[Federal Register Volume 81, Number 210 (Monday, October 31, 2016)]
[Notices]
[Pages 75481-75487]
[FR Doc No: 2016-26191]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No. DOT-OST-2016-0204]

Exploring Industry Practices on Distribution and Display of
Airline Fare, Schedule, and Availability Information

AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).

ACTION: Request for Information (RFI).

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SUMMARY: The industry group for travel sites, a number of its members
which include online travel booking sites, and certain members of
Congress have expressed concerns to the Department of Transportation
(DOT or Department) regarding airline restrictions on the distribution
and display of airline flight schedule, fare, and availability
information (``flight information''). Specifically, concerns were
raised about practices by some airlines to restrict the distribution
and/or display of flight information by certain online travel agencies
(OTAs), metasearch entities that operate flight search tools, and other
stakeholders involved in the distribution of flight information and
sale of air transportation. Airlines state that it is important for
them to maintain control over the display and distribution of airline
flight information while OTAs and metasearch entities that operate
flight search tools state that actions taken by airlines to restrict
the distribution or display of flight information are anticompetitive
and harming consumers.
    The Department is interested in learning more about this issue.
Pursuant to the Department's aviation consumer protection authority, we
are requesting information on whether airline restrictions on the
distribution or display of airline flight information harm consumers
and constitute an unfair and deceptive business practice and/or an
unfair method of competition. The Department is also requesting
information on whether any entities are blocking access to critical
resources needed for competitive entry into the air transportation
industry. Finally, we are requesting information on whether Department
action is unnecessary or whether Department action in these areas would
promote a more competitive air transportation marketplace or help
ensure that consumers have access to the information needed to make
informed air transportation choices.

DATES: Responses should be filed by December 30, 2016.

ADDRESSES: You may file responses identified by the docket number DOT-
OST-2016-0204 by any of the following methods:
     Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE., between 9:00 a.m. and 5:00 p.m. ET,
Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: You must include the agency name and docket number
DOT-OST-2016-0204 at the beginning of your submission. All submissions
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all
submissions received in any of our dockets by the name of the
individual submitting the document (or signing the submission, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act statement in the Federal
Register published on April 11, 2000 (65 FR 19477-78), or you may visit
http://DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.

FOR FURTHER INFORMATION CONTACT: Kyle-Etienne Joseph, Trial Attorney,
or Kimberly Graber, Chief, Consumer Protection and Competition Law
Branch, Office of the Assistant General Counsel for Aviation
Enforcement and Proceedings, U.S. Department of Transportation, 1200
New Jersey Ave. SE., Washington, DC 20590,<PHONE_NUMBER>,<PHONE_NUMBER>
(fax<EMAIL_ADDRESS>or<EMAIL_ADDRESS>(email).

SUPPLEMENTAL INFORMATION:

Background

    Various entities have raised concerns to the Department regarding
airlines restricting the distribution or display of information on
their flights. We initially became aware of the issue in connection
with certain airlines placing restrictions on flight information being
displayed by metasearch sites that operate flight search tools. In a
proposed rule, the Transparency of Airline Ancillary Fees and Other
Consumer Protection Issues (``Consumer Rule III NPRM''), the Department
sought information relating to a wide variety of distribution issues
including information about the relationships between entities involved
in the distribution of air transportation information. 79 FR 29974 (May
23, 2014). In the Consumer Rule III NPRM, the Department posed
questions related to airline restrictions on the display of flight
schedule, fare, and availability

information. The Department stated that it was ``considering whether
carriers should be prohibited from restricting the information provided
by ticket agents when those ticket agents do not sell air
transportation directly to consumers but rather provide consumers with
different airlines' flight information for comparison shopping.'' 79 FR
29970, 29974 (May 23, 2014).
    While the rulemaking was pending, representatives of certain OTAs
and representatives of metasearch sites focused on travel, and their
outside counsel, met with Department representatives and urged the
Department to consider taking action. Those entities stated that
airlines that restrict distribution of airline fare, schedule, and
availability information to metasearch sites are engaging in unfair
practices and unfair methods of competition. They further stated that
they were focused on enforcement action or industry guidance rather
than rulemaking. See Docket item DOT-OST-2014-0056-0776.
    Subsequently, many questions and concerns have been raised with the
Department by members of Congress as well as various stakeholders
regarding airline restrictions on the distribution and display of
flight information by third parties. The Department met with
representatives from OTAs, metasearch entities, airlines, and other
industry stakeholders to learn about the issue and how airline
decisions to place restrictions on the distribution and display of
airline flight information may impact both consumers and the broader
air transportation industry. The Department wanted to understand
whether the issue of primary concern to industry stakeholders was (1)
airlines refusing to provide any flight information to non-airline
entities such as an OTA or metasearch entity; (2) airlines providing
flight information to non-airline entities but placing restrictions on
how that information is displayed; or (3) airlines providing flight
information to an OTA but restricting the OTA from distributing that
information to a metasearch entity that operates a flight search tool
but does not itself sell tickets. In addition, the Department wanted to
understand the impact on consumers.
    In meetings with representatives of airlines and online travel
entities, the Department asked about the restrictions and why some
airlines are restricting some OTAs, metasearch entities that operate
flight search tools, or other industry stakeholders from accessing
flight information or from distributing and displaying flight
information. The Department also asked how such restrictions may impact
consumers who use OTA and metasearch Web sites to research and book air
travel.
    The Department learned that some airlines have issued cease and
desist letters to some OTAs demanding that these companies stop
distributing airline flight information to some metasearch entities
that operate flight search tools or have included language in their
contracts with OTAs prohibiting them from sharing airline flight
information with any metasearch entity that has not been approved by
the airline. Additionally, some airlines have issued letters to
metasearch entities operating flight search tools demanding that these
companies stop displaying the airline's flight information or limiting
how the entities display the airline's flight information on their
flight search tools.
    Some airlines have explained that such actions are because there
are certain Web sites marketing air transportation operated by entities
with which the airline does not want to be associated because the
entities provide inaccurate or incomplete information, or provide poor
customer service. Additionally, certain airlines have alleged that some
of these entities may have engaged in fraud. Further, several airlines
have stated that they wish to control how the information regarding
their flights is distributed so that the airline can market services
the way it chooses, through the outlets it chooses. Some airlines also
state that controlling the outlets through which information on their
flights is distributed helps control their distribution costs.
    Historically, competition in airline distribution has contributed
to technological and retail innovation that has benefited both industry
stakeholders and business and leisure air travelers and further
enhanced airline competition. Meanwhile, airlines and ticket agents had
commercial incentives to display airline information to consumers as
widely as possible. Generally, market forces should ensure that
airlines will continue to display their fares in the outlets where
consumers want to find them and that those same market forces would
then result in airlines accruing the commercial benefits of displaying
their services in as many reputable outlets as possible. However, some
stakeholders have argued that the marketplace is no longer balanced and
consumers are being harmed so the Department should not rely on market
forces to resolve these distribution and display issues.
    On April 15, 2016, the White House issued Executive Order 13725:
Steps to Increase Competition and Better Inform Consumers and Workers
to Support Continued Growth of the American Economy (the ``Executive
Order''). The Executive Order expresses the importance of a fair,
efficient, and competitive marketplace and notes that consumers need
both competitive markets and information to make informed choices. The
Department shares the goal of ensuring consumers are provided with
information they need to make informed choices. In particular, as
directed in the Executive Order, the DOT wants to identify any specific
practices in connection with air transportation, such as blocking
access to critical resources, that may impede informed consumer choice
or unduly stifle new market entrants and determine whether the
Department can potentially address those practices in appropriate
instances. The issues raised in connection with airlines restricting
ticket agents' ability to distribute or display flight information may
potentially create the type of undue burdens on competition that the
Executive Order has directed agencies to address. However, the
Department needs to learn more about the issue to understand whether
Department action is appropriate.

