[Senate Hearing 118-515]
[From the U.S. Government Publishing Office]
______
S. Hrg. 118-515
ENHANCING CONSUMER PROTECTIONS AND CONNECTIVITY IN AIR TRANSPORTATION
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MARCH 23, 2023
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT
Available online: http://www.govinfo.gov
U.S. GOVERNMENT PUBLISHING OFFICE
57-732 PDF WASHINGTON : 2024
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
MARIA CANTWELL, Washington, Chair
AMY KLOBUCHAR, Minnesota TED CRUZ, Texas, Ranking
BRIAN SCHATZ, Hawaii JOHN THUNE, South Dakota
EDWARD MARKEY, Massachusetts ROGER WICKER, Mississippi
GARY PETERS, Michigan DEB FISCHER, Nebraska
TAMMY BALDWIN, Wisconsin JERRY MORAN, Kansas
TAMMY DUCKWORTH, Illinois DAN SULLIVAN, Alaska
JON TESTER, Montana MARSHA BLACKBURN, Tennessee
KYRSTEN SINEMA, Arizona TODD YOUNG, Indiana
JACKY ROSEN, Nevada TED BUDD, North Carolina
BEN RAY LUJAN, New Mexico ERIC SCHMITT, Missouri
JOHN HICKENLOOPER, Colorado J. D. VANCE, Ohio
RAPHAEL WARNOCK, Georgia SHELLEY MOORE CAPITO, West
PETER WELCH, Vermont Virginia
CYNTHIA LUMMIS, Wyoming
Lila Harper Helms, Staff Director
Melissa Porter, Deputy Staff Director
Jonathan Hale, General Counsel
Brad Grantz, Republican Staff Director
Nicole Christus, Republican Deputy Staff Director
Liam McKenna, General Counsel
C O N T E N T S
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Page
Hearing held on March 23, 2023................................... 1
Statement of Senator Cantwell.................................... 1
Statement of Senator Cruz........................................ 2
Statement of Senator Duckworth................................... 4
Statement of Senator Tester...................................... 48
Statement of Senator Schmitt..................................... 50
Statement of Senator Klobuchar................................... 52
Statement of Senator Vance....................................... 55
Statement of Senator Welch....................................... 57
Statement of Senator Markey...................................... 62
Statement of Senator Baldwin..................................... 64
Statement of Senator Hickenlooper................................ 65
Witnesses
Sara Nelson, International President, Association of Flight
Attendants-CWA, AFL-CIO........................................ 6
Prepared statement........................................... 8
Trent Moyers, Director of Airports, Chelan Douglas Regional Port
Authority...................................................... 14
Prepared statement........................................... 15
William McGee, Senior Fellow for Aviation and Travel, American
Economic Liberties Project..................................... 18
Prepared statement........................................... 20
Diana Moss, President, American Antitrust Institute.............. 24
Prepared statement........................................... 25
Heather Ansley, Associate Executive Director, Government
Relations, Paralyzed Veterans of America....................... 31
Prepared statement........................................... 33
Jeffrey N. Shane, Former Under Secretary for Policy, U.S.
Department of Transportation................................... 38
Prepared statement........................................... 40
Appendix
Response to written questions submitted to Sara Nelson by:
Hon. Maria Cantwell.......................................... 69
Hon. Raphael Warnock......................................... 70
Response to written questions submitted to Trent Moyers by:
Hon. Raphael Warnock......................................... 71
Response to written questions submitted to William McGee by:
Hon. Raphael Warnock......................................... 71
Response to written questions submitted to Heather Ansley by:
Hon. Maria Cantwell.......................................... 73
Hon. Raphael Warnock......................................... 75
Response to written questions submitted to Jeffrey N. Shane by:
Hon. Tammy Duckworth......................................... 76
Hon. Raphael Warnock......................................... 78
Hon. Ted Cruz................................................ 80
ENHANCING CONSUMER PROTECTIONS AND CONNECTIVITY IN AIR TRANSPORTATION
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THURSDAY, MARCH 23, 2023
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SR-253, Russell Senate Office Building, Hon. Maria
Cantwell, Chairwoman of the Committee, presiding.
Present: Senators Cantwell [presiding], Klobuchar, Markey,
Baldwin, Duckworth, Tester, Hickenlooper, Welch, Cruz, Wicker,
Schmitt, and Vance.
OPENING STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
The Chair. Good morning, everyone. The U.S. committee on
Commerce, Science and Transportation will come to order. This
morning, we are having a hearing on enhancing consumer
protections and connectivity in air transportation. And we are
joined by a distinguished group of panelists who we will get to
in a minute.
Today we will be discussing the importance of strengthening
consumer protections, expanding access for travelers and
commuters across America. The American consumer has had a rough
flying experience over the last few years. In 2020, the
Department of Transportation received nearly 30,000 airline
refund complaints, more than a 4,600 percent increase from
2019.
The following year. In 2021 DOT received over 6,600
complaints. Still nearly a 1,000 percent increase over pre-
pandemic levels. And last November, by 2022, U.S. consumers
complaints were already 603 percent higher than in November
2019. And then we had a massive disruption that left nearly 2
million Southwest Airline passengers delayed or stranded across
the country.
In these situations, the U.S. consumer is left with limited
information, hardly any choices, and very little recourse. In
this year's FAA reauthorization, I hope we can work together on
a new passenger bill of rights that gets a better deal for the
U.S. consumer. Consumers deserve concrete definition of
significant delays or cancellations of your flight, and they
deserve a very timely refund.
We must take down the hurdles to getting your money back
when you don't receive the service you paid for. Any travel
credit, if accepted in lieu of a refund, should never expire.
That is your money and should be in your bank account. We also
need to have real time, real person communication when a system
breaks down, like in the Southwest situation.
That system failure left consumers stranded without any
information and no one to talk to. In this kind of a massive
shutdown, we need a better communication system. Second,
Congress must end unfair and hidden fees known as junk fees.
That is taking real money out of the pockets of Americans.
We should force the rebooking fees when your flight was
canceled or delayed by the airline itself and stop that
practice. We should make sure that families aren't charged just
for sitting next to each other at the very beginning of a
flight when there are many flight options. I look forward to
hearing from Bill McGee on this issue this morning.
Many passengers with disabilities, especially those in
wheelchairs, are cutoff from their families and opportunities
just because of these issues. Sara Nelson, head of the
Association of Flight Attendants, and Heather Ansley from
Paralyzed Veterans of America, will provide more information on
this topic.
We also need to address, third, that Congress gave the FAA
the specific task of establishing what is a minimum seat size
for airlines. The FAA has failed to take action on this, and
this committee should help resolve that issue. To make this new
passenger bill of rights stick, we should formally authorize
fully fund, and staff up the Department of Transportation's
Office of Aviation Consumer Protection.
This makes sense, given the incredible increase in workload
and surge from consumer complaints. Secretary Buttigieg has
taken important steps to protect consumers, but we need more
policemen on the beat to execute these tools. We should
consider tripling the civil penalties for noncompliance, the
cost of bad actors and continuing to do things. We must improve
the consumer experience.
But today, we also must talk about enabling the rural
markets and small markets who are trapped because of lack of
air transportation system. Most economic development happens
within ten miles of an airport.
So, if we are hampering our airports, we are hampering our
economic development. I am proud that Trent Moyers Director of
airports at the Chelan Douglas Airport Authority, will be with
us to talk about why Wenatchee, the Apple capital of the world,
needs to have good air transportation.
Next to the airport, Microsoft is building a 41,000 square
foot data center that will employ 50 full time employees. This
is a $400 million investment that would not be possible without
the airport connection to the larger Washington economy. So, we
have to have our communities like Wenatchee thrive, and for
Wenatchee to thrive, they need good air transportation
connectivity.
This committee also needs to deal with this issue and help
rural America have good air transportation service. With that,
I will turn it over to the Ranking Member for his opening
statement. Senator Cruz.
STATEMENT OF HON. TED CRUZ,
U.S. SENATOR FROM TEXAS
Senator Cruz. Thank you, Madam Chair. Before I address the
topic of today's hearing, I want to take a moment to touch on
bipartisanship at this committee. I greatly appreciate that
aviation has traditionally been a bipartisan effort. I think
that view is held by most, if not all, of the members of this
committee.
Every one of us wants safe air travel. We want to board a
plane and know that you are safe. That the pilots, the air
traffic controllers, the ground crew are highly qualified
people who will safely get you and your fellow passengers to
your destination.
Because we all hold those basic sentiments about aviation,
I have to admit, I am disappointed that today's hearing about
the rights of the flying public is so one sided. We are going
to hear one perspective about the regulation of airlines. But
we should be hearing from a much more balanced panel.
It is my hope at future hearings, including the one planned
for next week, that we can get back to the spirit of
bipartisanship that we have had for so many years on this
committee, with the consensus panel of witnesses presenting a
balanced view so the Committee can have all the facts.
If a hearing panel doesn't present a diverse range of
views, it defeats the purpose of a hearing. You would think
that a hearing about, ``unfair airline policies'' might include
an airline. Perhaps we would start with an airline that has the
single lowest customer satisfaction rating or employs some of
the distasteful practices being discussed today, such as
charging customers to talk to a representative on the phone.
That airline would be Frontier Airlines, whom I invited to
testify, but Frontier, as well as their trade association, the
National Air Carriers Association, refused to appear. Consumer
protection is an important component of the travel experience.
Travelers every day get on an airplane.
Some love it, some dread it. I happen to enjoy flying. I do
it a lot. And I guess that is good because I spend many hours a
week on a plane, getting to and from work, and traveling the
great state of Texas. But if something goes wrong with a
reservation or with the weather, the experience can quickly
become unpleasant. I understand that frustration firsthand, as
do millions of Americans.
Sometimes, airlines miss on customer service, leaving
travelers stranded, inconvenienced, or otherwise harmed. To try
and end extremely miserable consequences when things go wrong,
on multiple occasions, Congress has legislated to protect
consumers, so they, for instance, are not stuck on a tarmac for
longer than 2 hours, so that they have easier access to
customer service, and so that they are compensated if an
airline overbooks a flight.
However, when we look at potential legislation in this
area, we need to be careful not to impose so many Government
regulations that we make flying more miserable or more costly.
One group of travelers whose needs we should pay particular
attention to are those with disabilities.
Congress recognized that persons with disabilities face
unique challenges when flying, by including the 2018 FAA
reauthorization law specific provisions to improve the
traveling experience. This included granting DOT the authority
to issue civil penalties against airlines that damage or lose a
person's wheelchair.
It is my understanding that 5 years later, the Department
of Transportation has still not exercised this authority. I am
grateful that we will have an opportunity to hear today from
the perspective of the Paralyzed Veterans of America today.
For PVA's members, flying can prompt fear and anxiety. It
is not just a simple matter of getting where they need to go.
Disabled passengers deserve to travel not just safely, but they
deserve to travel with dignity.
Another matter of great importance to the flying public is
connectivity. Too often, communities become disconnected by the
whims of large airlines. I have seen this happen in Texas, and
I am sure many of us have with smaller towns in our states.
One example is what happened in Del Rio, where American
Airlines is discontinuing service to Del Rio, Texas. I am
deeply concerned about the impact that action will have on
residents and local businesses.
I have raised it directly with senior leadership of the
airline, and I would like to hear today ideas for how to work
through these kinds of problems. Finally, a note of caution.
The Airline Deregulation Act of 1978 was, by all indications, a
significant success. Since deregulation, the price of air
travel has fallen by more than 30 percent.
And when there is vigorous competition among airlines,
offering services on a particular route, services better and
airfares lower.
Dr. Clifford Winston, an economist at Brookings
Institution, testified before this committee last month that
reregulating airlines would inevitably lead to a cost transfer
to consumers, raising prices, making family trips too
unaffordable, and could cause more small communities to lose
service.
I know I would have many unhappy constituents if I
supported any legislation that made air travel more expensive
and less affordable. So, I hope we will resist the temptation
to micromanage travel schedules and pricing plans. I would like
to thank the witnesses for being here to discuss this topic.
Thank you.
The Chair. Thank you. I will turn it over to my colleague
who is going to chair the meeting, the Chair of the
Subcommittee.
I will note for the record that Frontier Airlines,
Allegiant Airlines, the National Air Carrier Association, all
were invited to testify and had scheduling conflicts. Senator
Duckworth, thank you again for your leadership on aviation and
chairing the subcommittee.
STATEMENT OF HON. TAMMY DUCKWORTH,
U.S. SENATOR FROM ILLINOIS
Senator Duckworth. Thank you, Madam Chair, and also Ranking
Member Cruz for holding today's hearing. Our focus is on
consumer protection issues, but I want to take a moment to
raise a critical safety issue that at its core is about
protecting every passenger that flies commercial aviation.
FAA regulations require that in the event of an emergency,
passengers can evacuate an aircraft in 90 seconds. That is one
and a half minutes. However, FAA evacuation simulations fail to
include real life conditions common on commercial flights such
as a full plane, the presence of carry-on bags, or passengers
who are children, senior citizens, or persons with
disabilities.
This failure to test procedures under real world conditions
helps explain a 2016 incident at O'Hare International Airport
when an engine fire on an American Airlines 676 forced an
aborted takeoff. The crew executed the border takeoff
flawlessly. However, the evacuation took nearly two and a half
minutes, far longer than the 90 seconds standard. And there was
one serious injury and 20 minor ones.
According to the NTSB, at all three usable exits, there
were passengers evacuating with carry-on bags despite
instructions to leave your bags behind. Senator Baldwin and I
introduced the emergency vacating of aircraft cabin, or EVAC
Act, to require realistic testing.
I look forward to hearing from our witnesses on the
importance of accurate evacuation simulations. I must also
express the disability community's deep frustration that our
aviation system still fails to make sure every passenger with a
disability is treated with dignity and respect. We have had
half a century to make flying accessible for the millions of
Americans with disabilities who travel by air each year.
Yet flying with a disability remains riddled with
unnecessary issues that at best are frustrating and cost time
and money, and at worst are demeaning and inflict harm on our
customers. Don't get me started on how frequently wheelchairs
get damaged in transit, a huge problem that I and many others
experience far too frequently.
According to the U.S. Department of Transportation, 11,389
wheelchairs and scooters were mishandled by air carriers in
2022, up from 7,239 in 2021. Too many air carriers have
demonstrated that drastically reducing the rate of broken
wheelchairs and assistive devices is simply not a corporate
priority.
And after years of failure, it is time for Congress to act.
I want to thank Senator Baldwin for her leadership on the Air
Carrier Access Amendments Act and urge my colleagues to include
it in the FAA reauthorization. Of course, accessibility
problems are not limited to after a flight touches down.
We should empower consumers and airline employees alike
with easy access to clear information that enables one to
determine whether a specific flight accommodates a certain
wheelchair model or mobility aid.
We must also ensure passengers with disabilities can sit
with their companions who provide assistance and require
airports and air carriers and airport websites and mobile apps
to be fully accessible. It is bad enough that certain carriers
are making it harder to reach a live customer service agent by
phone, but for customers that can't use a mouse or touch
screen, an inaccessible website could leave you literally
stranded when there are massive delays.
I am working on legislation that would require the DOT to
examine air carriers and airport websites and mobile apps to
determine if they are accessible, and issue civil penalties
against those that are not.
And when mistakes happen and passengers with disabilities
file a complaint with the Department of Transportation, these
customers deserve transparency on whether their complaint was
resolved.
Senator Fischer and I introduced a Prioritizing
Accountability and Accessibility for Aviation Consumers Act to
require DOT to begin publishing a detailed annual report on how
quickly and effectively these consumer complaints are resolved.
Before yielding, I want to thank the Chair for including the
needs of regional airport passengers in today's hearings.
This past weekend, I was in Collinsville, Illinois, meeting
with the directors of several of our regional airports from
across our state. It will come as no surprise to anyone here
when I tell you they need our help at the regional airports.
These airports are an economic lifeline to the residents
and businesses they serve all across our great nation, and we
need to ensure that they have what they need to keep commercial
air service available and accessible in their communities.
I look forward to hearing from our witnesses on this. With
that, Madam Chair, I yield back. OK. I will reserve time for
Ranking Member Moran, when he comes back. And he does come to
do his opening statements.
At this time, I would like to introduce our witnesses prior
to recognizing them for their statements. I begin with Sara
Nelson, the International President of the Association of
Flight Attendants, CWA, AFL-CIO. Thank you for being here, Ms.
Nelson. Mr. William McGee, Senior Fellow for Aviation and
Travel, American Economic Liberties Project.
Thank you for being here. Trent Moyers, Airport Director,
Pangborn Memorial Airport. Very much looking forward to hearing
your perspective. Diana Moss, President of the American
Antitrust Institute. Thank you for being here. And Heather
Ansley, Associate Executive Director of Government Relations,
the Paralyzed Veterans of America. We will begin with Sara
Nelson.
STATEMENT OF SARA NELSON, INTERNATIONAL PRESIDENT, ASSOCIATION
OF FLIGHT ATTENDANTS-CWA, AFL-CIO
Ms. Nelson. Thank you, Chair Duckworth, Chair Cantwell,
Ranking Member Cruz, who is no longer here, and Ranking Member
Moran for the opportunity to testify today.
As President of the Association of Flight Attendants, I am
proud to represent 50,000 flight attendants at 19 airlines,
ground staff and gate agents represented by our partner union,
the Communications Workers of America, as well. As flight
attendants, our workspaces attract passengers travel space.
We have a long history of fighting for consumer rights
because our lives depend on addressing passengers' issues, too.
Since deregulation, mergers have been common and typically
wreak havoc on our job security, years of service at our
airlines, pay, pensions, and working conditions.
We believe antitrust review is critical for workers and
passengers. But there have been very little limits on
consolidation. And today we have only four airlines that
control 81 percent of the market. Our union has direct
experience with eight mergers in the past decade, and I
personally experienced more than a dozen proposed mergers, some
that our union fought to block. We have never before
enthusiastically endorsed a merger, but this is our position
today with the proposed JetBlue/Spirit combination.
We believe the pro-competition stance of this White House,
together with your critical eyes as lawmakers, the outcry from
consumers, and the effective work of our aviation unions led
JetBlue to design a merger plan that can actually begin to
correct the unchecked consolidation of the past decade.
This is the anti-merger merger. For safety and comfort, all
Spirit airplanes will be reconfigured from the 28-inch seat
pitch, which is the worst in the industry, to the 32-inch seat
pitch, which is the best minimum standard in the industry.
The result is far better ratio of gate agents and flight
attendants to passengers, bigger seats, free Wi-Fi, unlimited
snacks, and the option to forgo all of that if the passenger
chooses a lower fare. This would help to address concerns we
share with Senator Duckworth about safe evacuations.
We were proud to endorse the Emergency Vacating of Aircraft
Cabin, EVAC Act, in the last Congress, and we look forward to
the reintroduction in this Congress and for inclusion in the
FAA reauthorization bill. No to tiered employment.
This merger will insource jobs currently contracted out at
Spirit to make all of these aviation workers direct employees
of JetBlue with higher pay and benefits. The airline will not
use any contract flying with regional jets, a practice that the
major airlines utilize, to keep labor costs on average 45
percent less than mainline airlines for nearly half of the
domestic flights in their network.
More and better jobs. JetBlue has committed to no
furloughs, no displacements, and an expedited joint contract
bargaining process that will ensure flight attendants gain the
benefits of the merger as soon as possible.
Adding another carrier that must participate in collective
bargaining to the industry's highest standards increases the
rate at which workers can improve the value of our jobs, tackle
economy wide inequality, and spend more goods and services in
our communities.
Maintain and expand service to our communities. Combining
JetBlue and Spirit creates a network that can expand service
beyond what either airline can do alone. Failing to settle this
case will do nothing to change today's industry dynamics, but
it will ensure things stay the same.
There is not a person in the country who would say that is
OK. Everything the public hates about flying today would be
better at the merged airline. We urge lawmakers to encourage
the Administration to resolve any concerns with the merger and
enable workers and consumers alike to experience the benefits
as soon as possible.
We address many recommendations in our written testimony
for safe cabin and better passenger experience. These are joint
priorities with our sister union, the Association of
Professional Flight Attendants, but let me close with this.
With nearly 80 years of experience and heart in aviation,
the members of the Association of Flight Attendants know the
realities of the aircraft cabin better than anyone. We don't
just serve drinks, we save lives.
We don't just negotiate contracts, we move major policy
issues like the smoking ban, no knives on planes, clean water,
and safe food on board. The air we breathe matters, and we must
ensure there is always a safe seat for even our smallest
passengers.
Training, rest, and adequate staffing matters as we fight
fires, de-escalate conflict, revive, and breathe life. We
safely usher passengers to the big business deal, the family
vacation, the times of celebration, times of grief, and times
of battle. We are aviation's first responders and we are the
last line of defense in aviation security.
We are the first impression and the smile of aviation
connecting the people of our nations. Aviation has a long
history of collaboration among Government, industry, unions,
scientists, and consumers.
This collaboration and careful approach to layered safety,
security, health, and inclusion has built the safest mode of
transportation, the backbone of the American economy, and the
access that we enjoy around the world. We look forward to
working with this committee, to our continued shared
responsibility.
Fly with us, make progress with us. We are stronger and
better together. Thank you.
[The prepared statement of Ms. Nelson follows:]
Prepared Statement of Sara Nelson, International President, Association
of Flight Attendants--CWA, AFL-CIO
Introduction
Thank you Chair Cantwell, Ranking Member Cruz, Chair Duckworth, and
Ranking Member Moran for convening this hearing to examine the need to
strengthen consumer protections for the U.S. flying public, including
bolstering Department of Transportation rules, enhancing accessibility
for the disability community and exploring the intersection of
competition and customer service. We are pleased the Committee is also
focused on the importance of air service connectivity for small and
rural communities.
My name is Sara Nelson. I am a twenty-six year union flight
attendant and president of the Association of Flight Attendants-CWA,
AFL-CIO (AFA), representing 50,000 flight attendants at 19 airlines
across the industry. We also coordinate closely with our partner union
the Communications Workers of America, our sister union the Association
of Professional Flight Attendants and all of the transportation union
affiliates of the Transportation Trades Department, AFL-CIO.
Flight Attendants are aviation's first responders and charged with
the safety, health and security of the passengers in our care. Our work
space is a passenger's travel space. We have a long history of fighting
for consumer rights because we share the same space and many of the
same concerns. Historically, our union has played a leading role in
efforts to improve conditions for passengers and this testimony details
how this continues today through several of our legislative and
regulatory priorities for improving conditions on and off the plane.
Consumer Issues
The Anti-Merger, Merger: A Win for Passengers and Aviation Workers
A big win for passengers and aviation workers would be a successful
merger between JetBlue and Spirit. (Note: Although this is an
acquisition on the front end, the workers only experience the effects
of the transaction once the financial closing is complete and the
merger of operations commences. Business decisions by management should
never determine the worth or value of working people. Our union ensures
every Flight Attendant has equal standing during any corporate
transaction. That is why we only refer to this as a ``merger.'')
We have experience with eight mergers in the past decade, and I
personally have experience with more than a dozen proposed mergers--
some that we successfully blocked. There is good reason to approach any
consolidation with a heavy dose of skepticism. We have never before
concluded that a merger creates improved conditions for workers and
passengers, but that is our determination in this case. We believe the
pro-competition stance of this White House together with the critical
eye of lawmakers, the outcry from consumers, and the effective work of
our aviation unions led JetBlue to design a plan that can actually
begin to correct the consolidation of pricing power among four major
airlines, promote collective bargaining to the highest standards for
good jobs, and improve service to our communities.
The JetBlue-Spirit combination is the first merger that we
enthusiastically support because it sets competition to the highest
standards for workers and consumers. Specifically, these are the
protections and improvements that led to our endorsement of this
merger:
Safety and Comfort. All Spirit airplanes will be reconfigured from
28'' seat pitch, which is the worst in the industry, to 32'' seat pitch
which is the best minimum standard in the industry. This means more
comfort for passengers and a far better ratio of gate agents and Flight
Attendant to passengers. This improves safety, comfort, and contributes
to a better flying environment that has been plagued with disruptive
and violent episodes on our planes and gate areas. JetBlue will use
larger airplanes and fly each plane more to maintain or even add
capacity to the industry. This keeps fares low, while making flying
better for everyone. Bigger seats, free wifi, unlimited snacks, and the
option to forgo all of that for even lower fares if passengers so
choose. This would contribute to addressing very real concerns detailed
in Senator Duckworth's Emergency Vacating of Aircraft Cabin (EVAC) Act.
Our union has expressed significant concerns with the shrinking cabin
environment and the increased ratio of passengers to Flight Attendants.
Both of these issues are improved in the merger.
JetBlue is the only carrier that has published a clear passenger
bill of rights, including what the airline gives consumers if flights
are delayed or canceled as a result of a preventable incident. They
also proactively refund $15 to passengers if the WiFi or Inflight
entertainment is inoperative.
No Two-Tiered Employment. This merger will in-source jobs currently
contracted out at Spirit to make all of these aviation workers direct
employees of JetBlue with higher pay and benefits. The airline will not
use any contract flying with regional jets, a practice that the major
airlines utilize to keep labor costs on average 45 percent less than
mainline airlines for nearly half of the domestic flights in their
network. This immediately increases access to thousands of improved
aviation jobs and puts pressure on the mega airlines to compete to the
highest standards for workers.
More, Better Jobs. JetBlue has committed to no furloughs, no
displacements, and an expedited joint collective bargaining process
that will ensure Flight Attendants gain the benefits of the merger as
soon as possible. Spirit management recently reached an agreement with
our union to close out open contract negotiations, affecting more than
6000 Flight Attendants. The short-term contract provides immediate
double-digit raises from 10-27 percent, out year additional raises,
scheduling improvements and other benefits. This sets up the
opportunity for significant further improvements for the combined
Flight Attendant group through an expedited joint collective bargaining
process already committed to in writing by JetBlue, but only if the
concerns of the DOJ are resolved and this merger moves forward. Adding
another carrier that must participate in collective bargaining to the
industry's highest standards increases the rate at which workers can
improve the value of our jobs, tackle economy-wide inequality, and
spend more on goods and services in our communities.
Maintain/Expand Service to our Communities. Combining JetBlue and
Spirit creates a network that can expand service beyond what either
airline can do alone. For example, Spirit serves Charleston, WV today,
but the airline recently announced it will be leaving the market this
spring. Combined as a national carrier with more efficient planes and
connections, the airline can maintain and grow service. This is good
news for more consumer choice in many markets like Charleston.
Failing to settle this case will do nothing to change today's
industry dynamics, but it will ensure things stay the same. There's not
a person in the country who would say that's okay. Everything the
public hates about flying today would be better at the merged airline.
We strongly support the JetBlue-Spirit merger and urge lawmakers to
encourage the Administration to quickly move forward with their suit
and adhere to decades of agency precedence to ensure the financial
merger closing occurs in the near term. We want Flight Attendants,
other workers, and consumers to be able to access the benefits of the
merger as soon as possible.
Issues in the Passenger Cabin
A Seat for Every Passenger
Today there is no requirement to protect our smallest passengers in
their own seat with a proper restraint device. Children under the age
of two can fly as a ``lap child'' in the same seat as their parent or
guardian. The FAA \1\, the National Transportation Board (NTSB),
independent researchers, and Flight Attendants have all concluded this
is dangerous. Studies show that lap children are at higher risk of
injuries caused by falling from their parents' laps, sudden or severe
turbulence, and trauma incurred in a crash.\2\ Indeed, in the worst-
case scenario of a crash or severe turbulence, it would be effectively
impossible for a parent to hold onto their unbelted child.
---------------------------------------------------------------------------
\1\ https://www.faa.gov/travelers/fly_children
\2\ https://journals.lww.com/pec-online/Fulltext/2019/10000/
In_Flight_Injuries_Involving_
Children_on.7.aspx and https://journals.lww.com/pccmjournal/Citation/
2014/10000/Fatalities_Above_30,000_Feet___Characterizing.32.aspx
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In 1994, for example, one infant without a seat and proper
restraint died and another was severely injured after their plane had
to make an emergency landing off of its runway. After investigating the
crash, the NTSB determined that, had the babies been in their own, FAA-
approved safety seats next to their parents, they would not have
suffered significant injury.\3\ The majority of car seats sold in the
U.S. and Canada are certified for use on aircraft. In recent decades,
both the NTSB and a White House Commission on Aviation Safety and
Security have recommended that the FAA prohibit infants under age 2
from sitting on their parents' laps.\4\
---------------------------------------------------------------------------
\3\ https://www.forbes.com/sites/johngoglia/2013/04/18/if-the-faa-
thought-flying-with-lap-kids-was-unsafe-it-would-require-kid-seats-
right-wrong/?sh=67ec485e5aab
\4\ https://abcnews.go.com/Travel/story?id=5475316&page=1
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In 2001, the American Academy of Pediatrics recommended requiring
aircraft-approved restraint systems and discontinuing the policy of
allowing a child younger than 2 years to be held on the lap of an adult
during taxi, takeoff, landing and turbulence.\5\
---------------------------------------------------------------------------
\5\ https://publications.aap.org/pediatrics/article-abstract/108/5/
1218/63766/Restraint-Use-on-Aircraft?redirectedFrom=fulltext
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More recently, responding to strong support from its Member States
around the world, the International Civil Aviation Organization (ICAO)
released the Second Edition of its Manual on the Approval and Use of
Child Restraint Systems. This manual details guidance to promote the
use of child restraints on a global level, simplify international
operations, and make it easier for passengers traveling with CRS.\6\
---------------------------------------------------------------------------
\6\ https://store.icao.int/en/manual-on-the-approval-and-use-of-
child-restraint-systems-doc-10049
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There remains no credible rationale for the U.S. to fail to require
that all passengers, including infants and children under the age of
two, have their own seats and be properly restrained during critical
phases of flight, just like requirements at all times in a car. This
requirement should apply to all U.S. carriers and foreign carriers
flying to the U.S. Following instruction from lawmakers, the FAA can
use the ICAO guidance to address all related issues, including the
harmonization of approved child restraint systems.
It's past time to mandate this protection for our youngest
passengers.
Air Turbulence
Severe turbulence is happening more frequently and is more intense.
Last summer, a flight from Chicago to Salt Lake City experienced
moderate turbulence that caused minor injuries to three flight
attendants and one passenger \7\. July 2022, six passengers and two
crew members were injured on a flight from Tampa to Nashville after
unexpected turbulence. Seven were taken to the hospital with neck and
back pain \8\. In December 2022, 36 people were injured and 20 people
were taken to the emergency room on a flight from Phoenix to Honolulu.
Four passengers and two Flight Attendants were seriously hurt \9\. On
another flight in December, Three passengers and two Flight Attendants
injured following severe turbulence and taken to the hospital on a
flight heading from Brazil to Houston, TX \10\. In February 2023, two
passengers and one Flight Attendant were injured following turbulence
and taken to the hospital on a flight heading from Newark to Tampa
\11\. Earlier this month, a flight hit severe turbulence at 37,000 feet
over Tennessee. Seven passengers were injured and taken to the hospital
after the flight diverted to Washington Dulles Airport \12\.
