Sunday, 18 February 2007

The Amazing Race 11 (All-Star Edition), Episode 1

Miami, FL (USA) - Quito (Ecuador) - Cotopaxi National Park (Ecuador)

The cast of The Amazing Race , which started its new All-Star season tonight with relatively short flights from Miami to Quito, Ecuador, typically spend about two weeks of the month-long race around the world on airplanes or in airports. That's par for the course: the quickest real-life trip around the world typically involves about a week of air travel time, and the televised race (like most real trips) involves more than a minimal number of stops, and often a somewhat circuitous and lengthier route than would be fastest.

So for the racers, as for many business travellers as well as those "leisure" travellers who try to crowd too much travel into too little time, the experience of travel is primarily the experience of airplanes and airports -- a phenomenon insightfully explored by Pico Iyer in the chapter on Los Angeles International Airport (LAX) in his book, "The Global Soul".

I enjoy the different perspective on the world one gets from 10,000 meters (33,000 feet), and the vastly greater safety of air travel compared to any other means of transportation. But that doesn't mean I enjoy it when my flight is cancelled or delayed, when I'm on a plane that sits on the runway for hours, or when the airline fails to tell the passengers -- its customers -- what is happening or when (if ever) they can expect to get where they have paid to be transported.

That's the issue that's in the news this week, with some JetBlue Airways passengers having been trapped on planes, on the ground, for more than ten hours while waiting to take off during an ice storm in New York.

What happened to the JetBlue passengers was, obviously, outrageous, and JetBlue has a history of putting their foot in their mouth in response to scandals about their business practices -- as when I exposed that they had turned over their entire historical archive of reservations to a military contractor for the since-discredited and officially disbanded (although continuing under other names) Total Information Awareness surveillance research program.

The problem of cancelled flights was worse for JetBlue and its customers than it would have been for another airline, since by its own choice JetBlue, unlike most "legacy" airlines, has no interline agreements to permit them to endorse tickets to other airlines -- a problem I've mentioned previously in relation to "The Amazing Race".

But JetBlue was, in fact, acting according to industry norms. Every year or two, a planeload of people gets held on a plane for hours, forbidden (for "security" reasons) from walking down the steps and across the ramp back to the terminal. In recent years, these incidents have involved Northwest Airlines, American Airlines, and United Airlines, among others. It could equally have been almost any other airline in the USA.

I once spent five or six hours on the tarmac in New Delhi -- although to be fair to Thai Airways, it was more comfortable on their plane than in the terminal at Indira Gandhi International Airport, foreign airlines' norms of service are much higher than those of USA-based airlines, and none of us were demanding to get off. My trip home from Washington yesterday involved a more unpleasant series of events, including two successive flights cancelled because of mechanical difficulties, and being sent to the furthest terminal of a very large hub airport, and back again, twice (accompanied by another passenger with a bad leg, for whom the requested wheelchair transfer had not been provided), without being told that the alternate flight on which we were being rebooked was also delayed indefinitely and might be cancelled.

In response to this week's public hue and cry, Senator Barbara Boxer of California announced on Thursday that she plans to introduce Federal legislation in the USA for an "airline passengers' bill of rights".

By coincidence, I was in Washington this week for an aviation security conference (from which I and the rest of the press were expelled , in breach of my registration contract, after I was invited and paid the fee to attend). When Senator Boxer made her announcement, I was already scheduled to meet with her staff the next day, Friday, on issues including airline passengers' rights.

I don't know what will be in Boxer's bill, but previous proposals for an "Airline Passengers' Bill of Rights" have varied widely. About a dozen such bills were introduced in Congress in 1999-2001: go here to the Library of Congress legislative archive, click the "check all" box to search all past Congresses, and search for "airline passenger rights". None of these measures got out of committee or to a vote on the floor of the House and Senate, and since 11 September 2001 Congress has focused on airline "security" rather than airline consumer protection.

It's easy to say, "There ought to be a law". It's much harder to write a law that will be effective.

Most of the past proposals have tried to define minimal standards for humane treatment of passengers, especially once they are trapped on a plane with the doors closed, at the mercy of the airline. The big legislative differences have been in enforcement mechanisms.

