Airline Passenger Rights: The Federal Role
in Aviation Consumer Protection
Rachel Tang
Analyst in Transportation and Industry
May 20, 2013
Congressional Research Service
7-5700
www.crs.gov
R43078
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Airline Passenger Rights: The Federal Role in Aviation Consumer Protection
Summary
The 1978 deregulation of the airline industry in the United States eliminated federal control over
many airline business practices, including pricing and domestic route selection. However, the
federal government continues to legislate and enforce certain consumer protections for airline
passengers. Congress largely determines the degree to which the rights of airline passengers are
codified in law or developed through regulatory rulemaking.
The House Committee on Transportation and Infrastructure and the Senate Committee on
Commerce, Science, and Transportation are the primary congressional committees of jurisdiction
over airline passenger rights. Congress can authorize or require the U.S. Department of
Transportation (DOT) to enact rules on certain issues, and it can enact requirements for airlines
through direct legislation. In specific cases, DOT may take enforcement actions against air
carriers that violate consumer protection rules.
Most of DOT’s consumer rules are based on 49 U.S.C. Section 41712, which directs it to “protect
consumers from unfair or deceptive practices.” Some are based on DOT’s authority to require air
carriers in interstate transportation to provide “safe and adequate service” (49 U.S.C. §41702).
The interpretation of the phrase “unfair and deceptive trade” can significantly affect the scope of
DOT’s enforcement authority.
In December 2009, DOT issued a comprehensive final rule, “Enhancing Airline Passenger
Protections,” that expanded regulatory protections to aviation consumers. The rule established
procedures related to extended ground delays involving aircraft with passengers aboard, required
air carriers to address chronically delayed flights, and mandated more information disclosure to
consumers. In April 2011, DOT completed a further rulemaking that strengthened the rights of air
travelers in the event of oversales, flight cancellations, and delays. The rule also required
consumer access to accurate and adequate information when selecting flights, and improvements
in agency responsiveness to customer complaints. A key provision of the 2011 rules, requiring
airlines to prominently disclose to the consumer the total cost of a flight, including all
government and airline taxes and fees, was recently upheld in the federal courts.
The FAA Modernization and Reform Act of 2012 (P.L. 112-95), signed into law by the President
on February 14, 2012, included a number of provisions regarding the rights of airline passengers
and created a firmer statutory basis for the rules adopted by DOT in 2009 and 2011. Nonetheless,
a number of consumer-related subjects, including disclosure of code sharing arrangements on
domestic flights, compensation of passengers “bumped” from oversold flights, and disclosure of
ancillary fees, remain controversial.
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Airline Passenger Rights: The Federal Role in Aviation Consumer Protection
Contents
Introduction ...................................................................................................................................... 1
Three Levels of Airline Passenger Protection .................................................................................. 1
The Role of Congress ................................................................................................................ 1
The Role of the U.S. Department of Transportation (DOT) ...................................................... 2
DOT Regulatory Authority .................................................................................................. 2
DOT Enforcement Authority ............................................................................................... 3
Airline Deregulation and Contracts of Carriage ........................................................................ 4
Selected Passenger Air Service Improvement Provisions in Federal Aviation
Administration (FAA) Reauthorization ........................................................................................ 5
Smoking Prohibition .................................................................................................................. 6
Monthly Air Carrier Reports ..................................................................................................... 6
Musical Instruments .................................................................................................................. 6
Review of Air Carrier Flight Delays and Cancellations ............................................................ 6
Compensation for Delayed Baggage ......................................................................................... 6
DOT Airline Consumer Complaint Investigations .................................................................... 7
Cell Phone Use Study ................................................................................................................ 7
Advisory Committee for Aviation Consumer Protection ........................................................... 7
Disclosure of Seat Dimensions to Facilitate Use of Child Safety Seats .................................... 8
Airline and Airport Emergency and Contingency Plans ............................................................ 8
Consumer Complaint Hotline .................................................................................................... 8
Use of Insecticides in Passenger Aircraft .................................................................................. 9
Consumer Complaints to DOT ........................................................................................................ 9
DOT Regulatory Actions ............................................................................................................... 11
Ongoing Airline Passenger Consumer Issues ................................................................................ 12
Domestic Code Share Agreements .......................................................................................... 12
Oversale/Overbooking ............................................................................................................. 13
Ancillary Fees and Disclosure of Full Fares ........................................................................... 14
Figures
Figure 1. Number of Airline Consumer Complaints Filed with DOT ........................................... 10
Contacts
Author Contact Information........................................................................................................... 15
Acknowledgments ......................................................................................................................... 15
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Airline Passenger Rights: The Federal Role in Aviation Consumer Protection
Introduction
The deregulation of the airline industry in the United States in 1978 eliminated most
governmental control over most business practices of airlines. However, the federal government
continues to regulate certain practices for the protection of the airlines’ customers, in addition to
its long-standing role in overseeing air safety.
Congressional interest in the rights of airline passengers became intense between 2007 and 2009,
when a series of delays stranded passengers aboard airplanes at U.S. airports for 10 hours or
longer. In the first six months of 2009, for example, there were reportedly 586 tarmac delays of
more than three hours, including some instances in which passengers lacked access to food or
drink or in which aircraft lavatories ceased to function.1 Since then, Congress has strengthened
passengers’ rights under federal law, and many Members of Congress have continued to follow
aviation consumer issues closely.
