Last week President Trump signed into law the FAA Reauthorization Act of 2018 (“the Act”). The Act touches on virtually every aspect of commercial air travel, including airport improvement programs, aircraft noise, flight standards and safety, and unmanned aircraft systems. This bulletin addresses consumer protection provisions contained in the Act.
In the past ten years, the U.S. Department of Transportation (DOT) has issued numerous regulations and frequently publishes subsequent guidance and position statements promoting the rights of consumers and passengers with disabilities in air travel.1 The Act addresses a number of subjects which the DOT either currently regulates or has proposed regulating. In some instances, the Act requires air carriers to make certain changes; in other cases, the Act directs the DOT to issue a rule in accordance with formal rulemaking procedures.
First, the Act bars air carriers from denying boarding to passengers who have checked in and whose tickets have been accepted by the gate agent. It also requires the DOT to review air carrier policies, and to revise regulations to clarify that there is no maximum level of compensation to be paid to a passenger who is involuntarily denied boarding, and further that a carrier must proactively offer to pay compensation to those denied boarding.
The Act also requires air carriers to submit a one-page document to the DOT, outlining the rights of passengers, including the various forms of compensation in the event of flight delays and cancellations or for mishandled or lost baggage, and their practices concerning voluntary and involuntarily denied boarding. This document also must be made available in a prominent location on the carrier’s website.
In the event of a widespread disruption, defined as the interruption of most or all of the carrier’s system-wide operations, the carrier must “immediately publish” on its website whether it will provide accommodations and alternate transportation for affected passengers.
The Act further requires that air carriers disclose that a destination country may require the carrier to use insecticides prior to or during a flight. It also modifies the definition of “smoking” to include e-cigarettes, the use of which are now barred on flights.
Finally, the act establishes civil penalties relating to bodily harm experienced by passengers with disabilities or damage to a wheelchair or other mobility aid.
Rules Still to be Written by the DOT
The Act requires that the DOT engage in formal rulemaking to address a variety of topics. First, it directs the DOT to issue regulations barring individuals from using mobile telephones during a domestic scheduled flight. The DOT also must promulgate regulations directing air carriers to promptly refund fees paid for ancillary services the passenger did not receive on a scheduled flight, or on a replacement itinerary following a rescheduling, or for a flight not taken by the passenger.2
The Act also directs the DOT to engage in rulemaking to define the term “service animal” and develop minimum standards and clarifications for what is required for service and emotional support animals that are to be carried in aircraft cabins. In conducting the rulemaking, the DOT must consider, among other things: (1) reasonable measures to ensure pets are not claimed as service animals, such as requiring documentation from a physician identifying the tasks the animal provides its owner; and (2) reasonable measures to ensure passenger safety, such as requiring health and vaccination records.3
The DOT also is required to review the rate at which air carriers change passenger itineraries and do not offer compensation or other suitable air transportation in the following circumstances: 1) the change is made more than twenty-four (24) hours prior to departure; 2) the itinerary will involve additional stops; or 3) departs three (3) hours earlier or later.
The Act also directs the DOT to develop a document to be known as the “Airline Passengers with Disabilities Bill of Rights” which describes the basic protections and responsibilities of passengers with disabilities, air carriers, and their employees and contractors. Air carriers will be required to submit to the DOT their plans to ensure employees receive training on these protections and responsibilities. Carriers also must post the Bill of Rights on their websites and provide a copy to passengers with disabilities who request pre-flight accommodations.
Finally, the Act requires that the Comptroller General submit to Congress a report describing domestic air carriers’ training policy for employers and contractors regarding racial, ethnic and religious nondiscrimination.
The passage of the FAA Reauthorization Act is a relatively rare act of bipartisanship that will require air carriers to adjust their consumer protection policies. Based on the rulemaking required by the legislation, carriers should continue to expect more new regulations in the coming years.
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1 See Enhancing Airline Passenger Protections I, II, and III, 74 Fed. Reg. 68983 (Dec. 30, 2009), 76 Fed. Reg. 23110 (Apr. 25, 2011), and 81 Fed. Reg. 76800 (Nov. 3, 2016), respectively; Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614 (May 13, 2008).
2 Notably this section of the Act is entitled, “Refunds for Other Fees that are Not Honored by a Covered Air Carrier,” but it appears to also require refunds for services not used simply because the passenger did not take the flight.
3 In May 2008, the DOT issued a Notice of Proposed Rulemaking with the intention to revise disability regulations to ensure individuals with disabilities can continue using service animals, while deterring the fraudulent use of animals that are not qualified as emotional support animals and the use of animals that are not properly trained. The DOT has not yet issued a final rule, and could modify or enlarge the proposed rule in light of the Act.