By imposing tarmac-delay fines last month, the Transportation Department signaled its readiness to do what Congress and passengers' rights advocates have been wanting for years: punish airlines when they hold flyers hostage on planes for hours at a time.
While the $175,000 in penalties in themselves are not enough to derail proposed legislation to cap such delays, the very fact that the DOT was willing to levy fines for the first time in such an incident is enough to give many pause as to whether a new law is needed after all.
Advocacy groups and lawmakers have been pushing for such a law because, they say, airlines and the DOT have failed to honor their promises to limit tarmac delays and to make such delays more bearable.
Not surprisingly, airlines argue that new laws would prove onerous.
The DOT is putting finishing touches on its own new tarmac-delay regulations, and supporters of tarmac-delay legislation say they are willing to wait to see how strong and detailed the rules are before deciding if they will continue to push for new laws.
The DOT expects to publish the proposed new rules for comment by the end of the year. The agency won't reveal any details about those rules, nor will it comment on proposed tarmac-delay legislation.
Kevin Mitchell, chairman of the Business Travelers Coalition and a key supporter of tarmac-delay legislation, said: "To be effective, the new DOT rules would have to meet two conditions. The final rule will have to be very strong, especially when it comes to fines and hours. Second, there would have to be a very serious gesture by the airlines, such as cleaning up their contracts of carriage and making them inclusive of passengers' rights and simpler to read."
If the new DOT rules are strong enough, sources familiar with the drafting of the bill say that senators who have introduced new tarmac-delay legislation would be willing to reconsider whether a new law is necessary.
And it looks as though Mitchell and other tarmac-delay legislation supporters will get a chance to see the new DOT rules before they have to decide whether to pursue legislation.
The tarmac-delay legislation is part of the FAA reauthorization bill, which is likely to be delayed again until early 2010.
The delay alone could dull the bill's enthusiastic support, which had built to a crescendo after the Aug. 8 overnight delay of a Continental Express flight on the tarmac in Rochester, Minn., that provoked the DOT's recent fines.
"The delay could have a dampening effect," Mitchell said. "On the other hand, we're entering the winter season, and all it will take is one blowup in New York."
In that case, Mitchell said, Congress might not wait for FAA reauthorization to enact passenger-rights legislation, and all eyes would focus on whether the DOT takes another hard-line stance in tarmac-delay incidents.
However, it might be difficult for the agency to enforce penalties under the same legal framework it employed in the Rochester incident.
In that case, the DOT said Continental and ExpressJet, and gate operator Mesaba, engaged in "unfair and deceptive practices." The carriers, the DOT said, failed to follow certain internal policies meant to protect against long tarmac delays.
"What other airlines are going to do now is to make sure those policies are much more specific and narrower, so they won't be trapped in a box like Continental was," said a source involved in the penalty negotiations between the DOT and carriers.
The airlines, the source said, agreed to pay the fine because it would be more of a hassle to fight it. But the source also said that some of the DOT's legal arguments in enforcing those "unfair and deceptive practices" for such delays stretched the agency's authority.
"The DOT authority here is not at all clear," the source said.
Kate Hanni, executive director and founder of FlyersRights.org, the group that has been at the forefront of tarmac-delay legislation, said, "All the airlines have to do is remove any reference to allowing folks off of planes, and the threat of fines by the DOT is eliminated."
Hanni added: "This new fine will make no difference in the long run."
Hanni said she expected the legislation to move forward, regardless of the recent DOT fines.
Hanni supports legislation drafted and introduced by Sen. Barbara Boxer (D-Calif.) and Olympia Snowe (R-Maine). While the senators applauded the DOT tarmac-delay fines, both said the penalties weren't enough to secure passengers' rights when it comes to tarmac delays.
"I am pleased that the Department of Transportation is sending a message to airlines that they need to protect passengers' rights," Boxer said. "But we must do more."
The DOT acknowledged as much.
"We will use what we have learned from this investigation to strengthen protections for airline passengers subjected to long tarmac delays," Transportation Secretary Ray LaHood said when the agency released details of the Rochester fine settlement.
The question now, though, is whether the agency will be able to incorporate those lessons in the DOT's final proposed rules on tarmac delays in a way that will make a new law unnecessary.
"Whether it is a DOT regulation or legislation, it doesn't matter," said Bob Crandall, the former American CEO who has become a strong advocate of tarmac-delay legislation. "What matters is that you have an expected standard of behavior."