Wednesday, October 31, 2007



A. FAA/DOT should hold public hearings and open meetings to discuss ideas and proposals for delay reduction immediately. Such meeting can allow all interested parties: airlines, airports and airline passengers and nearby residents of airports to have their views and proposals heard, considered and debated.

Closed meetings held on October 23-24th by a DOT appointed Aviation Rulemaking Committee consisting primarily of airlines with no genuine airline passenger organizations, no air traffic controller organizations, no pilot or flight crew organizations and even excluding the NYS Consumer Protection Board, charged under newly enacted legislation with advocating for the interests of airline passengers, makes this process unbalanced, unfair, and probably illegal as in violation of the Federal Advisory Committee Act and Open Meetings laws.

President Bush has ordered DOT Secretary Mary Peters to come up with regulations to reduce delays at New York City area airports by December, calling the present situation unacceptable, but DOT efforts have so far only resulted in recriminations and knee jerk opposition to any regulation by the airlines and the Port Authority that controls the NYC area airports.

B. Truth in Scheduling Regulation and Delay Statistics. DOT must exercise its responsibility to eliminate deceptive and unfair airline over-scheduling practices by banning flights that are deceptively scheduled (i.e. those that are late more than 70% of the time or those that are cancelled more than 8% of the time) and requiring airlines to affirmatively notify passengers and prospective passengers of chronically delayed flights on time statistic (those flights late more than 40% of the time, or cancelled more than 5% of the time). This regulation could dramatically reduce demand for the most congested times through market forces as most passengers will not book travel on such flights.

Delayed passengers on deceptively scheduled flights should also receive compensation for their time and inconvenience based on bumping rule compensation rates (equal to the amount paid for the ticket or double the price of the ticket for delays over 4 hours). At present, airlines that schedule accurately are at a competitive disadvantage to those that use deceptive or even fraudulent scheduling practices. Since passengers have no recourse for delays caused by deceptive scheduling practices, airlines have little or no financial incentives to avoid deceptive scheduling practices.

Finally, CAPBOR and ACAP have proven and the Bureau of Transportation Statistics (BTS) has admitted that delay statistics fail to capture most tarmac confinements, flight diversions and inaccurately count cancellations as zero minutes delay thereby omitting the most serious delays affecting millions of airline passengers and failing to count billions of hours of passenger delays. The BTS must accurately capture the delay data and stop misleading the public with drastically understated statistics on airline delays and their consequent costs to the economy and burdens on air travelers. So far it has failed to do so.

C. Reasonable Limits on Scheduling at choke point airports, especially in NYC-Washington corridor.

Only so many aircraft can take off or land during a given hour. At JFK the capacity has been calculated by the FAA to be 80 flights per hour. However, during peak hours, flights are being scheduled at 125% of airport capacity. This has led to long delays of an hour or more on the tarmac or in landing even in ideal weather conditions.

The hard part is deciding how take off or landing slots at the most congested times are assigned to the airlines, as each airline wants unlimited freedom to schedule flights during the most popular times. If assignments are made by DOT/FAA edict, slots are likely to favor those with the most potent lobbies and would likely reduce competition and increase air fares. Bidding for slots favors airlines with the deepest pockets and is also likely to drive up air fares for the most popular times. A lottery system could be used that would not increase costs, but could arguably still reduce competition.

ACAP and CAPBOR favor an annual lottery system for slot assignments at heavily congested times that strongly favors flights with the most passengers, as this would increase the number of passengers that could travel during congested times without overloading the system or increasing costs, air fares and delays.

The only short term strategy for increasing capacity at major city airports is greater use of wide bodied aircraft to increase throughput and reduce congestion. However, airlines have frustrated this strategy by increasing the number of flights while reducing the size of airliners, virtually eliminating the use of wide bodied jets for domestic air travel, thereby aggravating congestion and delays at major airports. Congested airports during their rush hours need the equivalent of HOV lanes on major highways used by commuters in and around major urban areas.

D. Revenue Neutral Congestion Pricing. Some FAA and airports favor increasing landing and departure fees during congested times at major airports. However, without reducing fees at uncongested times this approach would simply increase airport and FAA revenues and airline costs, while likely increasing air fares overall. Moreover, since such fees are relatively low, their effect on congestion related delays is likely to be minimal unless the increases were dramatic.

