People v. Western Airlines, Inc.

Opinion

BROWN (Gerald), P. J.,

The People sued Western Airlines, Inc., for civil penalties and injunction, alleging Western violated Business and Professions Code section 17500 and Civil Code section 1770, subdivision (m), and engaged in unfair competition under Business and Professions Code section 17200 et seq., by making false and misleading statements implying fare savings in advertising promotions. Western demurred, asserting the complaint was preempted by 49 United States Code section 1305 and violated the commerce clause of the United States Constitution (art. I, § 8). Western also asserted under 49 United States Code section 1381 the Civil Aeronautics Board (Board) had primary jurisdiction over complaints about deceptive advertising and the court lacked subject matter jurisdiction. After hearing, the superior court found the matters raised in the complaint were preempted by federal law. The court sustained Western’s demurrer without leave to amend. The People appeal.

Under 49 United States Code section 1381, enacted as part of the Federal Aviation Act of 1958, the Board in the public interest may investigate and determine whether any air carrier “has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof”; the Board has power to order air carriers to cease such improper conduct.

Under 49 United States Code section 1506, also enacted as part of the Federal Aviation Act of 1958, nothing in chapter 20 of title 49, United States Code (the Federal Aviation Program) “shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”

Under 49 United States Code section 1302(a)(7), as amended by the Airline Deregulation Act of 1978, the Board in exercising its powers and duties shall consider “as being in the public interest . . . prevention of unfair, deceptive, predatory, or anticompetitive practices in air transportation ...”

Under 49 United States Code section 1305(a), added by the Airline Deregulation Act of 1978, no state or its political subdivision “shall enact or enforce any law . . . relating to rates, routes, or services” of an authorized interstate air carrier.

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