Departmental Authority Under 49 U.S.C. 41712 and 40101

    Under 49 U.S.C. 41712, the Department has authority to prevent
unfair or deceptive practices and unfair methods of competition.
Certain OTAs and metasearch entities have stated that airline
restrictions on the distribution and display of flight information
amount to an unfair, deceptive, or anticompetitive practice that harms
consumers and an unfair method of competition, therefore the Department
has authority to act under 49 U.S.C. 41712. Meanwhile, airlines have
stated that the manner in which they distribute their fare, schedule,
and availability information is a private contractual matter between
airlines and third parties. Airlines further contend that they have the
right to determine who they do business with and where and when their
content is displayed. They state that the Department has no role in
this issue because airlines are not engaging in any unfair or deceptive
practices or unfair methods of competition.
    The Department also is mandated to encourage and enhance consumer
welfare through the benefits of a deregulated, competitive air
transportation industry under the Airline Deregulation Act of 1978. The
Department places maximum reliance on competitive market forces and on

actual and potential competition while preventing unfair, deceptive,
predatory, or anti-competitive practices in air transportation pursuant
to 49 U.S.C. 40101. As a general rule, the Department does not
intervene in private contractual agreements between airlines and third
parties unless there is a market failure. However, to the extent
commercial arrangements constitute or further an unfair or deceptive
practice or unfair method of competition, resulting in harm to
consumers, it would be within the Department's authority to prohibit
parties from implementing such agreements or place restrictions on such
agreements. As a part of any review of potentially unfair or deceptive
practices or anti-competitive behavior by an airline or ticket agent,
the Department considers legal precedent to make sure that any action
taken is within the boundaries of Departmental authority.
    Accordingly, the Department is requesting information on whether
any entities are blocking access to critical resources needed for
competitive entry into the air transportation industry, whether
Department action in this area would promote or hinder a more
competitive air transportation marketplace, or whether Department
action would help ensure that consumers have access to the information
needed to make informed air transportation choices.

Distribution of Airline Flight Information and Airline Restrictions

    The distribution of airline flight information is a complicated
process that involves a number of industry stakeholders but for
consumers it is currently relatively simple to obtain flight
information from airline Web sites and to find and compare flight
information on online travel entity Web sites Consumers routinely book
air transportation through direct and indirect (non-airline) channels,
including through Web sites that operate flight search tools that
either lead consumers directly to airline Web sites or to an OTA with
the authority to book tickets on behalf of an airline.
    Airlines make flight information available through their own
channels, such as airline Web sites, call centers, and airport agents,
as well as outlets that range from traditional ``brick and mortar''
travel agents and corporate travel agencies to OTAs. Although airlines
with sufficient market presence and high load factors may have
incentives to limit the outlets through which their fares are
displayed, airlines are generally motivated to ensure their flight
information is widely available to increase consumer exposure and
generate sales. Historically, the most efficient and cost effective way
for airlines to distribute flight information was to provide it to
entities that consolidated the information of multiple airlines and
made it available to interested parties. Accordingly airlines have in
the past provided information on their flights with few or no contract
restrictions on the redistribution of flight information.
    Industry participants, such as travel agents and metasearch
entities that want the flight information of multiple carriers, have in
the past been able to obtain flight information by subscribing to
distributors of schedule information such as the Official Airline Guide
(OAG) and Innovata, distributors of fare and fare related data such as
the Airline Tariff Publishing Company (ATPCO) and Societe
Internationale de Telecommunications Aeronautiques (SITA), and global
distribution systems (``GDS''), which aggregate and distribute combined
flight information that generally includes schedules, fares, and
availability to subscribers. It is our understanding that in most
cases, OTAs that market flight information directly to the public
through Web site displays obtain that information from GDSs as their
primary non-airline source. OTAs sometimes distribute flight
information obtained from GDSs and other entities onward to metasearch
entities that operate flight search tools. These metasearch entities
often combine information obtained from OTAs with information obtained
directly from GDSs and other distributors and/or airlines. Regardless
of the source, the information is generally combined and displayed on
online travel sites marketed to consumers in flight search tools
displaying flight information for multiple airlines.
    Just as airlines have financial incentives to widely distribute and
display information on their flights, OTAs and metasearch engines
operating flight search tools have financial incentives to distribute
and display airline information. It is common for metasearch entities
that operate flight search tools to include in search results links to
OTAs that are able to sell air transportation on behalf of an airline.
Stakeholders have informed the Department that there are a number of
fee structures that exist between metasearch entities operating flight
search tools and the entities that provide them flight information,
whether airlines or OTAs. In connection with the relationship between
an OTA and a metasearch engine, although fee structures may vary,
generally speaking, when consumers follow a link from a metasearch
entity flight search tool to an OTA Web site that allows consumers to
book flights, the OTA pays the metasearch site a referral fee.
Additionally, OTAs generally receive payments from GDSs for bookings
made directly on OTA Web sites. GDSs in turn are paid a fee by airlines
for such bookings. Accordingly, although airlines often benefit from
having their flights marketed through a variety of outlets, airlines
prefer to have consumers book directly through an airline channel, for
which the airline generally bears the cost of operating its own channel
but avoids paying booking fees to others such as GDSs, OTAs, or
metasearch entities.
    Certain airlines have placed restrictions on certain third party
industry stakeholders such as GDSs and data aggregators, prohibiting
them from distributing information to any entities that the airline
does not approve. Additionally, certain airlines are prohibiting OTAs
from distributing flight information on to metasearch entities,
although it is not clear how many airlines have imposed these
prohibitions. Some airlines are also prohibiting particular OTAs or
metasearch entities from displaying flight information for an airline's
codeshare partners, and at times, preventing OTAs and metasearch
entities from displaying an airline's flight information altogether. In
other instances, some airlines are prohibiting metasearch entities
operating flight search tools from displaying flight information for
that airline with any links to OTA Web sites. Instead, the only links
must be to airline Web sites. As discussed below, representatives of
ticket agents allege these airline restrictions harm consumers whereas
airlines argue that they have legitimate business reasons for imposing
these restrictions.

