/airline-ticket-refunds-and-consumer-protections.
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    The Department looks at this element from the perspective of an 
ordinary consumer acting reasonably under the totality of the 
circumstances. For example, we have found that a passenger who 
triggered an airline's fraud-detection system and lost frequent flyer 
miles could have reasonably avoided that harm by not repeatedly 
entering fictitious information into the airline's reservation 
system.\32\
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    \32\ DOT Order 2016-12-11, at 3.
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4. Harm Not Outweighed by Benefits to Consumers or Competition
    Finally, the harm must not be outweighed by benefits to consumers 
or to competition. Like FTC, the Department recognizes that some 
practices may be harmful to consumers in some respects, but beneficial 
to consumers in other respects. For example, offsetting benefits may 
include lower prices or a wider availability of products and services 
resulting from competition. The Department seeks to regulate practices 
that are harmful to consumers in their net effects.\33\ Importantly, 
the Department does not compare the harm to the consumer against the 
benefits that the airline or ticket agent may obtain from the 
practice.\34\ The Department's determination to regulate an unfair and 
deceptive practice would also be informed by a regulatory impact 
analysis.
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    \33\ Air Canada Order at 5; see also the Department's oversales 
rule, 14 CFR part 250, which also reflects this balance. The rule is 
carefully crafted to allow airlines to oversell flights in order to 
fill seats that would have otherwise gone empty due to ``no-shows.'' 
In exchange for this ability to overbook flights (which would 
otherwise be unfair or deceptive), the Department requires airlines 
to compensate and provide protections to passengers who were 
involuntarily denied boarding in accordance with the rule. See DOT 
Order 2020-6-5.
    \34\ See Air Canada Order at 6 (finding that the practice of 
retaining passenger funds for canceled flights beyond the time 
frames allowed by law conveyed no benefit to consumers, even if the 
practice may have benefited the airline).
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5. Public Policy Considerations
    As we noted in the UDP Final Rule, DOT has a broad statutory 
responsibility to consider a wide variety of public policies enumerated 
by Congress.\35\ In fact, Congress has directed the Department in 
carrying out its aviation economic programs such as regulations under 
section 41712 to consider certain enumerated factors as being in the 
public interest. These factors include ``the availability of a variety 
of adequate, economic, efficient, and low-priced services without 
unreasonable discrimination or unfair or deceptive practices'' and 
``preventing unfair, deceptive, predatory, or anticompetitive practices 
in air transportation.'' \36\ DOT considers public policy as 
established by both the Executive branch (e.g., regulation, Executive 
Order \37\) and the Legislative branch (e.g., statute, sense of 
Congress) of the Federal Government as appropriate, when determining 
whether a practice is unfair.
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    \35\ 85 FR 78710.
    \36\ 49 U.S.C. 40101(a).
    \37\ E.g., Executive Order on Catalyzing Clean Energy Industries 
and Jobs Through Federal Sustainability, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/08/executive-order-on-catalyzing-clean-energy-industries-and-jobs-through-federal-sustainability/; Biden Administration Advances the Future of 
Sustainable Fuels in American Aviation, https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/09/fact-sheet-biden-administration-advances-the-future-of-sustainable-fuels-in-american-aviation/.
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    As a public policy matter, the Department has found that 
discriminatory conduct in and of itself constitutes an unfair practice. 
In this regard, orders of the Department and its predecessor Civil 
Aeronautics Board (CAB) support the position that violations of 
statutes that prohibit discrimination constitute unfair and deceptive 
practices. For example, the CAB determined that unlawful disparate 
treatment of consumers by a carrier in its ticket-by-mail procedures 
based on the consumer's ZIP code, which had the effect of 
discriminating against African-Americans in New York City, is an

[[Page 52680]]

unfair practice.\38\ The Department has also consistently found that 
violation of the Air Carrier Access Act, which prohibits U.S. and 
foreign air carriers from discriminating against passengers with 
disabilities, is an unfair practice.\39\ Similarly, the Department has 
found that discrimination against individuals based on their race, 
color, national origin, religion, ancestry or sex is an unfair 
practice.\40\
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    \38\ Miscellaneous Economic Orders, 78 C.A.B. 860 (1978): Docket 
33219, Enforcement re Ticket-by-Mail, order 78-8-101, available via 
HeinOnline.
    \39\ See, e.g., DOT Order 2018-11-8.
    \40\ See, e.g., DOT Order 2012-5-2.
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Elements of Deception

