 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

MORALES, ATTORNEY GENERAL OF TEXAS v.
      TRANS WORLD AIRLINES, INC.
certiorari to the united states court of appeals for
           the fifth circuit
No. 90-1604.   Argued March 3, 1992"Decided June 1, 1992

In order to ensure that the States would not undo the anticipated
benefits of federal deregulation of the airline industry, the pre-
emption provision of the Airline Deregulation Act of 1978 (ADA)
prohibits them from enforcing any law ``relating to [air carriers']
rates, routes, or services.''  49 U.S.C. App. 1305(a)(1).  After the
National Association of Attorneys General (NAAG) adopted guidelines
that contain detailed standards governing, inter alia, the content and
format of airline fare advertising, and that purport to be enforceable
through the States' general consumer protection statutes, petitioner's
predecessor as Attorney General of Texas sent notices of intent to sue
to enforce the guidelines against the allegedly deceptive fare adver-
tisements of several of the respondent airlines.  Those respondents
filed suit in the District Court for injunctive and other relief, claim-
ing that state regulation of fare advertisements is pre-empted by
1305(a)(1).  The court ultimately issued an order permanently
enjoining any state enforcement action that would regulate or restrict
``any aspect'' of respondents' fare advertising or other operations
involving rates, routes, or services.  The Court of Appeals affirmed.
Held:
1.Assuming that 1305(a)(1) pre-empts state enforcement of the
fare advertising portions of the NAAG guidelines, the District Court
could properly award respondents injunctive relief restraining such
enforcement.  The basic doctrine that equity courts should not act
when the moving party has an adequate remedy at law does not
prevent federal courts from enjoining state officers from acting to
enforce an unconstitutional state law where, as here, such action is
imminent, repetitive penalties attach to continuing or repeated
violations of the law, and the moving party lacks the realistic option
of violating the law once and raising its federal defenses.  Ex parte
Young, 209 U.S. 123, 145147, 156, 163165.  As petitioner has
threatened to enforce only the obligations described in the fare
advertising portions of the guidelines, however, the injunction must
be vacated insofar as it restrains the operation of state laws with
respect to other matters.  See, e. g., Public Serv. Comm'n of Utah v.
Wycoff Co., 344 U.S. 237, 240241.  Pp.46.
2.Enforcement of the NAAG fare advertising guidelines through
a State's general consumer protection laws is pre-empted by the ADA.
Pp.614.
(a)In light of the breadth of 1305(a)(1)'s ``relating to'' phrase,
a state enforcement action is pre-empted if it has a connection with
or reference to airline ``rates, routes, or services.''  Cf. Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 9596.  Petitioner's various objections
to this reading are strained and not well taken.  Pp.610.
(b)The challenged NAAG guidelines"which require, inter alia,
that advertisements contain certain disclosures as to fare terms,
restrictions, and availability"obviously ``relat[e] to rates'' within the
meaning of 1305(a)(1) and are therefore pre-empted.  Each guideline
bears an express reference to airfares, and, collectively, they establish
binding requirements as to how tickets may be marketed if they are
to be sold at given prices.  In any event, beyond the guidelines'
express reference to fares, it is clear as an economic matter that they
would have the forbidden effect upon fares:  Their compelled disclo-
sures and advertising restrictions would have a significant impact on
the airlines' ability to market their product, and hence a significant
impact upon the fares they charge.  Pp.1014.
949 F.2d 141, affirmed in part and reversed in part.

Scalia, J., delivered the opinion of the Court, in which White,
O'Connor, Kennedy, and Thomas, JJ., joined.  Stevens, J., filed a
dissenting opinion, in which Rehnquist, C. J., and Blackmun, J.,
joined.  Souter, J., took no part in the consideration or decision of the
case.




  NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.


            SUPREME COURT OF THE UNITED STATES
                       No. 90-1604
 
         DAN MORALES, ATTORNEY GENERAL OF TEXAS,
                PETITIONER v. TRANS WORLD AIRLINES,
                           INC., et al.
        on writ of certiorari to the united states court of
                   appeals for the fifth circuit
                          [June 1, 1992]

