endnotes

DOT'S CODE-SHARE AND CHANGE-OF-GAUGE DISCLOSURE REQUIREMENTS
by Jol A. Silversmith

ENDNOTES

¹ 49 U.S.C. § 41712.

^{2
14 C.F.R. § 257.5(a).

^³14 C.F.R. § 257.5(b).

^⁴14 C.F.R. § 257.5(c).

^⁵14 C.F.R. § 257.5(d).

^⁶14 C.F.R. § 258.5(a).

^⁷14 C.F.R. § 258.5(b).

^⁸14 C.F.R. § 258.5(c).

^⁹See generally 14 C.F.R. Part 399, Subpart G.

^{¹⁰Complaint of Aerlinte Eireann, order, DOT
Order 89-1-31, at 5 (January 19, 1989).
^{¹¹
Consumers
filed 20,495 complaints about airline and air travel
company service with the DOT in 1999, more than double the
number filed in 1998. See "DOT Issues Airline Consumer
and Disability Complaint Data for 1999," U.S.
Department of Transportation press release (February 1,
2000).
^{¹²H.R. 700, 106^th Cong. (1999).
^{¹³"Hidden-city ticketing" takes
advantage of quirks in pricing that can make travel to an
airline’s hub more expensive than a flight through that
hub to another destination. To get the cheaper fare, a
traveler buys a ticket to a point beyond the hub city, and
gets off early at the hub - his real destination. Almost
all airlines except Southwest prohibit hidden-city
ticketing, and most threaten to penalize travelers who use
and agents that issue such tickets.
^{¹^⁴U.S. Department of Transportation,
"Disclosure of Code-Sharing Arrangements and Long-Term
Wet Leases," final rule, 64 Fed. Reg. 12838 (March 15,
1999); U.S. Department of Transportation, "Disclosure
of Change-of-Gauge Services," final rule, 64 Fed. Reg.
12854 (March 15, 1999).
^{¹^⁵The regulations originally were intended to
enter into effect on July 13, 1999. In response to
complaints that the industry could not simultaneously
implement their requirements and ensure Y2K compliance, the
DOT suspended the effectiveness of the regulations, to the
extent that they depended on information provided by CRSs
and other computer systems, until March 15, 2000. See U.S.
Department of Transportation, "Petitions Involving the
Effective Dates of the Disclosure of Code-Sharing
Arrangements and Long-Term Wet Leases Final Rule and the
Disclosure of Change-of-Gauge Services Final Rule," 64
Fed Reg. 38111 (July 15, 1999) and 64 Fed. Reg. 46818
(August 27, 1999).
^{¹^⁶64 Fed. Reg. 12838, at 12843.
^{1⁷
Ibid., at 12850.
^{¹^⁸See, e.g., 64 Fed. Reg. 38111, at 38113.
^{¹^⁹See, e.g., DOT Order 89-1-31, at 5.
^²⁰64 Fed. Reg. 12838, at 12841.

^{2¹
Ibid., at 12839.

^{22
Ibid., at 12850-51.}}}}}}}}}}}}
^²³64 Fed. Reg. 12854, at 12856. Indeed, the DOT
observed that only Qantas had, in the context of the
Code-Share Rule proceeding, made such a claim. See ibid.,
at 12858. See also 64 Fed. Red. 12838, at 12846.

^²⁴See, e.g., 64 Fed. Reg. 12838, at 12840; 64
Fed. Reg. 12854, at 12859.

^²⁵64 Fed. Reg. 12838, at 12843.

^²⁶In re Delta Air Lines, consent order, DOT
Order 99-3-2 (March 3, 1999); In re Northwest Airlines,
consent order, DOT Order 99-3-1 (March 3, 1999).

^²⁷64 Fed. Reg. 12838, at 12846.

^²⁸DOT Order 99-3-2; In re Trans World Airlines,
consent order, DOT Order 95-3-8 (March 3, 1995); In re
Trans World Airlines, consent order, DOT Order 93-1-1
(January 5, 1993).

^²⁹In re United Air Lines, DOT Order 88-6-21, at
2 (June 15, 1988); In re Piedmont Aviation, DOT Order
87-11-38, at 2 (November 18, 1987).

^³⁰In re Trans World Airlines, consent order, DOT
Order 95-3-8, at 3 (March 3, 1995).

