The United States Department of Transportation quietly announced a ruling Friday that in essence kills the “mistake fare” as we know it.
The full. three-page document can be viewed here: New DOT Enforcement Policy Regarding Mistaken Fares.
In April of 2011, the Department of Transportation issued a very consumer-frienly policy that prohibits airlines from increasing the price of air transportation after purchase (14 C.F.R. § 399.88). This policy has since been enforced by the DOT on many occasions where the airline mistakenly sold mispriced airfare to the customer, the customer purchased the ticket and the airline was forced to honor the fare by the DOT.
In May 2014, the DOT published a Notice of Proposed Rulemaking that it was considering revising this post-purchase price provision (14 C.F.R. § 399.88) to better address mistaken fares. The DOT specifically calls out “bad faith” purchases of mistaken fares and the fact that their existence are spread quickly through travel blogs and forums.
Since then, there have been a number of mistaken fares filed in the last year that have benefited consumer and hurt airlines, and it seems the DOT has finally had enough and released a temporary policy change that essentially renders 14 C.F.R. § 399.88 useless when it comes to mistaken fares. The announcement can be summarized below (emphasis mine):
The Assistant General Counsel has decided not to enforce section 399.88 with respect to mistaken fares while the Department completes the aforementioned rulemaking process. As a matter of prosecutorial discretion, the Enforcement Office will not enforce the requirement of section 399.88 with regard to mistaken fares occurring on or after the date of this notice so long as the airline or seller of air transportation: (1) demonstrates that the fare was a mistaken fare; and (2) reimburses all consumers who purchased a mistaken fare ticket for any reasonable, actual, and verifiable out-of-pocket expenses that were made in reliance upon the ticket purchase, in addition to refunding the purchase price of the ticket. These expenses include, but are not limited to, non-refundable hotel reservations, destination tour packages or activities, cancellation fees for non-refundable connecting air travel and visa or other international travel fees.
So it appears that for now, you can kiss those mistake fares goodbye, as the airlines really don’t have to honor them anymore if they can prove it was a mistake. The tables have turned: the DOT has spoken and it is now protecting the airlines from the customer.
However, there remains a shred of hope for this not to be a permanent ruling, as this announces only a temporary policy:
The enforcement policy outlined in this notice is temporary and will remain in effect only until the Department issues a final rule that specifically addresses mistaken fares. If, based on comments received in the rulemaking process, the Department determines that section 399.88 should remain as written, airlines and other sellers of air transportation would be expected to comply and the Enforcement Office would enforce the requirement