The U.S. Department of Transportation (DOT) issued a document “regarding the propriety of an air charter broker requesting or requiring an air carrier to distribute ‘crew cards’ and certain types of ‘branding materials’ (e.g., napkins,brochures, pad and pens) bearing the name or logo of the air charter broker that arranged the flights.” DOT regulations prohibit a charter broker from advertising, conducting or holding itself out in a manner that would lead the public to believe it is an air carrier operating the charter flight. Since charter brokers do not hold economic authority issued by DOT for operation of charter flights, violation of this prohibition could subject a charter broker to enforcement action for engaging in unfair and deceptive practices or an unfair method of competition.
According to DOT, “[t]he use of ‘branding materials’ is not, as a general matter, unlawful; however, the use of certain items could by themselves reasonably create the impression that the air charter broker is a direct air carrier (e.g., a brochure touting the broker’s ‘fleet’ or its ‘charter flights,’ or a napkin with a picture of an aircraft on it that bears the broker’s name or logo on the aircraft, or, as discussed below, a broker’s business card that identifies the bearer as a member of the ‘flight crew’). In addition, the use of seemingly innocuous ‘branding materials’ could, under the totality of the circumstances, create the impression that the air charter broker is a direct air carrier (e.g., a situation where the air charter broker directs that only the air charter broker’s branding materials be evident on a flight, perhaps coupled with a demand that passengers not be told the name of the air carrier, even if each individual item, when viewed in isolation, did not create the false impression that the broker is a direct air carrier).”
This document is another example of the DOT’s and FAA’s continuing scrutiny of the interaction between air charter brokers and Part 135 air carriers. It also follows DOT’s January 26, 2007 advance notice of proposed rulemaking in which it recommended that DOT require that charter brokers and Part 135 air carriers provide notice to charter customers identifying the direct air carrier and any broker involved in a flight. Although brokers and air carriers may disagree with DOT’s position, at least they will know in advance how DOT will analyze these situations. Forewarned is fore-armed.