DOT extends period for commenting on proposed rule enhancing airline passenger protections

August 3, 2010

In response to numerous requests, DOT has extended the comment period for “Enhancing Airline Passenger Protections,” a Notice of Proposed Rulemaking the agency issued in June 2010, from August 9 to September 23, 2010.  If adopted, the proposed rule, which can be found at 75 F.R. 32318 (June 8, 2010), would substantially expand DOT’s rule of the same name that regulates lengthy tarmac delays and went into effect on April 29, 2010.  See 74 F.R. 68983 (Dec. 30, 2009).

Although the proposed rule covers 12 different areas, its primary focus is on tarmac delays.

The rule that went into effect on April 29 requires that each covered U.S. airline adopt a “Contingency Plan for Lengthy Tarmac Delays” that applies to its “scheduled and public charter flights at each large and medium hub U.S. airport.”  For domestic flights, the Contingency Plan must include an assurance that the airline will not permit an aircraft to remain on the tarmac for more than three hours, unless certain safety or security conditions apply.  For international flights that depart from or arrive at a U.S. airport, the Contingency Plan must include an assurance that the airline will not permit an aircraft to remain on the tarmac “for more than a set number of hours, as determined by the carrier and set out in its contingency plan,” unless certain safety or security conditions apply.  For all flights, the Contingency Plan must include an assurance that the airline will provide adequate food and water, lavatory facilities and, if needed, medical attention.  The required Contingency Plan assurances are all contained in 14 C.F.R. § 259.4.

An airline’s failure to comply with any of the required Contingency Plan assurances is considered an unfair and deceptive practice within the meaning of 49 U.S.C. § 41712.  See 14 C.F.R. § 259.4(e).  This means that a violation of the assurances could result in, pursuant to 14 C.F.R. § 383.2, a civil penalty by DOT of up to $27,500 per violation.

DOT’s proposed rule would expand 14 C.F.R. § 259.4 by requiring, among other things, (i) each foreign airline operating scheduled passenger or public charter service to and from the United States to adopt a contingency plan “that includes minimum assurances identical to those currently required of U.S. carriers for the latter’s international flights,” and (ii) each covered airline to adopt a contingency plan covering not just large hub and medium hub U.S. airports, but small hub and non-hub U.S. airports as well.

Thus, if the proposed rule were adopted in its present form, it would not result in the imposition of a fixed time limit for U.S. or foreign airlines to deplane passengers on international flights during tarmac delays.  But a fixed time limit might be on the horizon.  While DOT recognizes that “most international flights operate less frequently than most domestic flights, potentially resulting in much greater harm to consumers if carriers cancel these international flights (e.g., passengers are less likely to be accommodated on an alternate flight in a reasonable period of time)”, DOT nonetheless is requesting comments “on whether any final rule that we adopt should include a uniform standard for the time interval after which U.S. or foreign air carriers would be required to allow passengers on international flights to deplane.”

The proposed rule also proposes to strengthen the oversales (or “bumping”) regulations in 14 C.F.R. Part 250, to strengthen DOT’s enforcement policy regarding full fare advertising, to codify DOT’s longstanding policy that a forum selection provision in an airline’s contract of carriage is an unfair and deceptive practice under certain circumstances and to make several other substantial consumer-oriented changes.  One of these other proposed changes pertains to the accommodation of travelers with peanut allergies.

Although the regulations implementing the Air Carrier Access Act and the Americans with Disabilities Act define “disability” using almost identical language (compare 14 C.F.R. § 382.3 with 42 U.S.C. § 12102(1)), DOT considers a severe peanut allergy to be a “disability,” while the Eighth Circuit, the only federal appeals court to rule on this issue, held that it is not a “disability.”  See Land v. Baptist Medical Center, 164 F.3d 423 (8th Cir. 1999).  In 1998, DOT attempted to enforce its policy by requiring that airlines, if given advance notice, provide a “peanut-free buffer zone” in the immediate area of a passenger with a severe peanut allergy.  In 1999, Congress smacked this requirement down, and DOT backed off – until now.

The notice indicates that DOT is considering the following alternative measures to address the peanut allergy issue:  (i) “banning the serving of peanuts and all peanut products by both U.S. and foreign carriers on flights covered by DOT’s disability rule,” (ii) “banning the serving of peanuts and all peanut products on all such flights where a passenger with a peanut allergy is on board and has requested a peanut-free flight in advance,” and (iii) “requiring a peanut-free buffer zone in the immediate area of a passenger with a medically-documented severe allergy to peanuts if [the] passenger has requested a peanut-free flight in advance.”

