Why the Biden DOT Should Adhere to New Best Practices in Aviation Consumer Regulation
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Why the Biden DOT Should
Adhere to New Best Practices in
Aviation Consumer Regulation
By Eric A. Felland and Andrew P. Orr
In this article, we discuss two Department when it seeks to assert its authority to
of the last and much-needed restrain unfair or deceptive practices.
changes to consumer protection Though these reforms were finalized under the
regulations of the U.S. Depart- Trump Administration, they are not partisan or anticon-
ment of Transportation’s (DOT sumer. Rather, they strike a fair balance between the
or Department) Office of Avia- Department’s need for flexibility in addressing novel
tion Consumer Protection (OACP) problems and regulated entities’ need for advance
under the Trump Administra- notice and clarity about the law, and the new Adminis-
tion. We consider two recent final tration would be wise to retain them. The necessity for
rules: Defining Unfair or Decep- such reforms was recently suggested in a report by the
tive Practices (UDP Rule),1 which came into effect Government Accountability Office (GAO), further high-
on January 6, 2021, and promises to discipline future lighting the nonpartisan nature of the issue.
discretionary rulemaking and enforcement; and Trav- The Biden DOT would also be wise to bring the
eling by Air with Service Animals,2 the successful same willingness to carefully study and revise existing
culmination of an effort to rationalize certain non- regulations to its work as was brought by the previ-
discrimination regulations, which came into effect ous Administration. An excellent example of revising
on January 11, 2021. Both rules demonstrate a laud- rules in light of experience, and thoughtful balanc-
able commitment to best practices in rulemaking and ing of stakeholder interests, is the recent final revision
enforcement. to DOT’s service animal regulations. These rules fixed
As the Biden Administration gets underway, its the emotional service animal loophole that was much
DOT will confront important questions about the abused by unscrupulous passengers; this not only
uses and limits of its consumer protection authority provided airlines with greater certainty but also was
while seeking to regulate an aviation industry pro- supported by the disability community that relies on
foundly reshaped by the COVID-19 pandemic. The the integrity of the service animal rules to ensure
new president has already signaled a strong commit- equity in air transportation. The regulations were also
ment to rethinking the deregulatory approach of his rationalized by aligning DOT’s standards with those
predecessor.3 However, many of the regulatory good applied by the Department of Justice (DOJ) in airports
governance practices instituted before January 20 con- for greater consistency across the consumer journey.
tinue to make sense and should be retained. The Biden DOT should remain on the lookout for
other such win-win fixes to regulations.
The Defining Unfair or Deceptive Practices Rule:
A New Beginning?
The UDP Rule commits DOT to providing thorough Regulatory Reform Placed a New Focus on Cost-Benefit
cost-benefit justifications for new aviation consumer Analysis and Articulating Consumer Harm
protection rulemaking and for investigations. This is a The Trump Administration’s regulatory reform
welcome departure from rules based on mere suspi- agenda was the subject of numerous articles and is
cions of consumer harm, or from cost-benefit analyses well-known.4 In part responding to aggressive new
that leaned too heavily on unquantifiable benefits. The consumer regulation of airlines during the Obama
rule also formalizes certain due process protections— Administration and even more aggressive enforce-
such as affirming a respondent’s opportunity to be ment activity that in turn led to calls for an overhaul
heard during the informal investigation stage—though of DOT’s approach to rulemaking and enforcement,
the rule falls short of its potential to clearly explain including more careful attention to cost-benefit anal-
what factors DOT relies on in exercising prosecutorial yses and more fulsome articulation of consumer
discretion or mitigation of proposed penalties. Never- harms,5 the Trump DOT conducted extensive regula-
theless, the rule’s procedural reforms are a welcome tory reform.6
development for regulated entities that often strug- For its aviation consumer protection rules, the
gle to understand the priorities and reasoning of the Trump DOT finalized reforms on both procedural and
Published in The Air & Space Lawyer, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.substantive fronts. On procedure, DOT’s so-called Rule During the comment period of a proposed regulation,
on Rules directed the Department to follow best prac- an interested party may petition DOT for a hearing
tices in administrative law, restating procedures for on the record to determine disputed factual issues,
rulemaking, setting forth a workflow for supervision provided the party can successfully argue to DOT’s
of nonbinding guidance documents, and clarifying general counsel that “the ordinary public comment
procedural requirements in administrative enforce- process is unlikely to provide an adequate examina-
ment proceedings.7 On substance, DOT’s UDP Rule tion of the issues to permit a fully informed judgment
