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Passenger bill of rights (PBOR) advocates were dealt a blow today, when a federal appeals court overturned New York’s PBOR law. Why? The state law is superseded by the federal Airline Deregulation Act of 1978, so the state legislature is deemed unable to re-regulate the airlines.

The challenge to the New York law was brought by the Air Transport Association of America, the industry trade group that represents many U.S. airlines.

As Sam Glover notes:

While the Second Circuit’s interpretation of the preemption clause in the Airline Deregulation Act of 1978 seems at least reasonable, I have to wonder whether the air travel industry would have been better off losing this case. Now they just look like inhuman jerks who do not want to be bothered with giving trapped passengers some very basic creature comforts. Like air to breathe and a place to pee.

Fixing this at a state level may not work, after all. This will require leadership at the federal level. Write your House Representative. And your Senators, too.

(Thanks to Sam and Lar!)

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Has the passenger rights movement found a second life in the recent tumult over airline mergers?

Kate Hanni’s Coalition for an Airline Passengers Bill of Rights, which seemed to be on the fast track to irrelevance by sticking to a narrow pitch of opposing passenger strandings by the airlines, may have found new purpose. The Coalition has created an alliance with the International Association of Machinists and Aerospace Workers to oppose any airline merger that involves American, Continental, Delta, Northwest, or United. (Southwest, AirTran, US Airways… feel free to merge away!)

Will they have an impact on the merger mania? That depends on what “opposition” to a merger really means. Pickets? Passenger and employee strikes? Lawsuits? We’ll see.

But the key is this: This is an effort to take the stalled passenger rights movement and extend it into a real organization by joining forces with other parties. Creating an interest group, and not just a bunch of people with a website.

But as Chris Elliott warned a while back, any organization needs to look out for passengers, not just for media coverage. Opposing these mergers is pro-consumer, so this is a promising step for Kate Hanni & Co. But, much like there are automobile associations, there’s a long way to go before we have a true airline passenger organization.

Still, this may be the first step.

Related:
- Travel 2008: 33 hours from San Juan to Chicago
- Good for the goose, good for the gander: Charge change fees to your airline?
- Passengers’ bill of rights: Slow but steady progress?
- Chicago City Council to mandate passengers’ bill of rights?
- Should we trust airlines to improve passenger rights?

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Steve Baron of Fox News Chicago sends in a link to his station’s report on a God-awful start to the traveling new year. Passengers on a United flight (a Ted flight, technically) from San Juan, Puerto Rico, to Chicago say it took them 33 hours to get from point A to point B. Broken planes which pilots refused to fly, passengers shuffling on and off the aircraft, and just an all-around feeling of customer service breakdown. The one brightside (and this is really a stretch): At least they weren’t stuck waiting for takeoff during all those hours, and got to go back into the terminal.

Yeah, I know. That’s not really much consolation. But they got vouchers! That make you happy? Didn’t think so.

So whatever happened to the Passengers’ Bill of Rights (PBOR)?

New York passed a law back in August, which the airlines sued to stop. They failed. Now other states are close behind with their own legislation. While state legislatures are trying to emulate the New York model, it’s inevitable that some variation will persist. So now this is getting complicated, since rules could vary state by state.

And if legislation doesn’t work to create a national standard, then maybe litigation will. Kate Hanni and Catherine Ray of flyersrights.com have filed separate lawsuits against American Airlines. You may recall that they were trapped on the tarmac in Austin for 7 hours.

Frankly, I wish Congress or the Department of Transportation had had the courage to create some meaningful legislation or regulation, since market mechanisms have clearly failed. But legislators and regulators didn’t do enough, thanks in part to heavy lobbying from the airlines. Which leads us back to 33 hour delays.

Congress and the DOT have left a void. Nature hates a void, which the states and the courts are now starting to fill.

I just hope someone, or something, comes up with a standard, and does it soon.

