Comments from:

Paul Hudson, Executive Director Aviation Consumer Action Project (ACAP)

The Meeting on Thursday June 28th contained some i nteresting statements by DOT officials Norman Strickland and others that should be followed up by the Aviation Consumer Protection Advisory Committee including

1) that DOT has received 300 complaints of violatio n of the 3 hour rule since April 2010 but this has resulted in only 1 or 2 enforcement actions.

2) that DOT only refers to its enforcement office w hich is staffed with lawyers the complaints that No rm Strickland's non-legal staffed consumer protection group feels violate DOT regs., and the rest (which would seem to be over 99%) are logged for statistic al purposes and perhaps a letter sent to the airlin e, asking them to respond. It is not proper for non-la wyers to be making legal judgments without close oversight by legal staff, and it is hard to believe such a large proportion of complaints don't involv e any legal violations.

3) there appears to be no transparency in the proce ss by which DOT handles complaints, especially if t he consumer is not sent a copy of the DOT letters to t he airline, which then generally rejects the consum er complaint or claim. The Committee should get the fu ll breakdown of the complaint handling process and compare it to the consumer complaint procedures use d by AG and other state and local consumer protection offices.

In NY, the AG consumer protection office issues a l etter to the business demanding they provide a detailed response to the AG within a short time per iod, then shares that response with the complainant and asks for his/her reply, then makes a decision w hether to close the case or take further action aga inst

the business.

4) there seems to be a mistaken belief, encouraged by DOT staff and the DOT web site, that passengers can get relief in small claims courts. This is only true if the airline does not defend against the cl aim. The airline can remove any case in small claims court t o federal district court merely by filing a notice of removal, and can also defend on lack of proper juri sdiction based lack of service or many other techni cal

defenses. Most airlines will defend and once the ca se is in federal court, litigation expenses will fa r exceed any likely recovery. Airlines have liability insurance which generally covers legal defense expenses, and so their outside counsel has a strong incentive to run up attorney time. The committee should obtain the statistics showing how many airli ne passengers file cases with small claims courts a nd

the results.

5) I made in Nov. 2011 a FOIA request for records o f communications by pilots stranded on the tarmac at Hartford Airport in Oct. 2011 for over 3 hours a nd have been told it is not available and then that it may be posted on a website which has never occurred . I also subpoenaed records of alleged DOT investigation of the JetfBlue tarmac delays of 2/14 /07 and this was also denied by DOT counsel. This despite Executive Orders by President Obama in 2009 declaring new openness in records disclosure by federal agencies.

6) Letters of Investigation and Warning Letters sho uld be public or at least available under FOIA, but are apparently not under current DOT practice.

7) There was no indication that the DOT provides ai rline passengers with any significant advice or leg al information regarding their rights to compensation for delays or baggage claims under the MontrealConvention of 1999 for international air travel or under EC delay regs, or under domestic contracts of

carriage or under general law.

8) DOT should provide the COmmittee with stats on the complaints made that requested compensation and the compensation provided by the airline or its insurance. If this info is not presently collected it

needs to be.

9) Weasel wording in contracts of carriage are now the norm, making breach of contract actions virtual ly impossible to win. In essence, the contracts say th at the airlines can pretty much do whatever they wa nt to do, and any damages are limited to out of pocket expenses that the airline agrees to pay, with no provision for attorney fees. State common law requi res that consumer contracts which are take it or le ave it, and are labeled contracts of adhesion, can be s trictly regulated and cannot be illusory or unconscionable. However, under the federal preempti on doctrine such state consumer contract law doctrines have been ruled preempted state law and t herefore not applicable to airlines, making it even more necessary for DOT to regulate such contracts u nder its broad power to prevent unfairness or deceptive practices. The DOT could adopt FTC, FCC a nd other consumer protection agency regs that have wrestled with these issues, or even cede its p rimary jurisdiction over such matters to the FTC.

10) In general, I believe more than ever there need s to be oversight of the Consumer Protection Divisi on and a program audit, top to bottom by the GAO or ot her outside experts in consumer protection agency operations. It may show that reallocation of resour ces and a reorganization with new leadership is lon g overdue. As matters now stand it is largely a fig l eaf hiding the naked truth. Chm. Madigan with her s taff with help from NAAG, other consumer organizations c an certainly remove the fig leaf and set forth lega l clothing for a new consumer code for air travelers. The whole area of aviation consumer protection has been sorely neglected for over 30 years with only occasional ad hoc regs when abuses became so great that there was a groundswell of public pressure and the airline industry lessens its opposition to watering down or postponing reforms. Recent studies of consumers have had airlines placed in lower public esteem than used car dealers. This does not require reinventing the wheel, just bringing the air travel er into the mainstream of consumer protection law a nd rights. 11) ACAP generally support the suggestions and prop osals of the other consumer organizations that made presentations at the June 28th meeting, with t he exception of the suggestion of Jack Corbett that the DOT IG do a two year study. This would be reneg ing on your mandate as well as cause unnecessary delay and would also be outside the jurisdiction of the IG which is for oversight and misconduct, not for a broad policy and legislatively mandated review. Mor eover, the DOT has long history of ignoring its IG reports regarding lack of enforcement tarmac confin ement abuses by airlines. Furthermore, there has been no really active IG at DOT for the past 5 year s.

OTHER REFORMS NEEDED

While the Fed. Adv. Comm. Act provides for per diem and travel expenses for members of advisory committees, FAA has denied this for many years for the Aviation Rulemaking Advisory Committee and other advisory committees making it difficult to im possible for non profits to participate. Advisory committee members should receive $500 per day for t heir time on committee business plus the same travel, lodging and meal allowances as federal work ers, otherwise we have a pay to play system.

The agendas of FAA advisory committees, their membe rship, meeting locations and times, and chairmanship are normally controlled by the agency officials. The Members should be able to propose issues and projects to the agency and the agency sh ould be required to accept or deny such proposals.

This Committee is of course different because it ha s a broad Congressional charter and mandate to examine the existing DOT consumer protection and pr opose changes.

Rulemaking petitions can be made by anyone, and the FAA or DOT does not have to act on them.Petitions should be reviewed promptly and a written response made to place them on track for public

comment or to reject them within 180 days.

Hundreds of waivers and exemptions from FAA safety rules are issued every year, most with no time limits, and many are kept secret based on alleged p roprietory information. This means the safety net t hat the rules provide for is not as strong as the publi c assumes because it is riddled with waivers and exemptions. All waivers and exemptions from DOT reg s should be public and strictly limited as to

duration.