This report examines aviation consumer protections in the post-deregulation era. It explains the
roles of Congress and the U.S. Department of Transportation (DOT) in protecting airline
consumers, and discusses some major passenger rights issues and related laws and regulations.
Three Levels of Airline Passenger Protection
The rights of domestic airline passengers are set forth at three different levels: in federal laws, in
regulations, and in the airlines’ own policies. Congress, under its constitutional power to “regulate
Commerce with foreign Nations, and among the several States,”2 has authority over airline
passengers’ rights. State and local governments are generally preempted by law from regulating
“price, route, or service of an air carrier.”3
The Role of Congress
By and large, the rights of airline passengers are defined by Congress. Congress determines the
extent to which airline consumer rights are codified in law, authorizes federal agencies to enforce
those rights, and directs or authorizes federal agencies to define and enforce passenger rights that
are not specifically enumerated in legislation. The House Committee on Transportation and
Infrastructure and the Senate Committee on Commerce, Science, and Transportation are the
primary congressional committees of jurisdiction, and exercise routine oversight over DOT, the
principal department responsible for executing and enforcing airline passenger rights laws. In
many cases, Members of Congress become aware of passenger rights issues by receiving
complaints from constituents, and congressional office staff members are often called upon to
1 Nancy Trejos, USA Today, “Days of long tarmac delays may be over, new numbers suggest,” August 9, 2012.
2 U.S. Constitution, Article I, Section 8.
3 49 U.S.C. §41713(b) (1). Consumers may sue airlines for damages or breach of contract in a state or local court, but
state or local consumer protection laws generally do not apply to air carriers. In one recent case, a federal court
dismissed a lawsuit filed in a New York state court by passengers who claimed to have been stranded for more than
seven hours aboard JetBlue flights on October 29, 2011, under “inhumane and intolerable” conditions. The court ruled
that all the claims were preempted by federal law. Joseph v. JetBlue, No. 5:11-CV-1387 (N.D.N.Y.), April 5, 2012.
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advise constituents about their rights as air passengers, to provide guidance on filing complaints
with DOT, and to communicate with DOT about constituent concerns.
The controversy surrounding tarmac delays illustrates the ways in which Congress exercises its
oversight authority. Between 2007 and 2009, a number of incidents occurred in which passengers
were held aboard planes that had either departed airport gates but were not allowed to take off or
had landed but were not allowed to disembark passengers. These incidents were extensively
reported in the news media, and congressional offices received numerous complaints from
constituents who had been aboard planes that were unable to provide passengers with drinking
water or on which lavatories stopped functioning. Congressional hearings ensued in 2009.4 In the
wake of this attention, DOT issued rules on tarmac delays in 2010. Language on this subject,
providing a firmer statutory footing for the federal rules that had already entered into effect, was
incorporated into the FAA Modernization and Reform Act of 2012 (P.L. 112-95).
Some Members of Congress also have expressed concern about issues related to flight schedules,
aircraft capacity, and frequency of service. Although these matters are no longer subject to federal
regulation, they are often raised in the context of business dealings between air carriers that do
require federal approval, such as mergers and code sharing arrangements. For example, the
proposed merger between American Airlines and US Airways led to objections that the merger
would reduce competition and limit consumer choices. These concerns were expressed by some
Members of Congress and witnesses during congressional hearings in February and March 2013,
before completion of the merger in May.5
The Role of the U.S. Department of Transportation (DOT)
DOT Regulatory Authority
DOT is responsible for executing and enforcing airline consumer rights laws established by
Congress. It may also develop regulations based on more general statutory authority, giving it
broad powers to prescribe regulations, standards, and procedures related to air travel.6 More
specifically, DOT has authority “under 49 U.S.C. Section 41712, in concert with 49 U.S.C.
Sections 40101(a)(4), 40101(a)(9), and 41702 to protect consumers from unfair or deceptive
practices and to ensure safe and adequate service in air transportation.”7 DOT’s authority in this
4 CQ Congressional Testimony, Airline Delays and Consumer Issues; Committee: House Transportation and
Infrastructure; Subcommittee: Aviation, May 20, 2009; Bill McGee, USA Today, “Passenger rights debate on glide path
to Congress,” September 30, 2009.
5 House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial, and Antitrust Law, hearing on
“Competition and Bankruptcy in the Airline Industry: The Proposed Merger of American Airlines and US Airways,”
February 26, 2013, http://judiciary.house.gov/hearings/113th/hear_02262013_2.html; Senate Judiciary Committee,
Subcommittee on Antitrust, Competition Policy, and Consumer Rights, hearing on “The American Airlines/US
Airways Merger: Consolidation, Competition, and Consumers,” March 19, 2013, http://www.judiciary.senate.gov/
hearings/hearing.cfm?id=6f599899d600989e3e380a731d0d247c.
6 49 U.S.C. 40113.
7 Department of Transportation, “Enhancing Airline Passenger Protections,” 74 Federal Register 68982-69004,
December 30, 2009. DOT may also issue passenger protection rules governing international flights to and from the
United States, depending on practicality and within the bounds of international agreements and treaties. Liability issues,
such as compensation for lost baggage and passenger injury on international flights, are generally covered by
international agreements ratified by the United States, notably the Montreal Convention of 1999, rather than by U.S.
laws or regulations. Itineraries between certain countries may be subject to the older Warsaw Convention. DOT
(continued...)
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area is exercised by the Office of the Secretary, not by the Federal Aviation Administration
(FAA), which is responsible for aviation safety.