       Justice Scalia delivered the opinion of the Court.
       The issue in this case is whether the Airline Deregulation
Act of 1978, 49 U. S. C. App. 1301 et seq., pre-empts the
States from prohibiting allegedly deceptive airline fare
advertisements through enforcement of their general
consumer protection statutes.
                                 I
       Prior to 1978, the Federal Aviation Act of 1958 (FAA), 72
Stat. 731, as amended, 49 U. S. C. App. 1301 et seq., gave
the Civil Aeronautics Board (CAB) authority to regulate
interstate air fares and to take administrative action
against certain deceptive trade practices.  It did not,
however, expressly pre-empt state regulation, and contained
a  saving clause providing that  [n]othing . . . in this
chapter 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.  49 U. S. C.
App. 1506.  As a result, the States were able to regulate
intrastate air fares (including those offered by interstate air
carriers), see, e.g., California v. CAB, 189 U. S. App. D. C.
176, 178, 581 F. 2d 954, 956 (1978), cert. denied, 439 U. S.
1068 (1979), and to enforce their own laws against decep-
tive trade practices, see Nader v. Allegheny Airlines Inc.,
426 U. S. 290, 300 (1976).
       In 1978, however, Congress, determining that  maximum
reliance on competitive market forces would best further
 efficiency, innovation, and low prices as well as  variety
[and] quality . . . of air transportation services, enacted the
Airline Deregulation Act (ADA).  49 U. S. C. App.
1302(a)(4), 1302(a)(9).  To ensure that the States would
not undo federal deregulation with regulation of their own,
the ADA included a pre-emption provision, prohibiting the
States from enforcing any law  relating to rates, routes, or
services of any air carrier.  49 U. S. C. App. 1305(a)(1).
The ADA retained the CAB's previous enforcement authori-
ty regarding deceptive trade practices (which was trans-
ferred to the Department of Transportation (DOT) when the
CAB was abolished in 1985), and it also did not repeal or
alter the saving clause in the prior law.
       In 1987, the National Association of Attorneys General
(NAAG), an organization whose membership includes the
attorneys general of all 50 States, various Territories, and
the District of Columbia, adopted Air Travel Industry
Enforcement Guidelines (set forth in an Appendix to this
opinion) containing detailed standards governing the
content and format of airline advertising, the awarding of
premiums to regular customers (so-called  frequent flyers),
and the payment of compensation to passengers who
voluntarily yield their seats on overbooked flights.  These
guidelines do not purport to  create any new laws or
regulations applying to the airline industry; rather, they
claim to  explain in detail how existing state laws apply to
air fare advertising and frequent flyer programs.  NAAG
Guidelines, Introduction (1988).
       Despite objections to the guidelines by the DOT and the
Federal Trade Commission (FTC) on pre-emption and policy
grounds, the attorneys general of seven States, including
petitioner's predecessor as Attorney General of Texas, sent
a memorandum to the major airlines announcing that  it
has come to our attention that although most airlines are
making a concerted effort to bring their advertisements into
compliance with the standards delineated in the . . .
guidelines for fare advertising, many carriers are still [not
disclosing all surcharges] in violation of 2.5 of the
guidelines.  The memorandum said it was the signatories'
 purpose . . . to clarify for the industry as a whole that [this
practice] is a violation of our respective state laws on
deceptive advertising and trade practices; warned that this
was an  advisory memorandum before [the] initiati[on of]
any immediate enforcement actions; and expressed the
hope that  protracted litigation over this issue will not be
necessary and that airlines will discontinue the practice . . .
immediately.  Memorandum from Attorneys General of
Colorado, Kansas, Massachusetts, Missouri, New York,
Texas, Wisconsin, February 3, 1988 (Exhibit A to Exhibit H
to Motion for Temporary Restraining Order), App. 123a,
125a.  Several months later, petitioner's office sent letters
to several respondents serving  as formal notice[s] of intent
to sue.  Letter from Assistant Attorney General of Texas,
November 14, 1988, App. 115a.
       Those respondents then filed suit in Federal District
Court claiming that state regulation of fare advertisements
is pre-empted by 1305(a)(1); seeking a declaratory judg-
ment that, inter alia, 2.5 of the guidelines is pre-empted;
and requesting an injunction restraining Texas from taking
any action under its law in conjunction with the guidelines
that would regulate the respondents' rates, routes, or
services, or their advertising and marketing of the same.
The District Court entered a preliminary injunction to that
effect, determining that respondents were likely to prevail
on their pre-emption claim.  Trans World Airlines, Inc. v.
Mattox, 712 F. Supp. 99, 101102 (WD Tex. 1989).  (It
subsequently extended that injunction to 33 other States,
id., at 105106; the propriety of that extension is not before
us.)  The Court of Appeals affirmed.  Trans World Airlines
v. Mattox, 897 F. 2d 773, 783784 (CA5 1990).  Subsequent-
ly, the District Court, in an unreported order, permanently
enjoined the States from taking  any enforcement action
which would restrict  any aspect of respondents' fare
advertising or operations relating to rates, routes, or
services.  The Court of Appeals once again affirmed.  949 F.
2d 141 (CA5 1991).  We granted certiorari.  502 U. S.
(1991).
                                II
       Before discussing whether 1305(a)(1) pre-empts state
enforcement of the challenged guidelines, we first consider
whether, assuming that it does, the District Court could
properly award respondents injunctive relief.  It is a  basic
doctrine of equity jurisprudence that courts of equity should
not act . . . when the moving party has an adequate remedy
at law and will not suffer irreparable injury if denied
equitable relief.  O'Shea v. Littleton, 414 U. S. 488, 499
(1974); Younger v. Harris, 401 U. S. 37, 4344 (1971).  In
Ex parte Young, 209 U. S. 123, 156 (1908), we held that this
doctrine does not prevent federal courts from enjoining
state officers  who threaten and are about to commence
proceedings, either of a civil or criminal nature, to enforce
against parties affected an unconstitutional act, violating
the Federal Constitution.  When enforcement actions are
imminent"and at least when repetitive penalties attach to
continuing or repeated violations and the moving party
lacks the realistic option of violating the law once and
raising its federal defenses"there is no adequate remedy at
law.  See id., at 145147, 163165.
       We think Young establishes that injunctive relief was
available here.  As we have described, the attorneys general
of seven States, including petitioner's predecessor, had
made clear that they would seek to enforce the challenged
portions of the guidelines (those concerning fare advertis-
ing) through suits under their respective state laws.  And
Texas law, at least, imposes additional liability (by way of
civil penalties and consumer treble-damage actions) for
multiple violations.  See Tex. Bus. & Com. Code Ann.
17.47, 17.50 (1987 and Supp. 19911992).  Like the
plaintiff in Young, then, respondents were faced with a
Hobson's choice: continually violate the Texas law and
expose themselves to potentially huge liability; or violate
the law once as a test case and suffer the injury of obeying
the law during the pendency of the proceedings and any
further review.
       The District Court, however, enjoined petitioner not only
from enforcing the fare advertising sections of the guide-
lines, but also from  initiating any enforcement action . . .
which would seek to regulate or restrict any aspect of the
. . . plaintiff airlines' air fare advertising or the operations
involving their rates, routes, and/or services.  712 F. Supp.,
at 102.  In so doing, it disregarded the limits on the
exercise of its injunctive power.  In suits such as this one,
which the plaintiff intends as a  first strike to prevent a
State from initiating a suit of its own, the prospect of state
suit must be imminent, for it is the prospect of that suit
which supplies the necessary irreparable injury.  See Public
Serv. Comm'n of Utah v. Wycoff Co., 344 U. S. 237, 240241
(1952).  Ex parte Young thus speaks of enjoining state
officers  who threaten and are about to commence proceed-
ings,'' 209 U. S., at 156 (emphasis added); see also id., at
158, and we have recognized in a related context that a
conjectural injury cannot warrant equitable relief, see
O'Shea, supra, at 502.  Any other rule (assuming it would
meet Article III case-or-controversy requirements) would
require federal courts to determine the constitutionality of
state laws in hypothetical situations where it is not even
clear the State itself would consider its law applicable.
This problem is vividly enough illustrated by the blunder-
buss injunction in the present case, which declares pre-
empted  any state suit involving  any aspect  of the
airlines' rates, routes, and services.  As petitioner has
threatened to enforce only the obligations described in the
guidelines regarding fare advertising, the injunction must
be vacated insofar as it restrains the operation of state laws
with respect to other matters.
                                III
       We now turn to the question whether enforcement of the
NAAG guidelines on fare advertising through a State's
general consumer protection laws is pre-empted by the
ADA.  As we have often observed,  [p]re-emption may be
either express or implied, and is compelled whether
Congress' command is explicitly stated in the statute's
language or implicitly contained in its structure and
purpose.  FMC Corp. v. Holliday, 498 U. S. ,  (1990)
(slip op., at 3) (internal quotation marks omitted); Shaw v.
Delta Air Lines, Inc., 463 U. S. 85, 95 (1983).  The question,
at bottom, is one of statutory intent, and we accordingly
 begin with the language employed by Congress and the
assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.  Holliday,
supra, at  (slip op., at 4); Park 'N Fly, Inc. v. Dollar
Park and Fly, Inc., 469 U. S. 189, 194 (1985).
                                 A
       Section 1305(a)(1) expressly pre-empts the States from
 enact[ing] or enforc[ing] any law, rule, regulation, stan-
dard, or other provision having the force and effect of law
relating to rates, routes, or services of any air carrier . . . .
For purposes of the present case, the key phrase, obviously,
is  relating to.  The ordinary meaning of these words is a
broad one"``to stand in some relation; to have bearing or
concern; to pertain; refer; to bring into association with or
connection with, Black's Law Dictionary 1158 (5th ed.
1979)"and the words thus express a broad pre-emptive
purpose.  We have repeatedly recognized that in addressing
the similarly worded pre-emption provision of the Employee
Retirement Income Security Act of 1974 (ERISA), 29
U. S. C. 1144(a), which pre-empts all state laws  insofar
as they . . . relate to any employee benefit plan.  We have
said, for example, that the  breadth of [that provision's] pre-
emptive reach is apparent from [its] language, Shaw,
supra, at 96; that it has a  broad scope, Metropolitan Life
Ins. Co. v. Massachusetts, 471 U. S. 724, 739 (1985), and an
 expansive sweep, Pilot Life Ins. Co. v. Dedeaux, 481 U. S.
41, 47 (1987); and that it is  broadly worded, Ingersoll-
Rand Co. v. McClendon, 498 U. S. ,  (1990) (slip op.,
at 4),  deliberately expansive, Pilot Life, supra, at 46, and
 conspicuous for its breadth, Holliday, supra, at  (slip
op., at 45).  True to our word, we have held that a state
law  relates to an employee benefit plan, and is pre-empted
by ERISA,  if it has a connection with or reference to such
a plan.  Shaw, supra, at 97.  Since the relevant language
of the ADA is identical, we think it appropriate to adopt the
same standard here: State enforcement actions having a
