Amazing Race 11, Episode 1 (Passengers' Rights)

This column with links:
http://hasbrouck.org/blog/archives/001222.html

Complete index of columns on "The Amazing Race":
http://hasbrouck.org/amazingrace

===================================

The Amazing Race 11 (All-Star Edition), Episode 1

Miami, FL (USA) - Quito (Ecuador) - Cotopaxi National
Park (Ecuador)

The cast of "The Amazing Race", which started its new
All-Star season tonight with relatively short flights
from Miami to Quito, Ecuador, typically spend about
two weeks of the month-long race around the world on
airplanes or in airports. That's par for the course:
the quickest real-life trip around the world typically
involves about a week of air travel time, and the
televised race (like most real trips) involves more
than a minimal number of stops, and often a somewhat
circuitous and lengthier route than would be fastest.

So for the racers, as for many business travellers as
well as those "leisure" travellers who try to crowd
too much travel into too little time, the experience
of travel is primarily the experience of airplanes and
airports -- a phenomenon insightfully explored by Pico
Iyer in the chapter on Los Angeles International
Airport (LAX) in his book, "The Global Soul".

I enjoy the different perspective on the world one
gets from 10,000 meters (33,000 feet), and the vastly
greater safety of air travel compared to any other
means of transportation. But that doesn't mean I enjoy
it when my flight is cancelled or delayed, when I'm on
a plane that sits on the runway for hours, or when the
airline fails to tell the passengers -- its customers
-- what is happening or when (if ever) they can expect
to get where they have paid to be transported.

That's the issue that's in the news this week, with
some JetBlue Airways passengers having been trapped on
planes, on the ground, for more than ten hours while
waiting to take off during an ice storm in New York.

What happened to the JetBlue passengers was,
obviously, outrageous, and JetBlue has a history of
putting their foot in their mouth in response to
scandals about their business practices -- as when I
exposed that they had turned over their entire
historical archive of reservations to a military
contractor for the since-discredited and officially
disbanded (although continuing under other names)
Total Information Awareness surveillance research
program. But JetBlue was, in fact, acting according to
industry norms. Every year or two, a planeload of
people gets held on a plane for hours, forbidden (for
"security" reasons) from walking down the steps and
across the ramp back to the terminal. In recent years,
these incidents have involved Northwest Airlines,
American Airlines, and United Airlines, among others.
It could equally have been almost any other airline in
the USA.

I once spent five or six hours on the tarmac in New
Delhi -- although to be fair to Thai Airways, it was
more comfortable on their plane than in the terminal
at Indira Gandhi International Airport, foreign
airlines' norms of service are much higher than those
of USA-based airlines, and none of us were demanding
to get off. My trip home from Washington yesterday
involved a more unpleasant series of events, including
two successive flights cancelled because of mechanical
difficulties, and being sent to the furthest terminal
of a very large hub airport, and back again, twice
(accompanied by another passenger with a bad leg, for
whom the requested wheelchair transfer had not been
provided), without being told that the alternate
flight on which we were being rebooked was also
delayed indefinitely and might be cancelled.

In response to this week's public hue and cry, Senator
Barbara Boxer of California announced on Thursday that
she plans to introduce Federal legislation in the USA
for an "airline passengers' bill of rights".

By coincidence, I was in Washington this week for an
aviation security conference (from which I and the
rest of the press were expelled , in breach of my
registration contract, after I was invited and paid
the fee to attend). When Senator Boxer made her
announcement, I was already scheduled to meet with her
staff the next day, Friday, on issues including
airline passengers' rights.

I don't know what will be in Boxer's bill, but
previous proposals for an "Airline Passengers' Bill of
Rights" have varied widely. About a dozen such bills
were introduced in Congress in 1999-2001: go to the
Library of Congress legislative archive, click the
"check all" box to search all past Congresses, and
search for "airline passenger rights". None of these
measures got out of committee or to a vote on the
floor of the House and Senate, and since 11 September
2001 Congress has focused on airline "security" rather
than airline consumer protection.

It's easy to say, "There ought to be a law". It's much
harder to write a law that will be effective.

Most of the past proposals have tried to define
minimal standards for humane treatment of passengers,
especially once they are trapped on a plane with the
doors closed, at the mercy of the airline. The big
legislative differences have been in enforcement
mechanisms.