DOT’s statutory authority is generally used as the basis for rulemaking. Occasionally, it is also
used in direct enforcement actions. Most of DOT’s consumer rules are based on the “unfair or
deceptive practices” provision, with a few based on the “ensure safe and adequate service”
provision. The definition and interpretation of the phrase “unfair or deceptive practices” can
significantly affect the scope of DOT’s rulemaking and enforcement authorities.
Separately, DOT enforces regulations to ensure that individuals with disabilities have
nondiscriminatory access to the air transportation system, and that airlines do not subject
passengers to unlawful discrimination on the basis of race, gender, religion, or national origin
during the course of their air transportation.8
The DOT Aviation Consumer Protection Division’s booklet Fly-Rights: A Consumer Guide to Air
Travel is published online. It covers a wide array of topics, from flight delays and cancellations to
travel scams. It also provides information about DOT rules on consumer complaints.9
DOT Enforcement Authority
The Office of the Assistant General Counsel for Aviation Enforcement and Proceedings in DOT
(OAEP), including its Aviation Consumer Protection Division, monitors airline compliance,
investigates reported violations of DOT regulations, and enforces rules and regulations. It may
negotiate consent orders with air carriers and fine violators. In 2012, DOT issued 49 consent
orders related to aviation consumer rule violations and assessed $3,610,100 in civil penalties—
both record figures.10
OAEP considers a number of factors in determining the civil penalty it would seek in an
enforcement proceeding, such as the harm caused by the violations, the alleged violator’s
compliance disposition, the alleged violator’s financial condition and ability to pay, how long the
violations continued, and the strength of the case.11 Currently, large air carriers are subject to a
maximum civil penalty of $27,500 per violation, under 49 U.S.C. 46301 and 14 C.F.R. Part 383.
Small businesses or individuals are subject to a maximum penalty of $1,100. Notwithstanding
(...continued)
consumer-protection regulations may not apply to flights between foreign points undertaken by U.S. carriers’ code
share partners, even if the flight carries a U.S. airline’s flight number. For example, a United Airlines passenger
traveling from Newark, NJ, to Istanbul, Turkey, might be booked from Newark to Munich, Germany, aboard a United
flight, and then from Munich to Istanbul aboard a flight operated with a United flight number by Lufthansa, a German
carrier. In such a case, the flight between Munich and Istanbul would not be subject to U.S. regulations concerning
tarmac delays, overbooking, and other consumer matters.
8 14 C.F.R. Part 382.
9 http://www.dot.gov/airconsumer/fly-rights. The Federal Aviation Administration (FAA) of DOT operates the air
traffic control system and regulates aviation safety and pilot certification. The Transportation Security Administration
(TSA), an agency of the Department of Homeland Security, regulates aviation security and operates airport security
screening checkpoints.
10 DOT press release, “DOT Issues Two Fines Against Passenger Carriers for Tarmac Delay Violations,” January 2,
2013, http://www.dot.gov/briefing-room/dot-issues-two-fines-against-passenger-carriers-tarmac-delay-violations.
11 Office of Aviation Enforcement and Proceedings, DOT, “Answers to Frequently Asked Questions Concerning the
Enforcement of the Final Rule on Enhancing Airline Passenger Protections,” April 28, 2010, p. 2.
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this limit, small businesses and individuals are subject to higher maximum penalties for
discrimination ($11,000 per violation) and for engaging in unfair or deceptive practices ($2,500
per violation).12
OAEP may look into possible violations based on complaints from individuals, groups, other
government agencies, or its own staff members’ observations and research. Usually, its first
action is to send a letter to the air carrier, setting forth the complaint or issues involved and
requesting a response. This gives the air carrier a chance to look into the matter and to resolve the
complaint, deny the complaint, or provide an explanation. This may be the end of the process, but
OAEP may issue a warning letter if it concludes violations occurred but were inadvertent or
minor.
If OAEP believes enforcement action is appropriate, it would seek a civil penalty and consent
order. A consent order typically relates the facts of the case to law and regulation, sets forth the
penalty the violator has agreed to pay, and incorporates language ordering the air carrier to cease
and desist from further violations. If the air carrier refuses to settle, the case may go to an
enforcement hearing before a DOT administrative law judge.13 DOT also may request injunctive
relief from a federal district court, although this is unusual.
Airline Deregulation and Contracts of Carriage
The third source of airline passengers’ rights is each air carrier’s “Contract of Carriage,” the legal
agreement between an airline and its ticket holders. Contracts of carriage typically define the
rights, duties, and liabilities of parties to the contract. For example, United Airlines’ contract of
carriage lists 30 rules, covering matters from reservations and ticketing to cancellation and refund
policies to medical ground transfer services.14
Before the age of electronic tickets, contracts of carriage were usually evidenced by standard
terms and conditions printed on the reverse of paper tickets. Now, they are often available for
download via airlines’ websites or at an airline’s ticketing facility. Passengers may take legal
action in federal courts based on the contracts.
Contracts of carriage replace the pre-deregulation-era-rules “tariffs” that were subject to approval
by the Civil Aeronautics Board (CAB).15 The CAB could take action against an air carrier that
violated its approved tariffs. Since the economic deregulation of the domestic airline industry in
1978, the federal government no longer has control over airlines’ prices or routes, and contracts
of carriage are not subject to federal review or approval. However, a contract of carriage that
conflicts with federal laws or regulations may not be enforceable by the airline.
