It counts them.Only four times since the Civil War had New York City seen more than a trace of snow in October—until October 29, 2011, when a freak nor’easter dropped a few inches in Central Park, then churned north to dump more than a foot on central Connecticut and Massachusetts. Falling heavy and wet, the snow brought down still-leafy trees and tree limbs, cutting power to roughly three million.
It also shut down critical bad-weather instrument-landing systems at New York’s major airports, forcing more than 150 flights to divert. Among them was the nearly full JetBlue Flight 504 from Fort Lauderdale. Like other diverted planes, Flight 504’s pilot asked to land in Boston, an ample facility where the weather was better. But Boston was having its own problems. It was already crowded with two dozen planes diverted from New York, including a massive Lufthansa Airbus 380 that had no place to park except at the end of a runway, closing it to other landings. Another Boston runway was blocked by a military jet trying to unload soldiers wounded in Libya, which required extra room on the tarmac for ten ambulances, according to an Associated Press report by Joan Lowy. There was simply no room in Boston for hapless Flight 504.
Hartford’s Bradley International Airport, less than 100 miles north of New York, was the logical alternative. Ringed by old tobacco barns and bucolic New England hills, Bradley is a relatively small facility with limited international services and only 23 gates. That afternoon it lay directly in the snowstorm’s northward path.
By one thirty p.m., when Flight 504 with 129 passengers and six crew members landed at Hartford and pulled off onto a taxiway, some 23 other diverted flights were already sitting there or on the way. That included an American Boeing 767 inbound from Paris after about eight hours in the air. In the space of two hours, the airport’s gates were filled and, as the weather worsened, new arrivals crowded the tarmac. The airport struggled to deplane more than a thousand stranded passengers amid intermittent power outages that hobbled refueling, de-icing, and deplaning. Meanwhile, Flight 504 sat on the tarmac for seven and a half hours, after its three-hour flight.
Things turned nasty on the JetBlue A320. “We ran out of water,” said Andrew Carter, a Florida sports reporter who phoned his editors from the plane, according to various reports. “The bathrooms are all clogged up and disgusting,” he reported. “When you flushed, nothing would happen.” The power on board was also going off “every 45 minutes or so for five minutes or so, and that would freak people out.…” There was no food. Babies, without formula or fresh diapers, wailed. Passengers were cursing, yelling, and threatening to call the police. (One who did call 911 was told there had already been a dozen calls from the plane.) The pilot beseeched the airline, then airport officials, for help: “Is there any way you can get a tug and a tow-bar out to us and get us towed somewhere to a gate or something? I don’t care, take us anywhere,” he pleaded, his words posted on LiveATC.net.
The 30 to 40 cubic feet of personal space per passenger on a loaded Airbus 320 is a small fraction the size of a standard prison cell. Even inmates get exercise time. When local firefighters finally arrived to remove a paraplegic in distress, other passengers began screaming: “Get us off this plane!” Around nine p.m., nearly 11 hours after an on-time takeoff from sunny Florida, firefighters helped passengers down the slippery aluminum stairs in heavy snow—heading to a terminal crammed with a thousand others forced to spend the night on cots hastily assembled by the National Guard.
It wasn’t the first time hundreds of passengers were stranded for hours on crowded, smelly, snowbound tubes—not hardly. For years, an average of two to three flights every day had been sitting on the ground for more than three hours. In the big picture, those extreme delays were rare—less than 0.1 percent of all flights—but it still meant that nearly a thousand domestic flights waited for more than three hours in 2009, stranding more than 100,000 unfortunate passengers. Just slightly shorter incarcerations—from two to three hours on the tarmac—hit hundreds of flights every week. And punishingly long delays on the runway were nothing new; the issue had been a focus of consumer angst for more than a decade, ever since four thousand passengers famously were trapped in foul cabins for up to nine hours in a Detroit blizzard that, as we’ll see, slammed Northwest’s main hub on January 3, 1999.
Tarmac strandings seemed qualitatively different from the everyday hassles of air travel. Incarcerating scores of humans packed tightly on stationary cylinders for six, seven, eight hours moved beyond the routinely stressful to the realm of the inhumane. It crystallized a disturbing sense that airlines, desperate for the almighty buck, just didn’t give a damn. Fliers could understand that an industry struggling in punishing economic times couldn’t focus on customers as individuals, but still they were human.
Somebody had to do something to fix it. But unless the airlines “fixed it” themselves—and they hadn’t, despite more than a decade of complaints—there was really only one realistic alternative: federal regulation. When it comes to commercial aviation, federal regulators are the last, often the only, cops on the beat, not just for safety issues but also for protecting consumers from “unfair or deceptive” industry practices. States and cities have almost no legal authority over interstate airline service. Federal commerce, safety, and labor laws “preempt” state laws in almost all commercial aviation matters. Customers normally can’t even sue airlines for lousy service (except for some limited small claims court actions). Since the deregulation of the industry in 1978, market forces are supposed to control how airlines behave. But when that doesn’t work, calling the cops means calling the feds—specifically the Department of Transportation—to enforce rules on the books or, as with tarmac delays, to make a new rule.
DOT takes this responsibility seriously, though in truth sometimes more as an aspiration. “It’s DOT that protects the public,” says the Department’s General Counsel. Still, the folks at DOT have rarely been confused with Dirty Harry when it comes to enforcing aviation consumer rules. Not because their hearts weren’t in it, or because of any lack of public outcry, but rather because consumer enforcers for years haven’t had the bodies, the money, the clout, or, in some cases, the legal authority to get tough.
That’s all of little comfort to the masses of air travelers unhappy with their airlines. More than 10,000 of them every year file complaints with DOT’s Office of Aviation Enforcement and Proceedings—the equivalent of nearly a half dozen complaints every hour of every workday. Folks lost their bags, lost their vacation, lost their refund, lost their sanity. Topping the list are flight problems, delays, lost bags, and “customer service”—a catchall that covers everything from rude flight attendants to lousy in-flight movies.