took an important step by committing the Department [by DOT].”14 As a safeguard, the general counsel may
to applying the time-tested standards of Federal Trade decline a petition if such a hearing would not contrib-
Commission (FTC or Commission) jurisprudence ute to fact-finding or would cause undue delay in the
when exercising the Department’s rulemaking and rulemaking.15 Despite a degree of additional formality,
enforcement discretion to prohibit “unfair or decep- DOT expects that such hearings could help focus the
tive practices” pursuant to 49 U.S.C. § 41712 (section engagement of stakeholders and thus bring new effi-
41712).8 Together, these rules bind the Department to ciency to the public input process on rules where they
thorough consideration and input from the public and will be an option.16
industry before issuing new consumer protections, The second procedural reform is to provide a clear
and commit the agency to responsibly using nonbind- overview of DOT’s informal investigation process and
ing guidance to further explain the meaning of its a clear commitment to due process within such an
rules. investigation. Though generally familiar to airline law-
Following the FTC’s 1980 Policy Statement on yers, the particulars of the Department’s enforcement
Unfairness, the UDP Rule defines unfair as “[a] prac- process are traditionally quite opaque, especially for
tice . . . if it causes or is likely to cause substantial informal enforcement proceedings, and could be even
injury, which is not reasonably avoidable, and the less apparent to other members of the public. Going
harm is not outweighed by benefits to consumers or forward, during informal investigations, a respondent
competition.”9 Following the FTC’s 1983 Policy State- must be afforded notice and an opportunity to pres-
ment on Deception, DOT’s rule defines deceptive as ent mitigating evidence regarding potential consumer
“[a] practice . . . if it is likely to mislead a consumer, harms.17 For any negotiated settlement and consent
acting reasonably under the circumstances, with order issued at the close of an investigation, if a pre-
respect to a material matter. A matter is material if it existing rule did not prohibit the practice at issue, the
is likely to have affected the consumer’s conduct or Department must spell out, with reference to the UDP
decision with respect to a product or service.”10 In standards, why something constitutes an unfair or
the final rules, the Department declined many indus- deceptive practice.18 The Department may only launch
try suggestions, including adoption of an intent to a formal proceeding to investigate a matter if there are
deceive as an element of deception, and defined key “reasonable grounds” to believe a practice is unfair
terms including practice, substantial harm, likely to or deceptive and “if efforts to settle the matter [infor-
mislead, reasonably avoidable, and acting reasonably mally] have failed.”19
under the circumstances.11 The Department suggested
that it had already been applying these standards in FTC Experts Provide Differing Views on the Notice of
the same fashion as the FTC despite the standards not Proposed Rulemaking
being codified in regulation.12 The UDP Rule rulemaking docket was graced by deep
policy debate between current and former FTC regu-
Informal Hearings Should Bolster Clarity and Due lators over the FTC’s history of consumer rulemaking
Process in Informal Investigations and enforcement. Airline industry and consumer
The UDP Rule also includes two procedural require- groups also filed thorough comments. The sitting
ments that complement the Rule on Rules. Democratic FTC commissioners, Rohit Chopra and
The first allows for an evidentiary hearing when Rebecca Kelly Slaughter, opposed DOT’s proposal,
formulating “low-cost discretionary aviation consumer while J. Howard Beales III, former director of the FTC
protection rules where scientific, technical, economic, Bureau of Consumer Protection, and Timothy J. Muris,
or other factual issues are genuinely in dispute.”13 former chairman of the Commission, filed a joint com-
ment in support.
Commissioner Chopra decried what he expected
Eric A. Felland (efelland@eckertseamans.com), an associate in Eckert would be the practical effect for consumers of adopt-
Seamans’ aviation group, helps clients with international air service
authorities, DOT compliance and investigations, and aviation policy ing the FTC’s substantive standard for finding unfair or
developments. Andrew P. Orr (aorr@eckertseamans.com), also deceptive practices, arguing that adoption of the stan-
an associate in Eckert Seamans’ aviation group, helps clients with dard would sharply curtail the types of problems that
administrative proceedings and enforcement actions before numerous
federal agencies; in addition, his practice includes commercial work DOT could successfully address using section 41712.20
for air carriers and airports. Commissioner Slaughter seconded these comments
Published in The Air & Space Lawyer, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.and elaborated on DOT’s proposal to allow fact-find- adjudications.”28 These passages suggest that the UDP
ing hearings during certain rulemakings. She asserted Rule was truly intended to make Department activity
that FTC experience shows how hearings on disputed more concrete, transparent, and accountable.
