Airlines See Passenger Right To Tarmac-Delay Time Limits

Debated for a decade, an airline passenger bill of rights recently inched closer to reality as U.S. Senate legislation progressed, several once-opposed travel industry groups now favor a bill, and even the legislation's most ardent opponents, the airlines, now appear to be softening stances on tarmac time limits.

"When you're on the one-yard line, you just have to get it over, and that's where we are: We're on the one-yard line," Sen. Barbara Boxer (D-Calif.) said of the pending legislation she authored with Sen. Olympia Snowe (R-Maine).

During a hearing held in Washington, D.C., last month by bill of rights advocates Business Travel Coalition and FlyersRights.org, Boxer pledged passage of the bill, which now is packaged with the Senate's latest Federal Aviation Administration reauthorization bill.

Though Boxer called that legislative route the "easiest way to get it passed," she would "support it any way it can become law, whether it's a separate amendment, whether it's a freestanding bill, whether it's part of reauthorization. We're going to work to make sure it happens."

While the bill would require passengers have access to clean water and lavatories during extended delays, the proposal's most contentious provision requires carriers to allow passengers to deplane if an aircraft is stranded on the tarmac for more than three hours.

Many industry groups, including BTC, the National Business Travel Association and the American Society of Travel Agents, in the past had firmly opposed such provisions in the passenger bill of rights, favoring instead an industry-developed solution. In fact, BTC testified in opposition to such rules before Congress four times since a bill of rights first was floated in 1999. Those groups have reversed positions, claiming that after a decade of unfulfilled promises from carriers, the industry has failed to fully address extended tarmac delays. "BTC cautioned that if the airlines do not fix service and extended-ground-delay problems, someone will eventually endeavor to do so for them," said BTC chairman Kevin Mitchell.

The Air Transport Association, which represents the largest domestic passenger airlines, could be amenable to a time limit, according to an e-mail sent last month by Transportation Department general counsel Robert Rivkin to a DOT colleague and placed in the public docket.

The e-mail cites a meeting with ATA CEO James May and general counsel David Berg on Sept. 17, and claims, "They said they had discussed the issue with their membership and might be prepared to agree to a firm time limit on tarmac delays for domestic flights."

The Rivkin e-mail does not give any specifics on an airline counterproposal to the three-hour rule, and encouraged the ATA to submit any such comments in writing. Still, ATA remains an opponent to what May, in a statement to BTN last month, called "a hard-and-fast three-hour deplaning time requirement that will cause substantial and unnecessary passenger inconvenience."

May's statement continued, "We are fully aware of the ongoing consideration of these issues by both Congress and the Department of Transportation, and we continue to work to keep decision makers informed of our concerns while exploring possible solutions to the underlying problems."

Though ATA declined to be interviewed, the group in a position paper updated last month said extended tarmac delays are a statistically small problem, the causes of which are often outside airlines' control—with weather, diversions, security issues and an outdated air traffic control system clustered as the roots.

Former American Airlines CEO Bob Crandall took a surprising stance in favor of legislation, though he suggested that any regulation start at the four-hour mark and allow carriers time—a year and a half or so—to comply with a three-hour rule. "I'm trying to avoid the very bad consequences that may result if we impose a rule that's too severe too quickly," Crandall said of his phased-in proposal.

DOT records show 777 aircraft waited on U.S. tarmacs for more than three hours from January to July this year. "However, in statistical terms, it is very small," Crandall said. "In 2009, through July, the airline industry operated 3.8 million domestic flights." The numbers get even smaller when it comes to tarmac delays exceeding four hours, which were recorded on 126 flights through July.

"Many of these flights would not be impacted by the ruling," said Amy Cohn, an associate professor with the University of Michigan Department of Industrial and Operations Engineering who focuses on aviation.

The proposed legislation stipulates that pilots have the discretion to deny requests to deplane if they feel the flight will depart within a half-hour or if safety issues would prohibit doing so.

"For example, during a thunderstorm," Cohn said, "it is not safe for ground crews to be on the tarmac to guide a plane to the gate, and during a major snowstorm there may be no gate to go to. The number of flights actually returning to the gate as a result of the proposed three-hour rule will be even smaller than this one hundredth of 1 percent."

Cohn's conclusion is that the bill focuses on symptoms and not the problem. "I don't believe that the three-hour rule will actually change things very much at all, given the few number of affected flights. When it does, although it will help some passengers, it will also certainly harm others," particularly those whose departure could be further delayed by passengers who elect to disembark, she said.

Even FlyersRights.org executive director Kate Hanni, an ardent proponent of such legislation, said the bill would not alter the outcomes of every tarmac delay. "To characterize the three-hour passenger rights proposal with the false premise that we are trying to solve for extraordinary exceptions is disingenuous," she said. "We are not trying to solve, for example, 100 percent of 613 or so three-hour plus delays for the first six months of 2009. Airlines will figure out what changes need to be made to operations and scheduling to make this work."

Boxer said the bill would instruct airlines to develop a plan to combat three-hour tarmac delays, which DOT would then approve and enforce. Several carriers already have instituted internal policies to address such extended tarmac delays. Citing an August Sun Country Airlines flight that was stranded on the runway at New York's John F. Kennedy International Airport awaiting departure to her state, Sen. Amy Klobuchar (D-Minn.) during the gathering in Washington said the airline promptly "instituted their own rule for a four-hour limit."

Still, Klobuchar said, "I don't think that is the solution. You have one airline that does it and others that don't do it, and you don't really change the culture that we need to change from everyone involved."

Terry Trippler, who heads airline consultancy Trippler & Associates, holds the opposite viewpoint. "What's wrong with each individual airline printing out their tarmac policy and we as consumers can judge which airline we want to go with? We don't need Congress to come in and protect us from the airlines."

Other airlines have implemented their own rules to address extended tarmac delays. After a high-profile bout of what then-CEO David Neeleman called "unacceptable delays, flight cancellations, lost baggage and other major inconveniences," JetBlue Airways in 2007 issued what it calls its Customer Bill of Rights and introduced contingency plans for similar future situations, including a five-hour tarmac limit.

Though he no longer is officially linked to the airline, Crandall said American also has a policy that "no passenger will be held on an aircraft for more than four hours without the opportunity to deplane."

Continental Airlines CEO Larry Kellner during the National Business Travel Association convention in San Diego in August said the carrier's policy allows passengers to deplane if they are on the tarmac for more than three hours "if we can do that safely." Kellner further said that Continental has developed a process at its hub in Newark to allow customers to deplane at the three-hour mark without getting the plane out of line and back to the gate.

"We have very few people who want to get off," Kellner said. "They're not happy about the delay, but they also need to get to San Diego or Vegas or Seattle, and so you've got that constant challenge."