---------------------------------------------------------------------------
\7\ https://www.sltrib.com/news/2021/06/25/four-people-southwest/
\8\ https://www.cnn.com/2022/07/20/us/turbulence-divert-plane-
injuries/index.html
\9\ https://www.theguardian.com/world/2023/jan/14/hawaiian-
airlines-flight-turbulence
\10\ https://www.cnn.com/travel/article/united-airlines-turbulence-
injuries/index.html
\11\ https://simpleflying.com/occupants-hospitalized-turbulence-
united-airlines-boeing-757/
\12\ https://www.cnn.com/travel/article/lufthansa-flight-diverted-
turbulence/index.htm
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For Flight Attendants and passengers, these incidents pose a
serious occupational and travel risk. In a report issued on August, 10
2021 \13\ the NTSB concluded:
---------------------------------------------------------------------------
\13\ https://www.ntsb.gov/safety/safety-studies/Documents/
SS2101.pdf
the Federal Aviation Administration, the National Weather
Service and airline industry associations take specific actions
to reduce the number of turbulence-related injuries in air
carrier operations. While it seems like common sense, the
NTSB's recommendations stated ``Wearing a seat belt reduces the
risk of serious injury for all aircraft occupants during
turbulence-related accidents in Title 14 Code of Federal
---------------------------------------------------------------------------
Regulations Part 121 air carrier operations.''
having flight attendants seated with their seat belts
fastened during additional portions of the descent phase of
flight would reduce the rate of flight attendant injuries due
to turbulence and the rate of turbulence-related accidents
overall.''
``the safest place for a child under the age of 2 is in a
CRS.''
We appreciate the leadership of Chair Cantwell to author key
provisions in the Inflation Reduction Act (IRA) such as increased
funding for the National Oceanic Atmospheric Administration (NOAA) to
fund climate research for atmospheric processes to examine the causes
and impacts of extreme weather. These investments will support the
development of more accurate/timely weather forecasts, and improved
climate change predictions. In addition, NOAA also received funding to
acquire a new Gulfstream G550 Hurricane Hunter to collect data when
large storms appear, which is vital for knowing where storms will hit
and how strong they will be. Improved weather forecasts can have a
profound impact on saving lives, jobs, businesses and communities.
Cabin Temperature--2HOT2COLD
Currently, no Federal standards define an acceptable temperature
range for airplane cabins. As a result, passengers and Flight
Attendants often experience discomfort, fatigue, and stress due to
excessively high or low cabin temperatures. Extreme temperatures can
cause passengers and crew to experience severe or life-threatening
symptoms, including heat stroke, loss of consciousness, and respiratory
arrest.
In 2017, a four month old baby overheated on the plane after being
delayed on the tarmac for two hours and was having trouble breathing
\14\. The Flight Attendants bagged ice to place on the baby, an
ambulance was called and paramedics met the aircraft. There are
numerous examples of passengers and Flight Attendants who have suffered
from extreme temperatures on the plane, but this can become a priority
to fix when temperature standards are put in place.
---------------------------------------------------------------------------
\14\ https://www.denverpost.com/2017/06/23/united-airlines-infant-
overheats-dia/
---------------------------------------------------------------------------
We urge the Committee to include language in the FAA
reauthorization bill that will require the FAA to adopt the temperature
standards recommended by the American Society of Heating,
Refrigerating, and Air-Conditioning Engineers (ASHRAE). These standards
state that the temperature onboard planes should be between 65-80
degrees on the ground (up to 85 if in-flight-entertainment is on), and
up to 80 degrees during the flight.
Improve Cabin Air Quality
Except for the Boeing 787, the ventilation air that passengers and
crew breathe during a flight is referred to as ``bleed air'' because it
is bled off the engine compressors. This high-temperature and pressure
``bleed air'' is then cooled, mixed with recirculated air, and
distributed to the cabin and flight deck for ventilation. The problem
with this design is that oil intended to lubricate the engines can
accidentally contaminate the bleed air stream, whether as a result of a
mechanical failure, oil seals that don't close fully during an engine
power change, or overservicing by maintenance staff.
In a published review of FAA maintenance databases, U.S. airlines
documented an average of 5.3 oil or hydraulic fluid events per day,\15\
which does not include all events. In addition to the potential for
long-term health effects, including neurological and respiratory damage
to crew and passengers, toxic fumes can impact flight safety and
security by impairing or incapacitating crewmembers. Further, fume
events often recur on the same airplanes after airlines deem planes
with faulty bleed systems airworthy despite not having fixed the
underlying problem.
---------------------------------------------------------------------------
\15\ Shehadi, M; Jones, B; and Hosni, M. (2016) ``Characterization
of the frequency and nature of bleed air contamination events in
commercial aircraft,'' Indoor Air, 26(3): 478-488, doi: 10.1111/
ina.12211. Epub 2015 Apr 25.
---------------------------------------------------------------------------
We urge the Committee to include the Cabin Air Safety Act of 2022
(S.3944/H.R. 7267) (soon to be reintroduced in the 118th Congress) to
direct the FAA to issue regulations requiring: airline worker training
to document fume events, suitable sensors on aircraft to detect a
variety of contaminants and fumes in real time, and investigate bleed
air events. The legislation also mandates that airlines provide flight
crew, maintenance technicians, and emergency response teams training on
how to respond to and identify the causes of fume events.
Add Naloxone Nasal Spray to Required Onboard Items
In 2019, AFA and several members of Congress petitioned the FAA to
require naloxone, a life saving medicine that quickly reverses and
blocks the effects of opioids, to be included onboard the aircraft. The
FAA has not responded to the petition or issued guidance. While a few
air carriers have added naloxone to their EMKs, it is typically the
injectable naloxone rather than a preferred option, which is the nasal
spray. The injectable naloxone takes longer to take effect and is not
as effective as the spray.
We encourage the Committee to add language to the FAA
reauthorization bill that says `The FAA shall issue guidance that
commercial air carriers must include naloxone nasal spray on board
within 90 days of enactment.'
Violent Attacks Negatively Impact Airline Crew and Passengers
A few weeks ago, the Department of Justice charged a passenger \16\
for allegedly attempting to open an emergency exit door while aboard a
United Airlines flight from Los Angeles to Boston and then allegedly
attempting to stab a Flight Attendant in the neck. AFA is proud of the
crew of United Flight 2609 and relieved that no one sustained life-
threatening physical injuries. Violence has no place anywhere and
certainly not in a closed cabin flying several miles in the air. When
incidents like this happen, it not only risks the safety of the crew
involved, it takes away from Flight Attendants' ability to respond to
medical, safety, or security emergencies of other passengers. We are
thankful for the FBI's quick action on this. This is another example of
the urgent need for a national banned disruptive passenger list.
---------------------------------------------------------------------------
\16\ https://www.justice.gov/usao-ma/pr/man-arrested-attempting-
open-emergency-exit-door-aboard-flight-boston
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In addition to the terrible assaults Flight Attendants experience
while on duty, passenger service agents are experiencing an increased
amount of passenger rage and their experiences often go unrecognized.
These incidents vary from using vulgar language when addressing
employees, using racial epithets that cause psychological harm to our
agents, to punching, biting, kicking, shoving and even spitting on
them. Union representatives report the highest number of calls to
employee assistance programs searching for ways to cope with fatigue,
stress and fear caused by these incidents.
We call on this Committee to include language in the FAA
reauthorization bill that bans these passengers from flying on all
airlines so they cannot commit these violent acts again.
These negative flying experiences make deep impressions and can
create terrible consequences. But we must also note that the vast
majority of interactions we have are positive and we can especially
celebrate the ways crews across the industry have pulled together to
support each other. As with everything we do, Flight Attendants have
incredible emotional intelligence to assess the subtleties of every
situation, step up for every crewmember when they need a break and
successfully get tens of thousands of flights and millions of people
safely to their destination without event and even with a smile.
Bare Minimum Staffing Levels
Staffing of Flight Attendants on planes, at the gate, and in ground
support was cut to minimums pre-COVID. There is no ``give'' in the
system. Pre-COVID airlines counted on high overtime hours to staff the
operation. With a seasoned workforce, and a normal hiring rate for
typical attrition, the frontline workforce knew our jobs well and often
``made it work'' when operational hiccups occurred.
According to the Bureau of Transportation Statistics (BTS), U.S.
airlines carried 194 million more passengers in 2022 than in 2021, up
30 percent year-to-year \17\. Yet, almost all domestic flights are
staffed with the minimum number of Flight Attendants, so when something
goes wrong there's no additional crew already in the operation to help
staff flights. When we think of the disruptive passenger incidents
we've seen, often there is a single flight attendant facing unhinged
rages.
---------------------------------------------------------------------------
\17\ Full Year 2022 U.S. Airline Traffic Data | Bureau of
Transportation Statistics (bts.gov)
---------------------------------------------------------------------------
Adding the conditions of the pandemic, which include higher rates
of sickness among the workforce, difficulties with commuting to work on
full planes, compressed cabin environments, increased turbulence,
weakened infrastructure to support operational irregularities, a
combative environment, mass retirements with fewer seasoned workers to
mentor new employees on the job, and a somewhat chaotic network that
was a response to new trends of passenger demand and little ability to
forecast--Flight Airlines and other aviation workers are feeling the
stress and strain of an operation stretched to its limit.
Staffing at the Gate
Gate agents are a vital part of a multilayered airline security and
safety process at the airport and their importance can not be
understated. The safety of ground service workers is a priority. At the
gates, oftentimes one passenger service agent is left to board full
planes by themselves creating communication issues during the boarding
process. And when a flight gets delayed or canceled that same agent or
sometimes no one is left in the terminal to assist passengers--making
an already difficult situation worse.
The airlines and the airports are too reliant on overtime hours to
meet basic operational metrics. This way of doing business needs to
stop or the industry will be run into the ground and it puts safety at
risk.
Increase staffing at the gate and on each flight. We need more
frontline workers in the airports and on planes who are able to answer
questions, identify problems early in order to de-escalate, or simply
have backup from other workers when issues get out of hand or require
physical restraint and a law enforcement response.
Crew Scheduling Difficulties
Excessive call wait times to get through to Crew Scheduling and
FAST to conduct routine tasks--calling off sick leave to return to
schedule, to obtain staffing, to secure hotels to ensure rest,
rescheduling after weather induced irregular operations, changes to
Reserve assignments and the list goes on. When we can't reach
scheduling or get recrewed that has a ripple effect on other flights.
The compounding effect is massive delays or cancellations.
Schedule and Operational Disruptions
Flight attendants are on the frontlines when an operational
meltdown occurs, and they are expected to address passenger concerns.
But Flight Attendants have been left empty handed or stranded
themselves without support from management who are running the airline.
The summer of 2022 was one of the worst in recent history in terms
of chaotic scheduling and other workplace woes. Flight attendants at
United and Southwest airlines staged protests at airports across the
U.S. to draw attention to this and urged our airlines to fix problems
that were creating havoc for flight attendants and travelers alike.
Update Emergency Aircraft Evacuation Standards
As part of implementing Sections 337 and 577 of the FAA
Reauthorization Act of 2018,\18\ the FAA conducted a study in late 2019
through early 2020 to determine the effects of different seat
dimensions and spacing on facilitating emergency evacuations. However,
the FAA used simulated laboratory conditions, and not a real airplane,
to conduct its evaluation. Further, the study sample did not include
any children, adults over 60, or people with disabilities as
participants.\19\
---------------------------------------------------------------------------
\18\ https://www.congress.gov/bill/115th-congress/house-bill/302/
text
\19\ https://www.faa.gov/sites/faa.gov/files/2022-03/PL-115-254-
Sec-337-Aircraft-Cabin-Evacuation-Standards.pdf
---------------------------------------------------------------------------
Since children, older adults, and people with disabilities are the
least likely to be able to evacuate an airplane in a safe and timely
manner, the FAA's study did not demonstrate or accurately depict if all
passengers can safely evacuate an airplane in under 90 seconds (the
standard amount of time for an emergency evacuation). Indeed, the FAA
itself conceded that, because they did not include these groups in
their study, the study's results were ``not necessarily definitive.''
\20\
---------------------------------------------------------------------------
\20\ https://www.faa.gov/sites/faa.gov/files/2022-03/PL-115-254-
Sec-337-Aircraft-Cabin-Evacuation-Standards.pdf
---------------------------------------------------------------------------
AFA supports Senator Duckworth's Emergency Vacating of Aircraft
Cabin (EVAC) Act, which will be reintroduced in the 118th Congress.
Conclusion
We thank the committee for this opportunity to testify.
Improvements to our workspace directly enhance the passenger's travel
experience. Aviation has a long history of collaboration among
government, industry, unions, scientists, and consumers. This
collaboration and careful approach to layered safety, security, health,
and inclusion has built the safest mode of transportation, the backbone
of the American economy, and the access that we enjoy around the world.
We look forward to working with this committee to continue our shared
responsibility to ensure a safe, inclusive, efficient and reliable
aviation system that brings us together at home and around the world.
Senator Duckworth. Thank you, Ms. Nelson. And I do want to
apologize for not recognizing previously the honorable Jeff
Shane. Thank you for your service as a Former Undersecretary at
the Department of Transportation. Welcome. I will now recognize
Mr. Moyers for his statement.
STATEMENT OF TRENT MOYERS, DIRECTOR OF AIRPORTS, CHELAN DOUGLAS
REGIONAL PORT AUTHORITY
Mr. Moyers. Thank you. Thank you, Chair Cantwell, Ranking
Member Cruz, Chair Duckworth, and Ranking Member Moran for the
opportunity to testify. My name is Trent Moyers. I am the
Director of the Pangborn Memorial Airport in Wenatchee,
Washington.
While I don't speak for the hundreds of airports and
communities who are facing air service challenges, I believe
our experience in Central Washington's Wenatchee Valley is an
example of the impacts felt by airports nationwide. Commercial
air service began in Wenatchee in 1945.
Fast forward to 2019, and we had a record year for
enplanements, with more than 64,000 passengers departing from
our airport. As the reality of the pandemic took hold in 2020,
that number dropped to 27,000. While passenger numbers rose to
48,000 the next year in 2021, last year enplanements fell again
to 35,000. Today--sorry. Service in Wenatchee and many small
airports has not returned to pre-pandemic levels, largely due
to a lack of airline capacity.
The number of daily flights to our airport has gone from
four in recent years down to one. The post-pandemic recovery of
air service continues to be challenging Wenatchee, but we know
we are not alone.
Today, 76 percent of airports have less air service than
before the pandemic. 14 U.S. airports have lost all commercial
air service. And 53 airports, like ours, have lost over half of
their flights. The Wenatchee Valley is known proudly as the
apple capital of the world and is home to a population of
approximately 120,000.
In addition to a robust agricultural economy, a relatively
new type of farm has cropped up thanks to our affordable and
clean hydroelectric energy, server farms, both invest heavily
in our area. Tree fruit farms and server farms are linked to
the global economy, and as such, these industries have a need
to connect with their consumers and suppliers far beyond our
region.
In Chair Cantwell's opening remarks and last week mentioned
during the hearing regarding aviation workforce issues, you
mentioned that over 80 percent of economic development occurs
within ten miles of an airport. The statement is true in
Wenatchee, where just one mile from the airport, Microsoft has
completed construction of the first of six 240,000 square foot
data centers that has created 50 full time jobs, with plans to
invest a total of $3 billion in the community.
Another example of a high-tech industry finding its way to
Wenatchee occurred in 2018 when Diamond Foundry, a company
located and headquartered in San Francisco, established a
diamond growing facility in Wenatchee.
Air transportation accessibility was among the key factors
that contributed to their selection of Wenatchee as a suitable
site. In the Wenatchee Valley, 850 people drive every day to an
airport other than Pangborn because connectivity from Wenatchee
is limited. A single flight per day to Seattle means only 76
people can directly access air transportation to or from
Wenatchee without spending 3 hours driving.
Finally, I want to note that in Wenatchee, commercial air
service saves lives. Last year, Airlift Northwest, an air
ambulance operator based at our airport conducted 700 ambulance
flights. They depend on our commercial air service to deliver
blood supplies and flight nurses, and in the winter, they are
able to land and take off because of our FAA requirements to
remove snow from the runway in support of air carrier
operations.
Our community needs continued access to commercial aviation
to keep these essential services. Given all of these impacts,
Congress should act to restore--to revitalize air service in
small and rural communities. Senator Cantwell has been a leader
in promoting the SCASDP Program, and Senator, I thank you for
that.
Possible actions could include allowing greater flexibility
in existing programs. Airline business strategies change over
time, and the terminal grant should be able to meet those
changing market demands. If adequate incentives that are
attractive to airlines and supportive of the communities, they
serve are available, the likelihood of successful airline
recruitment improves.
The upcoming FAA reauthorization presents a key opportunity
to examine and improve air access for small communities. For
someone who manages a small airport, the correlation between
airport improvement programs and air service development and
retention programs is clear. The challenge of an airport with a
limited budget and limited service means that sometimes being
forced to choose between infrastructure improvements and air
service incentives is a reality.
Paying the 10 percent local share of an FAA funded project
can mean sacrificing other priorities, like pursuing air
service expansion. I would encourage the Committee to restore
the 95 percent Federal cost share for small airports that was
put in place in the 2003 FAA bill to help address this
challenge.
Thank you for the opportunity to testify today. I look
forward to answering any questions you may have.
[The prepared statement of Mr. Moyers follows:]
Prepared Statement of Trent Moyers, Director of Airports,
Chelan Douglas Regional Port Authority
Thank you, Chair Cantwell, Ranking Member Cruz, and members of the
committee for the opportunity to testify today. My name is Trent
Moyers, and for the past 10 years I have served as the Director of the
Pangborn Memorial Airport, located in Wenatchee, Washington.
My aim today is to discuss air service challenges in my own
community and highlight common themes of broader, national concern that
are impacting communities throughout the county. While I do not speak
for the hundreds of airports and communities who are facing air service
challenges across the nation, I believe our experience in Central
Washington's Wenatchee Valley is an example of the impacts felt by
small airports nationwide.
Commercial Air Service Challenges in Wenatchee
Our airport is named after the pilot Clyde Pangborn, who along with
his co-pilot Hugh Herndon were the first people to fly non-stop across
the Pacific Ocean from Misawa, Japan to East Wenatchee, WA in 1931.
That historic event in a single-engine airplane took 41 hours to
accomplish. Fourteen years later, Northwest Airlines became the first
carrier to provide air service to Wenatchee. Fast forward to 2019, and
we had a record year for enplanements, with 64,609 passengers passing
through our airport. As the reality of the pandemic took hold, in 2020
that number dropped to 27,008. While passenger numbers rose to 48,338
in 2021, last year, enplanements fell again to 34,700.
Air service has not rebounded at Pangborn primarily because we have
seen the four daily flights to Seattle prior to the pandemic now
reduced to one. That means the number of daily seats for passengers in
our market has been reduced from 304 down to only 76 per day. Clearly,
the post-pandemic recovery of air service continues to be challenging
in Wenatchee, but we know we're not alone. Today, 76 percent of U.S.
airports have less air service than before the pandemic. Fourteen U.S.
airports have lost all commercial air service, and 53 airports, like
ours, have lost over half of their flights.
The Wenatchee Valley is known as ``the apple capital of the world''
and is home to a population of approximately 120,000. In addition to a
robust agricultural economy, a relatively new type of farm has cropped
up thanks to our affordable, clean, and renewable hydro-electric
energy: server farms. This hi-tech industry has invested heavily in our
area. Companies such as Microsoft, Intuit, Dell, and Sabey all have a
presence in the region. Tree fruit farms and server farms are both
linked to the global economy. As such, these industries have a need to
connect with their consumers and suppliers far beyond the Wenatchee
Valley.
Last week, during this Committee's hearing regarding aviation
workforce issues, Chair Cantwell mentioned that around 80 percent of
all economic development occurs within 10 miles of an airport. This
statement is verifiably true in Wenatchee where less than one mile from
Pangborn Memorial airport, Microsoft has completed construction on the
first of three 240,000 square foot data centers that has created 50
full-time jobs. At buildout, the total estimated investment at this
location will be $1.5 billion. Microsoft has applied for building
permits to construct three more similarly sized data centers
approximately three miles from the airport in nearby Malaga; investing
another $1.5 billion in the process and creating additional jobs.
Another example of hi-tech industry finding its way to our region
occurred in 2018 when Diamond Foundry, a company headquartered in San
Francisco, established a diamond growing facility in Wenatchee. One
year later, Diamond Foundry began producing diamonds using Wenatchee's
hydroelectric power sources. The technology used in their laboratory
setting replicates nature's own process to produce ``gem-quality''
diamonds for retail as well as diamond-based semiconductors. Along with
their need for affordable, clean energy to maintain a zero-carbon
footprint, Diamond Foundry also cited air transportation accessibility
as a key reason that contributed to their selection of the Wenatchee
site.
Airports of all sizes bolster their local economies by connecting
passengers and cargo with where they need to go, but it's important to
note that having commercial air service also directly provides
workforce opportunities for their communities, from airline and TSA
staff, to aircraft servicing, administration, operations and
maintenance, and public safety.
A well-used colloquialism in the aviation industry is ``if you've
seen one airport, you've seen one airport.'' It's important to
recognize the unique qualities of all airports and the communities they
serve. However, there is a common theme wherever the struggle to regain
or retain air service continues, regardless of location: air service is
a critical component of the local economy.
There are 245 nonhub airports in the U.S. and its territories--
airports that have at least 10,000 passengers annually, but less than
0.5 percent of the national total. The following are just a few
examples of communities with a nonhub airport that have been impacted
by reductions in air service:
In Illinois--Champaign/Urbana has just 60 percent of the number
of seats that it had before the pandemic. More than 75 percent
of all passengers in the area drive to Chicago to access
flights.
In Kansas--Topeka is currently without air service. It seems
unlikely the state capital will regain service without a large
enough financial incentive for an air carrier to restore
service. For now, most consumers who visit via air fly in and
out of its closest neighbor 70 miles away, Kansas City,
Missouri.
In Nevada--Elko (an airport I used to manage) is geographically
challenged when it comes to air service even though there are
major airports in every direction: the closest option is a
three-hour drive east to Salt Lake City, UT. The other airports
are Reno, NV (more than four hours west), Boise, ID (four hours
north), and Las Vegas, NV (seven hours south). Currently, Elko
has one flight per day to Salt Lake City.
In the Wenatchee Valley, 850 people drive every day to an airport
other than Pangborn because connectivity from Wenatchee is limited. A
single flight per day to Seattle means only 76 people can directly
access air transportation from Wenatchee without spending at least 3
hours driving. Compounding this issue even further is the fact that
there is no direct interstate access to Wenatchee. The closest
interstate, I-90, is 40 miles away via a two-lane highway. Wenatchee is
one of only eight Metropolitan Areas nationwide with no direct access
to an interstate or four-lane highway.
This issue of connectivity is further exacerbated for those driving
to Seattle as the drive requires crossing mountain passes. On any given
day, highway closures due to avalanche control, wildland fires, or
motor vehicle accidents are possible. Thus, there are times when air
service is the only option in or out of Wenatchee for people headed to
Seattle and beyond.
Current Airline Incentives Don't Meet the Need
Federal support for rural airport service from programs like
Essential Air Service (EAS) and the Small Community Air Service
Development Program (SCASDP) is vital. But Wenatchee's story shows why
today the current level of investment doesn't come close to addressing
the challenge. At Pangborn, we were awarded a SCASDP grant in 2018, for
$700,000, to attract new air service. To successfully compete for that
grant, we raised $401,000 from the local community. Even with this
level of support, we have yet to attract a carrier to provide new
service.
The Department of Transportation just last week released its notice
of funding for this year's SCASD program. $15 million is available for
a maximum of 40 awards, which pencils out to an average award amount of
only $375,000. Based on my experience, I believe with this level of
investment it will be difficult for many communities to successfully
secure new service from airlines. If we are to do more to restore air
service to small and rural communities, we need to look at what changes
to these programs need to be made to make them more effective.
The President of the Air Line Pilot Association, Jason Ambrosi,
testified before this Committee last week that, ``We believe air
service to small and rural communities is a national responsibility and
that safe, efficient, and reliable air service to these communities is
a critical component of our national air transportation system.''
I concur with Mr. Ambrosi that Congress should take action to
restore or revitalize air service in small and rural communities.
Possible actions could include allowing greater flexibility in existing
EAS and SCASD programs. If adequate incentives that are attractive to
airlines and supportive of the communities they serve are available,
the likelihood of successful airline recruitment improves. An airline
that flies a route that does not foster resiliency is unlikely to
operate beyond the life of the grant funds.
Suggestions offered by Mr. Ambrosi to amend EAS included ``changing
the subsidy and enplanement cap, allowing air carriers to renegotiate
EAS contracts to account for unforeseen operating costs, revising the
DOT's calculation for driving distance, allowing communities that lost
EAS service to regain or reestablish eligibility, and revise the DOT's
process for carrier selection.'' I believe that similarly providing
greater flexibility for SCASDP, expanding on actions taken in the 2018
bill, could similarly provide benefits for non-EAS airports, along with
ensuring the level of grant funding is sufficient to incentivize air
carriers to add service for the long term. Addressing workforce
challenges throughout the aviation industry must also be a priority.
Funding that our community puts towards recruiting air service is
funding that can't go towards airport infrastructure. For someone who
manages a small airport, the correlation between air service
development and retention programs and airport improvement programs is
evident. Both are impactful components of FAA reauthorization for
airports of our size. Without the support of FAA funding, the ability
for small airports to complete capital improvement projects is
daunting, if not impossible.
Fortunately, the Airport and Airway Revenue Act of 1970
figuratively and literally paves the way for airports to ensure they
continue to remain viable. Commercial service airports of all sizes,
ranging from Wenatchee to Atlanta, work diligently to comply with FAA
standards while meeting the growing needs of their communities.
The challenge of an airport with limited air service and a limited
budget means that sometimes choosing between infrastructure projects
and air service incentives is a reality. At Pangborn, we face
particular funding challenges because so much of our surrounding area
is owned by the Federal government (in our case, as National Forest
land). 79 percent of Chelan County is Federal land, which deprives us
of the ability to collect tax revenue on these lands which could be put
towards airport improvements. Congress has previously recognized this
challenge and in 2003 increased the Federal share for Airport
Improvement Program (AIP) projects from 90 to 95 percent for small
airports in states with a high share of Federal lands. That provision
expired in 2011. Restoring the Federal share to 95 percent would
provide significant help to Wenatchee and communities like ours that
are deprived of tax revenues due to high levels of Federal land
holdings.
Closing Remarks
Ninety-two years ago, our airport's namesake Clyde Pangborn bravely
and literally took off into the unknown and accomplished what had never
been done before. The issues we face together to safeguard the future
of accessible air transportation are challenging in their own right,
and I want to thank the Chair and the Members of the Committee for
their thoughtful leadership on these critical issues.
Thank you for the opportunity to testify today. I look forward to
answering any questions you may have, and to working with the Committee
to find ways to ensure air service is readily accessible to communities
nationwide.
Senator Duckworth. Thank you, Mr. Moyers. I now recognize
Mr. McGee.
STATEMENT OF WILLIAM McGEE,
SENIOR FELLOW FOR AVIATION AND TRAVEL,
AMERICAN ECONOMIC LIBERTIES PROJECT
Mr. McGee. Thank you, Chair Cantwell, Ranking Member Cruz,
Chair Duckworth, Ranking Member Moran, and members of the
Committee. My name is William Jay McGee and I am the Senior
Fellow for Aviation and Travel at the American Economic
Liberties Project. Starting in 1985, I spent 7 years in airline
flight operations management, and I am licensed by the Federal
Aviation Administration as an aircraft dispatcher. I then
became an aviation journalist and author. For the last 20
years, I have been an airline passenger advocate, testifying on
consumer rights, competition, consolidation, and safety issues,
and I served as a lone consumer advocate on Transportation
Secretary LaHood's future of Aviation Advisory Committee.
The nation's airline industry has broken, and it has found
us lurching from crisis to crisis, meltdown to meltdown, as the
interests of consumers, workers, and entire regions of the
country are subjugated to the interests of a handful of
institutional investors, lobbyists, and senior executives.
Every day, passengers are faced with fewer choices, higher
fares, and a plethora of junk fees. Flight disruptions have
become the norm rather than the exception. And when things go
wrong, as they so often do now, we are at the mercy of the
airline's own contracts of carriage. These are rules that are
written by and most assuredly for the airlines.
We have seen new lows in customer service despite a $54
billion taxpayer bailout during COVID-19. Over the last 2 years
alone, we have seen record numbers of flight delays and
cancellations, $10 billion in unpaid refunds, tighter and
tighter seats that pose not only health, but emergency
evacuation threats, not just to the disabled, but to all
passengers, and ubiquitous fees that President Biden referenced
in his recent State of the Union address, including the
nefarious practice of charging families with young children to
sit together. Airfares have never been more confusing and less
tied to the cost of operation.
Overall, passengers have never been more dissatisfied.
Airline labor has been decimated by layoffs and outsourcing.
Entire regions have been disconnected from global access, and
major cities have lost the airport hubs and frequent service
that incite corporations to move headquarters.
The FAA safety net is eroding, and at no time in the
industry's 109-year-old history have Americans had less choice.
There are now fewer scheduled passenger airlines than in 1978.
The big four oligopoly controls an unprecedented 80 percent of
the market, and we just saw a 14-year dearth from 2007 to 2021
of no new entrant airlines.
These are the symptoms, not the causes of much larger
difficulties. The 1978 Airline Deregulation Act promised to
introduce competition, lower fares, and expand access to flying
for millions of Americans.
And instead, we have seen more than 100 airline
bankruptcies in the last four decades and dozens of mergers and
acquisitions rubberstamped by the U.S Departments of Justice
and Transportation.
Today, we find this industry in dire straits. No single
answer will resolve all the problems, but there are several
actions that the Executive and legislative branches could take.
First, AELP urges the members of the Senate Commerce Committee
to consider the pro-consumer legislation we have supported in
recent months, including the Airline Passengers Bill of Rights,
which would require compensation for flight delays and
cancellations, establish minimum seat size standards, and would
require compensation for involuntary denied boarding.
Second, the Forbidding Airlines from Imposing Ridiculous
Fees Act, which would prohibit airlines from charging
unreasonable fees. Third, the Family Flies Together--excuse me,
Families Fly Together Act so that passengers do not have to pay
fees to ensure children under 13 are seated with their
families. And fourth, the Cash Refunds for Flight Cancellations
Act, which would force airlines to pay cash and not vouchers,
which can expire when they cancel flights.
Also, any further consolidation of the industry should be
halted. AELP opposes the proposed merger of JetBlue and Spirit
and we applaud the Departments of Justice and Transportation
for opposing this harmful acquisition. Third, the Airline
Deregulation Act included a Federal preemption clause which
allows Congress and the U.S. Department of Transportation the
only authority to oversee the airlines.
