Enhancing Airline Passenger Protections, 74586-74603 [E8-28527]

Agencies

• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 236 (Monday, December 8, 2008)]
[Proposed Rules]
[Pages 74586-74603]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28527]



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Part II





Department of Transportation





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14 CFR Parts 234, 259, and 399



Enhancing Airline Passenger Protections; Proposed Rule

Federal Register / Vol. 73, No. 236 / Monday, December 8, 2008 / 
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

 Office of the Secretary

14 CFR Parts 234, 259, and 399

[Docket No. DOT-OST-2007-0022]
RIN No. 2105-AD72


Enhancing Airline Passenger Protections

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Department of Transportation seeks comment on rules it is 
proposing to enhance airline passenger protections in the following 
ways: by requiring air carriers to adopt contingency plans for lengthy 
tarmac delays and incorporate them in their contracts of carriage, by 
requiring air carriers to respond to consumer problems, by deeming the 
continued operation of a flight that is chronically late to be unfair 
and deceptive in violation of 49 U.S.C. 41712, by requiring air 
carriers to publish information on flight delays on their Web sites, 
and by requiring air carriers to adopt customer service plans, 
incorporate these into their contracts of carriage, and audit their own 
compliance with their plans. The Department takes this action on its 
own initiative in response to the many recent instances when passengers 
have been subject to waits on airport tarmacs for very long periods and 
also in response to the ongoing high incidence of flight delays.

DATES: Comments should be filed by February 6, 2009. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2007-0022 by any of the following methods:
    [cir] Federal eRulemaking Portal: go to https://www.regulations.gov 
and follow the online instructions for submitting written comments. A 
standard form has been created for those who wish to use it in 
submitting comments.
    [cir] Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 
20590-0001.
    [cir] Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal Holidays.
    [cir] Fax: (202) 493-2251.
    Instructions: We strongly encourage you to use the standard form to 
submit comments. To access the form, go to https://www.regulations.gov 
and use the SEARCH DOCUMENTS field provided to input the docket number 
for this rulemaking. Then, you can search the index for ``Public 
comment standard form.'' This form may then be moved to your computer 
desktop, where you can type in your comments. You may then attach the 
form when you submit your comments to the docket.
    Using the standard form will eliminate the need for you to type a 
title, headings and questions since the form identifies the rulemaking 
on which you are commenting, sets out the headings identified in the 
SUPPLEMENTARY INFORMATION section of this document and lists the 
questions that we have asked in the NPRM. It will also make it easier 
for you, other commenters and the Department to easily search or sort 
the comments submitted on the various issues in the rulemaking.
    If you do not use the standard form, you must include the agency 
name and docket number DOT-OST-2007-0022 or the Regulatory 
Identification Number (RIN) for the rulemaking at the beginning of your 
comment. All comments received will be posted without change to https://
www.regulations.gov, including any personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received in any of our dockets by the name of the individual 
submitting the comment (or signing the comment if submitted on behalf 
of an association, a business, a labor union, etc.). You may review 
DOT's complete Privacy Act statement in the Federal Register published 
on April 11, 2000 (65 FR 19477-78), or you may visit https://
DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie, 
Office of the Assistant General Counsel for Aviation Enforcement and 
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave., 
SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax), 
betsy.wolf@dot.gov or blane.workie@dot.gov (e-mail).

SUPPLEMENTARY INFORMATION:

Background

    On November 15, 2007, the Department of Transportation (DOT or 
Department) issued an Advance Notice of Proposed Rulemaking (ANPRM) in 
Docket DOT-OST-2007-22 entitled ``Enhancing Airline Passenger 
Protections.'' This ANPRM was published in the Federal Register five 
days later. See ``Department of Transportation, Office of the 
Secretary, 14 CFR Parts 234, 253, 259, and 399 [Docket No. DOT-OST-
2007-0022], RIN No. 2105-AD72, 72 FR 65233 et seq. (November 20, 
2007).'' We announced in the ANPRM that we were considering adopting or 
amending rules to address several concerns, including, among others, 
the problems consumers face when aircraft sit for hours on airport 
tarmacs and the growing incidence of flight delays. We observed that 
beginning in December of 2006 and continuing through the early spring 
of 2007, weather problems had kept more than a few aircraft sitting for 
long hours on airport tarmacs, causing the stranded passengers undue 
discomfort and inconvenience. We observed further that passengers were 
also being harmed by the high incidence of less extreme flight delays: 
In the first seven months of 2007, only 72.23 percent of flights 
arrived on time, a lower percentage than for the same period in any of 
the previous 12 years. (On-time arrival performance remains 
problematic: It has improved only slightly since the issuance of the 
ANPRM. For the first five months of 2008, it was the second worst for 
these months in 14 years.) We acknowledged that the industry and 
interested observers have attributed both the marathon tarmac waits and 
the epidemic of flight delays to a number of factors besides weather, 
such as capacity and operational constraints, for example. Some of 
these are being addressed by the Federal Aviation Administration (FAA) 
and certain airports in other contexts, but in the meantime, we decided 
to explore the adoption of regulatory measures to address passengers' 
concerns.
    Thus, citing our authority and responsibility under 49 U.S.C. 
41712, in concert with 49 U.S.C. 40101(a)(4) and 40101(a)(9) and 49 
U.S.C. 41702, to protect consumers from unfair or deceptive practices 
and to ensure safe and adequate service in air transportation, we 
called for comment on seven potential measures. We intended these 
measures to ameliorate difficulties that passengers experience without 
creating undue burdens for the carriers. We also posed questions for 
commenters to answer and invited them