With respect to passenger rights, the deregulated environment differs from the former regulated
environment in two major ways. First, under regulation, the CAB had authority to approve
carriers’ proposed fares and even to set fares itself. The airlines’ profitability was protected by this
12 14 C.F.R. 383.2 (b).
13 This is a simplified description of the process. Underlying this process is usually an ongoing process of negotiation
between OAEP and the air carriers and OAEP and the complainants.
14 http://www.united.com/web/format/pdf/Contract_of_Carriage.pdf, viewed on May 13, 2013.
15 Pursuant to the Airline Deregulation Act of 1978, the CAB ceased operations on December 31, 1984.
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price setting and by barriers to the entry of new competitors. Airlines, for the most part, competed
on service and frequency rather than price. Since deregulation, and especially with the advent of
low-cost carriers, the primary means of competition has become price, not service.
The more intense price competition of recent years has prompted airlines to respond by
“unbundling” their offerings and charging separately for services that once were included in the
price of a ticket. Among these charges are fees for checked baggage, early/priority boarding, and
seat change on a flight. Such ancillary fees have become major causes of consumer complaints.
Second, because the CAB used a cost-plus basis for approving fares, airlines could afford to
maintain a significant amount of extra capacity, which made it relatively simple for them to deal
with problems arising from flight delays or cancellations. Carriers’ treatment of passengers
booked on delayed or canceled flights is now a major cause of complaints (see Text Box).
Clarification of “Rule 240”and Rerouting of Stranded Passengers
During the era of regulation, Tariff Rule 240 was the number commonly used in air carrier tariffs that stated the
airline’s rules on rerouting of passengers when a flight was canceled or delayed. Since airfares and routes were then
regulated, airlines generally had comparable price structures. This made it easier for them to enter and/or honor
interline agreements for rerouting passengers at times of service disruption. Although Tariff Rule 240 has often been
referred to in the press as a “federal rule,”16 it was not. Each airline’s version of Tariff Rule 240 was written by the
carrier itself, although it was subject to CAB approval.
Today, competing airlines’ fares on a given route may differ, and the fares paid by passengers on any single plane may
vary widely, depending upon the date of purchase, the passenger’s ability to change flights without penalty, and other
factors. Although some airlines maintain interline agreements with other carriers allowing passenger rebooking in the
event of cancellation or delay, others, particularly “low-cost” carriers, may not have such agreements. An airline that
cancels a flight may be unable to rebook its passengers aboard another carrier without significant costs, which it may
be unwilling to incur.
Additionally, in a deregulated environment in which profitability is not guaranteed, market forces have led many
airlines to reduce the number of seats they offer to improve load factors. According to DOT’s Bureau of
Transportation Statistics (BTS), airlines’ average load factor in 2012 was 82.5%, meaning that many flights operated at
or near capacity. The lack of spare capacity can make it difficult for carriers to accommodate passengers in the event
of flight disruptions. Consequently, today’s airline contracts of carriage are less likely to provide for rerouting of
passengers on competing airlines’ flights than was the case prior to deregulation.
Selected Passenger Air Service Improvement
Provisions in Federal Aviation Administration
(FAA) Reauthorization
The FAA Modernization and Reform Act of 2012 (P.L. 112-95), signed into law on February 14,
2012, includes a number of provisions relating to passenger rights.17 Some of the passenger-rights
provisions put forth during the years-long debate over FAA reauthorization were not included in
the final bill, as similar protections had meanwhile been implemented through the DOT
rulemaking process. Some of the relevant provisions of P.L. 112-95 are summarized below.
16 Wall Street Journal, “Passenger Rights? What Passenger Rights?,” March 28, 2013.
17 P.L. 112-95, Title IV Air Service Improvements, Subtitle A—Passenger Air Service Improvements.
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Smoking Prohibition
Section 401 amends the smoking prohibition set forth in 49 U.S.C. 41707 to clarify that the
prohibition applies to passenger flights, both domestic and international. It also expands the
coverage to include nonscheduled intrastate, interstate, or international flights if a flight attendant
is a required crewmember of the aircraft.
Monthly Air Carrier Reports
Section 402 requires airlines to file monthly reports on flights that are diverted from their
scheduled destination to another airport and on flights that depart from the originating airport gate
but are canceled before takeoff. The Secretary of Transportation is to compile air carriers’ reports
and publish the information on the DOT website.18
Musical Instruments
Section 403 requires air carriers to permit passengers to stow a musical instrument in the aircraft
passenger compartment in a closet or baggage/cargo stowage compartment without charge, if the
instrument can be stowed in accordance with the requirement for carriage of carry-on baggage or
cargo set forth by FAA and there is space for such stowage on the aircraft. An instrument too
large to be stowed in a closet or a baggage or cargo stowage compartment may be stowed in a
seat if it fits and if the passenger is willing to pay an additional ticket price for use of the seat. An
instrument may be treated as checked baggage if the sum of the length, width, and height,
including the case, does not exceed 150 inches, if its weight does not exceed 165 pounds, and if it
can be stowed in accordance with the requirements for the stowage of baggage or cargo.
