The Navigator

The Navigator: Will this be the year for passengers' rights?

Christopher Elliott
Sunday, February 20, 2011

The travel industry doesn't exactly have a sterling reputation for keeping its promises.

That's true not just of the lofty low-price guarantees that some hotels offer but hedge with lawyerly fine print. It also applies to something as seemingly straightforward as an airline sticking to its published schedule. (Check the contract; it isn't required to.)

So travelers might be forgiven for their skepticism when promised help last year in the form of long-overdue government regulation and laws that would compel airlines to treat them better and tell the truth about their fares.

Maybe it's a statement about the process, but the most commented-upon proposed rule had practically nothing to do with enhancing consumer protections. It was a new regulation to limit the consumption of peanuts on a plane.

"It was really amazing," said Cynthia Farina, a professor of law at Cornell University, which helped create the site to collect consumer comments. "We had more comments on that than on all the rest - combined."

Fitting, too. Today, with a president who seems to have taken a step back on regulation - signing an executive order last month that initiates a government-wide review of the proposed rules already on the books - and a Congress that has shifted rightward, many are wondering whether the hopeful passenger rights rhetoric of 2010 is about to give way to a harsher reality.

I asked the Transportation Department whether the regulations were on track, and a representative said that a final rule should be issued in April, as scheduled. The agency isn't talking much beyond that, but it's likely that behind the scenes, comments are being collected, evaluated and weighed, and that there are ongoing conversations between the administration and the agency, says Cary Coglianese, a law professor at the University of Pennsylvania who specializes in the study of regulation and regulatory processes.

"The political climate has changed," he said. "And that could affect the final rule."

The government wants to require airlines to include all required fees in the advertised price of its tickets, instead of breaking out each surcharge and creating the illusion of a cheaper fare. It would like more airlines to adopt contingency plans for lengthy tarmac delays, to report more data on delays and to notify customers promptly of delays.

The Transportation Department also wants carriers to set minimum customer service standards, increase compensation for passengers denied boarding and stop airlines from raising the fare after a ticket has been bought. Plus, it wants to make customer service plans part of the contract of carriage - the legal agreement between airlines and customers - so that passengers can sue for breach of service.

As you can probably imagine, airlines are unhappy with the proposed rules. In comments filed with the department, several referred to a number of the new regulations as unwanted government interference, "harming rather than advancing the interests of both consumers and competition." Coming from an important but fragile business like the airlines, those words are likely to have some effect on the final rule, say observers.

There's also some momentum on the legislative side to give passengers more rights. The most prominent example is the Clear Airfare Amendment to the FAA Reauthorization Bill, proposed by Sen. Robert Menendez (D-N.J.), which would compel airlines and travel agents to disclose the full price of a ticket, including taxes and fees. The amendment would also force earlier disclosure in the buying process of any fees for checked baggage, seating assignments, optional in-flight goods and services and other fees that may be charged after the ticket is purchased.

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