Mark PestronkQ: One of this year's most interesting industry developments is the decision of Delta to offer its premium economy seats through Travelport later this year ("Delta Economy Comfort seats to be bookable in Travelport GDS", Travel Weekly, June 11). Do you know whether Delta is paying Travelport a fee for this content or whether Travelport is paying Delta? If the latter, do you think that Travelport will try to charge agencies a fee for the right to booking such seats? Would such a charge be allowed under typical Apollo and Worldspan contracts with agencies? If so, does this kind of charge portend another shift in agency-GDS economics, similar to the "full-content" fee imposed on agencies in 2006? 

A: The business terms of the Delta-Travelport deal are a closely guarded secret. Regardless of whether Travelport has to pay Delta (or reduce its booking fees, which would have the same effect), I fear that Travelport will try to augment its revenue by attaching some sort of fee to the right to book Economy Comfort seats.

After all, as I wrote in my April 16 Legal Briefs column ("Even without Agility, Travelport finds ways to make users pay"), Travelport appears to be on a campaign to increase its revenue by getting agencies to pay for more "optional" and "enhanced" services that "make agents more efficient and productive."

The standard Travelport contract offered to Apollo and Worldspan agencies these days states, "Travelport may offer optional software, products, features, services and content (collectively, "Optional Services") to Subscriber, subject to such fees, terms and conditions as set forth by Travelport. Additionally, Travelport may charge premiums for enhanced Optional Services that may have previously been provided to Subscriber without charge. Subscriber's use of any of the Optional Services, enhanced or otherwise, constitutes Subscriber's agreement to pay Travelport its then-current charges and abide by the then-current terms and conditions for such Optional Services ... .If Subscriber downloads Optional Services from the Travelport download site, Subscriber will pay the fees for the Optional Services effective from the date of download."

This loophole-laden paragraph provides Travelport with several ways to charge for Delta premium seats if it decides to do so. For example, Travelport could simply call premium seats a form of "content" that is an "enhanced Optional Service," in which case Travelport can charge whatever it wants for the basic right to have this booking capability, or per booking, or both.

Under the quoted paragraph, Travelport could even provide the new premium seat-booking content without charge for a few weeks or months, and it could then start charging for it once the service becomes a popular client benefit at your agency. There is no limit on what Travelport could charge.

Because agencies typically sign long-term GDS contracts, the vendors generally do not need to copy each other's pricing for particular content or enhancements. Therefore, I cannot predict whether Sabre or Amadeus would match Travelport's fees.

If your agency has sufficient leverage and negotiating ability, you can get Travelport to limit its unfettered discretion to start charging whatever it pleases. Most firms will remain at Travelport's mercy, gradually paying more for access to more ancillary services.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at mark@pestronk.com.

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