# Petition for Writ of Certiorari — Western Airlines, Inc. v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3208%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1132 ## Text : . 84-668 () jimi FIL] No. yo IN THE Supreme Court of the United States. “~~ | SO Oe RE BE OCTOBER TERM, 1984 WESTERN AIRLINES, INC., a Delaware corporation, Petitioner, V. PEOPLE OF THE STATE OF CALIFORNIA, Respondent. PETITION FOR A WRIT OF CERTIORARI / TO THE COURT OF APPEAL OF THE ( STATE OF CALIFORNIA EDGAR PAUL BOYKO ROBERT K. SCHRANER MILLER, BOYKO AND BELL 110 Juniper Street San Diego, California 92101-1598 Telephone: (619) 235-4040 Attorneys for Petitioner. INTERIM PRINTING & MAILING COMPANY 1105 WEST MORENA BOULEVARD. SAN DIEGO. CALIFORNIA G2110 — 275 3050 —oo eke QUESTION PRESENTED Does federal law preempt state regulation of the form and con- tent of an interstate air carrier’s advertising of its rates, routes and services? TABLE OF CONTENTS PUI CRON PPRMIIEOEEEOD occ nc ccnccnsessecoeses FAS OP AU TERRE ies oo cc cccc nn cecensecenes CPPS EY 6 ih sia vcnsaeeadstxedstectenens FR MIRE 6.0 von exis awed gases sane ebaneeyenne CONSTITUTIONAL PROVISIONS, STATUTES PARED RULERS CVO VE occ cece cesensccenes STA CEN E OF THB CARE once scenic ccaceneans REASONS FOR GRANTING THE WRIT........... A. THE AIRLINE DEREGULATION ACT OF 1978 EXPRESSLY PREEMPTS STATE REGULATION “RELATING TO RATES, ROUTES OR SERVICES”’ OF AN INTERSTATE AIR CARRIER .............. B. THE PERVASIVE SCOPE OF FEDERAL REGULATION OF INTERSTATE AIR CARRIERS PREEMPTS STATE REGULA- TION OF DECEPTIVE RATE REF VE CE 0 6 50h 8 wane dened (eeeahe vanes C. STATF REGULATION OF INTERSTATE AIR CARRIERS’ ADVERTISING OF THEIR RATES, ROUTES AND SERVICES IMPOSES AN IMPERMISSIBLE BURDEN ON INTERSTATE COMMERCE ............... Page iv 12 TABLE OF CONTENTS (Coniinued) D. STATE REGULATION OF INTERSTATE AIR CARRIERS’ ADVERTISING OF THEIR RATES, ROUTES AND SERVICES CONFLICTS WITH THE PRIMARY JURISDICTION OF THE CAB AND DEPARTMENT OF TRANSPORTATION ... a. Ue cn wueeet CALL b seh CRM RS AOA ES ee ee APPENDIX A - Opinion of the Court of Appeal ... APPENDIX B - Denial of Petition for Hearing in the Supreme Court of the State Ee eee oar APPENDIX C - Constitutional Provisions, Statutes and Rules Involved ...... Page C-1 - Wwe TABLE OF AUTHORITIES Page CASES United States Supreme Court Cases: Alessi v. Raybestos-Manhattan, Inc., ee ee EE oh tie 0 hae ce ecu cendennces 5 American Airlines, Inc. v. North American Airlines, SL: PI Sa cuba cee weanceecsane 8,14 Far East Conference v. United States, ey I oc ie kencvan eens > v8 teases 14 Hicklin v. Orbeck, 437 U.S. 518 (1978)... ............ 12 Hood & Sons v. Dumond, 336 U.S. 525 (1949) ........ 12 Hunt v. Washington Apple Advertising Comm’n, | NET oink one ud KcewetnseieeKess 13 Nader v. Allegheny Airlines, 426 U.S. 290 (1976) ...... 6,15 Pan American World Airways, Inc. v. United States, ap ke cee dsb es valesee's 14,15 Pennsylvania v. Neison, 350 U.S. 497 (1956) .......... 13 People v. Western Airlines, Inc., 155 Cal.App.3d 597, ye ROS) eee ee eee 2 Raymond Motor Transportation, Inc. v. Rice, Se MEE 66 0h 06400 Under the Civil Aeronautics Board Sunset Act of 1984, Pub. L. No. 98-443, § 3(e) (Oct. 4, 1984), on January 1, 1985, the Department of Transportation will assume all consumer protection powers and duties of the CAB, including the prevention of unfair or deceptive practices by interstate air carriers. _ also creates an extensive administrative enforcement scheme and empowers the CAB to implement regulations to carry out the pur- poses of the Act. 49 U.S.C. § 1324. Additionally, 49 U.S.C. § 1381 gives the CAB the specific power to investigate deceptive practices: The Board may, upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent, if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier, foreign air carrier, or ticket agent has been or is engaged in any unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air carrier, foreign air carrier, or ticket agent is engaged in such unfair or deceptive practices or unfair methods of competition, it shall order such air carrier, foreign air carrier, or ticket agent to cease and desist from such practices or methods of competition. The CAB is also statutorily authorized to investigate complaints (49 U.S.C. § 1482), to file suit for violations of the Federal Avia- tion Act and to seek appropriate injunctive relief. 