Delta Air Lines is contesting a fine imposed by the Department of Transportation (DOT). The fine was imposed for failing to disclose code-share details about flights that they were selling. In other words, Delta would sell a flight across the Atlantic, let’s say, and a consumer would think they were buying a ticket on a Delta plane with a Delta pilot and a Delta crew, but they were actually purchasing a flight on Air France or KLM. Consumers were misled and deceived.
Or, Delta would allow domestic passengers on regional carriers to believe that they were actually flying on a Delta aircraft when, in fact, they were flying on a completely different airline. Many of these regional aircraft are dressed in Delta paint jobs and have Delta flight numbers, but are operated by a completely different airline.
According to DOT, “Code-sharing is a common industry practice in which an airline sells seats on flights using its own designator code, but the flights are operated by a separate airline.” Their fines imposed on Delta are “part of an ongoing effort by the Department’s Aviation Enforcement Office to ensure that airlines and ticket agents comply with the code-share disclosure rules that promote transparency in the airline industry.”
The rules seem fairly basic and have been in effect for years — when selling flights operated by code-share partners, airlines are required to disclose that the flights are operated by a code-share partner clearly, during the sales process. If the airlines do not inform their customer that they are purchasing a ticket on a different airline, it is considered an unfair and deceptive practice.
Here is the Delta defense:
• DOT called us 50 times and we only broke the law eight times.
• If the consumers don’t buy a ticket we have not deceived them.
Let’s see how that would work for a common citizen caught speeding. Let’s follow the conversation with the State Trooper on the side of the Interstate.
We only broke the law a few times!
Trooper: Good morning, sir. Are you aware that you were speeding? My radar clocked you going 80 mph in a 55 mph speed-limit zone.
Driver: I’m sorry officer, but I drive this section of the Interstate every day. I didn’t break the law on the other days, so I don’t think I should be fined for speeding today.
Trooper: [Chuckle] So, you’re telling me that since you only broke the law this time, you shouldn’t be fined?
Driver: Yes, that’s right.
Trooper: Just one minute. Please give me your driver’s license and registration. I’ll be right back.
Driver: Of course, here it is.
Trooper: [After several minutes] I just ran a quick check on your record and I see that you have received seven warnings for speeding in the past four months. This time you are getting fined.
Driver: But that is unfair. In four months, I have driven on this road at least 50 times and I have only been stopped for speeding eight times. You are playing a game of “Gotcha” with me.
Trooper: Tell it to the judge. Here is your ticket.
Let’s look at Delta’s defense in another way.
According to an almost unbelievable editorial in Travel Weekly supporting Delta, they note:
What the DOT never discloses in these cases is how often the alleged offenders have broken the rules. The DOT’s case against Delta is based on eight calls over a 12-month period, but Delta has noted that the DOT made a total of 30 test calls to its reservations lines during that period. In other words, on 22 out of 30 calls, the DOT found nothing to complain about.
Let’s extrapolate these numbers. (Note: It turns out that the Travel Weekly article noted 30 test calls with 8 cases of deception; however, DOT made 50 phone calls, according to legal filings.)
Delta flies approximately 125 million passengers per year. Delta misled 8 out of every 50 passengers, or about 16 percent.
That means that the defense for Delta Air Lines is that they “only deceived and misled” 20 million passengers. That’s a good record, if you are into deception.
Here is an explanation from DOT about its procedure for testing Delta’s following of disclosure rules and regulations.
In this particular investigation, Transportation Industry Analysts of the Enforcement Office engaged in a total of 50 test calls with Delta’s telephone representatives. For each conversation, the Analyst expressed interest in a specific flight that was known to be operated under a code-sharing arrangement (the “target flight”). The Delta representative would provide information about the target flight (e.g., its availability, flight number, arrival time, departure time, city pair, and/or price). The Analyst would then determine whether the representative provided the required code-share information about that target flight. The Analysts terminated each conversation without booking a reservation.
Enforcement Proceeding, Violations of 14 CFR Part 257 and 49 U.S.C. § 41712 DOT -OST -2014-0229, January 16, 2015
Delta claim #2 — We can’t mislead or deceive anyone unless they “make a purchase.”
Delta then takes their defense another fantastical step. The airline claims that the law requires a passenger to purchase an airline ticket before they can claim to be deceived. Here is the DOT response to Delta’s claim.
Delta bases its Motion to Dismiss on the central premise that a violation of the Department’s code-share disclosure rule cannot take place as a matter of law unless the consumer actually books a flight. This premise is fundamentally flawed. Consistent with the purpose and plain text of the relevant statute and regulation, code-share information must be provided early during any conversation with a prospective consumer regarding a code-share flight. This disclosure must take place regardless of whether the prospective consumer actually books a flight at the end of the conversation. That basic standard is easily understood and has been well known for many years.
Travelers United has long maintained in discussions with Congressional members and Department of Justice and DOT civil servants that the code-sharing provisions permitted the airline industry amounts to legalized fraud. There is no other industry where a company can offer a service or product under its name but provide consumers a different product upon conclusion of the purchasing process.
It is the same as ordering a Ford and having the car dealer deliver a Buick without providing any warning that what the customer thought was going to be a Ford was in fact a Buick. Delta claims that laws concerning misleading and deceptive advertising do not come into effect unless the final purchase is made. Deceptive advertising is deceptive whether or not a purchase is ever made.
According to Delta’s interpretation of the law, which required that Delta tell the truth “before booking,” Delta could make any number of claims or omit information and not be held to have harmed a consumer unless they completed the purchase. The Delta argument is nonsensical. It seems that Delta lawyers are living in an Alice in Wonderland world. Jonathan Swift would have a heyday here.
Finally, the Delta position that they are not liable for any misinformation or deception unless consumers consummate the buying process is flat out wrong. “… [T]he regulation protects all consumers who seek flight information from airlines, not merely the smaller subset of consumers who happen to actually complete the conversation with a booking.”
If the courts find for Delta in this legal case, consumers will be let down by their justice system. Any airline or merchant would be allowed to lie about a product, omit information, mislead and deceive consumers right up to the moment of sale. No consumer would be able to believe any advertisement. No salesman would have a code of ethics.
Charlie Leocha is the President of Travelers United. He has been working in Washington, DC, for the past 14 years with Congress, the Department of Transportation, and industry stakeholders on travel issues. He was the first consumer representative to the Advisory Committee for Aviation Consumer Protections appointed by the Secretary of Transportation from 2012 through 2018.