Attention All Passengers (3 page)

I sat with her in a café in San Francisco and asked
her if airline service has really gotten worse. Burbank considered this and
said: “I think I'm seeing fewer complaints, but I don't think it's because
service is better. Everyone is so beaten down. We've all just become resigned to
bad service. We're in the flip-flop generation.”

It's worth noting that Burbank sees customers at
their worst. As she explained, “When I hear from people they're already
over-the-top angry. First, there was the original problem. Second, they have not
gotten a suitable response. They don't feel they have been heard. It's not about
the money—I have had people who are as angry about one hundred dollars as about
three thousand dollars.” With airlines, she's often able to secure discounts for
future travel for her wronged readers, but cash refunds are much harder.

As for what passengers are complaining about,
there's little surprise in learning that baggage fees top Burbank's list.
Another trend line is how the airlines respond to “big problems” such as
widespread weather delays. She noted that masses of people are angry, yet it
seems no one is available to provide assistance—at the airport, in reservations,
or even online.

In fact, many consumer complaints are often
triggered by a flight delay. Burbank recalled years ago consulting an airline
cabin seating expert who noted the correlation between delays and overall
customer satisfaction: “If the flight was late, then the coffee was cold, the
flight attendants were mean, and the seats were uncomfortable. You're already so
harried when there's a delay.” (By the way, in 2009 I examined flight times for
USA Today.com and discovered that it now takes longer to fly on many routes
throughout the United States because flight times have been padded by as much as
a half hour.)

On the positive side, Burbank sees fewer complaints
about Southwest and JetBlue. Perhaps not coincidentally, those are the only
large U.S. carriers not charging for first checked bags (the second bag on
Southwest is gratis as well). For the record, the DOT's consumer complaint
rankings for 2010 found Southwest ranked first among the nation's eighteen
largest carriers, while JetBlue ranked thirteenth, demonstrating it has a long
way to go in emulating Southwest. In addition, since the DOT began keeping
records in 1987, Southwest has led all other domestic carriers with the best
on-time performance record and the fewest passenger complaints.

Suing an Airline Is Usually Not
an Option

The general rule is that you can't sue a
U.S. airline in state or local courts because the airline business is one of a
handful of industries that have been given federal preemption. However, there
are exceptions. The DOT's Aviation Consumer Protection Division even provides an
online manual titled “Tell It to the Judge: A Consumer's Guide to Small Claims
Courts.” The DOT cites examples of situations in which you might consider using
such a court; of course, in all cases the key factor is the amount of the claim
being filed, since there are limits on monetary damages.

Attorney Al Anolik also recommends this more
proactive course for passengers who have been wronged by domestic airlines. In
fact, a large part of his practice involves litigating such cases, often
handling ten or twelve cases in one morning. Anolik explains that small claims
courts have more liberal rules for admitting cases, which can work in consumers'
favor. What's more, airlines have a duty to mitigate, so they can't ignore such
filings.

Anolik clearly has done okay by leading such fights
as one of the nation's most knowledgeable travel attorneys. His beautiful home
offers a spectacular panorama of San Francisco Bay that encompasses both the
Golden Gate and Bay bridges, a view shared by neighbors Andre Agassi and Steffi
Graf. I asked him if I am wrong in concluding the major airlines have gone out
of their way to confuse customers by intentionally muddying their contracts of
carriage, those vital documents that spell out exactly what passengers can
expect. Anolik laughed and said, “The contracts of carriage definitely have been
tightened up. Very little in the contracts gives you a right, but they will
mention the rights they're taking away.” He added, “Every time the airlines get
hit with a lawsuit they fill in a loophole. If there is a new cockamamie charge
and it is not on the contract of carriage, they put it in.” What's more, Anolik
noted that these exemption lists keep growing, even though the DOT ordered a
moratorium on such exemptions. His blunt assessment: “It's fraud.”

These contracts spell out what an airline will do
if you are bumped, or your flight is delayed or canceled. And what we found
after studying the issue at
Consumer Reports
is that
over the last decade these documents have become murkier, as plain English has
been replaced with legalese. And a term such as “the airline shall” has been
supplanted by “the airline may” instead.

In theory, U.S. airlines are supposed to
prominently post these contracts on their websites, but good luck in finding
most of them in less than five page clicks. (A notable exception is JetBlue,
which has provided the most customer service transparency in the industry since
its Valentine's Day weekend operational meltdown in 2007, when 1,100 flights
were canceled.) I have personally found that airline call center employees and
even airport personnel usually have no idea what these contracts are, let alone
what they dictate.

Not that clear explanations will help. “It's really
a unilateral contract, not a bilateral contract,” says passenger advocate Kate
Hanni. And sometimes the legalese can be just plain misleading. In July 2010 a
Southwest Airlines executive corrected a “misinterpretation” over the term
“mechanical difficulties” being included in its (long) list of force majeure
(“act of God”) flight delay conditions; he explained the “added verbiage”
referred only to mechanical difficulties outside the airline's control, such as
a broken airport deicing system, and not aircraft problems. The incident
underscored just how confusing such “added verbiage” can be for passengers.

Then again, many of these “employees” are not
employees at all, a topic I discussed with Anolik. And he clearly relishes
torturing the industry: “When I'm early for a flight I'll ask, ‘Can I see your
denied-boarding policy?' And the person working will have no idea. You're right,
they don't know the rules anymore.”

Airline industry old-timers—both employees and
passengers—still invoke the days of the Rule 240 clause, a holdover from the
regulated era in which the government spelled out specifically how airlines were
required to meet their passengers' needs. It was clear and concise for all
passengers and uniformly fair for all carriers, but Anolik said Rule 240 is no
longer mandatory in the deregulated era.

