Written Presentation of 

AirlinePassengers.org 

for June 28, 2012, Meeting of 

Advisory Committee for Aviation Consumer Protection

Washington, D.C. 

I am Jack Corbett, a director of AirlinePassengers.org, a non-profit educational 

organization1 established to serve as the “Voice for Airline Passenger Rights.” We 

thank you for the opportunity to present issues2 that this Advisory Committee 

should consider during its statutory two-plus years of operation. These comments 

also represent the views and positions of the Association for Airline Passenger 

Rights (AAPR).3

We are pleased that the Advisory Committee provision survived in the final FAA 

Reauthorization statute and, as importantly, are grateful for DOT Secretary 

LaHood’s being the most pro-consumer DOT Secretary since the Department was 

established in 1967. 

-- This Advisory Committee is Needed 

The first question worth addressing is “Is this Advisory Committee really needed?” 

The scheduled airlines have suggested that the recent statute and two existing sets 

of airline consumer regulations have already imposed more requirements on a 

seemingly deregulated industry than most other segments of our society receive. 

 

1 Chartered in the Commonwealth of Virginia; classified by the Internal Revenue Service as a section 

501(c)(3) educational organization. Our organization, with a Board of Directors and a Policy 

Advisory Committee, was activated in response to the 112th Congress’ having weakened in 

conference almost all of the airline passenger rights provisions in the House and Senate versions of 

the recently-enacted FAA Reauthorization Act. 

2 The Advisory Committee is to submit to the DOT Secretary not later than October 15, 2012, and 

again by October 15, 2013, a summary of its recommendations concerning any needed 

improvements to existing aviation consumer protection programs and the need for establishing any 

additional aviation consumer protection programs, and for the DOT Secretary thereafter to report to 

Congress annually, but not later than February 1, 2013, and February 1, 2014, on how he/she has 

implemented each of the Advisory Committee’s recommendations, and, for each recommendation 

not implemented, the reasons for not implementing the recommendation.

3 http://www.flyfriendlyskies.com/

P.O. Box 42142, Washington, D.C. 20015 Reply to: contact@airlinepassengers.org
Our answer is “Yes, this Advisory Committee is needed” for two important 

reasons. First, there are a number of airline consumer issues that still need Federal 

regulatory or statutory solutions, and we hope to identify them as your work 

progresses. 

Second, if the Federal Government doesn’t act to protect airline consumers in these 

remaining areas, it just won’t happen. Why? Because the Federal Aviation Act 

“preempts” state and local governments from regulating airline prices, routes and 

services and the Federal courts have interpreted the term “services” too broadly to 

cover almost anything that happens to passengers in an airline aircraft. We’ll come 

back to the preemption issue later. 

What issues do we most hear about from airline passengers? Number one is 

frustration with TSA’s passenger and baggage screening operations, but your 

Committee doesn’t have jurisdiction over TSA matters. 

-- Comparison Shopping for Airline Fares and Hidden Ancillary Charges 

Issue number two is consumer confusion in calculating the total cost of flying, since 

the airlines are resisting sharing all of the information consumers need about the 

airlines’ now-unbundled ancillary fees so that they can easily determine the total 

cost to fly and, as important, to compare costs between competing carriers in a sideby-side fashion. 

Transparency is a huge issue. One of the major benefits of this internet era has been 

the airline consumer’s ability to compare each airline’s prices against competing 

carriers’ prices and quality of service to determine the best deal. The carriers’ push 

to force consumers to visit each airline’s webpage to calculate fares and ancillary 

fees and thus to lose the advantage of side-by-side comparisons is a major loss. We 

are sure that comparison-shopping has saved airline passengers billions of dollars 

over the years. 

We are disappointed that DOT’s third airline consumer protection NPRM – one that 

proposes to regulate the issue of hidden airline ancillary fees -- has been delayed, 

and that any final regulation won’t now be published until sometime after Spring 

2013. That will be five years since the carriers started aggressively adding their 

somewhat-hidden ancillary fees, disadvantaging airline customers. This 

Committee should urge DOT not to let this proposed rulemaking – relating to 

side-by-side comparison of airline fares and fees by consumers - slip any 

further than absolutely necessary for all comments to be fairly considered. 
-- Legislation to Refund Unused Federal Aviation Ticket Taxes 

As everyone knows, the airlines are sensitive to Federal and local governments’ 

imposing aviation taxes and fees that collectively could total some 20% of the fare. 

