Enhancing Airline Passenger Protections

OST-2007-0022

November 15, 2007

Advanced Notice of Proposed Rulemaking - Bookmarked | Word

As Published in Federal Register November 20, 2007

The Department of Transportation is seeking comment on whether it should adopt a rule to enhance airline passenger protections in the following ways: (1) require carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage, (2) require carriers to respond to consumer problems, (3) deem operating a chronically delayed flight to be unfair and deceptive, (4) require carriers to publish delay data, (5) require carriers to publish complaint data, (6) require on-time performance reporting for international flights, and (7) require carriers to audit their compliance with their customer service plans. We are proposing that most of these measures (specifically, 1, 2, 5, and 7) cover certificated or commuter air carriers that operate domestic scheduled passenger service using any aircraft with more than 30 passenger seats. We are proposing that measure 6 cover the largest U.S. and foreign carriers and that measures 3 and 4 cover the largest U.S. carriers.

By: Michael Reynolds

November 15, 2007

Executive Order - Chit Sheet

By: Joanne Petrie

January 22, 2008

Comments of the Air Carrier Association of America

The ACAA agrees with the Department's proposal that three of the new requirements cover only the largest carriers. For the largest carriers, it is indeed appropriate that the operation of a chronically delayed flight be deemed to be unfair and deceptive, that carriers be required to publish delay data on their websites, and that on-time performance reporting be required for international flights. The largest carriers have far more control over these issues than small carriers because the larger carriers have more flights, more gates, and more rerouting options. It is appropriate that small carriers not be subject to the above-mentioned requirements because delay data is skewed because these carriers have such a small number of flights total and in each market. The ability to compensate for delays or reroute customers varies by airport and airline size. Requiring small carriers to report this data would be misleading and would not serve the overall purpose to help travelers make informed decisions and protect passengers from being taken advantage of by the operation of chronically delayed flights.

Counsel: ACAA, Edward Faberman, 202-719-7420, epfaberman@acaa1.com

January 22, 2008

Comments of the Air Transport Association of America

ATA does not agree with the Department’s suggestion to require on-time performance reporting for international flights. International operations present a unique and different dynamic than domestic operations. For example, it is not unusual for carriers to purposefully hold an international flight for passengers who are delayed on an inbound connecting flight. Carriers do this as a positive customer service because such a flight may be the only operation to an international point for the day or even the week. With fewer flights on international segments, purposeful delays are important because leaving a passenger behind may result in stranding a passenger at an airport in a foreign country for an entire day or overnight. Carriers should not be penalized by having to report such delays. In addition, as wind speeds tend to be stronger over the oceans, carriers can face significant delays in travel when flying against prevailing winds. The result of international on-time reporting most likely would be for carriers to not wait for connecting passengers, stranding them in a foreign country for long periods of time. Therefore, ATA does not see a benefit to the public for international on-time reporting.

By: ATA, David Berg, 202-626-4000, dberg@airlines.org

January 24, 2008

Comments of the Airports Council International - North America

ACI-NA does not support the proposal that  a flight arriving late more than “70 percent” would be defined as chronically late.  It is very questionable that consumers would find this figure “reasonable”.  While the Department states in the ANPRM, consumers have a right to expect that an air carrier can arrive at the promised time “in most cases”, consumers rightfully expect more accurate information. Therefore, ACI-NA proposes that to maintain consumer confidence the minimum threshold for a chronically delayed flight should be set no higher than 50 percent of the time.

ACI-NA does not support the proposed  minimum of 45 flight operations per calendar quarter (approximately four flights/week).  We believe this level will exclude operations at many smaller airports, thus not providing passengers in these communities with the same protections as those who begin or end their travel in larger cities.  We propose that the definition be revised to  12 flight operations per calendar quarter (one flight per week).

ACI-NA wants to ensure that when defining a “covered carrier” the Department includes the operations of regional or feeder carriers that are  affiliated with the major/national airlines that account “for at least 1% of domestic scheduled passenger revenue”.  The reasons stated by the Department in its November 20, 2007, NPRM on “Oversales and Denied Boarding Compensation” for including aircraft with 30 to 60 seats are just as applicable here.  To the passenger, the effects of delays are the same regardless of which certificate holder actually operates the aircraft. Additionally, given the fact that regional airlines now transport one out of every four domestic passengers and operate half of daily domestic flights, as well as provide the only scheduled service to approximately 70 percent of U.S. airports, it is critical that DOT include their operations in the final rule.