The peanut growers’ trade associations are very strong, they remember the peanut allergy rebellion of 1998-99 very clearly and they responded very quickly.  As a result, on June 22, DOT issued a “Clarification” recognizing that, as a result of the 1999 legislation, it is barred from adopting any peanut restrictions “until 90 days after submission to the Congress and the Secretary of a peer-reviewed scientific study that determines that there are severe reactions by passengers to peanuts as a result of contact with very small airborne peanut particles of the kind that passengers might encounter in an aircraft.”  The Clarification does not mention whether DOT intends to commission such a study.

The notice also indicates that DOT is considering requiring that carriers make epinephrine auto-injectors available on flights; it requests comments on the question of “Who should be responsible for ensuring an epinephrine auto-injector is available on a flight – the passenger with a severe peanut allergy or the carrier?”  Of course, this question raises others as well.  If airlines are required to stock Epi-Pens on their aircraft, will flight attendants be required to inject passengers under certain circumstances?  Should an Epi-Pen be given to an unaccompanied minor?  Will airlines be liable if the passenger has an adverse reaction to the epinephrine?  If the aircraft are being stocked with Epi-Pens, then why not also stock them with insulin and other medicines?  One can only hope that, ultimately, DOT is able to resist its apparent desire to make airline personnel try to function as immunologists.

Comments on the proposed rule may be filed in docket DOT-OST-2010-0140.


Airline passenger “Bill of Rights” legislation resurrected

April 26, 2009

On January 12, 2009, Senator Barbara Boxer reintroduced the Airline Passenger Bill of Rights Act with co-sponsor Senator Olympia Snowe.  Senator Boxer had introduced a similar bill in 2007, with Senator Snowe as its co-sponsor, but it was not enacted.  The pending bill, S. 213, has been referred to the Committee on Commerce, Science and Transportation.  Representative Mike Thompson introduced the identical House version, H.R. 624, which has been referred to the Committee on Transportation and Infrastructure.

The legislation would require that each “air carrier” (i.e., U.S. airline) submit a contingency plan for DOT review and approval that requires, where “the departure of a flight is delayed or disembarkation of passengers on an arriving flight that has landed is substantially delayed,” the provision of (i) “adequate food and potable water,” (ii) “adequate restroom facilities,” (iii) “cabin ventilation and comfortable cabin temperatures,” and (iv) “access to necessary medical treatment.”

The contingency plan must also “provide passengers with the option of deplaning and returning to the terminal at which such deplaning could be safely completed, or deplaning at the terminal” if “3 hours have elapsed after passengers have boarded the aircraft, the aircraft doors are closed, and the aircraft has not departed,” or “3 hours have elapsed after the aircraft has landed and the passengers on the aircraft have been unable to deplane.”

The option to deplane must be “offered to passengers at a minimum not less often than once during each successive 3-hour period that the plane remains on the ground.”

However, passengers would not have the option to deplane if the pilot “reasonably determines that the aircraft will depart or be unloaded at the terminal not later than 30 minutes after the 3 hour delay” or “that permitting a passenger to deplane would jeopardize passenger safety or security.”

The legislation would also require that airport operators submit contingency plans describing how they would handle passenger deplanements following long ground delays, as well as create a telephone complaint hotline for airline passengers.

In introducing S. 213, Senator Boxer made the following remarks:  “In 1999, the airlines had an opportunity to address the stranding of airline passengers on tarmacs across the country, but despite those efforts little has changed.  Last March a Federal appeals court ruling struck down New York State’s Passenger Bill of Rights law, stating that it is up to the Congress to set a national Federal standard.  Our legislation also includes a few additional provisions from the FAA Reauthorization bill passed by the House in the last Congress.  Our bill requires airports to develop plans to handle stranded passenger aircraft and creates a DOT hotline for consumer complaints.  It would also permit the DOT to levy fines against air carriers or airports that do not submit or adhere to the contingency plans.”

One cannot argue against the concept of access to adequate food, water, restrooms, fresh air and medical attention during a long ground delay.  The battleground will be the passengers’ right to deplane.  The concept of giving passengers the right to deplane looks harmless and plays well with the voting public.  The reality of exercising this right, and its unintended adverse consequences, is a different matter.

Under the legislation, a few passengers, or even a lone passenger, could exercise the right to deplane even if other passengers did not wish to do so.  Thus, one passenger could force the aircraft to leave its place in line on the taxiway and return to the terminal so he or she could deplane even if all the other passengers wished to remain on the aircraft.  Even if the bills were modified to require some form of passenger consensus in order to deplane, what form would that consensus take?  Would a majority of passengers be required?  If so, how would the passengers vote?  Voting might be feasible on a 70-passenger regional jet, but how would voting be conducted on an A380 loaded with 853 passengers?  Who would oversee the voting?  Would flight attendants serve as poll watchers, with the pilots serving as judges to scrutinize the “hanging chads”?