Availability of Flight Information and Concerns Regarding Proprietary
Nature of Flight Information

    In connection with airline restrictions on ticket agent
distribution or display of flight information, some ticket agents have
stated to the Department that they believe flight information is public
information and that airlines should not be allowed to place
restrictions on it. Conversely, airlines believe flight information is
both proprietary and protected under intellectual property laws and
that airlines have the right to maintain control over its distribution
and display.
    As a result of the availability of airline flight information
through so many

outlets (e.g. GDSs, OAG, ATPCO, Innovata, etc.), some industry
stakeholders believe that airline schedule, fare, and availability
information is not airline property and is instead similar to bus or
train schedules that are widely available to the public. Some OTAs and
metasearch entities that operate flight search tools have stated that
airlines have historically provided airline flight information to the
general public and that it is purely factual data; therefore, according
to these entities, airline flight information has historically not
been, and still should not be, considered the intellectual property of
airlines.
    On the other hand, airlines state that despite the fact that
airline flight information has historically been disseminated and
available to the general public, airlines have invested significant
money in developing methods to set schedules and fares, to effectively
market air transportation, and ultimately to fill as many seats as
possible on the flights an airline operates. Further, unlike bus or
train fares and schedules that change infrequently, airline fares,
schedules, and availability can change many times a day in response to
a competitive marketplace. According to many airlines, as a result of
the investment that airlines have made in developing flight prices,
schedules, and availability, the flight information that they produce
and distribute to the air transportation industry is proprietary
information.
    Additionally, airlines have indicated that they have an interest in
controlling where and how flight information is displayed in order to
control airline distribution costs and ensure adequate customer
service. Unlike service providers and makers of consumer products that
do not sell directly to the public and only sell through an
intermediary, airlines sell their services directly to consumers as
well as through agents. Despite this distribution model of direct and
indirect channels, airlines generally retain control of fares,
particularly in domestic air transportation, and do not allow agents to
discount or increase fares or to play any role in establishing
schedules or seat availability. As such, some airlines believe that
because they control fares and the related services, they are entitled
to retain ultimate control over how and where this information is
distributed and/or displayed.

