The fight to reg­u­late that mys­te­ri­ous “re­sort fee” that ap­pears on your ho­tel bill heats up.

The Washington Post Sunday - - TRAVEL - The Nav­i­ga­tor El­liott is a con­sumer ad­vo­cate, jour­nal­ist and co-founder of the ad­vo­cacy group Trav­el­ers United. E-mail him at chris@el­liott.org.

The Fourth of July fire­works came a lit­tle early this year for par­tic­i­pants in the Ad­vi­sory Com­mit­tee for Avi­a­tion Con­sumer Pro­tec­tion meet­ing at the Depart­ment of Trans­porta­tion head­quar­ters.

For sev­eral ten­sion-filled min­utes, two Fed­eral Trade Com­mis­sion lawyers stood be­fore the com­mit­tee last month, in­sist­ing their agency had done all it could to stop ho­tels from de­ceiv­ing the trav­el­ing public about re­sort fees.

Not so, replied sev­eral con­sumer ad­vo­cates and one mem­ber of the com­mit­tee. In fact, the FTC has failed to pro­tect con­sumers from what is per­haps the most dis­hon­est fee in the travel in­dus­try. ( You can watch the en­tire heated ex­change at the 1:48 mark of the morn­ing-meet­ing video on the com­mit­tee’s Web site.)

A peek be­hind the cur­tains in the re­sort-fee drama sug­gests nei­ther side is en­tirely cor­rect. The gov­ern­ment is, in­deed, con­cerned about re­sort fees, which are manda­tory sur­charges added to your ho­tel bill for ev­ery­thing from use of the ho­tel gym to pool tow­els. These ex­tras are usu­ally dis­closed af­ter an ini­tial price quote but be­fore you pay for your room. Crit­ics say the sleight-of-hand makes it dif­fi­cult for trav­el­ers to ef­fec­tively com­par­i­son shop and pres­sures ho­tels to pile on even more hid­den fees, in an ef­fort to ap­pear to be the best deal online.

Fed­eral watch­dogs have taken small steps to deal with these con­tro­ver­sial charges. But have they done enough?

No one knows ex­actly how much money ho­tels ex­tract from re­sort guests in fees. A re­cent study by New York Univer­sity found that ho­tels and re­sorts col­lected $2.25 bil­lion in sur­charges last year, but the num­ber in­cludes other add-ons. We do know that vir­tu­ally no ho­tels dis­close the fees in their ini­tial online rate quotes. At best, you have to click to another screen to get the “all-in” price, in­clud­ing the manda­tory re­sort fee; at worst, you don’t find out about it un­til you check out. Cus­tomers also com­plain that ho­tels don’t tell them about the fees when they make ho­tel reser­va­tions.

Re­sort fees ap­pear to be pro­lif­er­at­ing — and in­creas­ing. Only a few years ago, it was un­com­mon to find a ho­tel with a re­sort fee higher than $20 a night, and they were lim­ited to re­sort ar­eas like Las Ve­gas and Or­lando. To­day, they’re ev­ery­where. Sev­eral re­sorts have cracked the $50-a-night mark, and at least two ho­tels charge more than $100 a night.

When it comes to stop­ping mis­lead­ing — and illegal — advertising, the FTC has a lot of flex­i­bil­ity, says Mark Jacobson, a part­ner at the Min­neapo­lis law firm Lindquist & Ven­num and an FTC ex­pert. The FTC Act, which out­lines the agency’s abil­ity to reg­u­late advertising, says “un­fair meth­ods of com­pe­ti­tion” and “un­fair or de­cep­tive acts or prac­tices” are illegal. But fed­eral law also lim­its the FTC from declar­ing an act or prac­tice un­law­ful un­less it’s likely to cause sub­stan­tial in­jury that is “not rea­son­ably avoid­able by con­sumers.”