Even if the passengers were to vote to return to the terminal, the typical 75-foot wide taxiway is too narrow to permit an aircraft to make a “u-turn” and taxi past the aircraft in line behind it back to the terminal.  And what would happen if the aircraft did return to the terminal?  The aircraft would lose its place in line and it is likely that the flight would be canceled due to scheduling issues or crew rest requirements.

Some commenters have suggested the use of specialized buses and hardstands to allow deplaning without returning to the terminal, but requiring airlines and airports to make these equipment and infrastructure enhancements is likely to result in higher fares.  These same commenters have argued that taxiway deplanements will not result in canceled flights because only those passengers who wish to deplane would do so, leaving the remaining passengers to continue on the flight.  But what about the checked baggage of those passengers who wish to deplane?  If passengers with checked baggage are allowed to deplane, their baggage will fly without them.  Although the concept of deplaning on a taxiway seems like such a simple solution, it is not so simple after all.

While S. 213 and H.R. 624 move through Congress, DOT is moving along a parallel track with its “Enhancing Airline Passenger Protections” notice of proposed rulemaking (Docket No. DOT-OST-2007-0022).  Like the pending bills, the proposed regulations would only apply to U.S. airlines.  The most controversial element of the proposed regulations is the requirement that airlines adopt a “contingency plan for lengthy tarmac delays” and a “customer service plan” (covering matters such as “offering the lowest fare available” and “notifying consumers of known delays”) and incorporate such plans into their contracts of carriage.  In comments on the NPRM, ATA argued that DOT lacks the authority to dictate contract terms between airlines and their passengers, while passenger advocates criticized the proposed regulations for failing to set minimum standards for the contingency plans.

Update:  DOT’s final rule was published on December 30, 2009 and took effect on April 29, 2010.  Among other things, the rule requires that each covered U.S. airline adopt a “Contingency Plan for Lengthy Tarmac Delays” that includes an assurance that, for domestic flights at large and medium hub airports, the airline will not permit an aircraft to remain on the tarmac for more than three hours, unless certain safety or security conditions apply.  The rule provides that its violation is considered an unfair and deceptive practice within the meaning of 49 U.S.C. § 41712; this means that a violation could result in, pursuant to 14 C.F.R. § 383.2, a civil penalty of up to $27,500 per violation.


Passenger ground delay case is trimmed but survives

September 1, 2008

Ray v. American Airlines, Inc. (W.D. Ark. Aug. 22, 2008).  The passenger’s December 2007 flight on American from Oakland to Dallas was diverted to Austin due to weather conditions.  The passenger claims that she was confined to the aircraft in Austin against her will and that she endured “deplorable conditions” during the 11-hour ground delay.

The passenger filed a lawsuit against American, alleging causes of action for false imprisonment, intentional infliction of emotional distress, negligence, breach of contract and fraud.  American moved to dismiss the passenger’s claims on the grounds that they are preempted by the federal Airline Deregulation Act and the Federal Aviation Act and that, moreover, she failed to allege sufficient facts to state a claim under her various state common law causes of action.

The court rejected most of American’s preemption arguments.  As to the Airline Deregulation Act, the court reasoned that while an “affirmative regulation” that impacts an airline’s “business functions” would be preempted by the ADA, the passenger’s tort claims were not preempted because “allowing an individual to recover for injuries tortiously caused by a carrier does not create any such regulation.”  The court did find, however, that the ADA preempted the passenger’s claims for compensation for lodging, meals and ground transportation, since the U.S. Department of Transportation has implemented regulations requiring such compensation when flights are overbooked but not when flights are canceled for weather-related reasons.  The court also held that the ADA preempted the passenger’s breach of the implied covenant of good faith and fair dealing claim to the extent that it sought to enlarge the scope of the airline’s specific contractual obligations.

As to the Federal Aviation Act, which preempts the field of passenger health and safety on commercial aircraft, the court held that this statute preempted the passenger’s claims regarding the airline’s decision to divert her flight due to safety concerns but that it did not preempt her claims that are based on the airline’s conduct after the flight was diverted and on the ground in Austin.

Next, the court considered whether the passenger had stated a claim under her various state common law tort causes of action.  The court held that the passenger had properly stated claims for false imprisonment, intentional infliction of emotional distress and negligence but that she had failed to state claims for breach of contract and fraud.  The court granted the passenger leave to file a second amended complaint in which she could allege additional facts to remedy the defects in her first amended complaint and add additional claims.