Those who make the effort to complain to DOT, though, are just the tip of the iceberg. Consumer enforcers estimate that for every airline complaint they receive, passengers send another 50 complaints to the airlines directly. If that’s true, that means an amazing half million air travelers are sufficiently ticked off every year to take the time to make a formal complaint about their air-travel experience.
Here’s what DOT really does with almost all of the 10,000 traveler complaints it gets:
It counts them.
It pigeonholes each into a category—overbooking (called “oversales”), “mishandled” (sometimes just plain lost) luggage, flight delays and cancellations, ticketing and refunds, fares, customer service, and other “unfair and deceptive practices.”
It forwards each to the complained-about airline, reminding it to respond in some “substantive” way to the complainer within 60 days. (TSA “customer service” complaints are sent to the Department of Homeland Security.)
It publishes a neat statistical monthly summary of all the complaints it receives, ranking each airline by complaint totals.
Basically, that’s it. In the great majority of cases, there’s no DOT investigation and rarely any other follow-up or action to actually “fix” the problem complained of. DOT just passes your beef along to the airline that allegedly caused it, requiring it to send you “a substantive response.” What DOT’s consumer “protectors” do, mostly, is keep really good records.
It’s not that enforcers are trying to bark louder than their fairly gentle bite. When irate passengers telephone DOT’s “consumer protection hotline,” the first thing they hear is this recorded disclaimer: “If you have an airline service issue, we recommend that you first contact the airline.… Most service issues … do not violate any federal rules. The airline is in the best position to address and resolve those concerns.” In other words, you’re on your own. And have a nice day.
To be fair, every week or so on average, DOT actually does some proactive—OK, punitive—enforcing. It investigates a consumer violation and assesses a fine, though not that often against a major US airline. Most penalties involve advertising airfares without including costs like taxes or surcharges, or failing to make clear that the flight you thought was on a big airline is actually flown by its regional “partner” carrier. Even when DOT does levy a fine, it has an unofficial “forgiveness” policy. Airline violators who don’t fight the fine and settle by signing a document (“consent decree”) agreeing to it typically get the “half-off ” discount. That also lets them (a) refuse to admit they did anything wrong and (b) promise never to do it again. If they don’t, in fact, do it again for a year, or if they promise to spend more money on complying with the rules, DOT typically “forgives” the second half of their fine.
Getting penalized for consumer rule violations annoys airlines to no end, but it hardly makes them tremble in fear of DOT consumer enforcers. The DOT hammer threatens not even to dent the financials of these multimillion-dollar corporations. In 2009, for instance, DOT levied about 30 consumer penalties for a total of some $2.6 million, but only half of them fell on big US airlines and most of those fines were $50,000 or less in up-front cash. True, that was roughly twice the size of the penalties assessed in either of the two preceding years, but still a pittance for an airline industry that takes in nearly $175 billion each year.
Most consumer protection fines don’t even address traditional consumer issues like deceptive advertising and overbooking. According to an August 2008 DOT presentation to foreign regulators, more than half the DOT penalties from 2000 to mid-2008 involved civil rights violations, including discrimination against disabled passengers. And get this: in the ten years up to 2006, only $2.1 million of the $14.9 million in assessed penalties was actually paid, an Inspector General investigation found. Even if all fines were paid in full, though, consider that by 2012, the average consumer penalty assessed against all air service providers and sellers was less than $75,000—about a half dozen First Class round-trip seats to Europe.
When Congress lifted the hand of regulation from the industry in 1978, it gave DOT what looked like broad legal authority to make sure the traveling public didn’t get screwed in the competitive free-for-all that might ensue. Rather than explore the outer boundaries of that power to fight “unfair” and “deceptive” practices, though, the feds have tended to focus on issues like omissions in fare advertising “fine print,” inadequate disclosure of information about code-sharing, and, at the behest of Congress, air travel access for disabled fliers—all areas where, in fairness, DOT legal authority is most explicit and established. Of course even if DOT had chosen to push its envelope, legal authority is one thing; the practical ability to actually make vast private enterprises behave is quite another. That takes money, bureaucratic clout, a credibly sized staff, and high-level political will. And there wasn’t a whole lot of that for DOT’s consumer protectors, at least until late in the decade after 9/11.
By law, every e-ticket includes DOT’s toll-free telephone complaint “hotline.” But who’s at the other end of the line to handle all those complaints and enforce the rest of DOT’s consumer requirements? By 2000, just 17 government employees—including both administrative and legal staff—were there to “protect” America’s 100 million or so annual consumers of air travel. Even at a high point of consumer-office staffing in 2004, only some 41 individuals, about half of them lawyers, were assigned to the task—and each lawyer juggled an average of 17 cases or projects, according to a 2006 Inspector General report.
Today, DOT’s aviation consumer protection office, part of the DOT General Counsel’s office, has a staff of about 45 (half lawyers, half investigators and analysts, including support staff). That’s barely larger than the 41 people who performed much the same functions in 1985, the year the responsibility shifted from the old Civil Aeronautics Board to DOT. Consumer enforcers have been added in the last few years—reportedly half a dozen more lawyers today than in 2008—and more money has been allocated, but it’s all still barely a footnote to the FAA’s annual billion-dollar-plus budget for aviation safety enforcers, inspectors, and regulators.
Aside from warm bodies, monitoring the way America’s dozen large airlines (those with more than a million annual passengers) treat consumers takes serious money. Yet, the entire enforcement travel budget for the office as late as 2005 was a mere $3,500—maybe enough to send a couple of agency lawyers to a single out-of-town meeting with a miscreant airline. And even the pinched resources available are spread thin. DOT is legally required to undertake a comprehensive investigation of specific kinds of consumer complaints—the 600-plus each year involving disabled travelers and civil rights—and that leaves even less for all the other thousands of complaints. With this level of “resources”—Washington-speak for bodies, money, and clout—how could aviation consumer protection be anything more than reactive and, even then, only to the worst instances of consumer-unfriendly behavior?
