Dec. 14, 2020

The Department of Transportation (DOT) recently published a final rule codifying the definitions for the terms “unfair” and “deceptive,” which are the basis of most of the department’s consumer protection rules and enforcement actions. These rules apply to Part 135 operators, airlines and others who sell transportation.

The rulemaking effort was in response to an Airlines for America request for the DOT to adopt policies defining unfairness and deception consistent with principles articulated by the department in past practice, and established in court precedent interpreting those terms.

“This rule codifies existing policy into a regulatory format, which provides some consistency and transparency upon which air carriers and others will be able to rely,” added Greg Reigel, attorney at Shackelford, Bowen, McKinley & Norton, LLP.

NBAA largely supported the notice of proposed rulemaking, which was published in February, and provided specific comment on the concept of “practice.” The DOT requested comments on whether the standard for “practice” should include a single isolated event or is evidenced by multiple occurrences.

The department currently considers a “practice” to require multiple occurrences, even though it may still take enforcement action based upon a single incident. NBAA encouraged the DOT to adopt multiple occurrences as the standard for “practice” and that recommendation is discussed in the final rule, but DOT did not include that definition in the final rule.

“NBAA’s comments and recommendations in response to the proposed rulemaking in the spring of 2020 were largely enacted when the Department codified the definitions of unfair and deceptive,” said Brian Koester, CAM, NBAA’s director of flight operations and regulations. “The new rule sets boundaries for commercial operators to stay within and gives a better sense of what is permitted by the Department of Transportation.”

Review the final rule (PDF)