Proposed Airline
Passenger Bill of Rights 2.0
FlyersRights.org
Paul Hudson, President
800-662-1859
paul@flyersrights.org
Background and History of Air Travel since 1978
It
has now been 35 years since the airline industry was deregulated as to fares,
schedules, and service. Long past time for the Federal Government to review the
law and correct the abuses, inefficiencies and unintended consequences that
have degraded the nation’s public air transportation system in many ways.
Prior
to the enactment of the Airline Deregulation Act of 1978 (ADA), air travel
times decreased in each decade and reliability improved. Airlines were
regulated by the Civil Aeronautics Board (CAB) which approved flight schedules,
airfares, conditions and standards of service. The Federal Aviation
Administration (FAA) controlled the number of flights at major airports which
prevented congestion and operated the air traffic control system directly.
Aircraft
were placed in service each decade that were faster, more reliable, flight
crews were better paid, and had arguably higher standards of training and
experience. Finally, airport capacity increases and additions in the 1950s
through the 1960s kept up with increased air traffic.
Since
1978, there has been no net increase in major US airports, so the skies
around major cities such as New York and Chicago, whose need for an additional
airport have been blocked by entrenched special interests, have become more and
more congested. Deregulated airlines have discontinued the use of wide-bodied
jets carrying up to 500 passengers in favor of more frequent flights with
narrow bodied airliners and regional jets carrying 20 to 140 passengers, thereby
negating the principal strategy for increasing airport capacity. Airport
authorities enjoy exemptions from most antitrust law and lack any significant
representation of airline passenger consumer interests, so that they are
permitted to and regularly do engage in anticompetitive behavior that drives up
air travel costs and increases air travel delays and passenger inconvenience.
Regulations
requiring minimum reserve capacity of equipment and flight crews have been allowed
to lapse. So have rules that allowed passengers on a significantly delayed or
canceled flight to use their ticket on another airline’s flight at no
additional cost (known as Rule 240 or reciprocity rule), and as have
regulations requiring other airlines to honor a bankrupt airlines R 1 tickets.
Flight
delays since 1980 of over one hour have increased dramatically. This situation
not only inconveniences, stresses and results in hardship for airline
passengers, but also burdens airlines and the entire economy. The US economy
depends upon safe, convenient, relatively low cost air travel, as this is the
primary and often only means of long distance transportation.
Airfares
declined about 50% from 1980 to 2009, but have increased rapidly since 2010 especially
when fees and taxes are included. Customer service by nearly any definition has
declined.
Tarmac Delays and Confinements
In
2007, it was discovered and proven by FlyersRights.org that stranding and
involuntary confinement on the tarmac was far more prevalent than previously
thought based on a few publicized incidents. It was admitted in June 2007 by
the US Department of Transportation Bureau of Transportation Statistics (BTS)
that airlines were not reporting and BTS was not requiring them to report most
long on ground delays, delays for diverted flights, cancelled flights and
multiple gate return flights. These statistics were “lost in space” and not
reported for time on the tarmac. New regulations were then adopted and the
first report for October 2008 showed over 50 flights (which would imply 120,000
passengers per year) were delayed on the ground over 3 hours, though some
analysts believe even those statistics greatly underreported these delays.
There
was a strong financial incentive that the flight crews had to pull away from
the gate (and not go back) even if they knew the flight is not taking off for a
long time, if at all. Nearly all airlines only pay flight attendants & pilots their full wages from
the time that the cabin door closes, and some pay nothing for time spent with
the aircraft at the terminal gate. FlyersRights.org (fka Coalition for a
Passengers Bill of Rights (CAPBOR)), the Aviation Consumer Action Project
(ACAP), Public Citizen, Consumers Union, US PIRGs, New York State and several
other state governments, the Business Travel Coalition and even some former airline
executives all supported a 3 hour rule to give passengers the opportunity to
deplane if a flight is delayed more than 2 hours and to require that water,
food, and sanitary facilities be provided.
The
DOT in December 2009 took major steps to reduce delays caused by congestion by enacting
regulations that discouraged over scheduling of flight times. By enacting a
version of Truth in Scheduling that ACAP had long advocated, there has been a
major reduction in chronically delayed flights and virtually elimination of
deceptively scheduled flights. Airlines had previously had a financial
incentive to schedule take offs and landings at the most popular times at major
airports far in excess of airport capacity and then blame delays on air traffic
control or weather. Now they must disclose on time statistics for their flights
to the public, explain to the DOT chronically late flights and eliminate
deceptively scheduled flights.
