Upholds ADA Preemption of State Privacy Protection Law

A California appellate court affirmed a lower court's holding that the State of California's action against Delta Air Lines, Inc. ("Delta") under California's unfair competition law was expressly preempted by the federal Airline Deregulation Act of 1978 ("ADA"). California's Online Privacy Protection Act of 2003 ("OPPA") requires certain operators of commercial websites and online services that collect personally identifiable information to post a privacy policy addressing, among other things, the type of personally identifiable information collected and with whom the operator may share that information. Delta operated a mobile application that collected personally identifiable information about customers residing in California without posting a privacy policy as required by the OPPA. The ADA preemption provision provides in pertinent part: "a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of an air carrier that may provide air transportation under this subpart." The Court, citing to US Supreme Court precedent, rejected arguments that the ADA should not apply because the OPPA is a "law of general applicability" and that Delta's mobile application was not essential or required for its business. The Court further found that the OPPA was not merely a "disclosure regime" because, by mandating Delta to comply with its "baseline requirements", it could have a "significant impact upon [the carrier's ability to market its product], and hence a significant impact on the fares [it charges]". Allowing the OPPA to apply in this case "could easily lead to a patchwork of state service-determining laws rules, and regulations… inconsistent with Congress' major legislative effort to leave such decisions, where federally unregulated, to the competitive marketplace." People ex rel. Harris v. Delta Air Lines, Inc., 2016 WL 3001805 (Cal. App. May 25, 2016).