DOT HOLDS PUBLIC HEARINGS ON TICKET REFUNDS AND ANCILLARY SERVICE FEES NPRMS
April 3, 2023
The U.S. Department of Transportation (“DOT”) recently held two public hearings on its “Airline Ticket Refunds and Consumer Protection” and “Enhancing Transparency of Airline Ancillary Service Fees” proposed rulemakings (“NPRMs”) at the request of airline industry groups, Airlines for America (“A4A”) and IATA, Travel Tech, and others. General summaries of the comments made at both hearings are included below.
“Airline Ticket Refunds and Consumer Protection” Public Hearing:
On March 21st, DOT held a hearing on the airline ticket refunds NPRM. Presenters commented on three topics: (1) whether consumers can make reasonable self-determinations regarding contracting a serious communicable disease; (2) whether a documentation requirement (medical attestation and/or public health guidance) is sufficient to prevent fraud; and (3) how to determine whether a downgrade of amenities or travel experiences qualifies as a “significant change of flight itinerary” that would entitle an individual to a ticket refund.
On the first topic, most presenters were opposed to DOT’s proposal to allow consumers to make their own self-determinations on contracting a serious communicable disease. Commenters noted that consumers are generally unqualified to make self-diagnoses, that diagnoses of communicable diseases are best left to trained medical professionals, and that the language and standards currently included in the proposed rule should be better defined, and aligned with terminology included in existing regulations (i.e., 14 CFR Part 382). On the second topic, a slight majority of commenters also opposed DOT’s proposal on requiring consumers to provide certain medical documentation, and its suggestion that this documentation would be sufficient to prevent fraud. Several commenters noted that the medical attestations could be considered analogous to the documentation requirements included in the emotional support animal (“ESA”) rules, and that based on the high level of consumer fraud observed under those rules, DOT should reject its proposal as it would be unlikely to prevent and may encourage fraud. On the third topic, comments were generally mixed on DOT’s proposal on determining when a downgrade of amenities would entitle a consumer to a refund. Some commenters supported DOT’s proposal because of the belief that some changes, such as the loss of accessible lavatories or decreased storage space for wheelchairs based on aircraft changes, are extremely impactful to disabled passengers and should always entitle such passengers to a refund, however, other commenters noted the vagueness of the term would likely cause confusion, and highlighted that DOT has not proposed any standards or guidance on what should be considered a significant change.
“Enhancing Transparency of Airline Ancillary Service Fees” Public Hearing:
On March 30th, DOT held a hearing on the ancillary service fees NPRM. Presenters commented on three topics: (1) whether consumers are or are likely to be substantially injured or misled by airlines’ current disclosures of ancillary service fees; (2) whether disclosures of itinerary-specific ancillary fees at the time of first search would result in the display of incomplete or inapplicable ancillary fee information, cause consumer confusion, and distort the marketplace; and (3) whether requiring fee disclosures on the first page of the itinerary search selection process would be technically infeasible.
On the first topic, comments were mixed on whether consumers are currently or are likely to be injured or misled by airlines’ current disclosures of ancillary fees. Some commenters generally argued that there is greater need for transparency of ancillary fee information so that consumers are aware of the total cost of flying before completing their bookings, while other commenters argued that airline displays are already transparent and that DOT’s proposed requirements, such as displaying all ancillary fee information on the first page of a search, would substantially injure and mislead consumers far more than what is alleged under current practices. Commenters also argued that evidence suggests most consumers are aware that ancillary services are optional, and that DOT already requires airlines to display fees using a conspicuous link on their websites to further inform consumers of optional fees. Other commenters expressed support of certain proposals included in the NPRM, such as DOT’s proposal to require airlines to provide ticket agents with all critical ancillary fee data, but also advocated for additional changes to the rulemaking, such as only requiring that ancillary fee information be provided “early” in the booking process, but not on the first page, and allowing airlines and ticket agents flexibility in determining the display of these fees.
On the second topic, a majority of commenters expressed concerns that DOT’s proposal to require itinerary-specific ancillary fee information at the time of first search would cause consumer confusion and result in displays that would be overwhelming to consumers. Commenters noted that the proposal would overload the first search page with information, resulting in higher search times, and a reduction in consumers’ ability to effectively comparison shop and find the most important information to them easily. Commenters arguing against DOT’s proposal also indicated that the requirement would disproportionally harm ultra-low-cost carriers (“ULCCs”) and cause more burden for all carriers that have been presenting complete and transparent unbundled, ancillary fee data for years.
On the last topic, comments were mixed on the technical feasibility of displaying all ancillary fees on the first page of a search. Some commenters simply noted that providing ancillary fee data at first search would be technically feasible, while a slight majority of others again urged DOT to amend its proposal to allow airlines and ticket agents to have more flexibility in determining where in the search process ancillary fees are displayed (such as “early” in the search process or sometime before purchase, but not on the first page). Other commenters argued that it would be infeasible to include all ancillary fee information on the first page because this information would take up a lot of screen space and could make searching fares and ancillaries, especially when using newer technologies and mobile devices, extremely difficult, frustrating, and overwhelming for consumers.
Lastly but importantly, to allow for further comment on this NPRM and comments made at the hearing, the comment period will remain open until April 6, 2023. Comments can be made in the relevant docket, available here.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622) or Drew Derco (dderco@eckertseamans.com 202-659-6665).
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