An array of powerful moneyed lobbyists have warred with the Biden administration over its new regulatory crackdown as they scramble to protect their profits
November 19, 2023 at 6:00 a.m. EST
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Frustrated with airlines that charge passengers steep fees to check bags and change flights, President Biden last fall embarked on a campaign to crack down on the practice — and force companies to show the full price of travel before people pay for their tickets.
Fliers rejoiced, flooding the Department of Transportation with letters urging it to adopt the policy. Airlines including American, Delta and United, however, did not seem so enthused.
It would be too difficult to disclose the charges more clearly, warned Doug Mullen, the deputy general counsel at Airlines for America, an industry lobbying group representing the three carriers. Testifying at a federal hearing in March, he said the new policy would only cause customers “confusion and frustration” — and, besides, the extra costs for bags and other services historically have resulted in “very few complaints.”
“The department should not regulate in this area,” Mullen added.
Since then, the Biden administration has broadened its efforts to expose or eliminate “junk fees” throughout the economy, touching off a groundswell of opposition from airlines, auto dealers, banks, credit card companies, cable giants, property owners and ticket sellers that hope to preserve their profits.
Behind the scenes, these corporations have fought vigorously to thwart even the most basic rules that would require them to be more transparent about hidden charges, according to a Washington Post review of federal lobbying records and hundreds of filings submitted to government agencies. The fees together may cost Americans at least $64 billion annually, according to a rough White House estimate, underscoring its efforts to deliver financial relief to families grappling with high prices.
Over the past year, federal regulators have tried to limit credit card late fees in a bid to protect the most cash-strapped borrowers from penalties they cannot easily pay. But the companies that issue those cards — and reaped over $14.5 billion in fees last year — have aggressively fought back, foreshadowing a lawsuit against the government to come.
Charter, Comcast and other cable giants similarly have warred with Washington through their lobbying groups, bucking federal efforts to ensure they present accurate, complete data about service charges. So have some casinos, insurers and the owners of large apartment buildings, which have fiercely fought new federal regulations that might punish them if they conceal their true prices.
Some ticket sellers have called for new rules that would require them to display the full, total price of a performance up front, including any service fees. But some companies still do not fully adhere to the practice: Ticketmaster, for example, only does so for some shows, though its parent company, LiveNation, promised the White House to be more transparent earlier this year.
Spokespeople for American, Delta and United referred questions to their trade group, Airlines for America, where spokeswoman Hannah Walden said in a statement that the industry offers “transparency and choice to consumers from first search to touchdown.” The industry last year collected more than $6.7 billion in baggage fees, according to the Department of Transportation.
Dan Wall, the executive vice president for corporate and regulatory affairs at Live Nation said the company cannot force venues it doesn’t own to be more transparent about fees. He called for federal rules that lay out what companies must disclose, and how, which would ensure “everybody does it so that nobody is disadvantaged for doing the right thing.”
‘They don’t like being taken for suckers’
For Biden, the regulatory push marks one facet of a broader battle against soaring prices, three years after the coronavirus pandemic sent the cost of groceries, gas, rents and other goods soaring. The administration views some of those price spikes as the result of corporate profiteering, as companies look to squeeze their customers in a bid to pump their bottom lines.
The concern prompted the president starting last year to target “junk fees,” taking aim at airlines, cable companies, hotels and ticket brokers that charge consumers for services they do not want, need or expect to pay for.
“We know that junk fees resonate with American consumers. They don’t like being taken for suckers,” said Lael Brainard, the director of the White House National Economic Council. “And we’re going to continue our efforts to make sure that across all industries consumers have the right to see all-in pricing right up front.”
Much of that work has occurred at the Federal Trade Commission, the independent government agency that polices deceptive corporate behavior. This month, the FTC unveiled a proposal that would require hotels, landlords, ticket brokers and other companies to disclose extra charges up front to consumers. The draft rules do not outlaw all fees, but they would prohibit firms from hiding or misrepresenting the charges, opening the door for the government to penalize businesses that do not comply.
“Consumers have become fed up with these hidden fees,” said Samuel Levine, the director of the Bureau of Consumer Protection at the FTC. “If a consumer is led to believe something costs $10, and it costs $20, they’ve been misled.”
