Paying the Price for Delays

On Tuesday, June 22, a large tree fellacross train tracks used by the Amtrak interstate passenger rail system between Baltimore and Washington. As a DC-bound train that departed New York’s Penn Station at 9:45 p.m. (45 min. behind schedule) for the over 3-hr. journey pulled into Baltimore around midnight, passengers were informed it would be stopping indefinitely approximately 40 mi. short of their final destination in the capital city. After more than 30 min. of sitting idle, passengers were told their train no longer was in operation and they would have to switch to another train that had left New York City nearly 2 hr. earlier but was still stuck in Baltimore.

Upon boarding that train featuring strewn-about trash and dirty bathrooms, transferring passengers were told by the conductor that he had no idea when it would be leaving. Some travelers teamed up to share the $80 taxicab ride from Baltimore to Washington. Others stuck it out, eventually arriving after 3 a.m. at Washington’s Union Station, where they were left to contend with a chaotic, unsupervised situation in which unscrupulous cab drivers, many driving unmarked cars, attempted to charge them well above normal fares (the Metrorail transit system was closed for the night). It had taken them twice as long as scheduled to complete the 220-mi. trip, but that was better than their fellow passengers who left NYC on the earlier train and spent about 7 hr. in transit.

The incident merited just brief mentions by the Washington and Baltimore news media, which reported on the fallen tree and its removal and noted that rail delays had been caused. No column inches or airtime were devoted to the passengers’ plight. And there was no expectation by anyone on the train that federally owned Amtrak would even partially refund their tickets, let alone provide money for the expensive cab rides.

Compare this to the reaction to any incident involving a customer service failure by an airline regardless of the cause. Recent runway stranding incidents have led to disgruntled passengers appearing on national television and before Congressional committees to detail their travails. Angry lawmakers denounce airlines and threaten new regulations. And the US Dept. of Transportation, led in the Obama administration by pugnacious former US Rep. Ray LaHood (R-Ill.), has gained a reputation for moving swiftly to assign penalties and propose ever-more-expansive “passenger protection” rules, although it had nothing to say about the Amtrak incident.

Proposed Rule

DOT in June issued a Notice of Proposed Rulemaking that seeks to extend many of the new customer service regulations imposed earlier this year in the US on domestic operations to international flying. Included is the 3-hr. tarmac-delay rule that has become a way of life for US domestic carriers, plus a requirement that any airline operating to the US develop a wide-ranging “tarmac delay contingency plan” that would have to be coordinated with a variety of entities, including all US airports it serves, the Transportation Security Administration and Customs and Border Protection.

The NPRM additionally proposes to boost the minimum compensation offered passengers involuntarily bumped from flights from $400/$800 to $650/$1,300 and establishes a CPI-based formula that would lift payments automatically with inflation. It would require airlines to refund checked baggage fees if bags are lost or delayed, prohibit price increases (such as fuel surcharges) after a ticket is purchased and set new requirements for advertising fares and other fees and charges. It would permit customers to hold reservations at the quoted fare without payment, or cancel without penalty, for at least 24 hr. after the reservation is made.

It even resurrected the issue of whether serving peanuts aboard flights should be banned to accommodate travelers with severe food allergies. But DOT had to backtrack on that issue in late June when it was informed that Congress had slipped a provision into the agency’s 2000 appropriations bill that legally stops the imposition of a peanut ban, or even the establishment of peanut “buffer zones” on aircraft, absent a lengthy and rigorous scientific review process.

Critics of the NPRM say DOT’s lack of awareness that Congress had moved to protect airline peanuts a decade ago is emblematic of the proposed rule’s leap-before-look approach. In requesting an extension to the 60-day public comment period, which ends Aug. 9, IATA Regional VP-North America Douglas Lavin noted it would impose “significant and new regulatory burdens . . . [that] would touch almost all aspects of an airline’s business.” He added that “much of the data” on tarmac delays occurring during international operations at US airports “is not readily accessible” and will require “considerable time to collect.”

IATA spokesperson Steve Lott adds, “DOT admits they don’t have any data on tarmac delays for international flights . . . We would have hoped that DOT would define the problem before proposing the rule and had done a bit more work on investigating the problem. We don’t even know what the trends are” regarding international tarmac delays. The Washington-based Air Transport Assn. declined to comment on the NPRM for this article.

Unintended Consequences

Lavin warned that the NPRM, if made into a final rule, “can lead to extensive unintended consequences.” For example, if an international flight has to return to the gate after 2 hr. 50 min. to avoid violating the tarmac rule, it could mean hundreds of passengers stuck in their departure city for 24 hr. or more. Unlike domestic operations, many international city-pairs are served only once-daily by airlines. 