Related:
- Should we trust airlines to improve passenger rights?
- United’s half-assed policy changes: Not quite a bill of rights, and not quite an upgrade policy fix
- Passengers’ bill of rights: Slow but steady progress?
- Chicago City Council to mandate passengers’ bill of rights?

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New York passes passenger bill of rights
It’s official: New York governor Eliot Spitzer signed a passengers’ bill of rights, which kicks in January 1 for flights grounded for three or more hours at New York airports. Note that the law won’t require airlines to allow people off the planes after three hours. Rather, it will require that the airline keep the toilets clean and the beverages flowing — thereby creating a roundabout requirement for airlines to link back up to the terminal. Lawsuits will fly. Pass the popcorn.

But the fact that this is a local law, and not a federal one, is absurd. Will we now need a separate contract of carriage for every possible way station on our trips? I’m all for states taking the initiative when the federal government won’t act (think California emissions), but laws like this one or the Chicago bill just indicate how broken the system is, from top to bottom. Those “customer service plans” that the airlines have offered up as a self-regulation alternative haven’t done the job, and Congress hasn’t acted quickly enough to address the systemic problems — air traffic control as well as passenger rights. We’ll see if this lights a fire under the collective asses of our legislative branch.

How to make Amtrak fun again: Free booze!
Drunken passengers are happy passengers. So says Amtrak, which is offering $100 in free drink vouchers for long-haul sleeper car trips. Sponsored in part by “Night Train”?

Virgin America debuts tomorrow
Tomorrow is Virgin America’s first flight. Anyone out there flying them on day one? (or heck, week one?) Hit the comments and tell the tale!

United Airlines seems to really enjoy taking half-steps to appease dissatisfied customers lately. To wit:

Skimpy bill of rights
In response to the brouhaha over passengers being stuck on planes, and in an attempt to fend off pending passenger bill-of-rights legislation, United has devised a new policy (leaked Sunday to our friends at the Consumerist, and made public later this week) for delayed flights and trapped customers. You won’t be impressed. Or if you are, snap out of it!:

Flights delayed for more than four hours on departure, or an hour and a half on arrival, will be declared “flights of note.” Passengers on “flights of note” will receive the following:
# An apology note;
# 20% off one (1) roundtrip economy ticket on a future United flight;
# One (1) $10 airport meal voucher.

That is all. Passengers delayed for less than four hours get nothing.

And remember, this only applies to delays where the passengers are on the plane, away from the gate, and stuck out on the airfield somewhere. If you’re delayed but the door is still open, this doesn’t apply.

While jetBlue’s policy revision had its problems, and didn’t go far enough in my opinion, it’s miles ahead of United’s policy, which is really laughable. At least jetBlue offered cash refunds.

Upgrades converting to miles again… for some
Remember United’s policy change for 500-mile upgrades? United’s policy of worthless expiration won no praise from this blog.

Well, they’ve backed down, for middle and upper-level elite frequent flyers. If you’re a United Premier Executive or higher, your upgrades will still convert to miles if they expire unused, but only if you register at their special site, and if you maintain your status level (or higher). And you can’t call up and ask for upgrades to be converted in advance of expiration.

But if you’re a lowly Premier, who flew 25,000 to 49,999 miles last year, you might be a good customer, but you’re out of luck. No corporate mile-love for you.

The policy still stinks. Remember, United’s top competitor, American Airlines, doesn’t put any expiration dates on their upgrades, and allows customers to convert their upgrades to redeemable miles with a simple phone call.

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Elvis has left the building. If by “Elvis,” we mean the entire flight crew of a United Airlines flight from San Francisco to Sydney, and if by “building,” we mean a Boeing 747 full of passengers who just spent over 14 hours in flight.

Passengers on a United Airlines Boeing 747 endured a horrendous 27-hour journey from San Francisco to Sydney yesterday, when their flight was left stranded on the tarmac at Brisbane Airport - without a crew. Fog in Sydney forced the diversion of two United flights to Brisbane early yesterday. But passengers on both aircraft were left to fend for themselves when their United crews clocked off, having exceeded their legal flying hours. (link; emphasis mine)

So let’s get this straight: The plane gets diverted due to weather, the crew goes over their legal time limit, exits the plane, and leaves the passengers locked inside, with no assistance??