The announcement drew sharp rebukes from a wide array of industries, many of which have sought to block the watchdog agency’s efforts since it first announced its inquiry last year.
In legal filings with the commission, a lobbying group for Facebook, Google and other advertising platforms said in February the FTC had not presented “sufficient empirical evidence” that junk fees actually pose a problem. The American Gaming Association, whose board of directors includes executives from MGM Resorts, Las Vegas Sands and other casinos, told the government it should be “excluded” from the new rules. And the National Automobile Dealers Association blasted the FTC for considering “breathtakingly broad” regulations, at one point posing the existential question, “what, exactly, is a ‘fee’?”
A similar backlash has greeted the Consumer Financial Protection Bureau over its push to cut credit card late fees. Consumers that fall behind on their bills can face a penalty as high as $41 per month, an amount that can result in some of the most cash-starved Americans falling deeper into debt.
The fees have proved lucrative for credit card issuers, which reaped more than $130 billion last year in these charges plus interest on unpaid balances, according to an October report from the CFPB. That prompted the agency to propose limiting late fees, which could drop to $8 per missed payment. Companies could charge more, but they would face heightened federal scrutiny.
“Penalties have to be reasonable and enforceable,” said Rohit Chopra, the director of the CFPB, in an interview this month. “Essentially, they’re not supposed to be the profit engine of the credit card company.”
Tens of thousands of credit card holders have cheered the bureau since it unveiled its plans, which arrived on the heels of its efforts to limit bank overdraft fees and penalize companies, including Wells Fargo, for surprising their customers with unexpected charges. Facing a similar crackdown, a wide array of financial institutions quickly mounted a vigorous defense, with some arguing it would pose a “moral hazard” if cardholders were not penalized for lateness.
The opponents included Citigroup, JPMorgan Chase, Wells Fargo and Visa, which sounded off through their industry lobbying groups, including the American Bankers Association. In May, the organization joined two others in telling the CFPB that a limit on late fees would force them to lessen the rewards they offer to new and existing customers.
Those organizations also questioned whether the bureau had the legal authority to act in the first place, raising the potential they could try to challenge its rules later in court. “The late fees are imposed because they work to deter late payment,” the ABA and its allies told the agency.
The CFPB expects to finalize its credit card fee limit early next year. In the meantime, the vociferous opposition has underscored a harsh reality: Even the most popular acts of government threaten to become mired in intractable legal fights, potentially delaying or denying financial relief to Americans.
“Consumers might not benefit while the issue is in litigation, which can last for years,” said John Breyault, a vice president of public policy at the National Consumers League.
Even before they targeted junk fees, the nation’s two consumer protection watchdogs faced a slew of lawsuits that saw judges curtail their authorities to act. With the CFPB, lenders challenged its constitutionality in a case awaiting a Supreme Court ruling. The FTC, meanwhile, suffered a blow when a majority of the justices nullified one of its powers to fine corporate wrongdoers.
This time, Neil Bradley, the executive vice president of the U.S. Chamber of Commerce, said both agencies had again overstepped their authorities in pursuing “price controls.” The group, whose board of directors includes executives from Comcast, Hilton and Delta, is weighing legal challenges that could hold up or negate some of the new regulations. “We would consider a legal challenge depending on the contours of whatever they ultimately propose,” Bradley said.
A top lobbying group for cable giants including Comcast and Charter have laid the early groundwork for a similar lawsuit against the Federal Communications Commission, which is weighing rules to demystify the vague fees that appear on monthly consumer bills. The organization, known as NCTA, told the FCC earlier this year that it “lacks authority” to act. Asked about the claim, Brian Dietz, a senior vice president at the group, said “every legal option is on the table for this” and for “other proceedings the FCC is pursuing.”
‘Companies are making billions of junk fees’
Amid a torrent of legal threats, Biden has repeatedly called on Congress to pass a comprehensive bill that sets the rules for when and how companies can charge extra fees. But even some of the more popular, bipartisan efforts to promote price transparency have faltered in an ever-divided, heavily lobbied Capitol.