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to suggest other measures to address the problems at issue.
    The measures proposed in the ANPRM covered the following subjects: 
Contingency plans for lengthy tarmac delays, carriers' responses to 
consumer problems, chronically delayed flights, delay data on Web 
sites, complaint data on Web sites, reporting of on-time performance of 
international flights, and customer service plans. The specifics of the 
ANPRM's proposals are set forth below in the context of the measures we 
are proposing--or not proposing--in this notice.
    We received approximately 200 comments in response to the ANPRM. Of 
these, 13 came from members of the industry--i.e., air carriers, air 
carrier associations, and other industry trade associations--and the 
rest came from consumers, consumer associations, and two U.S. Senators. 
On the consumer side, some 131 individual members of the Coalition for 
an Airline Passengers Bill of Rights (CAPBOR) filed identical or nearly 
identical comments. CAPBOR's founder and spokesperson, Kate Hanni, also 
filed comments with additional material on behalf of both CAPBOR and 
the Aviation Consumer Action Project (ACAP). Another 34 unaffiliated 
individuals filed comments, as did five other consumer associations: 
ACAP, the National Business Travel Association (NBTA), the Federation 
of State Public Interest Research Groups (US PIRG), Public Citizen, and 
the National Consumers League.
    On the industry side, four carriers filed comments: Jet Airways 
(India), Ltd., Delta Air Lines, Inc., China Eastern Airlines, and 
Virgin Atlantic Airways, Ltd. Five carrier associations filed comments: 
The Association of Asia Pacific Airlines (AAPA), the National Air 
Carrier Association (NACA), the International Air Transport Association 
(IATA), the Air Transport Association of America (ATA), and the Air 
Carrier Association of America (ACAA). Two travel agency associations, 
the American Society of Travel Agents (ASTA) and the Interactive Travel 
Services Association (ITSA) also filed comments, as did the Airport 
Council International, North America (ACI-NA).
    In general, the consumers and consumer associations maintained that 
the Department's proposals do not go far enough, while the carriers and 
carrier associations attributed the current problems mostly to factors 
beyond their control such as weather and the air traffic control system 
and tended to characterize the proposals as unnecessary and unduly 
burdensome. The travel agency associations expressed support for 
consumer protections but not at their members' expense. The commenters' 
positions that are germane to the issues raised in the ANPRM are set 
forth below in the context of the measures we are proposing--or not 
proposing--here.

Notice of Proposed Rulemaking

    Having considered the comments, we have decided to propose rules to 
do the following: (1) Require air carriers to adopt contingency plans 
for lengthy tarmac delays and to incorporate these plans in their 
contracts of carriage, (2) require air carriers to respond to consumer 
problems, (3) declare the operation of flights that remain chronically 
delayed to be an unfair and deceptive practice and an unfair method of 
competition, (4) require air carriers to publish delay data on their 
Web sites, and (5) require air carriers to adopt customer service 
plans, incorporate these in their contracts of carriage, and audit 
their adherence to their plans. We have decided not to propose rules to 
require air carriers to publish complaint data on their Web sites or to 
report on-time performance of international flights. We are proposing 
that the rules take effect 180 days after their publication.
    We invite all interested persons to comment on the proposals set 
forth in this notice. Our final action will be based on the comments 
and supporting evidence filed in this docket, on our own analysis and 
regulatory evaluation, and on the ongoing work of our National Task 
Force to Develop Model Contingency Plans to Deal with Lengthy Airline 
On-Board Ground Delays (Tarmac Delay Task Force).

Proposals

1. Contingency Plans

    The ANPRM: We stated in the ANPRM that we were considering 
requiring every certificated or commuter air carrier\1\ that operates 
domestic scheduled passenger service using any aircraft with more than 
30 passenger seats to develop and implement a contingency plan for 
lengthy tarmac delays. (This plan would apply to all of the carrier's 
flights, including those involving aircraft with 30 or fewer seats.) 
Each covered carrier would be required to incorporate its plan in its 
contract of carriage. This would enable passengers to sue for breach of 
contract in the event that a carrier fails to adhere to its plan. Each 
plan would have to include at least the following: The maximum tarmac 
delay that the carrier will permit, the amount of time on the tarmac 
that triggers the plan's terms, assurance of adequate food, water, 
lavatory facilities, and medical attention, if needed, while the 
aircraft remains on the tarmac, assurance of sufficient resources to 
implement the plan, and assurance that the plan has been coordinated 
with airport authorities at medium and large hub airports. Carriers 
would also be required to make their complete contracts of carriage, 
including contingency plans, available on their Web sites and to retain 
for two years the following information for any ground delay that 
either triggers their contingency plans or lasts at least four hours: 
The length of the delay, the cause of the delay, and the actions taken 
to minimize hardships for passengers. Our proposal did not contemplate 
that the Department would review or approve the plans, but we stated 
that the Department would consider failure to comply with any of the 
above requirements--including implementing the plan as written--to be 
an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 
and therefore subject to enforcement action.
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    \1\ A certificated air carrier is a U.S. direct air carrier that 
holds a certificate issued under 49 U.S.C. 41102 to operate 
passenger and/or cargo and mail service. Air taxi operators and 
commuter air carriers operating under 14 CFR part 298 are exempted 
from the certification requirements of 49 U.S.C. 41102. Some 
carriers that would otherwise be eligible for the air taxi or 
commuter exemption have opted to be certificated. An air taxi 
operator is an air carrier that transports passengers or property 
and is not a commuter air carrier as defined in 14 CFR part 298. A 
commuter air carrier is an air taxi operator that carries passengers 
on at least five round trips per week on at least one route between 
two or more points according to a published flight schedule, using 
small aircraft--i.e., aircraft originally designed with the capacity 
for up to 60 passenger seats. See 14 CFR 298.2.
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    The Comments: CAPBOR and its members believe that this proposal 
does not go far enough. They maintain that the Department should 
establish minimum standards for contingency plans via regulation and 
should also review and approve the plans rather than allow each carrier 
the leeway to set what might well be overly lax standards. They also 
maintain that the Department should monitor carriers' performance under 
their plans. In their view, requiring carriers to incorporate their 
contingency plans into their contracts of carriage will not protect 
passengers, because as a practical matter these contracts cannot be 
enforced. They do support publication of contingency plans in contracts 
of carriage, however, and they argue that these plans should be 
airport-specific to account for differences among airports. CAPBOR and 
its members contend that because an airport's concessions are often 
closed by the time that a flight is cancelled and passengers allowed to 
deplane, we