Consumer Options for Researching and Purchasing Air Transportation

    Some ticket agents have indicated to the Department that a
potential consumer harm that may stem from allowing airlines to
restrict the display and distribution of flight information is a
reduction in consumers' ability to view a full range of flight options
in one location. They also state that ticket agents that operate flight
search tools typically display information in a manner that is helpful
to travelers seeking to purchase air transportation. Flight search
tools consolidate flight options for consumers on one Web site so that
consumers do not need to visit multiple Web sites to identify the
options for air travel on a number of airlines for a given itinerary.
Such flight search tools may also combine the flights of multiple
airlines or various one-way fares for consumers in an attempt to
identify the most cost-effective and efficient itinerary. According to
ticket agents, combining carriers, one way tickets, or both are options
that average consumers would be unlikely to find on their own when
searching multiple airline Web sites. These flight search tools often
default to ranking flight options in order from the lowest to highest
cost flight option but offer other ranking options as well, such as by
particular airline, arrival time, or travel time. Consumers visiting
these Web sites can determine which flight options best suit their
needs and preferences, for example, by taking a flight at a less
popular time, enduring a long layover in order to save money on air
fare, or paying more for the convenience of a non-stop flight.
    Further, according to ticket agents, some flight options offered
are only offered by ticket agents and not airlines. However, according
to ticket agents, this is an area in which airlines are increasingly
imposing restrictions on OTAs and metasearch entities operating flight
search tools. These entities state that certain airlines are
prohibiting ticket agents from offering flight options combining one
way fares for different flight segments or from combining segments and
fares from multiple carriers. For example, if a consumer wished to fly
from Buffalo, New York to Hartford, Connecticut, and then to
Washington, DC, and then return to Buffalo, it is often significantly
less expensive to buy multiple one way tickets for this itinerary on
different carriers as opposed to purchasing this itinerary as one group
of flights from one carrier. Some airlines have limited the ability of
ticket agents to book this itinerary as a series of one way flights.
Flight search tools that combine one way fares may save consumers time
and provide options the consumer would otherwise not be aware of.
Searching for one way tickets on multiple carrier Web sites to find a
multi-carrier itinerary that fits a consumer's needs might not yield as
consumer-beneficial results.
    In addition, discounted tickets that OTAs offer as part of tour
packages are not presented on airline Web sites. According to ticket
agents, without the ability to efficiently view flight information
across multiple airlines on a ticket agent Web site, transactions are
less efficient. Consumers may need to visit numerous Web sites more
than once in the days before purchasing air transportation to find a
current fare for the most cost effective itinerary to match their
travel plans. Ticket agents also note that some Web sites offer
consumers the ability to review trends in pricing for various flights
so that consumers can theoretically identify the optimal date to
purchase a ticket before traveling, on-time performance information for
flights, customer reviews of specific itineraries, optimal seat ratings
\1\ for various aircraft, as well as hotel options, rental cars, and
other products like entertainment. Additionally, according to ticket
agents, research suggests that the more time-consuming it is for
consumers to research and select airfare, the more burdensome, and
potentially costly, air travel becomes for consumers.
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    \1\ Optimal seat ratings indicate which seats on an aircraft are
the best seats to sit in during travel for a specific aircraft type
and configuration.
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    On the other hand, many airlines state that airline limitations
placed on OTAs and metasearch sites operating flight search tools do
not harm consumers. Airlines note that they also provide on-time
performance information and tour package options. Airlines observe that
ticket agents are not alleging that airlines are attempting to place
limitations on OTAs or metasearch entity product offerings unrelated to
air transportation, nor have they alleged that airlines are trying to
restrict displays of customer reviews of itineraries or airline seat
ratings. Further, despite placing limitations on some OTAs and
metasearch entities operating flight search tools, most airlines allow
what they consider to be ``desirable'' OTAs and metasearch entities to
distribute and display the airline's flight information. Meanwhile,
some airlines note that one of the largest airlines in the U.S. does
not distribute its flight information through GDSs or OTAs. Most
consumers, particularly the most price sensitive consumers, generally
search multiple Web sites, including those operated by airlines as well
as ticket agent flight search tools, before purchasing air
transportation. According to the airlines, their actions

have not had a significant impact on the search process that consumers
use to identify and purchase or reserve air transportation.
    Airlines also observe that there has been a significant
consolidation in the ownership of OTAs. Most leisure consumer bookings
come through a small number of OTAs. Airlines assert that although
consumers may believe they are comparing multiple outlets, several of
those outlets are owned by the same parent company. According to
airlines, the consolidation of OTAs is significant to flight option
distribution and consumers may be harmed by limited OTA competition as
those entities consolidate and no longer innovate to compete with each
other.
    Moreover, many airlines state that they should maintain ultimate
control over how their airline product is offered and displayed to
consumers because the flying experience that airlines offer to
consumers is a unique product that individual airlines have invested
significant resources to develop. For example, airlines state that some
ticket agent Web sites do not display airline information in a way that
optimizes the product that airlines are offering to consumers.
Specifically, some ticket agent Web sites have included outdated
airline logos, presented information in what airlines believe to be a
disorganized and suboptimal way, and failed to offer customers the
tailored experience that airlines offer. Airlines have expressed
concern about improper display of airline information or poor customer
service experiences that they believe may negatively impact consumer
perception of the airlines' brand. Airlines have stated that some
examples of poor experiences include excessively long layovers that
customers are unaware of when booking through ticket agents, the
failure of ticket agents to process refund requests, an inability of
ticket agents to accurately relay flight status and other important
information to consumers in a timely fashion, and other negative
interactions that consumers may attribute to airlines. Some airlines
also allege they are concerned about entities that engage in fraudulent
activity by selling fraudulent tickets for travel on well-known
airlines. In some of these instances, consumers contact the airlines
directly to request a refund for an invalid ticket. Airlines are
concerned that consumers defrauded by such entities may believe that
the airlines are to blame. Certain airlines have demanded that entities
that they consider undesirable cease displaying the airline's flights.
They have also placed contractual limitations on the ability of GDSs
and OTAs to distribute flight information to unapproved entities.
    Further, airlines state that they allow access to their products
through numerous OTAs and metasearch entities in addition to their own
sites and that consumers are able to shop for air transportation on or
through many of those Web sites. Airlines believe that the purchase of
air transportation via the internet is an efficient process regardless
of whether consumers access flight information through OTAs, metasearch
entities that operate flight search tools, or airlines' Web sites.
Accordingly, airlines assert that any Department action limiting
airlines' ability to control how and where airline flight information
is displayed would harm both consumers and the airline's brand. Several
airlines also point out that it is in their financial interest to allow
reputable OTAs and metasearch entities to display and distribute
airline flight information despite a desire to have as many passengers
book directly with the airline as possible. Airlines need to make their
services available through the outlets that consumers choose to use.
Bookings via OTAs in many instances account for a large percentage of
airline sales and referrals from metasearch entities that operate
flight search tools are also important. Meanwhile, GDSs have
historically included provisions in contracts with airlines that
require airlines to offer all of the same fares that the airline offers
to ticket agents that subscribe to the GDS. Therefore, in many
instances, airlines are not able to offer discount fares only available
from the airline to drive consumers from purchasing through ticket
agents to purchasing from the airline based on pricing. Accordingly,
some airlines assert that it is not in their interest or even
commercially viable to remove flight information from OTA or metasearch
entity Web sites entirely. Some airlines have stated that, due to the
quantity of bookings that originate on OTA or metasearch entity Web
sites, it is unlikely that airlines would ever prevent all OTAs and
metasearch sites that operate flight search tools from displaying and/
or distributing airline flight information.

