Cite as: 504 U. S. 374 (1992)
Stevens, J., dissenting
ments; (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.7 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, consequently, has a similar "significant impact" upon their rates.
For these reasons, I respectfully dissent.
7 They have not demonstrated, for example, that the costs of purchasing the space for the "Restrictions box" required by § 2.1, or the broadcast time to state the two-sentence disclosure required by § 2.2, will have a significant effect on rates. Nor can it realistically be maintained that § 2.7's requirement that words such as "sale," "discount," or "reduced" may only be used if the fare is, in fact, on sale (i. e., is available for a limited time and is substantially below the usual price) will hinder the airlines' ability to market and sell their low-priced fares. Finally, they surely have not proved that § 2.4's requirement that fares be advertised only if sufficient seats are available to meet demand or the extent of unavailability disclosed will make it impossible for the airlines to market and sell different seats at different prices. That section expressly permits the airlines to advertise low-priced fares that are available in limited quantities; it simply requires that they include a disclaimer, such as "This fare may not be available when you call." See National Association of Attorneys General, Task Force on Air Travel Industry, Guidelines § 2.4 (1988), reprinted in App. to Brief for United States as Amicus Curiae 24a-25a.
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