Courts tend to give what they call "substantial deference" to government agencies when it comes to issuing regulations and fulfilling their legal duties. And that's precisely what a U.S. Court of Appeals did last week. It deferred to the Transportation Department on how to sell air travel.



According to the DOT, you can sell a restaurant meal plus taxes and tip, and you can sell kitchen gadgets on TV plus shipping and handling, but if you sell a travel package that includes even one mile of air transportation, you have to advertise and quote one price with all taxes and service fees included.

And if you break out any of these other components in print or online, you have to use a smaller typeface or face the possibility of paying a fine to the federal government for being "deceptive."

According to the DOT, and now the Court of Appeals, this is the only acceptable way for a travel seller to communicate price information to its customers without confusing them.

We think this court should have given a little less deference to the DOT, a little more leeway to airlines and other travel sellers, and a bit more credit to consumers, all of whom are familiar with the phrase "plus tax."

However, that battle is over.

What we have now is a Transportation Department that seems determined to involve itself ever more deeply in the marketplace it is supposed to have deregulated, and it is no longer just about Spirit's baggage fees.

The DOT is actively considering a regulation that will require travel agents to adhere to "minimum customer service standards" of the DOT's devising, to disclose the names of airlines they "sell or do not sell," to share with customers "information regarding any incentive payments they receive" from airlines or perhaps from GDSs and to disclose "any preferential display of individual fares or carriers in the ticket agent's Internet display."

If the DOT gets away with any of this, it will get "substantial deference" in any Court of Appeals review. If any travel sellers want to draw a line in the sand, now would be a good time.
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