As I told Boxer's staff, I've interviewed the top enforcement officials of the USA Department of Transportation (DOT), and they've made no secret of the fact that they have neither interest nor resources to police airlines' treatment of passengers or enforce the consumer protection provisions of Federal laws that already apply to airlines. Given that the stated policy of the DOT -- reconsidered and reaffirmed just last year -- is to use "prosecutorial discretion" not to enforce the existing Federal law which prohibits deceptive advertising of incomplete prices for airline tickets, there's no reason to expect them to do a better job of enforcing new standards for passenger treatment.

It costs an airline around US$5,000 an hour to hold a plane on the ground, so current maximum fines of US$1,000 per incident for violations of Federal rules for treatment of passengers aren't large enough to have much impact on an airline's bottom line or behavior. Some of the past proposals for a "Passengers' Bill of Rights" would have increased the potential fines to as much as US$100,000, but that won't matter unless the DOT actually polices violations and imposes maximum fines, neither of which seems at all likely. And as of now, the only way for aggrieved passengers to sue an airline is to bring suit in Federal court, a process that typically requires a lawyer, costs tens of thousands of dollars, and takes years to produce a decision.

What's needed is the ability for state and local consumer protection officials (the "fraud squad"), and/or travellers themselves, to seek redress of grievances against the airlines under existing state and local consumer protection in the existing state courts, including small claims courts (there is no Federal small claims court) that already hear most consumer complaints.

That's what 45 state Attorneys General called for in 2000 in a formal request to Congress to end or narrow the "preemption" of state jurisdiction over airlines' treatment of their customers, a position that underlies more recent objections by Attorneys General to moves to weaken already weak Federal enforcement of rules protecting airline passengers.

Some of the 2001 and earlier bills included provisions to clarify that, in reserving exclusive Federal jurisdiction to control fares and routes, Congress had not intended to exempt the airlines totally from state and local action for fraud, deceptive advertising, or breach of contract.

I told Boxer's staff that such language is essential to give enforcement "teeth" through state courts, including small claims courts, to any meaningful "Airline Passengers' Bill of Rights".

If you are contacting your Representative or Senators about this, urge Congress to address the "Federal preemption" of regulation of the airlines, so that airlines can be held to the same standards of truth in advertising and enforcement of contract terms as any other businesses.

More importantly, though, the unconscionable mistreatment and delay of a few hundred or thousand passengers a year by "we don't care; we don't have to" airlines is small compared to the injustice visited on half a million would-be passengers a year who have been completed denied their right to travel on the basis of secret "threat scores" generated by a secret "Automated Targeting System" on the basis of secret dossiers on their travel history and other records maintained by the government and compiled from airlines and other unnamed private sources. Most of these people are entirely innocent, and all of them should be presumed innocent, since none have been afforded a court hearing on the secret extrajudicial administrative orders barring them from travelling by airline or other common carrier.

If Senator Boxer, or other members of Congress, are serious about protecting the rights of travellers, the most important thing is for them to uphold our fundamental right to travel . That right is already guaranteed by the Universal Declaration of Human Rights and in more detail by Article 12 of the International Covenant on Civil and Political Rights .

The ICCPR has been signed and ratified by the USA and most other countries. But it isn't "self-effectuating", and there's great reluctance by many people in the USA to allowing international bodies (like the U.N. Human Rights Committee, which interprets the ICCPR) to have jurisdiction over people and activities in the USA. The USA has never taken the final small but necessary step, as required by the terms of the treaty, to make it not merely binding on the USA but enforceable in U.S. Federal courts.

As I told Boxer's staff, if anyone in Congress really wants a Bill of Rights to protect travellers, they should start by introducing and enacting a bill to grant jurisdiction to the Federal courts to hear cases ("causes of action") arising under the ICCPR, including its Article 12 protecting the right to freedom of movement.

What do you think? Let me know -- and let Congress know. I'll be talking about the proposed "Airline Passengers' Bill of Rights" on KNX radio (1070 AM in Los Angeles) from 11 a.m. to noon Pacific time (GMT - 8) on Monday, 19 February 2007. You can listen online or on the air, and call in with your comments, questions, and opinions.

[Addendum: Showing why an "Airline Passengers' Bill Of Rights" needs to address the human rights and civil liberties that some people in the USA have forgotten, and not just customer service issues, right-wing commentator Michelle Malkin has this to say about it: "I have to tell you, in general, I'm skeptical of anything that has Bill of Rights tacked on to it."]

Link | Posted by Edward on Sunday, 18 February 2007, 23:59 (11:59 PM) | TrackBack (0)
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