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PASSENGER RIGHTS AND RIGHT THINKING
By Joe Brancatelli
August 13, 2009 -- By now you've heard about the 47 passengers held captive for nearly six hours early last Saturday morning, trapped on the runway of the airport in Rochester, Minnesota, in a tinny, tiny, stinky regional jet.

By now you've heard that Continental Airlines, whose name was on the plane and whose computer code was part of the flight number, initially denied responsibility for the imprisonment before belatedly offering the passengers an apology, a refund and a voucher for free travel.

By now you've heard the unending series of lying rationalizations spewed by the aircraft's operator, ExpressJet, as it attempted to justify its hostage taking: the crew timed out; Rochester airport couldn't handle disembarking passengers in the wee small hours of the morning; no TSA screeners were on duty; no buses were available to take passengers 85 miles to Minneapolis-St. Paul Airport, the flight's original destination; the dog ate the flight plan; they ran out of gas; they had a flat tire; they didn't have enough money for cab fare; the tux didn't come back from the cleaners; an old friend came in from out of town; there was an earthquake; and just about every other excuse John Belushi tried in The Blues Brothers.

And by now you've surely heard the bleating sheep of the mainstream media saying that this egregious incident all but guarantees the passage of the so-called Passenger's Bill of Rights, the holy grail of Kate Hanni, a remarkably committed, but remarkably naïve, woman who once was a hostage on a diverted American Airlines flight.

But here's what you have not heard: Even if the Passenger's Bill of Rights was already part of federal law it wouldn't have made a damned bit of difference. The legislation, currently tucked into a pending budget reauthorization for the Federal Aviation Administration, is so poorly written and so rife with exceptions that ExpressJet's despicable actions last weekend could easily have been justified and excused.

The bitter truth of Continental Express Flight 2816 is simple: When it comes to treating passengers like cattle, the airlines have no conscience and no morals. They’ve been doing it for a decade, ever since Northwest Airlines literally abandoned thousands of passengers on the tarmacs of Detroit/Metro in a 1999 snowstorm. USA Today says perhaps 200,000 passengers have been hostages since 2007. In June, the government says, almost 300 flights sat on the tarmac for at least three hours.

Nothing short of fines, a blizzard of flyer lawsuits and an explicit, no-compromises, no-exceptions rule on handling long ground delays will stop carriers from holding us hostage again and again and again. As I have been saying from the moment Hanni began her crusade in 2006, her bill isn't good enough. It won't work. It's meaningless. It does virtually nothing to force the airlines to act in a civil manner.

Examine the bill yourself. The standalone version is here and, by the usually impenetrable standards of federal legislation, is comparatively comprehensible. This has become the so-called Boxer-Snowe Amendment (named after California Senator Barbara Boxer and Maine Senator Olympia Snowe) in the senate version of the FAA funding measure. When Congress returns in September, this bill will be reconciled with a House measure on FAA funding. If it survives the horse trading in the reconciliation process--and I'd say the ExpressJet incident now makes it a 50-50 proposition--the Passenger Bill of Rights becomes law.

But look at the bill's fatal flaws. It vests the power to return a long-delayed flight to the gate after three hours in the pilot. But the three-hour rule is not hard and fast. If a pilot thinks he can depart within 30 minutes of the three-hour window, he can reset the clock for another three hours. Another exception is if the pilot determines that disembarking would "jeopardize passenger safety or security."

Well, guess what, fellow travelers? ExpressJet claimed both exceptions in its inane rationalizations for last week's incident.

When ExpressJet's EMB-145 departed Continental's Houston hub last Friday evening, the scheduled three-hour flight to Minneapolis was diverted to Rochester by bad weather. It touched down at about 12:30 a.m. local time and then sat on the runway until about 6 a.m., when passengers were finally permitted to disembark. According to the accounts we have, however, ExpressJet thought it had a window of opportunity for departure about 2 a.m. And there's your first exception. If the Passenger's Bill of Rights was in effect, that alleged 2 a.m. window would have given ExpressJet at least three more hours to hold passengers hostage.