connection with or reference to airline  rates, routes, or
services are pre-empted under 49 U. S. C. App. 1305(a)
(1).
       Petitioner raises a number of objections to this reading,
none of which we think is well taken.  First, he claims that
we may not use our interpretation of identical language in
ERISA as a guide, because the sweeping nature of ERISA
pre-emption derives not from the  relates to language, but
from  the wide and inclusive sweep of the comprehensive
ERISA scheme, which he asserts the ADA does not have.
Brief for Petitioner 3334.  This argument is flatly contra-
dicted by our ERISA cases, which clearly and unmistake-
ably rely on express pre-emption principles and a construc-
tion of the phrase  relates to.  See, e.g., Shaw, supra, at
9697, and n. 16 (citing dictionary definitions); Ingersoll-
Rand, supra, at  (slip op., at 45).  Petitioner also
stresses that the FAA  saving clause, which preserves  the
remedies now existing at common law or by statute, 49
U. S. C. App. 1506, is broader than its ERISA counterpart.
But it is a commonplace of statutory construction that the
specific governs the general, see, e.g., Crawford Fitting Co.
v. J. T. Gibbons, Inc., 482 U. S. 437, 445 (1987) (a canon
particularly pertinent here, where the  saving clause is a
relic of the pre-ADA/no pre-emption regime).  A general
 remedies saving clause cannot be allowed to supersede the
specific substantive pre-emption provision"unless it be
thought that a State having a statute requiring  reasonable
rates, and providing remedies against  unreasonable ones,
could actually set air fares.  As in International Paper Co.
v. Ouellette, 479 U. S. 481, 494 (1987),  we do not believe
Congress intended to undermine this carefully drawn
statute through a general saving clause.
       Petitioner contends that 1305(a)(1) only preempts the
States from actually prescribing rates, routes, or services.
This simply reads the words  relating to out of the statute.
Had the statute been designed to pre-empt state law in
such a limited fashion, it would have forbidden the States
to  regulate rates, routes, and services.  See Pilot Life,
supra, at 50 ( A common-sense view of the word `regulates'
would lead to the conclusion that in order to regulate [a
matter], a law . . . must be specifically directed toward[it])
  Moreover, if the pre-emption effected by 1305(a)(1)
were such a limited one, no purpose would be served by the
very next subsection, which preserves to the States certain
proprietary rights over airports. 49 U. S. C. App. 1305(b).
       Next, petitioner advances the notion that only State laws
specifically addressed to the airline industry are pre-
empted, whereas the ADA imposes no constraints on laws
of general applicability.  Besides creating an utterly
irrational loophole (there is little reason why state impair-
ment of the federal scheme should be deemed acceptable so
long as it is effected by the particularized application of a
general statute), this notion similarly ignores the sweep of
the  relating to language.  We have consistently rejected
this precise argument in our ERISA cases:  [A] state law
may `relate to' a benefit plan, and thereby be pre-empted,
even if the law is not specifically designed to affect such
plans, or the effect is only indirect.  Ingersoll-Rand, supra,
at  (slip op., at 45); see Pilot Life, supra, at 4748
(common-law tort and contract suits pre-empted); Metropoli-
tan Life, supra, at 739 (state law requiring health insurance
plans to cover certain mental health expenses pre-empted);
Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 525
(1981) (workers' compensation laws pre-empted).
       Last, the State suggests that pre-emption is inappropriate
when state and federal law are consistent.  State and
federal law are in fact inconsistent here"DOT opposes the
obligations contained in the guidelines, and Texas law
imposes greater liability"but that is beside the point.
Nothing in the language of 1305(a)(1) suggests that its
 relating to pre-emption is limited to inconsistent state
regulation; and once again our ERISA cases have settled
the matter:  The pre-emption provision . . . displace[s] all
state laws that fall within its sphere, even including state
laws that are consistent with ERISA's substantive require-
ments.  Mackey v. Lanier Collection Agency & Service, Inc.,
486 U. S. 825, 829 (1988); Metropolitan Life,471 U. S., at
739.
                                 B
       It is hardly surprising that petitioner rests most of his
case on such strained readings of 1305(a)(1), rather than
contesting whether the NAAG guidelines really  relat[e] to
fares.  They quite obviously do.  Taking them seriatim:
2.1, governing print advertisements of fares, requires
 clear and conspicuous disclosure [defined as the lesser of
one-third the size of the largest typeface in the ad or ten-
point type] of restrictions such as limited time availability,
limitations on refund or exchange rights, time-of-day or
day-of-week restrictions, length-of-stay requirements,
advance-purchase and round-trip-purchase requirements,
variations in fares from or to different airports in the same
metropolitan area, limitations on breaks or changes in
itinerary, limits on fare availability, and  [a]ny other
material restriction on the fare.  Section 2.2 imposes
similar, though somewhat less onerous, restrictions on
broadcast advertisements of fares; and 2.3 requires
billboard fare ads to state clearly and conspicuously
 Substantial restrictions apply if there are any material
restrictions on the fares' availability.  The guidelines
further mandate that an advertised fare be available in
sufficient quantities to  meet reasonably foreseeable
demand on every flight on every day in every market in
which the fare is advertised; if the fare will not be available
on this basis, the ad must contain a  clear and conspicuous
statement of the extent of unavailability.  2.4.  Section
2.5 requires that the advertised fare include all taxes and
surcharges; round-trip fares, under 2.6, must be disclosed
at least as prominently as the one-way fare when the fare
is only available on round trips; and 2.7 prohibits use of
the words  `sale,' `discount,' [or] `reduced' unless the
advertised fare is available only for a limited time and is
 substantially below the usual price for the same fare with
the same restrictions.
       One cannot avoid the conclusion that these aspects of the
guidelines  relate to airline rates.  In its terms, every one
of the guidelines enumerated above bears a  reference to
air fares.  Shaw, 463 U. S., at 97.  And, collectively, the
guidelines establish binding requirements as to how tickets
may be marketed if they are to be sold at given prices.
Under Texas law, many violations of these requirements
would give consumers a cause of action (for at least actual
damages, see Tex. Bus. & Com. Code Ann. 17.50 (1987
and Supp. 19911992)) for an airline's failure to provide a
particular advertised fare"effectively creating an enforce-
able right to that fare when the advertisement fails to
include the mandated explanations and disclaimers.  This
case therefore appears to us much like Pilot Life, in which
we held that a common-law tort and contract action seeking
damages for the failure of an employee benefit plan to pay
benefits  relate[d] to employee benefit plans and was pre-
empted by ERISA, 481 U. S., at 4344, 4748.
         In any event, beyond the guidelines' express reference to
fares, it is clear as an economic matter that state restric-
tions on fare advertising have the forbidden significant
effect upon fares.  Advertising  serves to inform the public
of the . . . prices of products and services, and thus per-
forms an indispensable role in the allocation of resources.
Bates v. State Bar of Arizona, 433 U. S. 350, 364 (1977).
Restrictions on advertising  serv[e] to increase the difficulty
of discovering the lowest cost seller . . . and [reduce] the
incentive to price competitively.  Id., at 377.  Accordingly,
 where consumers have the benefit of price advertising,
retail prices often are dramatically lower than they would
be without advertising.  Ibid.  As Judge Easterbrook suc-
cinctly put it, compelling or restricting  [p]rice advertising
surely `relates to' price.  Illinois Corporate Travel v.
American Airlines, Inc., 889 F. 2d 751, 754 (CA7 1989), cert.
denied, 495 U. S. 919 (1990).
       Although the State insists that it is not compelling or
restricting advertising, but is instead merely preventing the
market distortion caused by  false advertising, in fact the
dynamics of the air transportation industry cause the
guidelines to curtail the airlines' ability to communicate
fares to their customers.  The expenses involved in operat-
ing an airline flight are almost entirely fixed costs; they
increase very little with each additional passenger.  The
market for these flights is divided between consumers
whose volume of purchases is relatively insensitive to price
(primarily business travelers) and consumers whose
demand is very price sensitive indeed (primarily pleasure
travelers).  Accordingly, airlines try to sell as many seats
per flight as possible at higher prices to the first group, and
then to fill up the flight by selling seats at much lower
prices to the second group (since almost all the costs are
fixed, even a passenger paying far below average cost is
preferable to an empty seat).  In order for this marketing
process to work, and for it ultimately to redound to the
benefit of price-conscious travelers, the airlines must be
able to place substantial restrictions on the availability of
the lower priced seats (so as to sell as many seats as
possible at the higher rate), and must be able to advertise
the lower fares.  The guidelines severely burden their
ability to do both at the same time: The sections requiring
 clear and conspicuous disclosure of each restriction make
it impossible to take out small or short ads, as does (to a
lesser extent) the provision requiring itemization of both
the one-way and round-trip fares.  Since taxes and sur-
charges vary from State to State, the requirement that
advertised fares include those charges forces the airlines to
create different ads in each market.  The section restricting
the use of  sale,  discount, or  reduced effectively pre-
vents the airlines from using those terms to call attention
to the fares normally offered to price-conscious travelers.
As the FTC observed,  [r]equiring too much information in
advertisements can have the paradoxical effect of stifling
the information that customers receive.  Letter from FTC
to Christopher Ames, Deputy Attorney General of Califor-
nia, March 11, 1988, App. to Brief for Respondent Airlines
23a.  Further, 2.4, by allowing fares to be advertised only
if sufficient seats are available to meet demand or if the
extent of unavailability is disclosed, may make it impossible
to use this marketing process at all.  All in all, the obliga-
tions imposed by the guidelines would have a significant
impact upon the airlines' ability to market their product,
and hence a significant impact upon the fares they charge.
       In concluding that the NAAG fare advertising guidelines
are pre-empted, we do not, as Texas contends, set out on a
road that leads to pre-emption of state laws against gam-
bling and prostitution as applied to airlines.  Nor need we
address whether state regulation of the nonprice aspects of
fare advertising (for example, state laws preventing obscene
depictions) would similarly  relat[e] to rates; the connec-
tion would obviously be far more tenuous.  To adapt to this
case our language in Shaw,  [s]ome state actions may affect
[airline fares] in too tenuous, remote, or peripheral a
manner to have pre-emptive effect.  463 U. S., at 100,
n. 21.  In this case, as in Shaw,  [t]he present litigation
plainly does not present a borderline question, and we
express no views about where it would be appropriate to
draw the line.  Ibid.  Finally, we note that our decision
does not give the airlines carte blanche to lie to and deceive
consumers; the DOT retains the power to prohibit adver-
tisements which in its opinion do not further competitive
pricing, see 49 U. S. C. App. 1381.

