A Golden Age for Us . . . or for the Airlines? Ensuring Robust Federal Consumer Protections to Make Flying Great Again for Everyone

By David S. Nahmias and Julian Sanghvi May, 2026

Flying today is not meaningfully better for passengers than it was twenty years ago—and the airlines are largely to blame. Airlines leverage opaque pricing practices and junk fees to extract greater revenue from passengers, while the quality of air travel has deteriorated. Despite its mandate to protect the flying public and the air travel market from deceptive and anticompetitive practices, the Department of Transportation has been largely captured—adopting industry-favorable regulations and procedures while cutting commonsense consumer protections. This Essay examines the airlines’ coordinated campaign to circumvent and dismantle consumer protections, and how the industry have largely captured the federal agency designed to regulate it. We conclude that ushering in the “Golden Age of Travel” requires a rejection of the airlines’ heavy-handed deregulatory agenda and a turn towards passenger-focused consumer protections that restore fairness and accountability to the skies.

Introduction

Last fall, Secretary Duffy announced an effort to usher in a “Golden Age of Travel,” replete with nostalgia for the luxurious air travel experience of the 1950’s and ‘60’s, and urging airline passengers to treat each other and their crew with respect, professionalism, and courtesy.¹ Civility in the skies is a worthy goal, but bringing back the Golden Age also requires airlines to treat their passengers with respect. In recent years, that respect has been sorely lacking, as evidenced by record-high levels of passenger complaints levied against the airlines.²

Restoring the greatness of flying requires a strong U.S. Department of Transportation (DOT) that champions the interests of the flying public over those of the airline industry. We are at a moment when the nation’s largest airlines are waging a coordinated campaign—grounded in specious legal arguments—to weaken passenger protections and squeeze every dollar of profit out of passengers. The airline industry, through its trade association Airlines For America (A4A), has urged the Department to repeal core consumer safeguards, shut down investigations, narrow enforcement, and disarm itself of the very tools Congress provided to protect the flying public.³ These alarming efforts betray a clear objective: to leave passengers with fewer rights, less transparency, and a watchdog too hobbled to respond.

After years of refund scandals, disability violations, safety failures, and anticompetitive conduct, the public needs a strong Department of Transportation to live up to its mandate as the primary federal cop (or air marshal) on the beat to enforce strong guardrails against predatory conduct by the airline industry. Congress created the agency decades ago and vested it with clear statutory authority to promote competition in the airline industry and protect air travelers.⁴ Its track record on both fronts, however, is middling. Although Secretary Pete Buttigieg (2021-2025) implemented some of the strongest accountability measures in years, including sweeping new consumer protection rules and challenges to anticompetitive mergers, this has largely been the exception. And there has been a wholesale reversal under Secretary Duffy, with DOT prioritizing airlines’ profits over passengers. This approach does not bode well for the millions of Americans who rely on air travel.

This Essay proceeds in six parts. First, we examine the remarkable “innovation” that has defined modern air travel: the proliferation of opaque pricing practices and junk fees designed to extract ever-greater revenue from passengers, not improvements in safety, quality, or service. Next, we describe the Department of Transportation’s directives from Congress to protect the flying public from unfair, deceptive, and anti-competitive practices, and how it has largely fallen short of its mandate because of agency capture by the airline industry—the sector it was designed to regulate. Next, we turn to the industry’s coordinated campaign to dismantle existing passenger protections, hamstring the Department’s powers, and accelerate the very practices that have made flying more frustrating, fee-laden, and burdensome. We then examine a recent proposed rulemaking to show how DOT is facilitating a critical pillar of the airlines’ broader anti-passenger agenda. This rulemaking, lifted almost word-for-word from the industry playbook, constructs procedural hurdles to enacting cornerstone consumer protections. Finally, we urge the Department to enact commonsense rules, based on its existing authority, that put the interests of passengers before the profit margins of airlines.

Innovation in the Skies: Picking Passengers’ Pockets, Not Enhancing Their Experience.