By: ACI-NA, Greg Principato

January 22, 2008

Comments of the American Society of Travel Agents - Bookmarked

It is vital that the contingency plans have content that means something concrete. The description in the ANPRM refers to the plans having “assurance(s)” regarding components of passenger protection. An assurance is not a plan; it is, at best, an aspiration. Aspirational plans are not enough, as demonstrated by the failure of the so-called voluntary passenger service commitments adopted by many airlines in 1999. While it is surely impossible to predict everything that can or will occur to disrupt air travel in the future, there are a number of scenarios that have repeated frequently enough that specific action plans should be possible to address them.

The Department asks several questions about the costs and benefits of the proposed rules. There certainly will be some costs, but air travel should not be a form of reverse roulette in which some unlucky passengers suffer helplessly while the larger remainder go about their business untouched by the latest weather or other disruption. Taking care of passengers in irregular but foreseeable disturbances to the normal smooth flow of the system should be seen as a necessary cost of doing business. If all carriers are required to maintain meaningful response plans, passenger uncertainty and discomfort will decrease and consumer attitudes toward air travel will improve. There should be no competitive consequences to this form of regulation.

Counsel: ASTA, Paul Ruden, 703-739-6854, pruden@asta.org

January 22, 2008

Comments of the Association of Asia Pacific Airlines

The ANPRM seeks to apply the reporting requirement to “large foreign airlines”, in addition to domestic carriers as now, but with no indication on how such a criterion would be applied. In view of the stated objectives of this ANPRM, AAPA submits that the definition of “large foreign airlines” should preferably be based on frequency of flights in and out of the US, rather than on international airline revenues, since the proportion of revenues contributed by international routes to and from the US will vary significantly amongst international carriers. Setting a threshold for international airlines based on, for example, a minimum number of weekly frequencies to and from the US, would have the merits of simplicity whilst still supporting the intended objectives.

Counsel: AAPA, Beatrice Lim, 60-3-2145-5600

January 22, 2008

Comments of the Aviation Consumer Action Project

Granting each airline the unfettered right and power to determine the maximum tarmac delay is absurd on its face and would clearly constitute an unlawful delegation of DOT regulatory authority to the regulated parties. By including such in the contract of carriage, the airline and DOT would be imposing a contract of adhesion on all airline passengers that could be used by airlines as a legal tool to circumvent and vitiate existing common law rights of passengers and liabilities and duties of airlines under state tort and contract law. Such common law rights of false or wrongful imprisonment, infliction of emotional distress, prima facie tort, and outrage now form the only legal safety net for airline passengers subject to mistreatment by airlines in tarmac delay situations and form the only deterrent that prevents even greater use of tarmac confinements by airlines to avoid costs such as lodging, meals, alternate transportation long associated with mass stranding of passengers.

By: ACAP, Paul Hudson, 410-940-8934, acapaviation@yahoo.com

January 22, 2008

Comments of China Eastern Airlines

The information which DOT proposes to collect from the 'largest foreign carriers' is already available at no charge to consumers on several Internet websites. For example, www.flightstats.com contains detailed real-time and historical flight information for foreign air carriers conducting flights to the United States. Flightstats.com breaks down the arrivals and departures for each carrier by route, and provides the carrier's percentage of on-time flights; the number of delayed flights, including the average and maximum delay times; and percentage of cancelled and diverted flights. Flightstats.com ranks each carrier for each route according to performance, and even provides an airline 'scorecard' that lists each carrier's overall on-time flight performance.

Since consumers thus already have up-to-date flight delay information at their fingertips for every scheduled carrier conducting flights to the United States, China Eastern respectfully asserts that it seems unnecessary to require that the largest foreign carriers submit this information to DOT. Adopting this requirement can only result in increased costs to carriers which must be passed to consumers, when this information will merely be duplicative of what is already in the public sphere.

Counsel: Eckert Seamans, Evelyn Sahr, 202-659-6622, esahr@eckertseamans.com

January 22, 2008

Comments of Delta Air Lines - Bookmarked

With respect to DOT’s proposal to require reporting of the percentage of arrivals more than 30 minutes late and the percentage of cancellations, in Delta’s view the resulting percentages will be statistically insignificant, but will nevertheless require substantial infrastructure modifications to collect and report the data. Internal estimates suggest that the percentage of flights arriving more than 30 minutes late is just over ten percent system-wide. Delta currently tracks system-wide mainline flight completion rates. The result for November, 2007 was a completion rate of 99.3 percent. This suggests the percentage of time a given flight is cancelled will be, on average, less than one percent. Further, approximately 40 percent of all cancellations result from mechanical problems, which do not correlate to a specific flight, route or schedule. We contend, therefore, that it is unlikely this information will benefit consumer decision making concerning flight selection.

