598 COMPETITION LAW IN TOURISM The question to be asked is whether developments in ticket distribution, particularly IATA’s NDC Initiative, will lead to a more competitive marketplace and a more complete deregulation of CRSs in Europe. 4. NDC AND COMPETITION LAW In May 2014, the DOT approved an agreement that adopted IATA Resolution 787 (Enhanced Airline Distribution)40. The application was filed in March 2013 pursuant to 49 USC § 41309, following an agreement reached at the 34th meeting of IATA Passenger Services Conference. For the purpose of antitrust approval, the DOT has created a three-tiered system to file and implement IATA agreements41. The first tier addresses traffic conference agreements; the second, other specific types of agreements designated by the DOT. The third tier addresses IATA recommended practices, agreements or resolutions that IATA wishes to file with the DOT for approval, and optionally, for ATI under 49 USC §§ 41308 and 41309. IATA filed the request for approval of Resolution 787 under the third tier42. It did not seek ATI. Nevertheless, DOT approval was required. Resolution 787 establishes a process for the development of a technical standard for data exchange in the air transport marketplace that updates the current EDIFACT technical standard and seeks to replace it with the Extensible Mark-up Language (XML) standard. It also establishes goals associated with the use of the new technical standard. These goals are termed the ‘New Distribution Capability’. However, IATA claims that Resolution 787 is only about the adoption of an XLM standard and that it did not seek approval of a new business model43. 40 USDOT, Order to ShowCause (Action on IATAAgreement, 21May 2014) online: https://www.transportation. gov/sites/dot.gov/files/docs/IATA_Res_787_showcause.pdf (hereinafter ‘DOT Order to Show Cause’). 41 Order to Show Cause at 1-2. (“By Order 2012-4-18 (...) the [DOT] granted an expanded exemption from condition #2, one of the conditions on the IATA by-laws which requires IATA to file all agreements, resolutions and recommended practices for appropriate action by the [DOT] before they may be implemented by IATA members”). 42 DOT Order to Show Cause at 2. 43 DOT Order to Show Cause at 2 (“IATA states that it is not seeking an endorsement of the business requirements or marketplace aspirations of NDC, and recognizes that any additional IATA agreements on standardization of distribution practices would need to be filed with the [DOT] before becoming effective.”); Id at 7 (“IATA reasserts that Resolution 787 is about the adoption of an XML standard. IATA argues that it is not seeking adoption of a new business model.”).
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