Fundamental precepts of open markets suggest that competition in a given industry results in lower prices and better customer experience, as industry players compete over whose product can best satisfy consumer demand. The airline deregulation movement in the 1970’s was intended to foster such a competitive market for air travel, with the DOT playing the critical role of enforcing the rules of the game.⁵

Yet the reality in the skies has flown in the face of these classical economic principles, especially with respect to the cost of air travel. Flying today isn’t meaningfully better or faster than it was twenty years ago.⁶ Rather, the industry’s “innovation” has overwhelmingly focused on extracting as much revenue as possible from passengers. For decades, the major U.S. airlines have been the undisputed pioneers of the junk fee economy, relentlessly unbundling their products and engineering a labyrinth of charges designed to squeeze travelers at every turn. As detailed in a landmark Senate investigation, airlines have been turning formerly standard service—carrying a bag, picking a seat, sitting next to your own child—into high-margin revenue streams that now generate billions in profit, even when the fees bear no relationship to the cost of the service.⁷ Internal documents show that airlines deploy surveillance pricing algorithms to charge different customers different prices for the same service, bury seat selection fees until consumers are deep into the booking process, and even pay gate agents commissions to extract more bag fees from unsuspecting travelers.⁸ Between 2018 and 2023, the five largest fee-collecting airlines raked in $12.4 billion from seat fees alone—a category that hardly existed two decades ago. Baggage fees, meanwhile, generated $7.27 billion for airlines,⁹ constituting yet another profit driver for a service that used to be included in the price of a ticket.

Not content with the billions it is already extracting from Americans, the industry is now signaling that this squeeze is only going to intensify as they seek the “holy grail”: individualized passenger pricing.¹⁰ Recently, Delta Airlines told investors it could further boost profits not by improving service, but by stopping fare-matching and relying on algorithmic personalization to ratchet prices upward, a clear warning that the next generation of extraction will be even more targeted, opaque, and aggressive.¹¹

Airlines are a prime example of how a market can go wrong when competition is limited and consumer protection rules are weak.¹² Today, through a series of mergers, the “Big Four” airlines (American, Delta, Southwest, and United) control 80 percent of the domestic air travel market.¹³ And rather than competing to attract customers by making flying faster, cheaper, or more comfortable, large carriers have spent decades inventing new fees, new restrictions, and new ways to monetize basic travel needs—all while lobbying in lockstep for DOT to bless these practices. In this sense, airlines are not an outlier but the clearest case study of what happens when an essential service, unshackled from vigorous competition guardrails,¹⁴ is allowed to rely on junk fees and opaque pricing strategies as a business model. In fact, leading members of Congress in both parties are expressing serious concerns about these very issues, as is the flying public.¹⁵

Meanwhile, the Big Four airlines have failed to meet the most baseline of standards to be expected for passengers. Over the last four years, Southwest was fined (although ultimately never paid) the largest penalty in history for causing what DOT called, understatedly, a “holiday meltdown” that stranded more than two million passengers.¹⁶ American Airlines was found to be subjecting disabled passengers to “unsafe” and “undignified” treatment, a problem DOT described as “far too common” throughout the industry.¹⁷ Airlines have faced outcry for not seating families with small children together,¹⁸ an experience that actually happened to one of the authors (the father of an infant) recently on a cross-country flight. Six airlines were caught engaging in “extreme delays” in giving refunds, leading to a $7.25 million fine and more than $600 million in refunds.¹⁹ Nor have these violations been limited to the mistreatment of passengers. A federal court found that JetBlue’s proposed acquisition of Spirit Airlines “does violence to the core principle of antitrust law: to protect the United States’ markets—and its market participants—from anticompetitive harm.”²⁰ Spirit’s abrupt shuttering will likely only intensify the stranglehold the Big Four have on the airline market; ironically, the larger airlines have benefitted tremendously by adopting Spirit’s “innovation” of unbundling fees and drip pricing.²¹

The Department of Transportation: Protecting Passengers or Industry Profits?

As the airlines have attempted to wage war on their passengers, they have often found a willing partner in the federal Department of Transportation–the agency instituted to keep them in line. In the past, airlines faced accountability for their behavior only when the Department and its partners across the government vigorously championed the public interest. It is no wonder that the airlines now want the Department to disarm itself and reverse the significant progress DOT has made. But doing so leaves passengers exposed and will embolden further misconduct.