Note:  The court’s preemption rulings in this case are very similar to those that a California federal district court made in April 2008 in Hanni v. American Airlines, Inc.  The Hanni case involves a passenger’s claims regarding a ground delay during a December 2006 flight from San Francisco to Mobile, Alabama.  As a result of her experience, Ms. Hanni not only sued but also founded the Coalition for an Airline Passengers’ Bill of Rights, which operates www.flyersrights.com.


Second Circuit grounds New York’s airline passenger “Bill of Rights”

April 9, 2008

Air Transport Association of America, Inc. v. Andrew Cuomo (2d Cir. (N.Y.) Mar. 25, 2008).  New York’s airline passenger “Bill of Rights” required that airlines provide passengers with food, water, electricity and working restrooms during ground delays over three hours.  The Second Circuit held that 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act of 1978 (“the ADA”), preempted the Bill of Rights, which had gone into effect on January 1, 2008.  Accordingly, the appeals court reversed the December 20, 2007 decision of the trial court upholding the Bill of Rights.

The ADA’s preemption provision prohibits a state from enacting or enforcing “a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  The Second Circuit joined the majority of circuit courts in construing the term “service” broadly, as encompassing “matters such as boarding procedures, baggage handling, and food and drink – matters incidental to and distinct from the actual transportation of passengers.”  The court held that the minority circuit court view construing “service” narrowly is inconsistent with the U.S. Supreme Court’s pro-preemption decision in Rowe v. New Hampshire Motor Transport Association, which – in a stroke of very bad timing for Bill of Rights proponents – was issued just two weeks before the oral argument in the Second Circuit case.  In Rowe, the Supreme Court broadly construed a similarly-worded federal preemption statute regarding motor carriers.

In the Bill of Rights case, the trial court had held that “the provision of fresh air, water, food and lavatory access to passengers trapped for hours on a motionless plane is a health and safety issue” that has no bearing on the “service” provided by airlines.  Consistent with its broad construction of the term “service,” the Second Circuit rejected the trial court’s distinction, holding that “onboard amenities, regardless of whether they are luxuries or necessities, still relate to airline service and fall within the express terms of the preemption provision.”

The Second Circuit also reasoned (quoting Rowe) that state statutes like the Bill of Rights could lead to a “patchwork of state service-determining laws, rules, and regulations” that would be inconsistent with Congress’ intent to leave service-related matters “to the competitive marketplace.”  The appeals court concluded its opinion by stating that even though the goals of the Bill of Rights “are laudable,” and that “the circumstances motivating its enactment deplorable,” only the federal government has the authority to enact a law concerning ground delays.

New York’s only recourse is to petition the U.S. Supreme Court to hear the case, but the court is unlikely to accept another preemption case so soon after Rowe.  It will be interesting to see the effect of the Second Circuit’s decision on the ground delay bills now pending in Arizona, California, Florida, Indiana, Michigan, New Jersey, Pennsylvania, Rhode Island and Washington.  If state ground delay legislation is enacted and upheld by other circuit courts (such as the passenger-friendly Ninth Circuit, which includes California), then the preemption issue might ultimately find its way back to the Supreme Court.


Federal court upholds legality of New York’s airline passenger “Bill of Rights”

December 21, 2007

Air Transport Association of America, Inc. v. Andrew Cuomo et al. (N.D.N.Y. Dec. 20, 2007).  In a decision issued yesterday, the U.S. District Court for the Northern District of New York denied the Air Transport Association’s motion for a preliminary injunction enjoining the enforcement of New York’s airline passenger “Bill of Rights.”  Instead, the court granted summary judgment for the State of New York, thereby concluding the case in the State’s favor.

The court held that the Bill of Rights is not preempted by the federal Airline Deregulation Act, which preempts state laws related to the “service” provided by airlines.  The court reasoned that “the provision of fresh air, water, food and lavatory access to passengers trapped for hours on a motionless plane is a health and safety issue” that has no bearing on the “service” provided by airlines.  (I disagree, for the reasons discussed here, but my vote does not count!)

The Bill of Rights will go into effect on January 1, 2008, but it is unlikely that the ground delay battle is over.  The ATA will probably file an appeal, and I will report any further developments in this matter.

Update:  The ATA did file an appeal, and on March 25, 2008, the Second Circuit issued a ruling, which is summarized here, reversing the trial court’s decision on the grounds that the Bill of Rights is preempted by the ADA.


