DOT Proposes Five New Measures to Enhance Airline Passenger Protections

On December 8, 2008, the Department of Transportation (DOT) published an Advance Notice of Proposed Rulemaking (ANPRM) to adopt and amend rules that would seek to enhance airline passenger protections, protect consumers from unfair or deceptive practices, and ensure safe and adequate service in air transportation.¹ The DOT issued the ANPRM in response to the many recent well-publicized instances of long on-board delays on the tarmac and ongoing problems of lengthy flight delays. The DOT published the December 8, 2008 ANPRM in response to the over 200 comments it received to its earlier November 15, 2007 ANPRM,² which covered: (1) contingency plans for lengthy tarmac delays; (2) carriers’ responses to consumer problems; (3) chronically delayed flights; (4) publishing delay data on websites; (5) publishing complaint data on websites; (6) reporting on-time performance of international flights; and (7) creating and auditing customer service plans.

The comments reveal, in general, that the flying public and consumer associations believe that the DOT’s original proposals don’t go far enough. Not surprisingly, the air carriers, air carrier associations and other industry associations believe that the proposals go too far because the proposed regulations are unnecessary, unduly burdensome and are in response to factors outside of their control, such as weather and air traffic control operations.³

The 2008 ANPRM includes five proposed measures in which the DOT seeks to balance the rights of the passenger with undue burdens placed on the air carriers:

1) Require that carriers adopt contingency plans for lengthy tarmac delays and incorporate them into their contracts of carriage

The DOT proposes to adopt a new rule 14 C.F.R. Part 259, which, among other things, would require any certificated or commuter air carrier⁴ that operates domestic scheduled passenger service using aircraft with a designed capacity of more than 30 passenger seats to develop a contingency plan for long tarmac delays of scheduled and public charter flights and to adhere to the plan’s terms.⁵ The proposed rule would require each air carrier to incorporate its contingency plan into its contract of carriage. The contingency plan, at a minimum, would have to include the following:

• the maximum tarmac delay that the carrier will permit
• the amount of time on the tarmac that would trigger the plan’s terms
• the assurance of adequate water, food, restroom facilities, and medical attention, if necessary, while the aircraft remains on the tarmac⁶
• assurance that the carrier has adequate resources to implement the plan
• assurance that the plan has been coordinated with the airport authorities at medium and large hub airports

The proposed rule also would require air carriers to retain for two years any information about ground delays that either (1) trigger the contingency plan or (2) last for more than four hours. Information retained would include the length of the delay, the cause of the delay and the actions taken to minimize the hardships to the passengers (e.g., food and water, working lavatories, etc.).

The DOT would consider a carrier’s failure to comply with any of the above-mentioned requirements, including implementing the plan as written, to be an unfair and deceptive practice, and the airline would be subject to enforcement action as well as the imposition of civil penalties. Significantly, if the carrier failed to adhere to its contingency plan, then passengers could pursue a private right of action for breach of contract directly against the carrier.

In adopting this approach, the DOT tentatively rejected suggestions of consumer groups and Senators Barbara Boxer (D-CA) and Olympia Snowe (R-ME) that the DOT should set minimum standards for the contingency plans. The DOT, however, continues to maintain that it is best to have the carriers set the terms of their own plans and to rely on the courts and enforcement actions to ensure that the terms are followed. The DOT requests specific comment on whether a final rule should include a uniform standard for the time interval that would trigger the carriers’ contingency plan and/or a uniform standard for the time interval after which carriers would be required to allow passengers to deplane. The DOT also invites specific comment on the implications of creating a private right of action – a move the DOT believes creates a strong incentive for carriers to adhere to their plans.

2) Require carriers to respond to consumer complaints

The proposed new regulation, 14 C.F.R. Part 259, would require any certificated or commuter air carrier that operates domestic scheduled passenger service using aircraft with more than 30 passenger seats to respond to passenger complaints in the following ways:

• At each airport or system operations center, designate an employee who is responsible for monitoring the effects of flight delays, flight cancellations, and lengthy tarmac delays on passengers and has input into decisions on which flights to cancel and which to delay.
• Make information available on its website, on e-ticket confirmations, and upon request at the ticket counter on how to file a complaint with the carrier (e.g., name, office, address, telephone number). Carriers would have 180 days to modify their websites and reformat their e-tickets before this requirement would take effect.
• For each complaint filed, acknowledge receipt within 30 days and provide a substantive response, addressing the specific problem raised in the complaint, within 60 days.

In adopting this approach, the DOT rejected suggestions of consumer groups for a shorter response period (e.g., 24 hours for acknowledgement and 30 days for a substantive response), and addressed the concerns of the air carrier associations by clarifying that it is not the intent of the proposed rule for the carrier to hire new employees. The DOT also rejected the contentions of the air carrier associations that requiring carriers to change the format of the e-tickets to accommodate this information is redundant and burdensome.

