Thursday, October 21, 2021

What’s behind the White House’s new airline policy?

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Welcome to COVID-19. This periodic feature analyzes the politics of airline travel and how it shapes our lives. We examine the dynamics of the debate in a variety of ways, from airline customer surveys to rising consumer satisfaction. We tackle it from the perspectives of agents, passengers, airlines, airlines’ investors, journalists, science, safety and economy.

JANE VITTA

As the rough town-hall style confirmation hearings conclude and supporters and opponents step back, a broader political lens must be seen from which to analyze the ongoing conflict between Congress and the executive branch over the nature of air travel. In light of the Senate’s filibuster buttslamming of the nomination of Samuel L. Alito Jr. to the Supreme Court, this week’s action by President Obama on airline travel may not mean the world depends upon him so much as it reflects the reality of a new Congress and the fact that the public is divided along the lines of partisan politics.

On Monday, President Obama signed an executive order calling for passenger “reasonable delays” in travel in order to accommodate millions of Americans who are still waiting for federal waivers from several government-issued waiver requirements, which, in many cases, vary widely from one airline to another. In fact, the majority of airlines now use the waivers that the White House deemed “reasonable” to operate.

Passengers have to remember that this executive order was signed “on their behalf,” so they have nothing to lose by declining to cooperate with these waivers – rather they should get creative to figure out which waiver would work best for them, as the rule now says they can have additional time off for a holiday or difficult travel occasion but they must volunteer for more time off. However, I would caution against trying to match one airline with another, as there is a lot of back-and-forth between airlines and Transportation Security Administration enforcement of the term “reasonable delay.” The airlines have their own version of it and they are often at odds with the government, whose version, depending on the department, is more lenient or more enforceable. The airlines, especially those that operate smaller aircraft, are flexible but the security agents (TSA) are trained to enforce what TSA says is reasonable delay. With the less trained security agents, there are much more variables at play. For example, should people who have chosen to delay flying because they have children have to forfeit the entire trip? If the child was admitted, does that mean all the other passengers on that flight are excluded?

The order also raises interesting questions about how a flight that was delayed should be handled when it is initially reported as a “normal” flight, and in which circumstances a person is personally inconvenienced and becomes annoyed or angry. One can understand a person contacting the airline, claiming that his flight was deliberately delayed or felt forced to wait for an overbooked flight. However, what are the options? The delay could have been completely appropriate, but the situation could still have been used against the airline, as the times at which the flight could be trusted to be delayed is very specific and heavily regulated by the airlines themselves (do they have the ability to cancel the flight? Do they have the ability to allow more time for an overbooked flight to deplane those waiting at the gate? Is an emergency evacuation enough time?). Again, I would say that if all three of those criteria – reasonable delay, a confirmed overbooked flight and an annoying or angry passenger – are met, then an airline will allow delay (and often, that’s all it takes). The extent to which the dispute escalates from there can influence where the airline chooses to push the boundaries of their generosity.

Regardless of whether or not the executive order can result in an immediate policy shift, it is helpful to place it in the context of airline passenger contracts of carriage that have been negotiated over the past decades by millions of passengers and airlines across the country. Not only is the contract of carriage similar in state to the current executive order, it is more inclusive and lengthy and designed to cover situations in which the airlines are forced to “time-zone coordinate.” I suspect there is a level of agreement that can be reached where airlines and passengers can work together to provide air travelers with a more predictable, hassle-free experience when they choose to take to the skies. But if airlines and passengers are unwilling to work together – and this is where Congress comes in – passengers have little choice but to take matters into their own hands.

The author is a lawyer at Susman Godfrey, and blogs about travel and immigration issues at Journeyin.com.

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