American Airlines places
its Web fares only on AA.com, Orbitz and the GDS displays of agencies signing up for
its EveryFare program.
Earlier this month, American obtained an injunction
preventing FareChase from "screen-scraping" AA.com to collect fares
without the carrier's permission.
Isn't it discriminatory for American to restrict access to
its fares this way? What about the millions of people who don't
have access to the Internet or don't use an EveryFare
agency?
A: American's restrictions certainly
discriminate against agencies that don't sign up for EveryFare, but
such discrimination is not illegal.
The Department of Transportation has made it clear that every
airline can decide how it wants to distribute its services, as long
as the discrimination is not in furtherance of the airline's plan
to bolster its monopoly hub.
In any case, giving special fares to some agencies and not
others is a long tradition. Look at the ethnic consolidator
markets, for example.
Discriminating against people without access to the Internet is
another matter, as is an airline employee's failure to offer the
Web fares on the telephone when a person without Web access
calls.
I believe that such discrimination violates 49 USC 41712, which
is the federal statute that empowers the DOT to outlaw an airline
practice that is "unfair or deceptive."
For the time being, the DOT has declined to declare unfair or
deceptive the major carriers' practice of putting Web fares out of
the reach of the nonwired portion of the traveling public.
My guess is that consumers and consumer groups have not
complained much, whereas the government has been inundated with
complaints by agencies, GDSs and associations, none of which has
any standing under the federal statute that I cited.
Ideally, all fares should be placed in all channels of
distribution. Because it is obvious the airlines are not going to
do so on their own, the government needs to compel them.
Such a universal-participation rule should extend even to
Southwest, whose CEO's tantrum nine years ago has kept the airline
out of all GDSs except Sabre.
Don't assume that just because the DOT has not acted on various
requests to ban this discrimination it will never happen.
In the 1960s, it took the old Civil Aeronautics Board
(predecessor to the DOT in regulating airlines) a decade to outlaw
some discriminatory fares. The government does not move at Internet
speed.
Mark Pestronk is a Fairfax, Va.-based attorney specializing
in travel law. He answers your questions in the TravelWeekly.com
Legal Ease forum. To contact Mark directly, e-mail him at [email protected].