594 COMPETITION LAW IN TOURISM This broad standard, coupled with the DOT’s focus on the ‘public interest’, has raised the ire of airlines, which perceive the DOT as in effect re-regulating what is supposed to be a deregulated industry12. In some cases, the criticism is warranted. For instance, the FAA attempted to regulate the use of mobile phones for voice calls during flights as an ‘unfair or deceptive practice’, notwithstanding that there is no evidence of a safety concern and no evidence of anticompetitive behaviour that could result from permitting mobile phone use13. Thus, competition law for airlines is not the same as competition law for everyone else. Lest you be tempted to grab pitchforks and storm legislative halls in defence of airlines, it must be recalled that airlines benefit from this fluidity. Metal-neutral joint ventures and other heightened levels of cooperation within alliances fly in the face of competition law14. What would be a flagrant violation of competition law in other industries, such as revenue sharing agreements and direct coordination on prices, is often approved by the DOT through grants of Antitrust Immunity (ATI)15. Other factors, including whether the benefits to consumers cannot be achieved by reasonably available alternatives that are less anticompetitive, are often considered, but these arguably anticompetitive agreements are ultimately allowed because of a perception that the public interest so requires them. 2.2. The situation in Europe Unlike US law, EU competition laws do not have special provisions for the airline industry16. There is no separate set of rules for air carriers administered by a transport authority, although both the European Commission’s Directorate Generals of Transport (DG Move) and of Competition (DG Comp) play significant roles in competition law compliance assessments17. The basis of EU competition law is laid out in Articles 101 and 102 of the Treaty on the Functioning of the European Union. These rules prohibit, respectively, agreements which have as their object or effect the prevention, restriction or distortion of competition and the abuse of a dominant position. 12 See, generally, David Heffernan, “Department of Transportation’s ‘Aggressive’ Approach to Consumer Protection Regulation and Enforcement” (2015) 80 J Air L & Com 347. 13 Id at 352-353 (citing, Use of Mobile Wireless Devices for Voice Calls on Aircraft, Advance Notice of Proposed Rulemaking, Docket No. DOT-OST-2014-0002, 79 Fed. Reg. 10049 (February 24, 2014)). 14 Havel and Sanchez at 160. 15 For a concise overview of this process, see paragraphs 52-55 of “Transatlantic Airline Alliances: Competitive Issues and Regulatory Approaches” Report by the European Commission and US Department of Transportation (16 November 2010) [hereinafter, ‘EC/US DOT Report]. 16 Havel and Sanchez at 152. 17 EC/US DOT Report at para. 56.
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