Q: In January, you wrote a couple of columns about the Department of Transportation's (DOT) new "full-fare advertising rule" that went into effect on Jan. 26. You stated that the most important part of the rule prohibits any ad, written quote or oral quote that does not quote the full fare as one price, inclusive of all taxes and fees. What exactly do you mean by a "quote" in the context of business travel, which is the majority of our agency's volume? Is there a "quote" if we communicate a fare to an employee of a corporation that has a travel management contract with us? What if we have a regular business traveler with whom we have no pre-existing contract? If so, do we really have to include our transaction fee in the full price?
A: Although both the DOT and I have used the word "quote" in describing what the new rules say, the actual term in the rule is "solicitation": The rule prohibits "any advertising or solicitation ... unless the price stated is the entire price to be paid by the customer to the carrier, or agent, for such air transportation, tour or tour component."
What, then is "solicitation"? Unfortunately, nowhere in the 84-page explanation of the proposed rule or the 213-page explanation of the final rule is the term defined. In fact, the term is not defined in any DOT regulations that use it, and my research into the many DOT orders that fined air carriers and agencies for violating the former rule, which prohibited soliciting without disclosing the full fare, shows that DOT has never addressed the question.
For a workable and relevant definition, we can turn to a case decided by the U.S. Court of Appeals in the District of Columbia, which is the court to which an airline or agency would appeal any future DOT order holding that there was a violation of the rule by "solicitation." In Shays v. Federal Election Commission, the court said:
"We think 'solicit'... more naturally connotes an indirect request. ... To give an example, a charity brochure on starving children might well 'solicit,' though it doesn't ask in the sense of calling for an answer. ... The term 'solicitation of orders' includes not just explicit verbal requests for orders but also any speech or conduct that implicitly invites an order."
So when your agent emails or speaks with a corporate traveler working for a company with which you already have a contract, your agent is not inviting an order, as you already asked for the orders at the time you entered into the travel management contract. At this point, your agent is merely taking and processing those orders, which is conduct that does not amount to "solicitation."
On the other hand, if you do not have a pre-existing travel management contract, then your agent is soliciting the business traveler in the same way he or she would a leisure traveler. Therefore, the full-fare rule would apply to that business traveler.
When the rule applies, you must always quote the full fare including your agency's fee, although you can then break down the components if you wish.
However, if the noncontract traveler books online using your corporate booking tool, you do not have to include your fee in the quote, as the DOT has carved an exception for such transactions.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].