New airline rules address tarmac delays, retroactive contract changes, disclosures

By | December 21st, 2009

Our friends at the Transportation Department have unleashed a blizzard of airline rule changes on us this morning. They’re being characterized as an early Christmas present for air travelers — particularly those with lengthy tarmac delays. And the government is not done yet.

But read the actual rule, and the DOT’s nuanced discussion of its final rulemaking (PDF), and a different picture emerges.

(A lot of people have asked me what I think of the changes. They’re fine. But I’d be naive to believe these revisions will improve the air travel experience for a majority of us. Like the “passenger rights” movement itself, this only helps a small fraction of special-interest air travelers. The airline industry and I are kind of in agreement when it comes to the issue of tarmac delays.)

Here are the big changes:

1. Airlines have to tell you if the flight you’re booking is on-time.

§234.11 Disclosure to consumers.

(a) During the course of reservations or ticketing discussions or transactions, or inquiries about flights, between a carrier’s employees or contractors and the public, the carrier shall disclose upon reasonable request the on-time performance code for any flight that has been assigned a code pursuant to this part.

(b) For each domestic flight for which schedule information is available on its website, including domestic code-share flights, a reporting carrier shall display the following information regarding the flight’s performance during the most recent calendar month for which the carrier has reported on-time performance data to the Department: the percentage of arrivals that were on time—i.e., within 15 minutes of scheduled arrival time, the percentage of arrivals that were more than 30 minutes late (including special highlighting if the flight was late more than 30 minutes of scheduled arrival time more than 50 percent of the time), and the percentage of flight cancellations if 5 percent or more of the flight’s operations were canceled in the month covered. The information must be provided by showing all of the required information on the initial listing of flights or by showing all of the required information via a prominent hyperlink in close proximity to each flight on the page with the initial listing of flights.

(c) Each carrier shall load the information whose disclosure is required under paragraphs (a) and (b) of this section into its internal reservation system between the 20th and 23rd day of the month after the month for which the information is being provided.

2. No more retroactive rule changes.

§253.9 Retroactive Changes to Contracts of Carriage

An air carrier may not retroactively apply to persons who have already bought a ticket any material amendment to its contract of carriage that has significant negative implications for consumers.

This is a good change. Northwest Airlines tried to impose some retroactive changes with its luggage fees last year. Not cool.

3. No more lengthy tarmac delays — with some notable exceptions.

PART 259 — ENHANCED PROTECTIONS FOR AIRLINE PASSENGERS

§259.1 Purpose.

The purpose of this part is to mitigate hardships for airline passengers during lengthy tarmac delays and otherwise to bolster air carriers’ accountability to consumers.

§259.2 Applicability.

This rule applies to all the flights of a certificated or commuter air carrier if the carrier operates scheduled passenger service or public charter service using any aircraft originally designed to have a passenger capacity of 30 or more seats, with the following exceptions:

(a) §259.5 and §259.7 do not apply to charter service.

§259.3. Definitions.

(a) Certificated air carrier means a U.S. air carrier that holds a certificate issued under 49 U.S.C. §41102 to operate passenger service or an exemption from 49 U.S.C. §41102.

(b) Commuter air carrier means a U.S. air carrier as established by 14 CFR §298.3(b) that is authorized to carry passengers on at least five round trips per week on at least one route between two or more points according to a published flight schedule using small aircraft.

(c) Large hub airport means an airport that accounts for at least 1.00 percent of the total enplanements in the United States.

(d) Medium hub airport means an airport accounting for at least 0.25 percent but less than 1.00 percent of the total enplanements in the United States.

(e) Small aircraft means any aircraft originally designed to have a maximum passenger capacity of 60 or fewer seats or a maximum payload capacity of 18,000 pounds or less.

(f) Tarmac delay means the holding of an aircraft on the ground either before taking off or after landing with no opportunity for its passengers to deplane.

§ 259.4 Contingency Plan for Lengthy Tarmac Delays.

(a) Adoption of Plan. Each covered carrier shall adopt a Contingency Plan for Lengthy Tarmac Delays for its scheduled and public charter flights at each large and medium hub U.S. airport at which it operates such air service and shall adhere to its plan’s terms.