issues of fact like those contemplated by DOT have
tended to slow down rulemaking significantly, requir- DOT Enforcement of the UDP Standard Must Be Trans-
ing increased investments of time and energy by the parent and Consistent
government and stakeholders.21 A recently released study from GAO suggests that
In opposition to the sitting commissioners and in such an increase in rigor would be welcome, particu-
favor of DOT’s proposal, Beales and Muris cited the larly in the domain of DOT enforcement.29 Reviewing
history leading up to the FTC’s adoption of its pol- enforcement practices in response to a mandate
icy statements on unfairness and deception. In the from Congress in the 2018 FAA Reauthorization Act,
1960s and 1970s, the FTC aggressively issued con- GAO observed a lack of transparency in current DOT
sumer protection rules “relying on a broad reading of practice.
the unfairness criteria with little or no empirical basis For example, no process currently exists to give reg-
. . . . [P]roposals could be based entirely on personal ulated entities or the traveling public insight into the
values, without regard to the costs they might impose facts underlying warning letters or investigations that
on consumers . . . [and these proposals] relied heavily, are closed but do not result in consent orders. Occa-
if not exclusively, on public policy” for justification.22 sionally, fact-specific guidance of this sort will emerge
Until the FTC’s policy statements and eventual con- in the negative, as when third-party petitions for rule-
gressional action firmed up the statutory definitions, making are denied and the Department is obliged
the agency tended to exercise “unbridled discretion” in to state reasons on the record for not taking certain
pronouncing commercial practices to be illegal, which actions.30 More information about warning letters and
could waste stakeholder resources without bringing subjects of investigations closed without issuance of
real benefits to consumers.23 Beales and Muris argued consent orders would be a valuable source of guidance
that reforms like the Policy Statement on Unfairness on DOT’s reasoning and application of the rules to dif-
did not diminish the FTC’s consumer protection pow- ferent fact patterns. This in turn would allow for the
ers but instead caused the quality of the Commission’s industry and the public to better understand the stan-
reasoning to improve.24 Beales and Muris disagreed dards that DOT seeks to establish.
with the assertions of Commissioners Chopra and Furthermore, the GAO report documented the vaga-
Slaughter that the FTC’s UDP standards were ill-suited ries arising from DOT’s strong preference for informal
to aviation consumer protection, and disagreed that consent order settlements of alleged violations of
additional hearing procedures in rulemakings would consumer protection rules, given the flexibility this
lead to undue burdens and delays.25 mechanism provides to DOT in pursuing its goals.31
The finalization of DOT’s UDP Rule recognizes The Department, GAO wrote,
that consumer protection in the airline industry had
reached an inflection point like that of the FTC in considers a variety of factors—such as the fre-
the late 1970s—that is, there was a need to transi- quency and extent of consumer harm—when
tion from a period of extensive, ill-supported, and at determining whether to pursue enforcement
times seemingly arbitrary regulation and enforcement actions. However, [DOT] officials said that the
to more carefully reasoned, objective rulemaking and determination is ultimately based on a review of
enforcement. Despite stating at the outset that its UDP all of the factors of each case and no two cases
proposal would merely codify existing statutory inter- have the same factors or are exactly comparable.
