Operations and safety standards in the aviation industry are strictly regulated the world over. Airlines are subjected to the same marketing and advertising laws just like other businesses and in some case are more regulated. Consumers hate to be bogged up by unwanted messages either in the form of spam, pop-ups, junk faxes or even telemarketing. In most cases, the consumer would reply that they hate any marketing method that a company tries. In some instances, unsolicited marketing can make the consumer develop spam rage. There are many reasons as to why consumers dislike marketing, but a primary cause is that consumers get it in excess. A study conducted by Yankelovich in 2004 established that 61% of the consumers felt that it is out of control while 65% think that marketing and advertising campaigns are constantly bombarding them. As the costs of distributing marketing decline thanks to technological developments and as companies try to seek new ways to reach their customers, the customers will be faced with more marketing campaigns. Companies take any idle time as an opportunity to target the potential customer for some attention. The growth in marketing effort seemingly creates an impending crisis because human care is a scarce yet fixed resource. Consequently, a potential customer experiences information overload where excessive marketing will overrun their attention. Regulators are trying to regulate marketing efforts by attempting to help the customers block unwanted marketing campaigns. Consumers’ response to marketing campaigns varies with the advertising medium used (Tushnet & Goldman, 2014).
There are many unanswered questions regarding advertising ranging from consumer response, medium, advertising as a negative externality, being a cost of the c0onent, or even part of a price of enjoying the free editorial material, consumer distrust and whether advertising works. In most case, half of the budget expended on marketing efforts goes to waste. The challenge is that it is difficult to identify the costs that do not add value to the company. Depending on the level of brand awareness, some marketing and advertising activities might not yield any positive response. Consumer behavior is one of the least understood elements and therefore it is difficult to ascertain the outcome even if a company has extensive databases to help it in making an informed decision (Tushnet & Goldman, 2014).
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Key issues
According to Tushnet, it is difficult to classify the world into either advertising or something else. Promotion for instance does not have a universally accepted definition and that advertisers are continually developing new strategies for delivering advertising messages. The innovations are exerting pressure on the legal system that mishandles the categorization issues (Tushnet & Goldman, 2014).
Advertisers must tell the consumers the truth. However, determining what is true or not is a subjective matter that depends on the context and situation. It also depends on the company and the ultimate customers that the company is targeting. Another challenge is that what is right for one client might not be the case for another. False advertising laws are interested in how the consumer perceives the claims as made by the advertiser. The challenge of depending on the perception f the customer complicates the issue as one group of customers might understand the application differently. The specific claim by the advertiser in addition to the implied assertion derived by the consumer must be evaluated to determine the truth (Tushnet & Goldman, 2014).
According to Jean Wegman burn, life experiences lack the exact precision of mathematics. Therefore trying to search for unchanging and ascertainable truth is close to impossible. Courts are faced with the challenge of ascertaining the truth of some claims based on highly technical areas including science, engineering or medicine. Courts lack the expertise in such areas. Similarly, they must establish the truth of advertising activities that are written in catchy phrases that harbor brad claims that are difficult to analyze.
Knowing that truth is not binary leads to ethical issues for lawyers in advertising. If an advert is right or at least truthful enough to meet the legal threshold, can lawyers object to the claims as unethical? Therefore airlines are faced with the problem of determining whether to approve an advertisement or not. Similarly, they must decide if their internal ethical standards are more or less flexible for each ad (Tushnet & Goldman, 2014).
Most of the customers are becoming tolerant of advertising campaigns by airline companies. With the continuous bombardment of their empty spaces by adverts, they feel that most of the content is useless and in the most case takes their valuable time. However, such companies should try to approve adverts that are not deceptive and are truthful to their claims. Not only can advertising help to create awareness but it also persuades and reminds the customers of the existing packages and why they should select one airline over the other. Such power helps to communicate to the clients and also address some of the issues that might come up and need clarification (Tushnet & Goldman, 2014).
Advertising is subject to different regulations ranging from federal to state to local statutory, regulatory provisions. The aviation industry has its sets of rules that airlines must adhere to at all moment. Through regulations, advertising abuses are eliminated, and competitors do not rely on the errors of a company to maximise their sales. Similarly, government agencies like consumer protection offer oversight on advertisements by companies and therefore have advertising related regulations. An individual customer can sue a company for a misleading ad. Such lawsuits are always aggregated claims which are in the form of action lawsuits (Tushnet & Goldman, 2014).
