Although airlines seem to be soaring after suffering a brutal couple of years (thanks, COVID-19), their passengers just aren’t as lucky.

That, at least, was the picture painted by assembled air industry representatives at a recent hearing of the Senate Committee on Commerce, Science, and Transportation. Titled “Enhancing Consumer Protections and Connective in Air Transportation,” the hearing heard everyone from embarkers to employees on how to better protect consumers as well as improve a passenger’s overall flying experience.

Witnesses included (click their name for their written testimony):

• Trent Moyers, Director of Airports, Chelan Douglas Regional Port Authority
• Sara Nelson, International President, Association of Flight Attendants-CWA, AFL-CIO
• William McGee, Senior Fellow for Aviation and Travel, American Economic Liberties Project
• Diana Moss, President, American Antitrust Institute
• Heather Ansley, Associate Executive Director of Government Relations, Paralyzed Veterans of America
• Jeffrey Shane, Former Under Secretary for Policy, U.S. Department of Transportation

(As ranking member Sen. Ted Cruz (R-TX) pointed out, representatives from an airline or airline association declined to attend the hearing due to scheduling issues – see elsewhere in this issue for coverage of that hearing).

Committee chair Sen. Maria Cantwell (D-NV) opened the hearing by highlighting that flying has become more difficult for Americans everywhere. In 2020 alone, USDOT received over 30,000 refund complaints, representing a 4,500 percent increase from registered complaints in 2019. As of 2022, consumer complaints are still 602 percent higher than their 2019 statistics. As a result of enduring these kinds of hardships, Cantwell emphasized that passengers deserve three basic services while flying:

1. A timely refund when the service promised is not received
2. No junk fees whatsoever, be they family, baggage, or disability related
3. A comfortable minimum seat size

Ranking member Cruz joined Cantwell in decrying certain “distasteful” airline practices. Cruz agreed that consumer protection is an important part of the flying experience. “Sometimes, airlines miss on customer service, leaving travelers stranded, inconvenienced, or otherwise harmed,” Cruz explained in his opening statement. However, Cruz cautioned lawmakers that onerous legislation could make flying more miserable. Cruz also stressed that deregulation had positive impacts on the passenger flying experience. Referencing the Airline Deregulation Act of 1978, Cruz claimed that the legislation was a major success by allowing the price of air travel to fall by 30 percent. Regulation, Cruz fears, would raise prices and cause smaller communities to lose their service.

Following Cruz’s opening remarks, Cantwelll introduced Sen. Tammy Duckworth (D-IL), chair of the Subcommittee on Aviation, Operations, Safety, and Security. Duckworth wasted little time discussing the safety failures present in modern aviation, particularly the lack of realistic parameters when testing evacuation procedures. Additionally, Duckworth was disappointed with the treatment the disability community suffers at the hands of airlines, which she described as frustrating at best and demeaning at worst. In her opening statement, Duckworth made sure to mention her proposed legislation such as the EVAC and Prioritizing Accountability and Accessibility for Aviation Consumers Acts  that she hopes to include in the 2023 FAA Reauthorization Bill to improve passenger experiences across the U.S.

Consumer Conundrums

The hearing covered roughly two overaching topics: consumer protection and anti-competitive practices. Consumer protection was at the forefront of the hearing, with every witness backing greater transparency and oversight of the airline industry.

In his opening statement, Trent Moyers (Chelan Douglas Regional Port Authority) pointed out that the lack of service in rural or low-population areas can severely hamper economic growth and punish both passengers and community members. Lack of service is especially problematic when airports are one of the few ways that small and rural communities can attract talent and capital from larger urban areas, such as the San Francisco Bay Area or Seattle.

When asked about his role in upholding passenger rights by Sen. Klobuchar (D-MN), Moyers himself explained that he receives many of the first complaint calls and feels helpless to assist them due to the lack of power in his position.

William McGee (AELP) took an even stronger stance on consumer protection, stating that modern passengers have never been as dissatisfied with air travel as they are today. As a result of the 1978 Act, McGee pointed out that passengers face fewer choices, higher fares, and a plethora of junk fees.

Sen. Markey (D-MA) asked McGee to explainhow airlines make their own passengers jump through hoops to get refunds for cancelled or delayed flights. McGee responded that passenger rights are far less prevalent and present in American airports, and that contracts of carriage are so obscure and obtuse that few passengers are ever going to understand them. McGee in particular agreed with Markey that cash refunds are important, and already guaranteed by existing USDOT regulations.