It’s not just a matter of government-wide belt-tightening; there’s also a deeper, long-standing ambivalence about just how much consumer protecting the feds should do. That policy call shifts with Administrations and with sensational, action-forcing events like mass tarmac strandings, but the debate is as old as deregulation, when Congress sent a dual message to DOT aviation regulators: let airlines compete more like “normal” businesses, but make sure the public is treated OK in the process.
Since 2009, the aviation consumer-protection pendulum has been swinging back to greater activism. In 2011, to the consternation of some in the industry, the Obama DOT set a new record for consent order fines—47 penalties totaling nearly $3.3 million (though fewer than half were assessed against US airlines)—then broke that record the following year, issuing 49 such fines for a total of $3.6 million. From 2009 through 2012, DOT’s 203 consumer penalties, totaling $16.5 million, nearly doubled the number and amount of fines assessed during the four preceding years of the Bush administration, when 105 penalties totaled $8.8 million.
The get-tougher approach reflects more than just a political shift in attitude or a more favorable policy view of consumer regulation. There was also a sense, perhaps driven in part by disgust at “outrages” like tarmac strandings, that ordinary passengers, increasingly outmatched in their dealings with a tougher, smarter, more concentrated airline industry, just needed more help. And there was also a growing confidence that the industry, now no longer on economic life support, could and should step up better to its consumer responsibilities. Bottom line: regulators are today enforcing the rules more stringently and more frequently, DOT consumer protection is getting somewhat more money and attention, and new rules, mainly focused on keeping air travelers “informed,” are being issued. A leading aviation law firm describes the recent shift, with only a touch of hyperbole, as “without question … the largest expansion of airline consumer protection rules in decades.”
It’s taken years, though, for that pendulum to swing, and despite industry indignation over supposed “re-regulation,” the real-world effect of this new regulatory activism on the airlines, in dollars and cents, has been pretty modest. So where does the state of consumer protection leave today’s unhappy customers—the 10,000–plus air travelers who complain to DOT every year, or the estimated half million who complain to the airlines, or the millions of other folks who just don’t bother? Can they count on aviation consumer regulators to tame the excesses or come to their rescue when things go awry? A common observation among DOT consumer enforcers: “Let’s get real about expectations.”
The No-Brainer
If enforcing consumer rules already on the books seems like an uphill battle, a lightning rod for industry anger, and a long slog for aggrieved passengers, it pales in comparison to the years-long task of making new rules to protect consumers. Even proposals that barely affect the way airlines operate day-to-day trigger sometimes-fierce industry opposition, even eliciting accusations, as a popular industry journal framed an op-ed, that regulators had launched a “war against the airline industry.”
Even no-brainers can take forever—like a DOT consumer rule to require airlines to release passengers cooped up waiting on the tarmac for more than three hours. The saga of that seemingly simple commonsense regulation shows starkly how tough it can be in the unreal world of Washington to regulate a more humane air-travel experience, and how long it can take for the “cops” to arrive. When it all started with planeloads trapped in the Detroit blizzard of January 1999, no one could have imagined that regulatory help would take more than a decade to come—until two days before New Year’s Day 2010—consume vast resources, and trigger an arduous battle that some industry advocates are still fighting.
The massive blizzard that hit the Midwest on January 3, 1999, blanketed Northwest Airlines’ global air hub in Detroit in more than a foot of drifting snow and 20-degree temperatures. Even as the storm hit, though, Northwest kept landing its planes, even though there was no place to park them. All of the airport’s gates were occupied by planes that had been unable to fly out in the storm. In the end, nearly three dozen fully loaded flights sat motionless on the tarmac—one for eight and a half hours. The planes’ passengers, without food or water, gagged on the stench wafting from overflowing lavatories. As distraught families emerged with harrowing tales, the consensus to “do something”—pass a law, issue a regulation—seemed crystal clear.
News media pounced on the Detroit story and stayed with it for days. Sobbing moms and starving babies snowbound for hours made for compelling coverage. Meanwhile, Congress was just returning to Washington from the Christmas holiday, ready for action. And almost before the snow stopped falling, class-action lawyers were gearing up to file a massive false-imprisonment and negligence lawsuit. (Two years later, shortly before trial, Northwest settled it for $7.1 million—reportedly some $2,000 for each of the unlucky 600 passengers stuck for more than eight hours.) On the tenth floor of DOT headquarters in Washington—from the richly paneled office of the secretary of transportation down the hall to the General Counsel, his top lawyer and political consigliere—tarmac delays suddenly rose to the top of everybody’s crowded inbox.
DOT was, and is, a sprawling bureaucracy of 60,000 workers, cobbled together in 1967 by President Lyndon Johnson. Its Highway Administration funnels federal billions to build and maintain highways. Its Federal Transit Administration does the same for subways and buses. The National Highway Traffic Safety Administration tests automobile safety and issues safety ratings. The Federal Aviation Administration oversees the safety of airlines, pilots, and airports. The Federal Railway Administration supervises railroad safety.
Even though aviation is just one of DOT’s “modes” of transport, it gets far more than its fair share of high-level political attention, mainly because it gets far more of the public’s attention. When the discovery of a single snoozing air traffic controller at a Washington, DC, airport in 2011 can fuel national outrage, major aviation screw-ups like the Detroit strandings often top the secretary of transportation’s daily agenda. Those mediagenic enough to make the network news, or at least the major cable channels, can draw an earful from White House staff. Within three days, widespread news coverage of the Detroit debacle had everybody in the “do-something” mode.