pretations and enforcement procedures (aside from As a result, the decision to pursue enforcement
new hearings available under part 399.79(c)), the actions cannot be reduced to an exact science,
Department admitted that “more can be done to bet- according to the officials.32
ter inform the public and regulated entities how the
Department determines what constitutes an unfair and Later, GAO observed that “OACP officials told
deceptive practice when issuing discretionary aviation us they consider a variety of factors when making
consumer protection rulemakings . . . and when issu- enforcement decisions, including the extent of con-
ing enforcement orders . . . where there has not been sumer harm. However, these factors are not published
a regulation that already specifies required or prohib- anywhere and stakeholders we spoke with were not
ited conduct.”26 Put another way, DOT admitted that otherwise aware of them.”33 An enforcement pol-
the UDP Rule serves to “enhance the justifications icy handbook now under development might one
for actions taken under the Department’s statutory day illuminate how DOT thinks about the balance of
authority,”27 consistent with the principle of the Rule factors and priorities in enforcement, but such a doc-
on Rules “to provide greater transparency to regulated ument has no firm time frame for delivery.34 This last
entities when conducting enforcement actions and area is one in which the UDP Rule falls short of its
Published in The Air & Space Lawyer, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.full potential for transparency. An additional subsec- in the face and hospitalized by an emotional sup-
tion of 14 C.F.R. § 399.79 would be a logical place to port dog on one of Delta’s flights.39 At the time, Delta
lay out what factors DOT considers in the exercise was accommodating nearly 700 animals on its flights
of its prosecutorial discretion or in mitigation of pro- per day, and increasingly saw issues with the behav-
posed penalties during investigations.35 ior of ESAs that were typically not seen with trained
While the real-world meanings of unfair and decep- traditional service animals.40 To address its safety and
tive can hardly be “an exact science” in a predictive operational concerns, Delta changed its policies to
sense, it is wise to provide more clarity to the pub- require all service and support animal users to pro-
lic than merely suggesting that a variety of factors are vide proof of an animal’s health and vaccinations;
considered in the exercise of enforcement discretion and for ESAs and PSAs, to provide a letter signed by
and that no two cases are alike. As the FTC experi- a doctor or licensed mental health worker and sign a
ence detailed by Beales and Muris suggests, a black special form attesting that their support animal would
box of unbridled discretion in consumer protection behave on the flight.41
can easily lead to agency action that is overdriven by Delta took further action at the end of 2018, refus-
the particular persuasions of regulators. Such a risk ing to accommodate any service or support animal
may be particularly acute when political passions are under four months old and refusing to carry ESAs
strong and a new Administration seeks to chart a new on any flights longer than eight hours.42 Many of the
course. The standards adopted should allow DOT to other major airlines followed Delta’s lead.43 At the
investigate and stop egregiously unfair or deceptive time, it was not clear whether these changes fully
practices when they arise, but helpfully keep a clear complied with the requirements of part 382.
focus on consumer welfare and predictability for an Even so, the industry changes did little to limit
industry that already competes vigorously on the qual- abuse by passengers who sought to qualify their pets
ity and timeliness of its service. Especially with the as ESAs, and many issues continued. As a result, air-
unforeseen circumstances of the global pandemic, lines, disability rights advocacy groups for traditional
and the continuing possibility of health issues and service animals, and passengers alike continued to
political pressures arising faster than rulemaking can complain, asking DOT to take action to resolve the
keep up with, a principled, transparent, and predict- issues with ESAs.44
able consumer harm approach in enforcement is more Pursuant to a mandate in the 2018 FAA Reau-
important than ever. thorization Act, DOT issued a notice of proposed
rulemaking (NPRM), Traveling by Air with Service Ani-
Traveling by Air with Service Animals: Common mals, on February 5, 2020, setting forth nearly all of
Sense Prevails Regarding Emotional Support the same changes that made their way into the final
Animals rule.45 DOT received approximately 15,000 comments
The Air Carrier Access Act (ACAA) prohibits discrim- on the NPRM, and while most were from individual
ination on the basis of disability in air travel and commenters, disability rights advocacy organizations,
generally applies to both U.S. and foreign air carri- airlines, airports, transportation worker associations,
ers that operate flights to/from and within the United animal health and training organizations, and other
States.36 However, Congress left it to DOT to imple- special-interest groups also weighed in. As noted in
ment this mandate, leaving the Department free to the final rule, which became effective January 11,
craft its own regulatory and enforcement structure. 2021, the two biggest concerns of those in support
DOT promulgated its first ACAA-related regulations of the change were the incidents of misbehavior and
(14 C.F.R. part 382) in 1990, which have been sub- the misrepresentation of pets as service animals.46 On
ject to a number of revision and expansions. A key the other hand, about half of disability rights orga-
area of part 382 relates to service animals, which nizations that commented requested that DOT keep
was expanded to include emotional support ani- an ESA classification, potentially with more strin-
mals (ESAs) and psychiatric service animals (PSAs) in gent qualification requirements.47 After considering
2008.37 all stakeholder views, DOT determined that revision
to the regulations was warranted in order to provide