Federal court to rule soon on legality of New York’s airline passenger “Bill of Rights”

December 12, 2007

Air Transport Association of America, Inc. v. Andrew Cuomo et al. (N.D.N.Y.).  On December 18, 2007, the U.S. District Court for the Northern District of New York will hold a hearing on the Air Transport Association’s motion for a preliminary injunction enjoining the enforcement of New York’s airline passenger “Bill of Rights.”  I will report the court’s ruling on the motion as soon as it is issued. 

My article on the enforceability of New York’s law, which was published in the November 2007 issue of CCH’s Issues in Aviation Law and Policy (¶ 33,031 at 19,111), is reprinted below.

“The Empire State’s New Airline Passenger ‘Bill of Rights’ – Gone in a New York Minute?”

Introduction

In response to the highly-publicized on-board aircraft ground delays that occurred at John F. Kennedy International Airport (“JFK”) in February and March 2007, the New York State Legislature enacted the “Consumer Bill of Rights Regarding Airline Passengers,” which Governor Eliot Spitzer signed into law on August 1, 2007.  The “Bill of Rights,” which takes effect on January 1, 2008, requires that airlines provide passengers on aircraft delayed more than three hours with electricity for fresh air and lighting, food, water and clean lavatories, creates a new “Office of the Airline Consumer Advocate,” and gives state authorities the power to seek substantial civil penalties against airlines for violations.

Faced with the possibility of multiple states having airline passenger “bills of rights,” each differing in various respects, Air Transport Association officials have suggested that 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act of 1978 (“the ADA”), preempts New York’s Bill of Rights, and have indicated that a court challenge could be forthcoming.  A strong case for preemption could be made.  The preemption provision, which prohibits a state from enacting or enforcing “a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier,” has been interpreted very broadly by many courts.  However, even a court that interprets the provision narrowly could reasonably conclude that New York’s Bill of Rights significantly affects airlines’ provision of their “service” and thus is preempted.

The Airline Deregulation Act

Before the ADA was enacted, the Civil Aeronautics Board (“CAB”) tightly controlled virtually every aspect of an airline’s economic existence, from the fares it could charge and the routes it could operate to “stipulations about the minimum quality of meals and maximum charges for headsets.”  Alfred E. Kahn, Airline Deregulation, The Concise Encyclopedia of Economics.  Through the ADA, Congress dismantled the CAB’s longstanding regulatory headlock on the airlines.  “To ensure that the States would not undo federal deregulation with regulation of their own” (Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992), Congress included the following provision in the ADA:

[N]o State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under title IV of this Act.

Pub. L. No. 95-504, 92 Stat. 1705, Sec. 105(a)(1).

Congress has modified the preemption provision over the years, but its scope remains essentially the same.  The current version, which is codified at 49 U.S.C. § 41713(b)(1), provides as follows:

[A] State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

A state statute may be preempted even if it does not specifically address the airline industry.  Morales, 504 U.S. at 386.  In addition to state statutes and regulations, section 41713(b)(1) preempts state common law causes of action because “[s]tates can impose their own substantive standards through the common law as well as through statutory enactments.”  Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1435 (7th Cir. 1996).  The preemption provision applies to both U.S. and foreign air carriers.  Lawal v. British Airways, PLC, 812 F. Supp. 713, 719 (S.D. Tex. 1992).

The scope of the ADA’s preemption provision has been the subject of two U.S. Supreme Court cases, Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), and American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).  In Morales, the Court, noting that the words of the provision “express a broad pre-emptive purpose” (504 U.S. at 383), held that certain state advertising guidelines were preempted because they related to airlines’ “rates.”  In Wolens, the Court held that claims under a state deceptive business practices statute against an airline for making retroactive changes to its frequent flyer program were preempted because such claims related to the airline’s “rates” and “services.”

The ADA does not define the term “service,” and the Court did not define that term in Morales or Wolens.  Since Wolens, conflicts have developed among certain U.S. Circuit Courts of Appeals as to how that term is defined, as discussed below.  In 2000, the Court bypassed an opportunity to define the term “service” by denying a certiorari petition to the Ninth Circuit in Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000).  Chief Justice Rehnquist and Justices O’Connor and Thomas dissented from the denial of certiorari, expressing their desire to resolve the conflicts that had arisen among the Circuits.

The New York Legislation

The New York State Assembly offered the following justification for the Bill of Rights:

Several incidents that occurred during the winter of 2007 involved airline passengers who were detained on the runway for many hours.  On Valentine’s Day, passengers were held aboard a JetBlue flight at JFK for 10 hours without food, water, fresh air, or the ability to use the rest room.  Several other JetBlue flights were similarly stalled on the runway.  Subsequently, on St. Patrick’s Day, at JFK passengers were stuck on board a Royal Air Maroc flight at JFK for more than 14 hours.  People on a Swiss Air flight to Zurich were trapped on board for eight hours, a Virgin Atlantic flight to London left 9 hours late, and a Cathay Pacific flight to Vancouver was finally canceled after more than nine hours of waiting at JFK.  Passengers were also stuck for seven hours at JFK on board a Korea-bound Asiana Airlines flight.