                               * * *
       We hold that the fare advertising provisions of the NAAG
guidelines are pre-empted by the ADA, and affirm the
judgment of the Court of Appeals insofar as it awarded
injunctive and declaratory relief with respect to those
provisions.  Insofar as that judgment awarded injunctive
relief directed at other matters, it is reversed and the
injunction vacated.
                                           It is so ordered.

       Justice Souter took no part in the consideration or
decision of this case.

       APPENDIX TO OPINION
National Association of Attorneys General
Task Force on the Air Travel Industry
Revised Guidelines

                           INTRODUCTION
       In June, 1987, the National Association of Attorneys
General (``NAAG'') directed the appointment of a Task Force
of states to study the advertising and marketing practices
of the airline industry in the United States.  In addition to
the study, the Task Force was directed to determine the
nature and extent of existing unfair and deceptive airline
advertising practices and to report a recommended course
of action to NAAG at its meeting in December 1987.
       The Task Force Report and Recommendations were
adopted by NAAG at its winter meeting on December 12,
1987, with a continuing direction to the Task Force (1) to
receive and examine any comments from industry, con-
sumer groups, federal agencies, and other interested
parties; (2) to evaluate these comments; and (3) to report to
NAAG at its Spring 1988 meeting on the advisability of any
modifications of the Guidelines.
       The Task Force received written comments from the Air
Transport Association, the American Association of Adver-
tising Agencies, American Airlines, the Association of
National Advertisers, the Council of Better Business
Bureaus, the Federal Trade Commission, the National
Association of Broadcasters, Southwest Airlines, United
Airlines, USAir, and the U.S. Department of Transporta-
tion.  Assistant attorneys general of the Task Force states
evaluated these comments, and reported their recommenda-
tions to NAAG.
       On March 15, 1988, NAAG adopted the recommended
changes to the frequent flyer Guidelines and directed that
the comments to both the fare advertising and frequent
flyer Guidelines be changed to respond to valid concerns
raised by those filing comments.  The Guidelines and
comments herein reflect the changes directed by NAAG.
       NAAG also directed the chair of NAAG's Consumer
Protection Committee to appoint four attorneys general to
serve on a continuing task force to evaluate the effective-
ness of the Guidelines and to continue discussions with
members of the industry and other interested parties.
These attorneys general are: John Van de Kamp (Cali-
fornia), Neil F. Hartigan (Illinois), Jim Mattox (Texas), and
Kenneth O. Eikenberry (Washington).
       It is important to note that these Guidelines do not create
any new laws or regulations regarding the advertising
practices or other business practices of the airline industry.
They merely explain in detail how existing state laws apply
to air fare advertising and frequent flyer programs.  Each
Guideline is followed by a comment which summarizes:
*          NAAG's intent with respect to that Guideline.
*       Any relevant comments received by the Task Force.
*       Any significant changes that were made to the
        Guidelines.
                    Section 1"Definitions
       1.0  Advertisement means any oral, written, graphic or
pictorial statement made in the course of solicitation of
business.  Advertisement includes, without limitation, any
statement or representation made in a newspaper, maga-
zine or other public publication, or contained in any notice,
sign, billboard, poster, display, circular, pamphlet, or letter
(collectively called ``print advertisements''), or on radio or
television (``broadcast commercials'').
       Comment:  This definition encompasses those materials
and media covered by most states' false advertising statutes.
``Print advertisements'' and ``broadcast commercial'' are
separated into different categories because they are afforded
slightly different treatment under these Guidelines.  This
represents a change from an earlier draft of the Guidelines
and is an attempt to address some of the airlines' concerns
regarding the difficulties of lengthy disclosures in broadcast
commercials.
       1.1  Award means any coupon, certificate, voucher,
benefit or tangible thing which is promised, given, sold or
otherwise transferred by an airline or program partner to
a program member in exchange for mileage, credits,
bonuses, segments or other units of value credited to a
consumer as an incentive to fly on any airline or to do
business with any program partner.
       Comment:  This definition, as well as definitions 1.2, 1.3,
1.4, 1.6, 1.9, and 1.10, is self-explanatory.
       1.2  Award level means a specified amount of mileage or
number of credits, bonuses, segments or other units which
a program member must accumulate in order to receive an
award.
       1.3  Blackout date means any date on which travel or use
of other program benefits is not permitted for program
members seeking to redeem their award levels.  This is a
form of capacity control.
       1.4  Capacity control means the practice by which an
airline or program partner restricts or otherwise limits the
opportunity of program members to redeem their award
levels for travel or other benefits offered in the program.
       1.5  Clear and conspicuous means that the statement,
representation or term (``statement'') being disclosed is of
such size, color contrast, and audibility and is so presented
as to be readily noticed and understood by the person to
whom it is being disclosed.  All language and terms should
be used in accordance with their common or ordinary usage
and meaning.  For example, ``companion'' should be used
only when it means any companion (i.e., any person
traveling with the program member), not solely family
members.  Without limiting the requirements of the
preceding sentences:
(a)          A statement in a print advertisement is considered
          clear and conspicuous if a type size is used which
          is at least one-third the size of the largest type size
          used in the advertising.  However, it need not be
          larger than:
          *   10-point type in advertisements that are 200
              square inches or smaller, and
          *   12-point type in advertisements that are
              larger than 200 square inches.
          If the statement is in the body copy of the adver-
tisement, it may be in the same size type as the
          largest type used in the body copy, and does not
          have to meet these typesize requirements.
(b)       A statement in a broadcast commercial is consid-
ered clear and conspicuous if it is made orally and
          is as clear and understandable in pace and volume
          as the fare information.
(c)       A statement on any billboard is considered clear
          and conspicuous if a type is used which is at least
          one-third the size of the largest size used on the
          billboard.
(d)       A statement required by Section 3, relating to
          frequent flyer programs, is considered clear and
          conspicuous if it is prominently located directly
          adjacent to the materials to which it applies.  Type
          size should be no smaller than the most commonly-
used print size in the document, but in no event
          smaller than 10-point type.  Any reservation of any
          right to make future changes in the program or
          award levels should be located prominently at the
          beginning of printed materials.
    Comment:  One of the most deceptive aspects of current air
fare advertisements is the completely inadequate manner in
which those advertisements disclose the restrictions and
limitations which apply to the advertised fares.  The
restrictions disclosed in print advertisements are rarely
located near the fare advertised and often appear only in
extremely small type at the bottom of the advertisement.  In
broadcast commercials, such disclosures are generally absent
from radio advertisements, and if included at all in tele-
vision commercials appear as written disclosures flashed on
the screen much too quickly for the average person to read.
On billboards any mention of restrictions on advertised fares
is unusual.
       Given this background, NAAG believes that it is necessary
to define clearly for the airlines what constitutes clear and
adequate disclosure in all advertising media.  The type-size
minima for print advertisements are aimed at making the
disclosures both easy to read and noticeable.  Consequently,
a slightly larger size print is suggested in larger size
advertisements.  These type-size minima are not absolute.
That is, print disclosures do not in every instance have to be
in at least 10-point type, as long as they are clear and
conspicuous regardless of the size of the type.  The type size
suggestions are merely examples of advertising practices
which give an airline a reasonable expectation that it will
not be sued if it follows the Guidelines.  In the Task Force's
meetings with the airlines last summer, one common note ex-
pressed was that the airlines could abide by disclosure
guidelines, as long as they were clear and enforced uniform-
ly.  If an airline does not choose this safe harbor and instead
ventures into untested waters, it may run aground and it
may not.  But it is free to do so.
       The comments to this Guideline were critical largely
because NAAG singled out airline advertisements for this
treatment.  However, on the whole, the airlines indicated
they could meet the type size standard relatively easily in
print advertisements.
       NAAG elected to encourage oral disclosures in broadcast
media, because written disclosures are difficult if not
impossible to read and because many people listen to, rather
than watch television commercials.  We continue to believe
that oral disclosure is the best method of conveying informa-
tion in a television commercial.  However, the converse of
this Guideline is not true"a disclosure in a television
commercial is not necessarily deceptive if it is instead made
in a video super or crawl, as long as it is still clear and
conspicuous.
       For safety reasons, very large type is provided for bill-
boards.
       1.6  Frequent flyer program means any program offered
by an airline or program partner in which awards are
offered to program members.
       1.7  Limited-time availability means that the fare is only
available for a specific period of time or that the fare is not
available during certain blackout periods.
       Comment: This definition applies to air fares that are only
available certain times of the year (e.g., available December
15 through April 15), are not available at certain times at
all (not available December 23 through January 5), or are
only available until a date certain (available only until
January 15).  It does not apply to fares that are unavailable
only on certain days of the week or times of the day.
       1.8  Material restriction means a restriction, limitation,
or other requirement which affects the use or refundability
of a ticket, and which is not generally applicable to all
classes of fares or tickets (such as standard conditions of
carriage).
       Comment:  Due to the numerous standard conditions ap-
plicable to most airline tickets, NAAG has confined the
definition of ``material restrictions'' to those restrictions
and limitations that are specific and unique to certain fare
categories (i.e., those that are different from the restrictions
and limitations that apply to a standard coach ticket).
       1.9  Program member means any consumer who has ap-
plied and been accepted for membership in an airline's
frequent flyer program, regardless of whether he or she has
accrued mileage, credits, bonuses, segments or other units
of value on an airline or with any program partner.
       1.10  Program partner means any business entity which
provides awards as part of an airline's frequent flyer
program.
       1.11  Vested member means a member of a frequent flyer
program who is enrolled in an existing program and has
provided consideration to the airline or its partners, and
who has not received adequate notice of program changes
such as set forth in Sections 3.2 and 3.9.  For example,
consideration includes purchasing tickets on an airline,
renting a car or using a specific credit card.
       Comment:  This definition separates out those consumers
who joined a frequent flyer program without receiving ade-
quate notice of how that program could change prospec-
tively.  The Guidelines afford some special protections to
vested members and vested miles.  There is sound reason for
this.
       After reviewing the travel reward promotional materials
for most of the major airlines, NAAG concluded that cur-
rently vested members have not received adequate disclosure
of the potential for significant increases in award levels or
imposition of other restrictions which may result in the
airlines' unilateral devaluation of awards.  Therefore, the
Guidelines treat vested members and the miles which mem-
bers accrued before receiving adequate notice of prospective
changes differently.
       1.12  Vested mile means program mileage (or other
credits) accumulated by a vested member before that person
receives adequate notice of program changes, as set forth in
Sections 3.2 and 3.9.
       Comment:  This definition identifies any mileage or credit
accrued by a vested member before he or she received ade-
quate notice regarding the possibility of future detrimental
changes in the program.  See the comments to the definition
of vested member.

                   Section 2"Fare Advertisements
2.0  General guideline
       Any advertisement which provides air fares or other price
information must be in plain language, clear and conspicu-
ous, and non-deceptive.  Deception may result not only from
a direct statement in the advertisement and from reason-
able inferences therefrom, but also omitting or obscuring a
material restriction.
       Comment:  This Guideline and the following Guidelines
restate individual states' false advertising and deceptive
practices statutes as they apply to air fare and price ad-
vertising.

2.1  Disclosure in print advertisements
       Print advertisements for fares must make clear and
conspicuous disclosure of restrictions such as:
*          Limited-time availability.
*       Limitations on right to refund or exchange of ticket.
*       Time of day or day of week restrictions.
*       Length of stay requirements.
*       Advance purchase requirements.
*       Round trip purchase requirements.
*       Variations in fares to or from two or more airports
        serving the same metropolitan area.
*       Limitations on, or extra charges for, breaks or chang-
es in itinerary, such as failure to travel on every leg
        as scheduled.
*       The statement, if any, required by Guideline 2.4.
*       Any other material restriction on the fare.
    This Guideline would be met by disclosing material
restrictions either:
*          in the body copy of the advertisement,
*       adjacent to the fare price, or
*       in a box with a heading such as ``Restrictions.''
    Examples (in 10-point type) of disclosures of material
restrictions if they apply to fare being advertised are:
In the body copy:
RESTRICTIONS:  ``Weekend traveler'' fares are
generally available all day Saturday and Sunday until
6 p.m.  However, these fares are not available on some
flights on some days.
    In the box:

Restrictions.
         These restrictions apply to one or more of these fares:
         *  30 day advance purchases required
         *  Not available November 20December 1
         *  New York fares only to Newark Airport

                                or

Restrictions.  Advertised fares are only available Tuesday,
Wednesday, and Thursday afternoons.  Three-day advance
purchases required.  50% cancellation penalty applies.