When ESAs Went Rogue a clearer service animal definition and to reduce inci-
With the inclusion of ESAs and PSAs, airlines—par- dents of misbehavior and fraud.48
ticularly U.S. certificated air carriers—were forced to The final rule changes were prompted by a number
accommodate an ever-increasing number of different of specific factors, but importantly, the following: (i) an
animal species, which in many cases had none of the increasing number of complaints to DOT and the air-
formal training typically expected of traditional ser- lines regarding service animals, (ii) DOT’s definition of
vice animals.38 service animal being inconsistent with DOJ’s definition
After years of documented abuse by passengers, of service animal, (iii) an increasing number of requests
Delta Airlines took action after a passenger was bitten to transport unusual species of animals, (iv) individuals
Published in The Air & Space Lawyer, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.fraudulently representing pets as service animals, and (v) the service animal has the ability not to relieve itself on
increasing reports of misbehavior by ESAs. a long flight or to do so in a sanitary manner.56 Airlines
can require individuals traveling with a service animal
Airlines Are No Longer Required to Transport ESAs to provide the DOT service animal form(s) up to 48
The final rule addresses a litany of issues, but the two hours in advance of the date of travel if the passenger’s
most significant changes involve a more specific definition reservation was made prior to that time.57
of what qualifies as a service animal and the elimination
of the requirement that airlines recognize ESAs. Looking Ahead
Service animal is now defined as “a dog, regard- Overall, the new service animal regulations should be
less of breed or type that is individually trained to a welcome change for airlines and the traveling public
do work or perform tasks for the benefit of a quali- alike. With a clear definition of service animal and no
fied individual with a disability, including a physical, requirement to recognize ESAs, airlines now have clar-
sensory, psychiatric, intellectual, or other mental dis- ity as to the accommodations that must be provided
ability.”49 Airlines are not required to transport other to passengers and the situations in which airlines
species of animal (e.g., miniature horses, capuchin can restrict or place conditions on travel. Further, by
monkeys, etc.), although they are free to do so pursu- aligning the DOT definition of service animal with
ant to established airline policies. As support for this the DOJ/ADA definition, there are no longer different
change, DOT relied significantly on the desire to bring accommodations required for service animals in air-
its own definition of service animal in line with DOJ’s ports depending on the aircraft.
definition of this term under the Americans with Dis- To the extent that concerns remain about excluding
abilities Act (ADA).50 As DOT noted in the NPRM, this legitimate PSA users, DOT’s new rule further strength-
change was supported by airlines and 10 different dis- ens protections for PSAs. PSAs are now protected to
ability rights organizations that wished to “stop the the same degree traditional service animals are, mean-
proliferation of a patchwork of service animal access ing that users no longer need to follow additional
requirements in airlines’ service animal policies.”51 carrier requirements, such as providing documenta-
The Open Doors Organization and the Association of tion from a licensed mental health professional up
Late-Deafened Adults also supported these changes, to 48 hours in advance of travel. Any individual who
specifically citing the fraudulent representations of needs a service animal to serve a psychiatric function
pets as service animals and the anger from such mis- will still be allowed to do so. PSA users will similarly
representations being directed at individuals with be limited to dogs, but to the extent these individu-
disabilities.52 als need assistance, it remains available to them. While
Importantly for travelers and airlines alike, ESAs no some commenters were also concerned about poten-
longer qualify as service animals under part 382 and tial fraudulent PSA abuses, DOT intends to continue
may instead be treated as pets, subjecting them to pet monitoring this and seek additional comments from
fees and/or carriage in the cargo compartment. But airlines and disability rights advocates about how to
DOT reiterated that PSAs must still be treated as ser- best conduct monitoring.58
vice animals; DOT further provided that PSA users can Additionally, we should see an end to (or dramatic
no longer be required to provide a letter from a licensed reduction of) the abuse by passengers simply seeking
mental health professional detailing the passenger’s need to escape airline pet fees and the corollary development
for the animal, nor will they be required to check in one of the fraudulent ESA certification industry. Over the last
hour before the check-in time for other passengers. few years, numerous websites have promoted their abil-
The rule also permits airlines to limit the number of ity to certify ESAs via the payment of a small fee, in the
service animals traveling with a single passenger with range of $30 to $90. In the best of cases, these online
a disability to two service animals53 and gives airlines ESA certification services required individuals to interact
additional discretion in limiting where a service ani- with a presumably licensed mental health professional
mal must be contained in the aircraft, by mandating and show some need for an ESA, though just about any
that a service animal must either fit within its han- claim of anxiety or stress during flying could qualify. In
dler’s foot space on the aircraft or be placed on the the worst of cases, individuals simply paid the fee and
passenger’s lap.54 Airlines may also require that pas- printed an ESA certificate. These new rule changes there-
sengers harness, leash, or tether their service animal fore balance the legitimate needs of PSA users against
at all times in the airport and on the aircraft.55 the need to combat this fraud.