Decades ago, in the Airline Deregulation Act, Congress established sixteen policy goals to guide the Department of Transportation’s regulation of the airline industry.²² Included among those are guaranteeing passenger safety; promoting efficient, low-cost, and competitive markets; and protecting consumers from unfair, deceptive, and predatory practices.²³ Indeed, safety and competition are the lodestars for the nation’s entire transportation agenda.²⁴ Central to the Department’s authority to protect consumers is its obligation in 49 U.S.C. § 41712 to investigate whether airlines are “engaged in an unfair or deceptive practice or an unfair method of competition.”²⁵ Modeled after the Federal Trade Commission’s generally broad power under Section 5 of the FTC Act to investigate and prosecute unfair and deceptive practices, the DOT’s authority helps fill in the jurisdictional gaps left uncovered by Section 5, which does not extend to “air carriers.”²⁶ The DOT has brought dozens of enforcement actions against airlines for unlawful, predatory conduct—from overcharging customers to discriminating against passengers.²⁷ The Department has also long relied on this statutory mandate to issue regulations prohibiting the airlines from crafting new ways to prey on passengers, like its now-vacated ancillary fees rule issued in the Biden Administration, which barred the kinds of junk fees that obscure the total price of airfare.²⁸

Nevertheless, the Department of Transportation has a largely moribund track record of protecting airline passengers. The DOT has long been criticized as a victim of agency capture, meaning that its policy agenda has largely succumbed to the priorities and pressure of the entities that it regulates—in this case, the airline industry.²⁹ The airline industry lobbyists have been called “some of the most powerful and effective in the United States”³⁰ at securing favorable treatment. The FAA, a sub-agency of DOT that monitors all aspects of civil aviation in the United States, is a notorious “revolving door” between the industry;³¹ as one FAA veteran has put it, “they really own the FAA.”³² After two Boeing 747 Max crashes that killed 346 people, the FAA came under fire for consenting to Boeing conducting its own safety certifications.³³ Also, under former Secretary Elaine Chao in the first Trump Administration, the DOT proposed regulations that were lifted straight from the airline industry’s holiday wish list: a wholesale revamping of the Department’s standard to investigate unfair, deceptive, and competitive practices that would largely cede its enforcement authority to the industry, and the imposition of new procedural hurdles to bring cases that would handcuff DOT’s own enforcement process. Both rulemakings were initiated openly at the behest of the airlines³⁴; the latter is, as discussed below, again in the works.

The airlines have largely managed to co-opt the DOT’s consumer protection agenda, albeit with one exception. During the Biden Administration under Secretary Pete Buttigieg, the DOT made generational headway in advancing its priorities by enacting landmark rules banning junk fees in the industry, requiring automatic refunds for canceled flights, mandating new safety protections for passengers with disabilities, and securing millions of dollars in penalties against airlines for consumer protection violations.³⁵ The Department also established a bipartisan and commonsense cooperative agreement to partner closely with state attorneys general to investigate abusive behavior in the skies, recognizing that the states are closer to and hear directly from the consumers who bear the brunt of abuses in the marketplace.³⁶ The DOT further took steps to engage fulsomely with consumer advocates–something that had not occurred in years.³⁷ While certainly more could have been done during that period to further cement DOT’s position as a protector of airline passengers, such as more proactively tackling mass flight cancellations before they occurred, it is irrefutable that the Department under Secretary Buttigieg departed from its troubling norm of prioritizing airlines over the flying public.

III. Going Full Throttle: The Airlines’ Ongoing Campaign to Undermine Passenger Protections Against Fraud and Deception.

With the prospect of a favorable regulator capitulating to their interests, the airlines are continuing to wage war on consumer protections by making it easier to squeeze profits out of passengers and making it harder to hold themselves accountable. Last year, the airline industry’s trade group A4A submitted a petition to the Department of Transportation with a brazen list of demands that is remarkable in its overreach.³⁸ The letter demands that the Department dismantle virtually every recent effort to improve air travel and enforce the law, all while leaning on sloppy arguments and a distorted reading of DOT’s mandate. A4A’s submission reads as a blueprint for entrenching the very practices that have made air travel increasingly confusing, unpredictable, and hostile to consumers. And the Department is quite receptive to adopting the industry’s agenda, as evidenced by its 2025 regulatory agenda that thoroughly tracks A4A’s petition.³⁹

Below is a small sampling of the airlines’ demands:

● Make it Harder for Passengers to Obtain Refunds: A4A called on DOT to rescind the core refund protections adopted in 2024, including requirements that airlines return passengers’ money when flights are canceled, significantly delayed, or materially changed. The airlines specifically sought to eliminate refunds for flight changes that result in additional connection points, long disruptions, and even situations where passengers with disabilities are unable to travel.

