The U.S. Department of Transportation through Feb. 6, 2009 is accepting public comment on a notice of proposed rulemaking related to a series of air consumer protections. Following an advanced NPRM issued in November 2007 that garnered 200 public comments, DOT's latest proposals would require airlines to "adopt contingency plans for lengthy tarmac delays and to incorporate these plans in their contracts of carriage," respond to consumer problems and adopt other customer service programs. DOT also proposes to "declare the operation of flights that remain chronically delayed to be an unfair and deceptive practice and an unfair method of competition," and require airlines to provide flight delay data on their Web sites.
According to a notice filed by DOT on Dec. 8 to the Federal Register, the federal government "takes this action ... in response to the many recent instances when passengers have been subject to waits on airport tarmacs for very long periods and also in response to the ongoing high incidence of flight delays." On-time arrivals, DOT continued, "remains problematic: It has improved only slightly since the issuance of the advanced NPRM."
Referring to public commentary following the advanced NPRM (including feedback from airlines, trade associations, consumer groups and others), DOT wrote that "in general, the consumers and consumer associations maintained that the Department's proposals do not go far enough, while the 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 expressed support for consumer protections but not at their members' expense."
Based on that commentary, DOT slightly modified five rules proposed in the advanced NPRM and ditched two. It no longer proposes to require airlines to post to their Web sites data on customer complaints. "Both the [public] comments and our own further consideration have persuaded us that these data would be of little or no value to consumers," DOT wrote, noting that it already supplies such data via monthly Air Travel Consumer Reports (found here: http://airconsumer.ost.dot.gov).
DOT also dropped a proposal that would have required airlines to report on-time performance for international flights. Among its reasons for excluding such a rule, DOT noted that "we do not have sufficient evidence of a problem to justify the costs of reporting on-time performance of international flights, and on the many international routes that are only served by one carrier, access to on-time performance data would not affect consumers' choices."
Details of the five revised rules, as currently proposed, follow.
- Require air carriers to adopt contingency plans for lengthy tarmac delays and to incorporate these plans in their contracts of carriage. Required by "both partners in a codeshare arrangement," those contingency plans, "at a minimum," must include "the maximum tarmac delay that the carrier will permit; the amount of time on the tarmac that will trigger the plan's terms; the assurance of adequate food, water and lavatory facilities, as well as medical attention if needed, while the aircraft remains on the ground; assurance of sufficient resources to implement the plan; and assurance that the plan has been coordinated with airport authorities at medium and large hub airports." DOT wrote that failure to fulfill those obligations would be subject to "enforcement action," possibly including "civil penalties," while passengers would have the right to "sue for breach of contract." DOT also noted that it would allow carriers to set their own minimum standards for contingency plans and vary plans by airport. "We are not proposing here to require airports to provide for concessions to remain open during lengthy tarmac delays," DOT continued, "in part because we doubt that we have the authority to do so."
- Require air carriers to respond to consumer problems. Airlines must abide by this regulation by designating an employee at their operations centers and at each airport dispatch center to monitor flight delays and cancellations, and to provide "input into decisions on which flights to cancel and which to delay the longest;" provide on their Web sites, on e-ticket confirmations, at airport counters and at gates specific instructions on how to file complaints; acknowledge receipt of complaints within 30 days; and provide a "substantative response" within 60 days. While the Air Transport Association suggested that complaint resolution within 30 days "is difficult, if not impossible," DOT stated that "the deadlines that we are proposing represent standard practice in the industry and should allow carriers adequate time to investigate and respond appropriately."
- Declare the operation of flights that remain chronically delayed to be an unfair and deceptive practice and an unfair method of competition. DOT defines "chronically delayed" as those flights that arrive more than 15 minutes late at least 70 percent of the time during "three consecutive calendar quarters." DOT suggested the definition "strikes the appropriate balance between consumers' need to have reliable information about the real arrival time of a flight and the carriers' inability to control or predict the weather and certain other factors that can contribute to delays."
- Require air carriers to publish delay data on their Web sites. DOT specifically would require airlines to display for all flights from the latest reported month the percentage of on-time arrivals (within 15 minutes of scheduled arrival), the percentage of arrivals more than 30 minutes late ("with special highlighting if the flight was late more than 50 percent of the time") and the percentage of cancellations. Carriers' telephone reservations agents need not disclose this information because "the costs of providing this and other information to all callers whether requested or not would be unduly burdensome and of dubious benefit," especially since the information would be published online.
- Require air carriers to adopt customer service plans, incorporate these in their contracts of carriage and audit their adherence to their plans. "At a minimum," these plans would address "offering the lowest fare available; notifying consumers of known delays, cancellations and diversions; delivering baggage on time; allowing reservations to be held or canceled; providing prompt ticket refunds; properly accommodating disabled and special-needs passengers; meeting customers' essential needs during long on-aircraft delays; handling 'bumped' passengers in cases of oversales with fairness and consistency; disclosing travel itinerary, cancellation policies, frequent flyer rules and aircraft configuration; ensuring good customer service from codeshare partners; and improving response to customer complaints." Moreover, by forcing carriers to include such plans in their contracts of carriage--a stipulation not covered by the advanced NPRM--DOT noted that passengers could, under state contract law, "sue for breach of contract in the event that a carrier failed to adhere to its plan."
DOT intends for these consumer protections to take effect 180 days after a final rule is published, providing airlines "sufficient time to adopt their plans, modify their computer programs and take other necessary steps to be able to comply with the new requirements before we begin enforcing them."
To file a comment before the Feb. 6 deadline, interested parties should visit www.regulations.govand refer to Docket No. DOT- OST-2007-0022.