To further simplify the process for airlines, DOT With regard to the new forms, each individual air-
developed two new standard forms for service animal line previously had developed and was allowed to
users: (i) a “Service Animal Air Transportation Form,” use its own forms, which potentially led to confu-
attesting and certifying to a service animal’s training, sion for service animal users on what information and
good behavior, and health; and (ii) for flight segments documentation would be required for each specific
of eight hours or more, a “Relief Form,” attesting that airline. As all airlines will now be required to use the
Published in The Air & Space Lawyer, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.DOT-approved forms, service animal users now have a Practices, Comment ID No. DOT-OST-2019-0182-0226 (May 29,
clear idea of what is required to travel with their ser- 2020) (asserting that “[t]he Department’s enforcement under
vice animal regardless of which airline is flown. its Section 41712 authority in recent years has been modest,
achieving some consumer gains by focusing on curbing the
Conclusion most egregious of airline actions”).
The Service Animal Rule, like the UDP Rule, 6. See Robert F. Foster, The Boundaries of Consumer Pro-
demonstrates the best in consumer protection rule- tection Regulation: DOT Rejects Flyersrights.org Petitions
making—careful balancing of the interests of both for Rulemaking, 32 Air & Space Law. 4 (2019); Marina Vel-
consumers and regulated entities and a commitment janovska O’Brien & Andrew Orr, DOT and FAA Regulatory
to clear explanations of applicable standards. Both of Reform Under the Trump Administration, 31 Air & Space Law.
these rules should serve as models for DOT aviation 8 (2018).
consumer protection activity going forward. 7. Administrative Rulemaking, Guidance, and Enforce-
ment Procedures, 84 Fed. Reg. 71,714 (Dec. 27, 2019)
Endnotes (codified at 49 C.F.R. pt. 5).
1. Defining Unfair or Deceptive Practices, 85 Fed. Reg. 8. See Notice of Proposed Rulemaking: Defining Unfair
78,707 (Dec. 7, 2020) [hereinafter UDP Final Rule]. or Deceptive Practices, 85 Fed. Reg. 11,881, 11,883 (Feb. 28,
2. Traveling by Air with Service Animals, 85 Fed. Reg. 2020) [hereinafter UDP Proposed Rule] (explaining how sec-
79,742 (Dec. 10, 2020). tion 41712 was modeled after section 5 of the Federal Trade
3. See Revocation of Certain Executive Orders Concerning Commission (FTC) Act); David Heffernan & Brian Doll, Why
Federal Regulation, Exec. Order No. 13,992, 86 Fed. Reg. 7,049 DOT Should Interpret “Deceptive Practices” Using a “Rea-
(Jan. 25, 2021) (repealing the Trump administration’s execu- sonable Consumer” Standard, 33 Air & Space Law. 1 (2020)
tive order framework for regulatory reform); Modernizing (describing how DOT’s aviation consumer protection author-
Regulatory Review: Memorandum for the Heads of Executive ity is modeled on that of the FTC).
Departments and Agencies, 86 Fed. Reg. 7,223 (Jan. 20, 2021) 9. 14 C.F.R. § 399.79(b)(1); see Commission Statement
(seeking “to ensure swift and effective Federal action . . . [to] of Policy on the Scope of Consumer Unfairness Jurisdic-
promote the public interest,” including to “promote public tion [FTC Unfairness Policy Statement], (Dec. 17, 1980),
health and safety, economic growth, social welfare, racial jus- reprinted in Int’l Harvester Co., 104 F.T.C. 949, 1070, 1073
tice, environmental stewardship, human dignity, equity, and (1984), https://www.ftc.gov/public-statements/1980/12/
the interests of future generations,” and to do so, inter alia, ftc-policy-statement-unfairness.
“fully account[ing] for regulatory benefits that are difficult or 10. 14 C.F.R. § 399.79(b)(2); see FTC Policy Statement on
impossible to quantify,” “tak[ing] into account the distributional Deception (Oct. 14, 1983), reprinted in Cliffdale Assocs.,
consequences of regulations,” “promot[ing] the efficiency, trans- Inc., 103 F.T.C. 110, 174 (1984), https://www.ftc.gov/
parency, and inclusiveness of the interagency review process, public-statements/1983/10/ftc-policy-statement-deception.
and determin[ing] an appropriate approach with respect to the 11. UDP Final Rule, 85 Fed. Reg. 78,707, 78,710 (Dec. 7,
review of guidance documents.”). 2020).