49 U.S.C. § In conformance with its powers under the Federal Aviation Act, the CAB has specifically adopted regulations relating to advertis- ing of an air carrier’s services which constitute a ‘‘deceptive prac- tice’’ or an ‘‘unfair method of competition. 99 Thus, regulations i. have been enacted prohibiting misrepresentations‘ or misleading advertising by ticket agents (C.F.R. § 399.80 (1984)) and mislead- ing advertising concerning an air carrier’s schedule performance. 14 C.F.R. § 399.81 (1984). In addition, the CAB has specifically determined what is a deceptive rate advertising practice with respect to group tours. 14 C.F.R. § 399.84 (1984). By regulation, the CAB has also mandated that air carriers provide a clear and ex- plicit statement, arranged in a simple and systematic manner, of their rates: All fares, rates, and charges shall be clearly and explicitly stated and shall be arranged in a simple and systematic manner. Complicated plans and ambiguous or indefinite terms shall not be used. So far as practicable, the fares, rates, and charges shall be subdivided into items or similar units, and an identifying number shall be assigned to each item or unit to facilitate reference thereto. 14 C.F.R. § 221.50 (1984). in conformance with its authority, the CAB has also issued exten- sive regulations as to the manner in which fares can be set and stated. 14 C.F.R. §§ 221.54, et seg. (1984). Pursuant to 49 U.S.C. § 1381 and the regulations it has pro- mulgated, the CAB has in fact actively enforced its regulations on unfair and misleading advertising. See, e.g., International Tours v. Qantas Airways, 78-10-129, C.A.B. Adv. Dig. p. 61 (Dec. 29, 1978) (tour brochures with erroneous information); Pan American Enforcement Proceeding, 79-9-95, C.A.B. Adv. Dig. p. 53 (Sept. 1979) (unfair practices in advertisements of round-trip flights, flight bookings, availability of tickets, information regarding * 14C.F.R. § 399.80 (1984) provides: The word ‘‘misrepresentation’”’ used in this list includes any statement or representation made in advertising or made orally to members of the public which is false, fraudulent, deceptive or misleading, or which has the tendency or capacity to deceive or mislead. = discount rates and failure to disclose total cost of tickets); Delta Enforcement, 78-9-140 C.A.B. Adv. Dig. p. 76 (Sept. 1979) (newspaper advertisement of nonstop service for a flight which was a connecting service); World Airways v. American, et al., compalint 79-10-7 C.A.B. Adv. Dig. p. 5 (Oct. 1979) (advertise- ment of unrestricted fares). It is apparent from the foregoing statutory and regulatory scheme that the CAB has exercised jurisdiction over deceptive advertising practices. The CAB has authority over rate aclvertising and indeed over all advertising of rates, routes and services - to the exclusion of state regulation. Not only has Congress preemp- ted state regulations relating to an air carrier’s rates, routes and services, but also, the CAB has itself expressly preempted state regulation by virtue of its own regulatory scheme and enforcement activities. People v. Civil Aeronautics Board, 581 F.2d 954, 960 (D.C. Cir. 1978) (‘‘The Civil Aeronautics Board is empowered by Congress to preempt state regulatory agencies in interstate com- merce... .’’) The State of California’s complaint constitutes a regulation ‘relating to’’ Western’s ‘‘rates, routes and services.”’ By taking issue with the rate and service descriptions utilized by Western, the State of California is trying to supplant the CAB’s jurisdic- tion over an air carrier’s alleged deceptive advertising practices. Western, like many other interstate carriers, operates in a substan- tial number of states. If each state regulated an interstate air car- rier’s promotion and advertising of its tariff schedules, rates, routes and services by imposing detailed and varied requirements, a readable flight schedule could not even be produced, much less a promotional campaign. Advertisements would be subject to con- flicting regulation in several states, with each state demanding dif- ferent rate descriptions, disclosures or terms of the promotion. The onerous nature of such multiplicitous and conflicting regula- tions demands a uniform system of regulation mandating federal preemption. -32- The comprehensiveness and pervasiveness of the enforcement scheme provided by the Federal Aviation Act and Airline Dereguiation Act of 1978 and their implementing regulations for violations of these Acts are self-evident. The detail and precision with which Congress provided the means for the enforcement