Review of Air Carrier Flight Delays and Cancellations
Section 406 directs the Inspector General (IG) of DOT to review and assess air carrier flight
delays, cancellations, and their causes. Congress also required the IG to update its 2000 report,
“Audit of Air Carrier Flight Delays and Cancellations” (report number: CR02000-112), and
submit the review results to the House and the Senate within one year after enactment.19
Compensation for Delayed Baggage
Section 407 requires the U.S. Government Accountability Office (GAO) to conduct a study to (1)
examine delays in the delivery of checked baggage to passengers and (2) make recommendations
18 DOT amended the on-time performance reporting requirements to add data elements for diverted flights and returns
to the gate (14 C.F.R. Part 234, Docket No. RITA 2007-28522). These data are available at http://www.rita.dot.gov/bts
and in Table 9 of DOT’s Air Travel Consumer Report (www.dot.gov/airconsumer.air-travel-consumer-reports),
published monthly by OAEP’s Aviation Consumer Protection Division.
19 The audit is still under way. See the IG website for the audit announcement: http://www.oig.dot.gov/sites/dot/files/
Announcement%20Memo.pdf.
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for establishing minimum standards to compensate passengers in the case of unreasonable delays
in checked baggage delivery. Results were to be reported 180 days after enactment.20
DOT Airline Consumer Complaint Investigations
Section 408 directs the Secretary of Transportation to investigate consumer complaints regarding
flight cancellations; compliance with federal regulations regarding the overbooking of seats on
flights; lost, damaged, or delayed baggage (and problems with air carrier claim procedures);
problems with refunds for unused or lost tickets; incorrect or incomplete information on fares,
discount fare conditions and availability, overcharges, and fare increases; rights of passengers
who have accumulated frequent flier miles; and deceptive or misleading advertising.
Cell Phone Use Study
Section 410 requires FAA to conduct a study, within 120 days of enactment, on the impact of the
use of cell phones for voice communications in an aircraft during a flight in scheduled passenger
air transportation where currently permitted by foreign governments in foreign air
transportation.21
Advisory Committee for Aviation Consumer Protection
Section 411 requires the Secretary of Transportation to establish a four-member committee for
aviation consumer protection to advise the Secretary in carrying out passenger service
improvements.22 The committee must comprise one representative each of (1) air carriers; (2)
airport operators; (3) state or local governments; and (4) nonprofit public interest groups. The
representatives of the latter two groups must have expertise in consumer protection matters. This
advisory committee shall terminate on September 30, 2015.
20 The GAO report (GAO-12-804R), which was released on June 14, 2012, found that DOT’s data do not distinguish
between delayed baggage and other types of mishandled baggage, such as those that are lost, damaged, or pilfered.
Instead, all of these types of occurrences are categorized as “mishandled baggage.” Using DOT’s data, GAO found that
the number of mishandled-baggage reports has decreased since 2008, when airlines first began charging for the first
checked bag. There are a number of factors that could have contributed to this decline in the number of mishandled-
baggage reports, such as a decline in the number of bags checked and improved baggage handling processes. However,
because of limitations of DOT’s data, a further assessment of mishandled baggage cannot be conducted. DOT has
proposed a change to airline reporting requirements designed to improve its ability to measure airline performance
regarding mishandled bags, but the change would not distinguish among the types of mishandled baggage (lost,
delayed, damaged, or pilfered). This report is available at http://www.gao.gov/products/Gao-12-804R.
21 FAA conducted the study and published a notice in the Federal Register in September 2012, seeking comments on
cell phone use on board aircraft (http://www.gpo.gov/fdsys/pkg/FR-2012-09-05/pdf/2012-21826.pdf). FAA is currently
revising the draft study to take public comments into account.
22 The Secretary of Transportation established this advisory committee on May 24, 2012. See http://www.gpo.gov/
fdsys/pkg/FR-2012-06-13/html/2012-14456.htm.
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Disclosure of Seat Dimensions to Facilitate
Use of Child Safety Seats
Section 412 requires FAA to prescribe regulations for posting on air carrier websites the
maximum child safety seat dimensions that will fit into a seat on an aircraft, within one year of
enactment.23
Airline and Airport Emergency and Contingency Plans
Section 415, which generally codifies a DOT rule adopted in 2010 (see below), requires covered
air carriers and commercial airports24 to submit to DOT a proposed contingency plan to address
tarmac delays within 90 days of enactment. DOT is to establish minimum standards for these
plans to ensure that they address long tarmac delays and provide for the health and safety of
passengers and crew. The air carrier plans are to require each air carrier to provide essential
services, including adequate food, potable water, restroom facilities, cabin ventilation, cabin
temperatures, and medical treatment.
After the plan has been reviewed by DOT, it is
Tarmac Delays Significantly Reduced
to be made available to the public. Air carriers
According to DOT reports, there were 42 tarmac delays
are required to report any flight delayed on the
longer than three hours on U.S. domestic flights in 2012,
tarmac for over three hours to the Office of
down from 50 such delays in 2011, which was the first
Consumer Protection at DOT within 30 days.
full year since the rule limiting tarmac delays on domestic
Air carriers are required to update each
flights took effect in April 2010.25
emergency plan every three years and submit
These numbers represent a significant reduction in
the update to DOT for review and approval;
lengthy tarmac delays. Between May 2009 and April
airports are required to update and submit
2010, the final 12 months before the rule came into
their plans every five years.27
effect, air carriers reported 693 tarmac delays of more
than three hours.26
However, critics have argued that the rule has caused
Consumer Complaint Hotline
more flight cancellations by air carriers, as canceling a
flight eliminates the risk that it might be delayed
Section 415 also requires DOT to establish a
extensively after boarding.
consumer complaint hotline telephone number
In August 2011, this rule was expanded, and now
for use by airline passengers.28 Carriers using
subjects foreign airlines operating international flights at
U.S. airports to a four-hour tarmac delay limit.
aircraft of 30 seats or more would need to
include on their websites, ticket confirmations,
23 FAA started the project in January 2013, and is in the process of rulemaking.
24 “Covered air transportation” means scheduled or public charter passenger air transportation provided by an air carrier
that operates an aircraft that, as originally designed, has a passenger capacity of 30 or more seats.