       Comment:  The advantage to consumers of print advertise-
ments over television or radio advertisements is that they
give consumers something tangible to use as a reference
when shopping for low cost air fares.  Because consumers
can take their time and carefully read a print advertisement
it is especially important that this type of advertisement
contain the most accurate and complete information possible
regarding any advertised air fares.  The restrictions singled
out by NAAG in this Guideline for disclosure are those
NAAG believes are the most significant to a consumer
contemplating purchasing a ticket.  An advertisement that
complies with this Guideline will give a consumer three
crucial pieces of information:
       1.  Eligibility"consumers will know if they are eligible for
the fare (i.e., can a consumer meet advance purchase re-
quirements or other restrictions affecting time or date of
travel?);
       2.  Availability"consumers can accurately gauge the
likelihood that they will be able to obtain a ticket at the
advertised price; and
       3.  Risk"consumers will know the risks associated with
purchasing a ticket at the advertised price (i.e., is the ticket
non-refundable or do other penalties apply upon cancellation
or changes in itinerary?).
       This particular Guideline received a great deal of negative
comment because the airlines and government agencies mis-
understood it to mean that it required full disclosure of all
of the restrictions that apply to each specific flight.  This is
not correct.  The Guideline only requires that if any of the
restrictions listed in the Guideline apply to any of the air
fares advertised then the advertisement must disclose the
existence of that restriction and the fact that the restriction
applies to one or more of the air fares advertised.  To clear
up this misunderstanding, NAAG included specific examples
of the disclosures required by the revised Guidelines.  There
was also some misunderstanding that disclosure in a box
was required.  As the Guideline states, this is just one
option.
       The comments made to the December Guidelines evidenced
another misconception about the wording of the disclosures
on fare restrictions.  This Guideline provides suggested
wording, again to assist the airlines in determining how to
meet the disclosures, but the language is by no means
sacrosanct.  The best creative minds in the advertising
business are available to the airlines through their advertis-
ing agencies.  The airlines are free to avail themselves of
these talents, who are certainly adept at phrasing a message
the advertiser wants to get across to the consumer.  The
essence of the Guidelines is that consumers must be advised
of the limits which the airlines has chosen to impose on
consumers' ability to buy tickets at the advertised price.

2.2  Disclosure in broadcast commercials
       Broadcast commercials for fares must make clear and
conspicuous disclosure of:
*          Limited-time availability.
*          Limitations on right to refund or exchange of ticket.
*       The statement, if any, required by Guideline 2.4.
In addition, if the following seven disclosures are not made
in a clear and conspicuous manner in the commercial, any
that are applicable must be disclosed orally to the passen-
ger before reservations are actually made:
*          Time of day or day of week restrictions.
*       Length of stay requirements.
*       Advance purchase requirements.
*       Round trip purchase requirements.
*       Variations in fares to or from two or more airports
        serving the same metropolitan area.
*       Limitations on, or extra charges for, breaks or chang-
es in itinerary, such as failure to travel on every leg
        as scheduled.
*       Any other material restriction in the fare.
    As to these seven types of disclosure, the airline may
include any or all in the commercial or may choose to defer
disclosure until the time reservations are actually made.
       If any of these seven disclosures applies to the fare
advertised and the airline chooses to defer disclosure until
the time the reservations are actually made, the commercial
must give clear and conspicuous disclosure that ``Other
substantial restrictions apply,'' or similar language.  The
statement ``Restrictions apply'' is not sufficient.
       Comment:  In an earlier draft, the Guidelines required
that radio and television advertisements include all the
same disclosures required in print advertisements.  The
airline industry unanimously responded that such detailed
disclosures would be impossible to include in the 15 and 30
second advertising spots generally purchased for radio and
television ads, and argued that, even if time allowed this
much oral disclosure, the resulting commercial would pro-
vide too much information for a consumer to absorb usefully.
They concluded that such a requirement would eliminate
airline price advertising on television and radio.
       The provision of fare information, without stating the
most significant restrictions that apply to the fare adver-
tised, is deceptive and ultimately harmful to consumers and
the airline industry alike.
       The Guideline as revised provides a compromise.  It sug-
gests disclosure of the three most serious restrictions that
can apply to an airline ticket"limited time availability,
nonrefundability or exchangeability and limitations on fare
availability.  Disclosure of all of these restrictions can be
accomplished by something as simple as the following state-
ment: ``Tickets are nonrefundable, are not available on all
flights, and must be purchased by December 15.  Other sig-
nificant restrictions apply.''  These 20 words can easily be
read in a 30 second commercial.  In addition, some or all of
this information may be clearly and conspicuously disclosed
in a video super or crawl in television commercials.  Of
course, this option is not available for radio commercials.
However, commenting airlines confirmed that the typical
radio spot is 60 seconds, making the concern about time less
crucial.
       Airlines then have the option of disclosing any additional
material restrictions in the advertisement itself or deferring
such disclosure until a consumer makes a reservation.  Of
course, if an airline does not choose to restrict its fare
severely, fewer words (and thus, less air time) is needed.
       This compromise position also recognizes that print ad-
vertising lends itself more readily to detailed information in
a form which the consumer can retain and refer to at his
own pace.  For this reason, NAAG has chosen to require less
disclosure in broadcast, allowing print to be the medium for
full disclosure.

2.3  Disclosure on billboards
       Any billboard which provides air fare or other price
information on a fare to which any material restrictions
apply must have clear and conspicuous language such as
``Substantial restrictions apply.''  The statement ``Restric-
tions apply'' is not sufficient.
       Comment:  For safety reasons, NAAG concluded that
lengthy written disclosures on billboards are inappropriate
and potentially hazardous to drivers.  We disagree with the
DOT that this special treatment of price advertising on bill-
boards will result in a proliferation of billboards on our
nation's highways.

2.4  Fare availability
       Any advertised fare must be available in sufficient
quantity so as to meet reasonably foreseeable demand on
every flight each day for the market in which the advertise-
ment appears, beginning on the day on which the advertise-
ment appears and continuing for at least three days after
the advertisement terminates.
       However, if the advertised fare is not thus available, the
advertisement must contain a clear and conspicuous state-
ment to the extent of unavailability of the advertised fare.
       Statements such as ``Seats limited'' and ``Restrictions
apply'' do not meet this Guideline.  These examples do meet
this Guideline:
*          This fare may not be available when you call.
*       This fare is not available on all flights.
*       This fare is only available on some Saturday and
        Sunday flights.
    Comment:  This Guideline elicited the greatest amount of
negative comments from the airline industry, the ATA, FTC
and the DOT.  They argue that this Guideline is impossible
to implement because, due to the complexity of airline
pricing systems, the number of seats available at a particu-
lar low fare on a particular flight is not a fixed number.  It
is continuously modified up to the point of departure.  They
suggest that it is acceptable for the airlines to communicate
a general invitation to the public to buy low fare seats, but
then reduce the number of seats available to zero or close to
zero for the most popular flights, because the possibility that
a consumer can purchase a seat at the advertised price exists
at the time the advertisement is placed.
       The complexity of the airlines' system cannot justify the
unfairness of such an approach.  No other retailer would be
allowed to justify a failure to stock an advertised item on the
grounds that, at the last minute the retailer decided it was
less costly not to stock the item it had just advertised.  The
availability of an item advertised, at the price advertised,
goes to the very heart of truthful advertising.  If an airline
advertises an air fare that is not available on each and every
flight to the destination advertised, and this fact is not
disclosed, then the advertisement is deceptive on its face.
       While NAAG appreciates the difficulty of disclosing the
specific number of seats available on each flight advertised,
a disclosure that ``This fare is not available on all flights''
or ``This fare may not be available when you call'' is not
particularly onerous.  Absent such disclosure, airlines, as all
other retailers, should be required to have sufficient stock
available to meet reasonable demand for any fare advertised.

2.5  Surcharges
       Any fuel, tax, or other surcharge to a fare must be in-
cluded in the total advertised price of the fare.
       Comment:  Recently, several airlines considered the possi-
bility of passing along an increase in the cost of fuel to
consumers by imposing a ``fuel surcharge'' rather than
simply raising air fares to reflect their increased costs.  The
air fare advertised was to remain the same, but a footnote
would be added to the advertisement in the ``mice type'' dis-
closing that, for instance, a $16 fuel surcharge would be
tacked on to the advertised fare.  The potential for abuse, if
this type of price advertising is permitted, is obvious.  It
would only be a matter of time before $19 air fares from
New York to California could be advertised with $300 meal,
fuel, labor, and baggage surcharges added in a footnote.
The total advertised price of the fare must include all such
charges in order to avoid these potential abuses.  However,
this Guideline should not be construed to require an airline
to do the impossible.  We do not believe that such minimal
tour-related charges fall within the meaning of ``fare'' and
therefore do not believe that unknown charges must be dis-
closed as a surcharge (if the amounts are not in fact known).
This of course does not mean that charges which are
known"either as an exact amount or as a percentage"do
not have to be disclosed in advertisements.

2.6  Round trip fare advertising
       If an airline elects to advertise the one-way portion of a
fare that is only available as a round-trip purchase, this
restriction, together with the full round-trip fare, must be
advertised in a clear and conspicuous manner, at least as
prominently as the one-way fare.
       Comment:  Airlines routinely advertise one-half of the
price (i.e., the alleged ``one-way'' price) for tickets that are
only available if a consumer makes a round-trip purchase.
Under this Guideline, if an airline elects to continue this
advertising practice, it must also disclose that the fare is
only available if a consumer purchases a round trip ticket
and the actual price of the full round trip ticket.  The
disclosure must be made in a type size and location as
prominent as the fare advertised.
       The airlines have, for the most part, stated a willingness
to advertise the full round trip air fare if all of the airlines
do the same.  This Guideline is intended to encourage all
airlines to adopt this practice.

2.7      Deceptive use of ``sale,'' ``discount,'' ``reduced,'' or similar
         terms
       A fare may be advertised by use of the words ``sale,''
``discount,'' ``reduced,'' or other such words that suggest that
the fare advertised is a temporarily reduced fare and is not
a regularly-available fare only if that fare is:
*          available only for a specified, limited period of time,
        and
*       substantially below the usual price for the same fare
        with the same restrictions.
    Comment:  The majority of airline tickets sold each year
sell at prices significantly lower than the full ``Y'' or stand-
ard regular coach fare.  These lower fares are offered year
round and airlines in theory allocate a certain amount of
seats to each fare ``bucket.''  As a result, the regular coach
fare has ceased to have any meaning as a starting point for
determining whether or not a ticket is being offered for a
``sale'' price as consumers have come to understand that
term.
       In this Guideline NAAG has attempted to prevent con-
sumer confusion by limiting the use of such words as ``sale,''
``discount,'' or ``reduced,'' to describe only those fares that
represent a true savings over regularly available air fares"
those that are available only for short periods of time and
are substantially below any regularly offered fare for a ticket
carrying identical restrictions.