Sounds like the modern-day equivalent of “Lord of the Flies.”

Rules? Pfft! With no Leviathan to control the atavistic masses, life onboard devolved to the state of nature. Economy class passengers pillaged first class, spreading themselves wide in the motorized “suites” up front and helping themselves to the few remaining hot nuts. Lavatory smoke detectors were tampered with. Seatbacks and tray tables were kept at partial, not full, upright positions. Exact change was neither necessary, nor appreciated.

Well, maybe not. It’s a testament to the patience of passengers that we’re not reading such stories of onboard revolution.

But honestly, if the crew can be let off the plane, why can’t the passengers? Even if immigration wasn’t prepared for such an influx of cranky flyers (no relation), couldn’t they have let people out and kept them in a waiting room?

Perhaps we’ll hear about an Australian passengers’ bill of rights soon. How fitting that an American carrier would be the one to set that ball in motion.

Thanks to reader Rob M. for the link!

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Downgraded: Lavender
Update: The controversial and lame American Airlines website for women got a minor redesign, as Meg at the Consumerist noticed. See the before-and-after screenshots above. The criticism must have gotten to them. Gone is the lavender flight search box, though it’s still a dumbed-down version with fewer options than the main search page. Is this progress?

Upgraded: US Airways, Downgraded: Southwestern temperance
The booze is back in the Land of Enchantment! US Airways is once again serving alcoholic drinks on flights to and from New Mexico. Recall that they got busted for serving liquor without a license. Tipple with impunity.

Downgraded: Late night arrivals at Detroit; Upgraded: Odds of a PBOR
It happened again. Passengers were stuck on a plane for hours, bathrooms had no water, etc. A late-arriving Spirit Airlines flight from Cancun couldn’t be processed after landing (at 11 p.m.), because Homeland Security’s Customs/Immigration agents had gone home for the night. It took until 4 a.m. the next day for passengers to be let out. Update: Or the plane landed early! And Customs’ computers were down. And passengers left the plane at 12:30 a.m., if you believe Customs. Or later, depending on who’s telling the story.

Upgraded: Lufthansa first class seating
No preview images yet, but Lufthansa is upgrading their first class cabins, beginning with winter 2008. The new seats were meant to debut with the A380, but given the delivery delays, they’re just rolling them out anyway.

Upgraded, potentially: Baggage screening
Assuming the bill survives a veto threat from President Bush, airports across America could receive new equipment that supposedly screens baggage faster and more accurately than previous versions. Why the veto threat? The bill also contains a provision permitting TSA agents to unionize.

Downgraded: Flights from LAX
United Airlines and Los Angeles World Airports are having a spat about the rent. United says the rent hike is a violation of the lease agreement, but until the dust settles, they’re charging passengers who board a flight at LAX an extra $10 to cover the difference, even though the actual costs to the airline are allegedly a lot less. Now Delta and US Airways have followed suit and raised fares out of LAX by the same $10. Lovely.

Upgraded: Baltimore!
Layover at BWI? Grab a glass of wine at the newest branch of Vino Volo, the chain of in-airport wine bars. Other locations include Washington Dulles, Sacramento, and Seattle. (Via Jaunted)

More passengers’ bill of rights fun! It’s not just the Chicago City Council that’s taking a national issue local. This time it’s the Florida Senate. Pile on!

The Senate Commerce Committee on Wednesday endorsed Bradenton Republican Sen. Mike Bennett’s bill to force airlines to refund ticket prices or issue tickets for other flights to customers whose flights are delayed more than one hour.

It’s unclear whether the state has the authority to regulate the federally controlled airline industry, but Bennett said he filed the bill so lawmakers in Washington and the airline industry know Floridians expect better customer service when they fly.
[…]
Under Bennett’s bill, airlines would have to pay inconvenienced customers the same fee they would charge someone to cancel a flight.