Americans have fewer rights when interacting with airlines
than they have with virtually any other consumer industry. AELP
has drafted model legislation calling for the elimination of
preemption, and we are working with members to see that is
introduced soon as part of this year's FAA Reauthorization Act.
Finally, we need to fundamentally reconsider our approach
to regulating the airline industry. It faces immense incentives
to consolidate, to tack on extra fees, and to erode service
quality. Any farsighted policy solution needs to eliminate
these underlying incentives, which mean seriously discussing
options to comprehensively regulate the industry as we have.
Thank you very much.
I will be happy to answer any questions from the Committee.
[The prepared statement of Mr. McGee follows:]
Prepared Statement of William J. McGee, Senior Fellow for Aviation and
Travel, American Economic Liberties Project
Thank you, Chairperson Cantwell, Ranking Member Cruz, Chairperson
Duckworth, Ranking Member Moran, and Members of the Committee. My name
is William J. McGee, and I am the Senior Fellow for Aviation and Travel
at the American Economic Liberties Project, a nonprofit organization
dedicated to addressing the problem of concentrated economic power in
America today. Starting in 1985, I spent seven years in airline flight
operations management, and I am licensed by the Federal Aviation
Administration (FAA) as an Aircraft Dispatcher. I then became an
aviation investigative journalist, columnist, and author, writing
extensively about the industry. For the last 20 years I have been an
airline passenger advocate, testifying on consumer rights, competition,
consolidation, safety, and security issues, and serving as the lone
consumer advocate on Transportation Secretary LaHood's Future of
Aviation Advisory Committee.
The nation's airline industry is broken, and it has found us all
lurching from crisis to crisis, meltdown to meltdown, as the interests
of consumers, workers, and entire regions of the country are subjugated
to the interests of a virtual handful of institutional investors,
lobbyists, and senior executives. Every day passengers are faced with
fewer choices, higher fares, and a plethora of junk fees added onto
airfares. Flight disruptions have become the norm rather than the
exception, and when things go wrong-as they so often do now-we are at
the mercy of the airlines' own Contracts of Carriage, rules written by
and most assuredly for the airlines. American Airlines is about to
launch ``New Distribution Capability,'' which will make airfares more
opaque than ever.\1\ Despite the industry notching record consumer
complaints in recent years, Frontier Airlines may well have been
speaking for all U.S. airlines last November when it permanently shut
down its telephone call centers; the message was clear: don't bother
calling, because we don't want to hear from you.\2\
---------------------------------------------------------------------------
\1\ American Airlines Newsroom, ``A Modern Retailing Experience:
American Airlines Signs New Agreements With All Three Major Global
Distribution Systems,'' October 24, 2022, https://news.aa.com/news/
news-details/2022/A-Modern-Retailing-Experience-American-Airlines-Signs
-New-Agreements-With-All-Three-Major-Global-Distribution-Systems-MKG-
OTH-10/default.aspx.
\2\ Ed Markey, Press Release, ``In Wake of Holiday Travel Chaos,
Senators Markey, Blumenthal, Reps. Cohen, Garcia, Khanna Reintroduce
Legislation to Groun Airlines' Skyrocketing Fees,'' January 31, 2023,
www.markey.senate.gov/news/press-releases/in-wake-of-holi
day-travel-chaos-senators-markey-blumenthal-reps-cohen-garcia-khanna-
reintroduce-legislation-to-ground-airlines-skyrocketing-fees;
Department of Transportation, Air Travel Consumer Report, February
2021, www.transportation.gov/sites/dot.gov/files/2021-02/
February_%202021%20AT
CR.pdf; Giulia Heyward, ``Frontier Airlines drops its customer service
line,'' NPR, November 26, 2022, www.npr.org/2022/11/26/1139291958/
frontier-airlines-drops-its-customer-service-line.
---------------------------------------------------------------------------
We have seen new lows in customer service, despite a $54 billion
taxpayer bailout during Covid-19. Over the last two years alone we have
seen record numbers of flight delays and cancellations, $10 billion in
unpaid refunds, tighter and tighter seats that pose health and safety
threats not just to the disabled but to all passengers, and ubiquitous
junk fees that President Biden referenced in his recent State of the
Union address, including the nefarious practice of charging families
with young children to sit together. Airfares have never been more
confusing, more opaque, and less tied to the cost of operation. Every
day some 303 million fares are uploaded worldwide. We see significant
threats to the Nation's stellar aviation safety record overlooked,
particularly with FAA oversight of outsourced aircraft maintenance to
foreign repair stations and oversight of manufacturers, as exemplified
by the Boeing 737 MAX debacle; efforts to weaken pilot standards; and a
refusal to mandate restraints for children under 2. The industry shows
tremendous regional inequities, with entire sections of the country
denied fair access to air travel, as only larger cities and population
centers have frequent and nonstop flights at reasonable cost. Overall,
passengers have never been more dissatisfied, airline labor has been
decimated by layoffs and outsourcing, and major cities have lost the
airport hubs and frequent service that incite corporations to move
headquarters. At no time in the industry's 109-year-old history have
Americans had fewer choices in commercial air service, and at no time
have the adverse effects on consolidation been so harmful.\3\
---------------------------------------------------------------------------
\3\ Bureau of Transportation Statistics, On-Time Performance--
Reporting Operating Carrier Flight Delays at a Glance,
www.transtats.bts.gov/homedrillchart.asp; Senator Markey, Press
Release, ``Senators Markey and Blumenthal Blast Airlines' Inadequate
Response to their Request to Eliminate Expiration Dates for All
Pandemic-Related Flight Costs,'' June 1, 2021, www
.markey.senate.gov/news/press-releases/senators-markey-and-blumenthal-
blast-airlines-inadequate-response-to-their-request-to-eliminate-
expiration-dates-for-all-pandemic-related-flight-credits; Comments of
American Economic Liberties Project, Consumer Action, Consumer
Federation of America, Ed Perkins on Travel, National Consumers League,
and U.S. PIRG, Docket No. FAA-2022-1001, November 1, 2022, nclnet.org/
wp-content/uploads/2022/11/NCL-et-al-SS-RFC-Comments-FINAL-AS-
FILED.pdf; American Economic Liberties Project, ``Congress and DOT Must
Permanently End Family Seating Fees,'' Press Release, February 21,
2023, www.economicliberties.us/press-release/congress-and-dot-must-
permanently-end-family-seating-fees/; Transport Workers Union Local
514, ``Aircraft Maintenance Outsourcing,'' June 6, 2019, twu514.org/
aircraft-maintenance-outsourcing-summit-video/; Department of
Transportation Office of Inspector General, Boeing 737 MAX,
www.oig.dot.gov/related-library-items-tags/boeing-737-max; Department
of Transportation, The Future of Aviation Advisory Committee Final
Report, April 11, 2011, www.transportation.gov/sites/dot.gov/files/
docs/faac-final-report-for-web.pdf; Department of Transportation,
Domestic Airline Consumer Airfare Report, www
.transportation.gov/office-policy/aviation-policy/domestic-airline-
consumer-airfare-report-pdf; Alana Semuels, ``Airlines Are Terrible.
Small Cities Are Still Paying Them Millions of Dollars to Stick
Around,'' Time Magazine, January 17, 2023, time.com/6247052/airlines-
deregulation-american-inequality/.
---------------------------------------------------------------------------
In recent months AELP has been very vocal on a variety of airline
consumer issues, including:
fighting to provide basic passenger rights (such as those
that are mandatory in the European Union, Canada, and other
nations) so that passengers are guaranteed compensation for
flight delays, flight cancellations, and involuntary bumping,
and ensuring that aircraft seat sizes meet minimum size
dimensions
fighting to ensure that airlines are prohibited from
charging unreasonable ``junk fees''
fighting to prevent airlines from charging fees for families
with children under 13 to sit together inflight
fighting to ensure consumers are given full cash refunds
when their flights are canceled
The United States has not had a national discussion about the state
of our commercial aviation system for 45 years, and the problems that
have arisen since the 1970s grow more acute month after month. We are
long overdue for such a broad discussion, a discussion which transcends
the latest crisis du jour-unpaid refunds during the pandemic, flight
cancellations due to crew shortages, Southwest Airlines' holiday IT
meltdown, the FAA's NOTAM outage. These are the symptoms, not the
causes, of much larger difficulties. The airlines are broken, and the
regulatory model overseeing the airlines is just as broken.
The Failures of Deregulation
We in the United States often tell ourselves a story about airline
deregulation, and it goes something like this. The airline industry
used to be regulated by a cumbersome, slow bureaucracy called the Civil
Aeronautics Board, which set the routes that airlines could fly, set
the fares that they were allowed to charge consumers, and became
captured by the big airlines such that no new-entrants were allowed. In
1978, we passed the Airline Deregulation Act which allowed new airlines
to enter the market and charge whatever prices the market would bear,
promising to introduce competition, lower fares, and expand access to
flying for millions of Americans. The airlines and the defenders of
deregulation will tell you that deregulation generated three great
improvements in air travel: 1) more Americans started flying; 2) fares
started dropping; and 3) the safety record started improving.\4\
---------------------------------------------------------------------------
\4\ S. 2493, Airline Deregulation Act, 95th Congress, 1978 https://
www.congress.gov/bill/95th-congress/senate-bill/2493/text; Edward M.
Kennedy, ``Airline Regulation by the Civil Aeronautics Board,'' Journal
of Air Law and Commerce, 1975, scholar.smu.edu/cgi/viewcon
tent.cgi?article=2106&context=jalc.
---------------------------------------------------------------------------
This story can be compelling. However, in the 45 years since the
Airline Deregulation Act was passed in 1978, one by one the central
promises of more competition and better service have been broken. What
they fail to note is that ALL THREE of these trends started long before
deregulation, and in all three cases the improvements were greater
prior to 1978. The decline in passenger fares, in particular, actually
slowed down post-deregulation.\5\
---------------------------------------------------------------------------
\5\ Airlines for America, ``Air Travelers in America: Annual
Survey,'' June 23, 2022, www.airlines.org/dataset/air-travelers-in-
america-annual-survey/; william C. Goodman, ``Transportation by air:
job growth moderates from stellar rates,'' Bureau of Labor Statistics,
March 2000, www.bls.gov/opub/mlr/2000/03/art3full.pdf; Boeing,
``Statistical Summary of Commercial Jet Airplane Accidents: Worldwide
Operations 1959-2021,'' August 2022, www.boeing.com/resources/
boeingdotcom/company/about_bca/pdf/statsum.pdf.
---------------------------------------------------------------------------
Consolidation
Deregulation was based on faulty premises-that eliminating
government oversight would introduce competition, lower prices, and
better customer experience-and ignoring the positive role that
government regulation had played in stabilizing the industry. In the
1980s, when deregulation led to a series of price wars between major
airlines and put many of them out of business by the 1990s, proponents
of deregulation saw these developments as positive. Competition was at
work to bring prices down for flyers. However, without any oversight to
stabilize the industry from price wars of this sort, the industry faced
stark choices to either risk bankruptcy or to consolidate into larger
airlines.
These pressures eliminated many airlines through either bankruptcy
or merger activity. We have seen more than 100 bankruptcies in the last
four decades, many due to major carriers driving out smaller, Low Cost
Carriers (LCCs). As a result:
We currently have fewer domestic scheduled passenger
airlines than we have had since the 1910s, and the dozens of
former carriers include such iconic brands as Pan Am, Eastern,
TWA, America West, ATA, Midwest, Northwest, Continental,
AirTran, U.S. Airways, and Virgin America.
We currently have fewer major carriers than at any time,
with an oligopoly of four major carriers and their partners--
American, Delta, Southwest, and United--controlling 80 percent
of the domestic market.
We recently had the longest drought in airline history, from
2007 to 2021, of no new-entrant scheduled airlines for 14
years.\6\
---------------------------------------------------------------------------
\6\ Airlines for America, U.S. Airline Bankruptcies, August 24,
2022, www.airlines.org/dataset/u-s-bankruptcies-and-services-
cessations/; Airlines for America, U.S. Airline Mergers and
Acquisitions, January 17, 2023, www.airlines.org/dataset/u-s-airline-
mergers-and-acquisitions/; Statista, Leading airlines in the U.S. by
domestic market share 2021, February 3, 2023, www.statista.com/
statistics/250577/domestic-market-share-of-leading-us-airlines/;
William J. McGee, Comments Concerning the U.S. Airline Industry,
Response to Request for Information on Merger Enforcement, April 2022,
www.economicliberties.us/wp-content/uploads/2022/04/2022-04-20-AELP-
DOJ-FTC-Airlines-McGee.pdf.
Making this situation worse, under deregulation we have seen a
weaker DOJ on antitrust and merger enforcement. Dozens of mergers and
acquisitions have been rubber-stamped by the U.S. Departments of
Justice (DOJ) and Transportation (DOT) in recent decades, including the
``mega-mergers'' of Delta-Northwest, United-Continental, and American-
US Airways that morphed the Big Six network hub-and-spoke airlines into
the Big Three. For context, Airlines for America reports that in the 60
years from 1930 to 1990 there were 28 mergers & acquisitions among U.S.
airlines, but in the next 30 years through 2020-half that span-there
were 29. Third, Wall Street investors engage in ``common ownership''
practices by simultaneously investing in all of the four largest
airlines, thereby discouraging true competition, and providing a higher
barrier to entry for low fare competitors than ever existed during the
regulated era.\7\
---------------------------------------------------------------------------
\7\ Airlines for America, ``U.S. Airline Bankruptcies,'' August 24,
2022, www.airlines.org/dataset/u-s-bankruptcies-and-services-
cessations/; Mergers and Acquisitions, January 17,2023,
www.airlines.org/dataset/u-s-airline-mergers-and-acquisitions/; William
J. McGee and Lee Hepner, ``How to Address the Air Travel Crisis:
Eliminating The Airlines' Legal Liability Shield,'' American Economic
Liberties Project, September 2022, www.economicliberties.us/wp-content/
uploads/2022/09/2022-9-07-AirTravelCrisis_Quick-Take-FINAL.pdf.
---------------------------------------------------------------------------
And despite all of this consolidation, the industry is still not
stable or consistently profitable, as seen by its need for a specific
bailout from the Federal government every time there is a significant
economic crisis. This is an industry that socializes the losses and
privatizes the profits. American taxpayers provided the airlines with a
$54 billion bailout during Covid, but that has not stopped the industry
from prioritizing stock dividends, buybacks, and executive bonuses.\8\
---------------------------------------------------------------------------
\8\ Consumer Reports, ``CU to Testify on Dangers of United/
Continental Merger at House Hearing,'' June 15, 2010,
www.consumerreports.org/media-room/ press-releases/2010/06/cu-to-
testify-on-dangers-of-unitedcontinental-merger-at-house-hearing/;
William J. McGee, ``It's Time to Finally Fix Air Travel,'' New York
Times, January 13, 2023, www.nytimes.com/2023/01/13/opinion/faa-air-
travel-regulation-outage.html; Southwest Airlines Investor Relations,
``Southwest Airlines Reinstates Quarterly Dividend,'' December 7, 2022,
www.southwestairlinesinves
torrelations.com/news-and-events/news-releases/2022/12-07-2022-
114528327; Rajesh Kumar Singh, ``CU to Testify on Dangers of United/
Continental Merger at House Hearing,'' Reuters, August 18, 2022,
www.reuters.com/business/aerospace-defense/airline-unions-launch-
campaign-against-stock-buybacks-2022-08-18/.
---------------------------------------------------------------------------
What to Do Now
We find this industry in dire straits, and no one simple answer
will resolve all of the problems, but there are several actions that
the executive and legislative branches could take.
First, AELP urges the Members of the Senate Commerce Committee to
consider the pro-consumer legislation we have supported in recent
months. This includes:
The ``Airline Passengers' Bill of Rights,'' which among
other provisions includes compensating passengers for flight
delays and cancellations, mandating minimum seat size
standards, and providing compensation for involuntary denied
boarding: www.markey.senate.gov/news/press-releases/senators-
markey-blumen
thal-lead-in-introducing-legislation-to-bolster-airline-
passenger-protections#:
:text=Among%20a%20host%20of%20key,%241%2C350%20to%20passengers%2
0
denied%20boarding
The ``Forbidding Airlines from Imposing Ridiculous (FAIR)
Fees Act,'' which would prohibit airlines from charging
unreasonable fees: www.markey
.senate.gov/news/press-releases/in-wake-of-holiday-travel-
chaos-senators-markey-blumenthal-reps-cohen-garcia-khanna-
reintroduce-legislation-to-ground-airlines-skyrocketing-fees
The ``Families Fly Together Act,'' to ensure that passengers
do not have to pay fees to ensure children under 13 are seated
with their families: www.markey
.senate.gov/news/press-releases/as-president-targets-junk-fees-
and-airlines-fail-flyers-senator-markey-introduces-families-
fly-together-act-so-parents-dont-pay-to-sit-with-their-children
The ``Cash Refunds for Flight Cancellations Act,'' which
would force airlines to pay cash refunds when they cancel
flights: https://raskin.house.gov/2023/2/raskin-markey-
blumenthal-and-cohen-reintroduce-cash-refunds-for-flight-
cancellations-act-to-protect-rights-of-airline-passengers
Second, any further consolidation of the industry should be halted.
AELP strongly opposes the proposed merger of JetBlue Airways and Spirit
Airlines, because it will eradicate the Nation's largest Ultra Low Cost
Carrier (ULCC), drive up fares nationwide, and position JetBlue not to
fight the Big Four but to expand the oligopoly into the Big Five. We
applaud the Department of Justice and the Department of Transportation
for opposing this harmful acquisition. According to the DOJ: ``Spirit
estimates that when it starts flying a route, average fares fall by 17
percent; JetBlue estimates that when Spirit stops flying a route,
average fares go up by 30 percent.'' In fact, last year AELP called for
the DOJ and Federal Trade Commission to impose a moratorium on ALL
airline mergers until the widespread negative effects of all this
consolidation can finally be examined by the DOJ and DOT.\9\ Third,
state governments and citizens should be given greater rights to police
the industry. One of the most harmful byproducts of deregulation was
the inclusion of a Federal preemption clause, which effectively gave
only Congress and the U.S. Department of Transportation authority to
oversee the airlines. For 45 years this has meant that state courts,
state attorneys general, and state legislatures have been largely
powerless in reigning in the excesses of the industry's anti-
competitive greed and mistreatment of passengers, and consumers have
had fewer rights when interacting with airlines than they have with
virtually any other consumer industry. AELP has drafted model
legislation calling for the elimination of preemption, and we're
working with Members to see that it will soon be introduced as part of
this year's FAA Reauthorization Act.\10\
---------------------------------------------------------------------------
\9\ Complaint, United States v. Jetblue Airways Corporation, Case
1:23-cv-10511, March 7, 2023, https://www.justice.gov/opa/press-
release/file/1572461/download; American Economic Liberties Project,
``Economic Liberties Applauds DOJ for Blocking JetBlue-Spirit Merger,
Urges DOT to Join in Protecting Passengers, Workers & Communities,''
March 7, 2023, www.econo
micliberties.us/press-release/economic-liberties-applauds-doj-for-
blocking-jetblue-spirit-merger-urges-dot-to-join-in-protecting-
passengers-workers-communities/; William J. McGee, Comments Concerning
the U.S. Airline Industry, Response to Request for Information on
Merger Enforcement, April 2022, www.economicliberties.us/wp-content/
uploads/2022/04/2022-04-20-AELP-DOJ-FTC-Airlines-McGee.pdf.
\10\ William J. McGee and Lee Hepner, ``How to Address the Air
Travel Crisis: Eliminating The Airlines' Legal Liability Shield,''
American Economic Liberties Project, September 2022,
www.economicliberties.us/wp-content/uploads/2022/09/2022-9-07-
AirTravelCrisis_Quick-Take-FINAL.pdf.
---------------------------------------------------------------------------
Fourth, we need to fundamentally reconsider our approach to
regulating the airline industry. Blocking further consolidation in the
industry and providing passengers with greater legal recourse are
certainly improvements, but they do not attack the root causes of the
problem. The airline industry faces such immense incentives for
consolidation that blocking a single merger, or five mergers, will not
solve. And airlines likewise exist in an unstable market environment
that gives them strong incentives to take advantage of, abuse, and rip
off consumers. Any farsighted policy solution needs to eliminate these
underlying incentives in the industry, rather than put a Band-Aid on
the problems that they cause. This means seriously reconsidering
options to more comprehensively regulate the industry once again.
Thank you very much. AELP will be happy to respond to any questions
from the Committee.
Senator Duckworth. Thank you, Mr. McGee. Now recognize Dr.
Moss.
STATEMENT OF DIANA L. MOSS, PRESIDENT,
AMERICAN ANTITRUST INSTITUTE
Dr. Moss. Thank you. Chair Cantwell and Duckworth, and
Ranking Members Cruz and Moran, and members of the Committee.
It is an honor to be here today to lend the American Antitrust
Institute's perspective to consumer protection and connectivity
in the U.S. air transportation system.
My testimony approaches this important issue through the
lens of competition and how more, not less, is the best vehicle
for protecting consumers. It makes the case for why we need
both, strong antitrust enforcement, and coherent regulatory
policy working together to get there.
The trend toward concentration in the U.S. airline markets
continues. There have been almost 20 mergers involving domestic
carriers in the last two decades, six of which have involved
mergers of major legacy and low-cost carriers. Two recent
merger proposals have been made, Spirit and Frontier, which was
aborted last year. JetBlue and Spirit, which was recently
challenged by the U.S. Department of Justice.
And a joint venture codeshare between American and JetBlue,
otherwise known as the Northeast Alliance, where we await a
decision on the legality of the codeshare in Federal Court. The
last 20 years have been marked by the sequential elimination of
competing airlines, mounting antitrust concerns, and no
meaningful greenfield entry of new carriers. Today, the sector
is dominated by a tight oligopoly of carriers.
A common justification for airline mergers and joint
ventures is to bulk up to compete better against other large
rivals. This has never been a valid legal basis for allowing
any merger under U.S. antitrust law.
It puts air passenger service markets on the slippery slope
of rising concentration and higher barriers to entry to smaller
rivals. Recent proposals would further erode competition to the
detriment of consumers.
My written testimony addresses the four major issues, four
major following issues. First, a loss of competition in
passenger markets affects airfares and ancillary fees, but it
also affects quality of service. As an important non-price
dimension of competition, quality has only recently gained
attention, but more is needed on how consolidation reduces
competitive pressures for carriers to maintain and enhance
quality.
This includes metrics such as on time performance,
minimization of delays and cancellations, minimization of
consumer complaints, and transparency in airfare distribution.
Second, airline consolidation is unlikely to produce enhanced
connectivity for travelers. Airlines often promise enhanced
connectivity, such as new or more frequent service offerings on
combined networks. But analysis shows that these claims do not
always materialize. In fact, some mergers actually create
inefficiencies.
Third, competition is essential for consumer choice and the
stability and resiliency of the passenger air system.
Consolidation threatens diversity of carriers to serve, for
example, consumers who are price sensitive and for whom bundled
fare fee low-cost models are ideal.
A less competitive air transportation system is less likely
to withstand shocks, such as pandemic and extreme weather, or
to recover quickly from them. Finally, promoting competition
and protecting consumers requires strong antitrust enforcement
and coordinated regulatory oversight.
While antitrust enforcement in the airline industry appears
to be on the uptick, regulatory policy has lagged behind. AAI
has advocated for major regulatory overhauls at DOT to create
coherent competition policy that bootstrap stronger
enforcement.
This includes revisiting DOT's policy approach to approving
joint ventures and granting immunity. Immunize joint ventures
not only affect competition on international routes, but also
on behind the gateway routes to smaller domestic destinations.
Another priority should be to redesign the FAA's slot
allocation program to more efficiently allocate takeoff and
landing slots at congested airports. Slots are critical for
smaller and newer carriers to enter markets to serve smaller
destinations.
Common use gates at airports are also a potential tool for
promoting competition and spurring entry by smaller rivals.
Finally, further consolidation could well result in the loss of
important hubs that provide consumers with access to air
transportation.
Past mergers have resulted in the de-hubbing of important
parts of the U.S., such as the Midwest, with the loss of
Memphis, Cleveland, and Saint Louis. It is vital that service
to smaller communities be maintained as part of a competitive
air system. AAI appreciates the opportunity to testify at this
important hearing, and I look forward to your questions.
[The prepared statement of Dr. Moss follows:]
Prepared Statement of Diana L. Moss, President,
American Antitrust Institute
Thank you Chair Cantwell, Ranking Member Cruz, and Members of the
Committee. It is an honor to be here today to lend the American
Antitrust Institute's (AAI's) perspective to consumer protection and
connectivity in the U.S. air transportation system. AAI is an
independent, nonprofit organization devoted to promoting competition
that protects consumers, businesses, and society.\1\ We serve the
public through research, education, and advocacy on the benefits of
competition and the use of antitrust enforcement as a vital component
of national and international competition policy. AAI has advocated for
strong antitrust enforcement and competition policy in passenger air
transportation for more than two decades. This is supported by research
and education on the competition, consumer, and labor implications of
airline mergers, joint ventures, slot allocation, antitrust immunity
for alliances, and the distribution of airfare and schedule
information.\2\
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\1\ See https://www.antitrustinstitute.org.
\2\ See https://www.antitrustinstitute.org/issues/airlines/.
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I. Summary of Major Issues
My testimony addresses the following major issues:
A loss of competition in passenger air transportation
markets affects airfares and ancillary fees and quality of
service. As an important non-price metric of competition, the
quality of products and services has only recently gained
attention by antitrust enforcers. More attention should be paid
to how consolidation in the U.S. passenger air transportation
markets reduces competitive pressure to maintain and enhance
quality of service.
Airline mergers and joint ventures are unlikely to produce
enhanced ``connectivity'' for travelers. U.S. air carriers have
long justified proposed mergers and joint ventures on the basis
of enhanced consumer benefits, or the ability of merged
carriers to offer new or more frequent service on combined
networks. But analysis shows these claims do not always
materialize and, in fact, some mergers actually create
inefficiency.
Competition is essential for consumer choice and the
stability and resiliency of the passenger air transportation
system. Consolidation in U.S. passenger air transportation
markets has reduced choice for consumers. This means fewer
options for consumers who want to purchase service that meets
their needs. An air transportation system that features fewer
rivals is also less likely to withstand shocks such as pandemic
and extreme weather and to recover quickly from them.
Promoting competition and protecting consumers requires
strong antitrust enforcement and coordinated regulatory
oversight. Historically, there has been less coordination on
airline competition matters such as mergers, joint ventures,
and slot allocation between the U.S. Department of Justice
(DOJ) and Department of Transportation (DOT). Coordination
across these two prongs of government is essential for
promoting competition and protecting consumers.
II. Introduction
The trend toward concentration in U.S. airline markets continues.
There have been almost 20 mergers involving domestic carriers in the
last two decades, six of which have involved mergers of major legacy or
low-cost carriers (LCCs) or ultra-low-cost carriers (ULCCs).\3\ This
period of time has been marked by the sequential elimination of
competing airlines, mounting antitrust concerns in passenger air
transportation markets, and no meaningful greenfield entry of new
carriers. Today, the U.S. passenger airline system is dominated by a
tight oligopoly of carriers, with a small fringe of LCCs and ULCCs.
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\3\ U.S. Airline Mergers and Acquisitions, Airlines For America
(Jan. 17, 2023), https://www.airlines.org/ dataset/u-s-airline-mergers-
and-acquisitions/.
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A common justification for airline mergers and joint ventures is to
bulk up to compete better against other large competitors.\4\ This has
never been a valid legal or economic rationale for allowing any merger
under U.S. antitrust law. Moreover, it puts passenger air service
markets on the slippery slope of ever-rising concentration and erects
barriers to entry to new, smaller rivals. Recent proposed mergers and
joint venture agreements, including the mergers of Frontier-Spirit and
JetBlue-Spirit, and the American-JetBlue codeshare (the ``Northeast
Alliance'') would further erode competition, to the detriment of
consumers and workers.
---------------------------------------------------------------------------
\4\ See, e.g., JetBlue Releases Analysis Further Demonstrating
Procompetitive Benefits of Combination with Spirit, JetBlue (Mar. 6,
2023), https://news.jetblue.com/latest-news/press-re
lease-details/2023/JetBlue-Releases-Analysis-Further-Demonstrating-
Procompetitive-Benefits-of-Combination-with-Spirit/default.aspx.
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These deals threaten higher airfares and ancillary fees, lower
quality of service and less innovation, and less choice for consumers;
and lower wages and less bargaining power for airline workforces. The
further loss of competition through mergers and joint venture
agreements is also likely to reduce the stability and resiliency of the
air transportation system by eliminating redundancy and diversity of
carriers.
Antitrust concerns over the harmful effects of consolidation are on
the rise. For example, the DOJ filed suit against United and Delta in
2015, alleging the illegal acquisition of takeoff and landing slots at
Newark's Liberty International Airport.\5\ The DOJ also filed suit
against American and JetBlue in 2021, alleging that the carriers'
Northeast Alliance codeshare agreement violated Section 1 of the
Sherman Act.\6\ Finally, the DOJ filed suit in March 2023 to block the
merger of JetBlue and Spirit, alleging that the merger would eliminate
head-to-head competition, facilitate anticompetitive coordination, and
reduce consumer choice.\7\ Private antitrust class actions have also
been brought against U.S. carriers, including the 2010 case involving
anticompetitive collusion on baggage fees between then low-cost-
carriers Southwest and AirTran.\8\
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\5\ U.S. v. United Continental Holdings, Inc. and Delta Air Lines,
Inc., Verified Compliant, Case No. 2:33-av-00002 (D.N.J., filed Nov.
10, 2015).
\6\ U.S., et al., v. American Airlines Group Inc. and JetBlue
Airways Corporation, Complaint, Case No. 1:21-cv-11558 (D. Mass., filed
Sept. 21, 2021).
\7\ U.S., et al., v. JetBlue Airways Corp. and Spirit Airlines,
Inc., Complaint, Case No. 1:23-cv-10511 (D. Mass., filed Mar. 7, 2023).
\8\ In Re Delta/AirTran Baggage Fee Antitrust Litigation, Case No.
1:09-cv-01391-TCB, (N.D. Ga., filed Aug. 2, 2010).
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High and rising market concentration is the root of the competitive
concerns in the foregoing antitrust cases. Dominant carriers and
oligopolies of carriers have strong incentives to protect their
dominant positions and to coordinate to keep capacity tight and
airfares and fees high, respectively. Preventing further increases in
market concentration that hurts consumers and workers, and jeopardizes
the stability and resiliency of the passenger air transportation system
will require a coordinated response by legislators, enforcers, and
regulators. Such a response, which should have been implemented years
ago, should be a high priority for Federal and state governments.
