United States: A Look At The New FAA Reauthorization Act – Implications For Airline Consumers

Anita Mosner is a partner and Jennifer M. Nowak is an associate in Holland & Knight's Washington, D.C. officeBen Slocum is an attorney in Holland & Knight's Charlotte office

President Trump has made the reduction of federal regulation in the marketplace a centerpiece of his campaign and administration. While numerous efforts1 to review existing aviation regulations are underway, the newly-signed FAA Reauthorization Act of 2018 (Public Law 115-254),2 which reauthorizes funding of the Federal Aviation Administration through Sept. 30, 2023, contains several provisions which indicate that Congress remains deeply invested in the issue of airline passenger rights. The FAA Reauthorization Act contains a wide spectrum of passenger rights provisions, ranging from requiring the FAA to consider regulations concerning aircraft seat size and pitch, to the disclosures that must be made when an airline uses insect repellents in the passenger cabin.

Recent news headlines have had a clear influence on the content of the law, as evidenced by § 425(b)-(d) of the act, which prohibits air carriers from denying a passenger boarding or removing a passenger from a plane once the passenger has timely checked in and had their boarding pass scanned or collected by the gate agent. Of course, a major U.S. carrier last year faced harsh scrutiny after forcibly removing a ticketed passenger from its aircraft, an event which was videotaped and eventually went viral on the internet. Now, if an airline is to involuntarily deny a passenger boarding, it must do so before accepting their boarding pass at the gate. The rule is limited to revenue passengers (including mileage passengers), and contains exceptions for risks to safety, security or health, and for removal due to a passenger's obscene, disruptive or unlawful behavior.

Further, in order to forestall confrontations about compensation to be paid in involuntary denied boarding cases, Congress has directed the Department of Transportation (DOT) to issue a rule eliminating any maximum amount of compensation that must be paid to passengers involuntarily denied boarding due to an oversold flight. Notably, the rule also requires compensation be paid proactively by the carrier, and not just upon the passenger's request – this includes not only passengers who are involuntarily denied boarding, but also those who volunteer to give up their seats.3

In a similar show of concern for disabled passengers – and perhaps fueled by well-publicized mishaps – the law contains a provision which permits DOT to increase by up to threefold the civil penalty for bodily harm to a passenger with disabilities or damage to a wheelchair or mobility aid. (The current civil penalty is $33,333.)4.

While the airline industry did have some victories during the legislative process (e.g., blocking the inclusion in the bill of a provision which would have limited the amount of the fees passengers would be required to pay to change their tickets) this note highlights some of the more notable provisions that pertain to the services and protections to be afforded to airline passengers:

Section Summary Timeline
412 Carriers cannot deny a passenger the ability to gate-check a stroller if the stroller is being used to transport a child traveling on the same flight as the passenger. An exception exists where the stroller poses a safety or security risk. Effective immediately
413 Directs DOT to examine and analyze the causes of flight delays and cancellations. Study within 1 year; report due 90 days after study completion
421 Mandates regulations requiring carriers to promptly refund to passengers any ancillary fees paid for services that the passenger does not receive. DOT to issue regulations within 1 year
423 Requires carriers to publish on their websites a hotline telephone number (which DOT will establish), the carrier's email, phone number and mailing address for passenger submission of complaints, and the web site and mailing address of the DOT Aviation Consumer Protection Division. Carriers must also publish the hotline phone number on electronic ticket confirmations and on signs at airport ticket counters. DOT to issue regulations within 1 year
424 Calls upon DOT to appoint an Aviation Consumer Advocate, who is charged with:

  • assisting consumers in resolving carrier service complaints filed with the Aviation Consumer Protection Division;
  • reviewing DOT resolution of carrier service complaints;
  • identifying and recommending actions the Department can take to improve the enforcement of aviation consumer protection rules, protection of air ambulance consumers, and resolution of carrier service complaints; and
  • identifying and recommending regulations and policies that can be amended to more effectively resolve carrier service complaints.
Effective immediately – no specific timeline for DOT to implement
427 Requires DOT to impose minimum customer service standards on "large ticket agents," which are agents with revenues in excess of $100 million. DOT to issue Final Rule within 180 days
428 In the event of a widespread disruption of travel, carriers must publish on their website a statement as to whether the airline will provide disrupted passengers with:

  • hotel accommodations;
  • ground transportation;
  • meal vouchers;
  • air transportation on another carrier; and/or
  • sleeping facilities inside the airport.

"Widespread disruption" means interruption of the overwhelming majority of a carrier's system-wide flights as a result of computer system failures.

Applies to US carriers operating passenger aircraft with more than 30 seats, effective immediately
429 DOT to require carriers to submit a one page summary of the compensation provided to passengers for:

  • flight delays;
  • flight diversions;
  • flight cancellations;
  • mishandled baggage;
  • voluntary denied boarding; and
  • involuntary denied boarding.
DOT to require submission within 90 days; carriers to post summary on websites 90 days after submission
434 DOT required to develop Airline Passengers with Disabilities Bill of Rights. Once developed, carriers must include it on their website, and in any pre-flight notifications given to passengers who alert the carrier of their need for accommodations.

Carriers will be required to submit to DOT plans to ensure employees and contractors receive training on the protections and responsibilities contained in the new Airline Passengers with Disabilities Bill of Rights.

Effective immediately – no specific timelines provided for publication of Bill of Rights or carrier submissions
437 Requires DOT to conduct a rulemaking to define the term "service animal" and develop minimum standards to be applied to service animals and emotional support animals to be carried in the passenger cabin. DOT to issue Final Rule within 18 months
440 DOT to review, and if necessary revise, Part 382, and regulations concerning the training requirements that air carriers must meet. Within 180 days

As can be seen from the thumbnails above, many of the provisions require DOT action in order to be implemented and become effective. Given the current shutdown of the DOT (and other U.S. government agencies) the actual timing of these new initiatives remain to be seen due to the expiration of funding.

Finally, further highlighting the contrast between the administration's deregulatory goals and Congress' mandates in the FAA Reauthorization Act, DOT just before the partial government shutdown published two policies on the promulgation of new rules and of guidance for existing rules.5 These policies "incorporate[] the Trump Administration's regulatory reform strategies into the Department's procedures,"6 and seek to further the administration's goal of reviewing and taking action on rulemaking activity to ensure the least burdensome regulatory approach possible.

We will provide periodic updates concerning the implementation of this legislation.

Footnotes

1 See, e.g., DOT's Regulatory Review Docket, Docket No. DOT–OST–2017–0069, which was opened in response to the issuance of three executive orders by the Trump Administration. Executive Orders 13771, 13777 and 13783 (collectively directing federal agencies to scrutinize their regulations and take appropriate action).

2 For a PDF of the legislation, see FAA Reauthorization Act of 2018

3 Act at § 425(e).

4 49 U.S.C. § 46301.

5 DOT Order 2100.6, Policies and Procedures for Rulemakings (Dec. 20, 2018); DOT Memorandum for Secretarial Officers and Heads of Operating Administrations, Review and Clearance of Guidance Documents (Dec. 20, 2018).

6 DOT Press Release, U.S. DOT Continues to Lead Regulatory Reform Through Issuance of Two New Policies (Dec. 21, 2018).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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