Passenger Bill of Rights, DOT Style

In response to consumer complaints about being stranded in airplanes for hours, the U.S. Department of Transportation (DOT) has issued new rules to "enhance airline passenger protections" in the following ways:

By requiring air carriers to adopt contingency plans for lengthy tarmac delays and to publish those plans on their websites.

By requiring air carriers to respond to consumer problems.

By deeming continued delays on a flight that is chronically late to be unfair and deceptive in violation of 49 U.S.C. §41712.

By requiring air carriers to publish information on flight delays on their websites.

By requiring air carriers to adopt customer service plans, to publish those plans on their websites, and audit their own compliance with their plans.

This goes back to November 15, 2007 when the Department of Transportation issued an Advance Notice of Proposed Rulemaking (ANPRM) that "called for comment on seven tentative proposals intended to ameliorate difficulties that passengers experience without creating undue burdens for the carriers."

[The DOT] received approximately 200 comments in response to the ANPRM. Of these, 13 came from members of the industry-i.e., air carriers, air carrier associations, and other industry trade associations-and the rest came from consumers, consumer associations, and two U.S. Senators. In general, consumers and consumer associations maintained that the Department's proposals did not go far enough, while carriers and carrier associations attributed the current problems mostly to factors beyond their control such as weather and the air traffic control system and tended to characterize the proposals as unnecessary and unduly burdensome. The travel agency associations generally expressed support for consumer protections.

As a result of the input received, a Notice of Proposed Rulemaking (NPRM) was issued on December 8, 2008, which resulted in just 21 comments:

...10 comments were from members of the industry and the rest came from consumers and consumer associations. On the consumer side, eight individuals filed comments as did three consumer advocacy organizations: Flyersrights.org (formerly the "Coalition for an Airline Passengers Bill of Rights" or CAPBOR), the Aviation Consumer Action Project (ACAP) and the Federation of State Public Interest Research Groups (U.S. PIRG). Of the industry commenters, two carriers (US Airways and ExpressJet Airways), and two airport authorities (Dallas-Fort Worth International Airport and The City of Atlanta Department of Aviation) filed comments. Three industry associations filed comments: the National Business Travel Association (NBTA), the Air Transport Association of America (ATA), and the Regional Airline Association (RAA). Two travel agency associations, the American Society of Travel Agents (ASTA) and the Interactive Travel Services Association (ITSA), also filed comments, as did the Airports Council International, North America (ACI-NA).

The DOT stirred all this together, and posted the final rule on 21 December 2009. The air carrier contingency plans require "that each plan include, at a minimum, the following:"

(1) an assurance that, for domestic flights, the air carrier will not permit an aircraft to remain on the tarmac for more than three hours unless the pilot-in-command determines there is a safety-related or security-related impediment to deplaning passengers (e.g. weather, air traffic control, a directive from an appropriate government agency, etc.), or Air Traffic Control advises the pilot-in-command that returning to the gate or permitting passengers to disembark elsewhere would significantly disrupt airport operations;

(2) for international flights that depart from or arrive at a U.S. airport, an assurance that the air carrier will not permit an aircraft to remain on the tarmac for more than a set number of hours, as determined by the carrier in its plan, before allowing passengers to deplane, unless the pilot-in-command determines there is a safety-related or security-related reason precluding the aircraft from doing so, or Air Traffic Control advises the pilot-in-command that returning to the gate or permitting passengers to disembark elsewhere would significantly disrupt airport operations;

(3) for all flights, an assurance that the air carrier will provide adequate food and potable water no later than two hours after the aircraft leaves the gate (in the case of a departure) or touches down (in the case of an arrival) if the aircraft remains on the tarmac, unless the pilot-in-command determines that safety or security requirements preclude such service;

(4) for all flights, an assurance of operable lavatory facilities, as well as adequate medical attention if needed, while the aircraft remains on the tarmac;

(5) an assurance of sufficient resources to implement the plan; and

(6) an assurance that the plan has been coordinated with airport authorities at all medium and large hub airports that the carrier serves, including medium and large hub diversion airports.

Failure to do any of the above would be considered an unfair and deceptive practice within the meaning of 49 U.S.C. §41712 and subject to enforcement action, which could result in an order to cease and desist as well as the imposition of civil penalties.

This rule is not without problems from the air passenger's point of view (see DOT Mandates Passenger Bill of Rights and I’m Not Happy by Cranky Flyer), but I maintain my previous position: the airlines brought this on themselves. They did so by failing to step up to the core issues being raised by irate passengers. The airlines defended overflowing toilets, bad air, and hungry and thirsty passengers by declaring that it was not their fault: they couldn't control the weather.

Well, of course they could not control the weather. They could, however, actively manage the effects of long, weather-induced flight delays in a way that their customers could understand and relate to. "The airlines" didn't do that quickly in at least some highly publicized cases. I think the result was entirely predictable.