of those Acts, as well as the manner in which the CAB has regulated and enforced the area, logically leads to the conclusion that Con- gress and the CAB left no room for state law actions to supple- ment the remedies Congress detailed. Varying state law interpretations of the obligation of interstate air carriers to avoid ‘‘deceptive advertising practices’? would frustrate the uniformity of decision necessary to develop a consis- tent approach to federal regulation of air commerce. It would be inconsistent with federal policy if local authorities retained the power to make decisions respecting the rights and duties of in- terstate air carriers that have been committed to the jurisdiction of a federal administrative agency which has a nationwide overview of the air carrier industry. C. STATE REGULATION OF AN INTERSTATE AIR CARRIER’S ADVERTISING OF ITS RATES, ROUTES AND SERVICES IMPOSES AN IMPERMISSIBLE BURDEN ON INTER- STATE COMMERCE. A state regulation which impedes the free flow of, and is burdensome to, interstate commerce violates the Commerce Clause established by Article I, Section 8, of the Constitution of the United States. Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945). The underlying purpose of the Commerce Clause is to establish, promote and develop a national economic structure, which allows free access to the national marketplace. Hood & Sons v. Dumond, 336 U.S. 525, 537-39 (1949). Attempted intru- sions upon the Commerce Clause have been diverse, and recent Supreme Court decisions have emphasized the importance of . maintaining the structure of a national economic unit. See e.g., Hicklin v. Orbeck, 437 U.S. 518 (1978); Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978); Hunt v. Washington Aple Advertising Comm’n, 432 U.S. 333 (1977). The People’s complaint is based upon the simple premise that Western, in advertising a bonus program to purchasers of ‘‘full- fare coach’’ tickets, is allegedly involved in a deceptive or misleading advertising program. By way of its action, the State of California is clearly attempting to regulate the manner in which Western promotes and advertises its rates, routes and services. Attempted regulation by up to fifty state regulatory agencies clear- ly imposes the impermissible burden upon interstate commerce and presents a distinct danger of conflicting determinations by the CAB or Department of Transportation on one hand and by one or more state enforcement agencies on the other. See Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956); Howard v. Uniroyal, Inc., 719 F.2d 1552, 1561-62 (11th Cir. 1983). D. STATE REGULATION OF INTERSTATE AIR CARRIERS’ ADVERTISING OF THEIR RATES, ROUTES AND SERVICES CON- FLICTS WITH THE PRIMARY JURISDIC- TION OF THE CAB AND DEPARTMENT OF TRANSPORTATION. When a judicial action has been brought in the public interest and involves the resolution of a claim which, under a regulatory scheme has been placed within the special competence of an administrative agency, that claim falls within the ‘‘primary jurisdiction’’ of the agency. Accordingly, a court should defer to the administrative agency and allow it to resolve the issue. United States v. Western Pacific R.R. Co., 352 U.S. 59, 63-64 (1956). Where the regulation of an industry has been entitled to a par- ticular administrative agency, that agency is ‘‘better equipped than courts by specialization, by insight gained through experience, and -14- by more flexible procedure’’ to resolve the issues relating to that industry. Far East Conference v. United States, 342 U.S. 570, 574-75 (1952). An extensive regulatory scheme has been established by federal statutes and rules to prevent unfair or deceptive practices by inter- state air carriers. By virtue of that regulatory scheme, the federal agency responsible for overseeing and enforcing the same has ‘‘primary jurisdiction’’ of matters encompassed within claims of alleged misleading advertising or unfair competition by an inter- state air carrier, including claims of misleading advertising. Under Section 411 (49 U.S.C. § 1381), the terms ‘‘unfair or deceptive practices’’ and ‘‘unfair methods of competition’’ are broader than common-law concepts of unfair competition. Ac- tions to prevent such activities are brought in the public interest. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 306 (1962); American Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79, 84 (1955). The action filed in this case by the California Attorney General’s Office is similarly brought in the public interest. People v. Pacific Land Research Company, 20 Cal.3d 10, 17, 569 P.2d 125, 141 Cal.Rptr. 20, 24 (1977); Payne v. United California Bank, 23 Cal.App.3d 850, 856, 100 Cal.Rptr. 672, 676 (1972). It has been recognized that the regulation of the air carrier in- dustry has been committed ‘‘to an administrative agency of special competence that deals only with the problems of the industry.”’ American Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79, 84 (1955). In view of the express congressional intent that the Department of Transportation carry on the enforcement duties and rules of the CAB,’ that expertise should continue. 5 130 Cong. Rec. S 10066 (daily ed. Aug. 8, 1984) (remarks of Senator Stevens); 130 Cong. Rec. H 5237 (daily ed. June 5, 1984) (remarks of Congressman Mineta). iit. The action in the case at hand is an attempt to regulate an area falling within the primary jurisdiction of a federal igency. The Supreme Court has twice previously held that civil actions brought in the public interest, and which attempted to regulate alleged un- fair or deceptive practices of interstate air carriers, were subject to the primary jurisdiction of the CAB. Nader v. Allegheny Airlines, 426 U.S. 290 (1976); Pan American World Airways, Inc. v. United States, 371 U.S. 296 (1962). In Pan American World Airways, civil antitrust claims were held barred by the CAB’s jurisdiction under Section 411 to investigate and determine whether an air car- rier was engaged in unfair or deceptive practices or unfair methods of competition in air transportation. Similarly, in Nader, the Supreme Court again held that actions brought in the public in- terest to regulate alleged deceptive practices of interstate air car- riers were subject to the primary jurisdiction of the CAB. Thus, the Court determined that specific issues are to be referred to the agency for initial determination in order to secure ‘‘[u}niformity and consistency in the regulation of business entrusted to a par- ticular agency.’’ 426 U.S. at 304. The Attorney General of the State of California could have brought his claim through the administrative enforcement scheme specifically provided by Congress to regulate the allegedly decep- tive or unfair practices of interstate air carriers, rather than through a state law action. It is the nationwide responsibility of a federal agency, and not the responsibility of each of the various states, to monitor such activities. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959). See also Sears Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 197 (1978) (‘‘The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application, but whether the controversy presented to the state court is identical to ... Or different from . . . that which could have been, but was not, presented to the Labor Board.’’). In any event, the CAB should have been given the opportunity to investigate the claims of the State of California and to a:sume jurisdiction under its regulatory tii. scheme. United States v. Superior Court, 19 Cal.2d 189, 195, 120 P.2d 26, 29 (1941) (‘‘[I]t lies within the power of the administrative agency to determine in the first instance, and before judicial relief may be obtained, whether a given controversy falls within the statutory grant of jurisdiction.’’) However, the CAB was never given that opportunity. The power to regulate the deceptive practices or unfair competi- tion of interstate air carriers has been granted to a federal agency, the CAB until January 1, 1985, and the Department of Transpor- tation thereafter, and falls exclusively within its jurisdiction. A federal agency has been given the primary jurisdiction to bring actions in the public interest to prevent unfair or deceptive trade practices, and has exercised that jurisdiction through regula- tions and its enforcement powers. The complaint brought by the People of the State of California conflicts with the primary jurisdiction of that federal agency. In light of the need for unifor- mity, questions raised by the state complaint should have first been referred to the federal agency for determination. . 