Duff on Hospitality Law

Good Sunday morning from somewhere over Colorado . . . Our weekly Online Travel Update for the week ending Friday, June 21, 2024, is below. It was another relatively quiet week in the online travel space, except, that is, if you are Booking.com (or its parent, Booking Holdings). It has been a tough couple of weeks for the large OTA. Enjoy

• • When All Other Strategies Fail. It has been a tough couple of weeks for Netherlands based Booking.com. As the fallout of Booking.com’s recent gatekeeper designation under the EU’s Digital Markets Act (DMA) continues to unfold (including this past week’s announcement that it was abandoning all parity provisions for European hotels), an exasperated Glenn Fogel had little left to say other than that the EU’s rules were “dumb.” I’m sure we’ve all had weeks like that.

Have a great week everyone. I look forward to seeing many of you at the HSMAI event in Charlotte this week.

It was a busy week in the online travel world as evidenced by the number of our stories. Enjoy.

• • Cruise Operators Prepare for Total Pricing.  The recent announcement by some of the largest cruise companies to provide passengers total pricing (inclusive of all fees) underscores the breadth of California’s recently enacted pricing transparency law.  It isn’t just hoteliers and ticket agencies that need to comply.  Rather than limiting this change to California (or more properly, California consumers), the cruise companies plan to rollout total pricing nationwide.  The announced changes will go into effect on July 1, 2024.
    
    
  • ADA Booking Accessibility Rules at Issue in Recently Announced Marriott Settlement.  Federal prosecutors in Colorado announced last week a landmark settlement with Marriott over the booking of accessible rooms across the Marriott portfolio.  At issue were Marriott hotels’ alleged failure to provide needed detail about ADA accessible hotel rooms and the inability (prior to October 2022) to guarantee an ADA accessible room through Expedia.  As part of the settlement, Marriott has agreed, among other things, to list all of its accessible rooms through its centralized booking system, to provide details about each accessible room, to make accessible rooms available through the largest online travel agents (Expedia and Booking.com) and to allow Marriott Bonvoy members to book accessible rooms with points. The Colorado settlement agreement (a copy of which is embedded in the attached Skift article) will likely serve as a baseline for future enforcement and compliance efforts (similar to Marriott’s settlement with Pennsylvania regarding mandatory fee disclosures).  I’d encourage everyone to read it. 
    
    
  • OTAs Make Push for Corporate Travelers.  It should come as no surprise to our readers that the largest online travel agents (those that historically have focused primarily on leisure segment) are making huge pushes to capture a portion of the corporate travel segment, particularly in the SMB arena.  This recent trend is on top of efforts by other platforms to build better managed travel platforms (booking, payment, expense management, loyalty program recognition) – in many instances bypassing legacy GDS connections. 
    
    
  • Advocate General Questions Necessity for Parity Provisions.  In a precursor to an expected decision by the EU’s highest court, Advocate General Anthony Michael Collins suggested that Booking.com may find it difficult to prove that its controversial parity provisions are “indispensable” and “proportionate” to it maintaining its economic viability and thus exempt from EU competition law.  The preliminary opinion stems from a Dutch court case brought by German hoteliers seeking damages for Booking.com’s use of the illegal (at least in Germany) parity provisions.  Also at issue in the case is the definition of the relevant market for purposes of assessing the disputed clauses.  According to the Advocate General, the market needs to be viewed from the eyes of hoteliers and consumers (and not necessarily the eyes of the distributor).  Although not binding on the EU court, the opinions of advocate generals are often followed. 

This week’s Update features a variety of stories – STRs, algorithm leaks and Hilton campgrounds (sort of):

• • Las Vegas Price-Fixing Case Is Appealed.  A few weeks ago we reported on a Nevada federal district court’s (second) dismissal of a class action case brought against Las Vegas’ hoteliers’ over their use of certain Cendyn revenue management tools.  Not surprisingly, the plaintiffs have now appealed the court’s dismissal to the Ninth Circuit, the first such appeal of the several algorithmic cases currently pending against hoteliers.  A decision by the appeals court is not expected until 2025.
    
    
  • Booking.com Focused on U.S. STRs.  When it comes to short term rentals (STR), European online travel agent Booking.com is now taking a U.S. first approach.  During the first quarter of 2024, STRs accounted for 36% of all bookings on the platform.  To appeal to U.S. consumers, Booking is particularly focused on payments, liability insurance and its damage policy.  Families (however defined) are making up a larger and larger portion of users interested in STR bookings.
    
    
  • Air France – KLM Again Delays Introduction of GDS Surcharges for TMCs.  Fourth time the charm?  Air France – KLM has announced a further delay in its planned introduction of a €21 surcharge for corporate bookings made via legacy GDSs.  Why the additional delay?  Perhaps a lesson learned from American Airlines aggressive approach?  According to the airline, the delay is needed to resolve “issues” and to “support our partners.”  Last summer the airline removed all short-haul flights from GDS channels, reserving those routes for NDC connections.
    
    
  • Hilton RVs Officially Launched.  This one is of personal interest.  Not actually “Hilton” RVs, but close.  Users of Hilton’s booking channels can now search and book accommodations (RVs, tents, etc.) at several AutoCamp locations (Yosemite, Russian River, Cape Code, Joshua Tree, etc.).  Hilton Honors members can also earn and redeem points for their AutoCamp stays.  Having been part of similar efforts in the last few years, I can only imagine the discussions within Hilton as it considered the effects of adding this new non-hotel inventory to its regular online offerings – OTAs, wholesalers, loyalty program, etc. 

American Airlines’ decision to soften its approach on distribution with travel agents and advisors garnered most of the industry’s attention this week.  Otherwise, the holiday week for many was relatively quiet.  Enjoy.

• • Another Quarter and Another Staggering Amount Spent on Sales and Marketing.  According to their first quarter financials, the “Big Four” online travel agents (Expedia Group, Booking Holdings, Airbnb and Trip.com Group) spent a staggering $4.08 billion in sales and marketing in the first quarter of this year (a 10% increase over the same period last year).  How do these amounts compare to companies outside the online travel industry?  In the first quarter, the Big Four outspent their industry counterparts by a factor of 4 – when measured as a percentage of overall revenue (9.2% vs. 37%).     
  • A Few More Carrots Than Sticks:  American Airlines’ About Face.  Facing cuts in its financial forecasts, American Airlines announced this past week that it was moderating its historically aggressive NDC rollout.  According to American CEO, Robert Isom, the airline’s financial misses were due, in part, to its misguided sales and distribution strategy.  Going forward, American will seek to incentivize agencies’ and advisors’ use of its NDC platform as opposed to penalizing those who don’t.  As part of its newly announced change, American is reversing one of the most controversial aspects of its NDC campaign, the withholding of American Advantage loyalty benefits on bookings made through non preferred NDC advisors.   
  • Travel Technology Association Holds Its First Policy & Innovation Showcase.  Members of the Travel Technology Association held its first Policy & Innovation Showcase this past week for members of Congress and the media.  Companies presenting and/or hosting this event included Sabre, Airbnb, Tripadvisor, Expedia, Booking Holdings, Amadeus, Travelport and Chase Travel Group.  Issues currently on the Association’s agenda include the reform of the Communications Decency Act (Section 230), the American Privacy Rights Act and ancillary fee transparency.  According to comments by Association CEO Laura Chadwick, all travel companies are becoming technology companies.