DOT has asked for comments on whether reservation agents should be required to disclose on-time performance information at the time of booking, without being asked. Requiring on-time disclosures for every flight being considered by every passenger when booking a ticket will necessarily increase call times, call wait times, and the costs associated with each. The additional delays will irritate callers who are not interested in this information and impose significant costs on carriers who will be forced to increase call center staffing to manage the increased load. As previously noted, our experience indicates few if any customers are interested in receiving this information. It is also a very poor predictor of on time performance at the time the passenger will actually be traveling in the vast majority of cases, so requiring carriers to proactively deliver the information to customers who did not ask for it is not likely to provide any useful information to them, and may in fact confuse or mislead them into choosing not to book reservations on flights which are in fact highly likely to operate on time during the period of their planned travel. It follows, therefore, that making on-time performance disclosure compulsory will negatively impact customer reservation services and increase carrier costs without providing anything close to an equal benefit to the consumer.

Counsel: Delta, J. Scott McClain, 404-773-6514

January 22, 2008

Comments of the Interactive Travel Services Association

ITSA believes that publication of flight-specific on-time performance data should be a matter left to the marketplace. If travelers desire/demand it, vendors should be able to apply their business judgment in whether and how it is presented. Moreover, we believe that statistical data on the record of even particular flights will be of virtually no use to consumers in avoiding the highly unpredictable egregious delays at the heart of prompting this regulatory initiative. We respectfully urge the Department to withdraw its suggestion in section 4 of the ANPRM that it mandate the publication of flight-specific on-time performance data by online travel reservation services, including the OTC and GDS members of ITSA.

By: ITSA, Arthur Sackler, 202-955-0089

January 22, 2008

Comments of the International Air Transport Association

A large majority of on-time performance data is publicly available. As such, if the Department were to. proceed with its proposal, the benefit to consumers would be limited to providing the small percentage of data that isn't publicly available. This needs to be balanced against the time, effort and resources that the airlines would need to spend bridging such a small gap, and the additional difficulties that could be caused by other States implementing their own (possibly conflicting) reporting requirements. In addition, the Department's well-intentioned proposal could easily result in unintended disadvantages for the subjects of its good intentions, namely the consumers.

Counsel: IATA, Douglas Lavin, 202-628-9292

January 17, 2008

Comments of Jet Airways (India)

Concerning a determination of what constitutes the "largest" foreign carriers (i.e., those that should be subject to the contemplated on-time reporting requirements), Jet Airways urges the Department to adopt an approach that (a) minimizes administrative burdens on the greatest number of operators possible (particularly smaller airlines, which are less likely to have sufficient resources to commit to additional reporting requirements) and (b) places all reporting airlines -- both U.S. and foreign -- on an equitable footing, while maintaining the Department's ability to collect meaningful data. To that end, it would seem reasonable to consider both (1) the number of weekly flights a foreign airline performs to U.S. airports overall, and (2) the concentration of international flights operated by a single foreign airline at each international gateway. For instance, all foreign airlines that operate, e.g., 70 or more weekly frequencies (i e., 10 daily flights) to and from the United States could automatically be included as a reporting carrier, and any foreign airline that exceeds a certain threshold at a relevant U.S. gateway (e.g., 10% of scheduled international departures at Airport X), irrespective of how many flights it operates to the United States overall, could also be required to report with respect to its flights at that specific gateway.

Given that Jet Airways operates relatively few international flights at the U.S. gateways it serves (Newark, JFK and, in the future, San Francisco), by either measure it proposes, Jet Airways would most likely not be required to report on-time data in the near term. However, in the event the Department determines that Jet Airways' current level of operations to the United States does warrant on-time reporting, Jet Airways is prepared, and equipped, to do so, but would urge the Department to take into account its comments concerning the disclosure of cause-of-delay information and the fair and equitable treatment of carriers.

Counsel: Hogan & Hartson, George Carneal, 202-637-6546, gucarneal@hhlaw.com

January 22, 2008

Comments of the National Air Carrier Association | Word

We believe it is inappropriate to add an air carrier’s contingency plan to its contract of carriage.  The contract of carriage is a legally binding document between the carrier and the passenger.  To the extent the carrier does not meet the provisions of the contract, a passenger has a private right of action against the carrier.  Given the vagaries of what would constitute appropriate emergency services, and in the absence of a specific statutory mandate, we believe that inclusion of such provisions within the contract of carriage exposes carriers to a myriad of unfounded lawsuits.  Rather, the Department should require at a minimum, that each carrier provide some form of public notice with respect to its customer service plan.  Carriers should have the option to make this notification through a variety of means, such as including it on an airline reservation or passenger information webpage, posting of notices at check-in counters, and, written notices in in-flight magazines or other materials included in the passenger seatback.  Each carrier should have flexibility to design its program in accordance with its own corporate policy.  In an effort to maintain a good public policy, carriers would be required to provide a copy of their plan to the Department, which in turn could be made publicly available.