● Make it Easier for Airlines to Obscure Prices: A4A demanded the repeal of requirements that airlines clearly disclose baggage fees, seat selection fees, and other charges. The airlines claimed consumers already “know” these fees exist and therefore suffer no harm when the fees are hidden or revealed late. They attacked the Biden Administration’s ancillary fees rule as unlawful simply because it requires airlines to tell consumers the truth about costs at the time it matters most.

● Weaken Protections for Fliers with Disabilities: A4A identified DOT’s disability rights rules as a target for deregulation, urging the Department to scale back obligations that help passengers with disabilities travel safely and with dignity. They even opposed refund rights for those passengers, arguing that DOT has no authority to impose such a requirement.

● Conceal Performance and Delay Data from Passengers: A4A proposed eliminating requirements that passengers be given on-time performance information during booking. They argued that even simply hyperlinking to performance data is too burdensome, and they asserted that withholding delay information is neither unfair nor deceptive—an extraordinary claim given the importance of reliability to every traveler.

The airlines’ petition to the DOT showed that they are not only looking to gut core protections but also want to shield themselves from accountability when they violate the law. Their demands were equally audacious:

● Shut Down DOT Investigations: A4A demanded that DOT immediately terminate investigations into whether airlines misuse customer data, mislead passengers in loyalty programs, or restrain competition.⁴⁰ The airlines characterized these inquiries as illegitimate and urged DOT to adopt new rules making it harder to investigate airlines at all.

● Limit States’ Rights to Collaborate with DOT: Airlines complained that state attorneys general are raising concerns about how airlines treat their passengers, and they faulted DOT for not intervening to stop them.⁴¹ They insisted the Department must terminate its cooperative agreement with state attorneys general and cease “deputizing” states to protect consumers.⁴²

● Cut off Accountability After Two Years: Finally, A4A demanded that DOT “confine enforcement actions to a two-year statute of limitations.”⁴³

IV. A Pattern of Obfuscation and Obstruction: How the Airlines Twist the DOT’s Consumer Protection and Competition Responsibilities to Further Their Aims

At every turn, the airline industry has shown itself to be an unreliable narrator by distorting the law and mischaracterizing DOT’s mandate in order to advance an extreme anti-passenger agenda. The airlines’ deregulatory demands thus must be viewed with serious skepticism. As two recent public filings by A4A—the aforementioned petition to the DOT and its legal briefing in its litigation challenging the ancillary fees rule—demonstrate, the airline industry is engaged in a singular, misguided, and dangerous mission: to hobble DOT’s ability to root out unfair, deceptive, and anti-competitive practices through effective rulemaking and enforcement. A few examples illustrate this point.

First, the airlines’ petition last year setting forth their deregulatory agenda cherrypicked among the Department’s several statutory obligations to support their own interests, while conveniently ignoring the Department’s mandate to protect passengers.⁴⁴ The airlines claimed that their recommendations are the logical outgrowth of Congress’s obligation that the DOT place “maximum reliance on competitive market forces and on actual and potential competition,”⁴⁵ citing this mandate over ten times. Not only is reliance on this mandate ironic, coming from an industry aggressively undergoing market consolidation, but A4A conveniently omits that the mandate to prioritize “competitive market forces” is but one (and in fact sixth) in Congress’s list of responsibilities for the Department enumerated in 49 U.S.C. § 40101. Among the other obligations omitted by A4A are DOT’s focus on safety, prevention of unfair, deceptive, and anticompetitive practices, and responsiveness to the public.⁴⁶ The airlines’ selective reading of § 40101 is no accident; it bespeaks their fundamental belief that their preferences should override the priorities Congress enacted. And airlines ignore the obvious: many of the rules they want repealed, such as fee transparency protections, promote “competitive market forces” by giving consumers the information they need to compare prices and choose freely among carriers.

