Airline Passenger Bill of Rights

While high-visibility incidents have prompted many Americans to exercise outrage over airlines’ treatment of their customers, an airline passenger bill of rights is not the solution. These isolated incidents which have generated the public outcry are extremely rare, and more often than not involve a violation of either an existing FAA regulation, or internal airline company policy. Additional involvement of the Federal Government is a smoke and mirrors attempt at pandering that will not only interfere with legitimate business, but will result in further delays, increases in ticket prices, and compromises to public safety.

Perceptions are everything today. Perceptions not tempered with facts often lead to impromptu legislation which quiets the angry, ill-informed proletariat, but doesn’t necessarily make the world a better place. Over the past decade, the air travel industry and the Federal Government have been responding to what advocates consider a burgeoning industry trend involving unreasonable treatment of airline passengers. Many people, even those whose flight experiences have been uneventful, even pleasant, are getting nervous that these stories are harbingers of the doom awaiting them the next time they set foot on a plane. Horror stories of six to nine hour delays on the tarmac without water or food, all the while demands to return to the gate falling on deaf ears have galvanized many into action. Grassroots campaigns, activist websites, and thousands of blogs have matriculated out of the ether adding fuel to the fire. These activists and lobbyists have been pressuring the government do step in and do something about it. Voters are getting angry, and legislators are poised to placate.

January 3, 1999: Dozens of Northwest aircraft are stranded on the Detroit tarmac amid two feet of snow for up to 11 hours. The incident, considered the first of its kind, was so serious that, in spite of thousands of apology letters and compensatory coupons distributed by Northwest Airlines after the fact, members of congress directed the Secretary of Transportation to review the incident. The report cited poor decisions and bad practices in almost every respect surrounding the operation of the aircraft and airports involved.1 There was no single point of failure, but like most aircraft mishaps, a series of errors and bad decisions on the part of a collection of individuals responsible for a multitude of disciplines ultimately lead to the situation devolving into an unmanageable quagmire (Giggity)2. While Northwest Airlines never admitted that it had done anything wrong, citing that it did the best it could, given the situation, the company agreed to pay $7.1M dollars to make things right with its customers (They were basically hedging that to settle would be cheaper than litigation).3 And so it begins.

The Detroit incident spawned a maelstrom of media frenzy over the treatment of airline passengers, but the fanfare didn’t have the staying power to remain in the public eye very long. Since 1999, there have been several similar incidents that have brought the subject back to public attention. Along with the explosion of the internet, an exponential increase in main-stream media’s sensationalized reporting has started to turn the public perception toward unreasonable trepidation. Instead of carefully considered and rational application of data, the ‘everybody panic’ mantra has become the driving force for change. Bring on the lawsuits.

While public perception and outcry is typically sufficient to engage the interest of legislators, this mob strategy doesn’t translate directly to legal malpractice by the airlines. Though the Northwest lawsuit in 1999 was settled in favor of the plaintiffs, it established no wrong-doing. More recent lawsuits which were unable to secure the same sort of lucrative settlement haven’t favored as well for the victims filing suit. In 2006, after having been stranded for over nine hours on the taxiway, Catherine Ray filed suit against American Airlines.4 The suit charged American with false imprisonment (among other things), but was thrown out on the grounds that the airline was not legally bound to provide a stress free environment to the passengers. Other lawsuits remain pending. Though airlines have prevailed in some lawsuits, this is not to say that the airlines, or the airports, are always within their rights to detain passengers at will

Often times, when passengers are made to endure an unreasonable situation, those making the decisions on the ground are violating existing federal laws, FAA regulations, as well as internal company operating procedures. In February 2008, Gokhan Mutlu was allowed by a flight attendant to sit in her seat when it became apparent that the flight was overbooked.5 The flight attendant took the jump-seat on the flight deck. Midway through the flight, the pilot discovered what was going on, and forced Matlu to sit in the aircraft’s lavatory for the remainder of the flight. This order directly violates FAA regulations.6 The man should not have been on the aircraft in the first place without an assigned seat, but the corrective action taken by the pilot was clearly an example of poor judgment. The incident was catapulted to the front page of many news organizations and has also been a talking point for passenger rights activists in spite of the fact that existing legislation should have preempted it. On August 9, 2009, a Continental Airlines regional Jet (Operated by ExpressJet) sat on the tarmac for over seven hours after diverting to Rochester due to weather.7 Like the Norwest incident of 1999, a cascade of external factors, misapplication of rules, and mistakes led up to the situation. The flight crew hit its limit on flying time requiring a second crew to be flown in. The airline gate personnel wouldn’t let the passengers deplane because TSA screeners had already left for the evening. The Airport Manager, as well as TSA officials even admitted after the fact that there was no reason for this since the passengers had already been screened. A passenger bill of rights would not have prevented this incident. Regulations already existed which were not adhered to. These cases and others like them have demonstrated a lack of training and enforcement of published standards. The system doesn’t need more rules.