Competition in the Airline Industry and Price Competition

    Some ticket agents assert that Web sites such as theirs can
potentially better position new entrant airlines to compete with larger
and more established airlines, especially considering recent airline
consolidation. They state that new entrant airlines often offer
consumers low ticket prices and increase the number of flight options
for a given itinerary. This increase in air travel options tends to
drive down airfares, which in turn allows more consumers to take
advantage of air transportation. Some ticket agents also believe that
new entrant airlines benefit from the exposure that they gain by
advertising airfares on ticket agent Web sites alongside the fares
offered by larger more established carriers. Some ticket agents allege
that by allowing them to display and distribute flight information for
all airlines that offer service for a given itinerary, ticket agent Web
sites will promote price competition in some of the more concentrated
markets where the dominance of legacy airlines and other larger
airlines would otherwise lead to higher airfares for consumers.
    Airlines state that airline restrictions on the distribution and
display of flight information is unrelated to airline market power.
Accordingly, airlines assert that consolidation within the airline
industry should not be taken into account when considering the issue of
airline restrictions on ticket agent distribution or the display of
flight information.
    Ticket agents also argue that by displaying flight combinations
such as one way flights or flights on multiple carriers that are not
offered by airlines, OTAs and metasearch entities operating flight
search tools are creating price competition and improving consumer
access to information.
    Airlines counter that not all carriers use non-airline distribution
channels such as OTAs or metasearch entities operating flight search
tools. According to some airlines, the fact that not every flight
option is available through every non-airline flight information outlet
does not support the idea that price competition is harmed. According
to the airlines, flight information for most airlines is available
through a variety of outlets, but more importantly, flight information
for every airline is readily available on the airline's own Web site.
Moreover, airlines have to publish information on their flights in
order to sell tickets. Therefore, they do not believe price competition
is harmed simply by some airlines limiting where that airline's flight
information is displayed when the information is available elsewhere,
such as an airline Web site.

Request for Information

    The Department has considered the information that has been
provided thus far and now requests additional information from all
stakeholders--airlines, ticket agents, consumers, and other affected
parties. The Department

is not proposing to take any specific action at this time. Rather, the
Department is requesting information that will assist the Department in
determining whether airline restrictions on the distribution and
display of flight information are causing consumer harm, are unfair or
deceptive in some way, or are anticompetitive. If airline restrictions
are causing consumer harm or are unfair, deceptive, or anticompetitive,
the comments would assist the Department in determining what action is
appropriate, if any. Also, consistent with 49 U.S.C. 40101, the
Department places maximum reliance on competitive market forces and on
actual and potential competition while preventing unfair, deceptive,
predatory, or anticompetitive practices in air transportation. We are
also requesting information on the extent to which airline practices to
restrict the distribution and display of information on its flights
benefits consumers. Further, the Department is specifically requesting
information on whether any entities are blocking access to critical
resources needed for competitive entry into the air transportation
industry and whether Department action in this area would promote a
more competitive air transportation marketplace. In addition, the
Department is seeking information on whether action in this area would
improve consumer access to the information needed to make informed air
transportation choices. Information that provides historical or
statistical data or peer-reviewed studies will be particularly helpful
for determining whether or not Departmental action is appropriate in
this area.
    As an initial matter, the Department requests information on the
proprietary nature of flight information and whether the wide-spread
availability of that information is relevant to airline restrictions on
the distribution or display of flight information. Specifically, when
flight information is released to consumers by airlines and made
generally available to the public (e.g., published on an airline's Web
site), do stakeholders consider this flight information to be factual
non-proprietary information? Do stakeholders consider the airline
schedule, fare or availability information, singularly or in
combination, the proprietary information of the airline that produces
the information? Do stakeholders consider the schedule, fare, and
availability information proprietary only when this information is
combined in one product but not when distributed separately?

Consumer Access to Information Needed To Make Informed Air
Transportation Choices

    In connection with consumer options for researching and purchasing
air transportation, what is the value that OTA or metasearch entity
flight search tools provide? To what extent do consumers, including
leisure travelers, small businesses and corporate customers, benefit
from saved search costs, greater confidence in search results, access
to lower fares, or more travel options than they would have obtained
from separate searches of individual airline Web sites? In this request
for information, have we accurately described the types of actions
airlines have taken that impact OTA and metasearch entity Web sites? If
not, what are those actions and how do they impact OTA and metasearch
entity Web sites? What effect do those actions have on the utility of
OTA and metasearch entity Web sites for consumers? Do ticket agents
that provide flight search tools offer consumers any flight information
that consumers cannot obtain by visiting multiple airline Web sites?
What effect does an inability to display schedule, fare or seat
availability information of a large, well-known airline, or group of
airlines, have on the utility of air travel comparison sites for
consumers? Would access to one or two of those categories of airline
information without, e.g., seat availability information, be of any
practical use on its own?
    It has been pointed out that not all airlines currently distribute
information on their flights through OTAs or metasearch entities
operating flight search tools and that those tools do not necessarily
have the same level of information that is available on airline Web
sites. Do airline restrictions currently placed on the distribution
and/or display of airline flight information limit the ability of
consumers to identify the best flight options available to meet
consumer needs? If yes, how? Are the existing limitations of OTA or
metasearch entity Web sites relevant to the ability of consumers who
use those Web sites to identify the best flight options available to
meet consumer needs?

Airlines Stated Reasons for Restricting Flight Information

    As explained above, airlines have stated that in some cases they
are restricting the sharing and use of their flight information by some
Web sites or entities that airlines believe are disreputable or simply
do not market the airline's flights in a manner that the airline would
like. Some airlines have indicated that OTAs or metasearch entities
have provided inaccurate or incomplete information about airline
services and products, provided poor customer service, or engaged in
marketing practices the airline does not approve of, and have in some
cases engaged in fraud. Airlines say such conduct tarnishes the airline
brand, and for these reasons airlines are trying to prevent or restrict
these entities from marketing and selling their airline's products and
services. Thus, airlines claim that their actions to restrict use of
their flight information benefit both airlines and consumers. Some
airlines also acknowledge that they are attempting to direct more
consumers to their own Web sites for financial reasons as well as
marketing reasons. Are there any other reasons why airlines are
restricting the sharing and use of their flight information? What
information is available to determine the scope and magnitude of the
problems described by airlines? How many entities engage in the
practices as described by airlines, and what portion of the OTA and
metasearch market do these entities represent? How many consumers use
these Web sites? What is the average number of consumer complaints for
each of these issues regarding such entities that airlines receive each
year? How would DOT appropriately measure and evaluate the effects of
the problems as described by airlines? Is action by DOT necessary to
allow airlines to protect their legitimate interests and also ensure
that consumers are able to make informed flight choices?

