Little-Noticed Decision Could Make It Harder for Consumers to Find Cheap Flights
April 9, 2017
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  • The Department of Transportation took a little-noticed action last month that could end up making it harder for consumers to use travel websites to compare prices and book the cheapest flights possible.

    In March, the department suspended public comment on a “Request For Information” on how airlines are starting to prevent third-party travel websites from listing their flight schedules and prices online. The goal of the airlines is to force consumers to use their websites, but it was also a move that would likely make it harder for consumers to get information they need in one place to compare prices.

    Initiated under President Obama, the review was sparked by fears that airlines were keeping flight schedules and prices from sites like Kayak, Expedia and Travelocity. According to a federal filing, some airlines had been issuing cease and desist letters to some third-party sites in order to keep flight information hidden from visitors to their websites.

    Obama’s effort could have resulted in an action to prevent airlines from stopping these third-party sites from posting that information. Under Obama, the Department of Transportation said it was trying to determine whether the airlines’ actions “harm consumers and constitute an unfair and deceptive business practice.”

    But the Trump administration suspended public comment in order to allow the administration to review the issue.

    “The suspension of the comment period will allow the president’s appointees the opportunity to review and consider this action,” the department stated in a Federal Register posting.

    The airline industry claimed the decision as a victory for consumers and airlines alike.

    Vaughn Jennings, managing director for government and regulatory communications with Airlines for America, said the government doesn’t need to get involved in dealings between airlines and third-party travel websites. He said any rule limiting the airlines’ ability to stop third-party websites from posting flight information would actually harm consumers.

    “It would be difficult to find an industry that is more transparent than the airline industry; customers always know exactly what they are paying for before they buy,” he said. “Airlines want to sell tickets, and they want to do so in the least costly way possible, which is why buying tickets directly from an airline website typically provides the lowest fare.”

    “Simply put, dictating to the airline industry distribution and commercial practices would only benefit those third parties who distribute tickets, not the flying public,” he added.

    The airline industry told the department it was worried that some third-party websites were putting out incorrect information or misleading prices in order to tempt consumers. The industry argues that it needs to be allowed to limit the ability for these sites to post flight information in order to make sure their business reputations stay intact.

    “Not every airline has an agreement with every third-party distributor for listing and or selling their product, nor should they be forced to – doing so will only serve to eliminate competition among the Global Distribution System providers, while unnecessarily driving up the cost to fly for consumers,” Jennings said.

    However, the industry admitted in talks with the department that it’s not all about helping consumers — it’s about helping their financial bottom lines, too.

    “Some airlines also acknowledge that they are attempting to direct more consumers to their own websites for financial reasons as well as marketing reasons,” wrote Molly Moran, acting general counsel for the Transportation Department in the October filing.

    Among the arguments the industry has advanced is that the flight information is their own intellectual property and therefore cannot be used without permission, Moran wrote. That would put flight schedules and price information on the same level as creative items like songs, books and works of art.

    That has led to some observers criticizing the administration for bending to the will of a massive industry group at the expense of consumers.

    “Nixing this RFI is nothing short of a massive gift with a big, beautiful bow on top to a cronyist industry that can’t go a day without pissing off most of America with legging bans, tarmac delays, and countless other minor outrages,” said one Republican critic of the decision to stop the public comment period.

    “Consumers will lose out, and all so the absurd argument can be advanced that raw data devoid of any creative input that has never before attracted IP rights protections should be treated as legally on a par with the latest New York Times bestseller, Blake Shelton song or Hollywood blockbuster” the critic added.

    The Internet Association — a group that represents 40 major internet companies like Amazon, Facebook and Google, along with travel websites like Expedia, TripAdvisor — also wrote in its response to the government that airlines were trying to cheat consumers.

    “A conclusion can be readily reached that [airline companies’ complaints] do not serve a legitimate consumer protection goal and there is little evidence of ongoing harm to consumers warranting them,” their filing stated.

    The filing noted that flight schedules and prices are not covered by intellectual property protections because they are data points and not a creative creation. Citing a Supreme Court decision, the associated stated third-party sites are allowed to compile all the data they want because they are not creative works.

    “This legal conclusion is also consistent with long-standing industry practice based on a shared understanding of copyright law,” the document stated.