Will a New Federal Rule Create Headaches for Travelers?

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Consumer Reports is criticizing a new federal regulation that it says could leave travelers “more vulnerable to unreasonable flight delays, misleading fare information, and other frustrating industry practices.”

On Nov. 27, the U.S. Department of Transportation issued a new rule that officially defines two terms — “unfair” and “deceptive” — as used in a section of existing federal law that governs how the DOT responds to unfair and deceptive practices by air carriers.

The DOT notes that most of its aviation consumer protection regulations — including its tarmac delay rule and rules on overbooking — stem from the DOT’s authority to prohibit unfair or deceptive practices.

Under the new rule, the terms are defined as:
  • Unfair: Something is 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.”
  • Deceptive: A practice is 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.”

The DOT says that under the new rule, airlines and ticket agents will have the chance to present “relevant evidence” before the DOT takes any enforcement action when an unfair or deceptive practice is alleged.

The department says the new rule will provide “greater transparency and predictability on how the Department conducts its aviation consumer protection rulemaking and enforcement activities.”

However, William J. McGee, aviation adviser for Consumer Reports, quickly took aim at the new rule, saying the DOT’s claim that the rule will benefit both the public and regulated entities “is itself unfair and deceptive.” McGee added:

“This rule adds new layers of bureaucracy that will hamper the DOT’s ability to stop airline industry abuses that aggravate travelers. It’s a last minute gift from the DOT to airline industry lobbyists …”

Consumer Reports says the new rule requires the DOT to follow processes and documentation practices that will make it harder to enforce or strengthen regulations such as:

  • Placing limits on tarmac delays
  • Requiring airlines to compensate passengers bumped from overbooked flights
  • Prohibiting advertisements that fail to include the full fare passengers will pay

McGee urged the incoming Biden administration to revoke the rule.

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