Passenger
service regulations were slightly strengthened in 2012 in the FAA
reauthorization legislation, but much, much more is needed both to improve air
transportation service and for basic consumer protection in the increasingly
concentrated airline industry.
FlyersRights.org,
after extensive consultations, has developed the following Airline Passenger
Bill of Rights 2.0 (APBOR 2.0), which after receiving comments from its members
and the traveling public is being will be presented for introduction in
Congress and to the US Department of Transportation.
PROPOSED AIRLINE PASSENGER BILL OF RIGHTS
2.0
Seat Space, Airfare, Fees Standards and Definitions
1.
“Airfare” means the price including all taxes and fees for air transportation
and ticket and boarding pass issuance from a originating airport to a final
destination airport and includes a seat (at least 18 inches in width with leg
room and other specifications and aisle width certified for comfort, safety and
health by the FAA), one carry on piece of baggage that will fit in an overhead
container not exceeding 40 pounds and one personal item that will fit under a
seat, plus one piece of checked baggage under 50 pounds, water, adequate food
nutrition on flights lasting over 2 hours, plus toilet and hand washing
facilities.
Current
situation: The lack of a statutory definition of airfare and the unbundling of airline
charges and addition of dozens of fees has allowed airlines to define down the term
airfare to an increasingly meaningless base price, which in turn leads to
deceptive advertising. Seat size and passenger space is generally unregulated
and has resulted in aggressive reduction in size, leg room, aisle width,
recliner pitch by airlines to increase revenue by squeezing in more passengers
and adding new seat fees.
Bank
interest rates, gasoline prices and octane ratings, hotel room rates and most
other prices charged and advertised to the traveling public must meet defined
disclosure standards. This enables consumers to price shop and prevents
deceptive price advertising, price confusion, and unfair competition.
2.
Fees not included in the airfare must be conspicuously disclosed in advance of
ticket purchase and shall be published and delivered in conventional
machine-readable form to all third party ticket sellers the same as airfares.
Current
situation: Airlines have resisted disclosing their frequently changing fees in timely
machine readable form to third party ticket sellers making price shopping by consumers
increasingly difficult, as the lowest airfare from one airline when necessary fees
are included will often cost more than a competing airline. Dozens of extra fees
are now buried in airline web sites, not clearly disclosed. This leads to
deceptive advertising of air travel costs.
3.
Fees not included in airfare shall not be exorbitant, defined as in excess of
200% over the cost to the airline of the service or benefit or feature.
Current
situation: The DOT has the authority and duty to prohibit “unfair or deceptive”
airline practices but has never done so to rein in airline fees such as baggage
fees over $100 or more per checked bag, change or cancellation fees of $200,
and other fees far in excess of airline cost. The DOT authority is ambiguous
without statutory clarification in light of the Airline Deregulation Act of
1978.
4.
Fees totaling over $50 per passenger shall be subject to ticket taxes the same
as airfares.
Current
situation: Airline fees are not subject to airline ticket taxes which fund
federal air safety, air traffic control, and subsidize airports. This tax
loophole for airline fees if not closed will drain the aviation transportation
trust fund. Such fees in the past 5 years have increased exponentially and now
represent about 20% of airline revenue. One airline, Spirit, has 74 listed
passenger fees in addition to its airfares
.
5.
“Service” in the Airline Deregulation Act of 1978 preemption clause means the
air transportation from point A to point B on a published schedule, and does
not include other things that an airline does or fails to do in the course of
its operations which may violate state common law torts such as fraud, false imprisonment, deceit, intentional inflictions
of emotional distress, negligence, or breach of contract, or state or local
consumer, civil rights, health and safety regulations not in conflict with
federal regulations or laws.
Current
situation: The presumed legislative intent of the Airline Deregulation Act of 1978
was to deregulate airfares and most scheduling and route decisions and to
prevent states from reregulating the airlines economically, not to exempt
airlines from all state tort and consumer protection laws and common law.