                 SECTION 3"Frequent Flyer Programs
                   General Comments to Section 3
       Frequent flyer programs have been widely acknowledged
as the most successful marketing programs in airline in-
dustry history.  The bargain struck between customers and
the airlines has proven to be very costly to many of the
airlines.  Customers who have accrued the necessary mileage
are expecting to collect the awards which led them to join
and fly in the programs in the first place.  Some airlines are
now disturbed by the cost of keeping their side of the bar-
gain and the real possibility that they may lose revenue
because passengers flying on frequent flyer awards may
begin displacing paying customers.  The solution contem-
plated by some carriers has been to raise award thresholds
and implement restrictions to decrease the cost to them of
the award program.  The effect of these actual and/or
potential changes is to significantly devalue vested members'
accrued mileage or other credits in the program.  Although
various frequent flyer program awards materials have con-
tained some obscure mention of the possibility of future
program changes, these disclosures have been wholly in-
adequate to inform program members of the potentially
major negative changes which are contemplated by many
airlines.
       These Guidelines cover frequent flyer programs including
any partner airlines or other providers of goods or services
such as rental cars and hotel rooms.  They are intended to
protect those consumers who have participated in these
programs in good faith, without adequate notice that the
programs could change, and to advise the airlines of how
they can reserve this right in the future by adequately
providing this information to all members in a nondeceptive
manner consistent with state law.

3.0  Capacity controls
       1.  If an airline or its program partners employ capacity
controls, the airline must clearly and conspicuously disclose
in its frequent flyer program solicitations, newsletters, rules
and other bulletins the specific techniques used by the air-
line or program partner to control capacity in any solicita-
tion which states a specific award.  This includes blackout
dates, limits on percentage of seats (for example, ``the num-
ber of seats on any flight allocated to award recipients is
limited''), maximum number of seats or rooms allocated or
any other mechanism whereby the airline or program part-
ner limits the opportunities of program members redeeming
frequent flyer award levels.  To meet this Guideline, all
blackout dates must be specifically disclosed.
        2.  As to awards for vested miles, the airline or program
partner must provide the award to the vested member with-
out capacity controls or provide the award with capacity
controls within a reasonable period of time.  A reasonable
period would be within 15 days before or after the date
originally requested.  If all seats within this 31-day period
were sold at the time the vested member requested a res-
ervation, so that the member could not be accommodated
without displacing a passenger to whom a seat has been
sold, then a reasonable period would be the period to the
first available date on which every seat was not sold to the
requested destination at the time the program member re-
quests a reservation.
       Comment:  All of the airlines that met with the Task Force
stated that they intended to retain the right to impose ca-
pacity controls, in the future, to limit the number of seats
available to consumers purchasing tickets with frequent flyer
award certificates.  The imposition of capacity controls,
including blackout dates, has the potential for unreasonably
restricting the supply of seats or other benefits in such a way
as to significantly devalue the awards due vested program
members.  NAAG found that this potential limitation has
not been adequately disclosed to program members in the
frequent flyer promotional materials we reviewed.  This
Guideline puts the airlines on notice as to what information
they should provide to consumers if they want to impose
capacity controls on the use of frequent flyer awards at some
future date.
       In earlier drafts of the Guidelines the Task Force took the
position that capacity controls could not be applied to
awards based on any mileage or credits accrued by vested
members before they received adequate notice that capacity
controls could be imposed.  However, as a compromise, and
to permit the airlines reasonable flexibility around holiday
or other peak travel times, the revised Guideline provides for
a reasonable time to accommodate passengers with award
tickets: a 31-day ``time window''"15 days before and 15 days
after the date requested for ticketing.  This ``time window''
allows the airlines to allocate capacity to meet demand over
a reasonable, yet defined period of time.  In the event all
flights to a certain destination are sold out during the entire
31-day time window, ticketing on the next available seat
would be reasonable.  This approach has the additional
benefit of being simple and straightforward to implement
with less possibility of customer confusion and frustration.

3.1  Program changes affecting vested members
       1.  Any airline or program partner that has not reserved
the right to make future changes in the manner required by
Sections 3.2 and 3.9 of these Guidelines and that changes
any aspect of its program (for example, imposition of
capacity controls, increases in award levels, or any other
mechanism whereby a vested member's ability to redeem
any award will be adversely affected) must protect vested
program members.  Examples which meet this Guideline
are:
(a)          All vested members may not be adversely affected
          by that change for a reasonable period would be
          one year following mailing of notice of that change.
(b)       The airline or program partner may allow vested
          members to lock in any award level which is in
          effect immediately preceding any change in the
          program.  That award level would be guaranteed
          for a period of one year after mailing notice of any
          increase in award levels.  A vested member would
          also be permitted to change his or her selection to
          lock in a different award in existence at any time
          prior to an increase in award levels.
(c)       The airline or program partner may credit vested
          program members with miles or other units suffi-
cient to assume that, at the time of any change in
          the program, the member will be able to claim the
          same awards he or she could have claimed under
          the old program.
    Comment:  This Guideline institutes corrective measures
to protect vested members and the mileage they accrued be-
fore receiving adequate notice that a program could change
to their detriment at some point in the future.  The Guide-
line sets forth three acceptable alternative approaches to
allow airlines to change existing programs without un-
reasonably altering the rights and expectations of vested
members.  For example, an airline may wish to create a new
program with higher award levels for persons who join in
the future.  Guideline 3.1.1(a) grandfathers in vested
members for a one-year period after notice.  Guideline
3.1.1(b) grandfathers only a specified locked-in award for
a one-year period after the effective date of the change and
thereby gives the member an additional year to accrue mile-
age or units toward a specific award.  Guideline 3.1.1(c)
allows the program to avoid the administrative problems of
distinguishing between old and new members and old and
new award levels by equitably adjusting the award levels of
the vested members.
       These examples are not the only ways in which airlines
can reasonably protect vested members when changing exist-
ing programs.  They are intended to delineate minimum
acceptable standards.

3.2  Notice of Changes
       1.  Adequate notice of changes in current frequent flyer
program award levels must be provided to vested program
members by the airline or program partner to allow a
reasonable time for the vested member to obtain and use an
award.  For example, a notice no less than one year prior to
the effective date of such change would be reasonable.
Reduction in award levels would not require such notice.
       2.  Any airline which has a policy of deleting program
members from its mailing list for notices and statements
must clearly and conspicuously disclose that policy in plain
language in its rules and regulations.
       3.  To reserve the right to make future changes in the
award levels and program conditions or restrictions in a
manner providing reasonable notice consistent with state
law, which notice is less than the notice set forth in
Guideline 3.2.1, an airline must first clearly and conspicu-
ously disclose that reservation and the nature of such
future changes, in plain language.  This disclosure should
include examples which make clear the outer limits within
which program awards may be changed.  For example, the
following is not adequate disclosure:
``Program rules, regulations and mileage levels are
subject to change without notice.''
This example is adequate disclosure:
``(Airline) reserves the right to terminate the program
with six months notice.  This means that regardless of
the amount you participate in this program, your right
to accumulate mileage and claim awards can be
terminated six months after we give you notice.''
Or:
``(Airline) reserves the right to change the program
rules, regulations, and mileage level.  This means that
(Airline) may raise mileage levels, add an unlimited
number of blackout days, or limit the number of seats
available to any or all destinations with notice.  Pro-
gram members may not be able to use awards to cer-
tain destinations, or may not be able to obtain certain
types of awards such as cruises.''
Or, if the airline so intends, the disclosure might also say:
``In any case, (Airline) will make award travel available
within " days of a program member's requested date,
except for blackout dates listed here.''
The airline's right to make future changes, in a manner
other than that provided in Guideline 3.1, shall apply only
to mileage accrued after members receive the notice re-
quired by this Guideline.
       Comment:  In the past, airlines have attempted to reserve
the right to make radical future changes in their programs
by using such vague and uncertain blanket language as
``Subject to additions, deletions, or revisions at any time.''
The consumer outrage that ensued when several of the major
airlines attempted unilaterally to change their programs in
the winter of 198687 makes it clear that consumers were
not adequately told, when they joined and participated in
frequent flyer programs, that they were taking a gamble that
the award they were striving for would still be available, at
the mileage level originally advertised by the time they
accrued the necessary miles.  To avoid a recurrence of this
same problem in the future, this Guideline provides that the
potential for such extensive program changes must be clearly
and conspicuously disclosed to the public by specific ex-
ample.  It also puts the airlines on notice that (1) their
previous attempts to disclose this critical information have
been inadequate, (2) if they intend to reserve the right to
make such changes in the future, they must give members
new and different notice, and (3) as to vested members,
airlines cannot implement any adverse changes until one
year after notice is given.  One year is deemed reasonable
because many consumers can only travel during particular
periods of the year due to work or family constraints, and
therefore notice of less than a year may impact unduly
harshly on a particular class of program members.
       If an airline wants to reserve the rights to change the
terms of its program without giving its members one year's
notice (1) it can do so only after clear and adequate notice
has been given to the program members and (2) this reduced
standard can apply only to mileage accrued after clear and
adequate notice has been given.
       NAAG discovered that many airlines delete program mem-
bers from their mailing lists if they are determined to be
``inactive.''  Inactive is defined differently by each airline,
but generally includes some formula requiring active partici-
pation in the program within a six to ten month period prior
to any given mailing.  Because crucial information regard-
ing changes is included in program mailings, the Guidelines
require that any airline with a policy of deleting program
members from its mailing list clearly and conspicuously dis-
close that policy in the rules and regulations distributed to
all program members when they join.