^³¹In re Eastern Air Lines, consent order, DOT
Order 89-8-50, at 3 (August 30, 1989); In re Pan American
World Airways, DOT Order 88-2-44, at 2 (February 19, 1988).
The Department has in a few cases recognized that lack of
intent may be a mitigating factor, however. See, e.g., DOT
Order 99-3-1, at 2 (citing "agent stress
and fatigue due to labor circumstances"); DOT Order
93-1-1, at 2 (citing closure of airline reservations office
and layoff of agents). Cf. DOT Order 95-3-8, at 3 (noting
that airline’s disclosure performance had improved since
previous DOT telephone survey).
^³²DOT Order 99-3-2; DOT
Order 99-3-1. In consent orders in the mid- and late-1990s,
DOT often suspended part of the fine, on the condition that
the airline not violate the policy again within a year. DOT
suspended half – $22,500 – of the fine against
Northwest. See DOT Order 99-3-1, at 2. In 1995, the DOT
fined TWA $350,000, but suspended $50,000 of the fine, and
allowed TWA to offset an additional $250,000 against
expenditures made to retrain its reservations personnel.
DOT Order 95-3-8, at 3.

^³³DOT Order 99-3-2, at 2; DOT Order 99-3-1, at
2.

^³⁴64 Fed. Reg. 12854, at 12856.

^³⁵64 Fed. Reg. 12838, at 12842.

^{36
Ibid.}
^³⁷64 Fed. Reg. 12854, at 12856.

^³⁸Since 1995, the DOT has held that its
prohibition of unfair and deceptive airfare advertisements
applies to the Internet. But the underlying regulation, 14
C.F.R. § 399.84, like the former § 399.88, is not limited
to advertising in specific media. See, e.g., In re
Northwest Airlines, consent order, DOT
Order 99-8-23 (August 26, 1999); In re Southwest Airlines,
consent order, DOT Order 96-4-33 (April 16, 1996); In re
Virgin Atlantic Airways, DOT Order 95-11-37 (November 21,
1995).

^{39
64 Fed. Reg. 12838, at 12848.

^⁴⁰Moreover, until 1999, a simplified version of
the SABRE CRS, "EasySABRE," had been available to
the public via online services such as America Online and
Prodigy, and later via the Internet. See, e.g., Todd Woody,
"Airline sites take off fast," (June 9, 1999)
<http://www.cnn.com/TECH/computing/9906/09/airline.idg>.

^⁴^¹64 Fed. Reg. 12854, at 12859; 64 Fed. Reg.
12838, at 12847.

^⁴²U.S. Department of Transportation, "Ticketless
Travel: Passenger Notices," statement of compliance
policy, 62 Fed. Reg. 19473, 19477 (April 22, 1997).

^⁴³Of course, airlines and ticket agents could voluntarily
provide this information at any time.

^⁴⁴"Want to Escape?" Southwest Airlines
press release (July 8, 1999).

^⁴⁵Paul Tolme, "Americans are waving goodbye
to paper airline tickets," AP Wire (July 1999).

^⁴⁶Compare 14 C.F.R. § 257.5(c) with 14 C.F.R.
§ 258.5(c).

^⁴⁷64 Fed. Reg. 12854, at 12859; 64 Fed. Reg.
12838, at 12850.

^⁴⁸See, e.g., "ASTA Calls on DOT to Halt
Unlawful Airline Practices and Rescind Commission
Cuts," American Society of Travel Agents press release
(October 25, 1999).

^⁴⁹64 Fed. Reg. 12854, at 12860.

^⁵⁰A "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."

^⁵¹See, e.g., 64 Fed. Reg. 12854, at 12856; 64
Fed. Reg. 12838, at 12844.

^⁵²64 Fed. Reg. 38111, at 38113 n.7.

^⁵³64 Fed. Reg. 12838, at 12844.

^⁵⁴14 C.F.R. § 255.4(b)(2).

^⁵⁵Application of Carnival Air Lines, order, DOT
Order 94-5-35, at 6 (May 24, 1994); DOT Order 89-1-31, at
5.

^⁵⁶Docket OST-97-2881.

^⁵⁷DOT Order 88-2-44, at 3.

^⁵⁸Trans World Airlines was a subject of a
consent order four times; Northwest Airlines three times;
Delta Air Lines, Eastern Air Lines, Pan American World
Airways, US Airways/Piedmont, and United Airlines, twice;
and Air New Zealand, Alaska Airlines, Aloha Airlines,
Continental Airlines, and Sabena Belgian World Airlines,
once.

^⁵⁹See, e.g., DOT Order 99-3-2, at 2; DOT Order
99-3-1, at 2; DOT Order 95-3-8, at 2.

^⁶⁰64 Fed. Reg. 46818, at 46820 & n.2.

^⁶¹DOT Order 94-5-35, at 5. American Airlines had
opposed Carnival Airlines’ application to renew its
code-share arrangement with Lan Chile on the grounds that
the arrangement was not properly identified in CRSs.

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