For example, if customers have to pay $50 to book a later flight because they’re delayed in traffic, the airline would have to pay those customers the same $50 if the carrier delays a flight because of problems with a plane. The penalties would not apply to flights delayed because of bad weather. The bill would also require airlines to transfer tickets from one person to another.

Love it! I know this is grandstanding, and it’s likely to be struck down in court, but it’s fun to turn the tables on the airlines. Can we start doing it to banks, too, while we’re at it?

(Aside: $50 to book a later flight when you’re stuck in traffic? Most airlines have the “flat tire rule” which lets you stand by for a later flight with no penalty, but you may need to use the phrase “flat tire” to make it stick. Anyway…)

The folks at the Flight Wisdom blog sent us a note, pointing out their post on jetBlue’s revision of the contract of carriage (pdf) to incorporate the previously promised “bill of rights.” (The last three pages of the contract contain the “bill of rights” provisions.)

Hats off to jetBlue for making good codifying their promises of vouchers for delays into the legal document that governs all tickets. That’s a good step.

But…

There’s still the matter of the “controllable irregularity.” As you may recall from my previous critique of the jetBlue apologies, the airline built in a huge loophole with the term “controllable irregularity.” If problems could be blamed — even in part — on anything uncontrollable, such as the weather, they wouldn’t owe you ANYTHING. That has now been codified:

Controllable Irregularity as used in Section 36, means a delay, cancellation or diversion that is not caused by a Force Majeure Event. For the sake of clarity, if in a chain of multiple events, the original irregularity is due to a Force Majeure Event, the cause of the subsequent event(s) reasonably related to the original irregularity shall be deemed an Uncontrollable Irregularity.

So by my reading of this, the passengers who were stuck on the taxiways at JFK for hours last month would have been eligible to receive… NOTHING. (corrected below) The weather started the problems, after all. Subsequent human decisions to keep the aircraft waiting and waiting would not have been necessary, had the weather been fine, so we can trace the “original irregularity” back to the weather.

So I’m back to being underwhelmed. Expect the media to celebrate this new jetBlue contract as a glorious event in the history of corporate apologia. But in reality, your rights haven’t improved much.

(Update/Correction: Re-reading the contract, I stand corrected. I read the first part without reading the second part carefully enough. I see that the controllable/uncontrollable distinction is overruled by the time spent on the taxiway, so yes, the February stranded passengers would have gotten vouchers for their trouble. The controlled/uncontrolled distinction really comes into play when passengers are delayed but the plane hasn’t left the gate. Once the decision to leave the gate is taken, then the “ground delay” rules kick in. Sorry for the mixup. Mea culpa. As Cranky says below, I’ve now gone from underwhelmed, to just plain “whelmed.”)

I’ve really tried to avoid writing about the passengers’ bill of rights for a few days now. Really, I have.

But as much as I wanted to avoid The Story That Won’t Go Away for a few days, I realize I promised you a post which included some of your answers to my poll (now closed) regarding a bill of rights and its odds of becoming law.

As you may recall from an earlier post, a whopping 69% of you expressed the belief that, yes, a PBOR would become law. If the same poll were taken today, we might see an even bigger number.

Why? Just last week, United joined the club of airlines leaving passengers stuck on board a plane for hours. Seven hours, to be precise. Nice work. And great timing.

PBOR naysayers argue that this doesn’t happen that often, and that this is a case of over-reporting, not a major trend in the air travel experience. So let’s see the numbers! Well, okay, here you go.

An AP report provides some statistics:

To be precise, statistics show that passengers sat for two to five hours on 7,369 flights parked on taxiways before taking off in 2006 — not as rare an occurrence as some airline advocates argue, but still only a tiny fraction of the year’s total 7,141,922 flights. Another 36 airliners were stuck on taxiways for more than five hours after leaving the gate last year, according the Bureau of Transportation Statistics. Two more were parked for more than five hours after landing.