A proposal from two unlikely allies, Sens. Maria Cantwell (D-Wash.) and Ted Cruz (R-Texas), would mandate that ticket sellers show their full prices upfront. The duo released the Ticket Act this summer, after a public outcry about major outages and steep fees on Ticketmaster sales for Taylor Swift’s Eras Tour.But the bill remains stuck in the upper chamber after Sen. Rand Paul (R-Ky.) blocked a vote out of a belief that such regulation is unnecessary, according to two legislative aides who spoke on the condition of anonymity to describe his stance.
The inaction has emboldened some states, including California, to adopt their own laws, while Biden has tried to use the power of the Oval Office to pressure companies into changing their practices even without new legislation.
In June, the president secured a commitment from an array of companies, including Ticketmaster, to more clearly show their service fees to consumers. Speaking at a White House roundtable that month, Biden heralded the announcement as “real transparency,” stressing it “leads to more competition” and “brings down costs for working Americans.”
In practice, though, the Ticketmaster policy has proven more complex: Only concerts listed for sale starting in late September show the full price of a ticket, including fees, by default. That full price only applies to venues owned by Live Nation, not the fuller array of performances sold through Ticketmaster. In those cases, the company requires users to check a box to see a full price for shows, with the option hidden behind a menu where customers may not think to look. As a result, fans who wish to see popular artists like Doja Cat and Kesha this year may still see price spikes once they reach the checkout page.
Wall, the Live Nation executive, said Ticketmaster cannot force other venues to display fees for a show by default. He said it would also be “difficult and disruptive” to change the way it prices performances that started selling tickets before the company implemented its new pledge to the White House.
Laura Dooley, the head of global government relations for StubHub, said the company similarly allows consumers to turn on a feature to see the full prices of shows. The seller previously tried to include fees in its ticket prices by default in 2014 — only to be burned because its competitors did not, creating the impression that prices on StubHub were higher.
Some critics still faulted Ticketmaster for its approach: Chuck Bell, a program director at Consumer Reports, lamented that it “goes against the spirit” of the company’s promise to the administration. Last month, Sen. Amy Klobuchar (D-Minn.) faulted LiveNation and Ticketmaster in a public letter, noting that it is “still too difficult for consumers to find the all-in price of a ticket before checkout.”
The White House has reserved most of its ire for top airlines, lambasting them for a raft of fees that Biden has described as costly and unfair. In his State of the Union address, the president explicitly blasted major carriers for charging families extra to sit next to each other, prompting companies including American, Alaska and Frontier to end the practice soon after.
The Department of Transportation has also tried to set new rules around how airlines process refunds and handle flight cancellations, and the ways they charge fees to check bags, change flights and more. The effort at times has sparked widespread resistance from an industry that reaped nearly $7 billion in baggage fees just last year, government figures show.
Under the early draft proposal, airlines like American, Delta, United and Southwest would have to display the “all-in” cost of a flight, including any fees, before passengers see their final invoice. The transparency rules could also apply to travel search engines, like Google or Kayak, which allow fliers to look up flight options across many carriers at once, though the agency has not finalized the scope of its regulations.
“You should know the full cost of your ticket right when you’re comparison shopping to begin with,” Biden said last September, noting it would help families “pick the ticket that actually is the best deal for you.” Like much of the administration’s work, the plan would not outlaw any of the fees, since the agency lacks such authority.
But air carriers soon told the Department of Transportation repeatedly that its work to require transparency may be illegal and unworkable anyway. Airlines for America, the top industry lobbying group, at one point shared a slide deck with the agency this March saying the government had no data to “demonstrate substantial harm” to passengers, who do not see bag charges as a “meaningful decision” when they first search for a flight.
A top official at American Airlines told the agency that it would be “technically infeasible” to display the data to consumers. Another from Frontier Airlines, which advertises lower-cost fares subsidized in part by extra fees, described regulation as a “solution searching for a problem,” noting there are “scarce IT development resource[s]” to do as the government proposes. (Frontier declined to comment.)
Asked about the industry resistance, the agency could not comment on specific claims since it has not finalized its rules, which are expected next year. But Jen Howard, the top competition official at the Department of Transportation, stressed it is “important consumers know what they’re getting into upfront.”
“Companies are making billions off of junk fees,” she added.
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