In the waning days of the Bush administration, the Transportation Department has surprised us by doing something interesting.

Addressing the thorny issue of how passengers are treated during long tarmac delays, the DOT came up with a proposal that doesn't do much, but in a clever way that might actually do some good.

What the DOT will not do is limit tarmac delays to a fixed time or dictate what services and amenities must be offered during these events. That's probably more federal intervention than anyone could expect in the closing weeks of a conservative administration.

But the DOT is proposing to impose two new requirements on the airlines.

First, the airlines would have to draft contingency plans, setting a maximum tarmac delay and spelling out assurances regarding food, water, rest rooms and so on.

Second, each carrier would have to incorporate its contingency plan into its contract of carriage. That means if an airline doesn't deliver, it would open itself up to individual or class-action suits for breach of contract.

This doesn't give consumer advocates everything they want. Some groups, for example, want the DOT to stipulate what should be in the contingency plans, or at least to review and approve what the carriers come up with.

But the proposal offers one thing that consumers don't have and that the airlines don't want them to have: the right to take grievances about how they are treated to their local courts.

If the DOT adopted a rule limiting delays to, say, three hours, enforcement would rest solely with the limited staff of the DOT's Washington-based enforcement office. If it found a violation, it could impose a fine after the fact, but it could not adjudicate the damage claims of individual consumers. Courts can.

As consumer advocate Kate Hanni says in our news pages today, it isn't easy for consumers to take airlines to court. But it's no picnic for the airlines, either. They don't like defending themselves in the courts of 50 different states, and this suggests to us that the threat of state court actions might have a disciplining effect on the carriers.

The airlines have grown accustomed to life under an umbrella of federal laws that shields them from numerous state laws and state court actions, but breach of contract is not one of them.

Predictably, airlines complain that they should not be exposed to a variety of differing legal standards, but numerous other industries manage it. Maybe it's time for the deregulated airlines to join them.

Scalping hotel space

We should not be surprised that entrepreneurs are buying and reselling Washington hotel space during Inauguration Week in January. If eBay has demonstrated anything, it's that anything can be auctioned.

We are a little surprised, however, that some Washington hoteliers professed to be unaware of the practice or powerless to stop it. Any hotelier who believes this practice to be harmful could probably put an end to it by insisting that reservations are nontransferable.

Economists will tell you that scalpers perform a useful social function by bringing buyers and sellers together, making everybody better off -- in theory. That theory breaks down, however, when you already have a distribution system that's pretty good at bringing buyers and sellers together. 

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