And there is the safe and secure exception. ExpressJet claimed it couldn't deplane people because the airport wasn't prepared for passengers at that late hour and there were no TSA screeners on hand to process passengers through for another flight. In other words, it wouldn't have been safe or secure to let passengers leave the plane.

It's a lie, of course. A diverted Delta flight deplaned in Rochester about the same time that ExpressJet decided not to release its passengers. And the TSA claims that it has screeners on call for just such a situation. But there's nothing in the Passenger's Bill of Rights that bars the airlines from falsely claiming safety and security concerns. After all, who ever retroactively holds an airline accountable after it has piously invoked the twin totems of safety and security?

The fact of the matter is that ExpressJet held those 47 passengers hostage for one reason: money. It didn't want to find them rooms for the night and pick up the tab. By holding them on the plane until about 6 a.m., it saved a couple of grand in hotel bills and gambled that no one would complain. That ExpressJet guessed wrong and the airline's hostage taking has become a national issue doesn't change the fact that the carrier made a financial calculation.

And financial calculation is the right way to beat the airlines. Rather than a meaningless, unenforceable Passenger's Bill of Rights, we need to make it too financially painful for airlines to hold us hostage.

Step one is to force the Department of Transportation (DOT) to do what it has been ducking for a decade and sidestepping under three Presidential Administrations: Fine airlines every time they hold passengers on a plane for more than three hours without a departure or a return to the gate.

Since it is impossible to legislate or regulate an airline's claims of safety and security--or even to dispute a carrier's contention that it thought it had a departure window--the DOT should levy a $2,000-a-passenger fine every time an aircraft sits on the ground for three hours without offering passengers a chance to deplane. No waivers, no favors. You hold passengers on a plane for more than three hours, you pay a penalty of $2,000 a traveler. No one's motives need be questioned, no Talmudic discussions about safety, security and departure windows need be held. Let the airlines do what they will do, but charge them $2,000 for every flyer held on an aircraft for three hours or more.

You'll be shocked at how fast the airlines will solve their problems when faced with a non-negotiable $2,000-a-head fee for holding passengers on a plane for three hours without a takeoff or a return to the gate. All of their current excuses will suddenly dry up if they are forced to pay for the decisions they make on scheduling, irregular operations and passenger reaccommodation.

And passengers have to take a stronger stand, too. Last year, the DOT put a big stick in our hands: We can sue airlines in state courts for issues such as long imprisonment on an aircraft. And that means passengers can take an airline to their local small-claims court. The cost of entry for us is low (usually less than $100 to file a suit), the airline runs up huge expenses because it has to send a lawyer or other representative to a venue chosen by the passenger and the potential payout is quite large, as much as $15,000 in some states. Best of all, small-claims courts are reliably friendly toward passengers abused by big, bad, lying airlines. After all, most of the judges and adjudicators are passengers, too.

In Minnesota, the maximum small-claims payout is $7,500. In Texas, where the flight originated, it is $5,000. If all 47 passengers on Continental/ExpressJet Flight 2816 sue the carriers, that's a potential liability of $235,000 to $352,000.

How fast do you think airlines would fix their hostage-taking ways if they knew every passenger would sue them in small-claims court?

That's how you beat the airlines: With financial pressure from the average traveler who has been held hostage and regulatory pressure from a DOT that actively (and effectively) penalizes carriers for their bad decisions

Dollars are the only pressure that the airlines understand. That's the cudgel we should use.

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ABOUT JOE BRANCATELLI Joe Brancatelli is a publication consultant, which means that he helps media companies start, fix and reposition newspapers, magazines and Web sites. He's also the former executive editor of Frequent Flyer and has been a consultant to or columnist for more business-travel and leisure-travel publishing operations than he can remember. He started his career as a business journalist and created JoeSentMe in the dark days after 9/11 while he was stranded in a hotel room in San Francisco. He lives on the Hudson River in the tourist town of Cold Spring.

THE FINE PRINT All of the opinions and material in this column are the sole property and responsibility of Joe Brancatelli. This material may not be reproduced in any form without his express written permission.

This column is Copyright © 2009 by Joe Brancatelli. JoeSentMe.com is Copyright © 2009 by Joe Brancatelli. All rights reserved.