Effects of Airlines Restricting Use of Flight Information

    We note that flight information is available through airline Web
sites. Would a reduction in the availability of airline flight
information on non-airline Web sites due to airline restrictions on the
distribution and/or display of such information have a significant
negative impact on consumers? If so, what are those impacts, and do
they disproportionately affect some subsets of consumers? According to
the information provided to the Department, no airline has indicated an
intent to withdraw completely from ticket agent Web sites. However, if
an airline that currently distributes flight information through ticket
agent Web sites withdrew completely from those Web sites, would that
reduce or eliminate the ability of consumers to identify the most
suitable flight options? If not, how many airlines would have to
withdraw from ticket agent Web sites to

eliminate the ability of consumers to identify the most suitable flight
options?
    Is there information to suggest that many airlines will eventually
withhold flight information entirely from all or most Web sites that
offer flight search tools? How many consumers would fail to investigate
more than one airline Web site, with the result that they may not
locate the optimal itinerary or fare?
    If it is essential for consumers to be able to view as many airline
flight options as possible on OTA and metasearch entity Web sites to
identify the best flight options, what information is essential? Is
schedule information sufficient or are both schedule and fare
information necessary? Do consumers need availability information to
identify the best flight options?
    We note that airlines create fare rules and generally do not allow
certain combinations of flight segments. Are consumers less likely to
combine one-way fares when searching for an itinerary on multiple
airline Web sites rather than a ticket agent Web site due to the amount
of time it may take to identify these flights and pair them together by
making multiple purchases?
    We note that some airlines are placing restrictions on OTAs and
metasearch entity Web sites preventing them from displaying codeshare
flights, which at times may be the cheapest or most efficient flight
options for consumers. Are consumers less likely to discover these
codeshare flight options when airlines restrict the display of these
flights on OTA and metasearch Web sites? Can consumers gain access to
the same information by visiting airline Web sites directly?
    Is Department action in connection with airline distribution
practices necessary to ensure consumers have the information they need
to make informed choices?

Competitive Air Transportation Marketplace

    In connection with competition between airlines, we are requesting
information on the impact of airline restrictions on the distribution
or display of flight information on competition. What value, if any, do
OTA and metasearch entity Web sites that operate flight search tools
provide in facilitating or enabling competition among airlines? Does
having airline information available through multiple outlets,
including ticket agent outlets, impact price competition? Would the
absence of several airlines that currently participate in ticket agent
outlets impact price competition? Does the ability or inability of
metasearch entities that operate flight search tools to provide links
to OTAs impact price competition?
    If restrictions placed on the distribution and/or display of
airline flight information limits the flight options available on Web
sites operating flight search tools that market multiple airlines, has
that limitation in options lead to higher prices for consumers? If so,
how? How would restrictions in the future potentially lead to higher
prices?
    It is our understanding that most airlines do not permit fare
``discounting'' by OTAs. Are OTAs or metasearch entities that operate
flight search tools able to identify fares that are lower than fares
that can be found on airline Web sites? Do OTAs receive discounts from
GDSs which allow them to then price flights lower than airlines?
    Some ticket agents have stated that flight search tools are able to
identify lower prices on OTA Web sites than are available on airline
Web sites and that the lower fare or both fares are displayed absent
any airline restriction. If lower prices are identified by OTAs, do
these prices serve as a competitive check on airline prices when
displayed on flight search tools adjacent to the prices offered by
airlines?
    In the past, OTAs negotiated special deals, rates, and promotions
from airlines that resulted in consumers obtaining discounted fares.
More recently, it is our understanding that contractual arrangements
between airlines, GDSs, and OTAs generally include provisions that
prevent OTAs or airlines from offering discounted fares that are not
available through all other outlets. Accordingly, discounted fares that
might otherwise be available to consumers are no longer offered. We
request information on how these types of private contractual
arrangements impact consumers and whether they are unfair or
anticompetitive.

Resources Needed for Competitive Entry

    Some stakeholders have argued that having flight information for
multiple airlines available through the flight search tools of OTAs and
metasearch entities operates a platform for smaller and new entrant
airlines to compete with larger, better known airlines. They suggest
that absent ticket agent Web sites that offer the flight information of
multiple airlines, consumers will fly only well-known carriers that
they recognize from advertisements and the airline's continuous length
of operation in a given market. If OTA and metasearch entity Web sites
do not provide the flight information of larger, better known airlines,
will consumers stop using those Web sites? If consumers do not use
those Web sites, and instead search only airline Web sites, will that
impact the ability of smaller or new entrant airlines to compete with
larger, better known airlines because consumers will not search Web
sites that do not include largest airlines? Conversely, would the
ability of new entrant airlines to compete with larger airlines be
enhanced by the lack of competition if large, well-known airlines limit
or do not permit information on their flights to be displayed on OTA or
metasearch entity Web sites and therefore consumers find only smaller
airline flight options on those sites? Is Department action in this
area necessary to ensure airline restrictions on the distribution or
display of flight information does not harm competition? If so, what
action is appropriate?
    We are requesting information on all of the issues and concerns
identified above and any information relevant to this issue.