These episodes demonstrate the need for statutory changes to protect airline consumers from this type of treatment.  In spite of carriers’ voluntary commitments that these episodes will not recur, passengers continue to be subject to lengthy detentions on aircraft without basic services.  New York is home to some of the world’s busiest airports, and so should take the lead in adopting common sense measures that empower consumers and prevent outrageous incidents like these from recurring.  The bill of rights and the creation of an independent advocate for airline passengers will provide a needed measure of consumer protection in New York’s airports (see http://assembly.state.ny.us/leg/?bn=A08406).

The Bill of Rights provides in part as follows:

Whenever airline passengers have boarded an aircraft and are delayed more than three hours on the aircraft prior to takeoff, the carrier shall ensure that passengers are provided as needed with:

(a) electric generation service to provide temporary power for fresh air and lights;

(b) waste removal service in order to service the holding tanks for on-board restrooms; and

(c) adequate food and drinking water and other refreshments.

New York General Business Law § 251-g.

The Bill of Rights also establishes an “Office of the Airline Consumer Advocate,” which has the power to investigate complaints, issue subpoenas for documents and refer complaints to New York’s Attorney General.  The Bill of Rights authorizes the Attorney General to recover civil penalties of up to $1,000 per passenger for a violation, as well as attorneys’ fees and costs from airlines that violate the law.  New York General Business Law § 251-h.  The Bill of Rights requires that airlines give passengers “clear and conspicuous” notice regarding the functions of, and contact information for, the Office of the Airline Consumer Advocate, as well as “explanations of the rights of airline passengers.”  New York General Business Law § 251-g.

The Bill of Rights defines a “carrier” as “any partnership, corporation or other business entity regulated by the Federal Aviation Administration that conducts scheduled passenger air transportation.”  New York General Business Law § 251-f.  This means that the Bill of Rights applies to both U.S. and foreign airlines.

Bill of Rights, Meet the ADA

The sponsor of New York’s Bill of Rights clearly foresaw the possibility of challenges to the legislation on preemption grounds.  In response, he expressed the following position while the bill was pending:  “While federal law places restrictions on what individual states can do when it comes to legislation relating to air travel, federal courts have held that the provision of ‘amenities’ for air travelers is one area that states can legitimately address.”  Senate Passes Bill to Create “Airline Passengers’ Bill of Rights,” www.senate.state.ny.us (June 19, 2007 press release).

The sponsor did not randomly choose to use the word “amenities” in his statement.  That word was used by the Ninth Circuit in Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (1998), a decision in which the court interpreted the word “service” in the ADA’s preemption provision in a very limited, passenger-friendly manner.

Charas consisted of five consolidated cases, all of which involved passengers alleging personal injury state law tort claims against airlines.  One case involved a passenger’s claim that a flight attendant hit him with a service cart, one involved a passenger’s claim that another passenger opened an overhead bin and a piece of luggage fell on her head, one involved a passenger’s claim that she tripped over luggage left in the aisle by a flight attendant, one involved a passenger’s claim that she fell while disembarking, and the fifth case involved a passenger’s claim that she fell while boarding a shuttle bus.  The airline defendants in these cases had contended that the passengers’ claims were preempted by the ADA.

The court in Charas ruled in favor of the passengers; it stated that, while Congress intended to “insulate the industry from possible state economic regulation” in order “to encourage the forces of competition,” Congress “did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct.”  Accordingly, the court held as follows:

[W]e hold that Congress used the word “service” in the phrase “rates, routes, or service” in the ADA’s preemption clause to refer to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.  In the context in which it was used in the Act, “service” was not intended to include an airline’s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities.

160 F.3d at 1261 (emphasis added).  The Third Circuit followed Charas in Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 (1998).

In contrast to Charas, the Fifth Circuit and three other Courts of Appeals have adopted a much broader definition of the term “service.”  The Fifth Circuit defined “service” as follows:

“Services” generally represent a bargained-for or anticipated provision of labor from one party to another.  If the element of bargain or agreement is incorporated in our understanding of services, it leads to a concern with the contractual arrangement between the airline and the user of the service.  Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.  These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline.  It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (1995) (en banc).  The Fourth, Seventh and Eleventh Circuits have also defined the term “service” broadly.  Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003).

