Violations of Full-Fare Advertising, Opt-Out Provision and Fee Disclosure Rules

The US Department of Transportation Office of Aviation Enforcement and Proceedings ("DOT") issued a Consent Order against Aeroenlaces Nacionales, S.A. de C.V., t/a VivaAerobus (“VivaAerobus”) for violations of various consumer protection rules.

The DOT determined that VivaAerobus violated the full-fare advertising rules by advertising fares in its initial fare matrix that did not include a mandatory fee—the issuance fee. On its US website, VivaAerobus offered several methods for payment at the end of the booking process, adding an “issuance fee” for each method of payment. The amount of the issuance fee varied by the payment method chosen but could not be avoided, and was not disclosed to the passenger until the final step in the booking process. By not advertising the full fare to be paid by the consumer in the initial fare matrix, VivaAerobus violated 14 CFR 399.84(a).

The DOT further found that VivaAerobus failed to have a reasonable number of seats available for an advertised fare or to take prompt action to discontinue the advertisement when a reasonable number of seats were no longer available.

The DOT also decided that VivaAerobus improperly utilized the opt-out method for selling optional services in violation of 14 CFR 399.84(c) and determined that the carrier did not prominently disclose on its US facing website information on fees for all optional services that were available to a passenger purchasing air transportation in violation of 14 CFR 399.85(d).

The violations resulted in a finding that VivaAerobus engaged in unfair and deceptive trade practice in violation of 49 U.S.C. § 41712. In mitigation, VivaAerobus asserted, inter alia, that it takes compliance very seriously and that any non-compliance was inadvertent, caused when a new Spanish-language website was put into place as required by Mexican law. VivaAerobus also corrected the "opt-out" method on its website and addressed the Enforcement Office's concerns regarding seat availability. The DOT issued a U.S. $150,000 fine, with the first U.S. $75,000 payable in installments and the remainder payable if the carrier commits further violations of the kind addressed in the order. Aeroenlaces Nacionales, S.A. de C.V., t/a VivaAerobus, Docket OST-2016-0002, May 5, 2015.