2 CONCLUSION For the foregoing reasons, a writ of certiorari should issue to review the judgment of the Court of Appeal of the State of California, Fourth Appellate District. DATED: October 24, 1984 4 Respectfully submitted, MILLER, BOYKO AND BELL By: EDGAR PAUL BOYKO ROBERT K. SCHRANER Attorneys for Petitioner — - APPENDICES BEST AVAILABLE COPY A-1 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, ‘ Plaintiff and Appellant, v. D 000850 WESTERN AIRLINES, INC., ; 4 Civ. No. 28920 ) Defendant and Respondent.) (Super. Ct. No. 494202) ) APPEAL from a judgment of the Superior Court of San Diego County, William L. Todd, Jr., Judge. Reversed. John K. Van De Kamp, Attorney General, Herschel T. Elkins, Senior Assistant Attorney General, Albert Norman Shelden and M. Howard Wayne, Deputy Attorneys General, for Plaintiff and Appellant. Miller, Boyko and Bell,. Edgar Paul Boyko and Fletcher W. Paddison, for Defendant and Respondent. The People sued Western Airlines, Inc., for civil penalties and injunction, alleging Western violated Business and Professions Code section 17500 and Civil Code section 1770, subdivision (m), and engaged in unfair competition under Business and Professions A-2 Code section 17200 et. seq., by making false and misleading statements implying fare savings in advertising promotions. Western demurred, asserting the complaint was preempted by 49 United States Code section 1305 and violated the commerce clause of the United States Constitution (art. I, § 8). Western also asserted under 49 United States Code section 1381 the Civil Aeronautics Board (Board) had primary jurisdiction over com- plaints about deceptive advertising and the court lacked subject matter jurisdiction. After hearing, the superior court found the matters raised in the complaint were preempted by federal law. The court sustained Western’s demurrer without leave to amend. The People appeal. Under 49 United States Code section 1381, enacted as part of the Federal Aviation Act of 1958, the Board in the public interest may investigate and determine whether any air carrier ‘‘has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof’’; the Board has power to order air carriers to cease such improper conduct. Under 49 United States Code section 1506, also enacted as part of the Federai Aviation Act of 1958, nothing in chapter 20 of title 49, United States Code (the Federal Aviation Program) ‘‘shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”’ Under 49 United States Code section 1302(a)(7), as amended by the Airline Deregulation Act of 1978, the Board in exercising its powers and duties shall consider ‘‘as being in the public interest ... prevention of unfair, deceptive, predatory, or anticompetitive practices in air transportation .. .”’ Under 49 United States Code section 1305(a), added by the Airline Deregulation Act of 1978, no state or its political subdivi- sion ‘‘shall enact or enforce any law . . . relating to rates, routes, or services’’ of an authorized interstate air carrier. A-3 Asseiting this lawsuit does not involve matters preempted by federal law, the People contend the court erred in sustaining Western’s demurrer. The Federal Aviation Program expressly preempts state regulation of interstate air carriers only as to laws ‘‘relating to rates, routes, or services.’’ (49 U.S.C. § 1305(a).) Here the People do not seek to enforce a law relating to rates, routes or services; the People do not challenge Western’s rates, routes or services. The People’s complaint involves the distinct issue of the manner Western advertised its rates and services. (See Brunwasser v. Trans World Airlines, Inc. (1982) 541 F. Supp. 1338, 1346.) 49 United States Code section 1305(a) does not in- sulate Western from liability for violating California statutes pro- hibiting false advertising. Under 49 United States Code sections 1302 and 1381, Congress granted the Board authority to regulate in the public interest un- fair competition and deceptive practices by interstate air carriers. However, nothing in the Federal Aviation Program suggests by granting the Board such authority Congress intended to prevent states from also regulating deceptive advertising practices by in- terstate air carriers. (See Head v. New Mexico Board of Examiners in Optometry (1963) 374 U.S. 424, 430-432; see also Nader v. Allegheny Airlines, Inc. (1976) 426 U.S. 290, 300-303.) Further, nothing in this record suggests enforcing California’s false advertising statutes against interstate air carriers in any man- ner conflicts with the Federal Aviation Program or impedes Con- gress’ objectives in enacting such Program. (See Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 93-94.) Moreover, the Federal Aviation Program generally preserves existing common law and statutory remedies while providing additional remedies (49 U.S.C. § 