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should require airports to contract with their vendors to require that 
concessions remain open during lengthy tarmac delays. They request that 
in any rule proposed or adopted, we refer to ``potable water'' and 
``operable lavatories'' rather than simply ``water'' and ``lavatory 
facilities,'' respectively, and that we include a requirement for 
adequate ventilation.
    Individual commenters make similar points. For example, they, too, 
tend to oppose allowing the carriers to set their own standards, 
particularly those involving the amount of time that triggers the 
provisions of the contingency plans or the maximum amount of time on 
the tarmac before the carrier must return to a gate and allow 
passengers to deplane.
    Of the other consumer associations, ACAP concurs with CAPBOR, as 
does U.S. PIRG. The latter suggests three hours as the maximum interval 
before passengers are allowed to deplane. Also concurring with CAPBOR 
are Public Citizen and the National Consumers League. NBTA has a 
different point of view: It contends that customer service is by nature 
market driven and that airlines are better situated than the government 
to gauge both their customers' expectations and whether putative 
protective measures afford benefits that outweigh their costs--costs 
that will inevitably be passed on to the traveling public. NBTA does 
not support requiring the carriers to develop and publish contingency 
plans, but it believes that carriers that do not do so will provide 
poorer service and thus lose business. What NBTA does support is a 
requirement that carriers provide what it calls ``baseline passenger's 
rights'' in whatever way they find most effective and cost efficient. 
NBTA's list of these rights includes access to lavatory facilities, 
access to water or other liquids, access to food for tarmac delays 
lasting more than six hours, ways for passengers with medical 
emergencies to request and receive medical attention, and cabin 
temperature suitable for normal travel attire. NBTA also supports 
requiring carriers to maintain records on lengthy tarmac delays as a 
tool for the Department and others to use for analyzing airline 
performance.
    Senators Barbara Boxer and Olympia Snowe take the position that the 
Department should set minimum standards for protecting passengers 
during lengthy tarmac delays. They believe that passengers should be 
permitted to deplane after three hours on the tarmac.
    As for members of the industry, Delta, the sole carrier that 
commented individually on this proposal, both supports the principle of 
contingency plans for lengthy tarmac delays and states that it has one 
already. Its plan does not have a time limit for tarmac delays, 
however, because in Delta's judgment passengers fare better overall if 
Delta retains the flexibility to respond to each situation as it deems 
appropriate at the time. It contends, for example, that categorically 
requiring the return of planes to the gate after a specified interval 
would probably result in more flight cancellations than occur now. 
Delta opposes mandating coordination with airport authorities in the 
preparation of a contingency plan as ``unnecessary and potentially 
unmanageable.'' Delta does not object to a record-retention 
requirement, but it believes that two years' retention is too long and 
that six months would suffice. It maintains that any such requirement 
should be triggered by a uniform delay interval, set by the Department, 
rather than be permitted to vary from carrier to carrier according to 
disparate contingency plans; Delta itself believes four hours to be a 
reasonable standard. Delta does not address whether the contingency 
plans should be incorporated into the contracts of carriage.
    Of the carrier associations that commented on this proposal, NACA 
agrees in principle that carriers should meet their passengers' needs 
for food, water, lavatories, and, if necessary, medical attention 
during extraordinary ground delays and that they should formulate 
contingency plans for achieving this goal. NACA thinks that the 
Department should work with the carriers to develop guidance on the 
following questions: What kinds of food should passengers reasonably 
expect during a long delay; what should be required on flights whose 
aircraft have limited or no kitchen resources because no food service 
is provided in normal circumstances; what should be expected of 
carriers whose aircraft lack storage capability for additional 
``emergency'' food and that have no catering facilities and no contract 
for catering services at the airport at which they are delayed; and 
what sort of medical attention and supplies can passengers reasonably 
expect? NACA opposes inclusion of carriers' contingency plans in their 
contracts of carriage, because the contracts are legally binding, so 
passengers would have a private right of action against any carrier 
that did not adhere to the provisions of its plan. ``Given the vagaries 
of what would constitute appropriate emergency services,'' NACA states, 
``and in the absence of a specific statutory mandate, we believe that 
the inclusion of such provisions within the contract of carriage 
exposes carriers to a myriad of unfounded lawsuits.'' In lieu of 
incorporation of the contingency plans in the contracts of carriage, 
NACA supports requiring that each carrier provide public notice of its 
plan--for example, by including a notice on its Web site, by posting 
notices at check-in counters, or by including a notice in its in-flight 
magazine or in other materials available to passengers on the plane. It 
suggests that the Department could require all carriers to provide it 
with copies of their plans and then itself make the plans available to 
the public. NACA's comments are endorsed by ACAA.
    ATA commented extensively on this proposal, and IATA supports ATA's 
comments. ATA prefaced its comments by asserting that the Department 
should focus on addressing the root causes of delays, which it 
characterizes as ``insufficient airspace capacity and an operating 
environment handcuffed by outdated radar technology,'' in addition to 
calling for passenger protections. ATA agrees in principle that 
carriers should have contingency plans for lengthy tarmac delays, 
provided that each air carrier is permitted to decide on the details of 
its own plan based on its own unique facilities, equipment, operating 
procedures, and network. ATA not only supports the Department's 
proposal not to prescribe the terms of carriers' contingency plans, but 
it particularly opposes a set interval of time after which an aircraft 
must be returned to the gate, claiming that such a requirement would do 
passengers more harm than good. Among the potential negative 
consequences ATA lists are the required return to the gate when the 
aircraft is next in line for takeoff, potential conflicts with 
governmental orders during a pandemic that passengers be kept on 
aircraft, and conservative decisions that result in wasting passenger, 
aircraft, and crew time and affect downstream connecting passengers 
adversely. ATA also argues that a strict requirement that aircraft 
return to the gate after a set interval would stifle competition: It 
reasons that carriers might otherwise choose alternate ways to address 
the competing passenger interests and needs that arise during a lengthy 
tarmac delay.
    ATA reports that carriers already have both general contingency 
plans and airport-specific contingency plans. It states that carriers 
do not intend to publish the latter, and it recommends that the 
Department allow them flexibility in how they notify consumers

