Airline Passengers' Rights Delayed

While acknowledging New York legislators' just cause, an appeals court rules that letting states regulate airlines would make a mess

A federal appeals court in Manhattan on Mar. 25 quashed New York's effort to ensure that airlines protect passengers against hours spent on a runway without food, water, and functional lavatories while waiting for takeoff. The court said the state's legislation usurped federal transportation laws and would create a Gordian knot of unworkable regulation covering air travel. "If New York's view regarding the scope of its regulatory authority carried the day, another state could be free to enact a law prohibiting the service of soda on flights departing from its airports, while another could require allergen-free food options on its outbound flights, unraveling the centralized federal framework for air travel," the Second Circuit U.S. Court of Appeals ruled.

A spokesman for New York Attorney General Andrew Cuomo said the office is reviewing the decision and had no further comment about whether it will appeal. Even if Cuomo decides to back off the fight, New York lawmakers have already demonstrated there's a political consensus around the issue, and consumer advocates have tapped a deep well of passenger anger. The largest group, Coalition for an Airline Passengers' Bill of Rights, says it has more than 20,000 members. For airlines, the issue isn't likely to go away.

The New York law took effect on Jan. 1. It arose in response to the infamous case of JetBlue (JBLU) passengers trapped on planes for 10 hours or more in February, 2007 (, 2/21/07), as winter storms pummeled New York City. Two months earlier, American Airlines (AMR) made news for horrendous onboard conditions after the company stranded passengers in Texas when storms whacked its Dallas-Fort Worth hub.

The Fruits of Deregulation

Passenger advocates were quick to decry the court's decision. "I continue to be stunned by the audacity of the airline industry, which fought so hard to deny the flying public simple basic rights like being able to use a restroom or get a drink of water while stranded on a delayed plane," State Senator Charles Fuschillo Jr., a Long Island Republican and co-author of the bill, said in a statement. The bill's primary sponsor, New York Assemblyman Michael Gianaris, a Democrat from Queens, said in an interview: "It speaks to why airlines are held in such low regard by the public. They would rather spend time and money hiring lawyers…than figuring out how they can provide a drink of water to people."

The major carriers' trade group, the Air Transport Assn., had sued in federal court to block the law, which former Governor Eliot Spitzer signed in August. It required that airlines provide food, water, clean toilets, fresh air, and lighting on flights delayed on the ground in New York for more than three hours. Carriers that did not comply faced fines as high as $1,000 per passenger. (In the law's 84-day lifespan, a complaint against one airline had been lodged and was being investigated.)

The airlines argue that the 30-year-old federal law that deregulated the industry holds precedence over such state efforts. More to the point, the industry says, it is working with the U.S. Transportation Dept. to devise airline-specific guidelines governing how best to function when weather or other circumstances foul operations. In a statement, the ATA said the court ruling reinforces the federal role in airline regulation and that "a patchwork of laws by states and localities would be impractical and harmful to consumer interests."

Preemptive Action

The industry group also said the court decision "sends a strong message to other states that are considering similar legislation," a clear reference to a move afoot in Sacramento, where California lawmakers are weighing a "bill of rights" modeled after the New York law. On Mar. 24, the California General Assembly's Transportation Committee approved a similar measure and forwarded it for review to the Judiciary Committee. The appellate ruling immediately dimmed that bill's prospects. In a statement e-mailed to reporters, the Transportation Dept. said it "continues to support and pursue a national approach to the issue of passenger rights, and we are pleased that the appeals court agrees with this view."

From the industry's perspective, one of the prime arguments against requiring such food, water, and lavatory cleaning is that horror-story flights are exceedingly rare, and they'd rather avoid the expense of preparing for them. While airline delays have become routine (BusinessWeek, 9/10/07), most airlines—led by American and JetBlue—are now far quicker to cancel flights ahead of major storms. "I don't know if it would happen again," ATA spokesman Dave Castelveter says of passengers being confined for hours on the ground without relief. "But I know the risk of it happening again has been greatly reduced."

The airlines, struggling with huge fuel bills, also do not relish the prospect of any law that would boost their operating costs (BusinessWeek, 3/12/08). But the minimums being called for would hardly constitute a financial burden, backers argue. "What's important here is that we're not talking about providing luxury items. These are human necessities," says New York lawmaker Gianaris. "These are protections accorded to prisoners of war under the Geneva Conventions—and yet we can't see fit to provide a drink of water to our airline passengers?"

Washington's "Vacuum of Leadership"

Still, the logistics of complying with such laws—and the chance that each state could have slightly differing rules—might quickly cause expenses to mount. Would airlines be inclined to pack delay-prone flights with extra food and snacks? Doing so would add weight, which would use more fuel. Would airlines decide to stockpile supplies at airports and then move them to stuck planes? Would they taxi delayed planes back to gates and not bother keeping a place in a long queue of jets?

In a nod to consumer sentiment, near the very end of its decision, the court's three-judge panel added: "Although the goals of the [passenger bill of rights] are laudable and the circumstances motivating its enactment deplorable, only the federal government has the authority to enact such a law." In other words, the legal ball just got kicked to Capitol Hill. To consumer activists, though, Washington has been woefully behind on the issue—a "vacuum of leadership," according to Gianaris. That's why the states got involved in the first place. "It makes sense to do it at the federal level, but if they're not fixing it, it'll come up at the state level," says Representative Mike Thompson (D-Calif.), who introduced similar language earlier this year into a bill reauthorizing the Federal Aviation Administration.

Thompson, a small vineyard owner from Napa who flies cross-country several times a month, notes that most companies "don't like mandates." Still, he adds: "I don't like mandates, either. Rather than pass a bill, I wish they'd just do it on their own." But since that's not likely, Thompson says, both state and federal legislators will continue to press for such laws. And that, in the end, is why some form of passenger "rights"—even if constructed by airline marketing executives—may someday be as integral to the in-flight experience as seat belts, no-smoking lights, and meager legroom.

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