Airlines advertise for different purposes including direct response adverts or called merely direct marketing in which the sole aim is to get an immediate response from a customer for example sale of an air ticket. Airlines can also engage in brand or image advertising in which the objective is to reinforce the carrier in the consumers' mind. It tries to increase consumer loyalty especially when they are faced with several competing options. In this case, an airline might want to place itself as a low-cost airline or a premium class depending on its market segment. A third component is informational advertising in which the objective to get the facts on availability, specifications, and pricing. An airline would like to let its customers have all relevant information to enable them to make informed decisions on whether to choo0se it or a competitor. Lastly, an airline can use ideological or issue advertising in the advert has service objectives. The publishers will accept payments for the advert, or they can donate their time and space for free (Tushnet & Goldman, 2014).
Consumer protection in the airline industry
There have been efforts to prot6ect consumers against abuses in the airline industry. The first bill was introduced in 1989 in which airlines objected such a move. Despite efforts to regulate the commerce at an early stage, such agenda did not succeed as most of the carriers were hit by external forces that made it difficult to operate. In 2010-2012, the department of transport (USDOT) formulated new regulations. The airline deregulation act 1978 did not touch on the issue remedies savings as provided by the federal aviation act. In 1987 NAAG adopted a comprehensive and detailed guideline for advertising and marketing in the airline industry. It required that any restrictions imposed on promotional fares be legible whereas any round-trip purchase needs must be bright and visible including the entire price. Any discount or sale fare should in an actual sense constitute a real saving over other regular tickets. Airlines are also required to have any advertised fares in sufficient quantities to meet the expected demand to avoid the tendency of carriers to use bait and switch tactics. Similarly, any restrictive changes in a flyer program need to be adopted prospectively only (Dempsey, 2012).
Morales V. Trans World Airlines
The Supreme Court in the above case held that the guidelines as issued by NAAG were preempted by the deregulation act. The court stated that the phrase related to should be broadened to have a connection or reference. Similarly, state law refers to routes or services as long as it has a relationship. However, some states might affect the operations of airlines. The court observed that the regulation requiring carriers to foresee demand would affect their ability to market their services. It did not, however, address whether provisions on the nonprice aspects would relate to the rates that such airlines charge. Lastly, the Supreme Court pointed out that its decision would not give carriers an opportunity to lie and deceive its consumers. Accordingly, USDOT has the authority to monitor advertisements which are against competitive pricing.
American Airlines V. Wolens
The case was a class action suit pitying the airline under a consumer fraud statute and common law breach of contract claims on the basis that the country imposed restrictions on the redemption of the mileage for frequent flyers mileage award. The court observed that the statutory declaration was preempted by the deregulation act but avoided the clause that shelters airlines from legal suits alleging that there is no violation of obligations imposed by the state but seeking recovery for a breach of self-imposed restrictions. According to the court, market efficiency needs an effective means to enable the imposition of a private agreement. Therefore, the consumer protection or anti-fraud regulations is pre-empted by the Deregulation Act
Unfair and deceptive practices
The USDOT has the power to prohibit any unfair or deceptive practice or method of competition. Federal law governs acts like false and misleading advertising or any other consumer abuses including denied boarding compensation or overbooking, lost or damaged baggage, persons with disability, code sharing, gambling and any display bias by computer reservation system (Dempsey, 2012).
With effect from 2012, USDOT requires that the quoted fare is the full price that a customer will pay. Airlines are prohibited from advertising or soliciting air 6ransport or tour unless such a quote covers everything. The consumer must also be aware of the full price inclusive of any additional costs and taxes at the first instance they are presented with an amount. Airlines may list approved or imposed passenger charges. Carriers also may not incorporate an opt-out clause for optional services (Dempsey, 2012).
According to DOT, advertising for each way fares for round trip purchase can be done as long as there are adequate seats and the trip is prominent. Airlines may not advertise on each way airfare for a round trip. Such carriers can only do so if the requirements are explicitly noted in the ad. It is unfair for an airline to offer an outbound each way fare that is higher than the return each way fare. Carriers are therefore required to advertise for only a one-way airfare that is available with no round trip purchase (Dempsey, 2012).
References
American Airlines V. Wolens (1995, January 18). Retrieved December 10, 2017, from https://www.law.cornell.edu/supct/html/93-1286.ZO.html
Dempsey, P. S, Dr. (2012). CONSUMER PROTECTION IN THE AIRLINE INDUSTRY: The United ... Retrieved December 10, 2017
Morales V. Trans World Airlines (1992, March 03). Retrieved December 10, 2017, from https://www.law.cornell.edu/supct/html/90-1604.ZS.html
Tushnet, R., & Goldman, E. (2014). Advertising & marketing law: cases and materials (2nd ed.).