    Issued this 18th day of October 2016, in Washington, DC.
Molly J. Moran,
Acting General Counsel.
[FR Doc. 2016-26191 Filed 10-28-16; 8:45 am]
 BILLING CODE 4910-9X-P


[Federal Register: June 12, 2008 (Volume 73, Number 114)]
[Rules and Regulations]
[Page 33321-33324]
[DOCID:fr12jn08-19]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 67

Final Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Base (1% annual chance) Flood Elevations (BFEs) and modified
BFEs are made final for the communities listed below. The BFEs and
modified BFEs are the basis for the floodplain management measures that
each community is required either to adopt or to show evidence of being
already in effect in order to qualify or remain qualified for
participation in the National Flood Insurance Program (NFIP).

DATES: The date of issuance of the Flood Insurance Rate Map (FIRM)
showing BFEs and modified BFEs for each community. This date may be
obtained by contacting the office where the maps are available for
inspection as indicated on the table below.

ADDRESSES: The final BFEs for each community are available for
inspection at the office of the Chief Executive Officer of each
community. The respective addresses are listed in the table below.

FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering
Management Branch, Mitigation Directorate, Federal Emergency Management
Agency, 500 C Street, SW., Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) makes the final determinations listed below for the modified
BFEs for each community listed. These modified elevations have been
published in newspapers of local circulation and ninety (90) days have
elapsed since that publication. The Assistant Administrator of the
Mitigation Directorate has resolved any appeals resulting from this
notification.
    This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67. FEMA has developed criteria for floodplain management in floodprone
areas in accordance with 44 CFR part 60.

    Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and FIRM available at the
address cited below for each community. The BFEs and modified BFEs are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
    National Environmental Policy Act. This final rule is categorically
excluded from the requirements of 44 CFR part 10, Environmental
Consideration. An environmental impact assessment has not been
prepared.
    Regulatory Flexibility Act. As flood elevation determinations are
not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, a regulatory flexibility analysis is not required.
    Regulatory Classification. This final rule is not a significant
regulatory action under the criteria of section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
    Executive Order 13132, Federalism. This final rule involves no
policies that have federalism implications under Executive Order 13132.
    Executive Order 12988, Civil Justice Reform. This final rule meets
the applicable standards of Executive Order 12988.

List of Subjects in 44 CFR Part 67

    Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.

0
Accordingly, 44 CFR part 67 is amended as follows:

PART 67--[AMENDED]

0
1. The authority citation for part 67 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

Sec.  67.11  [Amended]

0
2. The tables published under the authority of Sec.  67.11 are amended
as follows:

----------------------------------------------------------------------------------------------------------------
                                                                      * Elevation in
                                                                      feet (NGVD) +
                                                                    Elevation in feet
           Flooding source(s)              Location of referenced    (NAVD)     Communities  affected
                                                 elevation            Depth in feet
                                                                       above ground
                                                                         Modified
----------------------------------------------------------------------------------------------------------------
                                 Elmore County, Alabama, and Incorporated Areas
                                             Docket No.: FEMA-D-7826
----------------------------------------------------------------------------------------------------------------
Alabama River..........................  At U.S. Highway 82.......               +161  City of Prattville.
                                         Where Interstate 65                     +163  .........................
                                          crosses Still Creek.
Coosa River............................  810 feet upstream of                    +180  City of Wetumpka.
                                          confluence with Taylor
                                          Creek.
                                         800 feet upstream of                    +180  .........................
                                          confluence with Taylor
                                          Creek.
Coosada Creek..........................  4,270 feet downstream of                +202  City of Millbrook.
                                          Springdale Road.
                                         On Springdale Road.......               +216  .........................
Coosada Creek..........................  685 feet upstream of                    +201  Town of Coosada.
                                          Airport Road.
                                         695 feet upstream of                    +201  .........................
                                          Airport Road.
Cottonford Creek.......................  4,590 feet downstream of                +261  City of Millbrook.
                                          Deatsville Highway.
                                         2,760 feet downstream of                +269  .........................
                                          Deatsville Highway.
Cottonford Creek.......................  290 feet upstream of                    +169  Town of Coosada.
                                          confluence with Mortar
                                          Creek.
                                         300 feet upstream of                    +169  .........................
                                          confluence with Mortar
                                          Creek.
Crescant Lake..........................  2,600 feet upstream of                  +164  City of Millbrook.
                                          Interstate 65 on Still
                                          Creek.
                                         2,610 feet upstream of                  +164  .........................
                                          Interstate 65 on Still
                                          Creek.
Grandview Branch.......................  2,780 feet downstream of                +271  City of Millbrook.
                                          State Highway 14.
                                         260 feet downstream of                  +304  .........................
                                          State Highway 14.
Gravel Pit Creek.......................  Under U.S. 231...........               +170  Unincorporated Areas of
                                                                                Elmore County.
                                         5,890 feet upstream of                  +319  .........................
                                          U.S. 231.
Jackson Branch.........................  390 feet west of Sandtown               +165  City of Millbrook.
                                          Road and Phillips Drive.
                                         410 feet downstream of                  +165  .........................
                                          Louisville and Nashville
                                          RR on Alabama River.
Jackson Branch.........................  1,270 feet downstream of                +165  Town of Coosada.
                                          confluence with Zion
                                          Branch.
                                         1,280 feet downstream of                +165  .........................
                                          confluence with Zion
                                          Branch.
Lewis Creek............................  740 feet downstream of                  +234  City of Tallassee.
                                          Friendship Road.
                                         1,370 feet upstream of                  +316  .........................
                                          Friendship Road.
Mill Creek.............................  110 feet downstream of                  +213  City of Millbrook.
                                          Old Mill Run.
                                         120 feet downstream of                  +213  .........................
                                          Old Mill Run.
Mill Creek Tributary...................  350 feet upstream of                    +206  City of Millbrook.
                                          confluence with Mill
                                          Creek.
                                         1,480 feet upstream of                  +208  .........................
                                          confluence with Mill
                                          Creek.
Mortar Creek...........................  710 feet downstream of                  +168  Town of Coosada.
                                          confluence with
                                          Cottonford Creek.
                                         At confluence with                      +169  .........................
                                          Cottonford Creek.
Still Creek............................  210 feet downstream of                  +174  City of Millbrook.
                                          Edgewood Road.
                                         470 feet upstream of                    +185  .........................
                                          Edgewood Road.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.

