DOT’s 3-Hour Limit on Tarmac Delay Holds – Does It Help or Will Just Make Things Worse?

Secretary of Transportation Ray LaHood announced on Monday, December 21, 2009, that DOT was was issuing its Final Rule “enhancing airline passenger protections” by, among other things, limiting airlines to three hours waiting on the tarmac before requiring that the aircraft return to the terminal and allow the passenger to disembark. The only exceptions allowed would be if the safety or security of the aircraft (as determined by the pilot in command) would not allow a return to the terminal or if air traffic control advises the pilot that returning to the terminal would disrupt airport operations.

In addition, airlines are required to provide adequate food and potable drinking water for passengers within two hours of the aircraft being delayed on the tarmac and to maintain operable lavatories and, if necessary provide medical attention.

The passengers’ rights advocates were understandably jubilant that the rule had come to pass – particularly since the “Passenger Bill of Rights” that was part of the FAA Reauthorization Act of 2009 has stalled in the Senate.  Kate Hanni, Flyerrights.org’s president and founder issued this statement:

This is indeed a wonderful holiday gift and a major victory for any airline passenger who has ever been subjected to an unnecessary tarmac delay and has endured endless hours without food, water or adequate toilet facilities. Flyersrights.org has fought for legislation in Congress to limit these delays, yet the bill has languished in the Senate despite bipartisan support. We applaud the Obama Administration and Transportation Secretary Ray LaHood for stepping up to the plate and telling the airline industry, and Congress, that ‘enough is enough’.

However, the rule raises several questions as to its consumer friendliness.  It may force airlines to cancel flights instead of having them wait.  As the air travel blogger “Cranky Flier” pointed out in his Tuesday, December 22, 2009, blog post, this past weekend during a massive storm hitting the East Coast only one JetBlue flight was delayed longer than three hours.  Why did that happen?

It’s all because of gate issues. JetBlue and other airlines started pre-canceling a lot of flights, as I noted on BNET yesterday. Obviously the more flights you pre-cancel, the better chance the remaining flights will operate, but it means that there are a lot of airplanes around and shuffling them to make gates available during a blizzard is a tricky thing. You never want to see a plane sitting around for more than 3 hours, but if it’s only one (and JetBlue compensated the passengers), then that’s not too bad for the storm of the decade.

But all this pre-canceling comes at a price. That means there are a lot more people who aren’t getting home for Christmas because so many flights were canceled.

There’s no question that airlines would have had to cancel a lot of flights, but were they more conservative because of public backlash on delays? That’s my guess. Would you rather sit on an airplane for 4 hours or just have your flight canceled? I imagine that some would be happy to sit around for 4 hours if it meant they’d get out of town. Now they find themselves stuck.

The discretion to stay in line and wait to take off has been taken away and now, after three hours, the aircraft must return to the gate.

We all know why this rule was instituted.  Indeed, the DOT’s press release specifically states the cause:

This rule was adopted in response to a series of incidents in which passengers were stranded on the ground aboard aircraft for lengthy periods and also in response to the high incidence of flight delays and other consumer problems. In one of the most recent tarmac delay incidents, the Department fined Continental Airlines, ExpressJet Airlines and Mesaba Airlines a total of $175,000 for their roles in a nearly six-hour ground delay at Rochester, MN.

However, incidents like the one in Rochester, MN, are the exception rather than the rule. Moreover, it is not clear from the way things played out at Rochester that this rule would have changed anything. The incident at Rochester was due to a confederacy of dunces, each contributing their own stupidity to make a bad situation even worse. Since people will still have the ability to mess things up despite the rule, whether that sort of incident can be avoided remains to be seen.

This may be one of those times that government regulation may not be the answer to the problem.  Extended tarmac delays, i.e., over three hours, are exceptions. Moreover, prior to the institution of the rule, passengers had a “bill of rights,” it is called the U.S. Constitution.   The DOT rule, however, may have given the airlines a “safe harbor.” That is, so long as the flight is delayed less than three hours, the airlines would have a defense to any passenger complaints about being delayed on the tarmac.  Thus, the 3-hour rule may actually have the effect of limiting the passengers’ legal remedies.

Government regulation works best when it is proactive rather than re-active.  The legal system, on the other hand, is intended to step in to “make things right,” when exceptions, such as the Rochester incident, happen. So long as passengers know that they have legal rights when they are on aircraft, and remedies if the airlines’ and FAA’s discretion is abused, then they are protected.  While the DOT’s intent was laudable, it is not entirely clear that the rule will have the desired effect of assisting passengers who are trapped on aircraft.

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