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of the former. Most carriers, it assumes, would post their contingency 
plans on their Web sites. ATA opposes requiring carriers to include 
their contingency plans in their contracts of carriage and in fact 
doubts that the Department has the authority to do this in the 
aftermath of deregulation. As a practical matter, ATA claims, inclusion 
of carriers' general contingency plans in their contracts of carriage 
would require the deletion of technical and operational terms that do 
not belong in a contract and the addition of qualifying statements so 
that carriers would retain the flexibility to make different 
operational decisions depending on the facts of the situation, 
including extraordinary circumstances. ATA also opposes requiring 
incorporation of contingency plans in carriers' contracts of carriage 
because this would expose them to litigation under inconsistent 
standards among the states and among foreign countries. It predicts 
that standards would fluctuate as carriers took steps to minimize their 
exposure. ATA opposes the proposed recordkeeping requirement as 
redundant of other existing and proposed regulations.
    RAA prefaced its comments by asking the Department to keep in mind, 
when proposing rules, what it characterizes as ``the unique 
relationship between most regional airlines subject to the proposals * 
* * and their passengers.'' RAA states that over 90 percent of its 
members' passengers fly under ticketing, marketing, scheduling, and 
passenger processing and handling arrangements that are controlled by 
the major-carrier partners of RAA's members--in fact, these passengers' 
contracts of carriage are with the major carrier, not the regional 
airlines. RAA states further that while its members are responsible for 
operating their flights safely and can cancel or divert them for 
reasons of safety, most delays, diversions, and cancellations are 
determined by the FAA or the regional airlines' major-carrier partners. 
RAA opposes regulations that would burden its members vis-[agrave]-vis 
the railroads and bus companies with which they compete for passengers.
    Regarding contingency plans, RAA asks the Department to let 
airlines adopt plans that reflect their own circumstances, 
capabilities, and passenger service standards. It asks the Department 
to apply requirements for contingency plans and recordkeeping only to 
the airline that has a contract of carriage with the passenger and also 
to require contingency plans of ``other critical parties such as the 
FAA and the airports.'' In RAA's view, requiring enforceable 
contingency plans would be contrary to deregulation and as a practical 
matter would prevent carriers from responding flexibly to the many 
kinds of delays that occur. It states that because contingency planning 
varies from airport to airport, requiring a contingency plan for each 
airport to be published and enforced through the contract of carriage 
would be both impracticable and burdensome. RAA opposes requiring 
carriers to retain records on delayed flights, both as redundant of 
existing requirements of the Department's Bureau of Transportation 
Statistics and as a burden that would yield little if any public 
benefit. RAA contends that its members are constrained not only by 
their major-carrier partners' control over delay decisions and their 
differing standards for passenger service but also by the capacity 
constraints of their own aircraft--aircraft with limited capacity for 
food, water, and lavatory facilities. If contingency plans are to be 
required, RAA takes the position that they should only be required of 
major carriers, with implementation to be arranged by the major carrier 
and its regional airline partners on flights operated with aircraft 
with more than 30 passenger seats. RAA opposes coverage of flights 
operated with smaller aircraft.
    ACI-NA supports this proposal and states that it recently convened 
a meeting of more than 100 officials from airports, airlines, passenger 
organizations, and the federal government to develop an outline for a 
contingency plan. Along with ``best practices'' in place at North 
American airports, this plan will be provided to the Department's 
Tarmac Delay Task Force.
    Of the travel agency associations, ASTA strongly favors requiring 
carriers to adopt contingency plans and requiring the incorporation of 
these plans in air carriers' contracts of carriage, but it believes 
that the proposal in the ANPRM does not go far enough. ASTA implies, 
without explanation, that even with the plans incorporated in the 
contracts of carriage, they will not be enforceable unless the 
Department reviews them. ASTA suggests that any rule that we adopt 
``require very specific plans in the general mode of `if this happens, 
we will take the following specific steps to assure proper care of 
passengers.' '' ASTA also supports the recordkeeping requirement and 
suggests that it be triggered by a delay of three hours. Also, ASTA 
believes that carriers should be required to coordinate not only with 
airport authorities at medium and large hub airports but with the 
authorities at ``all primary airports.'' ITSA did not address this 
proposal.
    Proposed Rule: We have decided to propose a rule along the lines 
set forth in the ANPRM, and we invite comment from all interested 
persons. Specifically, we propose to adopt a new rule, 14 CFR part 259, 
which, among other things, would require any certificated or commuter 
air carrier that operates domestic passenger service using any aircraft 
with a design capacity of more than 30 passenger seats to develop a 
contingency plan for long tarmac delays of scheduled and public charter 
flights and to adhere to this plan's terms. This plan would apply to 
all of the carrier's scheduled and public charter flights, including 
those with aircraft having a design capacity of 30 or fewer seats. We 
are not proposing that the rule cover single-entity charters and other 
charters in which consumers have some bargaining leverage. The rule 
would require each carrier to incorporate its contingency plan in its 
contract of carriage. At a minimum, each plan must include the 
following: The maximum tarmac delay that the carrier will permit, the 
amount of time on the tarmac that will trigger the plan's terms, the 
assurance of adequate food, water, and lavatory facilities, as well as 
medical attention if needed, while the aircraft remains on the ground, 
assurance of sufficient resources to implement the plan, and assurance 
that the plan has been coordinated with airport authorities at medium 
and large hub airports. The rule would require carriers to retain for 
two years the following information on any on-ground delay that either 
triggers their contingency plans or lasts at least four hours: The 
length of the delay, the cause of the delay, and the steps taken to 
minimize hardships for passengers (including providing food and water, 
maintaining lavatories, and providing medical assistance). Failure to 
do any of the above would be considered an unfair and deceptive 
practice within the meaning of 49 U.S.C. 41712 and subject to 
enforcement action, which could result in an order to cease and desist 
as well as the imposition of civil penalties.
    In adopting this approach, we are tentatively rejecting the 
suggestions of those consumers and groups who believe that the 
Department should set minimum standards for the contingency plans 
rather than allow each carrier to set its own standards based on its 
particular circumstances. We continue to be of the tentative view based 
on the information available to us that the Department should not 
substitute its judgment in this area for that of the air carriers. 
Nevertheless, we ask interested

