On July 9, 2021, President Biden signed a major executive order titled "Promoting Competition in the American Economy."1 The executive order targets conduct in nearly every sector of the United States economy, including various transportation industries. The executive order noted that Congress has passed a number of laws directed at promoting competition across all sectors of the economy, including the Sherman Act and the Clayton Act, as well as industry-specific fair competition and anti-monopolization laws, including the Shipping Act of 19842 and the ICC Termination Act of 1995.3 Those industry-specific laws are in turn overseen by agencies including the Department of Transportation, the Surface Transportation Board, and the Federal Maritime Commission.
The executive order directs agencies to coordinate their oversight of cases, conduct, mergers, and industries where jurisdiction overlaps, including between industry-specific agencies and the Department of Justice or Federal Trade Commission.4 The executive order also creates a White House Competition Council whose members will include the Secretary of Transportation, and which will also invite the participation of the Chairs of the Surface Transportation Board and the Federal Maritime Commission.
The executive order also directs a number of actions from the Secretary of Transportation, the Chair of the Surface Transportation Board, and the Chair of the Federal Maritime Commission.5 Those actions include:
The Secretary of Transportation will:
- appoint or reappoint members of the Advisory Committee for Aviation Consumer Protection to evaluate aviation consumer protection programs;
- promote transparency and consumer safeguards through potential rulemaking including to enhance consumer access to flight information and ensure that consumers are not exposed to unfair or deceptive marketing, pricing, or charging of ancillary fees;
- report on investigations and actions to ensure timely refunds for flights cancelled due to the Covid-19 pandemic;
- publish a proposed rule requiring airlines to refund baggage fees for substantial baggage delays, and other ancillary fees charged for services not used by passengers;
- develop proposed amendments to what constitute "unfair" or "deceptive" practices;
- consider proposed rules regarding whether consumers have sufficient information at the time of ticket purchase about ancillary fees, including baggage fees, change fees, and cancellation fees;
- evaluate the effectiveness of existing commercial aviation programs, consumer protections, and rules of the Federal Aviation Administration;
- consult with the Department of Justice to enhance effective coordination between the DOJ and DOT to ensure competition in air transportation and the ability of new entrants to gain access;
- consider measures to support airport development and increased capacity and improve airport congestion management, gate access, implementation of airport competition plans; and
- take action to facilitate development of, and effective competition in, new aerospace-based transportation technologies including low-altitude unmanned aircraft system deliveries, advanced air mobility, and high-altitude long endurance operations.
The Chair of the Surface Transportation Board will:
- consider commencing or continuing a rulemaking to strengthen regulations pertaining to reciprocal switching agreements;
- consider rulemakings pertaining to any other relevant matter of competitive access, including bottleneck rates, interchange commitments, or other matters;
- vigorously enforce new on-time performance requirements adopted pursuant to the Passenger Rail Investment and Improvement Act of 2008 that will take effect on July 1, 2021 to ensure that passenger rail service is not subject to unwarranted delays and interruptions in service due to host railroads' failure to comply with the required preference for passenger rail; and
- consider a rail carrier's fulfillment of its responsibilities under 49 U.S.C. 24308 (relating to Amtrak's statutory rights) during the process of determining whether a merger, acquisition, or other transaction involving rail carriers is consistent with the public interest.
The Chair of the Federal Maritime Commission will:
- vigorously enforce the prohibition of unjust and unreasonable practices in the context of detention and demurrage pursuant to the Shipping Act;
- request from the National Shipper Advisory Committee recommendations for improving detention and demurrage practices and enforcement of related Shipping Act prohibitions; and
- consider further rulemaking to improve detention and demurrage practices and enforcement of related Shipping Act prohibitions.
President Biden has signaled that his administration will focus on antitrust enforcement through its executive order and other statements and agency appointments. Transportation industry participants should be aware that increased scrutiny of mergers and conduct may follow.
1 Executive Order 14036, 86 FR 36987, available at https://www.govinfo.gov/content/pkg/FR-2021-07-14/pdf/2021-15069.pdf.
2 Public Law 98-237, 98 Stat. 67, 46 U.S.C. 40101 et seq.
3 Public Law 104-88, 109 Stat. 803
4 Executive Order 14036, § 3.
5 Executive Order 14036, § 5.
Originally published by ATLP.
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