4. See generally Press Release, U.S. Dep’t of Just., Justice 12. Id.
Department Releases Report on Modernizing the Adminis- 13. Id. at 78,712; 14 C.F.R. § 399.75(b).
trative Procedure Act (Aug. 11, 2020), https://www.justice. 14. 14 C.F.R. § 399.75(b)(2)(ii).
gov/opa/pr/justice-department-releases-report-moderniz- 15. Id. § 399.75(b)(3).
ing-administrative-procedure-act (discussing the progress of 16. UDP Final Rule, 85 Fed. Reg. at 78,715.
administrative reform efforts across the government); Ple- 17. 14 C.F.R. § 399.79(e).
nary Roundtable: Regulatory Reform Report Card: Agency 18. Id. § 399.79(e)(2).
General Counsel Perspective, Federalist Soc’y (May 8, 2019), 19. Id. § 399.79(f).
https://fedsoc.org/conferences/seventh-annual-executive- 20. See Comment of Federal Trade Commissioner Rohit
branch-review-conference?#agenda-item-plenary-roundtable Chopra on the U.S. Department of Transportation’s Pro-
(illustrating the application of reform principles at agencies, posed Rule Defining Unfair or Deceptive Practices, Docket
including DOT, the Department of Energy, the Environmen- No. DOT-OST-2019-0182-0225 (May 29, 2020), https://www.
tal Protection Agency, Treasury, and the Food and Drug ftc.gov/public-statements/2020/05/comment-commissioner-
Administration). chopra-us-department-transportations-proposed-rule.
5. See, e.g., Robert W. Kneisley, DOT’s Regulation of “Unfair 21. See Comment of Federal Trade Com-
or Deceptive Practices”: Reform Is Urgently Needed, 31 Air & missioner Rebecca Kelly Slaughter on the U.S.
Space Law. 1 (2018); Anita Moser, DOT’s Rulemaking Is a Step Department of Transportation’s Proposed Rule
Toward Reregulation, 27 Air & Space Law. 15 (2014); David. A Defining Unfair or Deceptive Practices, Docket No. DOT-
Berg, DOT’s “Transparency of Airline Ancillary Fees” Rulemak- OST-2019-0182-0227 (May 29, 2020), https://www.ftc.
ing Is Bad Policy and Wrong on the Law, 27 Air & Space Law. gov/system/files/documents/public_statements/1576178/
3 (2014). But see Paul Hudson & Andrew Applebaum, Com- statement_of_commissioner_slaughter_on_dots_proposed_
ments of Flyersrights.org on Defining Unfair or Deceptive rule_defining_unfair_or_deceptive_practices.pdf.
Published in The Air & Space Lawyer, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.22. Comments of J. Howard Beales III, former Direc- 38. See id. at 72,636. In the rule, DOT acknowledged that
tor, Bureau of Consumer Protection, and Timothy J. Muris, one of the main differences between ESAs and traditional
former FTC Chairman, on the U.S. Department of Trans- service animals was the lack of training to perform a spe-
portation’s Proposed Rule Defining Unfair or Deceptive cific function.
Practices, Docket No. DOT-OST-2019-0182-0230, at 3 (Sept. 39. Bloomberg, Delta’s Cracking Down on ‘Emo-
9, 2020). tional Support Animals’ on Board Flights, Time
23. Id. at 6; see also J. Howard Beales III, The FTC’s Use ( Jan. 19, 2018, 3:36 PM) https://time.com/5110495/
of Unfairness Authority: Its Rise, Fall, and Resurrection, Pre- delta-airlines-support-animals.
sentation to the Marketing and Public Policy Conference, 40. Id.