By: NACA, Thomas Zoeller, tzoeller@naca.cc

January 22, 2008

Comments of the National Business Travelers Association | Word

NBTA does not support generally requiring carriers to develop and publish contingency plans.  Rather, NBTA believes, as discussed later in these comments that airlines should be required to prepare for certain situations that imperil basic passenger needs.  Of course, airlines that fail to adopt or utilize contingency plans are extremely likely to provide poor service to passengers in lengthy delay situations, and such carriers are likely to be considered a much less desirable travel option.  This observation is especially true for markets prone to delays due to location or time of year.

However, NBTA does encourage DOT to require carriers to maintain records on lengthy tarmac delays as a useful tool for analysis by DOT and private sector entities on airline performance.  NBTA recognizes that DOT is conducting an additional rule-making in this regard, (Docket No. OST 2007-28522), and recommends that such a mandate be included in any requirements emerging from that rule-making.

Counsel: NBTA, Shane Downey, 703-684-0836, sdowney@nbta.org

February 5, 2008

Re: Comments of the National Consumer League

The National Consumers League, a nonprofit organization founded in 1899 to advocate for consumers' economic and social interests, strongly agrees with and supports the attached views of U.S. PIRG. on ANPRM on "Enhancing Airline Passenger Protections.

By: Sally Greenberg, 202-835-3323

February 4, 2008

Re: Public Citizen's Congress Watch in Support of Comments of US PIRG

In response to the Department of Transportation's advance notice of proposed rulemaking concerning enhancing national airline passenger protections, Public Citizen—on behalf of its 100,000 members nationally—concurs with the views of the federation of Public Interest Research Groups and the Coalition for an Airline Passengers' Bill of Rights as expressed in the attached statements.

By: David Arkush, 202-588-1000

January 22, 2008

Comments of the Regional Airline Association - Bookmarked

Since no airline wants to offend its passengers, much less be the subject of derogatory late-night television monologues, airlines are becoming ever more sensitive to consumer concerns. Regional airlines and their major airline codeshare partners have been working together to apply lessons learned from problems that have arisen as a result of severe weather in the recent past and to adopt creative solutions that will benefit passengers in the future. Creative solutions by airlines and their personnel on the front lines assisting passengers are the best way to improve the system. To the extent the Department can encourage these solutions without restricting carrier initiatives and improve the Department's own systems to enhance the passenger experience, the Department's efforts are more than welcome.

The Department must be wary, however, of imposing regulatory requirements that would limit airline flexibility and creativity and sidetrack airline employees from assisting passengers to comply with regulatory requirements. In addition to imposing additional regulatory requirements on airlines, the Department should recognize that regional airline flights in particular compete with rail and bus surface transportation modes which face similar challenges from weather and congestion and should be held to similar standards and comparable regulatory requirements to ensure that a competitive imbalance is not created by the Department's action burdening regional airlines unnecessarily

Counsel: RAA, Roger Cohen, cohen@raa.org

January 22, 2008

Comments of Senators Barbara Boxer (CA) and Olympia Snowe (ME)

As the DOT moves forward with this rulemaking, we urge you to set minimum standards for the contingency plans and ask the DOT to both review and approve the plans proposed by the airlines. These minimum standards should not only include necessary food and water, but also passengers' right to safely deplane if they have spent more than three hours on the tarmac either when arriving at, departing from, or being diverted to an airport.

We support the proposals to improve communication between the airlines and their customers, and require airlines to track and provide consumers with more information about the past performance of flights and their carriers. Better information will help consumers make an educated choice when purchasing their ticket, and provides airlines an incentive to compete on the quality of their service as well as price.

By: Senators Boxer and Snowe

January 30, 2008

Comments of US Public Interest Research Groups

We strongly disagree with the Department's position that DOT should not review and approve the airline contingency plans proposed to be required to be submitted to it under the ANPRM. The ANPRM currently proposes that each of the scheduled airlines be allowed to "craft its own standard" for passenger protections in its contingency plan for tarmac strandings. This is unacceptable. Either DOT must issue a traditional Federal regulation establishing minimum standards for protecting stranded airline passengers, including fixed financial payments to passengers for violations (along the lines of the Federal denied boarding regulation), or the Congress and/or the states will have to fill that regulatory void.

