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Where the New DOT Proposals Fall Short

Overall, the new Department of Transportation (DOT) consumer protection proposals represent a huge potential gain for air travelers and for consumers, generally. Industry insiders are already painting the new proposals as excessive and unnecessary—a development that shouldn’t surprise you a bit. And although you might think that, taken together, these two responses indicate that DOT has done more than enough, my take is that the proposals fell short in a few key areas—maybe just a little bit, but short—of what you really need in the way of protection.


Overall, there’s a lot of good in the DOT proposals, as I’ve indicated, but they leave a few problems unresolved. My companion newspaper column summarized what I believe are the main shortcomings of the regulation on oversales. Here’s a bit more detail.

To me, the main challenge you face if you’re bumped is less about compensation and more about rescuing what’s left of your trip. In these days of record high load factors, you could wait many hours—even days—until you can get a seat on a satisfactory flight. In my view, new regulations should cover this prospect in far more detail than they do. I’d like to see three specific requirements:

  • If the airport where you’re bumped is more than 50 miles from your home and the airline can’t arrange a new flight the same day, it should be required to cover your meals and even overnight accommodations until it can get you a flight.
  • If another airline has an available flight that can get you to your destination earlier than your original airline can, your first line should be required to transfer you to the second line, with no increase in fare or extra charges. Currently, some airlines voluntarily transfer you to another line, but that is neither a required nor a universal practice. Before deregulation, “Rule 240” provisions in airline tariffs called for such transfers; that practice needs to be revived as a requirement. It must also be made applicable to any airline offering an acceptable flight, even among lines that do not have interline agreements.
  • If you’re bumped on the “going” potion of a round-trip or on the first flight of a connecting itinerary, the remainder of your ticket should be re-classed as “open” and unrestricted so that you have access to any available seat, not just a seat in your designated fare bucket, and you can reschedule your return without penalty or fare adjustment.

A second problem—not yet addressed in the DOT proposals—is to clarify the use of your original ticket. Current rules call for you to “retain” that ticket, but say nothing about how you can use it. Clearly, if it’s a nonrefundable ticket—or one coupon of a round-trip or connecting itinerary—you can’t just “use it” as is. At a minimum, you should be able to trade in its residual value on a new ticket without paying the usual change penalty.

Some airlines already follow some or all of these recommendations, but they need to be specified and required uniformly.

And although I list it last, my final recommendation is maybe the most important: Bumping compensation should be extended to cover all instances of denied boarding, not just instances due to overbooking. Obviously, weather problems should be excluded, but the rules should cover any instances of denied boarding for some travelers if the flight operates with the remaining passengers.

Full Fare Advertising

On the vital issue of honest airfare advertising, the DOT pushed the ball down the field, then settled for a field goal on first-and-goal. Nobody with any sense seems to understand why the DOT wants to outlaw all sorts of other shenanigans with fees and extra charges, but balks at the biggest and most frequent deception of all: “Each-way based on round-trip purchase.” As I understand the history, many years ago, one senior DOT official pushed to OK each-way fare postings to help the (then) many bucket shops selling charter flights that could “mix and match” with separate arrival and destination airports overseas. Even though that was a bad call then, those charter markets are long gone, and a rule to protect them is inexcusable now.

Today, several big low-fare airlines sell their cheapest tickets on a one-way basis. Their each-way fares are buyable. Low each-way-on-a-round-trip fares from their legacy competitors are not buyable. Allowing the legacy lines to lie to the public puts the low-fare lines at a competitive disadvantage. Everyone seems to want a “level playing field” for airfare advertising. The DOT should know that a field permitting “each way based on round-trip purchase” is not level. If the only way you can buy a ticket is round-trip, then the airline must post only the round-trip price.

The DOT’s proposal also fails to mention—specifically—the growing problem of “almost but not quite” mandatory booking fees. For now, both Allegiant and Spirit charge stiff “fees” to book online, and the only way you can book without a fee is at an airport. Obviously, for most people, schlepping to an airport, paying a parking fee, and standing in line at a counter costs a lot more in money and time than online booking, so almost everyone winds up paying the fee. Online booking is actually much cheaper for an airline than in-person booking at an airport, so the online fee is really a scam to hide a near-mandatory extra. DOT previously looked at this issue and came to the wrong conclusion. I hope that this time it will correct the earlier mistake.

Choice of Forum Provisions

A companion “On Travel” column will soon post some detail on the hidden “choice of forum” and “arbitration” traps that you find in many travel contracts. The DOT’s proposal to prohibit airlines from using forum clauses is excellent. My only suggestion is that DOT should also exclude mandatory arbitration clauses. As far as I know, no U.S. airline currently imposes such contract terms. But if prohibited from using forum choice, some lines might decide to switch to arbitration. Let’s not let this cancer get started.

Peanut Allergies

With all my focus on fares and advertising, my initial response hardly mentioned the proposed ban on peanuts. Imagine my chagrin when I found that a huge majority of the public comments so far submitted to DOT dealt with peanut allergies. And a big majority of those wanted peanuts abolished—only a few took the position that “if you can’t stand peanuts, travel some other way,” or “too much government—let the airlines decide whether to offer no-peanuts flights.”
Apparently, peanut allergies are more prevalent than I thought. Given what I’ve seen, I suspect prohibition is a good idea.

Tarmac Delays

I’ve previously noted my worry that the unintended consequence of huge fines for extended delays—lots more cancelled flights—may be worse than the problem the proposals are designed to fix. We won’t really find out until next winter’s bad weather.

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