Heather Ansley (PVA) stood by McGee, highlighting that flying is even more difficult for the physical disabled. In a recent survey, 16 percent of disabled passengers reported being dropped, 23 percent claimed they were injured, and a whopping 70 percent claimed that their equipment had been broken in some way while flying.

When questioned by Cruz on how long disabled passengers would wait for equipment replacements, Ansley responded that some wheelchair-bound passengers have had to go at least two months without their mobility aids until the airline was able to provide some sort of a replacement.

Treatment of flying families was particularly important to several inquisitive senators. Sen. J.D. Vance (R-OH) questioned Sara Nelson (AFA-CWA) on how flying could be made more convenient and less stressful for families, particularly those with younger children. Nelson pointed out that rulings that keep children from being held in their parents’ laps are meant to protect them from becoming projectiles in time of turbulence as well as keeping them cool during periods of in-flight climate instability.

Nelson also agreed with Duckworth that airlines should use real life data and circumstances while simulating their evacuation procedures, such as including carry-on luggage, fumes, children, and the elderly. By including more realistic scenarios, Duckworth and Nelson agreed that consumer protection could be upheld even in crashes or other dangerous situations.

Although almost all panelists agreed on the necessity of increased regulations to uphold consumer protections, Jeffrey Shane (USDOT) was not one of them. A veteran of federal transportation with over 25 years under his belt, Shane agreed in principle that consumer protection is important. He even made sure to point out that Southwest’s December meltdown is the “poster child” for airline disfunction. However, Shane insisted that the 1978 Act democratized the airline industry, giving the industry the widest scope of competition.

Anti-Competitive Consternations

The panel was less united in their approach to anti-competition legislation. Diana Moss (AAI) and McGee agreed that one of the biggest problems facing the airline industry is lack of competition and corporate power. In her opening statement, Moss recounted that in the last 20 years, the airline industry has seen plenty of mergers and no new major airline entries.

When questioned by Klobuchar on the recently-halted JetBlu/Spirit Airlines merger, Moss stated strongly that she believed the merger to be anti-competitive. Moss argued that the elimination of a low-cost carrier reduces choices for price-sensitive consumers would ultimately reduce the accessibility of airports across the country.

McGee agreed, and pointed out that under existing regulations, airlines are incentivized to merge, tack on fees, and reduce service. Due to a lack of oversight, airlines will often not tell consumers the true costs of handling processes like luggage storage and not even consider cash refunds due to their market power.

Moyers mostly agreed with McGee and Moss, pointing out that lack of airline options severely punishes rural communities. When questioned by Sen. Tester (D-MT) on how cancelled or reduced flight services are handled on a local level, Moyes emphasized that the process is long and requires extensive incentives on the part of local operators to convince services to return. Although they could sometimes provide subsidies, smaller airports only have so many fees they can waive, and that current funding through programs like SCASDP do not provide enough power to help airports attract new airlines.

However, that’s where agreement among panelists stopped. Nelson concurred with Shane that the 1978 Act ultimately helped the airline industry, and that she supported the proposed JetBlu/Spirit Airlines merger as a model for merger reform.

Shane himself stated that airlines can and should handle their own issues when it comes to address pressing problems like pilot shortages that often increase the prices of flying. When questioned by Sen. Schmitt (R-MO), Shane supported that airline- exclusive academies create a sense of company loyalty and solid job opportunities for flight candidates. Shane also expressed support in removing the 1500 hour flight time requirement for pilots, claiming that it did not seriously improve flight safety (For the record, Duckworth stated she “could not disagree more strongly” on the weakening of the 1500 hour rule).

Clear Skies Ahead?

When tasked with coming up with solutions for the issue, all representatives had at least a couple of policy proposals.

Nelson encouraged lawmakers to approve the JetBlu and Sprit Airlines merger, calling it the “anti-merger merger” that will improve the labor conditions of workers at both organizations.  Moyers, on the other hand, called for the restoration of the federal government matching 95 percent of costs, as found in the 2003 FAA Authorization Bill. Ansley, recommended that Congress include the Air Carriers Amendment Act in the 2023 FAA Bill, as it features many improvements to the original piece of legislation. Finally, McGee asked for greater enforcement of existing regulations that go unenforced in the air.

The time to implement many of these suggestions is fast approaching, especially with the upcoming reauthorization of the FAA bill. “Companies are failing to do the right thing,” Markey said. “And it’s time for Congress to act.”