The FAA recently issued a “Clarification” regarding its November 20, 2007 Airline Passenger Rights Advance Notice of Proposed Rulemaking (ANPRM). The ANPRM requested comments on whether DOT should adopt a rule to enhance airline passenger protections that would (1) require carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage; (2) require carriers to respond to consumer problems; (3) deem operating a chronically delayed flight to be unfair and deceptive; (4) require carriers to publish delay data; (5) require carriers to publish complaint data; (6) require on-time performance reporting for international flights; (7) and require carriers to audit their compliance with their customer service plans. The ANPRM also discussed the issue of whether the rules, if adopted, would pre-empt the current attempts by many states to pass their own passenger rights legislation. The ANPRM concluded that it “does not propose any regulation that * * * preempts State law.”
Subsequently, DOT received a number of comments that, presumably, pointed out to DOT that its statement was inconsistent with Section 41713 of the Airline Deregulation Act (ADA) which provides that “a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier,” and contrary to Supreme Court opinions that have consistently interpreted the ADA broadly so as to preclude any regulation of airline services other than by the Federal government. Based upon these comments, DOT “determined that this statement has been misconstrued in the overall context of the proposed DOT regulation and its impact upon State law.”(emphasis added).
As a result, DOT’s “clarification” states that “any State or local rules addressing, or related to, the services offered by air carriers are already preempted under the ADA.” It also notes that “if the proposed rule addressed in the ANPRM is finalized, it is likely that the final rule would also separately preempt any such State or local regulations under other provisions of law.”
I don’t know about you, but this appears to be a “correction,” rather than a “clarification.” Regardless of how it is characterized, I think its issuance was appropriate to make sure that DOT does not unnecessarily provide any further opportunities for attempts to water down the ADA’s pre-emptive effect. The “clarification” properly aligns DOT with existing law and the ANPRM, if ultimately adopted, will hopefully enhance the uniform application of the ADA to airline services in lieu of potentially, and quite likely, inconsistent attempts by states (and litigants) to regulate airline service.
