Airline passenger “Bill of Rights” legislation resurrected

On January 12, 2009, Senator Barbara Boxer reintroduced the Airline Passenger Bill of Rights Act with co-sponsor Senator Olympia Snowe.  Senator Boxer had introduced a similar bill in 2007, with Senator Snowe as its co-sponsor, but it was not enacted.  The pending bill, S. 213, has been referred to the Committee on Commerce, Science and Transportation.  Representative Mike Thompson introduced the identical House version, H.R. 624, which has been referred to the Committee on Transportation and Infrastructure.

The legislation would require that each “air carrier” (i.e., U.S. airline) submit a contingency plan for DOT review and approval that requires, where “the departure of a flight is delayed or disembarkation of passengers on an arriving flight that has landed is substantially delayed,” the provision of (i) “adequate food and potable water,” (ii) “adequate restroom facilities,” (iii) “cabin ventilation and comfortable cabin temperatures,” and (iv) “access to necessary medical treatment.”

The contingency plan must also “provide passengers with the option of deplaning and returning to the terminal at which such deplaning could be safely completed, or deplaning at the terminal” if “3 hours have elapsed after passengers have boarded the aircraft, the aircraft doors are closed, and the aircraft has not departed,” or “3 hours have elapsed after the aircraft has landed and the passengers on the aircraft have been unable to deplane.”

The option to deplane must be “offered to passengers at a minimum not less often than once during each successive 3-hour period that the plane remains on the ground.”

However, passengers would not have the option to deplane if the pilot “reasonably determines that the aircraft will depart or be unloaded at the terminal not later than 30 minutes after the 3 hour delay” or “that permitting a passenger to deplane would jeopardize passenger safety or security.”

The legislation would also require that airport operators submit contingency plans describing how they would handle passenger deplanements following long ground delays, as well as create a telephone complaint hotline for airline passengers.

In introducing S. 213, Senator Boxer made the following remarks:  “In 1999, the airlines had an opportunity to address the stranding of airline passengers on tarmacs across the country, but despite those efforts little has changed.  Last March a Federal appeals court ruling struck down New York State’s Passenger Bill of Rights law, stating that it is up to the Congress to set a national Federal standard.  Our legislation also includes a few additional provisions from the FAA Reauthorization bill passed by the House in the last Congress.  Our bill requires airports to develop plans to handle stranded passenger aircraft and creates a DOT hotline for consumer complaints.  It would also permit the DOT to levy fines against air carriers or airports that do not submit or adhere to the contingency plans.”

One cannot argue against the concept of access to adequate food, water, restrooms, fresh air and medical attention during a long ground delay.  The battleground will be the passengers’ right to deplane.  The concept of giving passengers the right to deplane looks harmless and plays well with the voting public.  The reality of exercising this right, and its unintended adverse consequences, is a different matter.

Under the legislation, a few passengers, or even a lone passenger, could exercise the right to deplane even if other passengers did not wish to do so.  Thus, one passenger could force the aircraft to leave its place in line on the taxiway and return to the terminal so he or she could deplane even if all the other passengers wished to remain on the aircraft.  Even if the bills were modified to require some form of passenger consensus in order to deplane, what form would that consensus take?  Would a majority of passengers be required?  If so, how would the passengers vote?  Voting might be feasible on a 70-passenger regional jet, but how would voting be conducted on an A380 loaded with 853 passengers?  Who would oversee the voting?  Would flight attendants serve as poll watchers, with the pilots serving as judges to scrutinize the “hanging chads”?

Even if the passengers were to vote to return to the terminal, the typical 75-foot wide taxiway is too narrow to permit an aircraft to make a “u-turn” and taxi past the aircraft in line behind it back to the terminal.  And what would happen if the aircraft did return to the terminal?  The aircraft would lose its place in line and it is likely that the flight would be canceled due to scheduling issues or crew rest requirements.

Some commenters have suggested the use of specialized buses and hardstands to allow deplaning without returning to the terminal, but requiring airlines and airports to make these equipment and infrastructure enhancements is likely to result in higher fares.  These same commenters have argued that taxiway deplanements will not result in canceled flights because only those passengers who wish to deplane would do so, leaving the remaining passengers to continue on the flight.  But what about the checked baggage of those passengers who wish to deplane?  If passengers with checked baggage are allowed to deplane, their baggage will fly without them.  Although the concept of deplaning on a taxiway seems like such a simple solution, it is not so simple after all.

While S. 213 and H.R. 624 move through Congress, DOT is moving along a parallel track with its “Enhancing Airline Passenger Protections” notice of proposed rulemaking (Docket No. DOT-OST-2007-0022).  Like the pending bills, the proposed regulations would only apply to U.S. airlines.  The most controversial element of the proposed regulations is the requirement that airlines adopt a “contingency plan for lengthy tarmac delays” and a “customer service plan” (covering matters such as “offering the lowest fare available” and “notifying consumers of known delays”) and incorporate such plans into their contracts of carriage.  In comments on the NPRM, ATA argued that DOT lacks the authority to dictate contract terms between airlines and their passengers, while passenger advocates criticized the proposed regulations for failing to set minimum standards for the contingency plans.

Update:  DOT’s final rule was published on December 30, 2009 and took effect on April 29, 2010.  Among other things, the rule requires that each covered U.S. airline adopt a “Contingency Plan for Lengthy Tarmac Delays” that includes an assurance that, for domestic flights at large and medium hub airports, the airline will not permit an aircraft to remain on the tarmac for more than three hours, unless certain safety or security conditions apply.  The rule provides that its violation is considered an unfair and deceptive practice within the meaning of 49 U.S.C. § 41712; this means that a violation could result in, pursuant to 14 C.F.R. § 383.2, a civil penalty of up to $27,500 per violation.

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