The Transportation Department (DOT) is at it again. The "it" in this case is deciding the best or only ways that travel sellers can say certain things to certain clients.

Suppose you manage an online travel agency (OTA) or a more traditional agency that offers a Web-based search tool for airline flights. Chances are you didn't build it from scratch. Chances are it's powered by one of the industry's household names, like Sabre or Travelport.

Suppose further that some wishful thinker logs on to your website and searches for nonstop flights between Stockton, Calif., and Colombo, Sri Lanka.

Unless you know to a moral certainty that there are no nonstop flights in that market, the DOT has decided that your website cannot respond with "no results were found" or "no nonstop flights are available."

Under the latest "guidance" from the DOT's enforcement office, such absolute statements will be considered unfair and deceptive if it turns out that some airline, somewhere, offers a flight in that market that is not listed in your GDS.

The DOT's goal is to have travel sites change their "no flight" responses to things like "no nonstop flights are available from airlines covered by this website," or "no flights offered by airlines included on our website match your search criteria."

Given the existence of airlines here and abroad that limit their participation in GDSs and other booking systems, we admit there's a certain logic to this. If a pastry shop is out of pies, it shouldn't put a sign in the window saying "There are no pies on earth."

Our concern with the DOT action, however, is that this edict -- like too many recent edicts from the DOT -- comes out of nowhere and gives the DOT an open-ended hunting license to harass noncompliant travel sellers, regardless of whether any actual consumers are suffering any actual harm.

The DOT's guidance letter contains no information suggesting that consumers or travel companies have identified this as a new or pressing problem requiring federal intervention.

Not only is there no evidence that this is a problem, it appears that the DOT didn't give the industry any advance notice or opportunity to comment on the matter. Instead, it simply declared that this is an unfair and deceptive practice and gave the industry 90 days to knuckle under.

It is instructive to note that the DOT describes the type of "no flights" message in use today as "potentially unfair or deceptive if it would lead a reasonable consumer to believe that no flights exist that meet the desired parameters."

Notice the DOT does not claim that such a message is "actually" deceptive. Nor does it produce any evidence that any "reasonable consumer" has ever believed, on the basis of today's notices, that there are no pies on earth.

From this "potential," however, a de facto new regulation has been born.

In the peculiar legal environment in which the DOT operates, the Aviation Enforcement Office is legislator, prosecutor and judge.

Once it unilaterally declares that a practice is deceptive, on the basis of edicts such as this, it can randomly confront travel agents and impose monetary penalties for noncompliance -- all on the basis of "guidance."

The end result in this case, to refrain from telling consumers that there are "no pies on earth," is not unreasonable. But the methodology is arbitrary.

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