New York Enacts New Airline Passenger Rights Legislation:

New York Governor Eliot Spitzer recently signed airline passenger rights legislation (S. 5050C) that is intended to provide basic consumer protections to passengers on severely delayed flights operating out of New York.¹ In signing the bill, the Governor indicated that the measure was spurred by several recent airline service breakdowns in which passengers found themselves on delayed airplanes for extended periods without access to food, water and other basic comforts.² The new law, scheduled to take effect in January 2008, will apply to all airlines, both U.S. and foreign, that provide scheduled air service to or from New York. In brief, the bill requires airlines operating at airports in New York state to provide power for fresh air and lights; working restrooms; and adequate food, drinking water and other refreshments for passengers on planes that leave the gate but experience departure delays longer than three hours. The bill purports to cover any airline regulated by the Federal Aviation Administration that conducts scheduled passenger air transportation.

The bill also creates an Office of Airline Consumer Advocate, for the purpose of investigating and resolving complaints under the new law, and imposes certain obligations upon carriers to inform passengers of their rights under the law. Specifically, the bill mandates that “all air carriers provide consumers with notice of complaint contact information to be posted at all service desks and other appropriate areas.” The bill authorizes the Consumer Advocate to refer any violations of the new law by airlines to the New York State Attorney General’s Office, which could seek a civil penalty of up to $1,000 per passenger per violation.

It is anticipated that there will be legal challenges to the validity of the law, including a challenge by the U.S. Department of Transportation (DOT). The Airline Deregulation Act contains a provision that expressly preempts any state law that relates to airline prices, routes or services.³ By passing a bill that purports to prescribe airline services (and remedies for service deficiencies), New York has both usurped DOT’s jurisdiction in this area and raised the specter of airlines being subject to different (or, even worse, conflicting) regulations by each of the fifty states.

The federal courts have been quite hostile to state efforts to regulate airline services. For example, several years ago, several states tried to impose their own fare advertising requirements upon air carriers, even though carriers already were subject to pervasive federal regulation in that area. This measure was struck down by the U.S. Supreme Court in Morales v. Trans World Airlines.⁴

As with fare advertising, air carriers already are subject to a litany of requirements pertaining to customer service. Moreover, given that Congress itself is considering the imposition of new requirements concerning the accommodations that airlines must provide to passengers in the event of an extended service delay, there is a high likelihood of a similar legal challenge in this instance. Thus far, airline trade associations have expressed to the governor of New York strong concern about the legality of this new law and have indicated their intent to seek further recourse if the New York state legislation is implemented as planned.

Congress is also considering new passenger rights legislation. Unlike New York’s attempt to cover foreign air carriers, the Senate bill (S. 678) would cover only certificated air carriers (i.e., U.S. air carriers) that conduct scheduled passenger air transportation.⁵ It would require airlines to provide adequate food and potable water as well as adequate restroom facilities for any delayed departure. Further, it would require airlines to provide passengers with the option to deplane if more than three hours has passed since the passengers boarded and the aircraft doors have closed. Airlines would have to provide this opportunity to deplane for every three-hour period that the aircraft remains on the ground. (The deplaning provision does not apply if the pilot reasonably determines that the flight will depart no later than 30 minutes after the three-hour delay, or for safety or security reasons.)

The corresponding bill in the House of Representatives, H.R. 1303,⁶ also covers only certificated air carriers that conduct scheduled passenger air transportation. Similarly, it would require airlines to provide adequate food and water or restrooms, but it also specifies medical access, adequate ventilation and comfortable cabin temperatures as additional essential needs. Further, H.R. 1303 would require airlines to implement procedures to permit passengers to deplane in the case of both departure and arrival delays that exceed three hours. The House bill also contains an exception to this requirement in cases where the pilot reasonably believes the flight will depart no later than 30 minutes after the three-hour delay, or for safety or security reasons. The House bill further permits the pilot to extend this 30-minute period by another 30 minutes in case of an unexpected extension of the delay. Other highlights of the House bill include provisions concerning:

• airlines’ handling of passenger complaints
• the provision of timely, reasonable and truthful information about delays, cancellations or diversions
• monthly publication of information about chronically delayed flights on airline Web sites, as well as a requirement to inform passengers (without being asked) at the time of ticketing about the on-time performance of chronically delayed flights
• publication and timely updates to lowest fare information on airline Web sites
• reasonable efforts to return lost baggage within 24 hours of a passenger claim

Needless to say, the service failures that have afflicted domestic carriers in recent months have had far-reaching ramifications. While the future changes to airline consumer protection laws are very much a “work in progress,” it is almost certain that we will see both litigation to challenge the new law as well as some enhancements to the Department of Transportation’s consumer protection rules in the coming months.⁷ Indeed, it seems likely that federal authorities will seek to impose their own rules in these areas in order to forestall further attempts by the states to impose their own remedies.

² See Press Release at http://www.ny.gov/governor/press/0802072.html.

³ 49 U.S.C. § 41713.

⁴ 504 U.S. 374 (1992).

⁵ A copy of S. 678 may be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s678is.txt.pdf

⁶ A copy of H.R. 1303 may be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h1303ih.txt.pdf

⁷ At the moment, the Department of Transportation is seeking public comments on the need to amend its regulations concerning the compensation paid to ticketed passengers when an airline fails to board them.