Proposed DOT rule would finally give flyers real legal rights

By Mark Pestronk

Mark PestronkQ: When the Department of Transportation adopted tarmac-delay regulations five months ago, it declined to require airlines to include their passenger-service plans in their contracts of carriage. However, this month the DOT proposed to reverse itself and require beefed-up consumer protections that must be incorporated into the contracts of carriage. What is the significance of the new proposal? Why did the DOT change its mind?

A: The proposed rule is potentially the most important measure that the government has taken for airline passengers in the 72 years since it first began regulating airlines. If adopted, the rule will have profound consequences because it will give airline passengers meaningful legal rights for the first time.

The general news media widely reported the DOT's proposal but completely missed the real importance of the story, which is a legal development that does not really lend itself to headlines. Instead, the media focused on the relatively insignificant proposals, such as increasing the dollar amount of denied-boarding compensation.

What the DOT is proposing is twofold. First, it will adopt minimum standards for passenger treatment in 13 key areas of service. Second, it will require the airlines to include all those standards in their contracts of carriage, which means that passengers could sue in state courts for breach of contract when the airline fails to meet those standards.

Until now, the law has been that passengers had no right to sue for violations of DOT regulations, as only the DOT can enforce them. Passengers really had no legal rights in the sense that lawyers understand that term, which is the ability to enlist the aid of a court for redress of an injury or loss.

I cannot overstate the importance of this development. No longer would passengers have to complain to the DOT to get redress, and no longer would airlines be able to neglect and mistreat passengers without fear of legal liability.

For example, the DOT will require airlines to promise the "lowest fare available," and each airline's contract of carriage will have to spell out what that term means. Until now, even if the airline made such a promise, there has been nothing a passenger could do if he finds a lower fare. Now, the lower fare would be evidence of a breach of contract, empowering a judge to award the fare difference to the plaintiff.

Naturally, the airlines are vehemently opposed to the proposal and will try their utmost to scare the administration into backpedaling. The airlines will claim that the proposed rules are illegal in various ways, will tie down the airlines in every town's small claims court and will jeopardize their financial stability and even their safety.

The difference between last year and now can be found in the department's review of what happened after it merely encouraged airlines to develop meaningful service plans and incorporate them into their contracts of carriage. The DOT was quite disappointed with the result: "It appears that many carriers are choosing not to place their contingency plans and/or customer service plans in their contracts of carriage, or have little incentive to do so."

So it appears that the DOT changed its mind because the carriers defied the department, which did not sit well with Transportation Secretary Ray LaHood.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at mark@pestronk.com.
This column appeared in the June 21 issue of Travel Weekly.

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