                                                    ADDRESSES

City of Millbrook

Maps are available for inspection at 3390 Main Street, Millbrook, AL 36054.
City of Prattville

Maps are available for inspection at 101 West Main Street, Prattville, AL 36067.

City of Tallassee

Maps are available for inspection at 3 Freeman Avenue, Tallassee, AL 36078.

City of Wetumpka

Maps are available for inspection at 212 S. Main Street, Wetumpka, AL 36067.

Town of Coosada

Maps are available for inspection at 5800 Coosada Road, Coosada, AL 36020.

Unincorporated Areas of Elmore County
Maps are available for inspection at 100 Commerce Street, Room 207, Wetumpka, AL 36092.
----------------------------------------------------------------------------------------------------------------
                               Waukesha County, Wisconsin, and Incorporated Areas
                                             Docket No.: FEMA-B-7715
----------------------------------------------------------------------------------------------------------------
Ashippun River.........................  At Pennsylvania Avenue...               *854  Waukesha County
                                                                                (Unincorporated Areas).
                                         Ashippun Lake............               *871  .........................
                                         At Norwegian Road........               *915  .........................
Bark River.............................  Drumlin Trail............               *848  Waukesha County
                                                                                (Unincorporated Areas),
                                                                                City of Delafield,
                                                                                Village of Dousman,
                                                                                Village of Hartland,
                                                                                Village of Merton.
                                         At North Road............               *973  .........................
Butler Ditch...........................  Hampton Road.............               *750  City of Brookfield.
                                         Lilly Road...............               *757  .........................
Deer Creek.............................  Pinehurst Drive..........               *837  City of New Berlin, City
                                                                                of Brookfield.
                                         Harcove Drive............               *870  .........................
Dousman Ditch..........................  Gebhardt Road............               *825  City of Brookfield.
                                         Lake Road................               *831  .........................
Fox River..............................  River Road...............               *827  Village of Menomonee
                                                                                Falls, City of
                                                                                Brookfield.
                                         Lannon Road..............               *886  .........................
Lake Nagawicka.........................  Lake Nagawicka...........               *893  City of Delafield.
Mukwonago River........................  South Rochester Street...               *786  Waukesha County
                                                                                (Unincorporated Areas),
                                                                                Village of Mukwonago.
                                         Eagle Springs Lake.......               *822  .........................
Pewaukee Lake..........................  Pewaukee Lake............               *854  Village of Pewaukee.
Quietwood Creek........................  Woods Road...............               *781  City of Muskego.
                                         Janesville Road..........               *800  .........................
Rosenow Creek..........................  Lake Street..............               *861  Waukesha County
                                                                                (Unincorporated Areas),
                                                                                City of Oconomowoc.
                                         Brown Street.............               *873  .........................
South Branch...........................  Bugline Trail............               *941  Waukesha County
                                                                                (Unincorporated Areas).
Sussex Creek...........................  Mary Hill Road...........               *955  Village of Sussex.
South Branch Underwood Creek...........  At Interstate I-94.......               *723  City of Brookfield.
Sussex Creek...........................  Duplainville Road........               *835  Village of Sussex.
                                         Main Street..............               *924  City of Pewaukee,
                                                                                Waukesha County
                                                                                (Unincorporated Areas).
Sussex Creek Tributary 1...............  Weyer Road...............               *845  Waukesha County
                                                                                (Unincorporated Areas).
                                         Lisbon Road..............               *859  .........................
Underwood Creek........................  UPS Service Road.........               *724  City of Brookfield,
                                                                                Village of Elm Grove.
                                         Pilgrim Road.............               *819  .........................
Upper Namahbin Lake....................  Upper Namahbin Lake......               *874  Waukesha County
                                                                                (Unincorporated Areas).
Upper/Lower Phantom Lake...............  Upper/Lower Phantom Lake.               *794  Waukesha County
                                                                                (Unincorporated Areas).
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.

 Depth in feet above ground.

                                                    ADDRESSES
City of Brookfield

Maps are available for inspection at 2000 N. Calhoun Road, Brookfield, WI 53005.

City of Delafield

Maps are available for inspection at 500 Genesee Street, Delafield, WI 53018.

City of Muskego

Maps are available for inspection at W182 S8200 Racine Avenue, Muskego, WI 53150-0749.

City of New Berlin

Maps are available for inspection at 3805 South Casper Drive, New Berlin, WI 53151.

City of Oconomowoc

Maps are available for inspection at 174 E. Wisconsin Avenue, Oconomowoc, WI 53066.

City of Pewaukee

Maps are available for inspection at W240 N3065 Pewaukee Road, Pewaukee, WI 53072.

                                     Waukesha County (Unincorporated Areas)

Maps are available for inspection at 515 W. Moorland Blvd., Waukesha, WI 53188.

Village of Dousman

Maps are available for inspection at 118 S. Main Street, Dousman, WI 53118.

Village of Elm Grove

Maps are available for inspection at 13600 Juneau Blvd., Elm Grove, WI 53122.

Village of Hartland

Maps are available for inspection at 210 Cottonwood Avenue, Hartland, WI 53029.

Village of Menomonee Falls

Maps are available for inspection at W156 N8480 Pilgrim Road, Menomonee Falls, WI 53051-3140.

Village of Merton

Maps are available for inspection at 28343 Sussex Road, Merton, WI 53056.

Village of Mukwonago

Maps are available for inspection at 440 River Crest Court, Mukwonago, WI 53149.

Village of Pewaukee

Maps are available for inspection at 235 Hickory Street, Pewaukee, WI 53072.

Village of Sussex

Maps are available for inspection at N64 W23760 Main Street, Sussex, WI 53089.
----------------------------------------------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: May 28, 2008.
David I. Maurstad,
Federal Insurance Administrator of the National Flood Insurance
Program, Department of Homeland Security, Federal Emergency Management
Agency.
[FR Doc. E8-13199 Filed 6-11-08; 8:45 am]

BILLING CODE 9110-12-P