However,
airlines, by judicial decisions broadly interpreting the term service in the Airline
Deregulation Act of 1978 to include all things an airline does in the course of
its operations to or for a passenger, have been effectively exempted and given
immunity for violation of all state and local consumer protection and contract
law doctrines and laws, health and safety statutes, and all common law torts.
The only exceptions are negligence resulting in physical injury or death,
certain criminal and civil rights statutes.
All
such laws protecting consumers and fair competition apply to other entities
providing services to the traveling public such as hotels, restaurants, ground
transportation, tour operators, travel agencies, bars, stores, and places of
public entertainment.
6.
“Force Majeure” or “Acts of God” as used in airline contracts of carriage
includes severe weather, and other serious natural and manmade disasters and
occurrences, but does not include lack of airline personnel or aircraft in
airworthy condition, supplies or other conditions reasonably within the control
of an airline certified to provide air transportation service to the general
public.
Current
situation: Airlines are unilaterally redefining force majeure in contracts of carriage
to include things not normally within the common meaning of the term in order to
relieve themselves of normal breach of contract liability for matters that are
within their control such as maintenance and crew availability.
7.
The FAA shall issue minimum standards and specifications for seat width,
padding, reclining, size, pitch, leg room, aisle width for passenger comfort,
safety and health within 180 days of enactment, in consultation with an
advisory committee to be composed of representatives from airline passenger
advocacy organizations, Occupational Health and Safety Administration (OSHA),
and the Center for Disease Control (CDC), and including at one physician,
ergonomic engineer, senior citizen, disabled air traveler, overweight person,
disabled person, and at least six American air travelers representing a cross
section of air travelers by age, height, weight, and gender. Until such
standards are adopted, there shall be a moratorium on reductions in seat size,
width, padding, pitch, and aisle width.
Current
situation: Except for aisle width to emergency exits and strength, there are no
seat or passenger space regulations. Airlines are now aggressively reducing
seat and passenger space on both new and existing airliners to squeeze more
revenue out by adding more seats, charging extra for what had previously been
standard seat space, to the point that passengers are loudly complaining and
health and safety is threatened.
The
World Health Organization has reported a major increase in life threatening
blood clots caused by lengthy immobility in cramped spaces. Narrow aisle widths
make timely emergency evacuation difficult and increase normal loading and
unloading times. Even Airbus, the only airliner maker other than Boeing has
called for international standards for passenger comfort, especially on long
haul flights. Passengers have grown heavier and older in the past 50 years,
while seat sizes have shrunk and without standards will shrink even more.
Traveler
Delay Avoidance & Mitigation
For
many decades by far the largest number of consumer complaints to the DOT has
involved flight delays. Starting in 1980, each decade has seen air travel times
increase and excessive flight delays become more prevalent.
The
airlines generally blame air traffic control and weather, but this rings hollow
when the particulars are examined. At times up to one third of flights are now
delayed, and the figure is always over 10%.
8.
Reinstate the reciprocity rule (aka Rule 240) allowing passengers on canceled
or excessively delayed (over 90 minutes) to use their tickets on another
airline with available seating flying to the same or nearby destination.
Current
situation: Some airlines still have private arrangement with other airlines to carry
their delayed passengers but most do not. The rule would reward airlines that provide
timely service and penalize those that do not, as well as maximize the
efficiency of the entire air transportation system. Now the opposite is true.
9.
Set a minimum fine of $3,000 per passenger for tarmac delays in violation of
the 3 hour rule with $1,000 of fine paid to affected passenger plus $10 per
minute for delays over 3 hours.
Current
situation: Most airline violations of the 3 hour rule are not fined by DOT, or
are fined at less than $1,000 per passenger (vs the maximum fine of $27,500 per
passenger).
There
is no minimum fine. There is no requirement that passengers receive any compensation
for a 3 hour rule violation and in only two incidents since 2010 have passengers
received anything and usually that is in the form of coupons for future air travel
on the offending airline. Courts have generally ruled that under the Airline Deregulation
Act of 1978 passengers cannot recover unless they are killed or physically injured
in the course of airline operations, and have disallowed all airline passenger
class actions since enactment of the Class Action Fairness Act of 2005.
The
DOT takes 1 to 3 years to investigate violations, and has always issued fines
under consent orders and generally reduces fines by at least 50% based on
airline promises.