    In the UDP Final Rule, DOT defined a practice as ``deceptive'' if 
it ``is likely to mislead a consumer, acting reasonably under the 
circumstances, with respect to a material matter. A matter is material 
if it is likely to have affected the consumer's conduct or decision 
with respect to a product or service.'' \41\ We will address these 
elements in turn.
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    \41\ 14 CFR 399.79(b)(2).
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1. Likely To Mislead a Consumer
    First, the practice must be likely to mislead the consumer. As FTC 
has explained, express misrepresentations, implied representations, and 
omissions are all potentially actionable.\42\ A failure to provide 
services as promised (whether by contract or otherwise) can also be 
deceptive.\43\
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    \42\ FTC 1983 Policy Statement on Deception, available at 
https://www.ftc.gov/public-statements/1983/10/ftc-policy-statement-deception.
    \43\ Id.; see also DOT Order 2013-3-12 (airline acted 
deceptively when it stated on its website that certain conditions of 
carriage, including EU-mandated compensation for cancelled flights, 
would apply to international travel to and from the U.S., but then 
refused to abide by those conditions).
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    The Department's full-fare advertising rule is based on its 
authority to prohibit deceptive practices.\44\ Put simply, this rule 
requires advertised prices for air transportation to be the entire 
price to be paid by the customer to the carrier, or agent, for such air 
transportation. The Department based its rule on evidence that 
consumers believed that they were going to pay a particular advertised 
price for air transportation, only to find that the price was 
substantially higher due to additional taxes and fees.\45\ The rule 
also requires any charges that are listed as components of the entire 
price (e.g., taxes) not to be false or misleading.
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    \44\ 14 CFR 399.84(a).
    \45\ https://www.federalregister.gov/documents/2011/04/25/2011-9736/enhancing-airline-passenger-protections.
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    We have also found that advertising a fare that is no longer 
available, or failing to have a reasonable number of seats available at 
the advertised fare, is deceptive.\46\ The Department has also found 
that an airline's failure to comply with its publicly posted Customer 
Service Plan is deceptive, because the carrier failed to abide by its 
commitment to provide services as promised.\47\
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    \46\ DOT Order 2022-2-6. While this practice is deceptive even 
in the absence of a specific regulation, we have also found that 
this practice violates the full-fare advertising rule, 14 CFR 
399.84(a).
    \47\ DOT Order 2018-5-27; DOT Order 2016-8-33.
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2. Acting Reasonably Under the Circumstances
    Like FTC, the Department views deception from the perspective of an 
ordinary consumer acting reasonably in the circumstances.\48\ FTC has 
noted that entities are not responsible for the unreasonable 
interpretations of a handful of individuals, or for broad statements of 
feeling or opinion.\49\ Likewise, in the preamble to the UDP Final 
Rule, we noted that willful, intentional, or reckless consumer behavior 
that leads to self-imposed harm would likely not be covered.\50\
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    \48\ On occasion, the Department receives complaints from 
sophisticated consumers who were not personally deceived by a 
practice because they are unusually knowledgeable. We have rejected 
airlines' claims that such complaints must be dismissed because the 
individual complainants themselves were not deceived. We reasoned 
that we must view the practice from the perspective of the ordinary 
consumer who may be unaware of the deception and are therefore less 
likely to file complaints. See, e.g., DOT Order 2016-12-12.
    \49\ See DOT Order 92-5-60 (1992) (finding that the terms of an 
airline's frequent flyer programs were not deceptive simply because 
consumers may have assumed that airlines could not make such changes 
to the program, or were surprised that miles could not be sold, when 
the terms of the plan themselves were clear); DOT Order 2012-12-11 
(airline did not commit a deceptive practice by failing to warn a 
passenger that his actions would trigger its fraud-detection system 
when the passenger acted unreasonably in accessing the airline's 
reservation system).
    \50\ We have issued specific guidance regarding cases where 
passengers intentionally purchase fares that they know or should 
have reason to know are mistaken. See https://www.transportation.gov/airconsumer/mistaken-fare-policy-statement-050815. Mistaken fares are also governed by the rule relating to 
post-purchase price increases, 14 CFR 399.88.
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    However, if a representation may be interpreted in two different 
but reasonable ways, one of which is false, the entity may be liable 
for the misleading interpretation. Like FTC, the Department will look 
to all of the factors surrounding the statement to determine 
reasonableness, including how clear, conspicuous, and significant the 
representation is, the familiarity of the public with the product, and 
the availability of alternate sources for the information.\51\
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    \51\ FTC Policy Statement on Deception, section 3.
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3. Material Matter
    The Department has adopted FTC's standard that the deception must 
regard a ``material'' matter, which is a matter that is likely to have 
affected the consumer's conduct or decision with regard to a product or 
service. In such a case, ``consumer injury is likely, because consumers 
are likely to have chosen differently but for the deception.'' \52\
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    \52\ FTC Policy Statement on Deception, section 4.
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    For example, the Department has found that the practice of 
mischaracterizing a carrier-imposed fee as a ``tax'' is deceptive.\53\ 
We concluded that a reasonable consumer may choose to pay a ``tax'' 
under the reasonable belief that a tax is unavoidable, but that same 
consumer may choose to shop elsewhere in order to avoid a carrier-
imposed fee. We have also found that an airline acted deceptively when 
it promised a universally available discount for prepaid baggage fees, 
when that discount was not available if the customer purchased the 
ticket through a third-party website.\54\ In contrast, we have found 
that errors that appear only in post-purchase receipts are misleading, 
but not deceptive for purposes of section 41712, because there was no 
evidence in that case that an error in a post-purchase receipt 
influenced the consumer's pre-purchase decision.\55\
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    \53\ DOT Order 2018-5-32.
    \54\ DOT Order 2013-7-11.
    \55\ DOT Order 2018-5-32.
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    It is important to note that the ``product or service'' is not 
limited to the initial purchase, however. For example, we have found 
that an airline acted deceptively when it responded to consumer 
complaints about denied boarding compensation by stating that it 
complied with ``DOT and FAA regulations,'' when no such regulations 
existed. We found that such misrepresentations could have dissuaded 
consumers from pursuing valid complaints with the Department.\56\ We 
have also found that misrepresentations relating to cancellation fees 
were deceptive within the meaning of section 41712.\57\
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    \56\ DOT Order 2009-9-8.
    \57\ DOT Order 2022-2-6.
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Practice