However, I believe it's time to write a new Rule
240, for the twenty-first century. That's why when I became a member of the FAAC
I urged the DOT to adopt procedures similar to those employed by the European
Union. The EU's rules are clear, cogent, and easy for every passenger to
understand, particularly if they download a color-coded chart that indicates
uniform compensation for airline mistreatment. This isn't to suggest that the
European model should be copied outright, but it certainly provides a decent
blueprint for us. As travel ombudsman Linda Burbank notes, “They have better
transparency in Europe. In America it's about flying Darwin Air.”

As a last recourse, passengers can still file a
formal complaint against a domestic airline with the DOT. Though many consumers
undoubtedly respond with a “What's the point?” attitude about such a pro forma
task, Anolik noted that it's really quite important: “Unless they hear from
passengers, the DOT will say, ‘We don't have any complaints on file.' ”

Loads of Fun? Airlines Emulate
Troop Carriers

One mechanic for a legacy carrier—so-called
because these large airlines predated deregulation—summed it up: “If you're
flying full planes and you can't make money, you shouldn't run an airline.” And
yet that's exactly what we have. My own theory is that the airline industry's
decision to fill all these planes has had a direct effect on making flying more
miserable: more boarding delays, more mishandled bags, more consumer complaints,
more air rage.

During World War II, when commercial airlines were
pressed into service as de facto military transports, planes were fuller than at
any time before or since, with average passenger load factors—the percentage of
occupied seats—reaching nearly 90 percent. After 1946, it took the U.S. airline
industry more than fifty years to crack the 70 percent mark again. By 2009, load
factors reached 80 percent, and by 2010 the domestic industry's average topped
out at 82.1 percent. With an average that high, the percentage of flights at or
near 100 percent full obviously has increased as well. But this is not what
airline executives ever envisioned.

Analyst Bob Harrell explains: “With airlines,
everybody's in that game to get the last twenty passengers in the bucket. But it
creates a terrible service problem. Transportation systems are designed for 65
percent to 70 percent capacity and they can't handle it when it's twenty points
higher. Which you'll see if you're in the middle seat of a 757 waiting to get
served.”

Consider it this way. Delta operates Boeing
737-800s configured in economy class with three seats on either side of the
aisle for a total of 144 seats, or 6 in each of the 24 rows. Putting aside those
passengers who are traveling together, leaving all 48 middle seats empty in this
3x3 configuration would require a 67 percent load factor. An 80 percent load
factor means only 29 middle seats will remain unoccupied; a 90 percent factor
leaves only 14 empty middles. Further, consider that every middle seat taken
causes discomfort for not one but three people. Obviously that's a lot of
crowded passengers, a lot of overstuffed overhead bins, a lot of squeezing and
jostling in the aisles, a lot of waiting for that lavatory.

There's a technical term economists employ to
describe this condition: it's called
greed
. Over the
last few years the same airline executives who have levied fees for checking
bags and calling reservations, who have outsourced flying to low-cost regional
airlines and maintenance to Third World sweat shops, have decided that the
airline business most closely resembles the sardine canning industry.

What's more, industry experts note that not only
are all those full planes not good for passengers, they're not even good for the
airlines themselves. That's because once an airline's loads hit the 70 percent
mark, that carrier starts “feeding its competitors” because it can't handle the
spillover. In addition, higher loads create additional operating expenses.

“It's awful,” said Rolfe Shellenberger, an industry
legend who began his thirty-one-year career for American Airlines as a
reservations agent in 1951. “They're cattle cars now.” I shared with him my
contention that packed airplanes have eroded customer service, and he agreed,
saying full planes have greatly contributed to this deterioration.

Shellenberger also pointed out what he calls a
“curious anomaly”—that Southwest has the lowest load factors among the majors,
yet has been the most consistently profitable. And it's true: in 2010,
Southwest's load factor was 79.3 percent, lower than the domestic load factors
for American (82.6 percent), Delta (82.9 percent), United/Continental (84.9
percent), and US Airways (83.2 percent).

And there's yet another negative side effect to all
those crowded airplanes. In early 2011, the aviation consulting firm Oliver
Wyman released its Airline Economic Analysis and noted: “In a sense, as load
factor has approached its theoretical maximum, fees have replaced it as a source
of revenue growth.” That's right: as long as cabins remain full, the big
airlines will continue ratcheting up those fees.

Things That Go Bump: Airlines
Deny Boarding

Those record-high load factors are fueling
another disturbing trend: more passengers being bumped against their will. The
industry calls them involuntary denied boardings and the DOT calls them
oversales, but by any term it means your airline seat has been given to someone
else without your consent. And it's a practice that has become more prevalent in
recent years. According to the DOT, 1.09 passengers were denied seats for every
10,000 passengers boarded in 2010, an increase over the 0.89 rate in 2005.

As Forbes.com noted, Broadway theaters don't
double-book seats: “No other (legitimate) businesses sell the same product to
more than one customer, so why do airlines?” It's an excellent question, but
only industry apologists defend the practice, citing the vague complexities of
yield management practices so vital to the airlines' elusive profitability. They
also note that passengers with refundable tickets often no-show for flights,
thus leaving the airlines with empty, unpaid seats.

The good news is that the DOT requires that
airlines provide those bumped against their will with denied boarding
compensation, and in 2011 Secretary LaHood announced the DOT had doubled the
limits on these amounts.

Meat in the Seats

Industry executives have had an attitude
about airline seating for generations. In fact, designers once eagerly met with
Eddie Rickenbacker, the famed World War I flying ace who became CEO of Eastern
Air Lines, to show off their newest seat cover fabrics for the Lockheed Electra.
Rickenbacker's legendary response: “I don't care what you cover the seats with
as long as you cover them with assholes.” Boy, have the latest crop of airline
execs gotten good at that.