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BEFORE THE UNITED STATES DEPARTMENT OF TRANSPORTATION WASHINGTON, DC

RESPONSE OF FLYERSRIGHTS.ORG TO THE MOTION OF AIRLINES FOR AMERICA AND REGIONAL AIRLINES ASSOCIATION (“AIRLINES”) FOR A TEMPORARY EXEMPTION FROM 14 C.F.R. 259.4 (AKA LENGTHY TARMAC DELAY OR “3 HOUR RULE”) Docket DOT

- OST

- 2013

- 0084 Dated: April 25, 2013 FlyersRights.org, the largest nonprofit airline passenger organization with over 25,000 members, strongly opposes the subject motion by the Airlines to be exempted from the 3 ho ur rule and urges the DOT to deny the Airlines ’ April 19 th , 2013 request in its entirety and to instead undertake alternative measures proposed herein

. This pr oposed exemption is unnecessary , i r r e s p o n s i b l e and clearly not in the public interest. I f granted it would only aggravate flight delay s , impose incredible hardships on passengers who could be confined on the tarmac in aircraft for 3 to 12 hours without adequate water, food, or toilet facilities as occurred prior to the 3 hour rule to 150,000 to 250,000 passengers per year a s w e l l a s damage the international reputation of the US airline industry, the DOT, and the Uni ted States
Government

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I. The projected delays from sequestration furloughs, the sole justification for the requested exemption, are highly specu lative and unknown at this time

. So far since the ATC cut backs began on April 21 s t , flight delays been far less than projected even at hub airports. See testimony of Michael Huerta to the Congress on April 24, 2013, related news reports, Flightstats.co m and www.fly.faa.gov

. But even if the del ays are as serious as predicted, the Airlines do not ex p lain how giving them the power to hold pass engers captive on the tarmac in deplorable conditions, depriving them of th eir freedom, and preventing them from obtaining alternative transportation or abandoning their trips will help the situ ation, rather than aggravate it.

I I

. The Airlines and airports have had more than ample time to prepare and practice contingency plans for lengthy delays or disruptions of normal flight
opera tions regardless of the cause, and existing exceptions in the 3 Hour Rule already provide Airlines with adequate flexibility

. Starting in at least 2001 Airlines f i r s t committed to and were then obligated to not hold passengers for lengthy time periods on the tarmac

. T h i s o c c u r r e d after a 1999 mass stranding of up to 10 hours of 4,500 Northwest Airlines passen gers in3

Detroit in a sn ow storm . That incident received national public , DOT and Congressional attention r e s u l t i n g i n a prom ise by Airlines to voluntarily curb such practices with contingency plans. I n 2 0 0 7 t h e D O T I n s p e c t o r G e n e r a l t e s t i f i e d b e f o r e C o n g r e s s a n d r e p o r t e d t h a t m a n y a i r l i n e s h a d f a i l e d t o m e e t t h e i r

c o m m i t m e n t s n o t t o e n g a g e i n l e n g t h y t a r m a c c o n f i n e m e n t s . In 2008, a D OT National Task Force developed model “Contingency Plans for Lengthy Airline On

Board Ground Delays” issued 11/12/2008. A nd a s of 2010 and 2011, a l l airlines were requi red to file and post contingency plans for lengthy tarmac delays. See 14 C.F.R. 259.4, DOT

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- 2010

- 0140, 76 FR 23164, Apr. 25, 2011. A irports have also been required to file and post contingency plans for lengthy tarmac delays. Major hub airports suc h as JFK have a l s o had in place contingency plans to assist airlines in deplaning passengers and providing them with extra gates, food, potable water and sanitation facilities for over six years.
After a l l t h i s a i r l i n e foot dragging and failure to adequ ately plan for disruptions , Congress specifically mandated in the FAA Modernization and Reform Act of 2012 that airlines and airports submit to the DOT Secretary for approval delay contingency plans by May 14, 2012.4

H o w e v e r , t h e A i r l i n e s n o w c l a i m a f t e r a l l t h i s t i m e t h e y a r e s t i l l u n p r e p a r e d