(b) Contents of Plan. Each Contingency Plan for Lengthy Tarmac Delays
shall include, at a minimum, the following:

(1) for domestic flights, assurance that the air carrier will not permit an aircraft to remain on the tarmac for more than three hours unless:

(i) the pilot-in-command determines there is a safety-related or security-related reason (e.g. weather, a directive from an appropriate government agency) why the aircraft cannot leave its position on the tarmac to deplane passengers; or

(ii) air traffic control advises the pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to deplane passengers would significantly disrupt airport operations.

(2) for international flights that depart from or arrive at a U.S. airport, assurance that the air carrier will not permit an aircraft to remain on the tarmac at a large or medium hub U.S. airport for more than a set number of hours, as determined by the carrier and set out in its contingency plan, before allowing passengers to deplane, unless:

(i) the pilot-in-command determines there is a safety-related or security-related reason why the aircraft cannot leave its position on the tarmac to deplane passengers; or

(ii) air traffic control advises the pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to deplane passengers would significantly disrupt airport operations.

(3) for all flights, assurance that the air carrier will provide adequate food and potable water no later than two hours after the aircraft leaves the gate (in the case of departure) or touches down (in the case of an arrival) if the aircraft remains on the tarmac, unless the pilot-in-command determines that safety or security considerations preclude such service;

(4) for all flights, assurance of operable lavatory facilities, as well as adequate medical attention if needed, while the aircraft remains on the tarmac;

(5) assurance of sufficient resources to implement the plan; and

(6) assurance that the plan has been coordinated with airport authorities at all medium and large hub airports that the carrier serves, including medium and large hub diversion airports.


(c) Amendment of plan. At any time, an air carrier may amend its Contingency Plan for Lengthy Tarmac Delays to decrease the time for aircraft to remain on the tarmac for domestic flights covered in subparagraph (b)(1), for aircraft to remain on the tarmac for international flights covered in subparagraph (b)(2), and for the trigger point for food and water covered in subparagraph (b)(3). An air carrier may also amend its plan to increase these intervals (up to the limits in this rule), in which case the amended plan shall apply only to those flights that are first offered for sale after the plan’s amendment.

(d) Retention of records. Each air carrier that is required to adopt a Contingency Plan for Lengthy Tarmac Delays shall retain for two years the following information about any tarmac delay that lasts at least three hours:

(1) the length of the delay;

(2) the precise cause of the delay;

(3) the actions taken to minimize hardships for passengers, including the provision of food and water, the maintenance and servicing of lavatories, and medical assistance;

(4) whether the flight ultimately took off (in the case of a departure delay or diversion) or returned to the gate; and

(5) an explanation for any tarmac delay that exceeded 3 hours (i.e., why the aircraft did not return to the gate by the 3-hour mark).

(e) Unfair and Deceptive Practice. An air carrier’s failure to comply with the assurances required by this rule and as contained in its Contingency Plan for Lengthy Tarmac Delays will be considered an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 that is subject to enforcement action by the Department.

Comment: Whoa. Some important exceptions to the rule here.

4. Customer service becomes part of airline contract.

§259.5 Customer Service Plan.

(a) Adoption of Plan. Each covered carrier shall adopt a Customer Service Plan applicable to its scheduled flights and shall adhere to this plan’s terms.

(b) Contents of Plan. Each Customer Service Plan shall, at a minimum, address the following subjects:

(1) offering the lowest fare available;

(2) notifying consumers of known delays, cancellations, and diversions;

(3) delivering baggage on time;

(4) allowing reservations to be held without payment or cancelled without penalty for a defined amount of time;

(5) providing prompt ticket refunds;

(6) properly accommodating passengers with disabilities and other special-needs, including during tarmac delays;

(7) meeting customers’ essential needs during lengthy tarmac delays;

(8) handling “bumped” passengers with fairness and consistency in the case of oversales;

(9) disclosing travel itinerary, cancellation policies, frequent flyer rules, and aircraft configuration;

(10) ensuring good customer service from code-share partners;

(11) ensuring responsiveness to customer complaints; and

(12) identifying the services it provides to mitigate passenger inconveniences resulting from cancellations and misconnects.