1506). Given section 1506, state regulation of interstate air carriers is preempted only where the federal and state regulatory schemes conflict ir- reconcilably (Nader v. Allegheny Airlines, Inc., supra, 426 U.S. 290, 299). Nothing in this record suggests any inconsistency between California’s false advertising statutes and the Federal Aviation Program precluding as a matter of law their coexistence A-4 here; any assertion of more than incidental impact on rates resulting from California imposing liability on Western for false advertising or from Western adopting practices to avoid such liability involves factual issues beyond the scope of demurrer. On this record the People’s complaint is not preempted by federal law. Western contends state regulation of advertising by interstate air carriers unconstitutionally burdens interstate commerce. However, Western points to nothing in this record supporting such contention as a matter of law. Nothing in this record suggests California’s false advertising statutes as a matter of law discriminate against air carriers engaged in interstate commerce or impinge upon an area of interstate commerce requiring uniform regulation. (See Head v. New Mexico Board of Examiners of Optometry, supra, 374 U.S. 424, 429.) Any contention such statutes as applied to regulate Western’s advertising unconstitu- tionally burden interstate commerce involves factual issues beyond the scope of demurrer. The superior court should have overruled Western’s demurrer. The judgment is reversed. CERTIFIED FOR PUBLICATION. > BROWN CLERK'S OFFICE, SUPREME COURT 4250 STATE BUILDING San Francisco, CAuirornia 94102 SUL 25 1984 I have this day filed Order eas + fon tae In re: _4 Civ. No. __28920 PEOPLE vs WESTERN AIRLINES, INC. Respect fut y, Clerk -677 8-62 4m ° OSP Pe C-1 STATUTES 29 U.S.C. § 1144(a) provides: (a) Supersedure; effective date. Except as provided in subsection (b) of this section, the provisions of this title and title IV shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) [29 USCS § 1003(a)] and not exempt under section 4(b) [29 USCS § 1003(b)]. This section shall take effect on January 1, 1975. 49 U.S.C. § 1302(a)(3), (4) and (7) provides: (a) General factors for consideration. In the exercise and performance of its powers and duties under this Act, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity: »* * 8 (3) The availability of a variety of adequate, economic, efficient, and low-price services by air car- riers and foreign air carriers without unjust discrimina- tions, undue preferences or advantages, or unfair or deceptive practices, the need to improve relations among, and coordinate transportation by, air carriers, and the need to encourage fair wages and equitable working conditions for air carriers. (4) The placement of maximum reliance on com- petitive market forces and on actual and potential com- petition (A) to provide the needed air transportation system, and (B) to encourage efficient and well- managed carriers to earn adequate profits and to attract capital, taking account, nevertheless of material C-2 differences, if any, which may exist between interstate and overseas air transportation, cn the one hand, and foreign air transportation, on the other. (7) The prevention of unfair, deceptive, predatory or anticompetitive practices in air transportation, . . . 49 U.S.C. § 1305(a)(1) provides: (a) Preemption. (1) Except as provided in paragraph (2) of this subsection, no State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, stan- dard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under Title IV of this Act [49 USCS §§ 1371 et seq.] to provide interstate air transportation. 49 U.S.C. § 1324(a) provides: (a) Performance of acts; conduct of investigations; orders, rules, regulations, and procedure. The Board is empowered to perform such acts, to conduct such investigations, to issue and amend such orders, and to make and amend such general or special rules, regulations, and procedure, pursuant to and consistent with the provisions of this Act, as it shall deem necessary to carry out the provisions of, and to exercise and perform its powers and duties under, this Act. 49 U.S.C. § 1381 provides: The Board may, upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent, if it con- siders that such action by it would be in the interest of the public, investigate and determine whether any air carrier, foreign air carrier, or ticket agent has been or is engaged in any unfair or deceptive practices or unfair methods of C-3 competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air car- rier, foreign air carrier, or ticket agent is engaged in such un- fair or deceptive practices or unfair methods of competition, it shall order such air carrier, foreign air carrier, or ticket agent to cease and desist from such practices or methods of competition. 