The travel industry ought to be politely cheering Delta Air Lines for taking a stand against the Transportation Department's (DOT) enforcement unit, which we believe has been out of control for a while now.  


Over the last few years, the DOT had made numerous "secret shopper" calls to airlines and travel agents to test compliance with the codeshare disclosure rule, which requires airlines and travel sellers to disclose the names of codeshare partners prior to booking.

It turned out that the DOT was good at playing "Gotcha." Several major airlines and some big names in travel, including AAA, Carlson, Liberty and Frosch, paid big fines after DOT investigators posed as inquiring consumers and didn't hear the required disclosure. All of these cases were settled when the accused agreed to pay compromise amounts to avoid litigation.

But Delta is litigating.

What the DOT never discloses in these cases is how often the alleged offenders have broken the rules. The DOT's case against Delta is based on eight calls over a 12-month period, but Delta has noted that the DOT made a total of 30 test calls to its reservations lines during that period. In other words, on 22 out of 30 calls, the DOT found nothing to complain about.

More importantly, Delta is asserting in its defense that even in the eight cases at issue, it didn't violate the rules.

The DOT's rule requires airlines and travel sellers to disclose the corporate and trade name of the transporting carrier on codeshare flights "before booking transportation." It is based on a law passed by Congress that requires the disclosure "prior to the purchase of a ticket." The DOT is trying to hit Delta with a double-whammy, accusing it of violating both the law and its regulation.

But Delta claims that it violated neither, noting that the DOT investigators terminated the calls without making a booking.

The DOT has asserted that "consumers are entitled to information about the identity of the operating carrier, regardless of whether they ultimately book a flight." It has also stated that the disclosure is required "whenever an agent first mentions a codeshare flight."

Those may be worthy aspirations, but that's not what Congress wrote in the law that Delta and others were accused of violating. Nothing in the law says anything about how early in the process the disclosure needs to be made, only that it be before "purchase."  

The DOT, it seems to us, is pursuing Delta -- and has already extracted heavy penalties from travel sellers -- on the basis of what it would like the law to be.

Somebody should put a stop to that.

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