Comments from: 

Paul Hudson, Executive Director 

Aviation Consumer Action Project (ACAP) 

The Meeting on Thursday June 28th contained some interesting 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 violation 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 which is staffed with lawyers the complaints that Norm 

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 statistical purposes and perhaps a letter sent to the airline, 

asking them to respond. It is not proper for non-lawyers 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 involve any 

legal violations. 

3) there appears to be no transparency in the process by which DOT handles complaints, especially if the 

consumer is not sent a copy of the DOT letters to the airline, which then generally rejects the consumer 

complaint or claim. The Committee should get the full breakdown of the complaint handling process and 

compare it to the consumer complaint procedures used by AG and other state and local consumer 

protection offices. 

In NY, the AG consumer protection office issues a letter to the business demanding they provide a 

detailed response to the AG within a short time period, then shares that response with the complainant

and asks for his/her reply, then makes a decision whether to close the case or take further action against 

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 claim. The 

airline can remove any case in small claims court to federal district court merely by filing a notice of 

removal, and can also defend on lack of proper jurisdiction based lack of service or many other technical 

defenses. Most airlines will defend and once the case is in federal court, litigation expenses will far 

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 airline passengers file cases with small claims courts and 

the results. 

5) I made in Nov. 2011 a FOIA request for records of communications by pilots stranded on the tarmac 

at Hartford Airport in Oct. 2011 for over 3 hours and 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 should 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 airline passengers with any significant advice or legal 

information regarding their rights to compensation for delays or baggage claims under the Montreal 
Convention 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 virtually 

impossible to win. In essence, the contracts say that the airlines can pretty much do whatever they want 

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 requires that consumer contracts which are take it or leave 

it, and are labeled contracts of adhesion, can be strictly regulated and cannot be illusory or 

unconscionable. However, under the federal preemption doctrine such state consumer contract law 

doctrines have been ruled preempted state law and therefore not applicable to airlines, making it even

more necessary for DOT to regulate such contracts under its broad power to prevent unfairness or 

deceptive practices. The DOT could adopt FTC, FCC and other consumer protection agency regs that 

have wrestled with these issues, or even cede its primary jurisdiction over such matters to the FTC. 

10) In general, I believe more than ever there needs to be oversight of the Consumer Protection Division 

and a program audit, top to bottom by the GAO or other outside experts in consumer protection agency 

operations. It may show that reallocation of resources and a reorganization with new leadership is long 

overdue. As matters now stand it is largely a fig leaf hiding the naked truth. Chm. Madigan with her staff 

with help from NAAG, other consumer organizations can certainly remove the fig leaf and set forth legal 

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 traveler into the mainstream of consumer protection law and 

rights. 

11) ACAP generally support the suggestions and proposals of the other consumer organizations that 

made presentations at the June 28th meeting, with the exception of the suggestion of Jack Corbett that

the DOT IG do a two year study. This would be reneging 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. Moreover, the DOT has long history of ignoring its IG 

reports regarding lack of enforcement tarmac confinement abuses by airlines. Furthermore, there has 

been no really active IG at DOT for the past 5 years. 

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 impossible for non profits to participate. Advisory 

committee members should receive $500 per day for their time on committee business plus the same 

travel, lodging and meal allowances as federal workers, otherwise we have a pay to play system. 

The agendas of FAA advisory committees, their membership, 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 should be required to accept or deny such proposals. 

This Committee is of course different because it has a broad Congressional charter and mandate to 

examine the existing DOT consumer protection and propose 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 proprietory information. This means the safety net that 

the rules provide for is not as strong as the public assumes because it is riddled with waivers and 

exemptions. All waivers and exemptions from DOT regs should be public and strictly limited as to 

duration.