25 DOT press release DOT 15-13, February 12, 2013, pp. 1-2.
26 Ibid.
27 DOT has completed review of the contingency plans. Each covered carrier’s plan is required to appear on its website.
28 In its FY2014 budget, DOT requested $7.5 million to establish an Aviation Consumer Call Center, as required by
P.L. 112-95. See DOT Budget Highlights FY 2014, p. 46, http://www.dot.gov/sites/dot.dev/files/docs/
FY%202014%20Budget%20Highlights.pdf.
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or boarding passes the hotline number; the e-mail address, telephone number, and mailing address
of the air carrier; and the e-mail address, telephone number, and mailing address of the Aviation
Consumer Protection Division of DOT.
Use of Insecticides in Passenger Aircraft
Section 415 also requires the Secretary of Transportation to establish a public website that lists
countries that may require an air carrier to treat an aircraft passenger cabin with insecticides. Air
carriers or ticket agents selling tickets in the United States for a foreign destination listed on the
DOT website shall disclose on their own website or through other means that the destination
country may require the carrier to treat the cabin with insecticides.
Consumer Complaints to DOT
Despite the fact that the 15 largest U.S. airlines’ on-time arrival rate was nearly 82% in 2012, the
third-best annual performance in nearly two decades, flight delays and cancellations continue to
be a major source of dissatisfaction for air travelers. Flight problems represent by far the largest
category of passenger complaints filed with DOT.29 Problems with reservations, ticketing, and
boarding,30 mishandled baggage, customer service, and refunds are also among the most frequent
complaints (see Figure 1).
29 Flight-related problems tend to be, predominantly, delays and cancellations, but also include any other deviations
from schedule.
30 “Problems with reservations, ticketing, and boarding” are mistakes made by an airline or travel agent in reservations
and ticketing; problems in making reservation and obtaining tickets due to busy telephone lines or waiting in line, or
delays in mailing tickets; and problems boarding the airplane (except oversales).
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Figure 1. Number of Airline Consumer Complaints Filed with DOT
2011-2012
Source: U.S. Department of Transportation, Air Travel Consumer Report (February 2013), p. 43.
Note: “Other” includes complaints regarding frequent flyer programs, smoking, cargo problems, airport
facilities, security, etc.
In 2012, deviations from flight schedules were the most prevalent passenger complaint to DOT.
There were more than 4,200 such complaints in total, comprising more than 28% of all
complaints. Problems with “reservations, ticketing, and boarding” are mistakes made by airline or
travel agents in reservations and ticketing; problems in making reservations and obtaining tickets
due to busy telephone lines, long lines, or delays in mailing tickets; and problems boarding the
airplane (except oversales).
While DOT continues to receive many complaints about mishandled baggage, improved tracking
systems have helped U.S. air carriers reduce the proportion of bags that are lost or sent to the
wrong destinations. In 2012, the U.S. carriers reported 3.09 mishandled bags per 1,000
passengers, which was the lowest annual rate of mishandled baggage since DOT first collected
data on the subject in 1987.31
31 All U.S. airlines with at least 1% of total domestic scheduled-service passenger revenues, as determined by DOT’s
Bureau of Transportation Statistics (BTS). More information on rules, guidance, and other related issues regarding
aviation baggage can be found on the DOT website: http://www.dot.gov/airconsumer/baggage.
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How DOT Handles Aviation Consumer Complaints
When DOT receives a consumer complaint about an airline, it sends a copy to the airline and asks it to reply directly
to the customer. If it is a complaint about a subject covered by DOT rules, DOT requires the airline to send DOT a
copy of its response to the consumer, which DOT may evaluate to determine if the reply complies with DOT rules.
A pattern of violations of a rule as reflected in complaints can lead to enforcement action. Even where no rule applies,
if DOT determines an airline’s practice, as reflected in complaints, to be deceptive, it may conduct an investigation,
initiate a rulemaking, or commence enforcement action. This possibility gives airlines an incentive to monitor
complaints made to DOT.
On the other hand, airlines often receive complaints directly from customers. The number of consumer complaints
submitted directly to the air carriers is believed to be much higher than the number filed with DOT. However,
airlines are not required by law to report consumer complaints to DOT, except those related to treatment of
disabled passengers. The Air Carrier Access Act (49 U.S.C. 41705) prohibits discriminatory treatment of persons
with disabilities in air transportation. The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(P.L. 106-181) requires the Secretary of Transportation to “regularly review al complaints received by air carriers
alleging discrimination on the basis of disability” and “report annual y to Congress on the results of such review.”
DOT’s annual reports to Congress on disability-related air travel complaints are available on its website:
http://www.dot.gov/airconsumer/annual-report-disability-related-air-travel-complaints. In 2012, a total of 21,372 such
disability-related complaints were submitted to DOT by airlines, of which 18,953 came from U.S. carriers.
DOT Regulatory Actions
Airline flight delays and cancellations were addressed in a final rule issued in December 2009 by
DOT, “Enhancing Airline Passenger Protections.” The rule, which took effect April 29, 2010,
provides extensive regulatory protections to aviation consumers.32 The rule expanded on previous
regulations to address tarmac delays and chronically delayed flights and to require greater
information disclosure to consumers.