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persons to comment on whether any final rule that we may adopt should 
include either or both of the following: A uniform standard for the 
time interval that would trigger the terms of carriers' contingency 
plans and a uniform standard for the time interval after which carriers 
would be required to allow passengers to deplane. Commenters who 
support the adoption of either or both requirements by rulemaking 
should propose specific amounts of time and state why they believe 
these intervals to be appropriate.
    As for incorporation of the contingency plans in carriers' 
contracts of carriage, at this stage we are tentatively rejecting 
consumers' arguments that this requirement would be ineffectual, 
because no commenter has provided any support for its assertion that as 
a practical matter the contracts of carriage cannot be enforced, 
particularly where class-action litigation is available. We are also 
tentatively rejecting carriers' arguments that we should not require 
incorporation because this would subject them to the risk of 
inconsistent standards among the various jurisdictions. This risk 
exists already, since the carriers' contracts of carriage are 
enforceable in state courts, and it is not increased with the addition 
of new enforceable terms to these contracts. ATA has failed to 
establish that we lack the authority to require that contingency plans 
be incorporated in carriers' contracts of carriage. Our broad authority 
under 49 U.S.C. 41712 to prohibit unfair and deceptive practices 
encompasses this power. Indeed, 14 CFR part 253 shows that we have the 
authority not only to require that contracts of carriage include 
specified terms but also to regulate the means by which contract terms 
are disclosed to consumers. We tentatively believe that in providing 
for private enforcement of the plans as well as enforcement action by 
the Department, we are creating a stronger incentive for carriers to 
adhere to their plans. We invite interested persons to comment on the 
implications of our creating a private right of action based on a 
carrier's failure to follow the terms of its contingency plan. 
Commenters should address the potential for multiple lawsuits by 
classes as well as individual plaintiffs and the potential for 
inconsistent judicial decisions among the various jurisdictions. 
Commenters should also address whether and to what extent requiring the 
incorporation of contingency plans in carriers' contracts of carriage 
might weaken existing plans: That is, would the requirement encourage 
carriers to exclude certain key terms from their plans in order to 
avoid compromising their flexibility to deal with circumstances that 
are both multifarious and unpredictable?
    As for the other points made by consumers, we are not proposing to 
require the plans to be airport-specific, although carriers may choose 
to adopt different standards for each airport in their plans. We are 
not proposing here to require airports to provide for concessions to 
remain open during lengthy tarmac delays, in part because we doubt that 
we have the authority to do so. Our proposed rule does not refer to 
``potable water'' or ``operable lavatories,'' because water and 
lavatory facilities that are ``adequate'' are necessarily potable and 
operable, respectively. Furthermore, the quality of drinking water on 
aircraft is regulated by the Environmental Protection Agency (EPA). Our 
proposed rule does not address ventilation, because we have no basis at 
this stage to assess the adequacy of ventilation or to require 
potentially significant modifications to aircraft.
    As for the other points made by carriers, those that rank 
operational flexibility as their highest priority are free to adopt a 
relatively long interval as their standard for returning a plane to the 
gate and allowing passengers to deplane. Were a carrier to follow this 
strategy only to see its market shares declining vis-[aacute]-vis its 
competitors with shorter intervals in their contingency plans, the 
carrier could amend its plan accordingly. Conversely, were a carrier to 
decide that it wanted to amend its plan to allow itself more time 
before returning the aircraft to the gate, the proposed rule provides 
that the amended plan would only apply to flights that the carrier has 
not yet offered for sale. This condition would protect consumers who 
have booked flights under the impression that they will not be kept on 
the tarmac more than, say, three hours from the unpleasant discovery 
that by the time they actually fly the carrier has amended its 
contingency plan to make that interval six hours.
    As for RAA's requests that we treat regional carriers and their 
larger-carrier code-share partners differently, we have decided not to 
do so at this stage in the rulemaking process. The rule that we are 
proposing would apply to both partners in a code-share arrangement, 
because even if the determination to cancel a flight or keep it on the 
tarmac is made by the major carrier or results from action by the FAA, 
it is the carrier operating the flight that remains directly 
responsible for the passengers for the duration of the delay. We expect 
that the major carriers and their regional code-share partners would 
collaborate on their contingency plans to come up with standards that 
suit both parties. We recognize that the regional carriers' plans would 
reflect the limited size and capacity of their aircraft, and nothing in 
the rule would bar a regional carrier from providing differently for 
aircraft of different sizes.
    Nevertheless, while we are proposing here not to treat regional 
carriers and larger carriers differently in the rule, we invite 
interested persons to comment on whether, in the event that we adopt a 
rule requiring contingency plans, we should limit its applicability to 
carriers that operate large aircraft--i.e., aircraft originally 
designed to have a maximum passenger capacity of more than 60 seats. 
Proponents of this alternative approach should provide arguments and 
evidence in support of their position, as should opponents.

2. Response to Consumer Problems

    The ANPRM: This proposal would require every certificated and 
commuter air carrier that operates domestic scheduled passenger service 
using any aircraft with a design capacity of more than 30 passenger 
seats to address mounting consumer problems in the following ways: At 
its system operations center and at each airport dispatch center, 
designate an employee to be responsible for monitoring the effects of 
flight delays, flight cancellations, and lengthy tarmac delays on 
passengers and have input into decisions such as which flights are 
cancelled and which are subject to the longest delays; on its Web site, 
on all e-ticket confirmations, and, on request, at each ticket counter 
and gate, inform consumers how to file a complaint with the carrier 
(name of person or office, address, and telephone number); and send a 
response to each consumer complaint received within 30 days of receipt.
    The Comments: CAPBOR and its members support the proposal and take 
the position that carriers should be required to provide postal 
addresses, telephone numbers, and e-mail addresses for customer 
service, to acknowledge receipt of a complaint within 24 hours, to 
resolve the complaint within 30 days of receiving it, and to notify the 
Department if the passenger disagrees with the resolution. In addition, 
CAPBOR calls for a requirement that consumers' complaints to the 
carriers and complaints that the Department refers to the carriers be 
combined and tabulated by category, with the results made available to 
the public every month.
    Of the individual commenters, one agrees in principle with the 
proposal

[[Page 74591]]

