Special Event Tours

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Ch. II

[Docket No. 49385; Notice 94-4]

RIN 2105-AC03

Special Event Tours

AGENCY: Office of the Secretary, DOT.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Department seeks comment on a tentative proposal to expand

its rules on Super Bowl tours to cover air tours to other types of

special events. These Super Bowl rules require that operators of Super

Bowl tours that are promoted as including game tickets must have those

game tickets in hand or under contract before they advertise or sell

the tours, and that they must refund the entire tour price to any

customer who does not receive a promised game ticket. This initiative

arises as a result of problems on certain tours to the 1994 Rose Bowl

on which participants did not receive game tickets that were promoted

as being included in the package, or were required to make additional

payments in order to receive tickets.

DATES: Comments should be received by March 28, 1994. Late-filed

comments will be considered to the extent practicable.

ADDRESSES: Comments should be sent to Docket Clerk, Docket No. 49385,

room 4107, Department of Transportation, 400 Seventh Street SW.,

Washington, DC 20590. For the convenience of persons who will be

reviewing the docket, it is requested that commenters provide an

original and one copy of their comments. Comments will be available for

inspection at this address Monday through Friday from 9 a.m. through

5:30 p.m. Commenters who wish the receipt of their comments to be

acknowledged should include a stamped, self-addressed postcard with

their comments. The docket clerk will date-stamp the postcard and mail

it to the commenter.

FOR FURTHER INFORMATION CONTACT: Tim Kelly, Consumer Affairs Division,

Office of the Secretary, Department of Transportation, 400 Seventh

Street SW., room 10405, Washington, DC 20590. Telephone (202) 366-5952.

SUPPLEMENTARY INFORMATION: In conjunction with the Rose Bowl football

game that was played in Pasadena, California on January 1, 1994, a

large number of fans of the University of Wisconsin (one of the two

teams participating in the game) purchased package tours to California.

Many of those tours were promoted as including a ticket to the Rose

Bowl game. However, a significant number of these individuals either

did not receive the game tickets that they had been promised and did

not gain admission to the game, or were required to make an additional

payment after they arrived in Pasadena in order to obtain their

tickets.

The Department of Transportation has general authority under

section 411 of the Federal Aviation Act (49 U.S.C. 1381) to take action

against companies that engage in unfair or deceptive practices in

connection with air transportation. The Department's staff, with

cooperation and support from the State of Wisconsin's Department of

Justice, is actively investigating the Rose Bowl matter and will pursue

any violations found. However, we wish to consider the desirability of

maximizing the deterrent effect of our rules against consumer deception

where tickets to special events are sold in connection with air

transportation, and significantly increasing consumer remedies in cases

where the purpose of a consumer's trip is frustrated. Therefore, the

Department seeks comment on a proposal to extend its rules on Super

Bowl tours to include air tours to other types of special events where

admission to the event is advertised as being included in the package.

The Department's rules on Super Bowl charters are contained in

title 14, part 380 of the Code of Federal Regulations (14 CFR part

380):

Section 380.2 defines a Super Bowl charter as a charter

flight that is represented by its charter operator as including tickets

to the National Football League's Super Bowl game as part of its ground

package.

Section 380.18a states that a Super Bowl charter may not

be advertised unless the operator has submitted verification to the

Department\1\ that the operator (1) is in physical possession of enough

Super Bowl game tickets to provide them for a substantial number of

seats on the charter, or (2) has a contract with the NFL or with an NFL

team for such a number of game tickets, or (3) has a contract with

another person who has a contract with the NFL or an NFL team for such

a number of game tickets.

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\1\References to ``the Board'' in this rule refer to the Civil

Aeronautics Board, the Department's predecessor in aviation economic

and consumer matters. The Department of Transportation now

administers this rule as authorized by the Civil Aeronautics Board

Sunset Act of 1984 (Pub. L. 98-443; 98 Stat. 1703).

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Section 380.18a also states that a Super Bowl charter may

not be sold unless the operator has submitted verification to the

Department that the operator has possession of, or contracts for,

enough game tickets to provide one to every person who is to receive

one under the terms of the operator/participant contract for the

charter.

Section 380.31(c) states that if an operator receives a

booking for which he or she does not have possession of or a contract

for a game ticket, the operator must return that participant's money

within three days, unless the participant has authorized the operator

in writing to retain the payment while the operator seeks additional

tickets.

Sections 380.32(s), 380.33(a)(5) and 380.33(e) state that

if Super Bowl game tickets are not supplied when promised, the affected

participant must be sent a refund of the price of the entire charter

package within 14 days after the return flight.

These rules came about following problems with game tickets for

Super Bowl tours in the late 1970's (see 45 FR 1856, Jan. 9, 1980). The

rules were limited to the Super Bowl because that was the only event

where such problems had surfaced.

