If an airline keeps passengers cooped up in the airplane for more than three hours waiting to take off in New York state, it’s going to cost them, according to a “Passenger Bill of Rights” passed by the legislature last year and which takes effect this month.

The New York legislation was challenged in court by the Air Transport Association (ATA), a trade association representing airlines that carry about 90% of the passengers in the United States. In a 20 December 2007 decision, the U.S. District Court for the Northern District of New York rebuffed the ATA petition for relief, asserting that excessive runway delays pose a health and safety issue for the passengers that require the airlines to take action. The New York law contains a penalty of $1,000 per violation, which means excessive periods without water and other amenities could cost the airlines that amount per passenger. Given, say, a 100 passenger jet fully booked, a total fine of $100,000 could be expected – providing a big stimulus to avoid lengthy delays of loaded airplanes.

The legislation is an outgrowth of the situation aboard American Airlines flight 1348 at Austin, Texas, in December 2006. The airplane waited almost nine hours on the tarmac, during which time the lavatories clogged up and the only food given to passengers were pretzel snacks (see Air Accident Digest for February 2007, p. 12, in archives section). According to Kate Hanni, one of the passengers on that flight, “Never again should anyone be left in a plane without information, without food, with toxic air, overflowing toilets, no remuneration and no explanation.”

She and other passengers who have been in similar situations formed a group to push Congress to enact legislation preventing such abuse of passengers (see www.flyersrights.com). In March 2007, New York-based JetBlue Airways published a “Customer Bill of Rights” after a fiasco involving passengers stranded on airplanes for hours during a snowstorm. The JetBlue policy offers compensation from $25 to $1,000 to passengers kept waiting by the airline’s own mistakes (see Air Accident Digest, March 2007, p. 23, in the archives section). That’s not good enough, argues Hanni, because even though the JetBlue policy is laudable, it’s a company response to an industry-wide problem.

While a passenger bill of rights languishes in the U.S. Congress (the House has passed a bill and the Senate is expected to do so next month), various states have passed, or are about to pass, legislation to protect passengers from abusive treatment by the airlines.

“The decision in New York was a huge victory,” said Hanni. “Hopefully, this will pressure the Federal Government to act quickly.”

“We believe that the civil penalties are so stiff [in the New York law] that the airlines will ask the Federal Government to intervene and pass their own bill as quickly as possible because of their own fear of the huge penalties at the state level,” Hanni said. “What we believe will happen is a negotiation of the federal law to have lower civil penalties with more items like deplanement and refreshment, etcetera.”

Pending action by Congress, herewith are extended extracts of the court’s decision in New York:

“The statutes (hereinafter referred to collectively as the ‘Passenger Bill of Rights’) are to go into effect January 1, 2008 and concern on-board services which must be provided to passengers if delays result in more than three hours on board the airplane prior to takeoff. The substantive provisions of the Passenger Bill of Rights state:

“1. Whenever airline passengers have boarded an aircraft and are delayed for more than three hours on the aircraft prior to takeoff, the carrier shall ensure that passengers are provided as needed with:

• electric generation service to provide temporary power for fresh air and lights
• waste removal service in order to service the holding tanks for on-board restrooms; and
• adequate food and drinking water and other refreshments.

“2. All carriers shall provide clear and conspicuous notice on consumer complaint contact information …the following”

• a telephone number and mailing address of the office of the airline consumer advocate, the aviation consumer protection division, and the office of aviation enforcement of the United States department of transportation;
• explanation of the rights of airline passengers; and
• basic information on the office of the airline consumer advocate.

“The statute authorizes the Attorney General to seek civil penalties of up to $1,000 per violation. …

“Plaintiff [the Air Transport Association] contends that the Passenger Bill of Rights is preempted by the Airline Deregulation Act of 1978 (‘ADA’) …

“The Passenger Bill of Right is an exercise in state protection of the public health. Fresh air, water, sanitation and food are necessities in the extreme situation in which this act applies. It threatens the public health to contain people on grounded airplanes for hours without these necessities, particularly, though not exclusively, if passengers include diabetics, young children, the sick or the frail. …

“The legislative record of the bill demonstrates that the purpose of the ADA was to foster ‘a regulatory and economic environment which will encourage the realistic threat of competition, facilitate entry into markets by qualified firms and develop market incentives to lower costs and better efficiency by existing and new carriers.’ …

“The text of the ADA notes that states ‘may not enact or enforce a law, regulation, or other provision … related to a price, route, or service of an air carrier.’ Plaintiff argues that the Passenger Bill of Rights ‘specifically and directly regulates the services provided by air carriers’ and is thus preempted. …

“However, while the definition of services is unresolved, this controversy does not directly implicate the matter presently before the Court. The provision of fresh air, water, food and bathroom access to passengers who have spent three hours confined on a runway is not within either definition of ‘services’ … the provision of fresh air, water, food and lavatory access to passengers trapped for hours on a motionless plane is a health and safety issue. …

“The policy goal of the ADA was to increase competition … Therefore, states are forbidden from regulating consumer choice issues, which might affect the airline industry’s responsiveness to the market and, thus, frustrate the purpose of the ADA. However, the provisions of the Passenger Bill of Rights are not consumer choice issues; they are consumer health and safety issues. As consumer health issues, the provisions of the Passenger Bill of Rights are outside the scope of the ADA, irrelevant to the purposes of the ADA, and beyond its preemptive reach. …

“Accordingly, the Passenger Bill of Rights is not preempted by the ADA. … The above analysis makes Plaintiff’s Motion for preliminary injunction moot. Accordingly, it must be denied.”

As indicated, the matter at hand is that of health and safety, which falls under the state’s powers unless preempted. The state legislature did not intend to regulate the activities of the airlines other than provide for the well-being of passengers trapped on board for more than three hours. Had the law not been so narrow in its scope (water, food), the court likely would have ruled otherwise.