3.3  Fare or passenger class limitations
       Any limitation upon the type or class of fare with which
an upgrade certificate, discount flight coupon, or free
companion coupon may be used must be clearly and con-
spicuously disclosed before the program member claims the
award.  Disclosure of the fare by airline terminology (for
example, ``Y Class'') is not deemed sufficient.
       Comment:  Many airlines are encouraging consumers to
use their accrued mileage or credits to obtain upgrade
certificates or free campaign coupons, rather than free tickets
because this is more cost effective for the airlines.  Many of
these coupons and certificates can be used only in conjuction
with a regular coach fare ticket.  Because of the high cost of
a full coach ticket (often disclosed only as ``Y Class'') many
of these coupons and certificates represent no real savings
and therefore are useless to consumers.  This Guideline
requires that any such restriction be clearly disclosed to
consumers before the award is claimed.

3.4  Certificates issued for vested miles
       Certificates, coupons, vouchers, or tickets issued by an
airline for awards redeemed for vested miles must be valid
for a reasonable period of time.  One year is deemed to be
reasonable.  Any restrictions on use, redeposit, extension,
or re-issuance of certificates must be clearly and conspicu-
ously disclosed on the certificate and in any rules, regula-
tions, newsletter or other program materials.
       Comment:  Again, because many consumers may only
travel during certain periods of the year, fairness requires
that awards be valid for at least a full twelve month cycle.

3.5  Fees
       Any airline which charges a fee for enrollment in its
frequent flyer program must fully disclose at airline ticket
counters and in all advertisements, solicitations or other
materials distributed to prospective members prior to en-
rollment all terms and conditions of the frequent flyer
program.  Such disclosure must be made prior to accepting
payment for enrollment in the airline's program.
       Comment:  Some airlines have required that consumers
fill out a membership application and pay a membership fee
before obtaining a copy of the program rules and regula-
tions.  Because of the serious restrictions that can apply to
a travel reward program, it is essential that all consumers
have an opportunity to review all of the program rules and
regulations before paying an enrollment fee.

3.6  Redemption time
       All airlines must disclose clearly and conspicuously the
actual time necessary for processing award redemption re-
quests where such requests are not normally processed
promptly.  An example of prompt processing would be
within 14 days of processing the request.  An example of
a disclosure would be ``processing of awards may take up
to 30 days.''
       Comment:  The airlines indicated that full disclosure of
redemption time will not be a problem.

3.7  Termination of program affecting vested members
       In the event a frequent flyer program is terminated,
adequate notice of termination must be sent to all vested
members so that vested members have a reasonable time to
obtain awards and use them.  Adequate notice would be
notice at least one year prior to the termination of the
program.  Award levels in existence prior to such notice
should remain in effect for one year.  Program members
should then have one year to use certificates, coupons,
vouchers or tickets.  Any applicable capacity controls should
be modified as necessary to meet the demand for all award
benefits due program members.
       Comment:  The airlines uniformly take the position that
because participation in travel reward programs is ``free,'' an
airline should be able to terminate a travel reward program
at any time without notice.  NAAG strenuously disagrees.
Consumers pay significant consideration for the airlines'
promise to award them ``free tickets'' and other awards.
Program members fly on a particular airline to accrue
mileage in a travel reward program often foregoing a more
convenient departure time, a more direct flight, and even a
less expensive ticket.  Those consumers who kept their part
of the bargain have a right to expect the airlines to keep
theirs, regardless of the cost.  This Guideline affords con-
sumers reasonable protection against unilateral changes.  It
gives consumers one year to accrue the mileage to reach a
desired award level and one year to use the award.
       This Guideline is intended to apply to programs that
are terminated due to mergers or for any other reason.  It
would be unconscionable to permit airlines, which have
reaped the rewards of these travel incentive programs, to
walk away from their obligations to consumers under any
circumstances.

3.8  Restrictions
       All material restrictions on frequent flyer programs
must be clearly and conspicuously disclosed to current
program members and to prospective members at the time
of enrollment.
       Comment:  This Guideline is intended as a corrective
measure.  Any airline that has not clearly and conspicuously
disclosed material program restrictions to vested members
should do so now.  New members are entitled to full
disclosure at the time of enrollment.

3.9  Method of disclosure
       Disclosures referred to in these Guidelines should be
made in frequent flyer program solicitations, newsletters,
rules, and other bulletins in a clear and conspicuously
manner so as to assure that all program members receive
adequate notice.  As used in these Guidelines, disclosure
also refers to information on program partners.
       Comment:  The brochures containing the rules and regula-
tions for airlines' frequent flyer programs have been as long
as 52 pages.  Extremely important restrictions are often
buried under inappropriate topic headings or hidden on the
back of the last inside pages of the brochure.  This Guideline
requires that restrictions be disclosed in reasonable print
size in a location that will be most helpful and informative
to consumers.
       Any reservation of the right to make future changes in a
program is so significant to consumers that it should be
disclosed prominently to insure that the maximum number
of people see and read this restriction.  The Guideline
permits the airlines flexibility to determine when and how
often a disclosure must be made so long as the airline
discloses the information in a manner which gives meaning-
ful notice to all affected members.
      One airline complained that Guideline 3.9 is unreasonable
because it proposes that all the restrictions be disclosed at
the beginning of the program brochure.  In fact, the only
disclosure the Guidelines suggested listing at the beginning
of a brochure is the reservation of the right to change the
program prospectively.  The significance of such a restric-
tion"that the terms and conditions of the program can
change at any moment"is so critical that potential members
should be made aware of it immediately.  All other dis-
closures can be made in the text of the brochure.

               Section 4"Compensation for Voluntary
                          Denied Boarding
     4.0  Disclosure of policies
       If an airline chooses to offer ticketed passengers incen-
tives to surrender their tickets on overbooked flights, the
airline must clearly and conspicuously disclose all terms
and conditions of the proposal"including any restrictions
on offers of future air travel"to the person to whom the
offer is made, and in the same manner in which the offer is
made, before the person accepts the offer.
       Comment:  Federal regulations offer specific protections
and certain rights to individuals who are involuntarily
bumped from a flight.  Airlines, however, are free to offer
whatever compensation they want to people who voluntarily
give up their seat on an airplane because of overbooking.
For economic reasons, airlines prefer to offer vouchers good
for free tickets on future flights, instead of cash compensa-
tion to these passengers.
       While these vouchers may seem very attractive to a con-
sumer who has the flexibility to wait for a later flight, many
carry serious restrictions on their use or are subject to
lengthy black out periods when they cannot be used.
       This Guideline requires that airlines fully disclose any
and all restrictions on offers for future air travel, before a
consumer agrees to give up his or her seat.  It does not, as
several airlines and government agencies argued in their re-
sponsive comments, set any standards for the type of com-
pensation that airlines must offer to these passengers.

                            CONCLUSION
       Consumer dissatisfaction with the airline industry has
reached crisis proportions.  Federal agencies have focused
their attention on airline scheduling problems, on-time
performance, safety, and other related issues, but have not
addressed airline advertising and frequent flyer programs.
Unchecked, the airlines have engaged in practices in these
areas that are unfair and deceptive under state law.  The
individual states through NAAG can play an important role
in eliminating such practices through these Guidelines.



                       SUPREME COURT OF THE UNITED STATES
                       No. 90-1604
 
         DAN MORALES, ATTORNEY GENERAL OF TEXAS,
                PETITIONER v. TRANS WORLD AIRLINES,
                           INC., et al.
        on writ of certiorari to the united states court of
                   appeals for the fifth circuit
                          [June 1, 1992]