Many in Washington assumed that DOT would put out a new tarmac-delay rule, using its legal authority to stop “unfair and deceptive practices.” Holding innocent travelers for hours aboard smelly, crowded aircraft certainly seemed “unfair.” But enforcers prefer specific “thoushalt-not” proscriptions that nobody can quibble with and detail precisely what airlines must do with customers trapped in tarmac hell. Consumer protection rules like these are far, far slower and harder to implement than FAA safety rules to correct a specific defect or unsafe condition on a particular type of aircraft. In an emergency, FAA has special authority to make safety regulations effective literally overnight, even ground entire fleets of jet aircraft if it suspects a defective or dangerous condition. New consumer-protection rules, in contrast, can take forever. Even the no-brainers.
Making new consumer regulations is a process measured in years. In a 2001 review, GAO estimated that many significant aviation rules took three to four years, start to finish; consumer rules with “teeth”—ones that cost the industry serious money to comply with—can take far longer. The ban on smoking aboard aircraft—the granddaddy of airline consumer regulation—took 27 years to effect completely, starting from the Civil Aeronautics Board’s initial step in 1973 to require separate “smoking” and “no-smoking” sections until a complete across-the-board ban took effect in 2000.
Why does it take so long to fix even an obvious problem like tarmac delays with a new rule? Three words: process, consensus, and outrage.
Process
Regulations are like laws, except they’re not passed by elected legislatures. To help ensure they’re sensible and legitimate and reasonable, everybody—literally, every single member of the public—is entitled to make known his or her views on most proposed federal rules. Conversely, regulators must be able to prove they “duly considered” every last one of those views or comments. The notion is as old as the New Deal, and if regulators don’t take all views into account, courts can strike down their regulations. What this means, in practice, is that controversial rule proposals can trigger thousands of comments, even orchestrated campaigns of comments in support or opposition, and months and months of agency “review” of all those submissions.
That’s just the beginning of the process requirements for a new rule. Another requirement—and a favorite legal land mine for regulatory opponents—is the so-called cost-benefit test; regulators have to prove that the quantifiable benefits of a proposed rule outweigh the likely cost to the industry of complying with it. For the tarmac-delay rule, that meant proving that the “quantifiable benefit” of liberating trapped passengers from long-delayed planes was greater than the cost to airlines of getting them off the stranded plane. This analysis can all get pretty squishy. How exactly do you quantify the “benefit” of not having to spend the night stranded on the tarmac? Priceless? K Street economists for hire will happily produce “regulatory evaluations” to prove that most any regulation is or is not “cost-beneficial.” For the final tarmac rule, DOT’s consultant produced a 90-page report that—ta-da!—showed that the rule’s benefits would exceed its costs by $69.1 million over 20 years. Here’s a surprise: where DOT estimated the rule would cost airlines and fliers $100 million over 20 years, industry-friendly economic consultants predicted nearly 40 times that cost.
Battling economists aside, there are plenty of other legal hurdles designed to make regulations hard and K Street lawyers prosperous. (Full disclosure: I used to be one of them.) New rules can’t unduly affect “small entities” or Indian tribal interests. They can’t impose new costs on states (“unfunded mandates”) or interfere with international trade. Even seemingly simple information-gathering—for instance, requiring airlines to report how many tarmac delays lasted more than three hours—can require special White House approval because of a Carter-era law known as the Paperwork Reduction Act. Think of the regulatory process as a game of Chutes and Ladders—fail to cross a t or dot an i and you’re sliding back down to the start of the game.
Consensus
Beyond process, though, there’s an equally essential and unwritten prerequisite for timely regulation: securing consensus—or close to it—among “stakeholders.” Almost everybody with something to gain or lose by reason of a rule—every important stakeholder—must agree, or at least acquiesce in, the proposal. If not, that stakeholder has to be “rolled”—a politically risky and rarely desirable move. The more opposition from stakeholders, the more time and hassle it takes to put an essential, if unwritten, rule into effect; the more consensus, the better the chance that something useful will happen. Of course, developing consensus can involve delicate compromises and trade-offs that water down a rule, but if a key player throws itself against the regulatory machine, as happened with the tarmac-delay rule, it can delay the process for years until another “outrage” again stirs the pot of public indignation.
In theory, stakeholders include every member of the public who has an interest or concern. In reality, the stakeholders who can change the fate of regulation are the affected businesses who are prepared to invest money and time to enlist K Street and Capitol Hill operatives, to generate political heat to make sure that any rule that emerges goes their way, or at least doesn’t do them much harm. Stranded fliers may have been the victims of tarmac delays, but they weren’t really seen as stakeholders. The key stakeholders were the airlines.
Major airlines are always powerful stakeholders at DOT, and why not? In a real sense, what’s good for the airline industry is in fact good for large swaths of the American economy. US passenger airlines alone directly employ nearly 400,000 US workers, and rank among the top industrial sectors in contributions to the GDP. They contract with thousands of American businesses—from Fortune 100 megafirms like Boeing and jet engine–maker General Electric down to the mom-and-pop airport cleaning outfits that vacuum the airplane cabin carpets overnight. Communities large and small depend on them for access to markets and for tourism. San Jose, California, for instance, recently estimated that a single new daily flight to Tokyo would generate $90 million in business and economic growth annually for the region.
Politics aside, DOT wants airlines to be financially healthy. Stable airlines are more likely safe, reliable airlines. So the Department listens hard to the carriers—even to hyperbole about the “crushing” burden of complying with even the simplest consumer rules. Given their historic unprofitability and heavy tax burden, sometimes it’s not all hyperbole.
To make sure DOT and other agencies are listening, though, the US airline industry collectively spends millions of dollars every year on lobbying, hiring some of the best public relations and lobby shops K Street has to offer. On dicier issues like security or hygiene or consumer rights, individual airlines that would rather lie low can let their powerful trade association—Airlines for America (formerly the “Air Transport Association of America,” a name suited to its New Deal origins)—do the talking. After all, what airline wants to be known individually for leading the charge against better-rested pilots or “free” airplane baby seats or free oxygen for disabled travelers or, for that matter, ending tarmac strandings? The association spent more than $8 million on lobbying in just the first two years of the Obama administration and in 2011 paid its CEO $3.6 million, the highest for any similar transportation association according to the Washington Post. Airlines pay plenty to belong to A4A, but it’s worth it.