Back in 2012, the FTC sent warn­ing letters to 22 ho­tel op­er­a­tors, cau­tion­ing that re­sort fees must be dis­closed. Jacobson and other FTC-watch­ers say the key ques­tion is whether the manda­tory re­sort fees are spelled out early enough in the book­ing process for cus­tomers to avoid them.

“If they are dis­closed early in the process, the manda­tory re­sort fees are rea­son­ably avoid­able by con­sumers and prob­a­bly do not vi­o­late the FTC Act,” he says. “If they are dis­closed af­ter the reser­va­tion is made, they are prob­a­bly not rea­son­ably avoid­able and prob­a­bly vi­o­late the FTC Act.”

An FTC rep­re­sen­ta­tive con­firmed that’s how the agency cur­rently views re­sort fees. As long as they are re­vealed early in the book­ing process and in­cluded in the fi­nal price, giv­ing a ho­tel guest the op­por­tu­nity to aban­don the reser­va­tion, they’re ac­cept­able. But another agency spokesman noted that this may or may not be the agency’s fi­nal po­si­tion on the fees, adding that advertising and mar­ket­ing prac­tices are “con­stantly evolv­ing.”

For con­sumer ad­vo­cates, that cre­ates an enor­mous loop­hole that would tech­ni­cally al­low a ho­tel to ad­ver­tise $1 room rates and then charge a manda­tory $100 re­sort fee, dis­closed only af­ter the book­ing process started. By that time, a trav­eler may al­ready be vested in the pur­chase and re­luc­tant to dis­con­tinue the trans­ac­tion.

Op­po­nents of re­sort fees have launched a new site, hotelfees.trav­el­er­sunited.org, aimed at draw­ing public at­ten­tion to the prob­lem of re­sort fees. The ini­tia­tive, backed by Trav­el­ers United, a Washington ad­vo­cacy group, also re­leased a white pa­per urg­ing the gov­ern­ment to take en­force­ment ac­tions against ho­tels that col­lect manda­tory re­sort fees from guests but do not in­clude them in ad­ver­tised nightly rates.

“The charg­ing of manda­tory re­sort fees by ho­tels re­sults in a mis­rep­re­sen­ta­tion of the true price of the ho­tel room,” says Char­lie Leocha, the pres­i­dent of Trav­el­ers United. He called the prac­tice of quot­ing a low price and then adding a manda­tory fee later in the book­ing “drip pric­ing,” which is “harm­ful to con­sumers and un­der­mines fair com­pe­ti­tion.”

Trav­el­ers United says that the FTC is in­cor­rectly in­ter­pret­ing the FTC Act and that it should take ac­tion to end re­sort fees im­me­di­ately by is­su­ing for­mal guid­ance that not in­clud­ing re­quired fees in the nightly rate is de­cep­tive and a vi­o­la­tion of Sec­tion 5 of the FTC Act. (Dis­clo­sure: I co-founded Trav­el­ers United, but I am no longer in­volved in the or­ga­ni­za­tion.)

The FTC would not com­ment on the as­ser­tions made by Trav­el­ers United.

But this spec­ta­cle might be com­ing to an end soon. The Depart­ment of Trans­porta­tion (DOT) has a “full fare” advertising rule that re­quires online travel agents and air­lines to ad­ver­tise the com­plete price paid to the air­line or travel agent by the cus­tomer. The rule doesn’t cur­rently ap­ply to most re­sort fees, be­cause air­lines don’t col­lect the fees. But ad­vo­cates are also pres­sur­ing DOT to tighten its dis­clo­sure rules, and if they suc­ceed, it would put the agen­cies at odds with one another. The FTC says it is co­or­di­nat­ing with DOT to en­sure that re­sort fees are clearly dis­closed.

In the mean­time, be mind­ful of manda­tory re­sort fees that are re­vealed only af­ter you start the book­ing process. They’re le­gal, for now. But you can al­ways exit the screen or hang up the phone and book a dif­fer­ent ho­tel. And noth­ing sends a mes­sage about re­sort fees quite like an aban­doned reser­va­tion.

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