Our least favorite part of the Airline Deregulation Act is headed to the Supreme Court for the third time, and we're not looking forward to it, because the court might end up compounding some earlier mistakes.
In two previous cases, the court handed down rulings that were godsends to the airlines but major roadblocks to consumers seeking redress. If the justices do it again, it could be airline passengers who strike out.
A little history: When Congress deregulated the airlines, it wanted to make sure that the states didn't reregulate them, so it adopted language that state and local governments "may not enact or enforce" any law or regulation "related to a price, route or service of an air carrier."
It didn't take long for airlines to realize that it would be in their interests to interpret the words "related to" and "service" as broadly as possible. Federal judges seemed to be reading their minds, shielding numerous airline activities from local lawsuits under the pre-emption clause, on the grounds that they were "related to ... service."
Back when GDSs were owned by airlines, some judges even threw travel agents out of court on the grounds that state laws could not be invoked in their disputes against airline-owned reservations vendors.
Over the years, the Supreme Court helped this process along. In 1992 it ruled that airlines were immune from state consumer laws on deceptive advertising, because enforcement could affect pricing and services.
The court also struck down attempts by other courts to differentiate between activities that were "essential" to air transportation services, and thus off-limits to the states, and those that were not.
This led the court to close another door in 1995, when it ruled that a dispute between an airline and its loyalty plan members could not be litigated under a state consumer fraud statute. Instead, it said the case could only proceed as a breach-of-contract action, because in that instance the state would not be imposing any regulation on the air carrier but merely enforcing the terms of its own contract.
Enter Rabbi S. Binyomin Ginsberg, who tried to sue Northwest after the airline revoked his frequent flyer membership in 2008. The WorldPerks contract at the time gave the airline the ability to revoke a membership based on its "sole judgment," which led to the rejection of his breach-of-contract claim.
But Ginsberg also claimed that Northwest violated an "implied covenant of good faith and fair dealing," which he said was not pre-empted. The Ninth Circuit Court of Appeals upheld that claim, but the airline -- now Delta -- appealed that ruling to the Supreme Court.
The airline says any such "implied covenant" is a creature of state law, not part of its frequent flyer contract, and is therefore pre-empted.
Since deregulation, no cases have come to the Supreme Court concerning power-grabbing state governments attempting to regulate airline fares or routes -- the thing that Congress was actually worried about.
Every case, rather, has concerned how airlines treat their customers, and in every case the court has foreclosed an option for customers to seek redress. Now, according to Delta, even the expectation of "good faith" is seen as a threat to the federal regime.
If we go much further down this road, we might come to a time when airlines will try to squelch their parking tickets because it might somehow affect their "services."
At the rate we're going, it could happen.