Lack of regulation, competition leaves air passengers unprotected, experts say

This Sunday, April 9, 2017, image made from a video provided by Audra D. Bridges shows a passenger being removed from a United Airlines flight in Chicago. (Audra D. Bridges via AP)

United Airlines CEO Oscar Munoz said Tuesday that the company will investigate the incident that resulted in a Kentucky doctor being dragged off a plane Sunday, vowing to “fix what’s broke so this never happens again.”

Videos spread across the internet Monday of airport security officers pulling Dr. David Dao off of United Flight 3411 after he and three other passengers were randomly selected to be rebooked on a different flight the following day. Bleeding from his head and screaming, Dao is seen on camera resisting the officers as he is pulled down the aisle.

Dao spoke briefly to WLKY Tuesday while recovering in a Chicago hospital. He told the station he is not doing well and, when asked what his injuries were, he responded, “Everything.”

The seats were needed for four United crew members who were scheduled to work on a flight departing from Louisville, and that flight could have been canceled if they did not get there, potentially delaying more passengers and flights down the line.

“My deepest apologies for what happened,” Munoz said. “Like you, I continue to be disturbed by what happened on this flight and I deeply apologize to the customer forcibly removed and to all the customers aboard. No one should ever be mistreated this way.”

He promised a thorough review of crew movements, policies for overbooking situations, and partnership with law enforcement. United plans to make results of that review public by April 30.

“It’s never too late to do the right thing,” he said.

Facts are still trickling out about the incident. A United spokesperson told USA Today Tuesday that the flight was never actually overbooked. The airline simply concluded it was necessary to force the passengers off the plane to make room for the crewmembers.

"They were considered ‘must-ride’ passengers," spokesman Jonathan Guerin told the paper.

Munoz had previously apologized for what he euphemistically described as “having to re-accommodate these customers” in a brief statement Monday. In a letter to employees later, he defended the flight crew’s handling of a “disruptive and belligerent” passenger.

"While I deeply regret this situation arose, I also emphatically stand behind all of you, and I want to commend you for continuing to go above and beyond to ensure we fly right," he said.

It is unclear whether he still feels that way, given his contrite statement Tuesday.

The contract of carriage--the fine print that all passengers agree to when purchasing a ticket but very few actually read--does give United the right to involuntarily deny a passenger boarding.

Passengers with disabilities and unaccompanied minors would be the last to get booted, but the priority for other passengers “may be determined based on a passenger’s fare class, itinerary, status of frequent flyer program membership, and the time in which the passenger presents him/herself for check-in without advanced seat assignment.”

The contracts of carriage for other airlines have similar clauses. Each uses different criteria to decide who gets bumped from a flight if they cannot find enough volunteers, but nothing can stop them from doing it.

While declining to comment specifically on United’s handling of this situation or any one company’s policy for involuntary rebooking, an airline industry trade group emphasized that such instances are extremely rare.

“U.S. airlines are committed to offering the highest levels of customer service and have long supported passenger rights,” said Kathy Grannis Allen of Airlines for America in a statement Tuesday. “Passenger removal from an aircraft is an extremely rare occurrence and airlines work to ensure that they accommodate all customers in any event of an involuntarily denied boarding. In fact, less than 1 (0.62) person out of 10,000 were involuntarily denied boarding in 2016 - the best ever recorded by the Department of Transportation.”

Advocates for passengers and air travel experts contend that it should never happen at all, but they acknowledge various factors have made overbooking a fact of life.

“The airlines are in a unique position in that, because of the mergers, there’s very little competition,” said Paul Hudson, president of FlyersRights.org, a non-profit organization devoted to protecting airline passengers.

Over the last decade, the number of major domestic airlines in the U.S. has been cut in half by mergers and takeovers. This has compounded some of the negative consequences of the Airline Deregulation Act of 1978, which exempted airlines from many state, local, and federal consumer protection laws.

Hudson observed that air travel had gotten faster, more convenient, and more comfortable in the decades before 1980, but the flight experience has stumbled in the opposite direction in recent years.

“Service really is at the bottom of the barrel,” he said. Because of this, U.S. airlines often trail far behind Asian and Middle Eastern carriers in customer ratings.

Airlines overbook passengers because their algorithms tell them to expect a certain number of no-shows for each flight based on numerous factors. However, Rick Seaney, CEO of FareCompare.com, called the practice of overbooking “an anachronism of the 1990s.”

“There’s no incentive to not show up anymore,” he said, pointing to the hundreds of dollars in penalties and fees airlines now charge for missing a flight and rebooking. As a result, the airlines are just attempting to “double dip” by getting another paying customer to fill the seat.

The United incident serves as a reminder of how precarious the position of air travel passengers often is. The Department of Transportation has instituted protections and mandated compensation for some mistreatment, but the overall lack of competition and regulation mean consumers have far fewer rights than they do in transactions with most other industries and businesses.

When airlines need to free up seats on an overbooked flight, they typically begin by offering free flights, cash, and food or hotel vouchers for passengers who voluntarily take another flight. There are usually enough people with flexible schedules who can accept those deals.

If there are not, the airline can force people off, but DOT regulations require minimum compensation based on how much later the passenger will reach their destination on the alternate flight. If the substitute flight gets them in more than two hours later, the airline must pay 400% of their fare up to $1,350.

Experts see a number of ways the situation on Flight 3411 could have been resolved without the public relations nightmare that has ensued, beginning with resolving the issue before passengers even boarded the plane.

“The way they handled it was just ham-handed,” Seaney said.

The easiest solution would have been to continue offering more money until enough passengers gave up their seats voluntarily. Flight attendants reportedly only offered $800 per ticket.

“They saved $500 to lose tens of millions in PR,” Seaney said.

In contrast, a Forbes contributor reported Sunday that her family made $11,000 by allowing themselves to be bumped from three Delta flights over the course of the weekend.

Experts also caution passengers against defying an order from the flight crew. Frustrating as it may be, Dao was merely delaying the inevitable by resisting.

“Once a pilot or flight attendant makes a decision that somebody’s going to be removed from an aircraft, they’re going to be removed,” Seaney said.

Hudson agreed that a passenger simply has no immediate recourse in this situation.

“They do have to comply with the flight crew’s instructions, and that includes getting off the airplane,” he said.

Hudson’s organization has been trying to change this dynamic for years by urging Congress to pass a Passenger Bill of Rights similar to what the European Union has.

“We’ve been advocating for an airline passenger bill of rights since at least 2012 but no member of Congress has been willing to take it up,” he said.

Airlines have a lot more money and better lobbyists than passenger advocacy groups do, he lamented, and the DOT and FAA have shown little interest in tackling the issue either.

The Passenger Bill of Rights does not have many allies in Congress yet, but Seaney said that may change now that this incident has thrust the issue into the spotlight. Indeed, several members of Congress have already issued statements lambasting United for mistreating its passengers.

“The airlines are easy punching bags,” he said.

Hudson called for Transportation Secretary Elaine Chao to convene a summit on the subject and make clear that the Trump administration will not allow this kind of treatment of air travelers.

“These problems rather easily can be fixed Unless it reaches that level, I think we’ll probably see more of the same,” he said.

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