If the Second Circuit were to adopt the broader view of the term “service” in a case challenging New York’s Bill of Rights, it is very likely that the court would hold the Bill of Rights to be preempted.  However, even if the Second Circuit were to define “service” narrowly, as the Ninth Circuit did in Charas, it might still hold the Bill of Rights to be preempted.  The Ninth Circuit in Charas held that passengers could use state tort common law causes of action against airlines that do not use due care in the physical boarding, in-flight transportation and disembarking of passengers.  However, state negligence causes of action, and other state common law tort causes of action, do not impose any specific and positive requirements on the airlines; they simply impose a general standard of due care.  State negligence causes of action do not require that airlines conduct their “service” in any particular manner.

By contrast, New York’s Bill of Rights seeks to impose specific and positive requirements on the airlines that would significantly affect their provision of “service” at New York’s airports.  The statute’s prominent use of the word “service” is telling.  For example, the statute requires that airlines perform “waste removal service in order to service the holding tanks for on-board restrooms.”  Performance of this “service” would require that an aircraft return to the gate.  Lavatories cannot be serviced on an active taxiway because an aircraft cannot move during such servicing, and an aircraft must be able to move, if necessary, on an active taxiway.  The statute also requires that airlines provide “electric generation service.”  Provision of this “service” away from a gate, which often has ground electric service, would require that an aircraft use its own auxiliary power unit (“APU”) to provide electricity, and extended APU operations would require that an aircraft be refueled before takeoff.  Refueling an aircraft with passengers onboard requires that a door be open in case an evacuation is necessary.  This would require, of course, that stairs be positioned at the open door.

Clearly, the Bill of Rights goes far beyond imposing a general due care requirement on the airlines, as the court in effect did in Charas.  That is why the Bill of Rights is likely to be considered preempted by any court, even one that defines the term “service” narrowly.

In essence, the Bill of Rights mandates that airlines provide specific forms of “service” in order to make passengers safe and comfortable.  At least two federal courts have held that the ADA preempts any state law-based general duty to provide safe and comfortable “service.”  Anderson v. USAir, Inc., 818 F.2d 49, 56-57 (D.C. Cir. 1987); Cannava v. USAir, Inc., 1993 WL 565341 at *6 (D. Mass.) (“[T]he heart of plaintiff’s claim for breach of contract is that the defendant failed ‘to provide the services required’ and failed to provide ‘safe and comfortable services.’  [Plaintiff] alleges that USAir violated an implied contractual duty to treat passengers courteously.  Here the plaintiff’s claims lie, even more clearly, at the heart of airline ‘services’ and must be preempted by section [41713(b)(1)].”).  If courts hold that state law-based general duties to provide safe and comfortable services are preempted by the ADA, then courts are very likely to hold that state law-based specific duties to provide safe and comfortable services are also preempted by the ADA.

The Bill of Rights provides that it is not to be “construed as requiring any carrier, airport or other entity to take any action in contravention of any written directive of the federal aviation administration or other federal agency having jurisdiction over such entity.”  New York General Business Law § 251-i.  That provision would not save the Bill of Rights from a preemption ruling; its likely effect on airlines’ “service” at New York airports is too far-reaching.

If Legislation Is Needed, Only Congress Should Act

No one can dispute that New York State’s legislators were addressing a valid concern in enacting the Bill of Rights.  No one wants to sit, hot and hungry, for ten hours on a motionless aircraft with overflowing lavatories – and no one should have to endure such conditions.  However, given industry operational trends, the stage may be set for more ground delays at JFK.  According to the Federal Aviation Administration (“FAA”), while total airport operations in the U.S. have decreased by 11 percent since 2000, commercial operations at JFK have increased 27 percent since 2000 and 44 percent since 2004.  Hearing on Airline Delays and Consumer Service at 2, U.S. House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Aviation Staff (Sept. 25, 2007).  And, according to the Department of Transportation’s (“DOT”) Bureau of Transportation Statistics (“BTS”), there were almost 30 percent more scheduled departures at JFK for the 12-month period ending July 2007 than during the 12-month period ending July 2006.  RITA BTS Airline Data, 2007 Airport Fact Sheet.

Other U.S. airports also could face more ground delays.  According to the BTS, U.S. airlines transported 72.2 million scheduled domestic and international passengers in July 2007, the most ever for a single month and over two percent more than the 70.6 million passengers carried in July 2005, the prior record.  July 2007 Airline Traffic Data:  U.S. Airlines Carried Record Number of Passengers in July, Bureau of Transportation Statistics (Oct. 15, 2007).  Not surprisingly, the load factors in July 2007 were the highest ever, reaching 86.0 percent for combined domestic and international flights.  Id.

