Fliers are fed up with Airlines. It’s time for a new Bill of Rights

By guest author Scott McCartney from the Middle Seat of the Wall Street Journal.

It’s been building for years, but the pandemic has made it very clear: Airline customers have very few rights.

All captions courtesy by the Wall Street Journal

Maybe something will finally change.

The timing is right for change. The pandemic has angered many airline customers and exposed practices that are simply unfair to travelers. For years airlines have been rewriting rules and instituting practices that disadvantage consumers and benefit airlines. Air travel is unique in many ways, but in this discussion the important point is that the Secretary of Transportation is really the sole source of consumer protection. And that’s not working.

These are not radical proposals. Most of them would simply give air passengers the same rights that consumers have in other situations, and enforce what few federal regulations already exist to aid fliers.

It will be up to Congress and the Biden Administration–specifically Transportation Secretary Pete Buttigieg–to decide if there is merit in addressing some serious issues regarding air travel. So far, Sec. Buttigieg has been focused on infrastructure exclusively. The air-travel problems have been exposed. The fixes are plain to see.

President Biden issued an executive order to get the wheels turning at the Transportation Department on several airline issues. And more than a dozen consumer advocates met last week with Transportation Secretary Pete Buttigieg to plead their case for what’s wrong with air travel.

In a statement, Mr. Buttigieg said the Biden administration is starting to work on passenger rights. “Air travel is a vital American industry that has withstood a hard period, and travelers deserve to have their lives, their rights and their pocketbooks protected every time they fly,” he said. “We will continue to protect air travelers at each step of their journey.”

Whether anything comes of it remains to be seen—airlines have a lot of juice in Washington, D.C. Previous passenger-rights attempts have ended up ignored or watered down to insignificance by pressure from the airline industry.

But a crisis has created room for change. Consumers have expressed anger about airline refusals to refund more than $10 billion in canceled trips, even when federal rules require the option of a refund and even after Congress gave airlines a $50 billion bailout. That $10 billion I calculated from Securities and Exchange Commission filings covers only what the four biggest U.S. airlines had on their books at the end of 2020. Add in smaller and foreign carriers and the number is much larger.

Adding to the fury, airlines are rearranging schedules for ticket-holders on an unprecedented scale, often substituting less desirable trips for the product customers purchased without any compensation and little recourse.

“The Secretary of Transportation is the only sheriff in town” on airline passenger rights, says William McGee, aviation adviser to Consumer Reports, who took part in the meeting with Mr. Buttigieg. “The refund issue made it clear: If the DOT secretary is not willing to do it, it’s not going to get done.”

To help the consumer-rights debate along, here’s my proposal for a new Passenger Bill of Rights. Addressing these five ideas will level the playing field for travellers and make flying easier.

The related video can be had here

Flights cancelled by airlines or tickets made unusable by government travel restrictions should now be refunded if customers prefer a refund to a voucher. Full stop.

1) Resolve Refunds First

Airlines pressured customers into accepting vouchers and credits after the pandemic began wreaking havoc on travel. Some changed rules and denied refunds even when existing federal rules that apply to U.S. and foreign airlines flying to the U.S. require it. Some created artificial deadlines for requesting vouchers, then canceled flights wholesale after customers took vouchers “voluntarily.” Then-Transportation Secretary Elaine Chao took no definitive action, despite a torrent of consumer complaints.

Vouchers and credits generated in the pandemic also should have expiration dates removed, and should be transferable to other fliers so they can be given away or sold. Putting strings on customer cash and pressuring people to use it or lose it by a certain date while we still deal with a public-health crisis is inconsistent and impractical.

It isn’t fair to consumers that a business can fail to deliver the product purchased and still pocket the money. In any other industry, you could tell your credit-card company that the merchant failed to deliver and you’d get a refund. Not airlines. Credit-card companies verify refund requests with airlines, and many airlines nix refunds, saying the customer got a voucher instead.

2) Level the Playing Field

When the airline industry was deregulated in 1978, Congress blocked states from making laws or regulations “related to a price, route or service of an air carrier.” The industry and its problems have outgrown that protection.

Right now, state attorneys general have no ability to enforce consumer law—federal or state—against airlines. Imagine how states could have addressed the refund issue. If they could have sued on behalf of citizens to enforce consumer protections, airlines might have relented right away.

Because of the pre-emption, courts have made clear that only the federal government has any jurisdiction over airlines.

“There’s no discipline in the system,” says Kevin Mitchell, founder and chairman of the Business Travel Coalition and another attendee at the Buttigieg meeting. If consumers could act, “the DOT could just be a safety regulator and the market could take care of the rest.”

Airlines argue that the interstate nature of their business requires federal oversight only. But hotels, auto makers, fast-food restaurants, banks, telephone companies and just about every other industry must answer to consumers in state courts.

3) Fix Family Seating

Congress requested the DOT issue a rule in 2016 forcing airlines to offer families seats together without extra fees. But the DOT has punted on this common-sense safety issue. Airlines have had plenty of time to fix this problem on their own, and they haven’t.

In an evacuation, parents will go for their child, even if that means blocking an aisle against the others trying to escape. In addition, there have been incidents of people mistreating children who were sitting by themselves for hours alone.

Deceptive airline practices pressure parents into paying extra seat fees to reserve a block of seats together. If they don’t, they risk being scattered all over the cabin unless a resourceful gate agent moves people around or parents beg passengers onboard to swap seats.

Many airlines reserve lots of seats for elite-level frequent fliers, and add fees to lots of aisle and window seats throughout the cabin. Book tickets for four people and the only free options for reserving seats may be scattered middle seats.

The problem is easily fixable. You have to enter the age of each traveler when you buy tickets. Irish discounter Ryanair has programmed its booking system to recognize children and allow families to reserve seats together for no added fees. Singapore Airlines also drops seat fees for families during booking.

4) Make Use of Consumer Complaints

Travelers file thousands of air-travel complaints with DOT each year. (It’s been tens of thousands lately.) What does DOT do with them? Very little. Complaints get forwarded to airlines, with a response expected. But follow-up? What about enforcement?

Complaints should be researched by DOT. It should create a searchable database so the public can check up on airline trends and problems. Visibility drives improvement. The DOT has a good system set up to hear from consumers. It just doesn’t seem to be listening.

5) Read the Contracts

The DOT should set minimum protections that airlines must include in their contracts of carriage. When airlines were regulated, the government required certain conditions in the terms of a ticket. If an airline cancelled your flight, it had to buy you a ticket on another airline if that got you to your destination faster than the original airline could itself. That rule, like many others, doesn’t exist anymore.

Airlines have written contracts that favour airlines, and the terms keep getting longer. Even tiny, Massachusetts-based Cape Air has a contract of carriage that’s 57 pages long.

The DOT should require that airlines submit their contracts of carriage for review, as they are required to submit their customer-service plans for storms, safety procedures, flight-attendant and pilot training, aircraft-maintenance practices and other issues. The DOT should set minimum standards as it does in all those other areas, and as the government does in other consumer areas like banking.