In addition to the Super Bowl rules in part 380, the Department has

a policy statement at 14 CFR Sec. 399.87 which states that it shall be

an unfair or deceptive practice within the meaning of section 411 of

the Federal Aviation Act to advertise or sell an air tour that is

promoted as including a ticket to the Super Bowl game unless the

operator has tickets or contracts for tickets in the manner described

in 14 CFR 380.18a (see above). The principal purpose of this policy

statement is to reach tours operated on scheduled air service, which

are not covered by the part 380 charter rules. The part 399 policy

statement mirrors Sec. 380.18a, but does not include the other part 380

provisions described above. Most importantly, it does not include the

requirement that the entire tour price be refunded if a game ticket is

not provided.

The Department is tentatively proposing to issue a new rule that

would contain the procedures of the Super Bowl provisions of both part

380 and part 399, and to extend this rule to other types of events.

Like current Sec. 399.87, the new rule would apply to tours on all

forms of air transportation, not just charters. Like the existing Super

Bowl charter rules in part 380, the new regulation would require the

tour operator to refund the entire tour price to any participant who

does not receive a promised event ticket, even if the tour were not on

a charter. We anticipate that the new rule would also pick up the

procedures of Sec. 380.31(c), which would require an operator to refund

any money received for a booking within a certain limited period of

time if the operator has no contract for an event ticket for that

person, unless the person has authorized the operator in writing to

retain the payment while the operator seeks a ticket.

In concept, the new rule would apply to air tours that are

advertised as including admission to a specific event. Beyond that, the

Department seeks comment on what the scope of such a rule should be:

Should it apply only to major sports events which would be

listed in the rule (for example, the Super Bowl, college bowl games,

the NCAA Final Four, the World Cup finals, the Olympics)? To any sports

event? To religious events (for instance, the Passion Play in

Oberammergau)? To any event?

Should the rule apply to both charter and scheduled

transportation? Should it appear in part 380, in part 399, in a new

rule in a separate part, or some combination of the above?

Should the rule contain only the advertising and sale

restrictions of Secs. 380.18a and 399.87, or should it also contain the

``money back guarantee'' of Secs. 380.32 and 380.33 and/or the

``booking rejection'' and ``contingent booking'' procedures of

Sec. 380.31(c)?

If the scope of the type of event covered by the rule (see

first bullet) is broad and the rule contains the ``money back

guarantee'' (see previous bullet), should procedures be included that

would protect the operator from having to refund the entire tour price

if a participant doesn't receive promised admission to something like a

welcoming cocktail party? What types of procedures would accomplish

this?

Should the rule specifically ban last-minute or post-

departure price increases for admission to the event, one of the

problems that allegedly occurred on the 1994 Rose Bowl tours? This type

of problem is not addressed in the existing Super Bowl rules, although

it may be actionable under section 411 of the Federal Aviation Act as

an unfair or deceptive practice. On charters this phenomenon is covered

to some extent by Sec. 380.33(b), which prohibits any increase in any

charter price less than 10 days before departure. Should the new rule

on special event tours contain such a requirement?

Some tours are promoted in conjunction with a special

event, but do not include, and do not represent that they include,

admission to the event. For example, there have been tours to the Super

Bowl host city during the Super Bowl weekend that prominently feature

``Super Bowl'' in the headline of advertisements and flyers, but which

do not include game tickets. Should the new rule ban this practice, or

require affirmative, prominent disclosure that admission to the event

is not included?

What would be the economic burdens of such a rule? Would

the rule be impractical for events where the participants are known

only a week in advance, e.g. the NCAA Final Four?

On September 16, 1992, the Department published a proposal to

conduct a major overhaul of its air charter regulations, including part

380; see 57 FR 42864. We proposed to eliminate many existing charter

requirements, including the Super Bowl provisions of part 380. (Some of

the proposed changes to part 380's Super Bowl provisions are discussed

at page 42866 (column 3) of the proposal.) The proposal noted that

Super Bowl tours, including those operated on charters, would continue

to be subject to Sec. 399.87. In view of the problems with the 1994

Rose Bowl, however, the Department now is of the tentative opinion that

the approach taken in the existing Super Bowl charter provisions (e.g.,

the ``money back guarantee'' among other things) remains appropriate.

If this tentative conclusion is finalized in the instant rulemaking on

special event tours, Super Bowl charter tours (as well as charter tours

to other special events) would remain subject to requirements similar

to those in the current Super Bowl charter provisions. As indicated

above, however, the Department seeks comment on whether this proposed

new rule on special event tours should appear only in part 399 or a new

part, or whether it should also appear in part 380.

Regulatory Analyses and Notices

This ANPRM is considered to be a non-significant rulemaking under

DOT regulatory policies and procedures, 44 FR 11034, because the

proposal would have minimal economic impact, and accordingly no

regulatory evaluation has been prepared. The ANPRM was not subject to

review by the Office of Information and Regulatory Affairs pursuant to

Executive Order 12866.

The ANPRM has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that it does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

I certify that the proposal, if adopted, would not have a

significant economic impact on a substantial number of small entities.

Issued this 27th day of January 1994 at Washington, DC.

Patrick V. Murphy,

Acting Assistant Secretary for Policy and International Affairs.

[FR Doc. 94-2199 Filed 1-27-94; 3:13 pm]

BILLING CODE 4910-62-U