As I told Boxer's staff, I've interviewed the top
enforcement officials of the USA Department of
Transportation (DOT), and they've made no secret of
the fact that they have neither interest nor resources
to police airlines' treatment of passengers or enforce
the consumer protection provisions of Federal laws
that already apply to airlines. Given that the stated
policy of the DOT -- reconsidered and reaffirmed just
last year -- is to use "prosecutorial discretion" not
to enforce the existing Federal law which prohibits
deceptive advertising of incomplete prices for airline
tickets, there's no reason to expect them to do a
better job of enforcing new standards for passenger
treatment.

It costs an airline around US$5,000 an hour to hold a
plane on the ground, so current maximum fines of
US$1,000 per incident for violations of Federal rules
for treatment of passengers aren't large enough to
have much impact on an airline's bottom line or
behavior. Some of the past proposals for a
"Passengers' Bills of Rights" would have increased the
potential fines to as much as US$100,000, but that
won't matter unless the DOT actually polices
violations and imposes maximum fines, neither of which
seems at all likely. And as of now, the only way for
aggrieved passengers to sue an airline is to bring
suit in Federal court, a process that typically
requires a lawyer, costs tens of thousands of dollars,
and takes years to produce a decision.

What's needed is the ability for state and local
consumer protection officials (the "fraud squad"),
and/or travellers themselves, to seek redress of
grievances against the airlines under existing state
and local consumer protection in the existing state
courts, including small claims courts (there is no
Federal small claims court) that already hear most
consumer complaints.

That's what 45 state Attorneys General called for in
2000 in a formal request to Congress to end or narrow
the "preemption" of state jurisdiction over airlines'
treatment of their customers, a position that
underlies more recent objections by Attorneys General
to moves to weaken already weak Federal enforcement of
rules protecting airline passengers.

Some of the 2001 and earlier bills included provisions
to clarify that, in reserving exclusive Federal
jurisdiction to control fares and routes, Congress had
not intended to exempt the airlines totally from state
and local action for fraud, deceptive advertising, or
breach of contract.

I told Boxer's staff that such language is essential
to give enforcement "teeth" through state courts,
including small claims courts, to any meaningful
"Airline Passengers' Bill of Rights".

If you are contacting your Representative or Senators
about this, urge Congress to address the "Federal
preemption" of regulation of the airlines, so that
airlines can be held to the same standards of truth in
advertising and enforcement of contract terms as any
other businesses.

More importantly, though, the unconscionable
mistreatment and delay of a few hundred or thousand
passengers a year by "we don't care; we don't have to"
airlines is small compared to the injustice visited on
half a million would-be passengers a year who have
been completed denied their right to travel on the
basis of secret "threat scores" generated by a secret
"Automated Targeting System" on the basis of secret
dossiers on their travel history and other records
maintained by the government and compiled from
airlines and other unnamed private sources. Most of
these people are entirely innocent, and all of them
should be presumed innocent, since none have been
afforded a court hearing on the secret extrajudicial
administrative orders barring them from travelling by
airline or other common carrier.

If Senator Boxer, or other members of Congress, are
serious about protecting the rights of travellers, the
most important thing is for them to uphold our
fundamental right to travel . That right is already
guaranteed by the Universal Declaration of Human
Rights and in more detail by Article 12 of the
International Covenant on Civil and Political Rights .

The ICCPR has been signed and ratified by the USA and
most other countries. But it isn't
"self-effectuating", and there's great reluctance by
many people in the USA to allowing international
bodies (like the U.N. Human Rights Committee, which
interprets the ICCPR) to have jurisdiction over people
and activities in the USA. The USA has never taken the
final small but necessary step, as required by the
terms of the treaty, to make it not merely binding on
the USA but enforceable in U.S. Federal courts.

As I told Boxer's staff, if anyone in Congress really
wants a Bill of Rights to protect travellers, they
should start by introducing and enacting a bill to
grant jurisdiction to the Federal courts to hear cases
("causes of action") arising under the ICCPR,
including its Article 12 protecting the right to
freedom of movement.

What do think? Let me know -- and let Congress know.
I'll be talking about the proposed "Airline
Passengers' Bill of Rights" on KNX radio (1070 AM in
Los Angeles) from 11 a.m. to noon Pacific time (GMT
-8) on Monday, 19 February 2007. You can listen online
at http://www.knx1070.com or on the air, and call in
with your comments, questions, and opinions.


----------------
Edward Hasbrouck

http://hasbrouck.org

"The Practical Nomad: How to Travel Around the World"
(3rd edition, 2004)
"The Practical Nomad Guide to the Online Travel Marketplace"
http://www.practicalnomad.com