III. A Loss of Competition in Passenger Air Transportation Markets
Affects Airfares and Ancillary Fees and Quality of Service
Airline mergers and joint ventures affect competition in two major
ways. One is the elimination of head-to-head competition between
merging or joint venture carriers. A second is stronger incentives for
the remaining carriers in the market to coordinate, rather that
compete. Both of these competitive effects result in a range of adverse
price and non-price effects. For example, on routes where mergers and
joint ventures eliminate a head-to-head competitor or result in a
smaller number of carriers on the routes, airfares are likely to rise.
For mergers involving ULCs or ULCCs, which use a bundled model with
separate ancillary fees for baggage, priority boarding, and other
services, eliminating competition will put upward pressure on those
fees.\9\
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\9\ See, e.g., Letter from the American Antitrust Institute to the
Honorable Jonathan Kanter, Re: Antitrust Review of the Spirit Airlines-
Frontier Airlines Merger, American Antitrust Inst. (Apr. 5, 2022), at
Sec. IV.A., https://www.antitrustinstitute.org/wp-content/uploads/2022/
04/
AAI_Spirit_Frontier_ Letter-to-DOJ_4.5.22.pdf.
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The stepwise elimination of competition in passenger air
transportation markets over the last two decades has also raised
questions around the degradation in quality of service. Adverse effects
result from, for example, less competitive pressure to quickly and
smoothly integrate the systems of merging carriers, including
information technology, labor workforces, frequent flyer programs, and
aircraft configurations. Evidence from previous airline mergers
indicates that combining airline systems post-merger has been expensive
and protracted. For example, U.S. Airways explained in 2006 that ``The
integration of U.S. Airways Group and America West Holdings has been
and will continue to be costly, complex and time consuming, and
management will continue to devote substantial effort to that
integration and may have its attention diverted from ongoing
operational matters or other strategic opportunities.''21 United-
Continental also struggled with system integration post-merger,
problems that directly affected quality of service and caused
significant public backlash.
A loss of competition also reduces competitive pressure on carriers
to maintain or enhance quality post-merger. This increases consumer
search costs and inconvenience and degrades the passenger experience.
Mergers and joint ventures that combine: (1) ULCCs with poor-quality
records, or (2) mixed models such as a ULCC and full-service carrier,
increase the risk that quality deteriorate post-consolidation. For
example, AAI examined the service quality records of Spirit and
Frontier from 2015 to 2021 and found that Spirit ranked, on average, in
the bottom twentieth percentile for on-time arrivals while Frontier
ranked in the bottom sixth percentile \10\ Spirit ranked, on average,
in the top twentieth percentile for the most customer complaints while
Frontier ranked in the top thirty-fifth percentile.\11\
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\10\ Id. Citing Air Travel Consumer Reports, U.S. Dep't. of
Transportation, Office of Aviation Consumer Protection, June 2015, June
2018, and June 2021 reports, https://www.transpor
tation.gov/individuals/aviation-consumer-protection/air-travel-
consumer-reports.
\11\ AAI research shows that ULCs have historically had the most
delays. For example, over the period 2004-2013, regional carriers saw a
slight decline in delays, hub-and-spoke carriers showed an 11 percent
increase in delays, but low-cost carriers showed a 47 percent increase
in delays. See, Diana L. Moss, Delivering the Benefits? Efficiencies
and Airline Mergers, American Antitrust Inst. (Nov. 21, 2013), at 15-
16, https://www.antitrustinstitute.org/wp-content/uploads/2013/12/
AAI_USAir-AA_Efficiencies-1.pdf.
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The elimination of competition between Spirit and Frontier, should
the carriers have merged, would likely have exacerbated their history
of poor service quality performance, to the detriment of consumers. It
is vital, therefore, that antitrust enforcement and sector regulation
look carefully at how airline competition affects the price and non-
price dimensions of competition.
IV. Airline Mergers and Joint Ventures Are Unlikely to Produce Enhanced
``Connectivity'' for Travelers
There are two categories of benefits or ``efficiencies'' that are
typically offered by airlines seeking to justify mergers, joint
ventures, and requests for antitrust immunity for alliances. One
category is cost savings that are projected to result from integrating
information systems, better utilization of gate space and other
facilities such as hangars and leaseholds, and increased operational
efficiency. A second category of efficiencies is network benefits from
post-merger capacity management and enhanced connectivity for
consumers. There are a number of potential sources of network benefits:
adding destinations to the combined network, offering more round-trip
options on existing routes, converting interline service into single
line service, optimizing the combined fleet of aircraft across a larger
network, and scheduling improvements.
Efficiencies from airline consolidation have been the focus of
considerable analysis and growing skepticism. As one expert summed up a
decade ago: ``It is pretty difficult looking at the U.S. airline
industry [to believe] that mergers are actually going to lower costs.
There is no evidence that they deliver more cost-efficiency.'' \12\
Claims of network benefits are viewed even more skeptically. A number
of factors create a highly fluid landscape, against which efficiencies
claims become highly uncertain. These include: (1) different economics
of hub-and-spoke networks operated by the legacy network carriers and
the point-to-point networks operated by ULCs and ULCCs, (2) entry and
exit into route-level markets, (3) strategic pricing by other carriers,
and (4) profitability of routes.
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\12\ Kristen Leigh Painter, United Airlines is one big company, but
not yet one happy family, DenverPost.com (Sept. 8, 2013), http://
www.denverpost.com/business/ci_24036565/united-airlines-is-one-big-
company-but-not.
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There are three major examples that undercut claims that airline
consolidation improves connectivity and benefits consumers. First,
analysis of past airline mergers reveals that network benefits from
increased connectivity after the Delta-Northwest, United-Continental,
and Southwest-AirTran mergers did not fully materialize. Indeed,
airlines cut airport-pairs from their systems post-merger and ULCs cut
a substantially higher percentage than did legacy airlines.\13\ More
recently, AAI analyzed claims of network benefits from combining the
Spirit and Frontier networks. Changes in entry and exit on routes
between 2015 and 2021 showed that the carriers exited more than 50
percent of routes and entered only 35-40 percent of routes.\14\ This
high rate of churn in the Spirit and Frontier route systems strongly
suggests that the carriers would still have engaged in rapid entry and
exit from route-level markets had they merged, undercutting claims of
long-term enhanced connectivity.
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\13\ Delivering the Benefits? Efficiencies and Airline Mergers,
supra note 11, at Sec. VI.
\14\ AAI Letter to DOJ on Spirit-Frontier, supra note 9, at
Sec. III.C.
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The economic reality is that airlines will only enter and remain in
markets when they are profitable. Otherwise, they will exit routes.
This fact casts significant doubt on claims that post-merger, carriers
will increase long-term connectivity for consumers. Southwest Airlines
confirmed this in 2011 at a Senate Judiciary Committee hearing on the
Southwest-AirTran merger. There, Senator Kohl asked Southwest's CEO
Gary Kelly: ``Would you at this time commit to maintaining AirTran's
service and its growth plans at Mitchell Airport after this merger
takes place? Mr. Kelly responded: ``Mr. Chairman, we are very enthused
about Milwaukee. We are very enthused about continuing to grow
Southwest Airlines . . . I just cannot guarantee that we will have the
fiscal ability to do that.'' \15\
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\15\ The Southwest/AirTran Merger and its Impact On M-7 Businesses,
Consumers, and the Local Economy, Hearing Before the Subcommittee On
Antitrust, Competition Policy And Consumer Rights of the Committee on
the Judiciary, United States Senate, 112th Congress (Feb. 25, 2011).
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Second, past airline consolidation has resulted in the ``de-
hubbing'' of cities in the hub-and-spoke networks of the legacy
airlines. High profile examples of hub cutbacks include Cincinnati
(Delta) where scheduled departures between 2007 and 2021 declined by 63
percent, Cleveland (Continental) with a 25 percent decrease, Memphis
(Northwest), with a 35 percent decrease, Pittsburgh (US Airways), with
a 40 percent decrease, and St. Louis (American), with a 25 percent
decrease.\16\ The de-hubbing of the Midwest has had material impacts on
the accessibility of passenger air service for a major segment of the
U.S., with outsized effects on smaller communities where consumers are
forced to travel greater distances to access airports.
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\16\ Delivering the Benefits? Efficiencies and Airline Mergers,
supra note 11, at Sec. VI.
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Third, the DOT has approved numerous airline joint venture
alliances involving carrier cooperation on activities such as:
interlining with carrier partners, sharing frequent flyer programs,
codesharing, coordinating pricing and schedules, and fully integrated,
immunized revenue and profit-sharing joint-venture type
coordination.\17\ Immunity for airline alliances is a form of express
statutory immunity that is granted by DOT under its public interest
standard, pursuant to 49 U.S.C. Sec. 41308-309. There are currently 25
active immunized alliances.\18\ Alliance carriers support requests for
immunity by asserting, among other things, that passengers benefit from
integrating itineraries on connecting routes, thus enhancing
competition in behind-or beyond-the-gateway segments and lowering
fares.
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\17\ See Paul Stephen Dempsey, Airline Alliances 13 (Institute of
Air & Space Law, 2011), https://www.mcgill.ca/iasl/files/iasl/ASPL614-
Alliances.pdf.
\18\ Airline Alliances Operating With Active Antitrust Immunity,
U.S. Dep't. of Trans. (updated Apr. 3, 2019), https://
www.transportation.gov/office-policy/aviation-policy/airline-alliances-
operating-active-antitrust-immunity.
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However, recent economic studies of the benefits cast doubt on the
benefits of immunity.\19\ For example, immunity may lead to less
competition--on non-stop and one-stop routes--in transatlantic
markets.\20\ Moreover, while immunized JVs may increase capacity at
hubs, it comes at the expense of services elsewhere in the network.\21\
When alliance carriers compete with a non-alliance interlining carrier,
the latter are foreclosed, increasing disparities in market share and
decreasing interlining traffic.\22\ The evidence on the costs and
benefits of immunity highlights how consolidation and coordination can
decrease connectivity for consumers and why DOT should take a more
cautious approach to granting immunity.
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\19\ See, e.g., William Gillespie & Oliver M. Richard, Antitrust
Immunity Grants to Joint Venture Agreements: Evidence from
International Airline Alliances at 7 (Economic Analysis Group
Discussion Paper, EAG 11-1, 2012), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id
=1764083.
\20\ W. Tom Whalen, A Panel Data Analysis of Code-Sharing,
Antitrust Immunity, and Open Skies Treaties in International Aviation
Markets, 30 Rev. Indus. Org. 39 (2007).
\21\ Volodymyr Bilotkach & Kai Huschelrath, Balancing Competition
and Cooperation: Evidence from Transatlantic Airline Markets
(Discussion Paper No. 15-059, August 2015), http://ftp.zew.de/pub/zew-
docs/dp/dp15059.pdf.
\22\ Volodymyr Bilotkach & Kai Huschelrath, Airline Alliances,
Antitrust Immunity, and Market Foreclosure at 8-10 (ZEW Discussion
Paper No. 10-083, 2012), ftp://ftp.zew.de/pub/zew-docs/dp/dp10083.pdf.
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V. Competition is Essential for Consumer Choice and the Stability and
Resiliency of the Passenger Air Transportation System
Competition is essential to enable consumers to choose air service
that meets their needs and pocketbooks, as well as for promoting the
stability and resiliency of the passenger air transportation system.
Past consolidation has eroded these important features of competition
in the passenger air transportation system. As air travel has become
more accessible to different segments of consumers, the industry has
satisfied different types of demand with different business models and
pricing structures. The legacy airlines still adhere primarily to a
full-service model, with integrated pricing for air service and
ancillary services. The ULCC model (e.g., Spirit and Frontier) features
unbundling of ancillary fees (e.g., baggage, boarding, seat selection,
etc.) from fares as part of a ``fare+fee'' model. JetBlue offers a
hybrid, LLC and full-service, model.
The DOJ's recent lawsuit challenging the merger of JetBlue and
Spirit focuses on effects that are central to the importance of
maintaining a diverse system of carriers. For example, the complaint
alleges that the elimination of Spirit--one of two national ULCCs--
would make it easier for remaining rivals to coordinate on price and
capacity.\23\ But the complaint also alleged that the elimination of
Spirit reduces important choice for consumers. In its letter to the DOJ
on the proposed merger of Spirit and Frontier, AAI emphasized that the
merger would lessen pressure on the merging parties to compete on
ancillary fees under their fare+fee model, harming consumers that are
particularly price sensitive.\24\
---------------------------------------------------------------------------
\23\ DOJ Complaint in JetBlue-Spirit, supra note 7.
\24\ AAI letter to DOJ on Spirit-Frontier, supra note 9.
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It is also clear that competition is necessary for the stability
and resiliency of the passenger air service system. For example, early
in the COVID-19 pandemic, disruption threatened and immobilized
critical supply chains and systems. Many of these supply chains were
marked by a lack of competition, creating bottlenecks and a lack of
stability in the system that had serious consequences for consumer
welfare, safety, and security.\25\ Supply chains that feature robust
competition at various levels are far more likely to ensure the
reliable and stable distribution of products and services because there
are more competitors working to fill the void.
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\25\ Diana L. Moss and Laura Alexander, When COVID-19 is the
Symptom and Not the Disease: Consolidation, Competition, and Breakdowns
in Food Supply Chains, American Antitrust Inst. (May 7, 2020), https://
www.antitrustinstitute.org/work-product/when-covid-19-is-the-symptom-
and-not-the-disease-consolidation-competition-and-breakdowns-in-food-
supply-chains/#_ftn4.
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The wave of consolidation that fundamentally reshaped the passenger
air system in the U.S. over the last two decades has likely reduced the
ability of the system to withstand external shocks. For example, the
COVID-19 pandemic created shortages of pilots, crews, and other
workforces while the industry struggled with plummeting demand and
lower revenues.
Fewer carriers, loss of competitive redundancy on routes, and
higher barriers to entry for smaller entrants contribute to less
resiliency in the system to withstand disruption. And in late December
2022, extreme weather created a cascading failure on the Southwest
Airlines system.\26\ The airline cancelled a significant percentage of
flights, relative to other legacy, ULC, and ULCC carriers, stranding
travelers and creating wider system disruption.\27\
---------------------------------------------------------------------------
\26\ Delays, cancellations continue for Southwest Airlines at
Denver airport, days after freezing weather passes, CPR News (Dec. 26,
2022), https://www.cpr.org/2022/12/26/delays-cancellations-continue-
for-southwest-airlines-at-denver-airport-days-after-freezing-weather-
passes/.
\27\ On-Time Performance--Reporting Operating Carrier Flight Delays
at a Glance. U.S. Dep't. of Trans., Bureau of Trans. Stats., queried
for December 2022, https://www.transtats
.bts.gov/
HomeDrillChart_Month.asp?5ry_lrn4=FDFF&N44_Qry=E&5ry_Pn44vr4=DDD&5ry_Nv
42146=DDD&heY_fryrp6lrn4=FDFF&heY_fryrp6Z106u=EF.
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These examples of disruption to the passenger air transportation
system highlight the importance of maintaining a diversity of carriers
and competition between carriers. Mergers that eliminate competition
between carriers with similar business models (e.g., legacy or ULCC) or
between carriers with similar network models (e.g., hub-and-spoke or
point to point) eliminate important diversity and competition that is
essential for maintaining stability and resiliency in the passenger air
system.
VI. Promoting Competition and Protecting Consumers Requires Strong
Antitrust Enforcement and Coordinated Regulatory Oversight
While antitrust enforcement in the U.S. airline industry appears to
be on the uptick, regulatory policy has not kept up with promoting
competition. With a looser and often liberally interpreted public
interest standard, the DOT has approved dozens of joint ventures that
eliminate competition, blessing many of them with antitrust immunity so
carriers engage, without impunity, in anticompetitive coordination, to
the detriment of consumers.
Nor has DOT stepped in to block airline mergers. It is, therefore,
more important than ever for the two prongs of a public policy approach
to promoting competition in airline markets to work together.
AAI has advocated for major regulatory overhauls at DOT to create
coherent competition policy that bootstraps stronger antitrust
enforcement in the airline sector. First, DOT's policy approach to
approving joint venture agreements should be re-evaluated.\28\ AAI has
advocated for measures that recognize the increasingly high hurdle for
justifying grants of antitrust immunity for joint ventures that
eliminate head-to-head competition in exchange for amorphous benefits
elsewhere in alliance networks. This higher level of scrutiny and
vigilance should also extend to cooperative service agreements and
codeshares. AAI urges DOT to consider a more robust process and
specific criteria for making its public interest determinations in
these cases.
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\28\ Letter to Honorable Pete Buttigieg and AAG Richard Powers, Re:
Airline Joint Ventures in the Era of Oligopoly: Realigning Regulatory
Policy with Tougher Antitrust Enforcement, American Antitrust Inst.
(Oct. 13, 2021), https://www.antitrustinstitute.org/ wp-content/
uploads/2021/10/AAI-Ltr-on-NEA_10.13.21_Final.pdf.
---------------------------------------------------------------------------
Second, Federal regulatory policy should focus on approaches that
recognize the reality of the oligopoly of carriers that dominates the
U.S. landscape. While the Federal Aviation Administration's initiatives
on the slot allocation program is a move in the right direction, the
difficulty faced by smaller carriers in securing slots at congested
airports, which facilitate entry and competitive discipline, indicates
the need to overhaul the slot administration system. AAI encourages DOT
to consider a rulemaking to develop a new model and market design for
slot allocation that will result in more efficient outcomes and control
for market power. Common use gates at airports also increase ease of
access by smaller rivals, and prevent hoarding of critical inputs by
dominant players or tight oligopolies of carriers. AAI thus encourages
the DOT to consider initiatives that create more access through such a
program.
VII. Conclusions
AAI appreciates the opportunity to testify at this important
hearing. We stand ready to assist the Committee members, DOT, DOJ, and
state-level agencies in crafting ways to improve inter-agency
coordination to promote competition in the passenger air transportation
markets, for the benefit of consumers.
Senator Duckworth. Thank you, Dr. Moss. I now recognize
from PVA, Ms. Ansley.
STATEMENT OF HEATHER ANSLEY, ASSOCIATE EXECUTIVE
DIRECTOR, GOVERNMENT RELATIONS, PARALYZED
VETERANS OF AMERICA
Ms. Ansley. Thank you, Chair Cantwell, Ranking Member Cruz,
Chair Duckworth, and Ranking Member Moran, and members of the
Committee. Paralyzed Veterans of America thanks you for holding
this important hearing to consider the experience of air travel
passengers in the development of the next FAA reauthorization.
The Air Carrier Access Act, or ACAA, was signed nearly 40
years ago and prohibits disability-based discrimination in air
travel. Unfortunately, the air travel experience of passengers
with disabilities, particularly for those who use wheelchairs,
is at best frustrating and at worst it is unsafe.
PVA's President Charles Brown fractured his tailbone in
2019 when he was dropped in the aircraft boarding process. As a
result of his injuries, he spent months in a VA medical center.
He is lucky to be alive.
Unfortunately, his story is not unique. Multiple disability
organizations led by PVA conducted a survey following the 35th
anniversary of the air carrier law. Many wheelchair users
reported that the narrow aisle chairs they must use to board
into planes are difficult or unsafe to use.
In fact, 16 percent of respondents reported having been
dropped, just like Mr. Brown, and 23 percent reported having
been injured in the process. Nearly 70 percent of wheelchair
and scooter users reported having their device damaged by an
airline. Furthermore, almost 56 percent said that their device
had been delayed and 17 percent reported it had been lost. When
problems occur, passengers have few options.
Although the last FAA reauthorization allowed the
Department of Transportation to assess triple the amount of the
allowable fine for wheelchair damage or injury to a passenger
with a disability, the Department has yet to assess any fines
under this provision.
Despite a significant focus in the last reauthorization on
improving the safety and dignity of passengers with
disabilities, the needle has barely moved. In fact, the
percentage of wheelchairs and scooters mishandled in 2022 was
the same percent as those lost, damaged or delayed in 2019.
Unlike trains, busses, and other transportation vehicles
regulated by the Americans with Disabilities Act, aircraft have
very few, if any, features to facilitate access by passengers
with disabilities. There is no guaranteed path of travel to
allow a wheelchair user to board the plane. There is no
designated wheelchair secure area for them to fly while seated
in their device.
No accessible lavatory on the vast majority of single aisle
aircraft, and limited or no communications accessible to those
who are deaf or blind. We strongly believe that the Air Carrier
Access Amendments Act must be included in the next FAA
reauthorization to provide a safe and dignified air travel
experience for passengers with disabilities. This legislation
would require airlines to operate aircraft that meet basic
accessibility standards and improve enforcement of the law.
Specifically, the Amendments Act would require the
Secretary of Transportation, through direct consultation with
the U.S. Access Board, to formulate disability access standards
for aircraft. Needed standards are as simple as including a
path of travel to allow a wheelchair user to board in their own
device and roll to a designated passenger seat, most likely at
the front of the aircraft, and then transfer into that
passenger's seat, or fly from their chair if that is deemed
technologically feasible.
This would allow wheelchair users to avoid using an aisle
chair for boarding and deplaning and decrease the possibility
of injury. In terms of wheelchair stowage, the standards would
require more options for manual wheelchairs to be stowed inside
the cabin and ensure that cargo doors and holds allow power
wheelchairs to be in plane and stowed upright to protect the
devices from damage and airline workers from injury.
The Amendments Act would also strengthen enforcement of the
law by requiring the Department of Transportation to levy civil
penalties in situations such as physical harm to a disabled
passenger or a damage to a wheelchair, and to refer certain
complaints to the Department of Justice.
The legislation would also restore the ability of
passengers with disabilities to have their rights protected by
the courts. Increased aircraft accessibility and improved
enforcement options will lead to a safer travel experience for
disabled veterans and other people with disabilities who have
waited decades for safe access to air travel.
The time to act is now. In closing, I also want to note our
support for including provisions in the reauthorization that
would require greater analysis and aggregation of wheelchair
mishandling data to look for trends and facilitate development
of solutions, improved access to seating accommodations,
increased flight options at no additional cost if a passenger's
wheelchair cannot be stowed on their aircraft, and continued
research on the technical and economic feasibility of airlines
in implementing in-cabin wheelchair restraint systems.
We sincerely thank you for the opportunity to present our
views and would be happy to answer any questions.
[The prepared statement of Ms. Ansley follows:]
Prepared Statement of Heather Ansley, Associate Executive Director,
Government Relations, Paralyzed Veterans of America
Chair Cantwell, Ranking Member Cruz, and members of the Committee,
Paralyzed Veterans of America (PVA) thanks you for holding this
important hearing to consider the experience of air travel passengers
in the development of the next reauthorization of the Federal Aviation
Administration (FAA). PVA, a congressionally chartered veterans service
organization, serves veterans who have incurred a spinal cord injury or
disorder. The vast majority of our members use wheelchairs or other
assistive devices for mobility and have a strong interest in ensuring
that commercial air travel is safe and dignified for all passengers
with disabilities.
Almost 40 years ago, President Ronald Reagan signed the Air Carrier
Access Act (ACAA) into law. The ACAA prohibits disability-based
discrimination in air travel and requires air carriers to provide
accessibility for and accommodations to passengers with disabilities.
PVA led the advocacy efforts for passage of the law based on the
experiences our members encountered while traveling by air, including
being refused passage simply because of their disability. Four years
after the passage of the ACAA, Congress passed another PVA-supported
bill, the Americans with Disabilities Act (ADA). Although the ADA
requires disability access in airports, shuttles, and other forms of
mass transportation, it does not apply to commercial air travel.
The ACAA advanced equal opportunity for passengers with
disabilities. It required air carriers to provide passengers with
disabilities the opportunity to preboard, if additional time or
assistance is needed to board the aircraft; timely assistance in
boarding and deplaning; proper stowage of assistive devices; and
appropriate seating accommodations. After decades of discrimination in
air travel, the passage of the ACAA gave hope to passengers with
disabilities that their air travel experience would improve.
Despite the ACAA's protections, the current air travel experience
for passengers with disabilities, particularly wheelchair users, is, at
best, frustrating and, at worse, unsafe. Wheelchair users must
surrender their customized wheelchair for stowage either in cargo or,
in the case of certain manual wheelchairs, the cabin. The passenger
must then be transferred to an aisle chair that allows them to enter
the aircraft and traverse the aircraft's aisle, which is very often
narrower than the passenger being pushed through it. Aisle chairs are
devices designed solely to navigate the narrow aisle. The chairs are
often too small for the individual, have limited padding, cannot be
propelled by the user, and are prone to tipping. Once on the aisle
chair, the passenger is then maneuvered backwards onto the aircraft and
pulled down the aisle to the passenger seat. The struggle then begins
anew to transfer the passenger from the aisle chair to the seat within
the tight confines of the cabin.
Throughout the boarding and deplaning process, passengers are
assisted by airline staff or, more frequently, their contractors. Many
of these individuals have limited training, are unable to effectively
communicate with passengers, and are required to lift and transfer
individuals with significant disabilities without sufficient staffing
and other resources. The boarding and deplaning process does not
protect the health and safety of passengers with disabilities. Instead,
it is unsafe, and regularly results in passengers receiving, at the
very least, bumps and bruises and, in other cases, far more significant
injuries.
Unlike mass transportation vehicles regulated by the ADA, aircraft
have very few, if any, features to facilitate access by passengers with
disabilities. There is no guaranteed path of travel to allow a
wheelchair user to board the plane, no specially designated area for
them to fly while seated in their wheelchair, no wheelchair accessible
lavatory on the vast majority of single-aisle aircraft, and limited or
no communications accessible to those who are deaf or blind.
The lack of accessibility features has resulted in significant
safety issues for passengers with disabilities, particularly wheelchair
users. PVA's President, who lives in Florida, was severely injured four
years ago when he was dropped while attempting to board an aircraft. He
fractured his tail bone as a result of this incident and subsequently
developed skin breakdown and a bone infection. As a result of his
injuries, he spent several months inpatient at a VA medical center.
PVA's Immediate Past President, who lives in Washington, testified
before the House Transportation and Infrastructure Committee, Aviation
Subcommittee in 2019 about a time when he had severely injured his hip
and needed to fly for PVA business. As he boarded the plane using an
aisle chair, his knee hit nearly every armrest on the way back to his
seat. He recalled that each time he hit his knee that the jolt sent
pain radiating to his injured hip.
Earlier this month, another PVA member from Washington state
attended PVA's Advocacy Legislation Seminar in Washington, DC. On his
return trip, his power wheelchair was damaged. Specifically, the
controller arm was broken and his backup camera was missing. It took
three hours at baggage claim for personnel to find someone who knew how
to file the damage report. The third-party contractor handling the
repair acted quickly once the claim was filed and the first adjuster
came to see the damage within a couple of days. However, it has now
been well over a week and he is still waiting for the parts needed to
fix the damage. In the meantime, when he takes his hand off of the
wheelchair's joy stick, it swings out of position.
Another PVA member, the national director from PVA's Texas Chapter,
will no longer travel by air. She first traveled post-injury to an
adaptive sporting event. On the trip from San Antonio to Aspen, her
left shoulder was injured on one of the transfers to the aisle chair
due to airline assistants incorrectly strapping her to it. During the
return trip, on one of the transfers from the aisle chair to the
airline seat, she received a large abrasion on the bottom side of her
thigh. On her second and last airline trip, she arrived at her
destination to find that her 450-pound power wheelchair did not work.
She and her broken chair had to be pushed so that she could leave the
airport. Until she can drive her wheelchair onto a plane and lock it
into place and be safe, she and her husband, who serves as her
caregiver, will not use airline transportation and instead drive
wherever they need to travel.
These anecdotal reports were validated by the results of a survey
conducted by multiple disability organizations, led by PVA, following
the 35th anniversary of the ACAA.\1\ Over 1,200 individuals responded
to the survey, which covered a wide variety of accommodations for
passengers with disabilities.
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\1\ Paralyzed Veterans of America, The ACAA Survey: Overview of
Survey Results Regarding the Air Travel Experience of Passengers with
Disabilities, https://pva.org/wp-content/uploads/2022/09/2022-ACAA-
Survey-Results-FINAL.pdf.
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Many respondents reported that even though they traveled by air
they were very concerned about encountering physical barriers. The top
reason to avoid air travel was concerns about wheelchair damage.
Respondents also reported they were fearful that they would not be
safely transferred from their wheelchair to the aisle chair and into
the passenger seat and vice versa.
When an airline damages, loses, or delays a passenger's wheelchair,
it is a significant and serious problem that endangers their health and
limits their mobility and independence. In the worst cases, it can mean
the end of the trip as the individual is forced to stay in a hotel bed
while they wait for the repair of their wheelchair. It can also mean
weeks or months of having to use their own damaged wheelchair or an
ill-fitting loaned wheelchair. Following her personal wheelchair being
severely damaged on a flight, disability advocate Engracia Figueroa was
forced to use an ill-fitting wheelchair that resulted in medical
complications that led to her untimely death in October 2021, three
months after her trip.
Nearly 70 percent of survey respondents who travel with a
wheelchair or scooter reported having it damaged by the carrier.
Furthermore, almost 56 percent said that their wheelchair or scooter
has been delayed. Seventeen percent reported having their wheelchair or
scooter lost.
The 2018 FAA Reauthorization required the U.S. Department of
Transportation (DOT) to implement within 60 days of passage a
requirement for large domestic air carriers to submit monthly reports
on the number of wheelchairs and scooters they enplane and the number
subsequently mishandled (lost, damaged, or delayed). Between 2019 and
2022, over 32,000 wheelchairs and scooters were mishandled by airlines.
Each one of these situations represents a person whose life was
disrupted or impeded until their device was repaired, located, or
replaced.
Over half of survey respondents needed to board and deplane using
an aisle chair. Many reported that aisle chairs are difficult or unsafe
to use. In fact, 16 percent of respondents reported being dropped and
23 percent reported being injured in the boarding and deplaning
process. One passenger said, ``the attendants rarely know how to
transfer or to strap me in.''
Not being able to use the restroom during a flight ranked high on
the list of reasons survey respondents avoided air travel. In fact,
lack of lavatory access, even on a cross country flight, was reason
enough for nearly 60 percent of respondents to avoid air travel unless
absolutely necessary. The 2018 FAA Reauthorization Act required the
U.S. Government Accountability Office (GAO) to study lavatory access on
aircraft, including access for passengers with disabilities. GAO found
that although accessible lavatories are available, ``carriers do not
often choose to acquire them.'' \2\ In 2019, of the top eight domestic
air carriers, only 4.5 percent of their single-aisle aircraft had
accessible lavatories. Four of these carriers had no accessible
lavatories in their fleets.
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\2\ U.S. Gov't Accountability Off., GAO-20-258, Aviation Consumer
Protection, Few U.S. Aircraft Have Lavatories Designed to Accommodate
Passengers with Reduced Mobility 14 (2020), https://www.gao.gov/
products/gao-20-258.