49 U.S.C. § 1482 provides: (a) Filing of complaints; complaints against members of the Armed Forces. Any person may file with the Administrator [Secretary of Transportation] or the Board, as to matters within their respective jurisdictions, a complaint in writing with respect to anything done or omitted to be done by any person in contravention of any provisions of this Act, or of any requirement established pursuant thereto. If the person complained against shall not satisfy the complaint and there shall appear to be any reasonable ground for investigating the complaint, it shall be the duty of the Administrator [Secretary of Transportation] or the Board to investigate the matters complained of.* * * (b) Investigations on initiative of Administrator [Secretary of Transportation] or Board. The Administrator [Secretary of Transportation] or Board, with respect to matters within their respective jurisdictions, is empowered at any time to in- stitute an investigation, on their own initiative, in any case and as to any matter or thing within their respective jurisdic- tions, concerning which complaint is authorized to be made to or before the Administrator [Secretary of Transporiation] or Board by any provision of this Act, or concerning which any question may arise under any of the provisions of this Act, or relating to the enforcement of any of the provisions of this Act. The Administrator [Secretary of Transportation] or the Board shall have the same power to proceed with any investigation instituted on their own motion as though it had been appealed to by complaint. C-4 (c) Entry of orders for compliance with 49 USCS §§ 1301 et seq. If the Administrator [Secretary of Transportation] or the Board finds, after notice and hearing, in investigation in- stituted upon complaint or upon their own initiative, with respect to matters within their jurisdiction, that any person has failed to comply with any provision of this Act or any re- quirement established pursuant thereto, the Administrator [Secretary of Transportation] or the Board shall subject to section 1102(a) of this Act [49 USCS § 1502(a)] issue an ap- propriate order to compel such person to comply therewith. (d) Power to prescribe rates and practices of air carriers. (1) Except as provided in paragraph (2) or (4) of this subsection, whenever after notice and hearing, upon complaint, or upon its own initiative, the Board shall be of the opinion that any individual or joint rate, fare, or charge demanded, charged, collected or received by any air carrier for interstate air transportation of persons, air transportation of property within the State of Alaska, air transportation of property within the State of Hawaii, or overseas air transportation, or any classification, rule, regulation, or practice affecting such rate, fare or charge, cr the value of the service thereunder, is or will be unjust or unreasonable, or unjustly discriminatory, or unduly preferential, or unduly prejudicial, the Board shall determine and prescribe the lawful rate, fare, or charge (or the maximum or minimum, or maximum and minimum thereof) thereafter to be demanded, charged, collected, or received, or the lawful classification, rule, regulation, or practice thereafter to be made effective. * * * (3) Whenever, after notice and hearing, upon complaint, or upon its own initiative, the Board shall be of the opinion that any individual or joint rate or charge demanded, charged, collected, or received by any air carrier foi interstate air transportation of property or any classification, rule, regula- tion, or practice affecting such rate or charge, or the value of the service thereunder, is or will be unjustly discriminatory, C-5 or unduly preferential, or unduly prejudicial, or predatory the Board shall alter such rate, charge, classification, rule, regulation, or practice to the extent necessary to correct such discrimination, preference, prejudice, or predatory practice and make an order that the air carrier or foreign air carrier shall discontinue demanding, charging, collecting, or receiv- ing any such discriminatory, preferential, prejudicial, or predatory