Much of the industry already has been dealing with the EU’s passenger protection rules for several years. And carriers complain that those regulations, particularly 261/2004 (which requires airlines to accommodate and compensate stranded passengers), are imposed with stifling inflexibility. This was on full display this past spring when the EU refused to back off on 261/2004 even after much of its airspace was closed for a week owing to volcanic ash.  

European Regions Airline Assn. DG Mike Ambrose recently called for the compensation rule to be rewritten to reflect “consistent [requirements] across transport modes.” He added, “It is unreasonable for any of Europe’s institutions to expect airlines to threaten their own viability (and jobs) by blind adherence to a badly drafted regulation. Some airlines are already facing the situation in which they could be better served by ignoring the regulation and fighting any resultant court case.”

Could the US impose rules as strict as the EU’s? As concerned about the proposed US rules as many airlines are, the potential requirements actually pale in comparison to what highly organized passenger rights groups think the government should enact. Testifying before Congress, FlyersRights.org Executive Director Kate Hanni asserted that the NPRM is too meek. Complaining that ancillary fees make airline pricing too opaque for consumers, she said the NPRM’s proposed requirement that would make carriers provide detailed and accurate information to passengers on charges (something the industry isn’t really fighting) won’t do enough to allow passengers “to calculate the true costs of flying on competing airlines.” She pushed lawmakers to “act promptly to set statutory limits on what kinds of fees and charges can be imposed by airlines and under what conditions.”

‘Crazy Guys’

During a recent trip to Washington, where among other business he met with LaHood, Swiss International Air Lines CEO Harry Hohmeister told ATWthat it’s “hard to understand” why Washington appears intent on imposing new passenger protection rules on international airlines. “If we are on the ground [for an extensive tarmac delay], it’s not because we want it. It’s because someone or something is keeping us there. We’re in the business of flying. If there is insufficient ATC infrastructure, then that has to be solved at the roots and not on the backs of the airlines . . . The attitude seems to be that customers need to be protected from airlines because we are such crazy guys.”

Unfortunately for carriers, efforts to prevent extension of the tarmac-delay limit to international flights took a severe blow in June when a Virgin Atlantic Airways aircraft sat stranded on the tarmac for almost 5 hr. at Bradley International in Hartford, Conn.

The London-Newark flight was diverted there owing to bad weather. The aircraft landed at BDL at 8:20 p.m. and did not deplane until around 1 a.m. Passengers allegedly were without food, water or air-conditioning for much of the time. Virgin has said it wanted to let the passengers off the plane but the airport, not “used to dealing with international flights,” didn’t have security or customs facilities available. Nevertheless, LaHood was quick to highlight the incident and refer it to DOT’s aviation enforcement office.

Double Standard

Hawaiian Airlines CEO Mark Dunkerley observes that DOT and members of Congress are considering “heaping requirements on our industry that don’t exist for other industries regarding consumers.” Indeed, movie-theater-goers may grumble about preposterously over-priced popcorn and soda but they don’t demand Congressional action. Dunkerley theorizes that airlines are targeted because the industry “generates a lot of column inches” and is visible on a large scale. Timemagazine last month published an extensive feature titled “20 Reasons to Hate Airlines,” describing the article as “a brief history of the industry’s 30-year campaign to nickel-and-dime us nearly to death.” Under reason #10 it asks, “How many hundreds of thousands of flyers have had to throw out their bottle of shaving lotion or Aquafina, only to repurchase another one after they’re inside the security area?”

The article fails to note that carriers have nothing to do with forcing passengers to discard liquids at security checkpoints and don’t receive any money from the airport concession stands inside the security gates. Dunkerley believes airlines similarly are usually not responsible for tarmac delays.

“The overwhelming majority of long delays have nothing to do with airline performance and everything to do with weather or the deplorable state of the infrastructure airlines have to operate in,” he tells this magazine. “It really is a bizarre way to deal with the situation to target airlines and not infrastructure.” He posits that many members of Congress, flying home to their districts on a weekly basis, “are exposed to air transport much more than a lot of other products that are generally consumed by the public.” That gets them interested in trying to “solve” problems in the industry even if they don’t understand its complexities.

Of course, the problem is real. The worst tarmac delay episodes have been egregious failures of customer service, even if airlines aren’t wholly to blame; and complaints about how US carriers display and promote fares in advertising have been around virtually since the industry was deregulated. The underlying issue appears to be deregulation itself and what it was intended to mean: Are airlines a quasi-public service or a truly private industry? That is a question Washington does not appear ready to confront.