(c) Self-auditing of Plan and Retention of Records. Each air carrier that is required to adopt a Customer Service Plan shall audit its own adherence to its plan annually. Carriers shall make the results of their audits available for the Department’s review upon request for two years following the date any audit is completed.

Too early to see if any of this will be effective, but it’s a step in the right direction.

§259.6 Notice and Contract of Carriage.

(a) Each air carrier that is required to adopt a Contingency Plan for Lengthy Tarmac Delays or a Customer Service Plan may include such plans in their Contract of Carriage.

(b) Each air carrier that has a website shall post its Contract of Carriage on its website in easily accessible form, including all updates to its Contract of Carriage.

(c) Each air carrier that is required to adopt a Contingency Plan for Lengthy Tarmac Delays shall, if it has a website but does not include such Contingency Plan for Lengthy Tarmac Delays in its Contract of Carriage, post its Contingency Plan for Lengthy Tarmac Delays on its website in easily accessible form, including all updates to its Contingency Plan for Lengthy Tarmac Delays.

(d) Each air carrier that is required to adopt a Customer Service Plan shall, if it has a website but does not include such Customer Service Plan in its Contract of Carriage, post its Customer Service Plan on its website in easily accessible form, including all updates to its Customer Service Plan.

Again, this looks good on paper. Let’s see how the airlines actually do this.

5. Airlines get consumer representatives.

§259.7 Response to Consumer Problems.

(a) Designated Advocates for Passengers’ Interests. Each covered carrier shall designate for its scheduled flights an employee who shall be responsible for monitoring the effects of flight delays, flight cancellations, and lengthy tarmac delays on passengers. This employee shall have input into decisions on which flights to cancel and which will be delayed the longest.

(b) Informing consumers how to complain. Each covered carrier shall make available the mailing address and e-mail or web address of the designated department in the airline with which to file a complaint about its scheduled service. This information shall be provided on the carrier’s website (if any), on all e-ticket confirmations and, upon request, at each ticket counter and boarding gate staffed by the carrier.

(c) Response to complaints. Each covered carrier shall acknowledge receipt of each complaint regarding its scheduled service to the complainant within 30 days of receiving it and shall send a substantive response to each complainant within 60 days of receiving the complaint. A complaint is a specific written expression of dissatisfaction concerning a difficulty or problem which the person experienced when using or attempting to use an airline’s services.

Well, airlines sort of already do this.

And one more …

6. No more unrealistic schedules.

§399.81 Unrealistic or deceptive scheduling.

(a) The unrealistic scheduling of flights by any air carrier providing scheduled passenger air transportation is an unfair or deceptive practice and an unfair method of competition within the meaning of 49 U.S.C. §41712.

(b) With respect to the advertising of schedule performance, it is an unfair or deceptive practice and an unfair method of competition to use any figures purporting to reflect schedule or on-time performance without indicating the basis of the calculation, the time period involved, and the pairs of points or the percentage of system-wide operations thereby represented and whether the figures include all scheduled flights or only scheduled flights actually performed.

(c) Chronically delayed flights.

(1) This section applies to any air carrier that is a “reporting carrier” as defined in Part 234 of Department regulations (14 CFR Part 234).

(2) For the purposes of this section, a chronically delayed flight means any domestic flight that is operated at least 10 times a month, and arrives more than 30 minutes late (including cancelled flights) more than 50 percent of the time during that month.

(3) For purposes of this paragraph, the Department considers all of a carrier’s flights that are operated in a given city-pair market whose scheduled departure times are within 30 minutes of the most frequently occurring scheduled departure time to be one single flight.

(4) The holding out of a chronically delayed flight for more than four consecutive one-month periods represents one form of unrealistic scheduling and is an unfair or deceptive practice and an unfair method of competition within the meaning of 49 U.S.C. §41712.

(Photo: salimfadhley/Flickr Creative Commons)



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