But none of the recent ground delays or the aforementioned statistics mean that individual states should be trying to solve the ground delay problem on their own.  A given aircraft might operate in several different states during the course of a single day.  As the dissenters noted in Northwest, “[b]ecause airline companies operate across state lines,” they are particularly vulnerable to “inconsistent state regulations.”  531 U.S. at 1058.  How could American Airlines be expected to ensure that its 600-plus aircraft are properly stocked and serviced each day to meet the various food, beverage and other state airline passenger bill of rights requirements that such aircraft might encounter while operating from state to state?

The proliferation of state airline passenger bills of rights is not a theoretical concern.  According to one report, a state legislator is considering introducing airline passenger bill of rights legislation in New Jersey.  Legislator Calls for an Airline Passenger “Bill of Rights,” New York Times (Sept. 2, 2007).  “I saw that New York passed a similar bill and thought that we should have the same consumer protections here in New Jersey,” [Assemblyman Samuel D.] Thompson, a Republican from Monmouth County, said.”  Id.  Legislators in other states will not be far behind.

In September 2007, DOT’s Inspector General issued a report, entitled “Actions Needed to Minimize Long, On-Board Flight Delays,” that contains eight “best practices” for dealing with long on-board delays.  Office of the Secretary of Transportation, Report No. AV-2007-077 at 14-15 (Sept. 25, 2007).  The Inspector General also suggested in the report that, because “a more comprehensive national plan of action is needed” on the ground delay issue, a national task force composed of airline, airport, FAA and DOT representatives “should be established to develop and coordinate contingency plans to deal with lengthy delays.”  Id. at 15.

If collaborative efforts are not adequate and ground delay legislation is needed, only Congress should act because it is the only legislature that could impose uniform requirements on the airlines, airports and other interested parties.  Passenger bill of rights legislation is now before Congress; the Airline Passenger Bill of Rights Act of 2007 is pending in the Senate and the House of Representatives.


New York legislation is on collision course with federal statute

June 24, 2007

The New York State Legislature is close to enacting the “Consumer Bill of Rights Regarding Airline Passengers.”  The sponsors of S5050-C have cited ground delay incidents that occurred at New York airports in February and March 2007 as justification for the legislation.  They have stated that “New York is home to some of the world’s busiest airports, and we should take the lead in adopting commonsense measures that empower consumers and help prevent outrageous incidents like these from occurring.”

The bill provides in part as follows:

“Whenever airline passengers have boarded an aircraft and are delayed more than three hours on the aircraft prior to takeoff, the carrier shall ensure that passengers are provided as needed with:  (a) electric generation service to provide temporary power for fresh air and lights; (b) waste removal service in order to service the holding tanks for on-board restrooms; and (c) adequate food and drinking water and other refreshments.”

The bill also establishes an “Office of the Airline Consumer Advocate” and empowers New York’s attorney general to recover civil penalties, attorneys’ fees and costs from airlines that violate the law.

The problem is that a federal statute, 49 U.S.C. § 41713(b)(1), provides that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  The courts have interpreted this statute broadly, and they have consistently held that it preempts any state statute that potentially affects an airline’s flight operations, i.e., its service.  One federal court has already held that “[a] state law obligation to give courteous service . . . is expressly preempted” by 49 U.S.C. § 41713(b)(1).  A few state statutes have escaped the grasp of federal preemption because they were not intended to affect airline operations and did so only remotely, but that is not the case here.  The New York bill is expressly aimed at airline operations and could significantly impact them.

The bill’s sponsors are taking the position that the legislation would not be preempted because it only deals with the provision of “amenities” to passengers and does not require that airlines allow passengers to deplane.  However, provision of the required amenities is likely to affect how the airlines operate their flights.  For example, the waste removal service might require that an aircraft taxi back to the gate.  The bill goes beyond the mere provision of amenities, and that is why it is likely to be considered preempted by a court.

The bill provides that it is not to be “construed as requiring any carrier, airport or other entity to take any action in contravention of any written directive of the federal aviation administration or other federal agency having jurisdiction over such entity,” but that provision would not save the bill; its possible effect on airline operations is too far-reaching.  If the bill becomes law, it is only a matter of time until a court holds that it is preempted and thus unenforceable.

Preemption in this situation makes sense.  How could an airline succeed in operating throughout the country if it had to comply with 50 different state laws, and innumerable local ordinances, regarding ground delays?

Update:  In November 2007, “The Empire State’s New Airline Passenger ‘Bill of Rights’ - Gone in a New York Minute?”, an article I wrote analyzing why I believe that federal law preempts the New York law, was published in CCH’s Issues in Aviation Law and Policy (33,031 at 19,111).  Please contact me if you would like a complimentary copy of this article.


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