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After years of delay, nearly 40 years after the ACAA became law,
DOT appears to be in the final stages of publishing a rule requiring
larger single-aisle aircraft to have an accessible lavatory. Finally,
passengers with mobility impairments and those who need the assistance
of a caregiver would be able to enter a lavatory using an onboard
wheelchair with an assistant and close the door. Nearly seven years
ago, advocates and the airlines agreed to a rather lengthy timeline, at
the urging of the carriers, that would require aircraft ordered 18
years or delivered 20 years after the date of the final rule to have an
accessible lavatory. Since air carriers have been on notice for over
six years that this requirement was coming, we believe that as a matter
of equity DOT should shorten the implementation timeline by the number
of years this rule has been delayed. Unfortunately, even in a best-case
scenario, it will still be decades until the requirement is fully
implemented.
In the last year, we have continued to hear reports of insufficient
staffing to perform lifts of passengers during the boarding and
deplaning process, misplaced wheelchairs that result in injury, broken
wheelchairs, humiliation due to the lack of bathroom access, and even
threats to contact law enforcement when passengers refused to deplane
before their wheelchair was returned to them. An August 2022 New York
Times article, ``Embarrassing, Uncomfortable and Risky: What Flying is
Like for Passengers Who Use Wheelchairs,'' \3\ documented the
difficulties PVA's President experiences when he travels by air.
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\3\ Amanda Morris, Embarrassing, Uncomfortable and Risky: What
Flying Is Like for Passengers Who Use Wheelchairs, N.Y. Times, Aug. 8,
2022, https://pva.org/wp-content/uploads/2022/08/NYT_Embarassing.-
Uncomfortable-and-Risky_08.08.2022.pdf.
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There are very few options for passengers who do not receive proper
disability-related assistance. Passengers often share their frustration
on social media and may file a complaint with the airline and/or DOT.
The Department can issue cease and desist orders and levy civil
penalties for ACAA violations; however, the largest financial penalty
in recent years was in 2016 for $2 million.\4\ That fine, much of which
was credited to the carrier, was an anomaly.
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\4\ U.S. Department of Transportation, United Airlines, Inc. Order
2016-1-3, https://www.transportation.gov/airconsumer/eo-2016-1-3.
---------------------------------------------------------------------------
In 2019, the most recent year for which statistics are available,
passengers filed nearly 42,500 disability-related complaints directly
with over 185 foreign and domestic airlines, which was an increase of
nearly 15 percent over 2018. That same year, passengers filed
approximately 900 disability-related complaints directly with DOT. In
2021, passengers filed nearly 1,400 DOT complaints. The number of DOT
complaints filed in 2022 has not yet been released.
Despite a significant focus in the last FAA Reauthorization on
improving the safety and dignity of passengers with disabilities, the
needle has barely moved. In fact, the percentage of wheelchairs and
scooters mishandled in 2022 was the same percent as those mishandled in
2019, the first full year for which airlines were required to report
such numbers.\5\ The safety of passengers with disabilities is at stake
and Congress must act to bring their air travel experience into the
21st century.
---------------------------------------------------------------------------
\5\ Press Release, U.S. Department of Transportation, Air Travel
Consumer Report: December 2022, Full Year 2022 Numbers, Mar. 16, 2023,
https://content.govdelivery.com/accounts/USDOT/bulletins/34f2450.
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The problem with commercial air travel is that aircraft do not have
proper accessibility features to accommodate passengers with
disabilities. Passengers will continue to be injured and wheelchairs
delayed, damaged, or lost until travelers can travel onto the plane
using their personal wheelchair and transfer to a passenger seat or
stay safely seated in their devices. Commercial air travel has been
given a pass for far too long under the guise that requiring access
will require the loss of too much revenue without any regard for the
price wheelchair users must pay with their bodies during air travel.
People with disabilities will not be able to effectively compete for
jobs, vacation with their families, or seek needed medical care until
safe and dignified air travel is guaranteed for all passengers with
disabilities.
We strongly believe that the Air Carrier Access Amendments Act
(ACAAA) (S. 545) must be included in the next FAA Reauthorization Act
to improve the air travel experience of passengers with disabilities.
This critically important legislation, which is currently supported by
30 veterans, disability, and consumer organizations, would provide safe
and dignified air travel for passengers with disabilities by requiring
airlines to operate aircraft that meet accessibility standards and
improving enforcement of the law.
Accessibility standards for larger aircraft used in commercial air
travel are needed to provide a safe and dignified air travel experience
for wheelchair users. The ACAAA would require the DOT Secretary through
direct consultation with the U.S. Access Board to formulate standards
to address effective boarding and deplaning, visually accessible
announcements, in-flight entertainment, seating accommodations,
lavatories, and stowage options for assistive devices. Five years after
the standards are finalized, airlines would need to operate aircraft
that comply with them.
Standards related to boarding and deplaning would require
``ensuring that there is a route accessible for individuals to board
and deplane the aircraft from their personal assistive devices,
including wheelchairs.'' We believe this provision would allow a
wheelchair user to board in their own wheelchair and roll to a
designated passenger seat, most likely at the front of the aircraft,
and transfer to the seat. On a majority of larger aircraft, the
passenger boarding door is already wide enough to allow a wheelchair to
enter the cabin. The chosen layout of the cabin hinders movement.
Requiring a proper path of travel would allow wheelchair users to avoid
using an aisle chair for boarding and deplaning. The standards would
also include in-cabin wheelchair restraints, if deemed technologically
feasible.
The 2018 FAA Reauthorization Act required the U.S. Access Board to
conduct a study of the feasibility of in-cabin wheelchair restraint
systems. The Access Board carried out that requirement through the
National Academy of Sciences' Transportation Research Board (TRB).\6\
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\6\ Transportation Research Board, Technical Feasibility of a
Wheelchair Securement Concept for Airline Travel: A Preliminary
Assessment, https://www.access-board.gov/files/research/trb-final-
report-sept2021.pdf.
---------------------------------------------------------------------------
The TRB study was unable to ``identify any issues . . . that seem
likely to present design and engineering challenges so formidable that
they call into question the technical feasibility of an in-cabin
wheelchair securement system and the value of exploring the concept
further.'' The study acknowledged that further assessment was needed,
``particularly to understand how secured personal wheelchairs are
likely to perform relative to FAA's security criteria in restraining
and protecting occupants during a survivable airplane crash or
emergency landing,'' and called on DOT and FAA to undertake research on
these issues. It also called on the Access Board to assess the demand
from people with disabilities to fly while seated in their wheelchairs
to inform the number of aircraft that would need to be modified to
provide meaningful access, assuming remaining feasibility questions are
satisfied.
We call on Congress to include language in the next FAA
Reauthorization directing appropriate agencies and administrations on
completion of the next milestones, including the economic and financial
feasibility of airlines implementing in-cabin wheelchair restraint
systems, and providing funding necessary to accomplish them. We would
also support inclusion of tax credits or other incentives to facilitate
expedited adoption by air carriers.
In terms of wheelchair stowage, the standards would require
``adequate in-cabin stowage of assistive devices.'' We believe that
this would allow more types of manual wheelchairs to be stowed in the
cabin for those who wish to fly while seated in a passenger seat. The
standards would further require the option for ``proper stowage of
assistive devices in the cargo and ensure that cargo doors and the
cargo holds allow such devices to be enplaned and stowed upright.''
This change is needed to ensure that when wheelchairs are stowed in
cargo they can be done so in a way that is safe for airline workers and
protects the wheelchair from damage.
Although the 2018 FAA Reauthorization Act allowed DOT to assess
triple the amount of the allowable fine for wheelchair damage or injury
to a passenger with a disability, the Department has yet to assess any
fines under this provision. The previously cited complaint data shows
that the lack of fines levied is not due to a decrease in wheelchair
damage or passenger complaints. The ACAAA would strengthen enforcement
of the law by requiring DOT to levy civil penalties for mishandled
wheelchairs, physical harm to a passenger with a disability, lack of
proper aisle chair assistance, improperly denied boarding for a
passenger with a disability, inappropriately denied access for a
service animal, and gross negligence.
The ACAAA would also require the DOT Secretary to refer complaints
to the Department of Justice (DOJ) when there is reasonable cause to
believe that violations of the law are a pattern or practice or if it
``raises an issue of general public importance.'' Referral of cases to
DOJ will put commercial air travel in the same position as other
providers of mass transportation. It would also recognize that the ACAA
is not a customer service standard but a civil right. The Attorney
General would then be able to pursue a civil action on behalf of a
passenger.
The legislation would also formally establish a private right of
action to institute additional remedies, without removing DOT's role in
the administrative process. Prior to the 2001 Supreme Court case,
Alexander v. Sandoval,\7\ the Fifth, Eighth, and Ninth Federal Circuit
Courts recognized a private right of action under the ACAA. In
Tallarico v. Trans World Airlines, Inc.,\8\ a minor with cerebral palsy
was not permitted to fly unaccompanied. The plaintiff alleged the
airline violated the ACAA by denying her the right to fly because of
her physical conditions. The court supported the jury's award of
emotional distress damages, in the amount of $80,000, but did not
analyze whether punitive damages could be recovered.\9\ In Tunison v.
Cont'l Airlines Corp.,\10\ the deaf and blind plaintiff was not allowed
to fly alone. The court found that the airline violated the ACAA, but
awarded no damages. After Sandoval, the Second, Fifth, Ninth, Tenth,
Eleventh, and D.C. Circuit Courts have subsequently ruled that there is
no private right of action under the ACAA.\11\ Federal preemption
further hinders access to potential remedies by limiting applicability
of state law.
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\7\ 532 U.S. 275.
\8\ 881 F.2d 566 (8th Cir. 1989).
\9\ Id. at 571, 572.
\10\ 162 F.3d 1187 (D.C. Cir. 1998).
\11\ Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011); Stokes
v. Southwest Airlines, 887 F.3d 199 (5th Cir. 2018); Segalman v.
Southwest Airlines Company, 895 F.3d 1219 (9th Cir. 2018); Boswell v.
Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); Fox v. Am.
Airlines, Inc., No. CIV.A. 02-2069 RMU, 2003 WL 21854800 (D.D.C. Aug.
5, 2003), aff'd, 389 F.3d 1291 (D.C. Cir. 2004), and aff'd, 389 F.3d
1291 (D.C. Cir. 2004); and Love v. Delta Airlines, 310 F.3d 1347 (11th
Cir. 2002).
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Restoring a private right of action would allow more remedies for
passengers who suffer ACAA violations. It would also allow for
injunctive relief to foster policy changes that would allow passengers
and airlines to partner together to make changes that would benefit all
people with disabilities. In calling for Congress to pass the ACAAA, an
editorial from the Las Vegas Sun noted the support major airlines
received from taxpayers during the COVID pandemic and said, ``If the
American people are expected to help bail out the airline industry, the
airline industry should do everything in its power to serve all
Americans.'' \12\
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\12\ Editorial, Support the Spirit of the ADA While Protecting
Businesses from Abuse, Las Vegas Sun, Mar. 10, 2023, https://
lasvegassun.com/news/2023/mar/10/support-the-spirit-of-the-ada-while-
protecting-bus/.
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We believe that increased aircraft accessibility, and improved
enforcement options will lead to safer travel experiences for
passengers with disabilities. PVA members and others with disabilities
have waited long enough for safe access to air travel. We know how to
improve the experience of passengers with disabilities. We simply need
to do it.
Until wheelchair users are able to board and deplane aircraft using
their personal wheelchairs and have the option to access an aircraft
wheelchair space or have their wheelchair safely stowed either in the
cabin or cargo, air carriers must improve training and provide job aid
materials for workers. In February 2022, PVA submitted a formal request
for rulemaking to DOT about the assistance provided to passengers who
use aisle chairs, information airlines are required to collect related
to incidents in boarding and deplaning, and how airlines assist
passengers when a wheelchair or scooter is mishandled. PVA called on
the Department to require air carriers to have specific personnel who
are highly trained in transfer techniques and the use of boarding and
deplaning devices. The training provided to these assistants must be
``hands on'' and assistants must receive an annual certification of
their skills, including their ability to follow directions from
passengers about how to effectively and safely assist them.
Furthermore, the assistants must be given properly maintained equipment
that meets standards that address not only the needs of the airline,
but also the needs of the passenger and the assistants.
In addition, DOT must require airlines to provide ramp personnel
with the proper equipment to safely enplane and deplane assistive
devices. The Department must also establish a timeline for airlines to
replace or repair a wheelchair or other assistive device or provide
compensation for a device's damage, as well as requiring air carriers
to provide adequate interim accommodations. DOT must also clarify that
the ACAA requires air carriers to return all wheelchairs and other
assistive devices in the condition in which they were surrendered by
the passenger.
DOT has indicated that a proposed rule will be published later this
year. We ask Congress to include a provision in the FAA Reauthorization
requiring the Department to complete this rulemaking within one year of
the Reauthorization's enactment. We also believe that the next FAA
Reauthorization should require DOT to provide greater analysis and
aggregation of the wheelchair and scooter data received from airlines,
including separating incidents related to manual wheelchairs, power
wheelchairs, and scooters, to look for trends, as well as develop
solutions to address areas of specific concern focused on attacking the
root cause of mishandled assistive devices.
Passengers with disabilities also need improved access to
appropriate seating accommodations. The ACAA requires airlines to
accommodate passengers with disabilities only in the class of service
purchased. Thus, a passenger who purchases an economy ticket is not
required to be accommodated in premium economy even if seating in that
section would better accommodate the passenger.
The next FAA Reauthorization should require airlines to provide a
passenger with a disability and at least one companion with a needed
seating accommodation, even if in another class of service, as long as
no more than one passenger will be displaced in that class of service.
We believe that passengers with disabilities should not be required to
pay higher ticket prices simply because they wish to limit their time
on an aisle chair and the bruises and abrasions they may receive being
transported to their seat further back in the plane. Air carriers must
also clearly alert passengers with disabilities about the availability
of seating accommodation options.
Furthermore, airlines should be required to accommodate wheelchair
users on another aircraft, including that of another airline, if the
passenger's wheelchair will not fit on the aircraft designated for the
passenger's flight. Wheelchair users should not be forced to pay a
higher ticket price if the only aircraft type that will accommodate
their assistive device is used on a more expensive flight. They should
also not be required to fly on an airline that is more expensive solely
because that airline uses an aircraft that will accommodate the
passenger's wheelchair. Passengers with disabilities should be able to
benefit from competition and low fares like other Americans.
Finally, we support reauthorization of the ACAA Advisory Committee,
which was first authorized in the 2018 FAA Reauthorization. The
Committee, which included airline and airport representatives;
wheelchair manufacturers; and veterans, disability, and service animal
organizations reviewed DOT's draft of the Passengers with Disabilities
Bill of Rights and considered recommendations related to ticketing
practices and seating accommodations, stowage of assistive devices, and
assistance at airports and on aircraft and related training. Although
the Committee's final report consisted primarily of recommendations
concerning the need for further study of the issues or adoption of best
practices, we believe the Committee should continue and hope it will be
a greater force for change in the future.
Addressing air travel problems is not only the right thing to do,
it is also a smart business decision. Over 75 percent of respondents
from the earlier referenced survey said that if the air travel
experience of passengers with disabilities improved they would fly at
least a few times a year. Fifteen percent said they would fly monthly.
PVA appreciates the opportunity to express our views. I would be
happy to answer any questions.
Senator Duckworth. Thank you. I now recognize Mr. Shane.
STATEMENT OF JEFFREY N. SHANE,
FORMER UNDER SECRETARY FOR POLICY,
U.S. DEPARTMENT OF TRANSPORTATION
Mr. Shane. [Technical problems]--Chair Cantwell, Ranking
Member Cruz, and other members of the Committee, I really thank
you for the invitation to be here this morning. I have a longer
statement that I hope can be inserted in the record, but I will
try to sum it up quickly now.
Let me say at the outset that I am here representing nobody
but myself. My primary credential, if any, is a long career in
Government, 25 years spread over 40, most of which was at the
Department of Transportation, and most of which was also in one
way or another, all about economic regulation.
For more than 10 years, I had broad responsibility, among
other things, for DOT's oversight of commercial aviation. Most
importantly, its relations with consumers. So, it is a special
privilege to be able to share with you my personal perspective
as a former regulator on one of the most difficult and fraught
periods in the history of commercial flight.
The image of commercial aviation has been broadly damaged
over the past few months by what most of us think is a
seriously disappointing performance. Not all carriers have
performed badly, but we all know that one bad apple spoils the
barrel, and in this case, it was more than one.
The poster child for the industry's recent inadequacy, of
course, is the weeklong meltdown of Southwest during one of the
busiest travel periods of the year. Some 2 million Southwest
customers had their holiday plans dashed by the meltdown or
were at least seriously inconvenienced. It was a monstrous
failure.
Without any attempt to minimize the devastating
consequences of that week for so many, however, it is useful to
pause for a moment and think about that 2 million passenger
number. The failure of one airline to perform during 1 week
affected 2 million passengers. It reminds us how important air
travel is to our lives today.
Prior to the pandemic, there were nearly a billion
enplanements within the United States every year. Those numbers
are directly attributable to what Ranking Member Cruz referred
to earlier, to one of the most profoundly important pieces of
legislation Congress has ever enacted, the Airline Deregulation
Act of 1978.
It democratized aviation. Now, I know this is probably not
the right time to get misty eyed about the benefits of airline
deregulation. Still, as we think about the industry today and
what might be done to prevent future meltdowns, or to diminish
the number of passenger complaints about various airline
policies and practices, it is important to recall that Congress
predicated the Airline Deregulation Act on a single overarching
idea, that however important they may be to the national
economy, airlines are businesses not public utilities.
Congress intended that henceforth Government would treat
them as businesses and give them the widest scope for
innovation and competition. And that is why the legislation
explicitly prohibited any further regulation of airline rates,
routes, or services, the areas where they wanted that
innovation and competition to take place.
Economists consistently tell us, as we have just heard,
that consumers have benefited enormously. Now, of course, the
wisdom of that legislation has been called into question. I am
not entirely sure, but I think this may be the first time in
the 45 years since the law was signed that we are seeing
serious proposals to roll back at least some of its elements.
To the proponents of rollback, I would respectfully urge
caution. If my experience during all the years I toiled in this
field taught me anything, it can be summed up with a few simple
points.
First, in responding to any episode that damaged the
interests of consumers, it is important to ask whether a
proposed rule or law is likely to make any actual difference in
the future conduct of airlines, or whether the costs of the
incident itself, both monetary and reputational, would likely
achieve exactly the same result without Government
intervention.
I have read that the Southwest meltdown will subtract
something north of $800 million from the carrier's bottom line.
That near $1 billion hit sounds to me like a pretty powerful
incentive to prevent any repeats, and I am sure it is job one
right now at Southwest C-suite. You can be sure that other
airlines are carefully studying the incident.
Second, to use a shopworn metaphor, sunlight is the best
disinfectant. Customers obviously should be fully aware of
every detail of any transaction with an airline, and thanks to
the rules crafted by DOT over many years, that information is
easily available to them now. If it is not, enforcement action
is called for.
Transparency is essential, and it also engenders more
robust competition among airlines. Finally, in a dynamic,
rapidly evolving industry like air transportation, prescribing
a one-size-fits-all solution to any perceived problem in
airline conduct has the unfortunate consequence of homogenizing
the business, making it look more like a commodity and thereby
sapping much of its competitive energy and its scope for
innovation. I will stop there and I look forward to your
questions.
[The prepared statement of Mr. Shane follows:]
Prepared Statement of Jeffrey N. Shane \1\
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\1\ Jeffrey N. Shane served as Under Secretary for Policy at the
Department of Transportation from 2003 to 2008 and Assistant Secretary
for Policy and International Affairs from 1989 to 1993.
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Madam Chair, Ranking Member Cruz, and other member of the
Subcommittee:
I appreciate very much having the honor and privilege of speaking
to you this morning at this important hearing. Thank you for the
invitation.
Introduction
Let me say at the outset that I am here representing nobody but
myself. My primary credential, if any, is a long career in public
service--25 years spread over 40--most of which was at the Department
of Transportation, and most of which was also, in one way or another,
all about economic regulation. It was even the subject I enjoyed most
in law school, although I attended law school before the word
``deregulation'' had even been coined.
I began my career in Washington as a government trial attorney,
representing the public interest in hearings at some long-gone
regulatory agencies--the Federal Power Commission, the Interstate
Commerce Commission, and the Civil Aeronautics Board. I even did a case
at the Federal Maritime Commission, which still exists, but I have no
memory of what that case was about.
In any event, I claim to know something about economic regulation--
what works and what doesn't. It was that experience that turned me into
an unapologetic believer in the benefits of a free and competitive
marketplace.
Much later, I had the good fortune to be appointed, with the
approval of this Committee and the full Senate, to some senior policy
positions at DOT. These were not aviation-specific positions--they were
about all modes of transportation. I soon discovered, however, as I
suspect members of this Committee have discovered, that aviation policy
is never far from the top of the list. Because it is an industry that
everyone knows so well, airlines are always in the spotlight.
Thus, for more than 10 years, either as DOT's Assistant Secretary
for Policy or later as Under Secretary for Policy, I had broad
responsibility, subject of course to the leadership of the Secretary of
Transportation, for DOT's economic regulation of the airline industry.
It was far and away my most enjoyable professional experience, both
because the issues were so important to so many, and because of the
extraordinary colleagues I was lucky enough to work with throughout
that time. Some are still there. I miss them all.
Importance of the Airline Deregulation Act
The reason why so many of our citizens know aviation so well, of
course, is that Congress democratized it in 1978. I'm talking, of
course, about the Airline Deregulation Act. That legislation, initially
championed by Senator Ted Kennedy, was nothing less than a miracle of
public policy. Increasingly forgotten is that the airlines were
adamantly opposed to the legislation. They had become very comfortable
in the familiar cocoon provided by the CAB and they pulled out all the
stops to keep the bill from being passed. The public, for most of whom
air travel was still a rare and expensive experience, wasn't
particularly interested. There was no groundswell of public support for
the bill because nobody really understood what its impact would be.
Well organized opposition and weak, diffuse support is usually a
prescription for failure in the legislative process. Yet somehow,
remarkably, the law was passed, President Carter signed it, and
aviation would never again be the same.
Airline deregulation not only benefited Americans; it was actually
one of America's most profoundly important gifts to the world, although
not always welcomed in the first instance. In the 1980s I spent four
years at the Department of State serving as the chief U.S. aviation
negotiator, working with other governments on the bilateral agreements
that define international landing rights for U.S. and foreign airlines.
Most of the foreign carriers back then were creatures of government--
either government-owned or acting as though they were. We encountered
resistance everywhere, an entrenched protectionism that had impeded the
growth of international air travel for decades. Through an initiative
launched during the Carter Administration in parallel with domestic
deregulation, we slowly sold our trading partners, one by one, on the
benefits of an open market. U.S. airlines were as opposed to that
initiative as they were to domestic deregulation, but administration
after administration kept it going. It became easier over time because
we could demonstrate quantitatively how much faster liberalized
international markets grew than regulated markets.
In 1992, the United States announced an Open Skies policy and
signed the first Open Skies agreement with The Netherlands. America
today has about 125 Open Skies agreements--in other words, with most of
our trading partners--and the model has been replicated even in air
travel markets that don't touch the U.S. It is a bipartisan success
story of the first magnitude.
Central to the genius of the Airline Deregulation Act are a couple
of overarching principles. One, of course, is that airlines are
businesses. Congress intended that henceforth government would treat
them as businesses and give them the widest scope for innovation and
competition. That is why the legislation prohibited any regulation of
airline rates, routes, or services--the areas where they wanted that
innovation and competition to take place..
Second, because airlines for the most part are so conspicuously in
interstate commerce, any future oversight and regulation--most
obviously safety regulation--was reserved to the Federal government
alone. A single, nationally consistent set of rules, Congress knew, was
essential to safe, efficient, and economical operations.
Notwithstanding their emancipation from traditional regulation,
airlines are still subject to a lot of government oversight. Obviously
we never deregulated the safety of airlines, which is why commercial
flight continues to be the safest form of travel. DOT also has
authority under 49 U.S.C. Sec. 41712 to prevent unfair and deceptive
practices and unfair methods of competition. A lot of regulations have
been promulgated under that rubric in the interest of consumers, most
importantly ensuring the transparency of airline offerings and thus
ensuring that airline customers know what they are buying. DOT has a
mandate in the Air Carrier Access Act to prevent discrimination against
passengers with disabilities. And I would also argue that the
Department's authority to review the managerial and financial
wherewithal of airlines--conducted in parallel with the FAA's review of
airline operational fitness--is another way the Department protects the
interests of consumers.
Has deregulation gone too far?
Recent developments in the industry have triggered a conversation,
however, about whether deregulation has gone too far, and whether it is
time for government to get back into the game of disciplining the way
airlines do business.
I don't want to overstate this: I don't believe anyone is talking
about repealing the Airline Deregulation Act and resurrecting the Civil
Aeronautics Board. Nevertheless, I have seen a number of proposals that
certainly appear to channel the spirit of the CAB, and that would
require DOT to reconstruct at least some of the CAB's long-forgotten
regulatory jurisprudence.
If my experience over all the years I toiled in this field taught
me anything, it is this: the government must exercise extreme caution
in promulgating rules designed to alter the conduct of private
business. Allow me to illustrate what I mean by reference to some of
the current targets of concern.
Ancillary fees
What we call ``ancillary fees'' in aviation are an example of what
economists call ``unbundling.'' Unbundling was actually invented by
regulators based on the simple and unarguable principle that people
shouldn't be required to pay for what they don't want--like a black
rotary-dial telephone when all you wanted was a phone line.
In an effort to provide basic air transportation at the most
affordable prices, low-cost and ultra-low-cost carriers have delinked
the baggage part of the transaction from the travel part. I hope nobody
is thinking about requiring ULCs and ULCCs to desist from unbundling--
charging all passengers the same thing whether they check a bag or not.
If they did, the bizarre result would be to require passengers
traveling with nothing more than a carry-on to subsidize the passengers
who check bags free of charge. That would be the very anthesis of
transparency in pricing, and arguably even an ``unfair and deceptive
practice.''
Passengers complain that the baggage fees are unreasonable. Even if
airlines are not required to abandon ancillary baggage fees, therefore,
some suggest that DOT should play price regulator and try to figure out
what a reasonable baggage fee is.
First, lest there be any doubt, that would be an explicit
renunciation of the Airline Deregulation Act's central prohibition
against the regulation of airline rates and services. Congress can
certainly do that if it wants to, but why would it want to? If it's
okay to prescribe what an airline charges for putting a suitcase in the
belly of an airplane, why not prescribe what it costs to buy a pastry
and coffee in the terminal? What distinguishes the purchase of space in
the baggage hold from any other transaction in our private sector
economy? It just isn't normally the government's job to prescribe
prices charged by private companies to their customers, and the fact
that the target is an airline doesn't create an exception to that
principle.
And, by the way, how would DOT actually go about deciding what a
reasonable bag fee is? Would it have to hire a cadre of administrative
law judges and conduct formal proceedings pursuant to the
Administrative Procedure Act? Would DOT require the disclosure of
confidential cost information in order to ascertain the ``real'' cost
of checking a bag? Would there be a right of appeal if the airline
disagrees with the Department's definition of ``reasonableness'' or
with the fees DOT orders the airline to charge? If so, to the
Secretary? I would submit that DOT has more important things to do.
Concentration
The late Michael Levine was a supremely talented lawyer and
economist, and is widely credited with being one of the intellectual
fathers of airline deregulation. He was also a very good friend.
Speaking about the early days of deregulation, he once said that the
founders thought that, once the regulatory wraps were removed, a whole
galaxy of new airlines would appear and light up the firmament. ``What
we actually got,'' Mike said, ``was a meteor shower.'' He was referring
to the large number of startup airlines that came rushing into the
newly opened marketplace just because they were allowed to. Most
quickly flamed out, some because they didn't know what they were doing,
and others simply because the market couldn't deliver enough business
to support that many airlines profitably. That chapter carries an
important lesson, I think, for anyone who thinks good antitrust policy
should be something akin to ``the more the merrier.''
The 1980s saw a spate of airline mergers, all approved by DOT
because the statutory authority to review domestic airline mergers
wouldn't migrate to the Department of Justice until 1989. By the time
the first Bush administration took office in that year, there were
widespread concerns about whether the market for air travel had simply
become too concentrated. Samuel Skinner, the newly appointed Secretary
of Transportation, took the complaints seriously and let it be known
that if the concerns were borne out by empirical evidence, he would
seek authority to take appropriate action in the interest of consumers.
I was the Assistant Secretary for Policy at this time, and a
detailed study was conducted by my office--led by my superb deputy,
Patrick Murphy. When it was finished, it filled nine peer reviewed
volumes.
What we found, in a nutshell, was that, while there were indeed
fewer airlines serving the domestic U.S. market, the actual choices
available to travelers in actual city pair markets had actually
increased, and price competition in the market continued to be robust.
In the end, we saw no need for any tinkering with the Airline
Deregulation Act. I testified at a number of congressional hearings on
airline competition during that administration, and thanks to the
unbiased and objective quality of that study, I emerged mostly
unscathed.
There have been more mergers since then. One important result is a
financially healthier airline industry--putting aside for the moment
the devastating impact of the pandemic. It is fair to ask whether that
improved financial health has come at the expense of consumer welfare.
I am not a professional economist and I'm in no position to offer a
first-hand answer to that important question. According to all that
I've read, however, airfares continue to fall and consumer choice
continues to increase. There are few barriers to new entry, as the
launch of Breeze Air and Avelo at the height of the COVID pandemic
should make clear. The deregulated aviation market appears to be
working well.
Caution, therefore, should be the order of the day. What do the
numbers actually tell us? You don't make competition policy based
simply on the number of airlines in the market, or on the aggregate
market share enjoyed by the ``big three'' or ``big four''; instead, you
carefully examine the quality of the choices available to actual
passengers in actual city pairs and you look objectively at actual
pricing trends.
Transparency
One of DOT's greatest successes in its continuing work on behalf of
consumers is its transparency requirements for airlines and their
agents. Customers should know everything about the transaction they are
about to enter into--the identity of the airline on every segment of a
journey, the actual prices to be paid, which services are covered by
those prices and which are not, and so forth. DOT's required reporting
of airlines' on-time performance, market by market, has been another
great boon to travelers.
I have seen proposals for going even further, however, and I find
them concerning. Like the firms in every sector of our economy,
airlines seek to compete not only on price and ubiquity, but also
through product differentiation. They know there is a tendency to treat
air travel as a commodity, but they really don't think it is, and they
don't want their customers to think so either. If you spend a few
hundred million dollars upgrading the interior of your airplanes, or
your lounges, or cabin connectivity, or the check-in process, or even
your food and beverage service, you want potential customers to know
about those improvements. You want those improvements to attract more
customers.