More specifically, this final rule requires large U.S. carriers to provide assurance that they will
not permit an aircraft to remain on the tarmac for more than three hours without providing
passengers an opportunity to deplane. An air carrier’s failure to comply subjects the carrier to
civil penalties of up to $27,500 per passenger.33 This final rule contains the following mandates
that address airline passenger protection, including rules on tarmac delays:
• Each air carrier is required to develop and implement a contingency plan for
lengthy tarmac delays.
• Each contingency plan must include an assurance that, for domestic flights, the
air carrier will not allow a tarmac delay to exceed three hours unless the pilot-in-
command determines there is a safety-related or security-related impediment to
deplaning passengers, or air traffic control has advised the pilot-in-command that
deplaning would significantly disrupt airport operations.
• For international flights, air carriers must commit to a set number of on-tarmac
hours to be determined by air carrier and set forth in its plan.34
32 http://www.dot.gov/airconsumer/final-rule-enhancing-airline-passenger-protections.
33 Ibid. DOT extended for 60 days the compliance date of a provision in the final rule that requires large airlines to
publish detailed flight delay information on their websites.
34 A year later, the ban on lengthy tarmac delays was expanded to foreign airlines’ operations at U.S. airports, with a
limit of four-hour delay set for international flights.
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Airlines’ plans must include assurance that adequate food and water will be provided within two
hours after the aircraft leaves the gate, as well as assurance of operable lavatory facilities and
adequate medical attention.
• Air carriers must display flight delay information for each domestic flight they
operate on their websites and designate employees to monitor the impacts of
flight delays and cancellation, respond to consumer complaints, and tell
consumers where and how to file complaints.
• Air carriers are prohibited from applying changes to their contracts of carriage
retroactively.
• Under the rule, any chronically delayed flight35 scheduled by an air carrier is
considered an unfair and deceptive practice and an unfair method of competition
within the meaning of 40 U.S.C. Section 41712.
On April 25, 2011, DOT issued a further rulemaking to strengthen the rights of air travelers in the
event of oversales, flight cancellations, and delays; to ensure consumers have accurate and
adequate information when selecting flights; and to improve responsiveness to customer
complaints.36 These rules, fully effective January 26, 2012, include the following:
• Baggage fees must be reimbursed for lost bags.
• Additional fees must be prominently disclosed on airline websites.
• The ban on excessive tarmac delay is expanded to foreign airlines’ operations at
U.S. airports, with a four-hour limit on international flights.
Provisions in this further rulemaking to further strengthen airline consumer protection, in the
event of oversales and requirements of full fare/fees disclosure, is discussed in more detail in a
later section of this report.
Ongoing Airline Passenger Consumer Issues
Domestic Code Share Agreements37
Over the past two decades, major carriers have increasingly moved to joint marketing
agreements, known as “code share agreements.” In these agreements, mainline carriers, such as
Delta and US Airways, purchase seat capacity from independent regional airlines or contract for
the services of regional carriers to fly passengers to their larger hub airports. Under code share
agreements, a mainline carrier often allows a regional carrier to (1) use the mainline carrier’s
flight designator code to identify flights and fares in computer reservation systems; (2) use the
35 A chronically delayed flight is defined as any domestic flight that is operated at least 10 times a month, and arrives
more than 30 minutes late (including canceled flights) more than 50% of the time during that month
(http://www.gpo.gov/fdsys/pkg/CFR-2012-title14-vol4/pdf/CFR-2012-title14-vol4-sec399-81.pdf).
36 http://www.dot.gov/airconsumer/rule-two-amendment-concerning-baggage-and-other-consumer-issues-pdf.
37 More information on disclosure of code share air service can be found on DOT website, http://www.dot.gov/
airconsumer/notice-codeshare.
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mainline carrier’s logos and uniforms; and (3) participate in joint promotion and advertising
activities.
Regional airlines now account for more than half of all scheduled passenger flights. In 2011, 61%
of the advertised flights of American, Delta, United, and US Airways were operated by regional
airlines under code share agreements, up from 40% in 2000.38
DOT does not review most domestic code share agreements,39 but does require ticket sellers to
disclose which airline is operating the flight prior to booking to ensure consumer transparency.40
However, some confusion still appears to exist among passengers because air carriers, travel
agencies, and advertisers may disclose this information differently. In some cases, the name of the
operating carrier may not be displayed prominently. Also, some regional carriers have code share
agreements with multiple mainline carriers and use different “doing business as” names when
operating on different domestic routes.41
Oversale/Overbooking42
Oversale or overbooking is not illegal, and most airlines overbook their scheduled flights to a
certain degree to compensate for “no-shows.” When a flight is oversold, DOT requires air carriers
to ask passengers to give up their seats voluntarily (voluntary bumping), in exchange for
compensation, before bumping anyone involuntarily.
A DOT rule (14 C.F.R. Part 250) requires air carriers to properly inform and compensate
passengers who are bumped involuntarily. In April 2011, DOT issued an amended final rule to
address issues regarding denied boarding or involuntary bumping compensation, especially
inadequate denied boarding compensation (DBC) to passengers.
