May 9, 2023

DOT and White House Adopt Tougher Stance on Airline Service Delays, Cancellations

Holland & Knight Aviation Law Blog
Anita M. Mosner
Aviation Law Blog

The U.S. Department of Transportation (DOT) and the White House on May 8, 2023, each made significant announcements concerning airline passenger rights, which are summarized below.

First, DOT[1] announced that it is expanding its Airline Customer Service Dashboard, an online tool that summarizes the benefits and services various U.S. airlines will provide in case of a serious flight delay or cancellation.

Second, DOT announced that it will be issuing a new Notice of Proposed Rulemaking (NPRM) that, if made final, would require U.S. airlines experiencing controllable flight cancellations and significant delays to provide passengers with meals, hotel accommodations and other items and reimburse them for other expenses incurred. Though the proposal is short on details, DOT said that it would, in addition to the items above, require airlines to provide "timely" customer service during and after periods of widespread flight irregularities. The NPRM also would attempt to define what is a "controllable cancellation or delay," an item likely to trigger considerable controversy.

DOT indicated only that it has "initiated" the rulemaking process and did not indicate a precise date for the issuance of the proposal for review and public comment. Given that the NPRM would have to be drafted, then go through an extended public review and comment process, it may be some time before U.S. carriers see any concrete change in this regard. While rulemakings quite often are time-consuming, we anticipate considerable questions and controversy surrounding the definition of a "controllable cancellation or delay" and what might constitute "timely customer service" during and after periods of widespread flight irregularities. In addition, all comments made in response to the NPRM would have to be reviewed and addressed before the proposal can be revised as needed and issued in final form.

Amplifying the announcements made by DOT, the White House issued a formal statement concerning these initiatives, with President Biden noting his concern about air service disruptions during holiday travel periods, saying that "the American taxpayer, stepped up in 2020, in the last administration, in the early days of the pandemic, to provide nearly $50 billion of assistance to keep the airline industry and its employees afloat."[2]

Even though the to-be-issued NPRM may not be made final before the end of the Biden Administration, the fact that the White House issued its own separate statement on airline consumer rights itself suggests that this issue is of heightened visibility and sensitivity, which, in turn, suggests the DOT may take especially harsh positions on pending and future consumer enforcement matters. Consistent with this view, we have heard that DOT is very actively looking to expand its investigative and enforcement manpower.

The Holland & Knight Aviation Team can address the implications of these developments with you as needed.

[1] DOT press release.

[2] White House statement.

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