    FTC has the statutory authority to prohibit unfair or deceptive 
``acts or practices'' in or affecting commerce.\58\

[[Page 52681]]

Section 41712, however, refers only to ``practices.'' \59\ In the UDP 
Final Rule, we explained that our aviation consumer protection 
regulations are always directed to practices of an airline or ticket 
agent, rather than isolated acts of individual employees. We also 
explained that our enforcement efforts include a determination that the 
conduct in question reflects a practice or policy affecting multiple 
consumers, rather than an isolated incident.\60\ We concluded that ``in 
general, the Department is of the view that proof of a practice in the 
aviation consumer protection context requires more than a single 
isolated incident. On the other hand, even a single incident may be 
indicative of a practice if it reflects company policy, practice, 
training, or lack of training.'' \61\
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    \58\ 15 U.S.C. 45(a)(1). The FTC Act prohibits FTC from 
exercising jurisdiction over ``air carriers and foreign air carriers 
subject to part A of subtitle VII of title 49.'' 15 U.S.C. 45(a)(2). 
That authority lies exclusively with the Department. As noted above, 
FTC and DOT both have authority over the unfair and deceptive 
practices of ticket agents selling air transportation.
    \59\ 49 U.S.C. 41712(a) (``the Secretary may investigate and 
decide whether an air carrier, foreign air carrier, or ticket agent 
has been or is engaged in an unfair or deceptive practice or an 
unfair method of competition in air transportation or the sale of 
air transportation.'')
    \60\ See, e.g., DOT Order 2018-2-7 (finding that an airline's 
failure to respond timely to a single complaint did not warrant 
enforcement action in the absence of evidence of a pattern or 
practice).
    \61\ 85 FR 78711.
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Effective Date

    This guidance is effective August 29, 2022.

    Issued on or about this 15th day of August, 2022, in Washington, 
DC.
John E. Putnam,
General Counsel, U.S. Department of Transportation.
[FR Doc. 2022-18170 Filed 8-26-22; 8:45 am]
BILLING CODE 4910-9X-P