Not long ago, if you booked a flight using one of the major online
distribution systems you found only the most basic information there: a
list of available flights, their departure times, and their costs and
fees. Those displays merely reinforced the impression that you were
purchasing a fungible commodity. A few years ago there was a major
dispute between the airlines and the major global distribution systems
over the alleged failure of the GDSs to upgrade their technology in
order to provide the richer content the airlines wanted. Make no
mistake: this was an argument about whether the GDSs perceived
deficiencies were actually preventing the airlines from competing in
the way they wanted to, merely reinforcing the commodity narrative, and
squandering much of the value of airline investments in product
quality.
The GDSs are clearly upping their game in response to their
customers' requirements, and those customers include the airlines
themselves. But quality varies. Given the importance to airlines today
of rich, user-friendly content, suggestions that airlines should be
required to sell their services through any available platform should
be viewed with the greatest skepticism. Airlines do not need any
external motivation to distribute information about their services in
the most effective way, but the assessment of what's most effective
should be theirs alone.
Delays and cancellations
The European Union promulgated a regulation years ago called
Regulation 261. I have said in many fora that Regulation 261 is
quintessentially a bad regulation. It prescribes payments airlines must
make to their customers automatically whenever there's a delay. The
payments are graduated according to the length of the delay. It is a
quintessentially bad regulation because it has absolutely no effect on
the conduct of airlines. The simple test of a good regulation is
whether it can be expected to improve consumer welfare by making
something happen that wouldn't happen if you didn't have the
regulation. Regulation 261 clearly fails that test since airlines
already have the greatest possible incentive to operate on time. The
costs of delay--particularly for a networked carrier where an entire
day's schedule can be destroyed by a single late flight--are already
immense. Requiring payments to passengers is nothing more than piling
on. Yes, they provide a nice consolation prize to the inconvenienced
passenger, but that's not the avowed purpose of the regulation. The
purpose is to reduce the frequency of delays, and it can't add more
incentive than airlines already have.
We are now seeing proposals to adopt Regulation 261 lookalikes in
the U.S. What would they do? Consider the week-long Southwest meltdown
over the holidays. Reportedly, that catastrophe, which seriously
inconvenienced a couple of million passengers, will cost Southwest
something north of $800 million dollars. If you're looking for a way to
encourage Southwest to plan more effectively in order to avoid similar
catastrophes in the future, subtracting $800 million from the bottom
line would seem to qualify. Does it contribute anything to the public
interest to add some automatic payment that Southwest would pay to each
affected traveler, thereby tripling the financial cost? First, its only
contribution would be a small windfall to passengers--not the change in
behavior that the payment scheme was intended to encourage. Second,
Southwest would have to find a way to recoup that additional cost, and
the only way to do it will be through higher fares.
It's axiomatic that predicating a regulatory remedy on what was
clearly a worst-case scenario is never a good idea. It's an even worse
idea to impose costs on airlines when those additional costs can't be
expected to engender any change in behavior that hasn't already been
encouraged by the grave financial consequences of that behavior. Once
again, there needs to be careful consideration of the actual costs vs.
the actual benefits of such a rule.
Finally, I know some have considered whether it's unfair for
airlines to put an expiration date--typically one year--on a voucher
provided to a passenger who has cancelled a nonrefundable ticket. Some
airlines--Southwest for example--do not impose expiration dates. Should
the government prohibit all carriers from establishing expiration
dates? It would seem passing strange for the government, avowedly
interested in increasing competition in the market, to promulgate a
rule that takes away Southwest's competitive advantage
Conclusion
Thanks to--I'll say it again--the miracle of deregulation, America
today enjoys a highly competitive, rapidly evolving, technologically
sophisticated airline industry. A defining feature of the business
today is its continuing quest for innovation, for new ways of
attracting customers, for distinguishing competitors from each other,
and even for crafting new business models. After decades of struggle,
the industry has found a way to maintain its financial health, thereby
ensuring continued investment in consumer-facing improvements.
Please don't misunderstand. There is clearly scope for beneficial
regulation in circumstances where market forces can't be expected to
resolve an issue. The Air Carrier Access Act has made things better for
disabled passengers, for example, but we can and should do more. My
point is only that it would be a serious error of policy to adopt
legislation and/or regulations that freeze the industry in its tracks,
homogenize its means of distribution, prescribe what it can charge for
some services and what it can't, and needlessly sap much of the
competitive energy that should govern airline customer relations. If we
are singling out airlines for a level of regulatory micromanagement
that we wouldn't conceive of visiting on other businesses, we need to
be clear about the public policy rationale for that different
treatment.
Thank you again for the invitation to present these thoughts. I
look forward to your comments and questions.
Senator Duckworth. Thank you. I now recognize myself for
the first round of questions. I know today's hearing is on
consumer issues, so I want to start by talking about consumer
safety. Senator Baldwin and I introduced the Emergency Vacating
of the Aircraft Cabin Act, the EVAC Act, to require the FAA to
establish evacuation standards that take real life conditions
like the presence of carry-on bags, children, seniors, and
passengers with disabilities into account.
Ms. Nelson, if I could just have a quick yes or no to the
following three questions. I will give you time to elaborate
afterwards. First, have you ever been on a flight where there
were no carry-on bags?
Ms. Nelson. No.
Senator Duckworth. Have you ever been on a flight, or what
percentage of flights that you worked did not have children
under the age of 18, seniors over the age of 60, or persons
with disabilities?
Ms. Nelson. 0 percent.
Senator Duckworth. Do you think FAA simulation testing is
effective?
Ms. Nelson. No.
Senator Duckworth. Thank you. Now, can you briefly explain
why it is so important for the FAA to conduct simulation tests
with real life conditions? And I just want to start by saying
that the FAA's current way of doing it is to take a fuselage,
put 60 people on it, nobody over the age of 60, nobody under
the age of 18, no carry-on bags, and no disabilities, and they
say they can evacuate. That that simulates a real condition.
So, can you speak to why it is important to actually simulate
real life conditions?
Ms. Nelson. Yes. Thank you so much for the question. So,
the evacuation standards are not--first of all, do not take
into account the current conditions in the cabin, the full
aircraft, the seats that are closer together, the iPads and
tablets that are out everywhere with cords.
The growing accessibility, frankly, to everyone who is on
the plane. And if we don't take into consideration the actual
conditions in the cabin today, we are going to have a test in
real life aviation where people will lose their lives. We do
not want to test this for the first time in an actual event.
So, we need to take into consideration there are different
issues that can be brought into the simulation of whether or
not an aircraft can be evacuated in that amount of time. There
has been concern in the past about utilizing children and
elderly people and people with disabilities in the evacuation
test themselves, but those can be entered into the simulation
process and at least considered.
We should also be considering fumes in the cabin and any
other obstructed objects, and the issue of carry-on bags. None
of that is considered in the evacuation certification process
right now, and that is why your bill is so critically important
to determine what the actual conditions are today in the cabin
and how we can safely evacuate people in an emergency.
Senator Duckworth. Thank you. We certainly test the safety
of automobiles with crash test dummies to simulate babies in
car seats and people with disabilities, so I am certain that
you can introduce human analogous dummies into the process.
Thank you.
Ms. Nelson. Agreed.
Senator Duckworth. Last year my friend former Congressman
Jim Langbehn was attempting to lead a House Armed Services
Committee Congressional Delegation when Lufthansa refused to
allow him to board because its employees at the gate were
confused about wheelchair, about whether his wheelchair battery
was allowed on the flight. It did not matter that the United
States Navy had already confirmed with the airline before the
trip that his wheelchair specifications were permissible.
And confusion isn't just limited to batteries. It can also
be about something as simple as what size wheelchairs can fit
on which kind of plane due to varying cargo capacity. This is
incredibly frustrating and frankly unnecessary.
It was my friend and hero, the late Judy Heumann, who
brought this issue to my attention. I am writing a provision
for FAA reauthorization inspired by Judy that would require
carriers to provide passengers with disabilities basic
transparency and information.
Ms. Ansley, if airlines were required to post basic
information on their websites and apps like the size of their
cargo holds, where both passengers and gate agents could easily
reference it, would that help minimize confusion and make
travel more predictable for passengers with mobility aides?
Ms. Ansley. Thank you for the question, Chair Duckworth. It
certainly would help to provide customers with more information
about the experience that they are going to have during flight.
Judy Heumann was a great friend to all of us, and I have
had the privilege of advocating with her because she had so
many issues traveling the world by using her wheelchair.
And having the opportunity to know not only how--what
aircraft her device would fit on, fit on safely, but also,
quite frankly, working toward the goal of being able to just
simply fly from your wheelchair would be a great opportunity to
solve those issues.
Senator Duckworth. Thank you. Is the disability community
satisfied with the current level of accessibility at our
Nation's airports? Do you think more needs to be done in terms
of elevators, ramps, accessible restrooms, that kind of thing?
Ms. Ansley. Yes. More does need to be done in the airport
context to improve accessibility. We hear a lot about charging
stations at gates not being accessible to people who use
wheelchairs.
Announcements that folks can't hear, counters that are not
correct heights, the accessible restrooms that everybody seems
to like to go on with their luggage, that require people with
wheelchairs to wait until they are available.
There is still more that can be done, and we hope that
airports will be even more proactive in increasing access.
Senator Duckworth. Thank you. I now recognize the Ranking
Member Cruz for his questions.
Senator Cruz. Thank you, Madam Chair. Thank you to each of
the witnesses. Mr. Shane, let me start with you. Thank you for
being here today. Some witnesses and some Congressional
Democrats have said that the era of airline deregulation is
over, that it failed, and that the Federal Government should
reregulate it.
I have heard suggestions for the Government to micro-manage
flight schedules, how much someone should pay to transport an
extra bag, and everything else in between. These ideas come, of
course, in spite of the market decrease in the price of airfare
and a dramatic increase in the number of Americans who have
been able to fly since the Airline Deregulation Act was enacted
in 1978.
In your judgment, what should we be doing to further the
miracle of deregulation, which is the term you used in your
testimony?
Mr. Shane. As I said, I think that transparency is the most
important regulatory response to an awful lot of the problems
that we have been talking about. If passengers are unaware of
what is available to them, of course, then they are going to be
disadvantaged and competition will not work nearly as
effectively as it should.
Any of the issues that people are complaining today about
are the subject to some extent of airline competition. So, I
understand Southwest, for example, does have indefinite credits
when a refund is given.
Other airlines put an expiration date on. Well, the
airlines that put expiration dates on will notice that they are
losing traffic to Southwest because of that important
difference, and they will respond. That is how competition
works.
So, I think the Department of Transportation's emphasis on
making as much transparency as possible available to passengers
has been a very important--a very important benefit. Airlines
have become, if I can just finish with one thought, incredible
competitors, notwithstanding what we have heard this morning.
They, like all competitors, want to compete with each other
on the basis of product differentiation. It is very difficult
in the airline business to actually tell passengers what makes
you different from your competitor.
That is why some of the suggestions that airlines be
required, for example, to market through all platforms are so
antithetical to the very concept of deregulation. You are
forcing airlines to transact with companies they may or may not
choose to transact with because they can't show their consumers
the rich content that they would like to.
If you are investing hundreds of millions of dollars in
your interiors, in your connectivity, in the speed with which
people can check in, all of these amenities, passengers need to
know about that. That is what makes competition work and that
is what encourages airlines to keep upping their game.
So, the idea, as I said, of creating a one size fits all
solution to any of these problems is really antithetical to the
benefits that consumers have enjoyed thus far through
deregulation. I would seriously caution against doing that. We
just don't want to go back there.
Senator Cruz. Yes, Mr. Shane, I will say in elected
politics, it can sometimes be good politics to pick things that
are unpopular and declare yourself the enemy of them.
And so, you know, I still recall sitting on the floor of
the House not too long ago and listening to the President's
State of the Union address, where he talked more about airline
baggage fees than he did about how we are going to defeat
communist China. And I get people are annoyed at fees.
I am annoyed at fees. People are annoyed at small seats. I
don't like how seats have gotten smaller. And it is pretty good
politics to say we are going to give--ensure that every
passenger has a bigger seat. We are going to ensure that every
passenger doesn't have to pay any fees.
We are going to ensure that every passenger gets a free
neck rub and foot rub with every flight. Is there any downside
to politicians giving away free stuff? It can be good politics
to say, let's mandate, here is all the things the airlines must
do for every passenger. But is there a downside when Government
steps in and says, here is what you must do on every flight?
Mr. Shane. Yes, Senator Cruz, I think there is a downside.
Unfortunately, the downside isn't immediately apparent. The
downside comes later as the industry becomes less competitive,
as prices begin to go up, as airlines necessarily recoup the
cost of providing the services that have been mandated by
Government in the way they have been mandated. The real
objection to a lot of the responses I have seen to concerns
about the way airlines perform is that--you can't be an airline
manager if you are in Government. I mean, you just don't know
enough.
Senator Cruz. And just because time is expiring, Ms.
Ansley, I want to ask you a question as well. Thank you for
your testimony and a very important testimony. What actions
should Congress take to make clear to the Department of
Transportation that they should take the law and Congressional
intent seriously to protect passengers with disabilities, and
to get them to enforce the laws that are on the books?
Ms. Ansley. Thank you for that question. We support efforts
that would require the Department of Transportation to use the
civil penalties it has in its disclosure. It doesn't--it does
not use those opportunities sufficiently, in our opinion.
And we think that in the Air Carrier Access Amendment Act,
there are a list of areas where we feel like we shouldn't be
talking about whether or not we should have a civil penalty if
there is a violation, if you harm someone, if you, you know,
destroyed their wheelchair.
I would hope that we would all agree those are a time when
we should have a penalty that is put into place. And quite
frankly, that those cases would be referred over to the
Department of Justice, just like we have in all other forms of
transportation because of the Americans with Disabilities Act.
Senator Cruz. Thank you.
Senator Duckworth. I recognize Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Madam Chair. And I want to thank
Senator Klobuchar for allowing me to ask questions. I
appreciate all the folks who testify today. I was watching you
online before I got here, and I appreciate all your testimony.
I was not going to talk about deregulation, but what the
hell, we might as well touch on it a little bit. I think one of
the problems here is we talk about deregulation from a
standpoint of where people live and lots of people live. And it
works pretty damn well if you have got a big population base.
But if you don't have a big population base, I will give
you an example. And I agree with most of what you said, Mr.
Shane, but here is one of the problems. Southwest Airlines
takes credits forever. One of the other airlines that served me
does not. I got to drive 5 hours to get to a Southwest flight.
I got to drive 5 hours, OK. That is not really something that
works, OK.
So, what I am saying is this is I believe in free market
and capitalism. I am going to tell you when it costs me three
times as much to fly from Montana to
Washington, D.C., as it does from Dulles to Europe, there
is something nuts about that unless those engines don't work as
well on Montana Air. You know, maybe they use more fuel. I
don't know. I have never figured that out.
But I would just tell you that it works really well if you
live in a hub and you are in a population center. But if you
are not, you are paying through the nose. You are paying
through the nose and you have less service today than you had
before 1978. And I say that from a Great Falls, Montana,
perspective.
And that is not to say that deregulation was bad. It just
doesn't work as well as everybody think it does in rural areas.
And that is where I get to you, Mr. Moyers. I want to ask you a
little bit about, when airlines pull service, do they tell you
why?
Mr. Moyers. Thank you for the question. I have had
negotiations with airlines that have wanted to start service
and then they have actually failed and not come into the
market. And it is always been that business decision for them.
The metrics don't work. The cost per seat mile.
They give an explanation like that. Recently where we have
lost service now--we have not had them pull out of the market.
They have just downsized. So, the frequency where we used to
have four daily flights to Seattle, we are in the same
situation as you where it is a 3-hour drive otherwise.
That reduction in frequency, the conversations we have is
it is a resource allocation. Not enough aircraft, not enough
pilots to fly the aircraft. And so that is a finite commodity.
They are not going to fly those higher risk markets, perhaps.
Senator Tester. So, when I fly out to come back here, which
I do every week, four legs a week, the planes are full. They
are full. But out of the blue, every once in a while, it
happened a couple of years ago, they just pull a flight.
They just pull it, no longer exists. So then instead of
flying through Minneapolis--they restored the flight finally,
but instead of flying through Minneapolis to D.C., which, by
the way, takes 2 hours off the flight--I have to flight South
before heading East.
Do they offer any options, when they pull a flight that, by
the way, is pretty darn well used, do they ever offer you any
options to get it back?
Mr. Moyers. The conversations we have with our incumbent
that is offering service right now to restore service, to
regain frequency, it is going to take a negotiation that is
likely to be some sort of incentive to cover the cost for the
risk for them to return to the market.
Senator Tester. OK. In your testimony, you argued for
larger EAS subsidies and other economic incentives to help keep
air service at smaller airports. It is critically important, as
you well know, from an economic development standpoint.
We talked about the number of passengers in the Southwest
situation. If you don't have good airfare, you have both arms
tied behind your back, if you don't have good air service. Have
you talked with other airlines about these subsidies and how
much it would take?
Mr. Moyers. It is a great question. When we meet with
airlines, we discuss that cost to be in the market. What fees
can we waive to attract them in?
From being in the terminal, those cost to lease space, to
do the ground handling, all of those things are--we try to
negotiate to get that incentive to the airline that will
startup the service. Right now, we have a scarcity grant in
place for revenue guarantees to the Bay Area.
I mentioned earlier in my testimony Microsoft, a high-tech
company that has a headquarter in San Francisco, one of the
reasons they came to the area was we had connectivity and we
were trying to get additional service to the Bay Area. That was
important to them.
We are sitting on right now in about a $1.1 million fund
and have been since 2018 because we can't attract an airline to
provide that service.
Senator Tester. OK. One last question, if I might, Madam
Chair, for Ms. Ansley. When a veteran's mobility aide gets
damaged, number one, how long does it take to get repaired, and
what does that veteran do in the meantime?
Ms. Ansley. So, the question--thank you for the question.
The answer is it depends. The--I have one veteran who attended
our women veterans retreat last fall. The power assist wheels
on her wheelchair were destroyed, so she--they gave her just
plain wheels so she has got to push them.
For 2 months it was with the airlines contractor that was
supposed to be getting it fixed before they called her and
said, ``we don't even have a contract with the company that
sells these so there is nothing we can do.''
At that point, we got the airline involved because we
raised it up and they said we will even pay the VA if they will
do it because it was so delayed. I have another veteran who was
out here for our fly in just a few weeks ago when our President
testified before the Veteran's committee.
His controller was broken on his wheelchair. He said that
it has been a couple of weeks now. They have evaluated it, but
he doesn't have the part. So, every time he takes his hand off
the joystick, it swings out of place.
So, he has to constantly move it back into place. He
doesn't know when he is going to get the parts. So, wheelchair
damage can take a long time to fix depending on where you got
to get the parts from. Sometimes the VA steps in if they can,
even though it is not technically their responsibility.
Senator Tester. And itis fair to say these are mobility
aides. Without these aides, they can't be mobile, so they can't
get around. They can't do much.
Ms. Ansley. That is 100 percent correct, sir.
Senator Tester. Thank you.
Senator Duckworth. They are my legs. My wheelchair are my
legs. Imagine if a regular passenger had their legs broken on a
flight and had to wait weeks or months.
And in fact, my power assist chair was just broken on
Saturday, and I am sitting in a 12-year-old chair right now.
Chair recognizes Senator Schmitt for his questions.
STATEMENT OF HON. ERIC SCHMITT,
U.S. SENATOR FROM MISSOURI
Senator Schmitt. Thank you all for being here today. It has
been mentioned, I know, by a number of other Senators, but we
all fly a lot, so these issues are so near and dear, not just
to us, but obviously the millions that fly and our
constituents. And that is even more magnified, a lot of these
concerns, in a lot of the rural airports.
In places like, you know, Cape Girardeau and Fort Leonard
Wood in Joplin, Kirksville in Missouri, and all across the
country. We have seen a number of instances of near collisions
and cancellations that I think draw a lot of concern. And I
still find it remarkable, remarkable that Pete Buttigieg has
refused to show up to this committee ever, for anything, given
everything that is going on.
So, and I have already highlighted this Administration's
like obsession with woke policies and mitigating climate change
and increasing equity, which has nothing to do with the FAA's
mission. The FAA's mission is safety and affordability and
efficient travel for the people that we represent.
And again, it is just sort of a downward spiral of this
Administration. And, you know, yesterday we talked about just
not even caring about places like East Palestine. So that is
not the focus of my questions for you. I just think it is--we
are here to talk about safety, and one thing that I--and the
impact that that some of these proposed regulations could have
on rural airports in our communities.
I did want to ask you, Mr. Shane, a question. Workforce
issues--I mean, no matter what industry we are talking about
there, workforce issues. You know, it seems to me that these
challenges can be particularly acute when you are talking about
an industry like the airline industry, where you need good,
qualified people.
When we talk about safety, you need people who know what
they are doing and can provide that expertise. And getting more
young people interested is one thing as a, you know, a good
paying career. See if they choose.
What is it that you see that could be done differently than
the way that we are doing? It seems that a lot of these tracks
to get people into these particular trades or into this kind or
into this kind of work can be long. It can be--and that is
important, I think, to gain the expertise.
But what is it that can be done that we are not talking
about right now as, you know, our system--our education and
workforce training system continues to evolve. What can we do
differently to prepare, you know, the next group of mechanics
and people who can work on these, you know, sophisticated
aircraft to keep people safe?
Mr. Shane. Thank you for the question, Senator. You are
seeing a lot of spontaneous developments within the airline
industry itself. Academies are being set up to train mechanics,
to train flight attendants and pilots in greater numbers in
order to--in order to respond to the shortfalls that have
resulted as a result of the decimation of traffic during the
pandemic.
The airline industry was hit as never before, and this
caused a huge disruption in the flow of workers. So, there is
that element within the industry itself. I think there are
Government programs that encourage young people to come into
the industry, internships and that sort of thing.
I am not entirely familiar with all of those. When you look
at pilots in particular, and this has become a critical problem
for the industry--and by the way, a critical problem for
smaller communities because this shortfall in pilots is hitting
the smaller carriers harder than the larger ones. In fact, the
larger ones are furloughing pilots from the smaller ones more
and more, which is really--it has affected the Essential Air
Services program. It has probably now made it much more
difficult for DOT to keep the subsidized service going in the
way that they want to, in the way that they must.
One of the, I hate to say it, but one of the real problems,
and I say this with enormous respect for the families of the
Colgan victims, the 1,500-hour rule for training pilots has
really become an impediment to replenishing the pilot work
force.
And I am not a pilot and I don't speak firsthand on this
issue, but I know an awful lot of people who do, who really do
claim that expertise. And I have heard consistently that the
1,500-hour rule doesn't have any relevance to the actual
performance of a pilot. It had nothing to do with the crash of
the Colgan Airline.
And I mean, those pilots had more than 1,500 hours each.
So, it was irrelevant to the cause of that crash. But it has
just become--I mean, it is a law and so nobody can do anything
about it unless the law is changed. But it really is an
impediment that I think should be reexamined, not because--it
had no impact on safety--of reexamining it, if you have
sensible approaches to the training of pilots. The 1,500-hour
rule, I think, simply departs from that.
Senator Schmitt. Let me just have a very quick followup,
which is, in your--in these partnerships that you are seeing in
the airline industry, what is it that you think is most
effective? Are these private? Like academies that are being
created or could be created in the airline industry itself? Or
is it partnerships with community colleges? What is--just, in
your opinion, what has been the most effective that you have
seen?
Mr. Shane. I think when the airline companies themselves
create their own academies, and invite people in, and assist
them in getting through the educational process, which
otherwise is very, very expensive, there is a loyalty there.
There is a steady flow, there is a solid job ahead. It provides
an awful lot of comfort to the candidates themselves and those
who make it.
Some wash out, of course, but those who make it are likely
to be loyal and long-term employees for the industry. So, I
happen to favor that approach. But there are also third-party
academies all over the country that have been there for years
and they work as well. The issue, of course, is what does it
take for a pilot in particular to actually qualify today? And
it has become very expensive and, in my judgment, unnecessarily
so.
Senator Schmitt. Thank you. Thank you, Madam Chair.
Senator Duckworth. Thank you. Mr. Shane, I could not
disagree with you more on the 1,500-hour rule. And to quote
Captain Sully Sullenberger, it would be like saying that we
don't have enough medical doctors, so let's just cut down a
number of years of medical school from 4 to 2 and just say, we
are just going to use our simulators and you are never going to
touch a patient. That is not the safe way to move forward. I
would like to go ahead recognize Senator Klobuchar.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. All right. Thank you, Madam Chair. I am
excited about this hearing. I know many of you so it is good to
see you. I will note that when Senator Tester was talking about
the Minneapolis Saint Paul Airport, I agree with him on the
cost of these tickets.
But I will say he had a great time because it was just
voted for the second year in a row as the best airport in North
America. Just for the record, to my colleagues. OK, so, Dr.
Moss, quickly. We usually have more time in the Antitrust
subcommittee. You commented recently about the proposed merger
of JetBlue and Spirit and how it could hurt both customers and
airline workers.
As you know, there has been--DOJ had recent action to sue
to block the transaction. Do you want to just briefly comment
about your concerns about this transaction for consumers and
costs?
Dr. Moss. Thank you, Senator Klobuchar. Very good question.
We do think at the American Antitrust Institute that the merger
of JetBlue and Spirit is anti-competitive. It will eliminate
head-to-head competition on a number of routes, dozens of
routes. It will also eliminate an important low-cost carrier,
making it easier for remaining carriers in those route level
markets to coordinate instead of competing hard with one
another.
And then finally reduces choice, eliminates choice for
those price sensitive customers who might want the bundled fare
fee model that they get with a low-cost carrier. Really no
compelling efficiencies or benefits coming out of that merger.
And we already know from previous studies and experience
that airlines rarely deliver on those connectivity promises.
Senator Klobuchar. Yes, I care--you know, we are home to,
or we are a Delta hub. We are home to Sun Country Airlines. We
are very proud of that airline and is one of the key
competitors in the smaller market.
OK, I think I will turn to you, Mr. McGee, very briefly.
The bill that we have to require airlines to seat families
together. I am sure Ms. Nelson is aware of this issue as well.
I know you mentioned this. Do you think airlines are doing
enough to keep families together? And this is a bill a number
of us have introduced.
Mr. McGee. Thank you very much, Senator. We have seen in
recent weeks, I think, due to the actions by the DOT and
Secretary Buttigieg to raise the awareness of this and even the
President, that some airlines in the U.S. have seem to have
stepped up. We are saying that while we want to applaud them
for that, it is not nearly enough.
This needs to be documented through legislation and through
regulation. What we have found time and again is that the
airlines contracts of carriage, they are written in sand,
making them change literally overnight. And so, promises that
are made by the airlines are not really very valuable long
term.
Senator Klobuchar. OK. Thank you. Mr. Moyers, I was talking
about airports. We, of course, have concern about the meltdown
that happened over Christmas with the FAA.
We just passed out of this committee a bill that Senator
Moran and I have on improving the NOTAM system and getting the
stakeholders together, as Representative Stover of Minnesota
has been carrying it for quite a while in the House, and so we
are excited it is moving through.
But of course, it is just a beginning. One of the things
that we do know is that there are still issues for people who
work in the airports when it comes to, or on the planes,
frustrated passengers.
So, do you want to talk a little bit about what could be
done to improve those interactions?
Mr. Moyers. Thank you for the question. And if I understand
correctly, the interaction between airport staff and----
Senator Klobuchar. Frustrated customers. Yes.
Mr. Moyers. We field a lot of phone calls on behalf of
airlines as the airport operator. And kind of the analogy for
me is that I run a mall and I have got a bunch of different
shops in there, but they are calling the mall to complain about
the x, y, z department store. So, we, we field those calls on a
regular basis. It is a challenge for us because we are not
empowered to make decisions on behalf of those passengers.
Senator Klobuchar. Right. And I think--I mean, clearly the
best way to do this is to upgrade our air traffic control
system. We are also going to have weather issues, no one knows
that better than Minnesotans right now, this winter.
But I do think that would be the key to all of this. I
guess. Ms. Nelson, just you have dealt your--flight attendants
deal with this all the time. Just any ideas that you have along
these lines.
Ms. Nelson. Yes. One of the biggest issues is that staffing
has been cut to minimums on the planes and at the gates. It is
much harder when we have fewer airline employees to be able to
address passengers' issues and resolve their problems
And it's much harder to stop that aggravation from getting
on the plane, which then can lead to a violent event on the
plane as well.
So, we have serious concerns about this. There has been
cost cutting everywhere, increasing staff, and awareness. And
interaction between the airlines and the airports is very
important.
Senator Klobuchar. My last thing, just back to you, Mr.
Moyers. Small airports, we have a lot of them. I think every
member of this committee, looking over there at Mr. Welch and
Senator Welch with Vermont, and Senator Vance, Ohio, we all
care about these smaller airports. Could you talk about the
biggest obstacle in attracting new air service at a small
airport? Any ideas on that? And quickly.
Mr. Moyers. Yes, thank you. It is a great question. We try
to recruit and attract new air service on a regular basis. We
have folks on retainer that that is their focus--air service
development.
The challenge comes down to it is a business decision. I
can't compel someone enough to start service in a new market
with what I have to offer as the airport alone, without any
assistance, whether it is SCADC program or otherwise. Those
airline incentives that those businesses are looking for, we
can waive fees, but once--I can't waive something that doesn't
exist either or where there is only so much that we can give in
that.
And so that is the biggest challenge for us, is we are not
going to beat them with the stick. How big of a carrot can we
can we use to attract them? And the resources that a small
airport has when I have got to make infrastructure improvement
decisions versus an air service, those are the challenges.
Senator Klobuchar. Well, thank you, all of you. Thanks.
Senator Duckworth. Thank you. Senator Vance.
STATEMENT OF HON. J. D. VANCE,
U.S. SENATOR FROM OHIO
Senator Vance. Thank you, Madam Chair, and thanks for all
the witnesses for being here. I want to, before I get into my
questions, just sort of, you know, kick off by noticing
something about our country, which is that, you know, it is
extremely hard to be a parent and extremely hard to have
families.
I actually fear that we become an explicitly anti-family
country in a lot of ways. And you see this in multiple
different phases. You see this in, you know, the woman who is
an hour from giving birth and chooses an out-of-network
anesthesiologist and is then is punished by this by getting
$15,000 of unexpected bills. And when I think about this as a
father, after the baby comes, there is maybe no more miserable
experience than flying with young children in this country.
And I say that not to blame any of you or any of the groups
that you represent, but to highlight just how difficult we have
made it for young families to survive and to thrive in this
country.
And I wanted to sort of set that up by asking Ms. Nelson a
few questions about a policy change that has been advocated to,
in my view, make it more miserable to fly with young infants,
which would basically make it impossible for lap infants, for
parents to bring their babies and toddlers on the plane with
them sitting in their laps.
That strikes me as another thing that is going to make life
unwelcomed on airplanes for children. And I want to just start
by asking, you know, we--I know this very personally. I have
had very many babies, some screaming, some not screaming, on
many flights in my life with my kids, all of whom are under the
age of six.
For decades, parents have been flying with babies on their
laps. They have been doing it in safety. Why are we proposing
this change that would make it impossible for parents to fly
with babies and toddlers on their laps now?