ACAP and CAPBOR favors standby use of congestion pricing that is revenue neutral (ie increasing fees for congested times but reducing them for uncongested times) and reducing fees for larger aircraft that carry more passengers and increasing them for smaller aircraft (fees are generally set by weight of aircraft with smaller aircraft paying much lower fees but using the same amount of airport take off and landing capacity as larger aircraft). The much smaller take off and landing fees paid by smaller aircraft is another reason why airlines have increasingly favored use of smaller aircraft. However, congestion pricing may be unnecessary if Truth in Scheduling regulations and slot control regulations are effective in reducing congestion related delays.

E. Right to Deplane after three hours or less. New York JFK Airport and Jet Blue Airlines received national headlines when they stranded several thousand passengers in February by confining them against their will in aircraft on the tarmac for up to 11 hours without adequate food, water, or sanitary facilities. American and several other airlines have had over a dozen similar incidents of mass strandings. Without a right to exit the aircraft or deplane, passengers will increasingly be subject to wrongful imprisonment by airlines (who use this technique to avoid paying alternate transportation on other airlines, hotel and other expenses long associated with extended delays or cancellations). New York State has enacted legislation banning such practices, however, the airlines have threatened to go to court to overturn this law based on federal pre-emption of regulation of customer service. Even minimal Airline Passengers Rights legislation is stalled in Congress, and the pending bills contain no right to deplane no matter how extended the tarmac confinement.

CAPBOR and ACAP accordingly call on DOT/FAA is immediately enact as an emergency measure a regulation requiring passengers be given the right to exit the aircraft after a delay of 3 hours or more. This would both relieve unnecessary passenger hardship and provide another incentive for airlines to avoid over scheduling and resulting delays that are compounded into frequent grid lock at airports in the New York City area that also delays national and international air traffic.

The CEO of Jet Blue testified in April at a Senate Commerce Committee hearing that he saw no reason why other airlines could not provide for deplaning in situations of extended tarmac delays and that Jet Blue had leased a special area at JFK airport for this purpose.

F. Contingency Planning when a major airport is unavailable. The unavailability of a major NYC airport for any length of time, whether from natural or man made causes, not only causes massive delays for New York City area but disrupts national and international air traffic for many hours to several days.

Contingency planning should provide for diversion of incoming flights to outlying airports at Newburgh (45 miles north of Manhattan), Westchester (20 miles north of Manhattan) and Islip (55 miles east of Manhattan), with ground transportation to bring passengers to their NYC destinations or to other airports as needed for alternate air transportation. These secondary airports have excess capacity. The cost of such emergency diversion and alternate transportation should be borne by the Port Authority that controls all major transportation access to and from New York City and generates enormous revenue from the airports, bridges, and tunnels that it owns and operates.

The need for contingency planning is well documented and widely recognized, but the DOT/FAA has neglected to require any such planning and therefore no effective alternative transportation plan exists for major disruption or unavailability of one or more of the three main NYC airports (JFK, LaGuardia, and Newark).

ACAP and CAPBOR call on DOT/FAA to mandate such planning with a deadline of no longer than six months to have a contingency plan in place. The lead agency should be the NYS Transportation Department with the airlines, FAA, Port Authority, MTA, FEMA in secondary roles as those actors have shown themselves to be dysfunctional and unable to cooperate in such contingency planning in the past and/or have conflicting financial interests. Airline passengers must also be represented in such planning.

G. Increased use of secondary airports and underutilized military air fields for commercial transportation.

These and several other promising proposals have not been seriously considered by FAA/DOT, much less adopted, due to industry opposition to any regulation or proposal that would impinge on the power of each interest group to do as it pleases. As a result of the disinclination of FAA/DOT leadership to implement any regulation or proposal opposed by industry, degradation of the air transportation system has accelerated under the Bush Administration.