Fair enough, 38 total flights stuck for five or more hours is a tiny percentage. 0.0005%, give or take a few decimal points. But that doesn’t mean you shouldn’t do something about it.

Imagine a city mayor saying that there were “only 38 murders” in a city that year, so he was going to let the police force go. (No, I’m not saying that being stuck in a plane for hours is equivalent to murder. I’m just saying that a low rate of incidence doesn’t excuse inaction.) And besides, 7,369 flights were stuck on taxiways between 2 and 5 hours. That’s still a small percentage (0.10% of flights) but let’s put that in human terms:

Even if all those delayed planes only carried 50 people each, that comes to more than 350,000 people whose lives were put on hold for hours and hours. That’s big.

(As an aside, I’d love to see the numbers broken down by hour. 2 hour delays and 5 hour delays aren’t comparable, in my view. Anyway…)

So what’s happening? Bills have been introduced in Congress, and will be entering committee for debate. Now, separately, the Department of Transportation is getting in on the game, investigating airline policies, to see what went wrong and how it could be prevented in the future. We’ll see where it leads.

So what did you folks say when asked if a PBOR would pass? Roll the tape.

Yes. Democrats are in power, and the public is sufficiently pissed off. But the devil is in the details. I bet we see a bill that addresses delays, but doesn’t require cash payments.

Yes. The real question is, will any of the various bills of rights floating around actually fix the problem?

No. People have short memories and shallow pockets - won’t want to pay more, and the airlines will tell them that the bill would increase prices.

Yes. If this ever happens to me, I will pop the door and pull the emergency chute and let them arrest me. I’m sure the rest of my fellow passengers would put up bail money.

No. At the last minute, Homeland Security will come out and call this a security risk, and then it will die. Of course that will not be the truth, but welcome to America!

Thanks for these and the many other comments. I think you’re raising the right questions, and you’re appropriately cynical. The unbridled cynicism of the last comment makes me chuckle, but only because it sounds so plausible. Sadly, I think that might be right.

A group of Chicago’s aldermen (the local name for city council members) is proposing a bill that would block airlines from landing at O’Hare or Midway airports if they fail to have a passengers’ bill of rights in place. Pass the popcorn.

As a resident of Chicago, I really have to snicker at this kind of story, with a simultaneous sense of city pride and shame. This is the city council that, when its members aren’t being indicted, hasn’t shied away from making headlines with laws banning foie gras and a minimum wage aimed only at big-box stores.

But sometimes this is how things actually get done. In a federalist system, it’s sometimes slow, difficult, or impossible to change the rules nationally, for better or worse. Sometimes, large states (or groups of states) take matters into their own hands.

Take California’s rules regarding vehicle emissions. To fight smog, the state’s regulators mandated tougher emissions rules for carmakers; the size of California’s market was large enough that automakers implemented California emissions nationally. David Vogel, in his book Trading Up(aff), calls this “the California effect” or the “race to the top.”

A similar example might be the Texas school board’s power over the writing of textbooks. Because Texas is one of the largest states, and has a board wielding great power over which texts can be used in classrooms, publishers edit their books for Texas’ standards. Because it’s too costly to have different editions in different states, Texas has a huge role in defining curricula nationally.

Alderman Ed Burke believes in the California effect and apparently thinks that Chicago has similar influence. “O’Hare is the busiest airport in the nation. No airline is going to not want to do business in the city of Chicago.” Indeed, it’s hard to imagine airlines pulling out of Chicago en masse if a PBOR were required. This could get interesting.

The Chicago proposal isn’t yet officially proposed, and it sounds like it’s really more of an idea they’re kicking around at this point, rather than a full-fledged bill. No word yet on what the minimum requirements for a bill of rights would need to be, or if international and domestic flights would be treated equally.

It’s certainly a bit of grandstanding. (There’s an election this coming Tuesday, after all.) And while the city owns the airports, can they legally block an airline for such a reason? And finally, if PBOR bills up for review in Congress actually move forward in committee, it might be moot. But it’s certain to make the airlines sweat.

