Mark Pestronk
Q: My agency's clients often book air travel by themselves at airline or OTA websites. Lately, several clients have complained to me about fares that appear in search results but are no longer available a few minutes later when they decide to book. A few weeks ago, I read a Christopher Elliott column in USA Today about the prevalence of these now-you-see-them, now-you-don't prices. He quotes an expert who calls them "ghost fares." Aren't such practices by airlines and OTAs illegal bait-and-switch tactics?
A: According to the DOT precedent, "a seller of air transportation must have a reasonable number of seats available at the advertised price when a fare is advertised. ... Failure to have a reasonable number of seats available at the advertised fare is a violation of section 399.84(a) and constitutes an unfair and deceptive practice and unfair method of competition in violation of 49 U.S.C. Section 41712."
Section 399.84(a) is the full-price rule. The DOT interprets its rule to mean that a fare that is not actually available at the time of solicitation is not the "entire price to be paid by the consumer to the carrier." As you know from its prosecution of travel agencies that don't quote the full fare including all taxes and fees, the DOT also interprets the rule to mean that any fare quote is a "solicitation."
49 U.S.C. Section 41712, which is the statute cited by the DOT, generally prohibits unfair and deceptive practices by air carriers and "ticket agents." Accordingly, the DOT considers any fare quote for which there are not a "reasonable number" of seats available at that price to be illegal under both the statute and regulations.
So why isn't the DOT prosecuting the airlines and the OTAs for "ghost fares"?
The USA Today column cited states, "A spokeswoman for the U.S. Department of Transportation said an airline would have to 'systematically and intentionally' use caching as a method of luring consumers to its website or increasing the price paid by individual consumers in order to fall afoul of its full-fare advertising rule."
The DOT's statement is inexcusable. Carriers and "ticket agents" do not need to be "systematically and intentionally" violating DOT rules to be fined. As DOT's prosecution of travel agencies for violations of the full-price rule shows, even sporadic and unintentional violations lead to tens of thousands of dollars in fines.
Further, there is no exception for "caching," which is the practice of storing and then displaying past search results in order to limit the number of search transactions with the GDS that provides fresh fare results. Carriers and OTAs apparently cache in order to save money, as GDS vendors probably charge them for search transactions that exceed a negotiated quantity.
So "ghost fares" exist because the website owners don't want to pay for real-time search results. Providing aged results in order to save money certainly sounds like an intentional and systematic violation to me.
Clearly, the DOT already knows that there might not be a "reasonable number of seats available at the advertised price when a fare is advertised." The department needs to investigate and stamp out these unfair and deceptive practices by airlines and OTAs.