Airline passengers, the rights of Medieval serfs

The current Department of Transportation (DOT) rulemaking includes a “choice of forum” section that highlights an important customer service loophole faced by America’s airline passengers. Basically, airline passengers have no rights in the U.S. court system. Like Medieval serfs, airline passengers have been denied access to the legal system. Their only real recourse is to petition through DOT. That should change.

The Consumer Travel Alliance (CTA), in its comments, asked that consumer-related disputes be handled by local courts rather than only at the federal level. Kevin Mitchell, Chairman of the Business Travel Coalition (BTC) also noted the airline passenger powerlessness versus the airlines and detailed the roots of this problem.

Airline passengers are unique in having virtually no legal rights under consumer protection and many traditional common law claims at the state level, and no protections from the Federal Trade Commission (FTC) that apply in virtually all other retail industries. As such, airline passengers are in a consumer protection “no man’s land.”

Anyone who has been fed up enough with the airlines to take them to court quickly finds themselves bounded out of their local court systems and pushed into the federal courtroom world. Small claims go out the window and low-cost remedies disappear as well. The airlines play the “Federal preemption of most State law claim” whenever they can. This means that normal safeguards for consumer welfare just don’t come into play.

The airlines get to operate outside of the normal rules that every other customer service company faces. They do business free from the jurisdiction of the Federal Trade Commission (FTC). Mitchell in his comments notes the painful consumer reality.

First, state laws that make unlawful, unfair or deceptive acts or practices by businesses, such as the state deceptive trade practices laws that apply to other industries, are preempted by federal law and hence have no application to airlines. The U.S. Supreme Court reached that conclusion in the case of Trans World Airlines, Inc. v. Morales nearly 20 years ago. Thus, State Attorney Generals cannot use their usual powers to police unfair or deceptive acts or practices in the case of airlines while other industries have their behavior checked by these important consumer protection statutes.

This claim has been raised by the crusaders for new tarmac-delay rules. Along with their drive to get Congress to pass a tarmac-delay law, they brought suit against the airlines for false imprisonment. Unfortunately, federal courts stated that consumers did not have the right to bring cases to state court such as lawsuits for false imprisonment.

Mitchell’s legal history of the airline consumer plight continues with yet another Supreme Court ruling that basically notes the airlines are only responsible for providing the service they specify in their contract of carriage and which is the implicit contract all passengers sign when they purchase an airline ticket. Basically, since the airlines don’t specifically say in their contract of carriage that they will provide good customer service or even strive to to do that, they are not responsible for more than getting a passenger from Point A to Point B.

By virtue of the U.S. Supreme Court decision in American Airlines, Inc. vs. Wolens in 1995, a passenger lacks the right to sue an airline for breach of contract when an airline has failed to provide decent service – except to the extent that an airline has voluntarily assented to some “self-imposed undertaking.” Anyone who has perused the airline drafted – and some say imposed – conditions of carriage will know that airlines assume precious little in terms of explicit contractual commitments to passengers.

Under federal law DOT is the only guardian of air traveler welfare. The FTC is powerless. When CTA approached the FTC, the epicenter of privacy issues in the U.S. government, to discuss privacy, their executives very bluntly told CTA that they have no jurisdiction over privacy policies of the airline computer reservation systems nor those of the GDSs.

When the airlines cry about facing re-regulation, remember, in the field of consumer protections, this industry is not subject to the most basic FTC consumer protections against unfair or deceptive acts or practices and FTC enforcement.

The regulations that are being suggested are the most basic “truth in advertising” and “handle people like human beings” kind of rules coming from the DOT that for the past 30 years only concerned itself with lost luggage and passenger bumping when it came to customer service, until it ruled that runway delays of more than three hours without food, water or toilet facilities were not acceptable. Why Federal preemption has allowed the airlines to get away with treating passengers like prisoners and forcing them to sit in their own filth for years is beyond me.

We reached this point because airline passengers have no standing in any court. Only the DOT can act against unfair or deceptive acts or practices of airlines, basically any anti-consumer practice. Mitchell’s comments filed with DOT regarding the current rulemaking forcefully underscore the airline consumers’ condition.

…the DOT is the sole creator and enforcer of consumer rights in the field of air travel. Therefore, where DOT has not prescribed the rules of the road in terms of consumer protections, consumers of air travel are typically without rights and without remedies — like serfs in the Middle Ages.

CTA, mindful of this shameful customer protection loophole exploited by the airlines, also filed comments about this section of the NPRM and noted:

Consumers should be allowed to seek legal redress in any court. Federal or state, of competent jurisdiction, including a court within the jurisdiction of the passenger’s residence, provided that the carrier does business within that jurisdiction. Cases should be allowed to be presented in small claims court and passenger/airline issues should not be subject to federal preemption.

Hopefully, this new focus on enforceable consumer protections will find its way into customer service plans and contracts of carriage of every airline that serves customers in the U.S. whether they are domestic carriers or foreign. Plus, more importantly, DOT will find its enforcement budgets increased as they take on a more active consumer protection role.