By: Edmund Mierzwinski, 202-546-9787

January 22, 2008

Comments of Virgin Atlantic Airways

Virgin Atlantic objects to DOT’s proposal to require large foreign carriers to produce OTP. Virgin Atlantic believes that this request is both inappropriate and unduly burdensome. Given that Virgin Atlantic is not required to supply this information to the UK or EU, it would be problematic if Virgin Atlantic were required to produce and provide this data to US authorities. Moreover, such a requirement would put a significant regulatory burden upon Virgin Atlantic with questionable benefit to the consumer.

We understand the reasons why the DOT requires large U.S. domestic carriers to produce OTP. Domestic carriers are all subject to the same requirements under U.S. laws and, therefore, a comparison on punctuality can easily be made by the consumer. However international airlines are governed by their respective countries and operate in a wide variety of environments. Given that foreign carriers that operate international services are subject to a wide variety of local rules and regulations, and comply with complex security rules that vary greatly from market to market, it is impossible (and unfair) to make direct comparisons between them using OTP.

Counsel: Virgin, Barry Humphreys, 44-1293-747-064, barry.humphrey@fly.virgin.com

January 22, 2008

Comments of Zoom Airlines

In adopting any measure aimed at reducing airline delays, the Department should be mindful that the only alternative to a heavily delayed flight is sometimes a cancellation, and a cancellation may leave consumers with no other options to travel on other flights In an environment where airline load factors are high, as they are now. Thus, if an air carrier is forced to cancel a flight because it is heavily delayed, there is no guarantee that alternative timely lift would be available for the affected passengers. Thus, the Department's proposal with respect to chronically delayed flights might actually have unintended negative consequences for passengers.

The Department should not issue any notices of proposed rulemakings on these issues without holding consultations required by the open skies agreement with the EU, should consider adopting measures patterned on existing EU delay regulation and should adopt measures and standards to assure that any required on-time data reporting requirements for international flights produces data useful to consumers.

Counsel: Zoom, Jonathan Hinkles

February 1, 2008

Ex-Parte Letter to Senator Barbara Boxer

By: DJ Gribbin

February 1, 2008

Ex-Parte Letter to Senator Olympia Snowe

By: DJ Gribbin

March 3, 2008

DOT Request of Federal Register

We would appreciate your help in posting the attached Clarification Concerning Advance Notice of Proposed Rulemaking as soon as possible on Monday, March 3. If it is still possible to publish the document in the Wednesday, March 5 Federal Register, we would appreciate your doing that also. There is ongoing litigation that does not involve the Federal government; the matter we are clarifying in the attached notice is an issue in that litigation. There is a hearing on the matter on March 5. It is very important that the parties have notice of, and access to, this clarification as soon as possible; a citation to the Federal Register publication would be much better, if that is possible.

We would also appreciate it if you could advise us of the time of posting and the date of publication; if it is possible to be provided the citation to the document in the Federal Register before the date of publication, that, too, would be very helpful.

By: Neil Eisner

March 3, 2008

Advanced Notice of Proposed Rulemaking - Clarification

In a section of the ANPRM entitled "Regulatory Notices" the Department addressed a number of general regulatory issues as they relate to the ANPRM. including DOT Regulatory Policies and Procedures. Federalism, the Regulatory Flexibility Act and the Paperwork Reduction Act. In its discussion of Executive Order 13132, which sets forth certain requirements for Federal agencies when they are "taking action that preempts state law." the ANPRM concluded that it "does not propose any regulation that.. . preempts State law." Based upon comments DOT has received, and upon its own further review, the Department has determined that this statement has been misconstrued in the overall context of the proposed DOT regulation and its impact upon State law. This notice clarifies the Department's prior statement concerning preemption in this area.

Any State or local rules addressing, or related to, the services offered by air carriers are already preempted under the ADA. In addition, if the proposed rule addressed in the ANPRM is finalized, it is likely that the final rule would also separately preempt any such State or local regulations under other provisions of law. We need not further address any other grounds for preemption, particularly at the ANPRM stage, since, as explained above. States and localities are already precluded from regulating in this area.

By: Michael Reynolds

OST-2007-0022 - Enhancing Airline Passenger Protections
OST-2007-0108

February 26, 2008

Record of Meeting

By: Samuel Podberesky