H. Need for Presidential Commission. CAPBOR and ACAP propose that President Bush appoint a White House Commission or Task Force on National Air Transportation Delays and Passenger Rights & Services, with genuine airline passenger representation, to break up the bureaucratic and industry lobby paralysis that has infected the national air transportation system. The transportation committees of Congress are bastions of pork barrel politics with a leadership heavily influenced by industry campaign contributions and have so far proven incapable of effectively dealing with most air transportation problems or enacting needed reforms.

This commission should be charged with developing an action plan to relieve delays and provide for minimum mandatory standards for passenger service. Also, this commission should be able to end the regulatory default, bureaucratic inertia and turf battles that have effectively exempted airlines from all health, sanitary, consumer protection and occupational safety laws that apply to all other providers of public accommodations in the United States.


A. Use of high speed rail connecting airports in major cities with downtown business districts and each other. Presently not being done because airports depend on vehicle parking, taxi, car rental, and bus fees to provide over 70% of revenue.

B. Expansion of smaller airports around large metro areas, and addition of more runways at large airports to accommodate increased use of regional and corporate jets, and air taxi services.

C. Construction of new major airports for Chicago, New York City/Boston, Denver.

D. Implementation of fail safe GPS air traffic control, keeping in mind the multiple failures of the FAA to modernize air traffic control over many years not withstanding expenditure of billions of taxpayer/passenger dollars, and greater use of private companies to construct and design the system, with a commission to oversee it with consumer as well as industry representation.


A. Baggage Mishandling is the second most common passenger complaint after delayed flights. Airlines have by regulation enjoyed low liability limits for mishandled and lost or stolen baggage (now at under $3,000 per passenger), and as a result have under invested in or eliminated baggage security. Federal Express, UPS and the US Postal Service all track by computer their packages, but airlines do not, even though bar codes on baggage easily allows them to do so.

The reason is it is less expensive to pay for lost baggage at low liability limits than to pay for modern security tracking systems. Airlines also have a financial incentive to encourage passengers to use carry on luggage which they handle themselves, as this frees up space for profitable cargo shipments in airliner baggage compartments and reduces airline costs for baggage handling.

DOT needs to require checked baggage tracking systems to reduce mishandled and lost baggage and consequent delays, improve security, and increase liability limits for lost or mishandled baggage.

B. Off Sight Centralized Car Rental facilities have been built at most large airports. These facilities can increase delays for passengers since they require a shuttle bus that adds 10-30 minutes to a passenger’s trip each way. The reason these facilities are popular with airports is that they generate extra revenue for the airport and free up space at the airport that can be leased or used for high priced parking.

The FAA/DOT and Congress need to ensure that these facilities are not used as just another means to exact more revenue, taxes, and revenue from passengers and to increase delays. FAA/DOT currently fails to regulate these facilities and local airport authorities are exempt from anti-trust regulations. Ground transportation facilities at airports should lose their anti-trust exemptions as be treated as what they are: quasi-monopolies.

For example, since the BWI car rental facility was opened delays have increased due to shortages of vehicles apparently caused by MD Dept. of Aviation regulations and consolidation in the car rental industry, and car rental fees and expenses to consumers have more than doubled in the past 2 years.

C. Security procedures have increased delays with long lines at peak travel times. The Transportation Security Administration (TSA) has reduced lines and wait times but this is still a major problem at some airports and needs to be addressed by opening more lines and increasing personnel at peak times (they can be reduced at non-peak times). TSA needs to increase staffing at peak periods with overtime, flex time, shift pay incentives, part time and/or overlapping shifts.

Dated: October 31, 2007

Washington, D.C.

Paul Hudson

Executive Director

Aviation Consumer Action Project (ACAP)

A nonprofit organization acting as a voice for airline passengers on national aviation issues since 1971 with no airline industry funding

Member, Executive Committee –FAA Aviation Rulemaking Advisory Committee

Member, TSA Aviation Security Advisory Committee

Board Member, Coalition for an Airline Passenger Bill of Rights


Kate Hanni, Founder and Executive Director

The Coalition for an Airline Passenger Bill of Rights (CAPBOR)

The largest nonprofit organization representing the interests of airline passengers with over 20,000 individual member/supporters (growing at 1,000-3,000 new members per month since January 2007) and with organizational members including the Consumer Federation of America, US PIRG, Public Citizen and ACAP, no airline industry funding 707-337-0328