In
2010 and 2011 there were only a few incidents, but in 2012 it rose to one per
week and in the first half of 2013 to two per week. Prior to the promulgation
for the 3-hour rule in 2010, airlines were stranding 150,000 to 250,000
passengers per year on the tarmac for over 3 hours, sometimes up to 12 hours
without permitting passengers to exit the aircraft and sometimes without
adequate water, food and toilet facilities, or proper ventilation and air
quality. Airlines and their employees financial reasons for tarmac
confinements, including avoiding ticket refunds, alternative transportation and
overnight lodging expenses, and for flight crews obtaining flight pay for
tarmac delays vs. no or very low pay for in terminal delays.
10.
Require airlines to conduct live testing of emergency or irregular operation
plans at least annually or more frequently for airlines that fail practice
tests or actual emergency operation performance standards.
Current
situation: Airlines are required to have filed approved emergency operation plans
(to provide for graceful degradation of air transportation in stormy weather, airport
closures, severe congestion with the DOT/FAA but not to have actually tested or
practiced or trained their employees to execute them, making failure to perform
them as planned the norm rather than the exception. Without workable emergency
or irregular operation plans air travel is plagued with de facto blackouts or
brownouts from storms and other conditions that unnecessarily disrupt air
transportation regionally for days or even weeks at great expense to travelers,
businesses and the US economy, which depends on reliable air transportation to
operate efficiently and competitively.
11.
Reinstate lapsed legislation requiring airlines to honor tickets of shut down
by insolvency.
Current
situation: Larger carriers who face insolvency generally declare chapter 11 bankruptcy
that allows them to continue operating, however, smaller ones generally shut down
operations, sometimes abruptly leaving ticket holders as unsecured creditors
and with disruption and extra travel expenses. As all airlines are required to
maintain insurance or bonds for such eventualities, airlines who honor tickets
of an insolvent shutdown airline will be reimburse by insurance. Without such
legislation, carriers in weakened financial condition may be blacklisted by
travel agents and travelers thereby hastening or causing failure.
12.
Require airlines to maintain a ready reserve of equipment
and flight crews sufficient to provide good service and a flight cancellation
rate due to equipment or crew shortages to under 2% and on time performance of
over 85%.
Current
situation: Most airlines operate with little or no reserve capacity so that
when equipment breaks down or flight crews are unavailable, flights are
canceled or seriously delayed. This situation is aggravated by the fact that
airlines are operating at record capacity of over 80%, so that a canceled
flight means that passengers may have to wait many hours or even several days
to get on another flight to their destination.
Cancellation
rates can now go over 5%, on time performance can be under 75%, and there has
been a major increase in delays over one hour.
13.
Set minimum fines of $1,000 per passenger with ½ paid to affected passengers
for flight cancellations based on false claims of force majeure (e.g. weather
or air traffic control restrictions when the real reason is lack of equipment
or personnel or for economic reasons such as too few passengers).
Current
situation: Studies and statistics show a very high rate of false or fraudulent reporting
by airlines, but they are rarely if ever fined and passengers receive no compensation
for this misbehavior which is profitable for airlines, since they avoid expenses
that honest reporting would otherwise entail.
14.
Require cancellation for economic reasons to be made at least 3 hours before
flight time, and provide passengers with alternate transportation plus a ticket
refund, or breach of contract consequential damages up to $5,000. Presumption
that flight was canceled for economic reasons if no ground hold and flight less
than 30% booked.
Current
situation: While airlines are required by contract and by conditions of their
FAA certificate to provide safe and convenient air transportation to the
general public and economic flight cancellations amount to a breach of contract
or civil fraud and/or violation of their certificate, enforcement is virtually
nonexistent, thereby rewarding bad practices and penalizing honest ones.
15.
Require passengers to be informed both verbally and in writing of their rights
to compensation for flight delays under US law for domestic flights, under the
Montreal Convention of 1999 for international flights (with compensation up to
$7,000), and under EU regulations for flights flying to, from or within EU
countries.
Current
situation: Neither the airlines or DOT inform passengers of their rights to compensation
for flight except in situations involving bumping or oversales.
16.
Require where delays and cancellations result in stranding passengers overnight
away from their home cities that passengers receive meals, lodging and ground
transportation.