but voices concern over the cost of creating a position at each airport 
for responding to complaints, reasoning that this would not affect 
delays. Another voices concern that not all consumers have access to 
the Internet and favors requiring travel agents to provide the 
information on where to complain as well.
    Of the other consumer associations, ACAP and U.S. PIRG concur with 
CAPBOR, Public Citizen concurs with CAPBOR and U.S. PIRG, and the 
National Consumer League concurs with U.S. PIRG. NBTA, in contrast, 
characterizes the proposal as micromanagement of airline customer 
service. NBTA maintains that most if not all carriers have customer 
service departments to address problems that arise and that poor 
responses will affect consumers' business decisions.
    Delta is again the only carrier that commented individually on this 
issue. Delta deems a regulation requiring the designation of carrier 
employees responsible for what it characterizes as responding to and 
managing extended ground delays and flight cancellations, and 
prescribing such employees' locations, to be unnecessary, because such 
a requirement is implicit if the Department mandates contingency plans. 
Delta is concerned, moreover, that the proposal could work to undermine 
carriers' ability to establish processes and management hierarchies 
that ensure compliance with their contingency plans. Delta states that 
it is committed to providing multiple customer-friendly channels for 
complaints, and given the rapid development of communication 
technologies, the carrier opposes making the use of particular channels 
mandatory. Delta opposes a 30-day requirement for responding to 
consumer complaints and posits 60 days as the current industry 
standard. It cautions that in cases involving international travel, 
particularly under code-sharing arrangements, ``coordinating the best 
solution for the customer may require more than 30 days, especially if 
a detailed investigation is needed.'' In addition, Delta is concerned 
that seasonal surges in complaint volume or unexpected events could 
mean financial hardship for a carrier that was required to increase 
staffing temporarily to respond to all complaints within 30 days.
    Of the carrier associations, NACA states that its members already 
monitor their flight operations at each airport and maintains that it 
should be up to each carrier to decide if it wants to have this be one 
employee's sole responsibility or include it with an employee's other 
responsibilities. As for responding to complaints, NACA contends that 
the Department should specify how complaints are to be lodged with the 
carriers if it is going to require a response to each complaint. 
Whether the complaint is handed to an airline agent at the airport, 
submitted via e-mail, or sent by U.S. mail, the complainant should be 
required to have proof that the carrier received the complaint. NACA 
believes 30 days to be insufficient for responding to complaints but 
would accept a 45-day requirement even though it prefers 60 days. 
NACA's comments are endorsed by ACAA.
    ATA, with IATA's endorsement, supports requiring carriers to 
respond to consumer problems and cites the voluntary commitments to do 
so that a number of carriers have long had in place. ATA states that 
its members agree that consumers should receive responses to their 
complaints within 30 days when practicable, provided that by 
``response'' the Department means notification that a complaint has 
been received and is being reviewed and that by ``complaint'' the 
Department means a passenger's complaint that raises customer service 
concerns and that is submitted to the carrier's customer relations 
department. It contends, however, that resolving complaints in only 30 
days is difficult if not impossible. ATA supports the idea of 
designating an employee at a carrier's systems operations center to 
monitor the effects of flight delays and cancellations, provided that 
the designee is a current employee who carries out other 
responsibilities as well. It does not support requiring such an 
employee at each airport dispatch center, claiming that this would 
duplicate existing procedures and would strain carriers' resources 
without lessening the problems that consumers face. ATA supports 
allowing each carrier to choose the means by which it receives 
complaints and responds to them, and it supports requiring carriers to 
post information on contacts for complaints on their Web sites. It 
opposes requiring this information on e-tickets as redundant, if the 
information is on the carriers' Web sites, and burdensome, as carriers 
would have to change the printing format for e-tickets to accommodate 
the new information. Thus, ATA argues, the benefit of including 
complaint information on e-tickets would outweigh the cost, 
particularly in the absence of any evidence that users of e-tickets are 
experiencing any difficulty in finding this information at present.
    RAA urges the Department to let carriers monitor the effects on 
passengers of flight delays, flight cancellations, and lengthy tarmac 
delays by whatever means they choose, given the wide variety of 
circumstances among all carriers and between major and regional 
carriers. It asserts that for its members, designating a single person 
rather than making all employees responsible for taking passengers' 
interests into account might be wasteful if not counterproductive given 
how they may well have little if any control over decisions on delays, 
diversions, and cancellations. As far as consumer complaints are 
concerned, RAA asserts that the best means for giving contact 
information may similarly vary among carriers and between major and 
regional carriers. Tickets for RAA's members' code-share services are 
typically sold and issued by their major-carrier partners, which often 
staff the ticket counters and gates that consumers use as well. Under 
these circumstances, RAA contends, its member carriers should not be 
held responsible for telling consumers how to file complaints. RAA 
states that when a major carrier receives a complaint that involves its 
regional carrier partner, it coordinates with the latter to gather 
facts so that it can respond to the consumer. Like ATA, RAA maintains 
that 30 days is sufficient for acknowledging receipt of a complaint but 
too little time for resolving one. Finally, RAA takes the position that 
any requirements adopted should only apply to flights operated with 
aircraft seating at least 30 passengers and not to flights operated 
with smaller aircraft.
    ACI-NA supports this proposal but did not specifically address it.
    Of the travel agency associations, ASTA agrees in principle with 
carriers' having an employee responsible for monitoring the effects of 
schedule disruptions on passengers and having input in the decisions 
made but doubts that this requires as many individuals as the proposal 
contemplates given current communications technology. ASTA supports a 
period of 30 days for responding substantively to consumer complaints. 
It opposes allowing individual carriers to choose how complaints may be 
filed, supporting instead a uniform requirement that complaints be 
accepted by telephone, by U.S. mail, and by e-mail. ITSA did not 
address this issue.
    Proposed Rule: We have decided to propose a rule along the lines 
set forth in the ANPRM, and again we invite comment from all interested 
persons. Specifically, our proposed new rule, 14 CFR part 259, includes 
a requirement

[[Page 74592]]

that every certificated and commuter air carrier that operates 
scheduled domestic passenger service using any aircraft with a design 
capacity of more than 30 passenger seats respond to consumer problems 
concerning its scheduled flights in three ways. First, at its systems 
operations center and at each airport dispatch center, the carrier 
would have to designate an employee who monitors the effects of flight 
delays, flight cancellations, and lengthy tarmac delays on passengers 
and has input into decisions on which flights to cancel and which to 
delay the longest. We anticipate that these responsibilities would be 
borne by current employees in addition to their other responsibilities; 
we do not intend for any carrier to have to hire new employees to 
comply with this regulation. Second, on its Web site, on all e-ticket 
confirmations, and, upon request, at each ticket counter and gate, the 
carrier would have to inform consumers how to file a complaint by 
providing the name, address, telephone number, and e-mail or Web-form 
address of the appropriate person or office. Carriers would be given 
180 days to modify their Web sites and reformat their e-tickets before 
this requirement would take effect. Third, for each complaint filed, 
the carrier would have to acknowledge receipt to the consumer within 30 
days and provide a substantive response within 60 days of receiving it. 
By ``substantive response,'' we mean a response that addresses the 
specific problems about which the consumer has complained. We are not 
proposing that this provision cover public charter operations. 
Complaints about public charter flights are filed not with the carrier 
but with the Public Charter Operator; also, the carriers operating 
these flights may not have employees at each airport that they serve.
    In adopting this approach, we are tentatively rejecting as 
unrealistic CAPBOR's contention that we should require acknowledgement 
of a complaint's receipt within 24 hours and a resolution of the 
complaint within 30 days. The deadlines that we are proposing represent 
standard practice in the industry and should allow carriers adequate 
time to investigate and respond appropriately. We are addressing 
carriers' opposition to hiring new employees to do work that is 
redundant by clarifying that this is not our intent. We are tentatively 
rejecting carriers' arguments that we should not make any particular 
complaint channel mandatory, because we recognize that not all 
consumers have access to the Internet. Some consumers traveling on e-
tickets purchased by a third party or by telephone may not have access 
to the Internet themselves. We are tentatively rejecting ATA's 
contention that requiring carriers to provide information on e-tickets 
regarding how to complain is redundant and burdensome, because ATA has 
not supported this contention. Under the proposed rule, an electronic 
e-ticket confirmation or itinerary may include a link to the complaint 
information in lieu of displaying the entire text. We invite ATA to 
provide evidence on the costs to carriers of changing the format for e-
tickets to accommodate the new information in its comments on this 
proposal. We are tentatively rejecting RAA's contention that its 
members should not be required to tell consumers how to file 
complaints. The rule by its terms would not require those regional 
carriers that do not have Web sites or ticket counters or issue e-
tickets to provide information on filing complaints via these channels. 
Passengers of these carriers who wish to complain should be able to 
find out at the gate how to do so. RAA provides no basis for its 
assertion that flights operated with aircraft seating fewer than 30 
passengers should be exempt from this requirement.