Ms. Nelson. Thank you for the question. This is actually
more than a 30-year priority for our union ever since the Sioux
City crash of 1989, when one infant was killed and the other
three were injured. And the flight attendants were giving them
instructions about how to prepare for--to keep their child
safe.
And in our manuals was an instruction to wrap them in a
blanket and hold them on the ground. Well, there is no way to--
even the most loving mother and father cannot hang on to an
infant in that situation. So, we have been proposing this ever
since that time, that just like in our cars, we need to have a
safe seat for the infants to sit.
What I would add to that, though, to that has changed over
that time until now is that it used to be--when I started
flying, it used to be that the aircraft was half full and there
were plenty of seats, and people would bring their car seats,
and they didn't pay for the ticket, but we would be able to
find a seat for them, and it was the safest place for the
infant to be. On the FAA website if you are looking for that
instruction that is there.
Our concern is that by not selling those tickets, what the
airlines are conveying to the families is that it is OK to
bring your infant on board.
And my concern is that as safety professionals on the
plane, understanding that that is not safe for the infant, it
is not safe in these severe turbulence incidents where the
children actually become projectiles, that we are not giving
very clear instructions to parents about how to keep their
children safe.
And so, I look at that from both perspectives, both in
terms of protecting our smallest passengers, but also for
flight attendants who are charged with the safety, health, and
security of everyone on board, it is very concerning when we
are giving instructions that are not as safe. I would only add
that we don't have any temperature standards on board the
aircraft.
And so, in a hot cabin, we actually had an infant that
passed out, was on his mother's lap. That may have contributed
to it as well.
And as parents are leaving the hospital, they are having to
check out with the fire department or whoever about installment
of those car seats.
It is so enforced from the moment that you leave the
hospital but it is not enforced on our planes, and we are not
giving that instruction to the families. And there is no place
to go anymore because the planes are full.
Senator Vance. So, I appreciate that response, Ms. Nelson.
And the one thing I would encourage your organization to do is
maybe to take out how to--look, I don't think this is the right
rule, but if you guys are going to advocate for this rule,
maybe to fit it in with some other changes that would make
things easier on parents as you are advocating for that
particular approach.
Because here is the thing. I mean, the difference, of
course, between an automobile leaving the hospital and an
airplane, there are two obvious ones that I can think of,
right. One is that, look, if I take my kids from Cincinnati to
visit their grandparents in San Diego, that is 5 hours.
I mean, try to keep a toddler or a baby in a car seat for 5
hours. That is torture for everybody, including the baby and
certainly the passengers around the baby. But the second thing,
of course, is that air traffic accidents are thankfully, thank
God, so much less frequent and less common than car accidents
are.
So, what I worry here is that in the name of safety
improvements, and I don't doubt that there are marginal safety
improvements, we are actually proposing a change that would
make things much, much more miserable for parents, for very
little marginal improvement in safety. And I want to just one
final comment here and then I will shut up.
One thing that I really worry about, and I think both
Democrats and Republicans should worry about, is we have some
real demographic problems in our country. American families
aren't having enough children.
I think there is evidence that some of the things that we
are doing to parents is driving down the number of children
that American families are having. In particular, there is
evidence that the car seat rules that we have imposed, which of
course I want kids to drive in car seats, have driven down the
number of babies born in this country by over 100,000.
So, as we think about how to make kids safer, I think we
should do it in a way that is accommodating to American
families, and I encourage your organization to do that.
Ms. Nelson. Thank you. I appreciate that. I just want to
clarify one point, and that is that the child would be required
to stay in the seat for the critical phases of flight. So, this
is not keeping babies in a seat for 5 hours.
Senator Vance. Thank God.
Ms. Nelson. All right. Thank you.
Senator Duckworth. Thank you. And I would have to say, if
we really wanted to support families in this country, we would
have universal childcare, we would have paid family leave, and
we would certainly have universal pre-K.
However, we could probably talk about working together,
Senator Vance. Talk to the airlines about maybe having--selling
a seat at half price so that you could actually--family would
actually afford to have a separate seat with the car seat for
their children.
Senator Vance. Certainly, would be open to that.
Senator Duckworth. Thank you. Senator Welch.
STATEMENT OF HON. PETER WELCH,
U.S. SENATOR FROM VERMONT
Senator Welch. Thank you very much, Madam Chair. I do agree
with you. First of all, I fly a lot like all of us do.
Burlington Airport is great, and I don't know how the flight
attendants, the personnel there manage to keep smiling when all
of us passengers are anxious and driving them crazy.
But they do. It is really a tribute to the folks that are
on the front lines and the baggage handlers. You know, when it
is really cold, they are outside hauling the bags and then they
have to come inside to get the gate checks.
And it is cold, it is warm, it is cold. So, I just want to
start out by expressing gratitude to the folks at the
Burlington International Airport that work for the airlines,
and the baggage handlers, and all those TSA folks that put up
with anxious travelers.
Ms. Nelson. On behalf of all of my colleagues, thank you so
much.
Senator Welch. You guys are amazing. There are issues,
though, that we saw with Southwest where there are corporate
decisions that are driven by shareholder value. The airlines
probably do their best to train.
They nickel and dime a lot of times on staffing and on pay,
and then the floor falls out from underneath and the passengers
are left without any help. And I can't imagine what the
pressure is on the front-line folks in a situation like what
happened with Southwest.
So, it really does suggest that there has to be active
consumer protection and we have to rely on the Government more
than we rely on the individual airlines to, at the bottom line,
do the right thing.
It is why I think Senator Markey's cash refund bill really
makes a lot of sense. Why shouldn't it be the decision of the
passenger as opposed to the convenience of the airline to
determine whether they want cash back?
You know, and a lot of folks, when they fly, it is not like
us. We fly all the time, but they are like going to a funeral.
They are going to a wedding. They are going for a long-
postponed trip to see their brothers and sisters.
So maybe I will just ask, Dr. Moss. Any reason why there
can't be cash refunds as a matter of policy at the discretion
of the passenger as opposed to the convenience of the airline?
Dr. Moss. Thank you, Senator Welch. That is a great
question. I see no reason why that policy should not be
proposed. I would point out that what we have been talking
about at this hearing today really breaks down into issues that
fall solidly in the consumer protection bucket, safety, the
well-being of passengers, issues that fall solidly in the
competition bucket, which is competition on price and quality
and innovation in the airline industry.
Senator Welch. And that goes, of course, to the merger
question.
Dr. Moss. Of course. And then we have issues that fall at
the intersection of consumer protection and competition.
And those would be things like, well, if you have more
competition, then you have more pressure on airlines to not
engage in drip pricing when consumers get online to purchase
their fares. So, I think that is a really good framework to
think about this in and frame legislative proposals and
reforms.
Senator Welch. Great. Let me ask Ms. Nelson. You know, one
of the reasons the cash refunds I think are good, there is a
lot of anxiety for a passenger when their plan is thwarted.
And it is not the fault of the front-line people, but the
more security--this is my view, and I am asking you your
reaction, that family haves, who it is a lot of money to buy an
airline ticket, especially if it is for a family.
The more security that family has that they will get their
money back, they may be disappointed that they can't go to that
event, but do you think that would alleviate some of the
pressure on the front-line folks dealing with, you know, really
upset customers?
Ms. Nelson. So, it is always better when we have better
customer service and people's problems are getting resolved.
That is way better for the people on the front lines. But I do
want to make clear that there is the ability for a passenger to
choose to have a refundable ticket. And so, we are talking
about the nonrefundable tickets.
Senator Welch. At an expense.
Ms. Nelson. At an expense, that is right. And so, we are
talking about the nonrefundable tickets that are--that have
been put into that segment, tight segmentation of pricing that
has also been talked about.
Senator Welch. And you know, I want to go to that. That
nonrefundable ticket, you know, they have computers, they have
algorithms. They game it. They know, you know, they have got
people with eye shades figuring all this out.
I have never understood why they really need that
nonrefundable ticket, other than it is a way they can extract
more money. Because they have the capacity with the computer
programs to anticipate what sales they have to do, by and
large, to get their full airplane. I don't know if you are the
person to answer that, but maybe Dr. Moss is.
Dr. Moss. The answer is yes. So, the nonrefundable tickets
are a pure exercise of market power. Because the airlines have
market power and the ability to control how consumers behave in
the airline system, they can absolutely impose those types of
restrictions on them.
We saw the disappearance of the nonrefundable ticket during
the pandemic. That is when demand fell off. When consumers were
in the driver's seat and not the airlines.
Senator Welch. And I am at the end of my time, but I just
want to thank the witnesses for talking on behalf of
maintaining a service in our small airports. Thank you. I yield
back. Thank you, Madam Chair.
Senator Duckworth. Thank you. I recognize Chairwoman
Cantwell.
The Chair. Thank you, Chair Duckworth, for doing this
hearing. It is such an important list of witnesses. Thank you
all for being here. Mr. Moyer, back to the situation of rural
communities and our essential air services.
The Community Air Service Program that you mentioned in
your testimony, and I think you mentioned you think we should
fully fund that, and obviously essential programs. But is the
issue coming down to pilots? Is the issue that airlines--if you
have a pilot capacity and you can fly from Seattle to Hawaii,
you probably make a little bit more money on that flight than
Seattle to Wenatchee.
And so, what do we do, do you think, because I don't
think--so, one SCADC focused on the market, and then one
focused on essential service. What is the best way for us to
get at this underlying problem?
Mr. Moyers. I can't disagree with you about a revenue on a
flight to Hawaii versus to Wenatchee. And that is the
challenge.
Those business decisions are being made that marginalize
the small market. It is hard for me to compete for service in
Wenatchee versus a service from some other destination where
there is a greater yield or return on their investment and a
startup service as well for--to bring new service in, that
airline is going to incur some costs of bringing ground
handling equipment, ground crew, the ticket agents, all of
those expenses.
They are looking to the airports, how can you help us with
that startup? And so, there is some questions there as far as
infrastructure and equipment that I can't answer fully right
now. That is a big challenge for us in competition in other
markets.
From a rural standpoint, I think everyone has agreed that
everyone deserves accessibility. I don't think there is a
question there. It is, how do we get to it? The SCADC programs
are in place right now with I think the last announcement was a
$15 million.
Is that enough to go as far as it needs to for enough
communities to benefit from it, if an applicant is going to ask
now for a couple of million dollars, whereas before it was $700
or $800--or $800,000. Those dollars aren't going to go as far
and fewer markets will benefit.
The Chair. Well, I guarantee you we did the CHIPS and
Science bill with our colleagues, Senator Wicker, with the
notion that we were going to spread out innovation.
And when you talk about the innovation that is happening in
Wenatchee, which is amazing, people didn't, probably didn't get
all the digestion of your comments about being in the diamond
manufacturing business now. But it used to be an aluminum
smelter there and now you are manufacturing diamonds.
And the community decided they wanted to do that. And as
you said, the community told them that you would have air
service. And I am pretty sure you probably told Microsoft the
same thing.
So, the question is, we are going to hamper economic growth
and development in other parts of the country--we are going to
hamper innovation, because innovation can happen in other
places, but it has to have an airport.
And I just think we are going to have to figure out,
working together, how to bridge this gap somehow. So, do you
think it is back to Essential Air Service then?
Mr. Moyers. I don't know that it is Essential Air Service.
I think there are markets where that does make sense. But from
the standpoint of Wenatchee, I couldn't say that I need
essential air service. I don't think--we wouldn't fit that
criteria. There may be places where that is viable. So, to just
scrap that program, I couldn't sit here today and tell you that
that would be my suggestion.
The Chair. OK. Ms. Nelson, thank you for being here. You
mentioned in your testimony about chaotic scheduling by
airlines that strain the system. I know a lot of people, I hear
from our colleagues.
We are definitely fliers so we hear lots of different
things about people who capture a market by saying they are
going to leave every half an hour and then they don't leave
every half an hour and then they get so congested and backed
up. But have they captured the market?
Yes, they just haven't delivered the service. Do you agree
that DOT should be carefully examining whether airlines are
publishing unrealistic schedules and leaving workers and
consumers in a bind? This was the DOT unfair and deceptive
practices.
Ms. Nelson. Yes, I agree with that wholeheartedly. And it
was because of pressure from lawmakers and from DOT that the
airlines rolled back that unrealistic service this last summer.
So there needs to continue to be a real transparency on
that and oversight on that to make sure that we are not
overpromising, because the people on the front lines are left
to hold the bag.
And we also are not getting home to our loved ones. We also
don't have the infrastructure at the airlines. In some cases,
they haven't purchased the new scheduling programs that allow
them to respond immediately, and they don't have the staff
behind the scenes to be able to pick up the phone.
So, when the operation falls apart like that, many times
the people on the front lines are left on hold for five, 6
hours to try to get through to a scheduler in order to get
rescheduled. So, it takes the proper investment in
infrastructure for the airlines, takes the proper staffing,
both in terms of the frontlines and the backend to support that
frontline crew.
And it can't be, as Senator Welch said, just driven to
share price, because that is what we end up with when that is
the only objective of the airline.
The Chair. Mr. McGee, your testimony was clear, so I am
pretty sure you think that passengers deserve refunds in a
timely fashion. But do you think we should also up the
oversight by DOT on this so that you actually are forcing the
airlines to comply with this?
Mr. McGee. Yes. Thank you, Senator.
The Chair. Do we have enough infrastructure to oversee
that?
Mr. McGee. No, it is clear we don't. We are in constant
touch with the DOT and they expressed in 2020 when they
received a record number of complaints from consumers on
refunds, a total of some 29,000, that their staff was
overwhelmed just processing it.
And understand that is not acting on the refunds, that is
just processing it. The bottom line is that when you look at
the refund problem, there are multiple layers to it. One is the
fact that we do have an existing DOT rule that says you are
entitled to a cash refund if your flight is canceled for any
reason, whether it is the airline's fault or not.
It is clear that U.S. airlines and some foreign airlines
have blatantly violated that rule, and there has not been
enough enforcement on that. But an additional problem, sitting
right behind me is my colleague, Matt Stoller.
He had a flight canceled last summer. He was entitled to a
cash refund, he and his wife, and he forwarded me a text from
Delta Airlines that said, we are sorry your flight was
canceled. You are entitled to a credit. That is unacceptable.
In our view, that should absolutely not have happened.
We live by the fact that about 87 percent of Americans fly
less than once every 18 months. How are they supposed to know
these rules? Who knows--now, Matt was lucky enough to have an
aviation geek on speed dial, so he was able to text me and I
said, ``WHOA'', in all caps, ``do not accept that credit.'' And
I gave him the rule. He went to Delta and they said, fine. But
that is an unfair and deceptive practice.
And then, of course, we have the problem with the credits
then expiring. And, you know, Southwest and others have gotten
credit for not letting them expire. All U.S. airlines should be
mandated. But, yes, we need more enforcement here.
The Chair. It would be one thing if you then could get them
on the phone and talk about it--and they may not even have the
details of the case. So, then they would just tell you it is
expired in the news.
And then you say, no, no, no, I got this because my flight
was canceled. You gave me this. I should have it. Then you try
to get somebody on the phone who can--you spend a lot of time
getting that----
Mr. McGee. Right. And don't forget that Frontier Airlines
just shut down its call center. You cannot even call that
airline. Let's hope that is a trend that doesn't continue.
The Chair. Thank you, Mr. McGee. Thank you, Madam Chair.
Senator Duckworth. Thank you, Chairman Cantwell. Now via
remote, Senator Markey.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Madam Chair. And thank you, Mr.
McGee, for your testimony today. I just want to continue on
this subject because it is the reason why I am fighting to pass
my Cash Refunds for Flight Cancellations Act. You know, I have
several Senators on board, and our intent is to get it added to
the FAA reauthorization.
So, a little past 2 years, airline consumer complaints on
refunds have skyrocketed. Last year saw a 1,000 percent
increase in refund related complaints compared to 2019. In
other words, there were ten times more refund complaints from
consumers compared to before the pandemic.
Clearly, there is an issue here. Mr. McGee, can you briefly
explain for the Committee how airlines make consumers jump
through hoops to get their refunds for canceled and delayed
flights?
Mr. McGee. Absolutely. And thank you, Senator, and thank
you for the legislation which we at American Economic Liberties
Project heartily endorse. You are right, you do have to jump
through hoops. As I said, 87 percent of Americans fly less than
once every 18 months. So, the fact is, they are not aware of
these rules.
For example, in the European Union, you can't walk more
than ten yards without seeing a sign explaining what all of
your rights are. And those are rights that are mandated by the
union. They are not embedded in airline contracts of carriage
that I would argue 99 percent of Americans never even heard of
these contracts that are so binding. So, on the issue of
refunds, as I was saying, there are multiple layers here.
As you know, there are airlines that have just blatantly
said we are not paying refunds. Then you had the situation
during COVID where there were lockdowns and we were being told
by local, State, Federal authorities, at certain times by
President Trump, by the CDC, and medical authorities, you
should not fly.
Foreign governments are saying Americans are not welcome
there. And yet the rule, as written, says that if the flight is
not canceled, the passenger is not entitled to a refund. Now,
that was absurd. You had Americans that were immunocompromised
that could not fly.
But if you and I were both flying from Washington to
Chicago and you were on a 10 a.m. flight on United and I was on
a noon flight on United, and your flight was canceled, and mine
wasn't, you were entitled to a refund at the height of COVID,
and I was not. So that is absurd.
So, we also, of course, appreciate the word cash in your
legislation. Cash for refunds. As I said, airlines are very,
very quick to offer credits and vouchers and even sometimes
mileage in place of cash.
The DOT rule is clear, you are entitled to cash, but what
is not clear is airlines every single day do not make that
apparent to consumers.
Senator Markey. So, thank you. So, Mr. McGee, you are so
right. Number one, consumers don't know they are entitled to
the refunds. Number two, airline slow walk consumers who
request the refunds.
And three, airlines will offer flight credits or other
accommodations in place of cash. And I have been beating this
drum on this issue for years. In March 2020, right at the start
of the COVID crisis, I demanded the airlines provide consumers
refunds for canceled flights due to the pandemic.
In a May 2021, I pushed the airlines to commit that
travelers flight credits wouldn't expire. In December 2021, I
once again demanded airlines provide refunds to their
passengers as the Omicron variant disrupted--and in front of
this very committee, I repeatedly asked airline executives to
provide cash refunds to consumers.
Each time they have refused to make those commitments.
These companies are failing to do the right thing, and it is
time for Congress to act. Mr. McGee, do you agree that Congress
should pass legislation to ensure air travel consumers receive
the refunds that they are entitled to?
Mr. McGee. No question, Senator. American Economic
Liberties Project heartily endorses it.
Senator Markey. And that is why I am fighting to pass my
``Cash Refunds for Flight Cancellations Act,'' which will
ensure consumers receive cash refunds instead of credits. And
even before the pandemic, the airlines were tipping consumers
upside down with unfair and exorbitant fees.
While the airlines now have grabbed more than $110 billion
in ancillary fees, including $5.8 billion just for bags on
domestic flights. Mr. McGee, should Congress pass legislation
to protect consumers from these continuously rising fees?
Mr. McGee. No question. The junk fee problem--really, the
airline industry is the poster child for all that is wrong with
junk fees.
Whether we are talking about transparency of fees and the
airlines have had a problem with this since the dawn of the
internet, both with mandatory charges, taxes, and fees that
passengers have no choice about. And with the, ``ancillary
fees,'' which are much better described as junk fees.
We also have a problem not just with transparency, but with
the validity of fees. I testified in the House a few years ago
alongside five airline executives and Chair DeFazio asked each
of those airlines, what is your back-end cost on canceling a
ticket?
And not one of the executives at those five airlines was
able to provide a cost. And yet they charge $450, $500, $300.
This is absurd. So, there are fees----
Senator Markey. So, we have to end these junk fees,
including a ban on parents having to pay any kind of fee to
have their children sitting next to them.
So, we just had to ban all of this, which is why my Fare
Fees Act would prohibit airlines from charging those fees for
bags preceding the cancellation and the change fees that are
not reasonable and proportional to the cost of the services
that are provided. And right now, it is just out of control.
They are just tipping people. Upside down at the counter
and shaking money out of consumers' pockets. So, thank you, Mr.
McGee. And thank you, Madam Chair.
Mr. McGee. Thank you, Senator.
Senator Duckworth. Senator Baldwin.
STATEMENT OF HON. TAMMY BALDWIN,
U.S. SENATOR FROM WISCONSIN
Senator Baldwin. Thank you, Madam Chair. Ms. Ansley, thank
you so much for being before the Committee today on this
incredibly important issue and for your tireless advocacy on
behalf of our veterans in Wisconsin and across the country.
Despite the original Air Carrier Access Act passing over 35
years ago, airline passengers with disabilities continue to
face significant barriers. All too often, travelers with
disabilities encounter these significant barriers, such as
damaged assistive devices and wheelchairs, delayed assistance,
unclear communications, and a lack of on-board accommodations.
As you stated in your testimony, the Air Carrier Access
Amendments Act, which is supported by dozens of veterans,
disability, and consumer organizations, would help to address
these persistent challenges.
As this committee considers reauthorization of the FAA, can
you provide some further background and detail about the need
to include that particular legislation, the Amendments Act, and
how it would improve the lives of the millions of passengers
with disabilities every year?
Ms. Ansley. Thank you for that question, Senator. The Air
Carrier Access Amendments Act is desperately needed to provide
both standards of accessibility for aircraft, but also to
improve enforcement of the law.
In terms of improved accessibility standards, I think we
only have to look at the law and its regulations to see that in
basically almost four decades since it's been passed, there has
been no innovation, there has been no improvements and no
increases in accessibility, not one.
Second, if we--having participated in efforts to try to get
lavatories that are accessible on single aisle aircraft, which
I participated in a negotiated rulemaking in 2016 on that
particular issue, we have seen that without standards we get
the catch 22 of well if standards are coming, we don't want to
do anything because then we might not comply with what the
standards are.
So, let's just put out the standards. Let's say we have
standards for people with disabilities that really mirror--you
know, we talk sometimes about not wanting to put on airlines
things that we don't put on other industries.
This is a situation where airlines are completely exempt
from something that other industries all have to comply with,
including Amtrak, Greyhound. There has been--Department of
Justice has brought cases against ride sharing companies. Not
airlines.
Senator Baldwin. You know, you are talking about
enforcement. And you noted in the 2018 FAA Reauthorization Act,
Congress tripled the fine amounts that could be assessed for
wheelchair damage or injury to passengers with disabilities.
But despite this, we have not seen the department assess any
fines allowed under that provision.
Despite there being over 1,000 reported cases and
incidences of damaged or mishandled wheelchairs and scooters in
December of last year alone. So, as you know, the Air Carrier
Access Amendments Act would require the Department to assess
civil penalties for Air Carrier Access Act violations.
Do you believe the enforcement provision in my bill will
lead to an improvement for passengers with disabilities, and
particularly our veterans?
Ms. Ansley. Yes, we definitely believe that stronger
enforcement is needed. Many times, we can't even convince our
members to file complaints because they have filed so many
complaints that had been found to be valid and yet nothing
changes.
So, we need to have certain situations where we say, you
know what, this merits filing a civil penalty. And then for
those cases to be sent to the Department of Justice. This is
not a customer service piece of--in the law.
This is a civil right that people with disabilities are
disabled veterans who fought for our country, Senator
Duckworth, to be able to travel without fear that they are
going to arrive at their destination and have their legs
broken, missing, mishandled to--that they themselves are going
to have been injured simply because they tried to fly to get to
their job, health care, everything else that we have all talked
about here today, it is a unique circumstance that no other
passenger has to deal with.
Senator Baldwin. Thank you for your powerful testimony.
Senator Duckworth. Senator Hickenlooper.
STATEMENT OF HON. JOHN HICKENLOOPER,
U.S. SENATOR FROM COLORADO
Senator Hickenlooper. Thank you, Madam Chair. I thank all
of you for being here and for your service. I want to start
with Ms. Nelson. Severe weather and severe turbulence from
unexpected and severe weather has caused serious injury to
passengers and crew. Obviously, we have seen it in news
stories.
NOAA collects and processes environmental data to provide
state-of-the-art weather predictions. A lot of people think
this is going to continue to expand due to the climate changes,
is creating exaggerations of wind shear and other causes of
disturbance--of turbulence.
Airlines uses data to avoid some sudden episodes of extreme
turbulence. How would Federal investments to improve weather
predictions help keep flight attendants and passengers safe?
Ms. Nelson. If we had better information about the
potential weather patterns and whether or not turbulence is
coming, we would have a better ability to protect ourselves.
So, on the aircraft, when we are flying, actually before we
take off, when we have the briefing with the flight deck, we do
talk about weather throughout the entire flight and what the
forecast is, and determine whether or not it's safe to get up
right away if we need to stay down for another 30 minutes,
whatever it is.
If we have better technology to be able to detect weather
patterns and weather events, and to be able to detect
turbulence such as clear air turbulence that is unseen. You
have no warning for that. Then we have a better ability to
protect ourselves.
So, when we are out in the cabin with the 300-pound
beverage cart and clear air turbulence hits, we are not only
flying to the ceiling, so is the beverage cart, and it is
likely coming down on us. I was out of work, actually for a
couple of months with a similar injury, only moderate
turbulence though.
But predicting what the weather patterns are will give us a
better ability to have that seatbelt sign on, to be able to
protect ourselves, to be able to stow items away so that they
are not projectiles in the cabin. And it is critical for the
safety of everyone on board. And you are right, these events
have become more and more frequent with the advancement of the
climate crisis.
Senator Hickenlooper. Right. And I fully expect to see--I
am beginning to see more keep the seatbelts fastened, making
sure that keep--we exercise more caution going forward. Mr.
Moyers, and we talked a little bit about the importance to
rural communities of air service. How does the lack of that air
service hurt the economic development in rural communities?
Mr. Moyers. Senator, great question. Thank you for it. It
limits our ability to attract new industries to the area. As
was stated earlier today that we--business relocated to the
Wenatchee area because of our air connectivity.
That was one of their factors. As we have seen that service
diminish over time, that that is a challenge for their people
to move back and forth from their headquarters.
The comments that I receive from folks that are business
owners and operators, is it is adding more time for their
travel to be able to get to and from that, if they can't
connect out of their home or where their business is located,
driving that extra 3 hours to get on a plane in one direction,
and other three to come back.
Sometimes that means that they are adding a day on either
end of their operation to just so it is less efficient.
Senator Hickenlooper. Right. And add a burden. We have in
Colorado, we have Grand Junction, Durango, even Pueblo have
restrictions. They have had to cut back on some of their air
service.
And in one case, it was after a company had expanded and,
you know, taken off the space, hired a bunch of people, and all
of a sudden, they lost their connection. It is a challenge.
Mr. Moyers. It absolutely is. When we applied for our and
received our most recent SCADC Grant back in 2018, we had 90
different businesses and folks that contributed local match to
the money we received from the DOT. Those are businesses that
were expecting service to be there. That was 2018. We still
haven't realized the benefit of that.
Senator Hickenlooper. It is very frustrating. Mr. McGee--
and there has been a bunch of discussion already about the
transparency and the issues around junk fees. How would you
look at upfront price transparency as an enhanced air
experience for all passengers?
Mr. McGee. Thank you, Senator. It is a fantastic question.
The bottom line is there has been a lot of talk about pricing
today.
And, you know, there are these statements that have been
made that pricing, for example, has gone down in the
deregulated era. Are we accounting for the fact that a full,
fair ticket 20 years ago included so many services that have
now been broken out? We do not have a good tracking of that.
The DOT tracks some fees, but not all fees. What the
industry calls ancillary fees and what we call junk fees. So,
we don't even have a sense of the cost of a ticket really in
large measure.
So, as I said earlier, there are transparency issues with
fees in every booking method imaginable, whether through the
airline, through a third party, through Expedia, online,
offline. And it is a gotcha situation.
This is, you know, this is what leads to sticker shock. So,
you go in and you look, and a family of four looks and says,
OK, well, $250 each, it is going to be $1,000. And with some
carriers, it can actually be more, twice as much for the fees
than for the actual base fare.
The irony here is that the ultra-low-cost carriers who love
their fees, they love fees for even carry-on baggage, for
boarding passes, for things that blow the minds of people that
haven't flown in a while and they suddenly find out if they pay
for a boarding pass.
The irony is, to an extent, I will give the low-cost
carriers like Spirit a little credit, they are better on their
websites, of telling people this and warning them. It is the
largest carriers, in fact, that have the most problems.
I, in fact, have a copy here from United Airlines website.
This is called the Baggage Fee Calculator. Now, this is absurd.
This is one of the largest airlines in the country. And you can
go on right now and find out what they charge you to check a
bag. You then have to put in your origin, your destination,
your date of travel.
Why? Why can't I know what the costs are ahead of time? It
is like saying you have to sign to buy a new car, and then
later they will tell you what the deluxe stereo will cost. It
is absurd. So, there are so many inherent problems on this fee
issue with transparency, with the validity.
But of all the fees, I have to say the absolute worst is
fees for families with children to sit together. On behalf of
another organization, we did a Freedom of Information Act
request, and I spent 3 days reading complaints to the DOT, and
it included children that were as young as four, three, two,
and in two cases, 1-year olds that were assigned seats apart
from their family. Children with autism, with other issues.
And I think--we have talked a lot about families hidden
fees, but we are not talking about the origin of it. Why is
this a--?
Senator Hickenlooper. Yes--you are going beyond the
question. So, I appreciate that. I think the key is
transparency.
Mr. McGee. No, question that is a big problem.
Senator Hickenlooper. I don't mind fees, I just think
people--all businesses, but airlines, especially in this
context, should be transparent about the fees. Anyway, I yield
back to the Chair.
Mr. McGee. Thank you.
Senator Duckworth. Thank you. Thank you to all of our
witnesses for your participation today. The hearing record will
remain open for 4 weeks until April 20, 2023. Any Senators that
would like to submit questions for the record should do so 2
weeks from now, by April 6, 2023.
We ask that all witness responses be returned to the
Committee by April 20, 2023, and I do apologize for having to
gavel out and run, but they called a vote 30 minutes ago and I
am trying to make it.
So, thank you all for being here. This was a very, very
good and productive discussion today. That concludes today's
hearing.
[Whereupon, at 12:05 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Maria Cantwell to
Sara Nelson
Seat Size & Evacuation Standards. A 2016 evacuation of an American
Airlines flight left one person seriously injured and 20 people with
minor injuries. The National Transportation Safety Board reported that
passengers didn't follow flight attendant instructions. The evacuation
took nearly two and a half minutes--nearly twice as long as it is
supposed to. Meanwhile, passenger seats continue to shrink: since the
1990s, seat pitch has decreased from 32 inches to 28 inches and seat
width from 19 inches to as little as 16 inches. Shrinking seat sizes
cause health risks, passenger discomfort, and create potential
evacuation hazards. The 2018 FAA reauthorization law required the
Federal Aviation Administration to set minimum passenger seat width and
pitch within one year of enactment. Almost four years later, FAA still
has not fulfilled this mandate.