Airlines aren’t the only powerful DOT stakeholders, though. Major airports are critical engines of local economies and huge employers in their own right. More than a million people work directly at the country’s commercial airports, almost as many as at Wal-Mart, the nation’s largest private-sector employer. Atlanta’s Hartsfield, the country’s busiest airport, has more than 58,000 “on-airport” workers, making it Georgia’s largest single employment center, with an estimated direct economic effect of more than $32 billion on the metro area’s economy. Typically owned by municipal governments, big airports have deep political clout. So too does aviation labor, another major stakeholder. Leading national unions in the highly organized industry include elements of the powerful Teamsters and Machinists. Separate unions represent pilots, flight attendants, machinists, maintenance workers, and baggage handlers. And aerospace manufacturers like Boeing, with nearly 175,000 employees alone, are among America’s export champions. Who’s going to mess with their many fierce protectors up and down Pennsylvania Avenue?
Ordinary air travelers are stakeholders too—arguably the most important ones when it comes to achieving consensus on consumer-protection rules. Who’s being trapped on those snowy tarmacs anyway? Everybody in the airline industry purports to speak for the interests of air travelers, and regulators by law have that responsibility, but inside the Beltway, consumers are too often just heavily outgunned.
Outrage
Powerful commercial forces can help block regulations, but they mainly just capitalize on the inertia already built into the system by the demand for process and consensus. Just as it’s far easier to kill a bill in Congress than to pass one, delay is the default option for most proposed regulation. It’s easier and costs less politically to kick the can, appoint a study commission, and order up a GAO report than to propose even a mildly controversial regulation. Unless, that is, there’s some kind of galvanizing event that captures the attention of the public, the news media, and Congress. Would there be serious talk of an assault-weapons ban without Newtown?
Outrage at the treatment of thousands of snowbound fliers made action against tarmac delays seem inevitable, even imminent, after the Detroit debacle in the winter of 1999. That it took more than a decade reflects how problematic it can be for travelers to rely on the government to fix what’s wrong with air travel, to overcome the built-in inertia and, sometimes, the sophisticated industry opposition.
Inside the Beltway
Geographic fortuity added to the prospect for quick action against tarmac delays in 1999: Northwest’s Detroit hub lies within the congressional district represented for more than 50 years by “Big John” Dingell, then the powerful chairman of the House Energy and Commerce Committee and a man famous for demanding and conducting tough investigations. (John D. Dingell Drive bisects the airport itself.) Within a week of the strandings, congressional investigators were dispatched, and four days of televised hearings were scheduled for mid-March. Meanwhile, the House Transportation and Infrastructure Committee rushed to craft a “passenger bill of rights” and the Clinton administration—Vice President Gore himself—proposed corrective legislation.
The overflowing congressional hearings in March 1999 seemed designed for a hanging of Northwest; instead they proved how resilient the airline industry could be. Room 2167 of the Rayburn House Office Building is one of those imposing, high-ceilinged, deep-carpeted hearing rooms on the House side of the Capitol, equipped for C-SPAN and live TV with lots of space below and in front of the wall-to-wall dais for witness and press tables. It’s big enough to hold the largest committee in Congress, the 59-member “T & I” Committee, as it’s known, which oversees vast reservoirs of transportation “pork”—federal money for highways and bridges and airports. By the time of the hearings, the huge room was filled, with a line waiting in the crowded hallway to get in. Big John himself was the first witness. Loaded for bear, he set the tone by charging the airlines with a “public-be-damned” attitude.
Every good congressional hearing needs a villain, a foil for congressional inquisition, and Northwest, the hub carrier at the Detroit debacle, was designated to play that role. Setting the stage for mediagenic outrage, the committee first called “victims” stranded on the tarmac to testify about their horrific experiences. Afterward, by the ritualistic choreography of Capitol Hill hearings, the designated villain or target—in this case, Northwest—appears to take its spanking. Except something surprising happened when Northwest showed up for the hearing’s continuation the following week: It didn’t follow the script. Instead, the carrier dispatched its senior VP and General Counsel, a polished and charismatic Harvard-trained advocate wise in the ways of the Hill. Northwest also got help from another witness, the Honorable Andrew Card. Identified modestly as a “Fellow” at the Chamber of Commerce, Card had served earlier as White House chief of staff to President George H. W. Bush and, before then, as the previous administration’s secretary of transportation. What a coincidence. The distinguished former cabinet secretary, “representing the interests of the business community,” made a lousy target for congressional diatribes.
Even tougher to attack were the “regular guy” Northwest employees positioned in the audience. Greg and Larry, for example, were two airline workers who had spent long hours with little or no sleep trying to clear snow during the Detroit blizzard. At an opportune moment in the presentation, the Northwest witness “casually” acknowledged the heroic pair to members of the committee. Then came a veteran Northwest pilot witness who had personally gone out of his way to help snowed-in passengers get home from the airport. As it emerged, the captain had actually escaped the worst of the Detroit tarmac strandings, having ridden in on a plane that managed to unload within one hour of landing to deal with a passenger medical emergency. That aside, in crisp uniform with four stripes on the sleeves, he looked every bit the senior airline captain.
The issue at the heart of the hearing seemed pretty simple: shouldn’t there be a law requiring airlines to let their passengers off a tarmac-bound plane after a specified time? Not so simple, said the airlines. In fact, it was really a question of vast complexity, fraught with implications for regulatory policy, the free market, and even aviation safety. Former secretary Card pronounced passenger-rights legislation to be “unnecessary intervention in the marketplace” that “might stifle innovation,” and warned darkly that it could “raise safety issues.”