Second, not content with simply having the Department tailor its policy agenda to furthering its policy priorities, the airline industry has also aggressively sought to undermine the agency’s consumer protection authority altogether. First, in A4A’s litigation against the Biden Administration’s ancillary fees rule, the lobby group took the radical position that the Department lacks “prescriptive authority” to write rules protecting the public under 49 U.S. § 41712.⁴⁷ The agency itself has never taken such a position; indeed, this Administration explicitly relied on that provision last fall to propose a rule altering procedural requirements before bringing enforcement actions, discussed below.⁴⁸ More damning, a panel of the notoriously conservative Fifth Circuit Court of Appeals last year declared unequivocally that “DOT has the power to make rules under § 41712,”⁴⁹ and that this authority is fully consistent with the major questions and non-delegation doctrines. While that panel decision was later withdrawn when the Fifth Circuit granted en banc rehearing, tellingly, the full court’s opinion, which invalidated the ancillary fees rule on procedural grounds only, did not accept A4A’s invitation to strip DOT of its long-understood rulemaking powers. This episode makes clear that the airlines’ goal is not more-targeted rulemaking, but no rulemaking whatsoever.

Third, the airlines have attempted to distort the core standards by which DOT can protect the public. For instance, A4A misstates well-established standards governing deception and unfairness. In the context of ancillary fees, they claim consumers cannot be deceived so long as they are aware that airlines impose fees. But as the FTC’s Deception Policy Statement makes clear, a practice can be deceptive even if consumers become aware of the truth later.⁵⁰ Likewise, the airlines’ unfairness arguments reveal a warped view of consumer harm. For example, the airlines argue that passengers are not harmed—or that harm is de minimis—when airlines add unexpected connections.⁵¹ Yet any passenger can tell you that adding connections in air travel can extend travel time and increase the risk of missed flights and lost or delayed luggage.⁵² Harm does not vanish simply because the airlines prefer not to recognize it. In addition, A4A’s statement of the law, that DOT may regulate a deceptive or unfair practice only if it proves that every other conceivable alternative practice is also unlawful,⁵³ is wholly unsupported. Nothing in § 41712 or in the Federal Trade Commission Act from which it draws imposes such a requirement. Agencies routinely implement rules targeting unfair or deceptive practices without first proving the illegality of every imaginable alternative.⁵⁴ The airlines’ argument is thus not just meritless; it is intended to make rulemaking virtually impossible.

The airlines’ remaining bevy of audacious demands further underscores their quest to circumvent accountability. For instance, their request to undo DOT’s cooperative agreement with state attorneys general because it purportedly “deputized” states to do the federal government’s bidding fundamentally mischaracterizes the nature of the accord.⁵⁵ In fact, DOT simply created a mechanism to cooperate with states on investigations. The airlines are the ones that are trying to deputize DOT to shield them from oversight. It is not surprising that the airlines want state cooperation shut down. They call the agreement a “publicity stunt,”⁵⁶ yet their reaction points to their significant concern about what genuine oversight and coordinated investigations might reveal. And the purported justifications they offer are especially specious. For example, they claim to be worried about “privacy” if DOT shares complaint data with state law enforcement agencies while simultaneously urging DOT to shut down its investigation into their own privacy practices.⁵⁷ They also assert the cooperative agreement is “unauthorized,” yet they cite no legal authority to support that claim.⁵⁸ In fact, the Department was careful to design the agreement in a way that respects existing limits in the Airline Deregulation Act while leveraging the expertise states bring to investigating unfair and deceptive practices.

Finally, the airlines’ proposal to manufacture a two-year statute of limitations for the DOT to bring enforcement cases is nakedly cynical and self-serving.⁵⁹ They cite no authority for this proposal, nor could they. Congress, not agencies—and certainly not the industries they regulate—sets statutes of limitations, and it has not done so here. Also, a two-year time limit is entirely arbitrary and would put DOT out of step with other consumer protection agencies. At the FTC, for example, there is no statute of limitations for enforcement actions, and Congress has set a five-year limitations period for civil penalties.⁶⁰ A4A’s proposal would simply shield airlines from accountability, regardless of the egregiousness of the violations.

In sum, the airline industry’s arguments reveal not a good faith effort to assist the Department in interpreting its statutory obligations, but a coordinated attempt to strip DOT of the very tools Congress provided to protect the flying public. An industry seeking to gut its regulator’s authority while mischaracterizing the law and trivializing consumer harm is not engaged in constructive dialogue; it is engaged in obfuscation and obstruction.

