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Air Passengers’ Bill of Rights: Good or Bad?

The current draft Senate version of this year’s FAA reauthorization bill (S.1451) includes a “passengers’ bill of rights.” Industry sources believe the final version of the reauthorization—essential to keep air traffic control up to snuff technologically—is likely to include that bill-of-rights provision. It has enjoyed a lot of support from self-styled “consumer advocates” over recent years, and that support broadened substantially with the latest incident at Rochester, Minnesota.

As with so many such initiatives, the industry’s dismal failure to solve its own problems makes government action seem “necessary.” But more government rules don’t always solve a problem. A dubious reader recently asked, simply:

“Will this so-called ‘bill of rights’ really solve the problem or will it just create more problems?”

The short answer is, “Yes.” As is so often the case, the final outcomes will be a mix of intended and unintended consequences. It will largely—although not completely—solve the tarmac delay problem, but it will also create others. Here’s what I hope is a balanced take.

What the Bill Does Say …

As currently out of subcommittee, the bill requires each U.S.-based airline to:

  • Provide “essential needs” for passengers stalled on airport tarmac for “substantial” delays, including adequate food and water, adequate restroom facilities, cabin ventilation, and access to necessary medical treatment. Provisions apply both to departing planes waiting for takeoff clearance and to arriving planes waiting for gate space to unload.
  • Give passengers the opportunity to deplane after three hours on the ground, subject to exception when the pilot believes the plane is likely to be able to depart or unload within another 30 minutes or when deplaning would jeopardize passenger safety.
  • Submit a plan to the Department of Transportation within 60 days showing how the line will implement the bill’s requirements. The DOT then has up to six months to review and accept (or potentially reject as inadequate) those plans.
  • Incorporate the accepted plan into the official passenger contract and make it available to the public.
  • Notify passengers buying tickets when they select a flight that is chronically delayed or cancelled.

Airport operators, too, are required to develop and submit contingency plans for dealing with ground delays, under the same general timetable. Airlines and airports failing to get their plans approved within the specified time limits will be subject to fines.

Beyond the provisions related to extended delay, the bill calls for DOT to establish a consumer hotline for air passengers’ complaints. And DOT must publish data on chronically delayed flights. The bill also calls for DOT to establish and advisory commission for aviation consumer protection and for airlines to make full disclosure of all fees they impose on travelers beyond base airfares. The delay portions, however, are obviously the bill’s crucial elements.

… And What it Doesn’t Say

The number one gaping hole in the proposed passenger “protection” bill is that it does not specify what should happen if the airlines fail to meet the proposed three-hour standards. Presumably, those provisions will be in each airline’s plan, and DOT will reject any that do not satisfy it. However, nothing in the bill guarantees that airlines will agree to compensate travelers adequately. Certainly, in the most recent case, Continental’s offer was extremely stingy.

To me, it seems obvious that each airline’s plan should promise at least two basic rights:

  • Compensation to travelers involved in long delays, not fines to DOT. My suggestion is that each passenger caught in a tarmac delay should receive something like $100 for each hour beyond the three-hour limit.
  • Guaranteed top priority for a seat on a future flight for anyone who decides to deplane during the delay process, regardless of the sort of ticket they hold.

At this point, you can bet that the airlines’ initial plans will low-ball any traveler compensation. The submit-and-review process, however, will likely result in a quick consensus among airlines and DOT on acceptable minimum procedures and compensation. Nobody knows how tough (or lenient) that final consensus point will be. But if it isn’t tough, the whole process will turn out to be a sham.

A second hole in the bill is that it doesn’t direct airports and the FAA to modify procedures so that when a plane waiting to take off has to return to a gate to allow passengers off, it can retain its position in the takeoff queue. Keeping position is one reason so many pilots elect to wait for clearance, and changing the rules would help reduce delays significantly.

A third hole is that the bill doesn’t require airlines to make gates and gate service available to other airlines with flights delayed at airports where they don’t have gate facilities or their gates are fully occupied.

Presumably, these holes can and will be fixed by the required plan-and-review process. But there’s no mandate.

Expect Fewer Long Delays …

As long as the final airline plans include some real penalties for failure, the bill will almost certainly reduce the number of extended tarmac delays. Airlines hate to pay out money, and if delay penalties are stiff enough, the airlines will surely figure ways to avoid paying.

They won’t however, be able to avoid all delays. In some cases, for example, local weather conditions will prevent planes from getting back to a terminal, or leave all gates occupied with no room for a returning plane, or make it impossible for an airport to reach a plane with food, water, or movable stairs. At this point, it’s impossible to say what percentage of the long delays the bill will not prevent, but it will be an appreciable number.

… Along With Unpleasant Consequences

The most likely unintended consequence of the proposed new rules will be more cancellations and diversions. If the penalties for long delays are substantial, airlines will do whatever it takes to avoid them. That means cancelling or diverting any flight that an airline foresees runs any significant risk of substantial delay at either its origin or destination point. That means cancelling many flights that could actually complete their trips. And, given the way planes are scheduled, each initial cancellation means downstream cancellations of other flights planned for the airplane involved in the first one.

A few years back, such cancellations wouldn’t have been a severe problem: Airlines had enough spare capacity to absorb most cancellations within a few hours or, at most, a day. But in these days of 80+ percent load factors, travelers on cancelled flights might have to wait more than a day for a new seat. I’m sure that lots of travelers would rather ride out a long tarmac delay than have to go back to a gate, get off, and then fight for the next available seat.

Even if a flight isn’t cancelled, going back to the gate for offloading—maybe when just one passenger wants to deplane—would add at least an hour or two to the total ground delay. The delay would be even worse if the new rules require an airline to retrieve deplaning travelers’ baggage.

Missing the Bigger Targets

In discussing problems in Washington, a political pundit once differentiated between “screwups” and “evil intentions.” Clearly, long tarmac delays are screwups, usually triggered by unpredicted bad weather: They don’t “save” airlines any money; they cost money, and airline managements are as eager as passengers to eliminate them. And they’re extremely rare.

The case in Minnesota was a classic screwup: The two airlines, the airport, and TSA all initially blamed each other for the fiasco; later investigation revealed that a third airline may have been the real culprit. And the whole hassle was caused by someone’s incorrect assumption. It could have been prevented had someone with common sense stepped up and taken charge. Instead, everyone dithered.

In my experience, rules designed to penalize rare screwups all too often wind up creating more problems than they solve. I much prefer that rules be directed at evil intentions, of which there are plenty in the airline case. My own “Bill of Rights” would zero in on at least two situations where evil intentions currently outweigh screwups. It would provide:

  • In cases of delay or cancellation, mandatory and universal Rule 240 ” transfer to another airline when it can get a traveler to his/her ticketed destination more than two hours earlier than the traveler’s initially ticketed airline.
  • Equitable treatment for frequent flyers—specifically, minimum levels of award seats at base mileage levels.

Those are just for starters; you and I can probably think of others. For now, however, we’ll have to live with the tunnel vision on long delays. Let’s hope that the benefits outweigh the downsides.

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