Then the airline trade association’s distinguished General Counsel spoke up to announce that the airline industry was taking its own “voluntary” actions that would preempt and render superfluous any government rule. Precisely what were those? Counsel professed himself “very pleased to announce” that the airlines were “reaffirming their commitment to customer service” with a brand-new—wait for it!—Airline Customer Service “Commitment.” What this commitment really appeared to boil down to was a qualified promise that passengers would get flight delay and cancellation information that was “timely and accurate,” at least “to the extent … reasonably available.” They would also be told the lowest fare available if they asked. And passengers with confirmed reservations, a valid ticket, and who had “adhered to the airline’s policies” could “expect” not to be bumped from their flights.
Although nothing specific was promised about tarmac delays, this rather thin “commitment,” rolled out as hardly less than a consumer Magna Carta, at least gave an industry playing defense something to talk about. And lo and behold, it worked well enough to forestall immediate action. Airlines were apparently so impressed with the outcome that, three months later, with even greater fanfare, they scheduled a formal press conference to unveil a “plan” that included no fewer than twelve promises. They would assign an employee (sorry, a “special representative”) to handle passenger complaints. They would make “every reasonable effort” to provide food, water, restroom, and medical services during very long tarmac delays (without specifying how long a delay was too long), and they would try to return lost checked bags in 24 hours. And how about this? They would even “disclose” to fliers the airline’s rules on cancellation, frequent flier programs, and accommodating disabled passengers.
Building on the beneficence, Continental issued a press release announcing its own version of the plan, entitled “Customer First.” The airline applauded “the joint effort of the airline industry, the U.S. Congress, and the U.S. Department of Transportation to address the key service elements that most affect our customers.” If that weren’t caring enough, the airline added: “We want our customers to let us know how we’re doing by calling our Customer Care Department at 1-800-WECARE2.” The “Customer Care Department”? Who could impose job-killing regulation on such caring folks?
Hokey, perhaps, but in the end nobody legislated and nobody regulated tarmac delays for years to come. Instead, 22 months after the Detroit debacle, and just five days before the hotly contested presidential election of 2000, the DOT issued a one-page “fact sheet to help consumers” avoid flight delays. Among the handful of handy “tips”: fly early in the day, fly nonstop, and avoid “certain airports [that] are more congested than others.” Nothing said about multi-hour strandings, much less a regulation to limit them. Instead, DOT advised “defensive planning” by passengers, since “airline delays and cancellations are not unusual.” The government’s solution for consumers was to advise “defensive planning”?
Whether a tougher DOT would or could have done more is hard to know. The entire tarmac-delay issue went into deep freeze a year later when the September 11 terrorist attacks and recession made congestion delays the least of anybody’s worries. In the four years that followed, the priority was to save a critical industry. Tarmac delays and passenger rights, generally, dropped back down the agenda.
By 2007, though, air traffic had bounced back, airlines were again making money, and the economy was picking up. And with it all returned the crowding and delays. All it took for tarmac strandings to reemerge was a little bad weather, bad judgment, and bad luck. All of that came together on Valentine’s Day 2007 at New York’s crowded JFK Airport when an ice storm failed to change to a rainstorm as forecast. Even as the weather worsened, JetBlue kept boarding planes and pushing them back from boarding gates; meanwhile, other planes continued to land. What ensued was a cruel game of “musical gates” that left nine jets stranded on taxiways for up to ten hours with nowhere to go. Cue up the by-now-forgotten tales of screaming babies and overflowing toilets—and right in the media capital of the world! Better yet, the bad guy was the hippest, coolest airline around, a stylish newcomer that clad its pilots in blue, served organic potato chips, and vowed to humanize air travel.
Whereas Northwest initially retreated to a defensive crouch after its Detroit mess eight years earlier, JetBlue quickly did the opposite, issuing abject apologies to anyone who would listen. Within 48 hours, the airline’s CEO told every media outlet he could—from late-night Letter-man to early-morning financial cable news—that he was “mortified” and that “words cannot express how truly sorry we are.” One-upping the airline trade association’s “Customer Commitment”—the tack that helped forestall regulation eight years earlier—JetBlue issued a “Customers’ Bill of Rights.” The “bill” itself still focused on better informing passengers and compensating them for delays, but the airline also announced something new, even groundbreaking: pilots were instructed to return to the gate after five hours unless takeoff was imminent. Five hours is a very long time, but still it was a specific time period, the first that any of the traditional network airlines (except once-burned Northwest) would clearly embrace.
Nearly eclipsed by the JetBlue media frenzy was another stranding—remote from any Manhattan media hub—that had occurred just six weeks earlier. Bad weather forced American Flight 1348, headed to Dallas, to divert to Austin, where it sat on the tarmac for nearly nine hours. Airlines didn’t know it at the time, but among the outraged strandees was one who would become the carriers’ arch-nemesis in the tarmac regulation fight. Kate Hanni, an Internet-savvy real estate agent from California, had been traveling on the stranded flight with her husband and two kids to an Alabama resort.
Well-heeled, well-spoken, and ill-used by the airlines, this mom soon became a minor celebrity, and the airlines’ worst nightmare. She launched a website, FlyersRights.org. She organized a “strand-in” protest on the National Mall in Washington, using a mock-up of a jet cabin. She even came up with a theme song—an adaptation of the Animals’ 1965 hit called “We Gotta Get Out of This Plane.” She enlisted her California congressman in an anti-stranding crusade, haunted Washington, and did lots of TV trying to build a grassroots push to “fix” extended delays. Maybe she couldn’t tell an aileron from an elevator, but Hanni had a clear goal: a “Bill of Rights” for air travelers that included a three-hour deadline for airlines to get their stranded passengers back to the gate. Ms. Smith Goes to Washington.