Like I said: Pass the popcorn.

(Hat tip to Rob at the Airline Hub for the link!)

First off, I’d like to officially declare that I’m tired of the jetBlue story. But it remains the belle of the ball, if by “ball” we mean “e-mail inbox.” Buckle up.

For starters: Late last week, I solicited reader opinions on whether or not the passengers’ bill of rights would become law. This was before the jetBlue fiasco went from a small number of planes stuck on the ground to a multi-day festival of flight cancellations. There were some interesting long-form responses in there, which I’ll address in another post, but the summary:

69% of you predicted that, yes, a passengers’ bill of rights would become law, while 31% said no.

Thanks for all the votes. Follow-up soon. To the mailbag:

The jetBlue ground delays stemmed in large part from the fact that the planes backed away from the jetway, even though they weren’t going to take off. Reader Stephanie writes:

I’ve noticed more and more often that planes are pushing away from the gate on time, and then sitting on the ground for up to an hour, hour and a half before leaving. They then call the flight “on time”… Is this the latest thing airlines are doing to get past saying their flights are late?

For the most part, yes, leaving the gate means the plane has departed on time. But the government’s statistics measure arrival, so a flight that leaves the gate early but doesn’t go anywhere won’t be considered on-time if it arrives late.

Leaving the gate isn’t done to cheat the customer, per se. (The airlines DO pad the flight time a lot, though, making it easier for them to meet a very relaxed “on-time” standard.) Rather, the hurry-up-and-wait policy 1) lets the ground crew meet their on-time departure targets (quotas?), when their job performance is being considered, and 2) opens up the gate for another plane to arrive.

I usually fly in and out of O’Hare, and arriving to find an “occupied gate” is unfortunately very common. I’m generally more annoyed by waiting to deplane than waiting to take off, but I’m sure others feel differently.

Reader Paul writes:

Now that JetBlue has a BOR, do you think that’s enough to stop Congress from debating a bill?

No. I don’t. Three main reasons. 1) It’s only jetBlue. No other airline has a similar policy. Until the others do, the pressure will remain on. 2) JetBlue’s policy doesn’t cover all the issues that most proposals for a PBOR do. It’s just about delays. 3) It doesn’t have sufficient teeth.

Yesterday, I suggested that the loopholes in the policy were large enough to taxi an Airbus A320 through. (”Controllable Irregularity.”) And vouchers are just glorified coupons, and a rather insincere form of “payment.” If you ever look at a supermarket coupon’s fine print, they usually list a cash value that’s well below the face value (e.g., 1/100th of a cent). Same principle here.

Others have pointed out further flaws of the jetBlue plan.

Bottom line, jetBlue’s policy is an okay conversation starter, but it’s not the final word.

Reader Steven writes:

What do you think about Mike Boyd’s commentary that all the journalists (and bloggers?) who call for a bill-of-rights are idiots?

Well, I’ll respectfully disagree. He has a lot of opinions. So do I. If he wants to consider a reasoned set of arguments for an increased set of passenger rights as the impassioned plea of “nitwit consumerist gadflies,” then let him. I think he’s far too dismissive of the actual problems that are endemic to the airline industry. It’s not just one or two flights. It’s the policies and practices that allow such things to happen.

Sure, some politicians are grandstanding now, but that’s just what they do. At the end of the day, the policy that results is what matters.

Reader S A asks:

A PBOR’s rights sound great, but how would a PBOR be enforced?

I assume a claim would be filed with the airline. Yes, passing a bill of rights will create hassles for the airlines, the airports, and everyone in between, as they point fingers, pointing out whom to blame. I initially felt that a PBOR would be difficult to implement for precisely such reasons. But as commenter Oliver pointed out, that would be the airline’s problem, not yours. If a regulation exists that mandates a minimum threshold of service, then it should be up to the airline to meet that threshold, if necessary by putting pressure on vendors, airports, and regulatory bodies to make sure it happens.