       Justice Stevens, with whom The Chief Justice and
Justice Blackmun join, dissenting.
       In cases construing the  virtually unique pre-emption
provision in the Employee Retirement Income Security Act
(ERISA), see Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 24,
n. 26 (1983), we have given the words  relate to a broad
reading.  The construction of that unique provision was
supported by a consideration of the relationship between
different subsections of ERISA that have no parallel in
other federal statutes, see Shaw v. Delta Airlines, Inc., 463
U. S. 85, 98 (1983), and by the legislative history of the
provision.  Id., at 9899.  Today we construe a pre-emption
provision in the Airline Deregulation Act of 1978 (ADA), 49
U. S. C. App. 1301 et seq., a statute containing similar,
but by no means identical, language.  Instead of carefully
examining the language, structure, and history of the ADA,
the Court decides that it is  appropriate, given the similar-
ity in language, to give the ADA pre-emption provision a
similarly broad reading.  Ante, at 7.  In so doing, the Court
disregards established canons of statutory construction, and
gives the ADA pre-emption provision a construction that is
neither compelled by its text nor supported by its legislative
history.
                              I
        In deciding whether a federal law pre-empts a state
statute, our task is to ascertain Congress' intent in enacting
the federal statute at issue.  Metropolitan Life Ins. Co. v.
Massachusetts, 471 U. S. 724, 738 (1985) (internal quotation
marks omitted).  At the same time, our pre-emption
analysis  must be guided by respect for the separate
spheres of governmental authority preserved in our federal-
ist system.  Alessi v. Raybestos-Manhattan, Inc., 451 U. S.
504, 522 (1981).  We therefore approach pre-emption
questions with a  presum[ption] that Congress did not
intend to pre-empt areas of traditional state regulation.
Metropolitan Life, 471 U. S., at 740.
  Section 105(a) of the ADA provides, in relevant part,  no
State or political subdivision thereof . . . shall enact or
enforce any law . . . relating to rates, routes, or services of
any air carrier having authority under subchapter IV of this
chapter to provide air transportation.  49 U. S. C. App.
1305(a).  By definition, a state law prohibiting deceptive
or misleading advertising of a product  relates,  pertains,
or  refers first and foremost to the advertising (and, in
particular, to the deceptive or misleading aspect of the
advertising) rather than to the product itself.  That is not
to say, of course, that a prohibition of deceptive advertising
does not also relate indirectly to the particular product
being advertised.  It clearly does, for one cannot determine
whether advertising is misleading without knowing the
characteristics of the product being advertised.  But that
does not alter the fact that the prohibition is designed to
affect the nature of the advertising, not the nature of the
product.
        Thus, although I agree that the plain language of 105(a)
pre-empts any state law that relates directly to rates,
routes, or services, the presumption against pre-emption of
traditional state regulation counsels that we not interpret
105(a) to pre-empt every traditional state regulation that
might have some indirect connection with or relationship
to airline rates, routes, or services unless there is some
indication that Congress intended that result.  To deter-
mine whether Congress had such an intent, I believe that
a consideration of the history and structure of the ADA is
more illuminating than a narrow focus on the words
 relating to.
                     II
  The basic economic policy of the Nation is one favoring
competitive markets in which individual entrepreneurs are
free to make their own decisions concerning price and
output.  Since 1890 the Sherman Act's prohibition of
collusive restrictions on production and pricing have been
the central legislative expression of that policy.  National
Society of Professional Engineers v. United States, 435 U. S.
679, 695 (1978).  In 1914 Congress sought to promote that
policy by enacting the Federal Trade Commission Act
(FTCA), which created the Federal Trade Commission and
gave it the power to prohibit  [u]nfair methods of competi-
tion in commerce.  38 Stat. 719, codified as amended, 15
U. S. C. 45(a)(1).  That type of prohibition is entirely
consistent with a free market in which prices and produc-
tion are not regulated by Government decree.
  In 1938 Congress enacted two statutes that are relevant
to today's inquiry.  In March, it broadened 5 of the FTCA
by giving the Commission the power to prohibit  unfair or
deceptive acts or practices in commerce as well as  [u]nfair
methods of competition in commerce.  52 Stat. 111, codified
at 15 U. S. C. 45(a)(1).  Three months later it enacted the
Civil Aeronautics Act of 1938.  411, 52 Stat. 1003.  That
statute created the Civil Aeronautics Board and mandated
that it regulate entry into the interstate airline industry,
the routes that airlines could fly, and the fares that they
could charge consumers.  52 Stat. 987994.  Moreover, the
statute contained a provision, patterned after 5 of the
FTCA, giving the Civil Aeronautics Board the power to
prohibit  unfair or deceptive practices or unfair methods of
competition in air transportation.  52 Stat. 1003; see also
American Airlines, Inc. v. North American Airlines, Inc., 351
U. S. 79, 82 (1956).  But the Board's power in this regard
was not exclusive, for the statute also contained a  savings
clause that preserved existing common-law and statutory
remedies for deceptive practices.  See 52 Stat. 1027;
Nader v. Allegheny Airlines, Inc., 426 U. S. 290, 298300
(1976).
     Although the 1938 Act was replaced by a similar regula-
tory scheme in 1958, the principal provisions of the
statute remained in effect until 1978.  In that year, Con-
gress decided to withdraw economic regulation of interstate
airline rates, routes, and services.  Congress therefore
enacted the ADA  to encourage, develop, and attain an air
transportation system which relies on competitive market
forces to determine the quality, variety, and price of air
services.  H. R. Conf. Rep. No. 951779, p. 53 (1978).
Because that goal would obviously have been frustrated if
state regulations were substituted for the recently removed
federal regulations, Congress thought it necessary to pre-
empt such state regulation.  Consequently, Congress
enacted 105(a) of the Act, which pre-empts any state
regulation  relating to rates, routes, or services of any air
carrier having authority under subchapter IV of this
chapter to provide air transportation.  49 U. S. C. App.
1305(a)(1).
  At the same time, Congress retained 411, which gave
the Civil Aeronautics Board the power to prohibit  unfair or
deceptive practices or unfair methods of competition in air
transportation.  49 U. S. C. App. 1381(a).  Congress also
retained the savings clause that preserved common-law and
statutory remedies for fraudulent and deceptive practices.
See 49 U. S. C. App. 1506; Nader, 426 U. S., at 298300.
Moreover, the state prohibitions against deceptive practices
that had coexisted with federal regulation in the airline
industry for 40 years, and had coexisted with federal
regulation of unfair trade practices in other areas of the
economy since 1914, were not mentioned in either the
ADA or its legislative history.
  In short, there is no indication that Congress intended to
exempt airlines from state prohibitions of deceptive adver-
tising.  Instead, this history suggests that the scope of the
prohibition of state regulation should be measured by the
scope of the federal regulation that was being withdrawn.
  This is essentially the position adopted by the Civil Aero-
nautics Board, which interpreted the scope of 105 in light
of its two underlying policies"to prevent state economic
regulation from frustrating the benefits of federal deregula-
tion, and to clarify the confusion under the prior law which
permitted some dual state and federal regulation of the
rates and routes of the same carrier.  44 Fed. Reg. 9948,
9949 (1979).  The Board thus explained that:
      Section 105 forbids state regulation of a federally
authorized carrier's routes, rates, or services.  Clearly,
states may not interfere with a federal carrier's deci-
sion on how much to charge or which markets to
serve. . . . Similarly, a state may not interfere with the
services that carriers offer in exchange for their
rates. . . .
                                 .       .      .      .      .
   Accordingly, we conclude that preemption extends to
all of the economic factors that go into the provision of
the quid pro quo for passenger's fare, including flight
frequency and timing, liability limits, reservation and
boarding practices, insurance, smoking rules, meal
service, entertainment, bonding and corporate financing
. . . .  Id., at 99509951; see also Freeman, State
Regulation of Airlines and the Airline Deregulation Act
of 1978, 44 J. Air L. & Com. 747, 766767 (1979).
  Because Congress did not eliminate federal regulation of
unfair or deceptive practices, and because state and federal
prohibitions of unfair or deceptive practices had coexisted
during the period of federal regulation, there is no reason
to believe that Congress intended 105(a) to immunize the
airlines from state liability for engaging in deceptive or
misleading advertising.
                     III
  The Court finds in Congress' choice of the words  relating
to an intent to adopt a broad pre-emption provision,
analogous to the broad ERISA pre-emption provision.  See
ante, at 67.  The legislative history does not support that
assumption, however.  The bill proposed by the Civil
Aeronautics Board provided that  [n]o State . . . shall enact
any law . . . relating to rates, routes, or services in air
transportation.  Hearings on H. R. 8813 before the Sub-
committee on Aviation of the House Committee on Public
Works and Transportation, 95th Cong., 1st Sess., pt. 1, 200
(1977).  Yet the Board's accompanying prepared testimony
neither focused on the  relating to language nor suggested
that those words were intended to effect a broad scope of
pre-emption; instead, the testimony explained that the pre-
emption section was ``added to make clear that no state or
political subdivision may defeat the purposes of the bill by
regulating interstate air transportation.  This provision
represents simply a codification of existing law and leaves
unimpaired the states' authority over intrastate matters.
Id., at 243.
  The  relating to language in the bill that was finally
enacted by Congress came from the House bill.  But the
House Committee Report"like the Civil Aeronautics
Board"did not describe the pre-emption provision in the
broad terms adopted by the Court today; instead, the
Report described the scope of the pre-emption provision
more narrowly, saying that it  provid[ed] that when a
carrier operates under authority granted pursuant to title
IV of the Federal Aviation Act, no State may regulate that
carrier's routes, rates or services.  H. R. Rep. No. 951211,
p. 16 (1978).
  The pre-emption section in the Senate bill, on the other
hand, did not contain the  relating to language.  That bill
provided,  [n]o State shall enact any law, establish any
standard determining routes, schedules, or rates, fares, or
charges in tariffs of, or otherwise promulgate economic
regulations for, any air carrier . . . .  S. 2493, 423(a)(1),
reprinted in S. Rep. No. 95631, p. 39 (1978).  The Senate
Report explained that this section  prohibits States from
exercising economic regulatory control over interstate
airlines.  Id., at 98.
  The Conference Report explained that the Conference
adopted the House bill (with an exception not relevant
here), which it described in the more narrow terms used in
the House Report.  H. R. Conf. Rep. No. 951779, pp. 9495
(1978).  There is, therefore, no indication that the Conferees
thought the House's  relating to language would have a
broader pre-emptive scope than the Senate's  determining
. . .  or otherwise promulgate economic regulation lan-
guage.  Nor is there any indication that the House and
Conferees thought that the pre-emption of state laws
 relating to rates, routes, or services pre-empted substan-
tially more than state laws  regulating rates, routes, or
services.
                     IV
  Even if I were to agree with the Court that state regula-
tion of deceptive advertising could  relat[e] to rates within
the meaning of 105(a) if it had a  significant impact upon
rates, ante, at 13, I would still dissent.  The airlines'
theoretical arguments have not persuaded me that the
NAAG guidelines will have a significant impact upon the
price of airline tickets.  The airlines' argument (which the
Court adopts, ante, at 1113) is essentially that (1) airlines
must engage in price discrimination in order to compete
and operate efficiently; (2) a modest amount of misleading
price advertising may facilitate that practice; (3) thus
compliance with the NAAG guidelines might increase the
cost of price advertising or reduce the sales generated by
the advertisements; (4) as the costs increase and revenues
decrease, the airlines might purchase less price advertising;
and (5) a reduction in price advertising might cause a
reduction in price competition, which, in turn, might result
in higher airline rates.  This argument is not supported by
any legislative or judicial findings.
  Even on the assumption that the Court's economic
reasoning is sound and restrictions on price advertising
could affect rates in this manner, the airlines have not
sustained their burden of proving that compliance with the
NAAG guidelines would have a  significant effect on their
ability to market their product and, therefore, on their
rates.  Surely Congress could not have intended to pre-
empt every state and local law and regulation that similarly
increases the airlines' costs of doing business and, conse-
quently, has a similar  significant impact upon their rates.
  For these reasons, I respectfully dissent.




