Remarks before the ABA Forum on Air and Space Law


Yesterday, I spoke before the American Bar Associaton Forum on Air & Space Law update conference in Washington, DC. I was part of a panel discussing airline consumer rights and the state of the industry after the tarmac-delay rules. I was part of the panel because I have been clear about my belief that there is far more to passenger rights than simply tarmac-delays.

Here are my opening comments, prior to the question and answer period.

I have been involved with passenger rights for decades. In the early 1990s I wrote a book, Travel Rights, that can still be found on some DOT bookshelves. I have written about passenger rights for scores of newspapers and magazine and have appeared on TV and radio over the past two decades discussing passenger rights.

I noticed that though I was getting lots of ink and time on TV and radio, little was changing. So, somewhat like Mr. Smith who came to Washington, I ended up coming as well. Two years ago, I formed my non-profit and began looking for ways to effect change from the inside rather than only throwing stones from the outside.

Trying to effect change is far different than pointing out problems. Here, I have learned that one man’s problem is another man’s profit. In the world of Washington, that is a major complication.

I got involved in this panel because of my long experience with passenger rights and my firm belief that the recent tarmac-delay issue, that may at its worst affect a small percentage of airline passengers, has usurped other discussions of basic consumer protections that affect everyone who takes to the skies today.

I was a bit dismayed when tarmac-delay started out as the initial mantra for this panel.

The current DOT regulations regarding tarmac delays are important and they have shaken the airline industry to the point that they are now treating passengers like human beings rather than cargo.

But other issues that DOT has recently proposed in their rulemaking are far more important to the vast majority of air travelers.

First and foremost, we must recognize that airline passengers live in a bizarre legal limbo. They basically have the legal rights of medieval serfs. Passengers cannot go to state courts because of federal preemption, small claims court is closed to them and in Federal courts, only rules that are found in the contract of carriage apply — basically these rules say the airline will get passengers from Point A to Point B — period.

The last big rulemaking that included the new tarmac-delay rules redefined passengers as humans. This next rulemaking begins to mandate that the airlines communicate with their passengers.

DOT is proposing that airlines make their customer service plans clearer. DOT wants minimum standards for these plans that are created by the airlines. But the basic rule is to communicate with passengers.

Crucially, DOT is also proposing that these customer service plans become part of the contract of carriage. What is not in the contract of carriage cannot be enforced in Federal Courts.

The new proposed rules ask airlines to respond to consumer problems in a timely manner. They propose changes to bumping rules that have been followed by the airlines for years. The fines will be increased and again, the mandate is that the airlines communicate verbally and in writing with passengers about their rights.

Advertising rules should require full fare advertising. DOT wants passengers to be able to get the full price inclusive of all required taxes and fees.

As part of this effort a coalition of consumer groups and travel agencies has campaigned against hidden fees. It is hard to believe, but airlines still refuse to disclose ancillary fees to travel agents so that they can tell passengers the total cost of travel. I don’t know of any other retail operation that is allowed to withhold the total price of the product from consumers where their product is sold.

In some cases the airlines have made their pricing so complex that even their own executives do not know which set of fees from what code-share partner or airline alliance member applies to which ticket. This has to change.

The DOT rules prohibit post purchase price increases and it says that airlines must notify passengers in the boarding area of changes to the scheduled flights and update flight status details on their displays and websites.

In the real world of retail, rules like these are taught in business school and keep the free market and competition working. In today’s arcane world of airline travel, providing passengers the full cost of travel and communicating with customers needs to be mandated by regulators.

I hope the bulk of what DOT has proposed makes it through the vetting process. These coming passenger service mandates will amount to the biggest changes in airline transportation since deregulation.

  • Tony leocha

    Nice Charlie!

  • Adam Smith

    No matter how well-intentioned, when government mandates are applied for the betterment of mankind, the “cure” is more more harmful than the disease.