As previously discussed on this blog, in January 2025, the Fifth Circuit upheld the Department of Transportation’s authority to promulgate rules under 49 U.S.C. s. 41712, which authorizes the Secretary of Transportation to “order…air carrier[s]” to stop unfair or deceptive practices, or unfair methods of competition in air transportation. The Fifth Circuit granted a petition to rehear that case en banc, though.
Today, the Department of Transportation released for public inspection a proposed rule that partially adopts the view of airlines, and specifies that the statute only allows for regulations to declare a practice to be unfair or deceptive after notice and an opportunity for a hearing about a specific practice, and a conclusion that that practice was unfair or deceptive. The rule would also reinstates detailed requirements for such hearings that had been issued in the first Trump Administration,.