Between JetBlue and Hanni and a nasty resurgence of flight delays (still averaging five every day in 2007), the George W. Bush DOT faced new calls for a tarmac rule that had teeth. Yet the Department, led by a former Arizona transportation director best known for privatizing highways and encouraging motorcycle helmets, was, to put it gently, in no rush to regulate. In time-honored Washington fashion, DOT called for more study of the stranding problem by its nonpartisan Inspector General. It didn’t take long for the Inspector General to return with a clear recommendation: Airlines should specify a time limit—a number of hours—after which they will deplane passengers. It was essentially what Congress and regulators had pressed for eight years earlier.
Testifying before an impatient Senate panel two days later, on September 27, 2007, the acting head of the FAA could only respond that a “senior staff working group” was “well along in its consideration of various alternatives” and professed that “something must be done to minimize” strandings. Still, airlines betting the outgoing Bush DOT would keep “slow-walking” the issue were proven right when the agency kicked the can again. Instead of proposing a rule, DOT announced that it was thinking about proposing a rule—but professed it first needed to hear from the public. What did DOT not know about the problem nearly a full decade since the Detroit blizzard? The first two questions that DOT posed to the public in its notice hardly suggested that a tough rule would emerge: “What costs would (a rule) impose on [airlines]? Would it have any negative consequences?”
DOT also used another timeworn Washington tactic to buy more time: create a “commission” to undertake even further study. (In fairness, the Inspector General’s 2007 report had suggested as much, though this suggestion was far down the list of its more action-focused recommendations.) The rather grandly named “National Task Force to Develop Draft Model Contingency Plans,” populated by three dozen semi-senior airline officials, airport executives, and trade association lobbyists, plus Hanni and one or two other consumerists, was chaired by the lawyer in charge of DOT’s aviation consumer office. Although the group toiled throughout 2008, it quickly became apparent that nothing like an agreed time limit for getting stranded passengers off planes—not even a “voluntary” rule—would emerge. The ultimate report, issued just a week after the election of Barack Obama, carefully emphasized that it was merely “advisory in nature” and that tarmac deplaning timing issues were extraordinarily complex. A week later, a frustrated New York Times editorialized that the DOT task force, “stacked with airline and airport executives … treated the definition of a lengthy delay as if it were some conundrum of astrophysics.” The Times predicted: “Surely the incoming administration will be less captive to industry on this issue.”
The time for regulatory foot-dragging had just about elapsed. On Capitol Hill, senators Barbara Boxer and Olympia Snowe impatiently asked the DOT secretary flat-out to set a maximum of three hours for deplaning passengers caught in tarmac delays, since “voluntary” airline plans would be “completely ineffective.” Just six weeks before the Obama inauguration, in one of its last major regulatory acts, the Bush DOT on December 8, 2008, finally proposed a tarmac-delay rule—without any specific time limit on deplaning stranded passengers. For nine years since Detroit, the airlines had succeeded in holding the line against what their trade association called a “hard and fast” rule.
The new administration had different ideas. Less hesitant to regulate and facing an upswing in air traffic and delays, the new DOT didn’t take long. In January 2009, senators Boxer and Snowe reintroduced a “Passengers’ Bill of Rights” that would force airlines to unload passengers after three hours, and Kate Hanni’s California congressman, Mike Thompson, introduced a companion bill in the House of Representatives. Senate Democrats also tried unsuccessfully to tack the three-hour rule to a long-stalled bill to fund the FAA. Meanwhile, a USA Today analysis in August 2009 found that extreme tarmac delays were not all that rare: nearly 200,000 domestic passengers had suffered them in the previous two and a half years. The tarmac-delay issue was, as they say in Washington, “gaining traction”—just as the Obama DOT’s new political appointees were measuring their drapes and looking to become “change agents.”
For the airlines, it was long past time to change the playbook. Policy arguments against “micromanagement” or “government intrusion” that resonated with Republican think tanks were largely ineffective. More persuasive was the fact that multi-hour tarmac strandings just kept happening. One of the worst occurred on August 8, 2009, when 47 passengers were held overnight in Rochester, Minnesota (population 106,000), for six hours—not just aboard a “normal”-sized jet, but aboard a very cramped, 50-seat, one-toilet commuter plane. En route from Houston to Minneapolis, thunderstorms forced Continental Express 2816 to land at midnight at the small airport, and there it sat for the entire night, just 50 yards from the terminal. An angry DOT issued its first ever “stranding” penalties—$175,000, part to the airlines involved, part to the ground-handling servicer—and a warning from the new secretary of transportation, a former congressman known for the “common touch” with constituents. Secretary Ray LaHood wrote on his blog: “Reasonable people are outraged.”
With the regulatory winds shifting ominously, in September 2009, the head of the airline trade association and his top lawyer quietly paid a “courtesy call” on DOT’s newly confirmed General Counsel. According to a memo of the meeting, the executives suggested that the industry just “might be prepared to agree to a firm time limit on tarmac delays.” DOT’s new top lawyer, Robert Rivkin, told them to send it in writing. By all indications, no such letter arrived.
Even with regulatory action seemingly imminent, the drawn-out Washington process seemed unable to conclude without a little more posturing on all sides. Robert Crandall, the former CEO of American Airlines and an iconic figure in the aviation industry, broke ranks to support a tarmac-delay rule. “Every responsible airline executive … thinks these things are an outrage,” Crandall intoned. Meanwhile, Hanni sued Delta Airlines and a consulting firm for $11 million, claiming they had hacked into her computer. And Continental Airlines’ CEO, Jeff Smisek, labeled DOT’s anticipated tarmac-delay rule “very stupid” and “inane.”
With dialogue deteriorating and vitriol rising, DOT mercifully put an end—more or less—to the debate. On December 30, 2009, nearly 11 years after the Detroit snowstorm strandings, it issued the long-awaited tarmac-delay regulation. With some exceptions for safety and security, the final rule did what consumers and Congress had asked for in 1999. It required airlines to get stranded passengers off planes after a specific period of time: three hours.