Current
situation: This was once provided as a matter of course, but now many airlines decline
to do so except for high paying or frequent travelers. Such expense avoidance provides
another incentive for bad service and penalizing airlines that provide good service.
It also discriminates against and burdens coach and occasional travelers while providing
unstated extra benefits to premium fare travelers.
Lost,
Damaged and Mishandled Baggage
17.
Require airlines follow the standards of the Uniform Abandoned Property Act
providing for efforts to lost unclaimed baggage to its rightful owner, and if
that fails after 90 days selling property at auction with proceeds going to a
Lost Baggage Fund, to be used to satisfy lost/stolen property claims, fund
consumer protection services by nonprofit organizations and for arbitration
services for disputed lost baggage claims.
Current
situation: Airlines are the only large private holder of other persons’
property exempt from the Uniform Abandoned Property Law used by nearly all
states. At common law abandoned property was forfeited to the state and
airlines would have unlimited strict liability for lost or damaged property
placed in their custody. Airlines by law have had their liability capped at
$3,000 for domestic flights and $1650 for international flights with short
claim periods. Airlines now sell unclaimed baggage after a short holding period
and keep the proceeds. They are not required to use readily available methods
to return property to its rightful owner, generally dispute the great majority
of lost baggage claims, and passengers have no practical means of redress.
18.
Require airlines to offer excess value insurance for lost or damaged baggage
for premiums not in excess of those commonly charged by other common carriers.
Current
situation: Airlines generally do not sell baggage insurance, and do not allow passengers
to declare higher value than their liability limits. Common carriers like the USPS,
UPS or Federal Express charge 1% of excess declared value for insurance.
Lack
of insurance, low liability limits and low claim payment rates make for low quality
checked baggage services and little or no security against theft, even though
most airlines now charge $25 to over $100 per bag for checked luggage.
19.
Airline Rights Enforcement, Remedies, Complaint Handling and Adjudication
A
24-hour complaint hotline provided for in 2012 law and a passenger claims
arbitration service should be funded up to $10 million per year by a set aside
of 10% of fines paid by airlines to the US Government for violation of DOT or
FAA regulations, plus up to 1/1000 of the ticket taxes and facility charges
paid by airline passengers. No funding is currently provided for the passenger
hotline and it has not been established by DOT.
Current
situation: Only 10% of complaints to DOT result in a referral for additional investigation,
90% are merely logged for statistical purposes. Airlines are not required to do
more than respond and acknowledge complaints.
Unlike
consumer claims in other fields, no arbitration is provided for, and airlines
have the right to remove any lawsuit filed in local or state courts to US
District Court where litigation expenses far exceed any recovery.
Airlines are one of the only industries serving the general public exempt
from all state and local consumer protection laws, based on judicial
interpretations of the Airline Deregulation Act of 1978’s federal preemption
clause.
20.
Complaints to the DOT against airlines and to TSA about security screening at
airports or against airports by airline passengers shall be acknowledged within
24 hours, and responded by the party against who the complaint was filed within
30 days, and with the reply by the complaining passenger within another 30
days. The DOT shall rule on whether or not it finds probable cause to investigate
a complaint as a possible DOT regulation or other unlawful conduct within 100
days of receiving a complaint, and shall so inform the complaining party and the
party against the complaint was made.
21.
All contracts of carriage shall provide that passengers have the right to have
any claim under $10,000 adjudicated by an arbitrator approved by state or
federal attorneys general or state consumer protection agency or in small
claims court in the jurisdiction where the passenger resides within the US, or
otherwise where the airline does business.
22.
In the event court or arbitration awards an amount in excess of the amount
offered by the airline, the passenger shall be entitled to an additional amount
for litigation expenses including time spent on the claim at $100 per hour, for
expert witness fees, plus reasonable attorney fees up to $250 per hour.
23.
Common law doctrines voiding unconscionable provisions in consumer contracts
and for contract interpretation based on contracts of adhesion shall apply to
airline contracts of carriage.
24.
All airline passenger claims under $80,000 against airlines shall be
adjudicated in state or local courts or before arbitrators in the county where
the passenger resides, unless the passenger consents to adjudication in a US
District Court or other jurisdiction.
Frequent
Flier Programs Standards, Disclosure and Reporting
25.
