The Unfriendly Skies

Paul Hudson, the President of Flyers Rights, a nonprofit organization for airline consumers, explains how flying aboard U.S. carriers has changed since 9/11 and what to be aware of after the forcible removal of passenger David Dao from a United Express aircraft on April 9. Hudson spoke with senior associate editor Diane Tedeschi in June.

Air & Space: What was your first thought when you heard about David Dao’s experience with United Express?

Hudson: Well, I was shocked, like I think most people were. I knew things were not good. Then the videos that followed indicated there’s a whole level of mistreatment we need to address that hasn’t really been revealed to the public like it was then.

Do you think Dao’s experience was unusual? Or do you think that level of violence has happened before?

I have to assume yes. There are at least several hundred prosecutions that we know of under the underlying law that he was threatened with, which is a provision of the Patriot Act, and it makes disobeying a flight attendant a federal felony, punishable by up to 20 years. In some of the other videos that followed, the flight attendants are explicitly threatening people with [the Patriot Act]. Virtually all the prosecutions that we’re aware of have nothing to do with terrorism, which is why the law was passed back in 2001, 2002—after 9/11—to deal with the possibility that there could be more terrorist hijackings. But instead the law is, I think, being widely abused and misused. Prosecutions are either for minor things that would normally be handled with a fine or a local misdemeanor charge, or the law is being misused for the commercial convenience of the airlines. That is what happened with Dr. Dao, when he refused to give up his seat for an airline employee.

Would you say the Patriot Act has emboldened airline employees in how they deal with passengers?

Yes, and it’s really the flight attendants. Because while the captains are technically in charge, they’re rarely involved in any of these incidents. In some of the videos, you’ll see that the captains are standing off to the side, not saying a word. And we’ve heard stories—I can’t say that we’ve had definite proof—that some flight attendants use the Patriot Act in order to deflect complaints from passengers, say, for rudeness.

What type of response would you like to see from the Department of Transportation?

We submitted a list of at least half a dozen things we think are essential. And one of them is to have U.S. airlines eliminate the forced bumping.

Do you think disrespectful treatment of passengers is as prevalent on the international carriers as it seems to be on domestic carriers?

There are maybe three or four hundred carriers in the world—I’m not saying I know every one of them. But certainly, by and large, absolutely not. As far as customer service is concerned, the people that keep track of that are SkyTracks and TripAdisor, primarily. No U.S. carrier is even in the top 50.

Are any U.S. airlines getting it right?

Well, the [U.S.] airline that had the highest rating was Virgin America. But they have been taken over by Alaska Airlines. Alaska and Southwest generally have the highest customer service ratings for U.S.-based carriers.

Was it a mistake to allow the U.S. airline industry to consolidate through mergers?

The merger of Alaska with Virgin America was not objected to. The last one that we think should not have been approved was the American/US Airways one. That created the largest airline, by some measures in the world—at the time anyway. American was in bankruptcy—Chapter 11. Which every single U.S. carrier was, with the exception of Southwest.

The management of American felt that they could emerge from Chapter 11 as a good stand-alone airline. But the unions and US Airways felt differently, and they prevailed. The merger went through. Essentially, it was a US Airways takeover of American, and they adopted the American name. Now what [the merger] did, is it brought four airlines in the U.S. to control about 80 percent of all the flights—domestic flights. And when you look at [flights] internationally, we now have three joint ventures that—they call them alliances, but they’re joint ventures—that control between two thirds and 75 percent of the international flights. Most of these joint ventures have anti-trust exemptions, which means that they can fix prices. They can coordinate—they don’t compete with each other. They can set their destinations and their schedules in joint fashion, which would otherwise be illegal. They’re the only industry that has that [privilege].

Normally, to get any kind of anti-trust exemption, you have to go through the Justice Department, which has an anti-trust division, but the airlines don’t [have to go through the Department of Justice]. So one of the things we’re looking to see done—besides getting some common-sense reasonable regulation of the airlines—is for some of the anti-competitive rules and laws to be cut back or repealed. So we can have more competition both from international carriers and from domestic carriers to stop the oligopoly, which essentially controls U.S. air travel today. That along with the bankruptcies that allows [U.S. airlines] to shed their debts and the lower fuel prices has given them an oligopoly, and their profit margin is now approximately 19 percent, which is unheard of in the airline business. It was always under five percent. So despite the talk about doing better and this and that, this model has been highly profitable and Wall Street likes it. People like Warren Buffett, who said the worst investment you could make would be to buy airline stock, is now investing in airlines. And we have record profits and record salaries for the top executives.

What should the U.S. Congress be doing to improve the situation for the flying public?

We’ve had an airline passenger bill of rights since 2013—it has about 30 proposals. With recent events, we’re up to about 50 proposals. There are 535 members of Congress and so far, not one has been willing to introduce any part of it. So that gives you an indication of where they are. I just reviewed some legislation that’s been drafted after the Dr. Dao incident in the last six weeks or so. Some of it has some good points, but they also have just inherent weaknesses that make it very unlikely you’ll see much difference.