Tarmac strandings essentially ended. In the rule’s first year, starting in May 2010, only 20 domestic flights sat on the runway for more than three hours compared to nearly 700 in the same period the previous year. And despite the dire warnings, the rule triggered no financial calamity for the airlines. DOT responded aggressively when airline-friendly consultants issued an alarming report, based on only one month of experience with the new rule, that it would cost the industry $200 million a year and impel airlines fearing heavy fines to cancel flights prematurely. In an unusual official statement, DOT quickly branded the study “misleading and premature.” (On the other hand, the critics were at least partly vindicated when a GAO report more than a year later agreed that the rule would indeed increase the likelihood of cancellations beyond expectations, though also reducing hardship for stranded passengers.)
Neither did regulators run wild in the streets penalizing airlines for exceeding the three-hour limit as opponents had claimed to fear. During the entire first year of the tarmac rule, in fact, only one airline was fined, albeit heavily. In November 2011, DOT penalized regional carrier American Eagle $900,000 for stranding 608 passengers on 15 different flights. Though the fine was a record, it was actually far less per stranded traveler—about $1,500 on average—than the $27,500 per passenger the airlines feared DOT might assess.
On Your Own
For all the political and legal tussling, all the hearings and heated rhetoric, all the reports and studies and commissions and working groups and regulatory twists and turns that preceded it, the tarmac-delay rule was at most a modest consumer victory. After all, extreme (three-hour) tarmac delays, for all their drama and media attention, are among the rarest of air-travel woes, affecting even in their very worst months fewer than one in a thousand flights. And far from a panacea, the new rule couldn’t stop the stranding of JetBlue’s Flight 504 in Hartford in October 2011—an incidental reminder that in today’s tightly scripted, interdependent aviation system, screwups can snowball no matter what the rules.
The tarmac-delay saga bespeaks a broader lesson for air travelers about what they can expect government to do to make air travel less difficult. Surely, the tarmac rule should have been far easier to accomplish. After all, it had all the right ingredients: logic, public outrage, media attention, sympathetic victims, attractive champions, angry and engaged political leaders, and an overconfident industry that didn’t know when to fold ’em. If this issue of extended tarmac incarceration took a decade’s bloody battle to fix, what kind of heroism would be needed to deal with much more ordinary hassles of air travel?
The skirmish over the tarmac rule is only part of an ongoing struggle between consumer regulators and industry—a conflict that seems to have grown more antagonistic, even angry, over the last several years. Airlines decry “the crushing and increasing burden of new government rules,” and warn darkly of government “regulatory tentacles,” Washington pundits opine in industry journals that DOT has become a “rulemaking machine” that is “working against [the airlines] at every step.”
Especially irksome to some in the industry is regulators’ push since 2010 for more “transparency” in the information that consumers get from airlines, particularly about airfares. In a world of fast-changing prices, obscure fees and surcharges, and “buy now” sales pitches, helping fliers better comparison-shop effectively bolsters consumers’ bargaining power. Though fare advertising rules don’t dictate core airline business functions, the annoyingly detailed proscriptions on how airlines can advertise—what taxes and fees must be included in quoted fares, where and when checked-bag and other ancillary fees must be disclosed—have triggered a firestorm of industry opposition. That included a federal lawsuit and legislation proposed by Rep. Tom Graves (R-GA) and co-sponsored by Rep. Ron Paul (R-TX) and others that advanced the theory that DOT was trying to “hide the government’s taxes and fees” as part of a “hidden agenda,” in one carrier’s words, to raise taxes.
A new rule giving consumers 24 hours to cancel or change purchased tickets so frosted ultra-low-cost Spirit that the airline imposed a $2 surcharge on all flights, blaming DOT for the “unintended consequences fee.” And there aren’t many rules the industry doesn’t find intolerably intrusive—even true no-brainers like requiring airlines that lose your bags to refund your checked-bag fees. The perennial antagonism about regulation speaks to the broader relationship between the feds and the airline industry—a relationship that is alternately, sometimes simultaneously, collaborative and combative, dependent and resistant. Parents of adolescents will understand.
US airlines grew and prospered under the protective cloak of government—early on, when close oversight by safety regulators reassured nervous fliers that it was OK to go aloft in that contraption, later when economic regulators essentially set fares to ensure a healthy profit margin, more recently when $5 billion in federal grants (and up to $10 billion available in loan guarantees) bailed out the industry after 9/11. And billions of dollars go every year to improve airline efficiency (and profitability) with better air traffic control, better airports, more access to foreign markets, and keeping airline customers feeling safe and secure. For years, the FAA even had an explicit “dual” legal mandate—both to regulate and to promote aviation. Nor is the industry shy about asking for help. In April 2012, Delta’s CEO, Richard Anderson, urged a “national airline policy” to support the airline industry, not just a national aviation policy.
At the same moment, the industry, to paraphrase Greta Garbo, just wants to be left alone. “We ought to be able to run like any other business,” says the head of Airlines for America. United’s CEO, Jeff Smisek (after Continental and United merged), was even more direct in a 2010 J.P.Morgan aviation conference: “The day I rely on government to help this industry you should make sure that I get fired. Look, my goal in Washington is just to prevent them from doing more harm. And candidly what I’d like them to do is just leave us alone for a while. Because every time they try to make things better they just make things worse.”
However strange or strained the relationship between the airlines and government when it comes to regulation, the implication for ordinary air travelers is relatively simple. The bloody, drawn-out saga behind the tarmac-delay rule reminds us that any notion that Washington can or will fix all the excesses and discomforts of today’s air-travel experience is wishful thinking. The DOT concedes as much, succinctly, in its Consumer Guide to Air Travel. The online advisory offers travelers a kind of subtle warning: “In this new commercial environment, consumers have had to take a more active role.…” Put more simply, if you have a problem with air travel, don’t expect the feds to come charging in.
And good luck.