Washington, D.C. (May 30, 2003), https://www.ftc.gov/ 41. Id.
public-statements/2003/05/ftcs-use-unfairness-authority-its- 42. Alex Winter, Delta Will Soon Ban Emotional Support
rise-fall-and-resurrection, 2003 WL 21501809, at *1, *6 (“[T] Animals on Long-Haul Flights, Lonely Planet (Dec. 13, 2018),
he [FTC] should not be in the business of making essentially https://www.lonelyplanet.com/articles/delta-emotional-support-
political choices about which public policies it wants to pur- animals-rules.
sue. That is the point of codifying the limited role of public 43. It should also be noted that in response to air-
policy.”). lines taking actions to limit ESAs, DOT issued two related
24. Comments of J. Howard Beales III and Timothy J. guidance documents, an interim and final Statement of
Muris on the U.S. Department of Transportation’s Proposed Enforcement Priorities Regarding Service Animals (83 Fed
Rule Defining Unfair or Deceptive Practices, Docket No. Reg. 23,804 and 84 Fed. Reg. 43,480, respectively), in 2018.
DOT-OST-2019-0182-0230, at 7. These statements sought to clarify DOT’s existing ser-
25. Id. at 14–16. vice animal rules and give the airlines fair warning of what
26. UDP Proposed Rule, 85 Fed. Reg. 11,881, 11,884 (Feb. actions airlines could and could not take with regard to
28, 2020). accommodating service and support animals before subject-
27. UDP Final Rule, 85 Fed Reg. 78,707, 78,710 (Dec. 7, ing themselves to an administrative enforcement action.
2020) (emphasis added). 44. See Nondiscrimination on the Basis of Disability in Air
28. Id. Travel, 73 Fed. Reg. 27,613, 27,636 (May 13, 2008).
29. U.S. Gov’t Accountability Off., GAO-21-109, Aviation 45. Traveling by Air with Service Animals, 85 Fed. Reg.
Consumer Protection: Increased Transparency Could Help Build 6448 (Feb. 5, 2020).
Confidence in DOT’s Enforcement Approach (Oct. 2020) [here- 46. Traveling by Air with Service Animals, 85 Fed. Reg.
inafter GAO Report]. 79,742, 79,746 (Dec. 10, 2020).
30. See, e.g., Petition for Rulemaking and Third-Party 47. Id. at 79,747.
Complaint of Donald L. Pevsner, Esq., Order Denying Peti- 48. Id.
tion and Dismissing Complaint, Order 2012-11-4, at 4, 49. Id. at 79,773.
Docket No. DOT-OST-2012-0109, (U.S. DOT, Nov. 6, 2012) 50. See DOJ’s ADA definition of service animal in 28
(stating that a carrier’s contract of carriage determines the C.F.R. § 35.104 and 28 C.F.R. § 36.104, which similarly limit
refund terms of a ticket and that, beyond this, “[t]he Depart- service animals to dogs and do not recognize ESAs.
ment imposes no further independent obligation on carriers 51. Traveling by Air with Service Animals, 85 Fed. Reg.
in the case of cancelled flights or delayed departures”); see 6448, 6451 (Feb. 5, 2020).
also Foster, supra note 6. 52. See Comment from Open Doors Org. on 85 Fed.
31. GAO Report, supra note 29, at 13. Reg. 6448, Docket No. DOT-OST-2018-0068-19305 (Apr.
32. Id. at 12. 6, 2020), https://beta.regulations.gov/comment/DOT-
33. Id. at 24–25. OST-2018-0068-19305; see also Comment from Assoc. of
34. Id. at 22–23. Late Deafened Adults on 85 Fed. Reg. 6448, Docket No.
35. Cf. FAA Order 2150.3C, change 3 ( Jan. 24, 2020) DOT-OST-2018-0068-17669 (Mar. 30, 2020), https://beta.reg-
(amending ch. 9) (stating the agency’s policy on enforce- ulations.gov/comment/DOT-OST-2018-0068-17669.
ment actions and sanctions, including a list of mitigating and 53. Traveling by Air with Service Animals, 85 Fed. Reg. at
aggravating factors in calculating penalties). 79,775.
36. 49 U.S.C. § 1705. 54. Id. at 79,776.
37. See Nondiscrimination on the Basis of Disability in Air 55. Id. at 79,775.
Travel, 73 Fed. Reg. 27,613 (May 13, 2008). Under this rule, 56. Id.
ESAs and PSAs were largely treated in the same manner, 57. Id.
limiting ESAs and PSAs to persons with diagnosed mental 58. Id. at 79,749.
or emotional disorders. The rule permits carriers to insist on
recent documentation from a licensed mental health profes-
sional to support the passenger’s desire to travel with such
an animal, and carriers could require these users to provide
such documentation up to 48 hours in advance.
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