V. The Airline Lobby’s Rulemaking About Rulemaking: A Case Study in How Airlines Want To Make It Harder for the DOT to Do Its Job

Unfortunately, recent statements and actions taken by the DOT under Secretary Duffy suggest that airlines are once again in the cockpit, steering a deregulatory agenda to the detriment of air travelers and the airline market.⁶¹ Perhaps the clearest example that the fox is guarding the henhouse once again is the Department’s current proposed rulemaking, “Procedures in Regulating and Enforcing Unfair or Deceptive Practices.”⁶² The proposal announced in the fall of 2025, which as of this writing has not been finalized, essentially seeks to reinstate an arcane hearing process, first put forward by Secretary Chao, that required a series of prefatory measures before the Department could even initiate rulemaking or investigations brought in accordance with § 41712.⁶³ During the Buttigieg era, the Department wisely and correctly proposed rolling back those informal hearings because of their “overly particularized rigidity” and concern that they were causing “unnecessary delay.”⁶⁴ The procedures set forth under the Biden Administration were calibrated to maximize flexibility and efficiency by limiting informal hearings to only those shown to be in the public interest, based on a variety of factors.⁶⁵

But now, urged on by the airline industry,⁶⁶ the DOT wants to bring back rigid procedural hurdles, ironically in the name of “increase[d] transparency” and “more robust public participation.”⁶⁷ While the Administration defends its prescription as the “best reading of its statutory authorities” to investigate predatory practices by airlines,⁶⁸ the proposal will bog the agency down in red tape, weaken its ability to police abuses, and give the airlines precisely what they have been seeking: more delay, fewer protections, and a regulator slowed to a crawl.

The Department’s proposed rule is inconsistent with the Department’s overarching statutory mandate to “develop[] and maintain[] a sound regulatory system that is responsive to the needs of the public and in which decisions are reached promptly.”⁶⁹ Specifically, the proposed rule requires that the DOT must do the following before conducting rulemaking under its unfair or deceptive practices authority:

1. Allow any interested party to request a hearing;

2. Authorize its General Counsel to determine whether a hearing is warranted;

3. Receive written comment, conduct a hearing and issue proposed findings;

4. Permit further comments on those findings;

5. Make a final determination on the suitability of the rulemaking, and

6. Issue a modified rule or terminate the rulemaking with an explanation.⁷⁰

This multistep process engenders a procedural labyrinth that will make unfair and deceptive practices rulemaking highly onerous, if not impossible. More rigid informal hearing requirements serve only the airlines, whose lobbyists at A4A have the expertise and wherewithal to maneuver through onerous procedures. Indeed, the lobbying group has the incentive to reflexively slow down any agency actions targeting unfair practices committed by its members. No wonder they called on the Department to put forward exactly this process.⁷¹

The proposed informal hearings are also wholly at odds with the Department’s statutory mandates to prevent unfair and deceptive practices.⁷² Those clear statements of policy demonstrate Congress’s intent to empower the Department with responsive rulemaking authority to tackle unfair conduct and protect the public interest. As discussed above, the repeated attempts by the airlines to undermine consumer protections illustrate the need for the Department to—in accordance with its statutory mandate—accelerate its unfair practices enforcement, not erect hurdles.

DOT need not look far for a time-tested rulemaking process that works. Congress has already created a universally accepted mechanism for the industry and the flying public—indeed, for all interested parties—to weigh in on regulations: notice and comment under the Administrative Procedure Act. As the “fundamental charter of the administrative state,”⁷³ the APA supplies the baseline process and requirements for agency rulemakings. In fact, Congress expressly considered and rejected similar informal hearing requirements when it adopted the APA nearly eighty years ago.⁷⁴ Congress can, of course, decide to add additional steps when it wants to, like it did for the FTC with the Magnuson-Moss Warranty FTC Improvement Act in 1975. But Congress has not done so for the Department of Transportation, and staying faithful to Congress’s intent militates against creating extra-textual process. The well-established rulemaking process under the APA suffices to give interested parties, including industry, an opportunity to influence and inform Department rulemakings.

The airlines’ insistence on additional processes for new protections is especially ironic given the position they are taking with respect to existing protections. Even as the industry demands new hurdles before DOT can modernize its rules, it simultaneously urges the Department to eliminate any process at all, including notice and comment, when repealing rules that inconvenience airlines. Nor can industry complain it has not had ample opportunity to weigh in on rulemakings during ordinary notice-and-comment periods, given that it did so repeatedly during previous administrations—and is sure to do so again this time around. These contradictions yet again lay bare the airline industry’s true aim: not better rulemaking, but no rulemaking at all unless it yields the outcome they prefer.

