Volume
74
Abstract
This Note examines the Department of Transportation’s attempt to regulate airline ancillary fees through 89 F.R. 34620. The Rule required airlines to disclose certain ancillary fees in an obvious manner, early on in the booking process. Airlines for America challenged the Rule in the Fifth Circuit in Airlines for Am. v. Dep’t of Transp. The court held that 49 U.S.C. § 41712 allows the DOT to prohibit unfair and deceptive practices, but not to impose prescriptive rules. This holding conflicts with older Seventh Circuit authority approving similar agency action, creating a circuit split. This Note argues that the Fifth Circuit’s reading is stronger under modern textualist methods, even though broader regulation is still needed. In order to solve this issue, this Note proposes an amendment to § 41712 to grant the DOT prescriptive rulemaking authority and the power to issue rules that prevent unfair and deceptive airline practices before they take place. Such an amendment is necessary as it would better protect consumers, reflect congressional intent, and provide much-needed strength to the DOT’s authority in the post-Chevron era.
Recommended Citation
Antonio Linek,
Correcting A Carry-On Conundrum: A Proposal to Expand the DOT’s Ability to Regulate Unfair and Deceptive Practices in the Airline Industry,
74 Clev. St. L. Rev. Et Cetera
301
(2026)
available at https://engagedscholarship.csuohio.edu/etcetera/vol74/iss1/11