3. Chronically Delayed Flights as Violations of 49 U.S.C. 41712

    The ANPRM: This proposal would codify the Department's 2007 
enforcement policy on chronically delayed flights. The proposed new 
text would define a chronically delayed flight as a flight by a covered 
carrier that is operated at least 45 times in a calendar quarter and 
arrives more than 15 minutes late more than 70 percent of the time. It 
would define a covered carrier as one that reports on-time performance 
data to the Department under 14 CFR part 234--i.e., a certificated U.S. 
carrier that accounts for at least one percent of domestic scheduled 
passenger revenue. The text would state that the Department considers a 
chronically delayed flight to be an unfair and deceptive practice and 
an unfair method of competition within the meaning of 49 U.S.C. 41712 
if it is not corrected before the end of the second calendar quarter 
following the one in which it is first chronically delayed.
    The Comments: CAPBOR supports this proposal but believes that 
carriers should not be allowed a full six months to correct chronically 
delayed flights and that the Department should automatically impose 
civil penalties whenever a flight becomes chronically delayed in any 
given quarter. CAPBOR also favors stricter standards than the ones that 
we proposed: Specifically, that the rule should apply to flights 
operated at least 24 times in a calendar quarter and that flights 
should be deemed chronically late if they arrive at least 15 minutes 
late more than 50 percent of the time. Ms. Hanni goes further and calls 
for an even lower threshold of 40 percent. CAPBOR wants the Department 
to make certain that carriers cannot evade the rule by changing the 
number of a flight or changing its departure time by a few minutes. Ms. 
Hanni adds that the Department should also address the problem of 
chronically cancelled flights by regulation.
    None of the individual commenters addressed this proposal. Of the 
other consumer associations, ACAP concurs with CAPBOR, as do U.S. PIRG, 
Public Citizen, and the National Consumers League. NBTA alone supports 
the proposal as drafted.
    Delta, the only carrier that commented individually on this issue, 
takes the position that the Department should use the standard proposed 
as a rebuttable presumption that a flight violates 49 U.S.C. 41712 
rather than as a rule. In Delta's view, the Department must also 
consider in each case whether the carrier has intended to deceive the 
public or compete unfairly, because flights may fail to operate on time 
for an extended period for many reasons that are beyond the carrier's 
control. For example, if a flight performs erratically due to 
unpredictable delays attributable to problems in the national air 
traffic control system, the carrier cannot solve the problem by 
extending the block time to make the flight operate on time more 
consistently: This would make the flight arrive early when the system 
functions properly, which in turn could cause disruptions and tarmac 
delays at the destination airport. Another example would be a period of 
harsh and unexpected weather arriving just when a carrier thought that 
it had solved the problems that had made a flight late. Delta warns 
that adopting a rigid standard for enforcement could result in 
carriers' cancelling flights or arbitrarily retiming them 
significantly, thus creating ``new'' flights, solely to avoid 
enforcement action and even though they might otherwise have eventually 
solved the scheduling problems. Delta warns that this approach is in 
turn likely to cause passengers more inconvenience than would 
continuing to try to address the real issues affecting a flight's 
performance. In cases where the actual individual delays of a given 
flight are relatively small--say 16 minutes, for example--passengers 
fare better if the flight is maintained than if it is cancelled 
altogether.

[[Page 74593]]