The April 2011 amendment increased DBC rates and dollar limits, with dollar limits subject to
inflation-related adjustment every two years. When a passenger is bumped involuntarily and the
airline arranges substitute transportation that is scheduled to reach the final destination within one
hour of the original arrival time, no compensation is needed. However, if the scheduled arrival
38 Office of Inspector General, U.S. Department of Transportation, “Growth of Domestic Airline Code Sharing
Warrants Increased Attention,” (report number: AV-2013-045), February 14, 2013, p. 4. http://www.oig.dot.gov/sites/
dot/files/Airline%20Code%20Sharing%20Report-2-14-13.pdf.
39 Under 49 U.S.C. Section 41720, DOT’s Office of the Secretary (OST) must review any agreement “between two or
more major air carriers that affects more than 15 percent of the total number of available seat miles offered by the
major air carriers.” OST is required to assess the potential economic impact on competition of domestic code share
agreements between major carriers.
40 In 2011, DOT added a new subsection (c) to 49 U.S.C. Section 41712, that, in addition to the existing general
prohibition against unfair and deceptive practices and unfair methods of competition on the part of air carriers, foreign
carriers, and ticket agents, specifically requires these entities to disclose in any oral, written, or electronic
communication to the public, prior to a ticket sale, the name of the carrier providing the service of each segment of a
passenger’s itinerary. In addition, the amendment explicitly requires that on websites, disclosure must be made “on the
first display of the Web site following a search of a requested itinerary in a format that is easily visible to a viewer.”
Office of the Secretary, DOT, “Guidance on Disclosure of Code-Share Service Under Recent Amendments to 49
U.S.C. § 41712,” January 14, 2011 (http://www.dot.gov/airconsumer/notice-codeshare).
41 Office of Inspector General, U.S. Department of Transportation, “Growth of Domestic Airline Code Sharing
Warrants Increased Attention,” report number: AV-2013-045, February 14, 2013, p. 4.
42 More information on oversales can be found at http://www.dot.gov/airconsumer/oversales.
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time via substitute transportation43 is more than one hour later than the original arrival time, the
following rules apply:
• If the substitute domestic transportation arranged by the air carrier is scheduled to
arrive between one and two hours later than the original arrival time, the airline
must pay the passenger an amount equal to 200% of the one-way fare (including
all mandatory taxes and fees), with a $650 maximum. On international flights
departing the United States, the threshold is set between one and four hours.
• If the substitute transportation is scheduled to arrive more than two hours later on
domestic flights (four hours on international flights), or if the air carrier does not
make any substitute transportation arrangements for the passenger, the
compensation doubles to 400% of the one-way fare, with a $1,300 maximum.
• An air carrier must refund any unused ancillary fees for optional services paid by
a passenger if he or she was denied boarding, voluntarily or involuntarily.
Ancillary Fees and Disclosure of Full Fares44
Many U.S. air carriers have been under pressure to compete, mainly, on prices. A major trend is to
advertise cheaper base airfares and add separate optional fees for services that traditionally have
been included in the price of a ticket. These ancillary charges, including checked baggage fees,
reservation cancellation or change fees, seat selection fees, priority boarding fees, and in-flight
meals, are generating considerable revenues. In 2012, the U.S. passenger airline industry
collected more than $3.48 billion in baggage fees and over $2.55 billion in reservation
cancellation/change fees.45
In order to make it easier for consumers to know how much they will have to pay for airline
transportation and to ensure that airlines’ fee-related practices are fair and transparent, the DOT
rule issued in 2011 requires that an airline’s most prominently advertised airfare must be the full
cost of the ticket, with government taxes, mandatory fees, and optional surcharges included. For
both domestic and international markets, carriers must disclose the full price to be paid, including
government taxes and fees and any carrier surcharges, in their advertising, on their websites, and
on the passenger’s e-ticket confirmation. In addition, carriers must disclose all fees for optional
services through a prominent link on their home pages, and must include information on e-ticket
confirmations about the free baggage allowance and applicable fees for the first and second
checked bags and carry-on bags. Airlines must refund charges for lost bags.
Spirit Airlines, Allegiant Air, and Southwest Airlines challenged in federal court that portion of
DOT’s April 2011 rule that requires airlines and ticket agents to prominently display the total cost
of a ticket, including taxes, when advertising airfares. In July 2012, the U.S. Court of Appeals for
the Washington, DC, circuit rejected the airlines’ contention that the rules violate their rights to
43 Substitute transportation may involve flights by the same or another carrier or transportation by train or bus.
44 More information on this topic can be found on DOT websites, http://www.dot.gov/airconsumer/advertising and
http://www.dot.gov/airconsumer/baggage-optional-fees.
45 DOT Bureau of Transportation Statistics, “Baggage Fees by Airline 2012,” http://www.rita.dot.gov/bts/sites/
rita.dot.gov.bts/files/subject_areas/airline_information/baggage_fees/html/2012.html; and “Reservation
Cancellation/Change Fees by Airline 2012,” http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/
airline_information/reservation_cancellation_change_fees/html/2012.html, as viewed on May 16, 2013.
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engage in commercial and political speech and are an effort by the government to conceal taxes in
airfares.46 The airlines subsequently appealed to the U.S. Supreme Court, which, on April 1, 2013,
refused to consider their challenge and left the rule intact.
Author Contact Information
Rachel Tang
Analyst in Transportation and Industry
rtang@crs.loc.gov, 7-7875
Acknowledgments
John Williamson of the CRS Knowledge Services Group assisted in the legislative research for this report.
Timothy J. Kelly of DOT’s Aviation Consumer Protection Division shared his knowledge and insights.
46 Spirit Airlines v. U.S. DOT, 402 U.S. App. D.C. 70.
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