VI. Make Flying Great Again: Using Unfair and Deceptive Practices Laws To Take On The Airlines’ Anti-Passenger Agenda

President Trump has vowed to make life more affordable for the American people,⁷⁵ and the Department has real opportunities to do just that by reining in hidden fees, ending the tax on families who want to sit together, and restoring basic transparency in air travel. The airline lobby, however, has made clear that its goals run in the opposite direction: more fees, more inconvenience, and more opacity, pushed through a process designed to privilege industry over the public.

The Department of Transportation must not fall victim to the industry’s bidding. Instead, the Department must champion the flying public by vigorously fighting unfair, deceptive, and anti-competitive practices. The Department cannot usher in its “Golden Age of Travel”⁷⁶ without strong tools to hold airlines accountable for passenger abuses. Thankfully, those tools are readily available through DOT’s power to police unfair and deceptive practices;⁷⁷ the Department needs only to exercise them.

There is a litany of practices that airlines have foisted on passengers that plainly amount to unfair and deceptive conduct—from surprise baggage and seat fees, to unexplained flight cancellations, to ever-narrowing seats and a famously unpleasant flying experience. The Department could act today by exercising its statutory authority to reissue rules promulgated during the Buttigieg era, banning junk fees, compensating travelers for lost connections and lost bags, and making air travel accessible to every traveler. Also, emerging trends in airline pricing make clear why DOT must redouble its efforts to police abuses. The industry is rapidly moving toward algorithmic, individualized pricing driven by artificial intelligence and massive datasets—prices tailored not to cost, but to a consumer’s digital footprint, browser history, past searches, and perceived willingness to pay.⁷⁸ These systems harvest extensive behavioral data, allowing airlines to charge two passengers wildly different amounts for the same service while hiding the basis for those differences. At the same time, carriers are reengineering loyalty programs to extract more revenue for fewer benefits, using opaque mileage formulas and dynamic reward pricing that erode the value of miles and make comparison shopping nearly impossible.⁷⁹ Without vigilant oversight by the DOT, these tactics will turbocharge the opaque pricing practices and junk fees already burdening travelers. A Department committed to fulfilling its consumer protection mandate, on the other hand, would engage in aggressive investigation into the unfair and deceptive practice of personalized airline pricing.

Finally, DOT should continue to treat state attorneys general as essential partners in policing unfair and deceptive practices in air travel. In recent years, bipartisan coalitions of state attorneys general have led some of the strongest actions against harmful industry practices—including holding vaping product companies accountable for youth-targeted marketing⁸⁰ and pushing for stronger safety protections for kids using social media.⁸¹ And we have seen firsthand how state-federal partnerships can deliver concrete wins for the public.⁸² The bipartisan group that has joined DOT’s cooperative agreement with the states can play a similarly vital role in safeguarding the flying public.

The vision of a “Golden Age of Travel” will not be achieved by slowing the Department’s work, weakening its authority, or handing the airline industry new tools to obstruct oversight. It will be achieved by a DOT that rejects the heavy-handed deregulatory agenda of the airline industry, embraces the mandate Congress gave it decades ago, and accelerates its efforts to tackle unfair, deceptive, and anti-competitive practices in the skies.

* David S. Nahmias is a Director of Programs and Policy with the Omidyar Network, and was formerly the Legal Director at the Center for Consumer Law and Economic Justice at UC Berkeley Law (2022-2026). Julian Sanghvi ‘26 is a law student at UC Berkeley Law and a student Fellow with the Center. The Essay represents the views of the authors only and does not necessarily reflect those of Omidyar Network or the Regents of the University of California. This Essay is adapted from a public comment the authors—along with Samuel A.A. Levine, then a Senior Fellow with the Center for Consumer Law and Economic Justice at UC Berkeley School of Law and the former director of the Federal Trade Commission’s (FTC) Bureau of Consumer Protection (2021-2025)— filed in a 2025 rulemaking by the U.S. Department of Transportation on unfair and deceptive acts and practices. The authors are extremely grateful to Mr. Levine for his revisions, guidance, and support.