3) Declare chronically delayed flights to be unfair and a deceptive trade practice

The proposed amendment to 14 C.F.R. Part 399.81 would set forth the DOT’s stance on chronically delayed flights. According to the amendment, the DOT would consider flights that continue to be chronically delayed for three consecutive quarters to be a deceptive practice and unfair method of competition within the meaning of 49 U.S.C. § 41712 and subject to an enforcement action. The proposed rule defines a flight as chronically delayed if it is operated at least 30 times⁷ in a calendar quarter and arrives more than 15 minutes late more than 70 percent of the time. The proposed amendment also would consider all flights in a given city-pair market, with scheduled departure times within 30 minutes of each other, one single flight for purposes of assessing chronic delays.
 
Importantly, the DOT decided not to apply this proposed rule to small carriers due to the substantial cost burden. Additionally, in response to comments from the carrier associations and airlines regarding the stifling of competition with foreign air carriers, the DOT also rejected including foreign air transportation – international flights – in the definition of chronically delayed flights. The DOT also tentatively rejected suggestions by consumer groups for a lower threshold to trigger enforcement, i.e., 15 minutes late more than 50 percent of the time for two consecutive quarters. The DOT believes that adopting a more stringent threshold could lead to a large number of flight cancellations and, possibly, the elimination of certain routes to some communities. The DOT, nonetheless, specifically invites comments on this issue.
 
In adopting this approach, the DOT attempts to strike the appropriate balance between consumers’ need for reliable information about the actual arrival time of a flight and the carriers’ inability to control or predict the weather and other factors affecting delays. Interestingly, for enforcement purposes, the DOT also is considering an option of not treating chronically delayed flights as a deceptive and unfair trade practice if every passenger is on notice (using any available channel) of the chronic delay.

4) Require carriers to publish delay data on their websites

The proposed amendment to 14 C.F.R. 234.11 would require carriers that report on-time performance data to the DOT (i.e., any certificated U.S. carrier that accounts for at least 1 percent of US domestic scheduled passenger revenue in a 12-month period) to publish on their websites, at a point before purchase, the following information regarding the flight’s performance during the latest reported month:

• the percentage of on-time arrivals (within 15 minutes of the scheduled arrival time)
• the percentage of arrivals that were more than 30 minutes late with special highlighting if the flight is late more than 50 percent of the time
• the percentage of cancellations

The carriers will be able to comply with the rule in one of the following ways:

• showing the percentage of on-time arrivals on the initial listing of flights and disclosing the remaining information on a later page at some point before purchase
• showing all of the required information via a hyperlink on the page with the initial listing of flights

In adopting this approach, the DOT tentatively rejected the suggestion of consumer groups for a lower threshold, i.e., that arrivals more than 15 minutes late more than 40 percent of the time be disclosed and also that online travel agencies be required to publish the same information. Finally, the DOT tentatively rejected the suggestion as unduly burdensome and dubious that carriers should be required to provide this information unsolicited during telephone bookings.

5) Require carriers to audit their adherence to their customer service plans

The proposed new regulation, 14 C.F.R. Part 259, would require every U.S. air carrier that accounts for at least 1 percent of US domestic scheduled passenger revenue to adopt a customer service plan for its scheduled service and any public charter flights that it sells directly to the public and to adhere to the terms of its plan.
 
Unlike the 2007 ANPRM dealing with the same issue, however, this proposal would require that carriers incorporate their plans into their contracts of carriage. This would provide passengers a private right of action in the event that a carrier does not comply with the terms of its plan. The failure of a carrier to comply with the terms of its customer service plan would be considered a deceptive practice and unfair method of competition within the meaning of 49 U.S.C. § 41712 and subject the carrier to an enforcement action. The proposed rule also would require each carrier to audit its own adherence to its plan annually and make the results of the annual audit available to the DOT for two years.
 
The customer service plan, at a minimum, would have to address the following:

• lowest fares available
• notifying consumers of known delays, cancellations, |and diversions
• delivering baggage on time
• allowing reservations to be held or cancelled
• providing prompt ticket refunds
• properly accommodating disabled and special-needs passengers
• meeting customers’ essential needs during long on-aircraft delays
• handling “bumped” passengers with fairness and consistency
• disclosing travel itinerary, cancellation policies, frequent flier rules, and aircraft configuration
• ensuring good customer service from code-sharing partners
• improving response to customer complaints

The purpose of the proposed rule is to afford passengers better protections and improved customer service. In adopting this approach, the DOT tentatively rejected the suggestions of consumers and consumer associations that the DOT should set standards for the audits and review all audits. The DOT, however, also rejected the suggestions of the carriers against requiring audits because of its concern that some carriers are not living up to their customer service promises. The DOT specifically requests comments on the implications of creating a private right of action, potential benefits to passengers, potential negative consequences and the costs to carriers.

Significantly, the DOT in the December 8, 2008 ANPRM rejected two proposals that were a part of the November 15, 2007 ANPRM that would have required air carriers to publish complaint data on their websites and report on-time performance of international flights. The DOT declined to propose rules with respect to each of these categories based upon comments it received and its own analysis that revealed that such rules would be of little to no value to consumers.