    Delta opposes expanding the definition of a chronically delayed 
flight to include international flights to and from the United States. 
It claims that any carrier's ability to adjust the timing of such 
flights is limited by time zone issues and consumers' preference to 
arrive at foreign destinations at particular times. Additionally, 
foreign laws and airport authorities may limit a carrier's ability to 
adjust schedules or address other operational factors that affect on-
time performance.
    In Delta's opinion, adopting the proposal as a rule would not 
result in improvement of on-time performance, because carriers already 
deem customer satisfaction to be critical to their success and are 
therefore already doing whatever they can to meet their schedules. 
Rather, Delta suggests, the government should use its resources to 
improve the air traffic control system. The carrier concludes that in 
any enforcement action, if a carrier can show that it has done all it 
reasonably can to resolve the problem but that the underlying primary 
cause is outside of its control, no sanction should be imposed.
    Of the carrier associations that commented, ATA, with IATA's 
endorsement, agrees with Delta that the proposed standard should only 
be a rebuttable presumption and not a rule, because in some 
circumstances a carrier may have legitimate reasons for not being able 
to comply. ATA supports the proposed definition of a chronically 
delayed flight and prefers it to the standard proposed by the 
Department's Inspector General (IG), i.e., flights arriving 30 minutes 
late 40 percent of the time. ATA opposes expanding the definition to 
include international flights.
    RAA does not oppose defining chronically delayed flights, but it 
does oppose treating them as an unfair and deceptive practice subject 
to enforcement action. RAA believes that the market will punish 
carriers that fail to satisfy consumers and that the Department should 
rely on market forces rather than enforcement. If the Department 
persists nevertheless, RAA takes the position that the rule should 
apply only to the carrier that sets the schedules and enters into 
contracts of carriage with passengers when that carrier is not the 
carrier operating the flights. In a similar vein, ACAA contends that 
any rule on chronically delayed flights should apply only to the 
largest carriers.
    ACI-NA states that chronically delayed flights can harm both 
airports and their local communities economically by causing passengers 
to lose confidence in an airport's operations. A smaller airport can 
sustain greater harm, according to ACI-NA, because even though larger 
airports may have more delayed flights, delayed flights at a smaller 
airport may constitute a larger percentage of that airport's flights. 
Also, delays at small airports whose flights feed a large carrier's hub 
are more disruptive to passengers, because they cause more missed 
connections. Regarding the proposal, ACI-NA maintains that a threshold 
of 45 flight operations per calendar quarter, or approximately four 
flights per week, will improperly exclude operations at many small 
airports and thus fail to protect their passengers. Instead, ACI-NA 
proposes a threshold of 12 flight operations per calendar quarter, or 
one flight per week. ACI-NA also maintains that a late-arrival 
threshold of more than 70 percent is too lenient to carriers and unfair 
to consumers, and it proposes a threshold of 50 percent. Finally, ACI-
NA maintains that any rule should apply not only to the major and 
national carriers that account for at least one percent of domestic 
scheduled passenger revenue but also to the operations of regional or 
feeder carriers that are affiliated with the larger carriers. ACI-NA 
reasons that delays harm passengers just as much regardless of which 
certificate holder operates the aircraft. Furthermore, with regional 
carriers now transporting one of every four domestic passengers, 
operating half of daily domestic flights, and providing the only 
scheduled service to about 70 percent of U.S. airports, ACI-NA deems it 
critical that their operations be covered by the rule.
    Of the travel agency associations, ASTA supports defining 
chronically delayed flights as an unfair and deceptive practice but 
suggests that the proposal can be improved in a number of ways. First, 
the threshold should be set at 50 percent rather than 70 percent, which 
will be a stronger incentive for airlines to adjust their schedules or 
operations. Second, rather than permitting a carrier two calendar 
quarters to correct a chronically delayed flight, correction should be 
required within the first calendar quarter following the one in which 
the flight became chronically delayed: ASTA maintains that three months 
should usually suffice, and in cases where a carrier can show why it 
should be granted additional time, the Department would have the 
discretion to accommodate it. Third, ASTA supports applying this rule 
to international scheduled passenger service by both U.S. and foreign 
carriers. ITSA did not address this issue.
    Proposed Rule: With some modification to the details, we have 
decided to propose a rule along the lines set forth in the ANPRM, and 
we invite comments from all interested persons. Specifically, we 
propose to amend 14 CFR 399.81 to define chronically delayed flights 
and to specify that the Department considers flights that continue to 
be chronically delayed for three consecutive calendar quarters to be an 
unfair and deceptive practice and an unfair method of competition 
within the meaning of 49 U.S.C. 41712 and subject to enforcement 
action. This proposal defines a flight as chronically delayed if it is 
operated at least 30 times in a calendar quarter and arrives more than 
15 minutes late more than 70 percent of the time. As far as substitute 
flights are concerned, all flights in a given city-pair market whose 
scheduled departure times are within 30 minutes of the most frequently 
occurring scheduled departure time would be considered to be one single 
flight for purposes of assessing chronic delays. The revised proposal 
reflects the Department's 2008 enforcement policy, and we tentatively 
believe that it strikes the appropriate balance between consumers' need 
to have reliable information about the real arrival time of a flight 
and the carriers' inability to control or predict the weather and 
certain other factors that can contribute to delays. In addition, for 
the reasons set forth below in support of our decision not to propose a 
rule requiring on-time reporting of international flights, we have also 
decided against proposing to include foreign air transportation--i.e., 
international flights--in the definition of a chronically delayed 
flight.
    We further invite interested persons to comment on an alternate 
definition of a chronically late flight as one that is operated at 
least 30 times in a calendar quarter and that arrives at least 30 
minutes late at least 60 percent of the time. While this latter 
approach could theoretically yield more benefits for consumers, we are 
concerned that adopting this more stringent standard could lead to a 
large number of flight cancellations and possibly even the elimination 
of service to some communities. Also, we invite comment on whether we 
should adopt an even stricter definition favored by the Department's 
Inspector General: A flight that is cancelled or delayed 30 minutes or 
more at least 40 percent of the time. The Inspector General calculated 
in 2006 that using this definition would yield 5,369 chronically 
delayed flights, a very high number (Follow-Up Review:

[[Page 74594]]

Performance of U.S. Airlines in Implementing Selected Provisions of the 
Airline Customer Service Commitment, Report Number AV-2007-012, Issued 
November 21, 2006, at page 5, footnote 8, and Attachment, page 17). 
Because we are concerned that any consequential increase in enforcement 
responsibilities might require the diversion of resources from other 
aviation compliance activities, commenters should assess both the 
benefits that this definition would engender and the costs that it 
would entail. Of course, regardless of which definition we adopt, we 
always have the authority to take enforcement action against flights 
that do not meet the definition but that appear to involve unrealistic 
scheduling and thus to constitute unfair and deceptive practices and 
unfair methods of competition within the meaning of 49 U.S.C. 41712.
    For enforcement purposes, we are considering the option of not 
treating a flight that remains chronically delayed for three 
consecutive quarters as an unfair and deceptive practice and an unfair 
method of competition if every prospective passenger using any 
available channel of purchase is informed before buying a seat on that 
flight that the flight is chronically delayed. There is no deception or 
unfairness if a consumer who knows that a flight is chronically delayed 
chooses it for travel nonetheless. We invite comment on this approach.
    We are tentatively rejecting as too draconian the consumers' 
contentions that we should not allow a full six months for the 
correction of a chronically delayed flight, that we should 
automatically impose civil penalties in the calendar quarter when a 
flight becomes chronically delayed, and that we should define 
chronically delayed flights more broadly. As we have stated above, our 
aim in proposing rules is to strike a balance between a passenger's 
need to have the best possible information about the real arrival time 
of a flight and the carriers' inability to control--or foresee--the 
weather and various other factors that can cause delays. As for 
chronically cancelled flights, the proposed rule would treat each 
flight that is cancelled within seven days of departure as a delayed 
flight for purposes of our analysis, but we decline at this time to 
consider regulating chronically cancelled flights in other respects. We 
are addressing consumers' concerns that carriers could evade the rule 
by changing a flight's number or departure time by providing for the 
treatment of substitute flights as the same flight.
    We are also tentatively rejecting the carriers' contention that we 
should use the standard we adopt as a rebuttable presumption and not a 
rule. Chronic delays are a serious problem that must be addressed, and 
we consider the standard we are proposi