. W e

s u g g e s t t h a t t h i s r e v e l a t i o n s h o w s t h a t t h e D O T n e e d s t o m a n d a t e t h a t a i r l i n e s

a c t u a l l y t e s t a n d p r a c t i c e t h e i r p l a n s a n d a c t i v e l y t r a i n t h e i r e m p l o y e e s t o e x e c u t e
t h e i r p l a n s e f f e c t i v e l y a n d e f f i c i e n t l y .
S equestration (Budget Control Act of 2011) has been the law for nearly two years, the FAA and DOT provided general notice of the cutbacks to ATC over 4 mont hs ago and have provided progressively more specific updates.
Contingency plans b y l a w a r e r e q u i r e d t o include at a minimum allowing passengers t o deplane after 3 hours for domestic flights and 4 hours for international flights. Passengers must also be provided with operable lavatory facilities, medical attention, food and potable water after 2 hours. Exception s include situations where there is a safety

- related or security

- related reason such as weather why passengers cannot be deplaned as determined by the pilot

- in

command or where air traffic control advises the pilot that deplaning passengers would significantly disrupt airport operations.
Airlines are also required to have had their contingency plans coordinated with airport authorities, US Customs and Border Protection, and the Transportation Security Administration.5

Accordingly, the Rule already provides f or reasonab le exceptions to cover the present situation.

II I

. The requested exemption would impose enormous additional costs on passengers far in excess of any added costs on airlines. Assuming that 100,000 passengers would be subject to tarmac confinements of 5 hours between no w and Sept. 30 , 2013, the amount victimized by such practices for airlines commercial conven ience prior to the 3 Hour Rule, and assuming that their time is valued at $80 per hour, less than the compensation of flight crew member s , there would be a direct cost of at least $16 Million. The consequential
cost of missing important business and personal engagements is o f c o u r s e

enorm ously greater.
Airlines normally incur minimal flight crew costs when planes return to the gate or flights are cance led as these employee s are paid only nominal wages unless the aircraft door is closed and the aircraft has pulled away from the gate. In general it costs an airline more in flight pay to confine passengers on the tarmac than to deplane after 3 hours.
However, passengers are generally not entitled under airline contracts of carriage and court decisions to c ompensation for flight delays, even from lengthy tarmac6

confinements

. S o airlines have a financial incentive to confine passengers to prevent them from canceling their trip and demanding a refund or alternate transportation

. This is known in the industry as mitigation of “passenger migration.” See gen. Paul S. Hudson, Airline Passenger Tarmac Confinements and Delays: Reasonable Regulation Trumps Market Forces, ABA Air & S pace Lawyer, Vol. 23, No. 2, 2010; testimony of FlyersRights.org and Aviation Consumer Action Project to the DOT Advisory Committee for Aviation Consumer Protection, 6/6/2012; Scott McCartney, Passenger Rights? What Passenger Rights? , Wall Street Journal, 3/28/2013, p. D3. The Airlines do not and cannot explain how an exemption fro m the 3 hour rule would be in the public interest or even in the airlines’ best interest.

IV . There are ample alternatives to mitigate or eliminate flight delays which could be caused by sequestration budget cuts.
These include: 1. Staffing busy hub airports with little or no cutbacks of ATC and providing for greater cutbacks at less busy airports. This would minimize the domino effect of flight delays at choke points such as New York City, Chicago, Atlanta or Dallas may have on national air traffic.7

2. Reinstitute Rule 240 requiring airlines to honor tickets of another airlin e when it has empty seats where the other airline’s flight has been canceled or excessively delaye d to the same or nearby destination

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3. Declare a moratorium on change and cancelation fees where a flight is delayed over 2 hours. 4. Consolidate multiple flights to the same destination using larger aircraft to carry the same number of passengers, reducing congestion at many hub airports. 5. Divert flights to nearby less used airports when congesting causes excessive delays and pr ovide for ground transportation to original airport or other
connections. None of these require legislative or court action, and could be undertaken by DOT/FAA action and/or airlines voluntarily. Accordingly, the motion for an exemption from the 3 Hour Rul e should be denied and the alternatives proposed herein adopted to mitigate sequestration delays. Respectfully submitted, /s/ Paul S. Hudson8

President, FlyersRights.org 4411 Bee Ridge Rd. #274 Sarasota, Florida 34233 800

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- 1923 pshudson@yahoo.com paul@flyersrights.org