Like Medieval serfs, airline passengers cannot access full legal system
America’s airline consumers rights litigation is strictly limited in the state and local U.S. court system. Passengers must take a case to the federal courts, which costs great amounts of money, or petition the lords of the Department of Transportation (DOT) for redress. Like Medieval serfs, airline passengers have been denied access to the legal system. Their only real recourse is to petition through DOT. That should change.
Anyone who has been fed up enough with the airlines to take them to court quickly finds themselves bounced out of their local court systems and pushed into the federal courtroom world. Small claims go out the window and low-cost remedies disappear as well. The airlines play the “Federal preemption of most State law claim” whenever they can. This means that normal safeguards for airline consumers rights just don’t come into play.
The airlines get to operate outside of the normal rules that every other customer service company faces. They do business free from the jurisdiction of the Federal Trade Commission (FTC). Kevin Mitchell, Chairman of the Business Travel Coalition (BTC), in his comments notes the painful airlines consumers rights reality of being caught in a consumer protection “no man’s land.”
First, state laws that make unlawful, unfair or deceptive acts or practices by businesses, such as the state deceptive trade practices laws that apply to other industries, are preempted by federal law and hence have no application to airlines. The U.S. Supreme Court reached that conclusion in the case of Trans World Airlines, Inc. v. Morales more than 20 years ago. Thus, State Attorneys General cannot use their usual powers to police unfair or deceptive acts or practices in the case of airlines while other industries have their behavior checked by these important consumer protection statutes.
This claim was raised by consumer crusaders during their drive to get Congress to pass a tarmac-delay law; they brought suit against the airlines for false imprisonment. Unfortunately, federal courts stated that consumers did not have the right to bring cases to state court such as lawsuits for false imprisonment.
Yet another Supreme Court ruling notes the airlines are only responsible for providing the service they specify in their contract of carriage, which is the implicit contract all passengers sign when they purchase an airline ticket. Since the airlines don’t specifically say in their contract of carriage that they will provide good customer service or even strive to do that, they are not responsible for more than getting a passenger from Point A to Point B.
By virtue of the U.S. Supreme Court decision in American Airlines, Inc. vs. Wolens in 1995, a passenger lacks the right to sue an airline for breach of contract when an airline has failed to provide decent service — except to the extent that an airline has voluntarily assented to some “self-imposed undertaking.” Anyone who has perused the airline-drafted — and some say imposed — conditions of carriage will know that airlines assume precious little in terms of explicit contractual commitments to passengers.
Under federal law, DOT is the sole guardian of air traveler welfare. The FTC is powerless. When Travelers United approached the FTC, the epicenter of privacy issues in the U.S. government, to discuss privacy, their executives very bluntly told Travelers United that they have no jurisdiction over privacy policies of the airline computer reservation systems nor those travel agents.
When the airlines cry about facing re-regulation, remember that in the field of consumer protections, this industry is not subject to the most basic consumer protections against unfair or deceptive acts or practices and FTC enforcement.
The stalled DOT “Passenger Protection 3” rulemaking involves “truth in advertising” and “handle people like human beings” kind of rules. Why Federal preemption has allowed the airlines to get away with treating passengers with less seat room than prisoners being transported to Australia for years is beyond me.
This squeezing of passenger space is resulting in more acts of air rage. The closer one pushes individuals together, the more interactions they have with each other.
We reached this point because airline passengers have no standing in any court. Only the DOT can act against unfair or deceptive acts or practices of airlines, basically any anti-consumer practice. DOT is the sole creator and enforcer of airline consumers rights in the field of air travel. Where DOT has not prescribed the rules of the road in terms of consumer protections, consumers of air travel are typically without rights and without remedies — like serfs in the Middle Ages.
Travelers United, noting this shameful customer protection loophole exploited by the airlines, included these comments to the notice of proposed rulemaking and noted:
Consumers should be allowed to seek legal redress in any court. Federal or state, of competent jurisdiction, including a court within the jurisdiction of the passenger’s residence, provided that the carrier does business within that jurisdiction. Cases should be allowed to be presented in small claims court and passenger/airline issues should not be subject to federal preemption.
Hopefully, this new focus on consumer protections that has exploded into the national media will find new congressional and DOT focus. Consumer protections need to find their way into customer service plans and contracts of carriage of every airline that serves customers in the U.S. whether they are domestic carriers or foreign.
DOT should also begin a program to educate travelers about their travel rights. At luggage carousels, posters and videos should educate passengers about their compensation rights. Denied boarding compensation should be clearly explained. The availability of international flight delay compensation under both European Union rules and the Montreal Treaty should be described to passengers.
The current “Customer Service Commitments” should be a part of the contract of carriage. And, when it comes to customer service failures, passengers should be permitted to take their cases through the normal legal channels. Maintaining the current system where passengers only have the rights of Medieval serfs is not acceptable.
Photo courtesy Wikipedia.
Charlie Leocha is the President of Travelers United. He has been working in Washington, DC, for the past 14 years with Congress, the Department of Transportation, and industry stakeholders on travel issues. He was the first consumer representative to the Advisory Committee for Aviation Consumer Protections appointed by the Secretary of Transportation from 2012 through 2018.