Require airlines to report basic statistics on their frequent flier programs to
enable consumers to objectively evaluate each airline program, including the
number of miles expired, used and accumulated unused each quarter, the number
of award tickets granted, especially to popular vacation destinations,
restrictions on transfer or used by persons or entities other than the frequent
flyer account holder.
26.
Require notice of 12 months to materially reduce or devalue benefits to
existing frequent flier account holder members of over one year.
27.
Prohibit airlines from unfairly reducing benefits or eliminating a passenger
from its frequent flyer program based on service complaints.
Current
situation: Frequent flier programs have become an integral part of air
transportation
services used by air travelers for vacation travel. They are also a source of
revenue for airlines which sell miles to credit card, car rental, hotel and
other businesses that seek to provide customers with a low cost inducement to
buy customer loyalty.
The
US Supreme Court has ruled that states may not regulate these programs as they
do other consumer contracts, and the DOT or Congress has not yet done so.
For
accounting purposes frequent flier miles represent a potential liability for
the airlines.
Airlines,
however, take the position that these are not binding contractual obligations
but merely marketing programs that can be altered or eliminated at will. As
miles accumulate on the books of an airline, there is an enormous incentive for
the airline to devalue them by program changes (most recently United Airlines
announced program changes that devalue its frequent flier miles by at least
40%).
Most
consumers however view frequent flyer programs as an important benefit, with
the miles they accumulate for future travel being an obligation of the airline
and an asset of theirs. However, airlines now generally reserve the right to
reduce or eliminate benefits or membership at will.
Studies
show that there are radical differences in airline frequent flyer programs,
with some airlines allowing as little as 5% of miles to be redeemed for travel
and others nearly 100%.
Airport
Governance and Consumer Protection
28.
FAA airport certificates shall require that the governing board or authority
management of all airports with over 100,000 but under 1 million annual
passenger enplanements shall contain at least one person representing airline
passengers who has not received any significant compensation from the airport,
its vendors, employee unions, contractors or creditors in the previous five
years and who does not reside within 5 miles of the airport, and at least two
airline
passenger
representatives for airports with over 1 million annual passenger enplanements,
at least one of whom shall be a frequent passenger using said airport.
Current
situation: Airports in the US are owned and operated by cities, counties and state
or regional government entities, and generally contain little or no passenger
interest representation. This often result in policies that tend to increase
airport revenue at the expense of passengers and unnecessarily increase
passenger inconvenience and travel times. The FAA under 14 USC Part 139
regulates and issues operating certifications for all airports served by
airlines.
29.
Within 180 days, the GAO and DOT Inspector General shall review airport
antitrust exemptions, identify practices that increase passenger expense,
inconvenience, travel times, negatively impact national air transportation
efficiency and report to Congress with recommendations.
Current
situation: Airports generally operate as government monopolies exempt from antitrust
laws. This has led to higher air transportation costs, increase travel times, poorer
services for passengers, and preventing competing private enterprises from providing
lower cost and higher quality services to the traveling public. Examples include
monopoly concessions to taxi, shuttle and bus companies, relocation of rental
car facilities to remote locations to free up high cost parking spaces near
terminals (parking fees being the #1 source of airport revenue), preventing
regional airport competition or additional airports to maximize revenue,
favoring airline mergers and consolidation to increase gate lease and landing
fees, use of airports for political patronage and to reward
donors
to political campaigns of elected officials, imposing high and ever increasing
fees and charges on passengers, lobbying against needed additional airports to
relieve congestion, and covenants in airport bond indentures restricting
competition.
30.
Airports and airlines as a condition of receiving federal certification for
public interstate air transportation shall ensure that consumer rights
information is freely available to passengers in written and electronic form.
Current
situation: All airlines and airports provide passengers with information and advertising
in written and electronic form, but have generally not allowed consumer rights
information to be freely available or provided to passengers, whether in
leaflet, poster, seat back pockets, airport television, book and convenience
retailers, public information desks, telephone hot lines, or on wifi home
pages. This even though such information could be provided with little expense
and would provide an important public service to passengers (who provide
through airline ticket and airport taxes and fees nearly all airport and
airline revenue). Passengers must now rely largely on airlines who have a
vested interest in not providing passengers with information on their rights, particularly
where such may involve passenger compensation or fines for violation of passenger
rights.