Airline passengers have a similar concern on which we could use the Advisory 

Committee’s help. 

It irritates passengers who’ve purchased non-refundable airline tickets that they 

end up not using -- that Treasury retains all the Federal ticket taxes that have been 

prepaid by the passengers. There’s no problem with the airline retaining the nonrefundable fare – that was part of the deal for a lower fare – but why should 

Treasury not be able to refund all the prepaid and unused Federal ticket taxes? It 

could easily be as much as $50. on a long-haul flight.4 Specifically, we need your 

support in DOT’s report to Congress next February for amending the Federal

aviation tax statute to allow passengers to get refunds for Federal taxes paid 

on flights not taken.

-- Provisions in Carriers’ Contracts of Carriage Should be Made 

Enforceable 

Each of the last two DOT rulemakings has proposed that the airlines’ Contracts of 

Carriage – the promises they make to their passengers – be made enforceable by 

passengers. The last rulemaking proposed that the airlines’ customer service plans 

and tarmac delay contingency plans be incorporated into their Contracts of Carriage 

rather than just being posted on their webpages. Both times the airlines objected 

that they didn’t want to make those commitments legally enforceable by passengers 

so DOT decided not to require incorporation but to just require posting. 

DOT feared that if the provisions in Contracts of Carriage were really enforceable, 

airlines “might weaken existing plans” “to exclude certain key terms from their 

[current] plans.” That says it all: the carriers don’t want passengers to be able to 

enforce the provisions in their Contracts of Carriage in state courts. They want their 

behavior to be Federally “preempted” but then they also don’t want DOT to adopt 

additional regulations that would be enforceable directly by DOT. 

AirlinePassengers.org believes airline passengers should have some judicially 

enforceable rights in state courts in addition to DOT’s ability to impose civil 

penalties on airlines directly for unfair and deceptive practices under 49 U.S.C. 

41712. The Advisory Committee should request DOT ‘s Office of Inspector 

General over the next year (1) to review the airlines’ Contracts of Carriage to 

determine whether their provisions are often so hedged by legalese (e.g., “to 

the extent possible”) that “passenger rights” are not practically enforceable in 

 

4 The 7.5% domestic ticket tax plus $3.70 per flight segment tax would total $49 on a round-trip onestop domestic $500 fare. See enclosed February 22, 2011, AirlinePassengers.org letter to Hon. David 

Camp, Chairman of the House Ways and Means Committee. 
state courts (including small claims courts); and (2) to review past Federal 

litigation as to whether the Federal preemption of state regulation of airline 

“services” has been so broadly interpreted that it should be narrowed by 

Congress when the next FAA Reauthorization Act is enacted in 2015. 5

This legal analysis and the Advisory Committee’s review of its findings will take 

considerable time. If requested soon, this important project could be completed 

well before your Advisory Committee expires. 

The work of the Advisory Committee and the continuing attention of Secretary 

LaHood are very important because what this industry has achieved by 2012 is 

really highly anomalous within free market concepts. What airlines have is a high 

degree of deregulation with respect to themselves as producers, a necessarily high 

degree of Federal regulation closely limited to safety, and a high degree of 

regulation imposed on their customers with respect to enforcement of the economic 

aspects of the transaction. The current result is airline deregulation but with 

customers’ exercise of their legal rights negated by an overly broad Federal 

preemption scheme. It is difficult to imagine another branch of commerce in which 

customers are so highly proscribed in the limited, if any, remedies available to them 

for producers' breach of their obligations. 

 The hallmark of free markets in most cases is some mutuality of responsibility 

under the rule of law. If airlines truly wish to embrace deregulation and the benefits 

of enhanced competition they should welcome an adjustment in the 

pendulum swing that currently deprives their customers of any meaningful 

enforcement of the advantages each carrier claims over its competitors. 

Again, we appreciate the opportunity to present our initial suggestions for the 

Committee and hope to participate fully in all your future agenda items. For 

additional information, contact us at toll-free phone 1-855-AIRPASS (247-7277). 

 

5 See enclosed June 21, 2012, AirlinePassengers.org letter to Hon. Robert S. Rivkin, General Counsel of 

the U.S. Department of Transportation.