Although the DOT recognizes that many of the proposed measures do not come without a financial cost to the airlines in both their implementation and operation, it believes that the benefits to the traveling public outweighs any costs. Specifically, the DOT is seeking to relieve consumers of the burdens resulting from lengthy ground delays and chronically delayed flights, in addition to affording consumers significantly more information about delayed and cancelled flights and about how carriers will respond to their needs during lengthy ground delays. The DOT believes that this new information will not only alleviate consumers’ difficulties during long delays but also enable them to make informed choices when booking flights.

While DOT Proposes New Passenger Protection Rules, Senate and House Reintroduce 2009 Bills on Airline Passenger Bill of Rights

Members of the 111th Congress have recently reintroduced new Airline Passenger Bill of Rights legislation into Congress. Senators Barbara Boxer (D-CA) and Olympia Snowe (R-ME) introduced Senate bill S. 213⁸ on January 12, 2009, and Representative Mike Thompson (D-CA) introduced an identical bill, H.R. 624,⁹ just a week later on January 21, 2009. The new legislation, also known as “Airline Passenger Bill of Rights Act of 2009,” would amend Chapter 417 of Title 49 of the United States Code.
 
S. 213 and H.R. 624 call for more comprehensive requirements on air carriers and airport operators to improve air passenger services and protections. For example, air carriers and air operators are required to submit proposed contingency plans to the Secretary of Transportation, no later than 60 days after the enactment of the legislation or face civil penalties for their failure not to submit, obtain approval of, or adhere to the plans. The plan would specifically require air carriers to:

• provide passengers with the option to deplane a boarded aircraft, subject to several exceptions, if three hours have elapsed after a flight departure delay or a disembarkation delay
• provide adequate food, water, restrooms, and also comfortable cabin temperature and ventilation, and access to necessary medical treatment upon a departure delay or a substantial disembarkation delay
• submit a written description of any tarmac delay exceeding three hours, and its resolution, to the Aviation Consumer Protection Office of the Department of Transportation no later than 30 days after the incident
• ensure public access to an approved plan by including the plan on the air carrier’s website or disseminating the plan by other means, as determined by the Secretary of Transportation

S. 213 and H.R. 624 would require airport operators to submit proposed contingency plans that contain descriptions of (1) how the airport operators will provide for the deplanement of passengers following a long tarmac delay, and (2) how the airport operator will provide for the sharing of facilities and make gates available at the airport for use by the aircraft experiencing such delays. Air carriers and airport operators must also submit periodic reviews and updates of the plans.

The 2009 bills direct the Secretary of Transportation to establish a consumer complaint hotline telephone number for the use of passengers. Additionally, the two bills would apply to aircraft that have been diverted to an airport other than the original destination.

Conclusion

The DOT’s proposed measures are arguably more onerous on the airlines than the 2009 House and Senate bills. Not only would air carriers and airports have to create contingency plans addressing flight delays, as sought in S. 213 and H.R. 624, but air carriers also would have to establish specific mechanisms to respond to consumer complaints, publish delay data on their websites and audit their adherence to their customer service plans. Additionally, the DOT measures would subject the airlines to lawsuits, since passengers would be given a private right of action for breach of contract directly against the carrier, and possible enforcement action by the DOT if the air carrier’s flights are continuously and chronically delayed. It will be interesting to see whether the DOT’s proposed passenger protection rules become law before Congress enacts actual legislation in this area.

1 See Enhancing Airline Passenger Protections, 73 Fed. Reg. 74585 (Dec. 8, 2008). 

2 See Enhancing Airline Passenger Protections, 72 Fed. Reg. 65233 (Nov. 15, 2007). 

3 Of the approximately 200 comments that the DOT received in response to the November 15, 2007 ANPRM, 13 were received from air carriers, air carrier associations and other industry trade associations, and the rest were received from consumers, consumer associations, and two U.S. Senators (Senators Barbara Boxer (D-CA) and Olympia Snowe (R-ME)). 

4 A certificated air carrier is a U.S. direct air carrier that holds a certificate issued under 49 U.S.C. §41102 to operate passenger and/or cargo and mail service. Air taxi operators and commuter air carriers operating under 14 C.F.R. Part 298 are exempted from the certification requirements of 49 U.S.C. §41102. A commuter air carrier is an air taxi operator that carries passengers on at least five round trips per week on at least one route between two or more points according to published flight schedules, using small aircraft, i.e., aircraft originally designed with the capacity for up to 60 passenger seats. 

5 If the carrier is required to develop a contingency plan, the plan would also apply to the carrier’s flights utilizing an aircraft having a designed capacity of 30 or fewer seats. 

6 The proposed rule does not address ventilation because the DOT states that it does not have the basis to assess the adequacy of ventilation or require potentially significant modifications to aircraft. 

7 The 2007 ANPRM defined a chronically delayed flight as a flight by a covered carrier that operates at least 45 times in a calendar quarter and arrives more than 15 minutes late more than 70 percent of the time. 

8 S. 213, 111th Cong. (2009). 

9 H.R. 624, 111th Cong. (2009).