For instance, the typical bill that is being introduced calls on the Department of Transportation to issue new regulations. Well, the DOT is not issuing any new regulations. They are repealing regulations—especially under the Trump administration. Even when they do that, it takes anywhere from two to five years. And then they have a very weak record of actually enforcing their own regulations. If an airline violates a regulation, the most that can happen is they get a small fine and the person or persons that were affected, get nothing. Because the courts have ruled that unless there’s a federal cause of action, you cannot sue airlines. You can sue them, but the only way you can effectively sue airlines now with the laws that are in place is if you’re physically injured or killed in the course of their operation.

Would it behoove people who have the financial means to attempt to sue an airline?

Contracts of carriage [between airline and passenger] can be summed up in one sentence: We can do pretty much whatever we want, whenever we want to do it. But we’ll try to help you get to your destination. That sort of contract is normally called illusory, and even if you find something that is a violation of the contract of carriage, it’s pretty much impractical for a consumer to get any recovery.

The airline deregulation act had a clause put in it called pre-emption, and the intention we believe was to prevent states from re-regulating the airlines. So it says that states can make no law regarding airfares or schedules of airlines. It also added the words “or service,” and “service” was never defined in the statute. The courts have since allowed “service” to be anything an airline does to or for you in the course of their operations—the only exception being in cases of death and physical injury. Whereas service had meant in the airline industry, we are providing service from New York to LA three times a day. It had a technical meaning. But that broad meaning has been endorsed by the U.S. Supreme Court. So that’s the law of the land now. That also makes the airlines exempt from all state and local and most federal consumer protection laws. It makes them exempt from most contract law—at least the kind of contract law that affects consumer contracts. Also unlike any other industry, if you have a claim, say, against a travel agency or a hotel or restaurant, you can go into state court or small-claims court. Now you can do that if you sue an airline, however, they have the unrestricted right to remove the case to U.S. District Court.

So in the case of David Dao, since he was physically injured, he had the legal grounds to file suit. And United probably wanted a quick settlement.

That was stated up front by the airline CEO after the first few days when the video went viral. Practically, a billion people have seen that video. So the airline was under enormous pressure. We don’t know what would have happened if there’d been no video. But my guess would be that [Dao] would have been criminally charged. And he would be probably out on bail. And he would have to, not worry about hiring a tort lawyer, he would have to have a criminal defense lawyer—because he disobeyed the instructions of the flight attendant to vacate his seat. If you read the police report, and you read the reports that were issued by the airline personnel, they say that they used minimal necessary force—that was signed by the police supervisor and two of the officers. The Department of Transportation, I’m told, has also completed their investigation, and they have exonerated the airline. So—but for that video—[Dao] would have been in big trouble.

So would you advise all travelers to carry a cellphone with a camera?

Yes.

What do you get asked most frequently by the traveling public?

The most common question I get is—considering all the things that are going on—What can the individual traveler do when they run into a problem? First of all, they need to know their rights. We have a comprehensive Q&A on our website: flyersrights.org. If you get in trouble while you’re traveling—or afterward even—we have a toll-free hotline, which is (877) 359-3776. We have a department that handles calls, and it’s completely free.

Another thing you can do is to join an organization like Flyers Rights because without a large organization, the airline lobby not only outnumbers and outspends us a thousand to one, it’s also very hard to get Congress to pay attention to anything that is really needed.

And the last thing—and I think this is probably the most important—is when you travel these days is you need to have a Plan B. You cannot rely on the fact that you’re going to be getting from Point A to Point B on time. Your flight may be canceled, particularly if you have connections to make. If you have events that you need to be at, you need to realize that there’s chance you may have a delay. You need to plan ahead as much as possible.

When your flight is cancelled or excessively delayed domestically, the only thing you can really do is—other than negotiate with the airline and try to get them to endorse your ticket to another carrier, which they don’t have to do, and very few will do now. That’s one of our reforms is to get that put back into the law. But you can get what’s called an involuntary refund on the part of your trip that was cancelled or excessively delayed. Then you can take alternate transportation to your destination. You don’t have to accept coupons. You don’t have to accept the excuse, “You know, we’re sorry, there’s nothing we can do. Come back tomorrow. And we’re not going to provide you with anything else, like meals or lodging.” So those are the things that I think are most relevant to the individual.

One thing I would add, is if your trip is international, which is probably about 20, 25 percent of all the flights now, there is another law under the Montreal Convention that provides for damages of up to $5,500 for a delay. And the burden of proof is on the airline to show that they took all reasonable, possible steps to avoid or mitigate the delay. You won’t hear about this from the airlines. And the Department of Transportation has managed to keep it concealed from people, but that is the law. Even if the delay occurs in the U.S., if it’s part of an international itinerary, that takes effect and it overrides all the domestic contracts that say you don’t have these rights.

So this law would take effect if, let’s say, you’re flying on a United Airlines flight from Washington Dulles to Paris Charles de Gaulle?

Yes, it would even apply to, say you booked a flight from Atlanta on United to JFK, and then you were flying on United or on a partner airline from JFK to Paris, and the delay occurred in Atlanta, that would be covered.

What is the name of this law?

It’s Article 19 of the Montreal Convention of 1999, and anyone can Google it, and you can pull it up. There are also European Union rules that provide for a schedule for delay compensation. All of that is also on our website, under “Know Your Rights.”

Diane Tedeschi | READ MORE

Diane Tedeschi is a Senior Associate Editor at Air & Space.