House Resolution 624, which is intended to amend Title 49 to ensure passengers have access to necessary services in the event of an extended ground delay, is nothing more than bureaucratic paper tiger.8 The bill would require that airlines maintain a published contingency plan that would outline how the airline intends to comply with certain standards of service enumerated in the bill. But, the bill is full of loopholes and opportunities for interpretation that would either allow the airline to get around it, or unfairly penalize legitimate efforts to provide service. For example, the bill states that, “…an air carrier shall provide passengers with the option of deplaning and returning to the terminal at which time such deplaning could be safely completed…” If the airline says it couldn’t deplane because there was not an opportunity to complete the deplaning safely, they don’t have to. Any one of the long-delay incidents about which people are suing would have occurred notwithstanding this legislation. If all the gates are full, lightning preventing ground crew from operating mobile stairs, and the runway closed, those passengers aren’t going anywhere. Aside from specifying sampling intervals for deplaning conditions, this bill provides no protections for passengers to any greater degree than those of which the most airlines already employ through internal company policy9.

The bill also fails to take into account several practicalities. The flying public, as consumers, have become accustomed to the idea that the customer is always right, and with that the notion that if they're not happy with a situation (especially when they've paid good money) the entity providing service must immediately be able to make everything right by them. Airline travel, due to the sheer volume of external factors and an inherently tight operating margin, simply doesn't fit this perfect world model. Airport gates are a highly sought after commodity at busy airports. Stranded passengers get frustrated and think that it's unreasonable that the aircraft doesn't return to the gate. In certain situations where aircraft are unable to take off after leaving the gate, there often times isn't a gate to return to, it having been filled by another aircraft that has just landed. The problem is compounded as aircraft are diverted into that airport from other places. Ultimately, when there's more aircraft loaded with passengers on the tarmac than there are gates, someone's going to be left out in the cold. Simply legislating that an airline must deplane its passengers isn't going to magically make it happen in all cases. But, facing heavy fines, airline decision makers on the ground are likely to do whatever they can to comply, and in so doing push the safety envelope.

Bad decisions are made all the time—as evidenced by many of the incidents driving this movement. Thus far in this story, those errors in judgment have resulted in passengers' discomfort and frustration. When the airlines are pressured to comply with legislation which forces them to get those passengers deplaned, nearly at any cost, safety is likely to become a casualty.10 Bad weather can cause buses to crash, ground crew injuries, and even ground mishaps involving the aircraft themselves. Up until now, the airlines have had the luxury of erring on the side of caution and safety; leaving the planes where they are and nobody gets hurt. And, it's not like the airlines want people to experience these delays. The airlines want what every business wants: your money.

Title 49 of the U.S. Code, which the passenger bill of rights seeks to amend, currently has no provision specifically regulating “Customer Service.”11 H.R. 624 amends Title 49 by adding Subsection IV—Customer Service. While the aviation industry has been regulated as a public utility since 1938, the airlines are still for-profit, competitive businesses. While the industry must be regulated to ensure continuity of operation, the Federal Government is over stepping its mandate by dictating standards of service. If a sufficient quantity of the consuming public is dissatisfied with a certain airline’s handling of a situation so much to the extent that they are unwilling to patronize its services, the airline will suffer financially. As with any other industry, from entertainment to kitchen appliances, poor products and services lead to self-regulation in a competitive environment.

Self correction is written all over this issue. Every time an airline goes through a high profile tarmac delay it raises all manor of bad press. It hurts the airline's reputation, and then directly, its bottom line. Airlines are working hard with airport managers to come up with safe, working contingency plans of their own, but with flexibility that would take a dynamic environment into account. The airlines strive to simply do better. And they will—they can ill-afford to do otherwise. Media fear-mongers would have you believe that without legislation protecting you from the evil airlines, you will very likely face a similar, emotionally stressing airline delay in your immediate future. So, how likely is it?

According to the Bureau of Transportation Statistics, there were 8,595,278 scheduled passenger domestic flight departures in 2008. Out of all those eight million plus flights, there were 21,379 delayed flights (including both departures and arrivals) that were considered carrier delays, and 1442 extreme weather delays. Delayed flights made up 4.12% of all flights in 2008. Is that not enough to anger the flying population and justify legislation?

Remember, the cause of all this angst isn’t your typical delay of 15 minutes to an hour. We’ve all had to sit through the occasional “Ladies and gentleman, we’re number 42 for takeoff and the runway has been closed”. It’s frustrating, but we get over it. The rage against the machine comes from what people have come to fear from the ‘big press’ incidents where passengers have had to endure very long tarmac delays where most of the passengers believed they are being detained unreasonably, and should be returned to the gate. In 2008, there were only five flights that experienced a tarmac delay in excess of four hours.12 That’s a staggering .000065% of scheduled passenger departures. The passenger bill of rights only stipulates that airlines have to attempt deplaning after a 3 hour tarmac delay if it is safe to do so. What we're talking about here, is trying to solve what is truly an imaginary problem by throwing significant resources at it to make people happy.
The probability that you will experience a flight delay, in a calendar year, from which the passenger bill of rights would protect you are 1,719,055 to 1 against. Your odds are two and a half times greater of winning $10,000 in the Powerball lottery.

The initiative to legislate customer service against the airlines in order assuage the public’s unfounded fears will be of value to neither the flying public, nor the aviation industry. The effort is not only impractical, redundant, and inconsistent with public safety, it is being exerted against a problem so remote in likelihood that it practically doesn’t even exist. But, worst of all, it goes against the very fabric of fair competition and capitalism. The flying public must bear some responsibility as consumers. If you’re going to get on a plane operated by a company that you feel might do this to you, but they have the cheapest fare, you are assuming a measure of risk. You wouldn’t buy the cheapest television set, and then ask the government to step in when it turns out to be a lemon. You get what you pay for.

© Raymond Smith- 2009