rate or charge or enforcing any such discrimina- tory, preferential, prejudicial, or predatory classification, rule, regulation, or practice. * * * 49 U.S.C. § 1487 provides: (a) If any person violates any provision of this Act, or any rule, regulation, requirement, or order thereunder, or any term, condition, or limitation of any certificate or permit issued under this Act, the Board or Administrator [Secretary of Transportation], as the case may be, their duly authorized agents, or, in the case of a violation of section 1114 of this Act [49 USCS § 1514], the Attor..ey General, or, in the case of a violation of section 40i(a) of this Act [49 USCS § 1371(a)], any party in interest, may apply to the district court of the United States, for any district wherein such person car- ries on his business or wherein the violation occurred, for the enforcement of such provision of this Act, or of such rule, regulation, requirement, order, term, condition, or limita- tion; and such court shall have jurisdiction to enforce obe- dience thereto by a writ of injunction or other process, man- datory or otherwise, restraining such person, his officers, agents, employees, and representatives, from further viola- tion of such provision of this Act or of such rule, regulation, requirement, order, term, condition, or limitation, and re- quiring their obedience thereto. ‘b) Upon the request of the Board or Administrator, any district attorney of the United States to whom the Board or Administrator may apply is authorized to institute in the C4 proper court and to prosecute under the direction of the At- torney General all necessary proceedings for the enforcement of the provisions of this Act or any rule, regulation, require- ment, or order thereunder, or any term, condition, or limita- tion of any certificate or permit, and for the punishment of all violations thereof, and the costs and expenses of such pro- secutions shall be paid out of the appropriations for the ex- penses of the courts of the United States. Civil Aeronautics Board Sunset Act of 1984, Pub. L. No. 98-443, § 3(e) (Oct. 4, 1984), provides: (e) Section 1601(b)(1) is amended by adding at the end thereof the following: **(E) All authority of the Board under this Act which is not terminated under subsection (a) of this section on or before January 1, 1985, and is not otherwise transferred to the Department of Transportation.”’ REGULATIONS 14 C.F.R. § 221.50 (1984) provides: All fares, rates, and charges shall be clearly and explicitly stated and shall be arranged in a simple and systematic man- ner. Complicated plans and ambiguous or indefinite terms shall not be used. So far as practicable, the fares, rates, and charges shall be subdivided into items or similar units, and an identifying number shall be assigned to each item or unit to facilitate reference thereto. 14 C.F.R. § 399.80 (1984) provides: The word ‘‘misrepresentation’’ used in this list includes any statement or representation made in advertising or made orally to members of the public which is false, fraudulent, C-7 deceptive or misleading, or which has the tendency or capaci- ty to deceive or mislead. 14 C.F.R. § 399.81 (1984) provides: Deceptive practices in advertising of schedule perfor- mance. With respect to the advertising of schedule performance, it is the policy of the Board to regard as an unfair or deceptive practice or an unfair method of competition the use of any figures purporting to reflect schedule or ontime performance without indicating the basis of the calculation, the time period involved, and the pairs of points or the percentage of system-wide operations thereby represented and whether the figures include all scheduled flights or only scheduled flights actually performed. 14 C.F.R. § 399.84 (1984) provides: (a) It is the policy of the Board to consider the practice of an air carrier, foreign air carrier or ticket agent of advertising a group inclusive tour involving a scheduled flight in air transportation, to be an unfair or deceptive practice and an unfair method of competition in air transportation or the sale thereof, within the meaning of section 411 of the Act, unless such advertisement clearly discloses the total tour price. (b) For the purposes of paragraph (a), above, ‘‘total tour price’’ means the total amount of money to be paid by the tour participant for the group inclusive tour, exclusive of op- tions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3208%3A1. Public record. Not legal advice.