ANALYSIS OF THE HOUSE AND SENATE 2023-2024 REAUTHORIZATION BILLS

ANALYSIS OF THE HOUSE AND SENATE 2023-2024 REAUTHORIZATION BILLS

February 28, 2024

While falling short of providing the many overdue reforms needed to protect passenger safety and passenger rights, the House and Senate bills contain some important provisions that need to be included or strengthened in the final conference bill.

The House bill’s repeal of the Full Fare Advertising Rule would allow airlines to hide the true cost of transportation from consumers. Such legislation has consistently been proposed by airlines and rejected by Congress on a bipartisan basis in prior FAA Reauthorization legislation.

IMPROVEMENTS AND REFORMS

1. Refund Standards (Senate § 703)

Section 703 codifies the current refund requirement for canceled flights into the U.S. code and adds a refund requirement for significantly delayed or significantly changed flights. The section requires a refund by credit card within 7 business days and a refund by other forms of payment within 20 days after the refund request.

Section 703 defines a significant delay or schedule change as one that postpones the arrival time by three or more hours for domestic flights and six or more hours for international flights. Airlines must also create a refund portal that is prominently displayed at the top of the airlines’ homepage.

2. Unrealistic or deceptive scheduling practices (Senate § 702)

Section 702 clarifies the Secretary’s 49 U.S.C. § 41712 authority to include the prohibition of unrealistic and deceptive scheduling. It orders the Secretary to initiate a rulemaking to implement recommendations made by the Aviation Consumer Protection Advisory Committee.

3. Codifying ancillary fee transparency rulemaking (Senate § 705)

Section 705 clarifies the Secretary’s 49 U.S.C. § 41712 authority to include the requirement of airlines to provide passengers with current, accurate, and usable information on critical ancillary fees. This information must be provided to the consumer prior to booking in a manner that allows for a more informed decision, and airlines are given the flexibility in deciding the manner in which the information is conveyed. The ancillary fees that are included are first and second checked bag fees, first carry-on bag fee, change and cancellation fees, and adjacent seating fee for a child that is 13 years or younger, and any other ancillary fee determined by the upcoming final rule arising out of the NPRM “Enhancing Transparency of Airline Ancillary Service Fees.”

This section is not as encompassing as the Department of Transportation’s proposed rulemaking, but it will protect the rulemaking from spurious airline claims that the Department of Transportation does not possess this authority.

4. Airport display of passenger rights information , 24 hour customer service phone and chat, and notice of frequent flyer devaluation and expiration (Senate § 704, § 706, § 707) 

The Senate bill includes several provisions that are intended to increase transparency and notice to passengers. First, airports must prominently display posters throughout the airport that clearly and concisely outline airline passenger rights with respect to refunds, flight delays and cancellations, involuntary denied boardings, and lost, delayed, or damaged baggage.

Airlines would be required to operate a 24 hour toll-free customer service telephone line and either a live customer chat or monitored text messaging system. This recognizes the airlines’ failure to maintain adequate customer service response capabilities during both normal operations and during periods of mass cancellations and disruptions.

Some airlines have largely or totally eliminated telephone customer service already. Without legislation such practices are likely to spread so that only elite travelers will have access to telephone customer service.

Section 707 requires airlines to provide 90 days’ notification of any reduction or devaluation in frequent flyer reward points, benefits, or other value. The airline must inform the passenger of any expiration dates for those benefits and must provide an expiration warning at least 30 days before the expiration date.

Under existing law, airlines are free to devalue or eliminate frequent flyer mile benefits at will with no notice or warning.

5. Family Seating (Senate § 715 and House § 719)

The family seating provisions in both bills require the issuance of a notice of proposed rulemaking within 180 days that would require airlines that assign or allow for the selection of seats to seat a child under the age of 14 adjacent to an accompanying adult, at no fee or cost, if adjacent seats are unreserved at the time of booking.

6. Emergency Evacuation (Senate 732)

Section 732 orders the Administrator to conduct a study into improvements to the emergency evacuation standards, including factors that have not been sufficiently considered in the past or considered at all. These factors include obstacles such as seats, luggage, and language barriers. The Administrator is instructed to establish an Aviation Rulemaking Committee to review the study’s findings. The ARC is to include members representing industry and labor organizations but does not mandate any passenger representatives. The Administrator must submit the ARC report to Congress and quickly commence rulemaking.

An FAA Emergency Evacuation Advisory Rulemaking Committee was previously established in 2019 and issued a report in 2020 with numerous recommendations to improve and update emergency evacuation standards. However, the report was not released to Congress and public until 2022 and none of its recommendations are binding on the FAA. The FAA has not updated its emergency evacuation standards for decades despite Congressional mandates, criticism by the DOT Inspector General, passenger organizations, and others.

7. Minimum Seat Dimensions Rulemaking (House § 720)

Section 720 requires the Administrator to initiate, within 60 days, the rulemaking required by Section 577 of the FAA Reauthorization Act of 2018. If the Administrator declines to initiate the rulemaking, the Administrator must brief and provide the justification to the relevant House and Senate committee.

In 2018, Congress mandated the FAA set minimum seat sizes by 2019, but the FAA has refused to do so, claiming it could ignore this mandate unless it found seat size to be a safety hazard by impairing emergency evacuation. The DOT and FAA have rejected several rulemaking petitions since 2015, outside expert opinions, and the views of thousands in public comments. An appeals court also denied enforcement of the 2018 Congressional mandate in deference to the FAA, holding any legislative mandate needed to be “indisputable.”

It would require an accounting of the Administrator’s refusal to improve evacuation and seat standards. However, there is no penalty for ignoring the mandate or deadline. The FAA has previously ignored many similar mandates, withheld reports from Congress and the public, and made no public accounting of its action or inaction.

INDUSTRY HANDOUT

1. Repeal of the Full Fare Advertising (House § 701)

Section 701 would repeal the full fare advertising rule by limiting the Department’s 49 U.S.C. § 41712 unfair and deceptive practices authority. The repeal would enable airlines to prominently advertise the base fare as long as the taxes, fees, and total cost of the transportation is disclosed separately. This provision represents a major step backwards by allowing the airlines to hide the true cost of transportation, including their own ancillary service fees. For web advertising, taxes and the true cost of transportation may be omitted from the advertisement as long as a link to the information is provided.

FlyersRights.org, established in 2007, is the largest airline passenger organization. It provides legal information to passengers, operates a free hotline for airline passengers 877- FLYERS-6, advocates for passenger rights and interests, represents passengers on the FAA Aviation Rulemaking Advisory Committee dealing with air safety, and maintains a staffed office in Washington, D.C.: FlyersRights.org. Media line: 800-662-1859; hotline@flyersrights.org; 4411 Bee Ridge Road, 274, Sarasota, FL 34233.