In August 2022, the U.S. Department of Transportation (DOT) proposed an expansion of consumer protections from domestic and foreign air carriers, which would codify a well-settled interpretation of the law that is an unfair business practice for 1) an air carrier, or a ticket agent to refuse to provide requested refunds to consumers when a carrier has canceled or made a significant change to a scheduled flight to, from, or within the U.S., and 2) the consumer has found the alternative transportation offered by the carrier or the ticket agent to be unacceptable. See 87 FR 51550. The application of “unfair” would borrow from current federal law against unfair business practices. See 49 U.S.C. 41712. Thereunder, a practice is “unfair” to consumers if it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by the benefits to consumers or competition. Proof of intent is not necessary to establish unfairness.
The proposal goes one further, and if enacted, would impose affirmative duties on air carriers doing business in the United States. First, U.S. and foreign air carriers and ticket agents would be required to provide non-expiring travel vouchers or credits to consumers holding non-refundable tickets for scheduled flights to, from, or within the U.S. who are unable to travel as scheduled in certain circumstances related to a serious communicable disease. 87 FR 51550. Additionally, U.S. and foreign air carriers and ticket agents would be required to provide refunds, in lieu of non-expiring travel vouchers or credits, if the carrier or ticket agent received significant financial assistance from the government as a result of a public health emergency. Id. As a counterbalance, the new laws would allow carriers and ticket agents to require consumers to provide evidence in support of their assertion of entitlement to a travel voucher, credit, or refund. Id.
Naturally, the proposed rules are opposed by air carriers, who would rather enjoy as little regulation as possible with respect to consumer protection. Currently, the proposed rulemaking is open for comment until November 21, 2022. Whether the new rules survive notice and comment will likely be on the wayside in the coming weeks until after the dust has settled from the midterm elections.