In 2024, the Department of Transportation issued a rule requiring airlines to disclose certain ancillary fees upfront when potential customers search for itineraries. Afraid that such transparency might cut into profits, the airline industry petitioned for review in the Fifth Circuit, which granted a stay pending appeal. In January 2025, a panel of the Fifth Circuit held that DOT, as a general matter has 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. Nonetheless, the Court remanded the rule–leaving the stay in place–on the grounds that commenters had not been able to respond to a particular study DOT upon which DOT relied.
Not willing to take the win and smelling blood in the water, the airlines petitioned for rehearing en banc, which the Fifth Circuit granted yesterday.
In combination with DOT’s recent announcement that it will ignore a rule regarding airlines’ obligations to passengers who use wheelchairs, a good week for the airline industry and a bad one for their customers.