Question 1. Do you agree that establishing minimum-seat size
standards are important to promoting passenger safety and
accessibility? Why is this the case?
Answer. Yes. However, additional research by the Federal Aviation
Administration (FAA) is needed before defining those minimum dimensions
to ensure passengers can safely evacuate the aircraft in 90 seconds,
avoid injuries during an accident, and does not create a stressful
environment and tension amongst passengers due to the lack of space
available per person. Additionally the FAA indicated in a 2018 letter
to Flyer Rights the FAA\1\ stated that seat pitch is unlikely to go
below 27 inches. That is absolutely the wrong direction on this issue
and as experts in the aircraft cabin we know this is the wrong
direction for safety and security. We need to make sure that these
decisions are based on a proven ability to evacuate the plane in enough
time.
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\1\ https://files.constantcontact.com/7a85813b001/d1d4f4f1-9864-
46a2-a056-69180fe2f2ed.pdf
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The Association of Flight Attendants (AFA) participated in the
Emergency Evacuation Standards Aviation Rulemaking Committee (ARC),
that was chartered to assist the FAA in carrying out the requirements
of the FAA Reauthorization Act of 2018, Public Law 115-254, Sec. 337 to
review aircraft evacuation certification with regard to emergency
evacuation system designs and crew evacuation procedures. The ARC
issued a report in September 2020 and one of the findings is that ``the
lack of data on the effects of seat pitch and width on evacuations
inhibits FAA's ability to adequately assess risk due to seat dimensions
and ensure passenger and crew safety to the extent possible in
emergency evacuations.'' \2\
---------------------------------------------------------------------------
\2\ https://www.oig.dot.gov/sites/default/files/
FAA%20Oversight%20of%20Aircraft%20Evacu
ations%20Final%20Report%20-%2009-16-20.pdf
---------------------------------------------------------------------------
AFA also provided written comments in November 2022 to the FAA
Federal docket (FAA-2022-1001) about the seat size and pitch
rulemaking. First, regarding safety evacuations as it relates to
minimum-seat size standards, we noted that in 2021 when the Civil
Aviation Medical Institute (CAMI) measured \3\ three seat pitches (28-
inch, 32-inch, and 34-inch) which represent the range in the economy
section on U.S. airlines and two seat widths (16-inch and 18-inch) on
single aisle aircraft they found that some passengers may not be able
to safely exit. We recommended to the FAA that further evacuation
research needs to include a representative range of weights, heights,
ages, mobility, baggage, and mobile devices, or a correction factor
must be applied to research findings that are based on a more limited
range of those factors and environmental factors before applying the
findings to real-world flights.
---------------------------------------------------------------------------
\3\ https://www.faa.gov/data_research/research/med_humanfacs/
oamtechreports/2020s/media
/Effects_of_Airplane_Cabin_Interiors_on_Egress_I.pdf
---------------------------------------------------------------------------
Second, we urged the FAA to consider the safest brace position,
which is defined as the lowest risk of head, neck, and leg injuries.
This means passengers need to be able to bend their upper body forward
and grasp their lower. Therefore, seat pitch minima must enable
passengers who are tall, heavy, or both to assume a safe brace
position.
Finally, another safety factor is the negative impact that too-
tight seating can have on passenger behavior. Anecdotally, passengers
who feel crowded by a small seat pitch may recline their seat back to
compensate, or they may inadvertently bump the seat in front of them as
they move in and out of the seat, all of which risks crowding and
irritating the passengers seated around them. This is problematic
because of the negative impact that disruptive passengers can have both
on flight safety and on the personal safety of passengers and
crewmembers. Economy seating layouts need to ensure an appropriate
minimum space per person to avoid unwanted and negative interactions.
Question 2. How can FAA's evacuation standards better take into
account real-life conditions including the presence of children, adults
over 60, and passengers with mobility issues, and passengers with
vision and hearing limitations?
Answer. The first time we have to conduct an emergency evacuation
should not be tested out on a real flight with panicked passengers in a
life threatening situation. This is why simulated testing that
accurately captures what we see on the planes every day is critical to
apply when determining whether we can evacuate the plane safely in 90
seconds.
Further, the U.S. Department of Transportation Inspector General
(DOT IG) found in 2020 that the FAA's process for updating its
evacuation standards lacks data collection and analysis on current
risks. This is why AFA supports Senator Duckworth's legislation, the
Emergency Vacating Aircraft Cabin (EVAC) Act, to require the FAA to
promulgate a rulemaking on aircraft evacuation standards that would
take into account various real-life considerations like you mention, to
determine if a safe and timely evacuation can occur.
______
Response to Written Questions Submitted by Hon. Raphael Warnock to
Sara Nelson
Improving the Overall Flying Experience
Question. As Congress looks to improve the overall air
transportation experience for consumers, what are the most important
considerations to be aware of and how should Congress balance airline
success, airport operability, competition, and consumer protections?
Answer. A healthy U.S. airline industry, which supports thousands
of airports and carries millions of passengers safely to their
destinations every year depends on a strong and diverse aviation
workforce. Flight Attendants, pilots, air traffic controllers, TSA
agents, mechanics, baggage handlers, gate agents, food caterers,
airport concessions, and many other critical positions that are part of
the aviation industry workforce ecosystem thrive when we have labor
contracts in place that protect, workplace rights, and we are
sufficiently staffed to carry out our duties safely and efficiently.
Often it is workers on the frontlines who are the greatest advocates
for consumer protections and the tools to address the needs of
passengers--diversity on the frontlines creates empathy and
understanding for the broad range of passengers issues. But union
protections are critical to empower workers to speak up and press for
solutions. AFA would encourage Congress to ensure strong labor
priorities are included in the upcoming FAA Reauthorization bill which
will improve the overall air transportation experience for consumers as
well. Here are some of our recommendations:
1. Improve cabin air quality on board the airplane
2. Regulate cabin temperature
3. Require a secure seat for every passenger
4. Add Naloxone nasal spray to required equipment on the plane
5. Ban violent passengers from flying on any airline
6. Increase staffing on the planes and at the gates
7. Analyze aircraft emergency evacuation standards to update for
today's reality
8. Maintain and enhance protections against fatigue
9. Update and properly resource EAS
______
Response to Written Questions Submitted by Hon. Raphael Warnock to
Trent Moyers
Interline Agreements. Georgia represents both the world's busiest
airport and a major U.S. airline, with Hartsfield-Jackson International
Airport and Delta calling the state home. Recently, a series of high
profile air travel disruptions, such as the Southwest and NOTAM
outages, highlighted the need for alternative transportation options
for travelers faced with extended flight delays or widespread
cancellations. Considering the vast amount of air travel that comes
through Georgia, and in order to prevent travelers from feeling
stranded without recourse, I believe that it is important for consumers
to have multiple transportation options available when faced with
delays and cancellations. Agreements between airlines and other modes
of transportation, such as rental car companies, taxi services, and
passenger rail are one potential avenue to providing consumers reliable
alternatives when faced with air travel disruptions.
Question. Can you speak to the existence and/or prevalence of
alternative transportation agreements between airlines and other
transportation providers like rental car companies, taxi services, and
passenger rail? If they exist, can you speak to the structure of such
agreements?
Answer. In Wenatchee, if a flight is cancelled, the airline
attempts to assist passengers by re-booking them on the next available
flight, contacting shuttle service providers to assist with passenger
travel, and/or providing information regarding car rental companies. I
am not aware of any formal agreements to offer such services. Pangborn
Memorial Airport is not a participant in any such agreement.
Question. What potential barriers exist to the establishment of
alternative transportation agreements between airlines and ground
transportation companies? What role could an airport play in
facilitating such an agreement?
Answer. Potential barriers include issues that cause unforeseen
ground transportation issues such as vehicular breakdowns, traffic
accidents, and road closures due to weather. In Washington state,
wildland fires and avalanche control are regular occurrences that can
hinder cross-state travel and underscore the need for reliable air
service. Due to the time and distance required to connect our community
to a hub airport, for Pangborn Memorial Airport increased air service
would likely play a more useful role for travelers than alternative
agreements that rely on ground transportation.
An airport's role in facilitating an agreement between airlines and
ground transportation companies is challenging, particularly at a small
airport like Pangborn Memorial which have limited staffing and
inadequate space to accommodate shuttle buses at small terminals. The
role an airport could play is to not unreasonably restrict or impede an
airline willing to execute an agreement with ground transportation
companies.
Improving the Overall Flying Experience
Question. As Congress looks to improve the overall air
transportation experience for consumers, what are the most important
considerations to be aware of and how should Congress balance airline
success, airport operability, competition, and consumer protections?
Answer. To improve the air transportation experience, Congress
should help restore air service accessibility in small communities
nationwide to pre-pandemic levels. Additional funding and greater
flexibility within the USDOT Small Community Air Service Development
Program (SCASDP) will help restore air service where communities have
lost flights since the outbreak of the COVID-19 pandemic. Rural
airports face acute challenges to provide enough funding to invest in
their infrastructure. Restoring the Federal share of AIP funding for
non-hub primary airports to 95 percent, as the Vision 100--Century of
Aviation Reauthorization Act of 2003 did, would provide much-needed
additional resources to small, rural airports.
______
Response to Written Questions Submitted by Hon. Raphael Warnock to
William McGee
Improving Fee Transparency. For many air travel consumers, there
exists a discrepancy between what they believe to be paying for a
ticket and what they end up paying, when accounting for factors such as
luggage and who they are travelling with. These discrepancies are often
not apparent when a consumer is purchasing a ticket and do not become
known until the consumer is at the airport. The Department of
Transportation is proposing a rule to improve fee transparency by
requiring fees to be disclosed as passenger-specific or itinerary-
specific line items when the consumer is purchasing their ticket.
Question. How do you believe the Department of Transportation
should approach instituting a fee transparency rule to account for the
interests of consumers and airlines?
Answer. American Economic Liberties Project strongly endorses the
``Forbidding Airlines from Imposing Ridiculous (FAIR) Fees Act,'' which
would prohibit airlines from charging unreasonable fees:
www.markey.senate.gov/news/press-releases/in-wake-of-holiday-travel-
chaos-senators-markey-blumenthal-reps-cohen-garcia-khanna-reintroduce-
legislation-to-ground-airlines-skyrocketing-fees
We believe there are multiple problems with airline fees, which
President Biden aptly referred to as ``junk fees'' in his recent State
of the Union address:
some fees are egregious, including the indefensible practice
of charging families with children under 13 to sit together
inflight
many fees are not at all proportionate to the airlines'
costs in providing such services
all fees lack the transparency that consumers require in
order to properly budget their travel itineraries without
``gotcha'' costs being added later, contributing to tremendous
sticker shock for the actual bottom line price of an airline
ticket
When it comes to transparency, AELP believes that there should be
full disclosure of ALL airline fares, taxes, surcharges, and fees so
that consumers receive all this information PRIOR to booking. This
includes both mandatory charges and ``optional'' junk fees. And such
disclosures should be made via ALL booking channels--both online and
offline--whether the ticket is sold directly via the airline or through
an accredited third-party ticket seller.
Question. What do you believe the Department of Transportation
oversight mechanism should look like to ensure airlines are following
any potential fee transparency rule?
Answer. For many years and across multiple Administrations, the
USDOT has failed to adequately identify and address airline fee issues.
The first problem is that DOT does not even track all the airline
industry's ancillary revenue from junk fees; currently DOT reports on
two fee categories--baggage and ticket changes--but some U.S. airlines
charge 40 or more separate fees. Additionally, the DOT's consumer
protection staff is overwhelmed and can barely process all the consumer
complaints about fees and other airline issues, let alone respond to
them. For this reason, American Economic Liberties Project was pleased
to learn earlier this month that DOT announced it was hiring additional
attorneys to assist with this work.
Also, for many years the DOT has had a poor track on enforcement of
violations. Regulations are only effective if airlines adhere to them
and violations are enforced with penalties. Congress should ensure that
the DOT enforces the rules it imposes on the airline industry.
Improving the Overall Flying Experience
Question. As Congress looks to improve the overall air
transportation experience for consumers, what are the most important
considerations to be aware of and how should Congress balance airline
success, airport operability, competition, and consumer protections?
Answer. The air transportation experience has reached new lows in
recent years, and the lack of competition is at the heart of these
problems. This competition problem is due to rampant consolidation
spurred by decades of mergers, acquisitions, and bankruptcies, so much
so that we are facing unprecedented concerns. There are now fewer
scheduled passenger airlines than at any time since the industry began
in the 1910s; there's an oligopoly at the top with just four major
carriers--American, Delta, Southwest, and United--controlling 80
percent of the market; and we just endured 14 years (2007-2021) without
a single new-entrant scheduled passenger airline in the US, the longest
such draught in history. American Economic Liberties Project believes
restoring the rights of passengers and providing more competition are
the two key initiatives. This will benefit not only passengers, but the
entire ecosystem of commercial aviation, including airports, labor, and
the cities and regions served by the airlines. AELP has drafted model
legislation to eliminate airline Federal preemption, so that for the
first time in 45 years consumers will have the same rights with
airlines that they do with virtually every other corporation in every
other industry. State courts, state attorneys general, and state
legislatures should have the same enforcement authority with airlines
as they do with all other industries. We are hopeful this legislation
will be introduced in the coming weeks. Here is that model legislation,
along with a Quick Take explanation: https://www.eco
nomicliberties.us/press-release/economic-liberties-releases-model-
legislation-to-eliminate-airlines-liability-shield/ In addition to
eliminating preemption and the FAIR Fees Act detailed above, there are
other key pieces of legislation that AELP strongly endorses, including:
The ``Airline Passengers' Bill of Rights,'' which among
other provisions includes compensating passengers for flight
delays and cancellations, mandating minimum seat size
standards, and providing compensation for involuntary denied
boarding: www.markey.senate.gov/news/press-releases/senators-
markey-blumen
thal-lead-in-introducing-legislation-to-bolster-airline-
passenger-protections#:
:text=Among%20a%20host%20of%20key,%241%2C350%20to%20passengers%2
0
denied%20boarding
The ``Families Fly Together Act,'' to ensure that passengers
do not have to pay fees to ensure children under 13 are seated
with their families: www.markey
.senate.gov/news/press-releases/as-president-targets-junk-fees-
and-airlines-fail
-flyers-senator-markey-introduces-families-fly-together-act-so-
parents-dont-pay-to-sit-with-their-children
The ``Cash Refunds for Flight Cancellations Act,'' which
would force airlines to pay cash refunds when they cancel
flights: https://raskin.house.gov/2023/2/raskin-markey-
blumenthal-and-cohen-reintroduce-cash-refunds-for-flight-
cancellations-act-to-protect-rights-of-airline-passengers
The ``Seat Egress in Air Travel (SEAT) Act'' addressing the
comfort, value, health, and safety concerns due to tight
airline seats and the need for the FAA to establish minimum
standards: https://cohen.house.gov/media-center/press-releases/
congressman-cohen-leads-joint-public-comment-letter-seat-act
We also believe that rather than lurching from crisis to crisis, it
is time to have a national discussion about this vital industry,
something that hasn't occurred since deregulation took effect in 1978
(despite several taxpayer bailouts in the interim). It is time to re-
examine how best to regulate the airline industry, and all
stakeholders--including consumers, airports, workers, labor unions,
ticket sellers, cities, and regions--should be a part of that
conversation.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Heather Ansley
Accessibility. Commercial aviation is the least accessible
transportation mode for passengers with disabilities. According to the
Department of Transportation, 25.5 million Americans age 5 and older
have self-reported disabilities that limit their ability to travel
outside of their homes. This means many Americans are cut off from
career opportunities and visiting their families because flying is
either not easy or not possible.
Question 1. Do you believe there is a need to establish a new
Center of Excellence at the FAA dedicated to making air travel more
accessible?
Answer. PVA believes that a new Center of Excellence at the FAA
focused on accessible air travel could help facilitate improvements in
air travel for passengers with disabilities. Establishment of such a
center, however, must not be used as an opportunity to delay action on
the development of access standards as laid out in the Air Carrier
Access Amendments Act (S. 545). Disability access standards in air
travel have already been delayed for far too long. A Center of
Excellence would need to complement, not replace, that effort.
Question 2. Given the studies conducted and actions taken since the
2018 FAA reauthorization, what further research efforts are needed to
ensure airlines can better accommodate passengers with mobility
challenges in the next five years?
Answer. In response to Section 432 of the 2018 FAA Reauthorization
Act, the U.S. Access Board worked with the Transportation Research
Board (TRB) on a study to determine the feasibility of in-cabin
wheelchair restraint systems. In September 2021, TRB released a report
titled, ``Technical Feasibility of a Wheelchair Securement Concept for
Airline Travel.'' The TRB study was unable to ``identify any issues . .
. that seem likely to present design and engineering challenges so
formidable that they call into question the technical feasibility of an
in-cabin wheelchair securement system and the value of exploring the
concept further.'' The study acknowledged that further assessment was
needed, however, ``particularly to understand how secured personal
wheelchairs are likely to perform relative to FAA's security criteria
in restraining and protecting occupants during a survivable airplane
crash or emergency landing,'' and called on the Department of
Transportation and FAA to undertake research on these issues. The TRB
also called on the U.S. Access Board to assess demand from people with
disabilities to fly while seated in their wheelchairs to inform the
number of aircraft that would need to be modified to provide meaningful
access, assuming remaining feasibility questions are satisfied.
We believe that the 2023 FAA Reauthorization Act should require the
Department and FAA to follow through on the next steps as identified in
the TRB report. If the remaining issues are addressed in a way that
does not call into question the technical feasibility of the concept,
the 2023 FAA Reauthorization Act should also require the Department to
promulgate regulations implementing requirements for in-cabin
wheelchair securement.
The 2023 FAA Reauthorization should also require the Department of
Transportation to move forward with a study recommended by the Air
Carrier Access Act Advisory Committee on the design of aisle chairs and
the use of lift devices to improve the transfer process for wheelchair
users. Specifically, the Committee recommended ``a study on the design
of aisle chairs and the use of lift devices such as the Eagle Lift to
improve the process of aisle transfers for passengers who use
wheelchairs and, in that process, consider how these devices may impact
the safety of individuals who provide physical assistance.'' Aisle
chairs are designed to meet the needs of the aircraft aisle and not the
individuals who must use them. These devices are extremely narrow,
often in disrepair, cannot be independently propelled, and have little
or no padding. According to the Committee, the purpose of such a study
would be ``to gather important data that could improve the transfer
process for passengers who use wheelchairs.'' It could also lead to the
development of aisle chair specifications.
Question 3. Accessibility is more than just a consumer issue for
passengers in wheelchairs. An injury from an improper transfer or a
damaged wheelchair can endanger the passenger's life, health, and
independence. Can you describe the critical importance of designing
aircraft to allow for passengers to roll aboard in their wheelchair?
Answer. Airlines must be required to operate aircraft that meet the
needs of passengers with disabilities, particularly wheelchair users,
because of the inherent safety risks of disability-access barriers.
During the preboarding process, wheelchair users have to travel to the
bottom of the jetway in their own customized wheelchair. It is on this
sloped area that they must transfer from their personal wheelchair into
an aisle chair, which is a small, narrow wheelchair. This device has no
means of self-propulsion. Some individuals are able to perform the
transfer independently, others need the assistance of air carrier
personnel. Air carriers use several different types of aisle chairs to
assist passengers with mobility impairments during the boarding
process. Often these aisle chairs are poorly designed and in disrepair.
In some cases, the aisle chair can cause harm because it does not have
proper padding, which can lead to skin abrasions, bruises, or sores.
The assistance from personnel in trying to coordinate the transfer
and the slope of the jetway can make this a precarious procedure. In
our experience, air carrier personnel and contractors are not properly
trained on how to physically lift/transfer a person from a wheelchair
to an aisle chair. They are also too often unfamiliar with the
securement straps. Once securing the passenger, assistants must
traverse the aisle chair backwards into the plane, down the narrow
aisle, and then transfer the passenger from the aisle chair into the
passenger seat.
Upon entering the plane, accessibility diminishes rapidly. The
aisle width of the plane is typically smaller than that of the
individual being transported on the aisle chair. This means that
passengers are bumped and scraped from row to row to get to their seat,
wherever that might be on the aircraft. Despite requirements for
disbursed removable armrests to facilitate transfers, aircraft
consistently have fixed armrests in first and business classes of
service, making the process more difficult.
Once preboarded, the rest of the passengers enter the plane. Those
that are seated in a wheelchair user's row, have to climb over them if
the individual is seated in the middle or aisle seat. This causes
further discomfort and aggravation to the wheelchair user and the other
passengers. Upon getting to the destination, the deplaning process is
similar to the boarding process. The wheelchair user is the last person
off the plane no matter if it is their connector city or final
destination. Sometimes, the aisle chair is delayed.
In addition to the difficulties that passengers with limited
mobility face in boarding the plane, they must also worry about the
stowage of their assistive device. Damage to a wheelchair can be a trip
altering event as well as pose significant health concerns for the
passenger who depends on it for mobility. Customized wheelchairs are
not easily replaced if damaged.
Wheelchair users must be able to avoid this entire process by being
able to fly while seated in their device. This would increase their
safety by protecting them from injuries in the boarding/deplaning
process and ensure that their assistive device is not damaged. At the
very least, wheelchair users should have access to a passenger seat or,
if feasible, a wheelchair spot adjacent or next to a boarding door.
This would allow the individual to avoid the aisle chair.
Buses had to be modified to safely and efficiently accommodate
wheelchairs. Airplanes should be no different and Congress must require
the Department of Transportation to develop accessibility standards,
including the ability to board and, if feasible, fly from a customized
wheelchair. Otherwise, the current safety risks and loss of dignity
encountered by wheelchair users will never be fully addressed.
Until wheelchair users are able to safely board and deplane using
their own wheelchairs, they should have access to first row/front of
cabin seating at the price of an economy ticket. This would save their
bodies from the injuries that occur when they have to be dragged
through the plane to their section and decrease the amount of time they
spend on an aisle chair. It would also likely mean more room and would
save the wheelchair user from being climbed over by their fellow
passengers.
______
Response to Written Questions Submitted by Hon. Raphael Warnock to
Heather Ansley
Improving the Flying Experience. I believe that it is important for
consumers to feel safe and comfortable during their flying experience
on an airplane. Part of that is ensuring all passengers can access a
lavatory and that any and all equipment a passenger needs, like a
wheelchair, is safe from the moment a passenger gets to the airport
until the moment they reach their destination.
Question. In your testimony, you highlight that a majority of
Paralyzed Veterans of America survey respondents avoid air travel
unless absolutely necessary due to a lack of lavatory access. As the
Department of Transportation works on rulemaking surrounding accessible
lavatories, what are some considerations that would allow for a more
efficient and robust implementation of any potential rule?
Answer. The Department of Transportation's proposed rule meets a
pressing need to provide accessible lavatories on single-aisle
aircraft, and the Department should publish a final rule as soon as
possible. Given the severity of the need and the Department's delay in
publishing it, PVA's comments on the proposed rule urged the Department
to shorten the extended implementation timelines agreed to as part of
the negotiated rulemaking held in 2016. Specifically, the Department
should use its authority, to the extent possible, to subtract the six-
year delay in promulgating the proposed rule from the deadlines for
compliance, as doing so would be consistent with the understanding of
the participants in the negotiated rulemaking. And the Department
should reject any arguments to delay implementation based on cost or
design because the costs of further delay outweigh any implementation
costs.
Question. In your testimony, you also highlight issues related to
staffing and training for airline workers that help wheelchair-bound
passengers navigate on and off the airplane. What do you believe needs
to be included in the training provided to these workers? What role do
you envision Congress playing in the development and implementation of
wheelchair assistance training by airlines?
Answer. In order to ensure a safe and dignified air travel
experience for passengers with disabilities who use mobility devices,
it is imperative that wheelchair attendants be fully trained and able
to subsequently demonstrate to a superior on the job their ability to
properly assist a passenger throughout the airport, as needed, and on
and off the aircraft. This means the attendant has a proficient
knowledge of how to safely use the aisle chair, including the use of
all straps, brakes, and other safety features. The attendant must also
be proficient in the use of techniques to assist in the transfer of
passengers to and from their wheelchair, the aisle chair, and the
aircraft's passenger seat, either by physically lifting the passenger
or deploying a mechanical device for the lift/transfer. But most of
all, wheelchair attendants must be able to effectively communicate and
take instruction from the passenger. Disabled passengers know what
their personal needs are and how to best assist them. Only when
wheelchair attendants have completed all training, which must be hands
on, and successfully demonstrated that training on the job to a
superior should the attendant be considered ready to assist someone who
must board or deplane using an aisle chair. Furthermore, attendants
should be required to complete refresher training every six months and
be recertified yearly on the job by a superior in order to remain
qualified for providing aisle chair assistance. Attendants must also be
trained on how to ensure that after each use the aisle chair is in
proper working order, cleaned as needed, and stowed so as to be readily
usable by the next passenger.
Congress should include language in the upcoming FAA
Reauthorization directing the Department to move forward with its
pending regulation, ``Ensuring Safe Accommodations for Air Travelers
with Disabilities Using Wheelchairs'' (RIN 2105-AF14). In addition,
Congress should require that the Department's rule meet our suggested
training requirements.
Improving the Overall Flying Experience.
Question. As Congress looks to improve the overall air
transportation experience for consumers, what are the most important
considerations to be aware of and how should Congress balance airline
success, airport operability, competition, and consumer protections?
Answer. The most important consideration for Congress must be to
ensure that passengers with disabilities, particularly wheelchair
users, have safe and dignified access to air travel. The systemic
discrimination in air travel against passengers with disabilities is
evident in the lack of lavatory access; the number of lost, damaged, or
delayed (mishandled) wheelchairs and scooters; and the injuries
wheelchair users regularly receive in the boarding and deplaning
process. No other group of passengers faces such treatment in
commercial air travel. Many wheelchair users report being treated like
a piece of luggage--an inanimate object--during the boarding and
deplaning process.
Despite the focus in the 2018 FAA Reauthorization Act on improving
air travel for passengers with disabilities, the percentage of
wheelchair or scooters mishandled by large domestic airlines was
exactly the same in 2022 as it was in 2019. Unless Congress takes
decisive action by implementing a requirement for accessibility
standards for aircraft and improving enforcement of the Air Carrier
Access Act by including the Air Carrier Access Amendments Act (S. 545)
in the upcoming FAA Reauthorization, the situation of passengers with
disabilities will not improve.
______
Response to Written Question Submitted by Hon. Tammy Duckworth to
Jeffrey N. Shane
Topic: Market Failure for Passengers with Disabilities
Question. In your written testimony, you claimed that there is a
role for regulation where there is a market failure. Specifically, you
stated that ``There is clearly scope for beneficial regulation in
circumstances where market forces can't be expected to resolve an
issue. The Air Carrier Access Act has made things better for disabled
passengers, for example, but we can and should do more.''
Can you explain why the market has failed passengers with
disabilities and why you feel it would be appropriate for the
FAA to take additional measures to enhance accessibility?
Answer. Thank you for your question and the opportunity to
elaborate further. The Air Carrier Access Act of 1986 (Pub. L. 99-435)
and significant appropriations dedicated to improving access in the
airport environment have been of great benefit to individuals with
disabilities--including those using wheelchairs and other mobile
devices. Thanks to the ACAA and rules issued by the Department of
Transportation, even aircraft cabin interiors now accommodate disabled
passengers more effectively than before, with moveable aisle armrests,
accessible lavatories on wide-body aircraft, in-cabin wheelchair
storage, and other features. Without minimizing the importance of these
improvements, however, others can and should be pursued to realize more
fully the goal of non-discrimination against passengers with
disabilities.
Two significant barriers to air travel by people who use
wheelchairs continue to compromise the quality of their experience.
First there is currently no way a passenger can board an aircraft in a
personal wheelchair and remain in that chair during the flight. Second,
the loading and unloading of personal wheelchairs into cargo holds--
particularly motorized chairs which are very heavy--too often result in
damage that renders the chairs unusable until repaired. Moreover,
without the proper equipment and training, airline baggage handlers are
themselves often in danger of injuries due to the heavy weight and
bulkiness of some chairs.
I am confident that no airline wants to deny passengers with
disabilities the right to fly. As Congress understood in passing the
ACAA, however, this is one area where the cost of ``doing the right
thing'' simply can't be recovered by market forces. Every airline in
our deregulated and highly competitive air travel market knows that it
would place itself at a significant economic disadvantage vis-a-vis
competitors by making the significant investments required to mitigate
these problems beyond what they have done to date. Accordingly, the
airline industry, left to its own devices, cannot reasonably be
expected to make further progress on its own. Because there is no
effective, market-based incentive to improve the experience of disabled
passengers, Federal regulation is required to create standards that are
applied and enforced across the board so that every competitor is
placed in the same position and none can benefit by failing to do the
right thing. Equally important, regulation would create a robust
incentive for the development and manufacture of the equipment
necessary to improve the experience of passengers who use wheelchairs
and reduce the damage to chairs that so many travelers have
experienced.
Despite the improvements in the airport and cabin realized to date
thanks to Federal regulation and investment, virtually no Federal
resources have been devoted to research and development into ways for a
passenger to board an aircraft in their own wheelchair and, when
properly secured, remain in that chair for the duration of the flight.
Indeed, the only significant work on the technical side of this issue
is currently being conducted by a non-profit organization, All Wheels
Up, which relies entirely on charitable donations.
Section 432 of the FAA Authorization Act of 2018 (Pub. L. 115-254)
required a study by the Architectural and Transportation Barriers
Compliance Board (``Access Board'') to determine the feasibility of in-
cabin wheelchair restraints. The Access Board, in turn, commissioned a
study to be done under the auspices of the Transportation Research
Board, an arm of the National Academies of Science, Engineering and
Medicine. That study was completed in 2021 and involved a wide range of
experts from manufacturers, air carriers, consumer groups, engineering
organizations, unions, and other relevant categories. The detailed 146-
page report was thoroughly peer-reviewed. The committee that prepared
the report summarized its findings as follows:
``After reviewing the available information. . ., the committee
did not identify any issues in this preliminary assessment that
seem likely to present design and engineering challenges so
formidable that they call into question the technical
feasibility of an in-cabin wheelchair securement system and the
value of exploring the concept further. While the report's
analyses and findings suggest that equipping enough airplanes
with securement systems to provide meaningful levels of airline
service would require substantial effort, the types of cabin
modifications required to provide the needed space and
structural support would likely be of moderate technical
complexity for many individual airplanes. Further assessments,
including efforts to fill the information gaps identified in
this report, would appear to be warranted, particularly to
understand how secured personal wheelchairs are likely to
perform relative to FAA's safety criteria in restraining and
protecting occupants during a survivable airplane crash or
emergency landing. The committee believes that such follow-on
assessments are warranted because the many feasibility issues
that could indeed be assessed using the information at hand
appear to be manageable from a technical perspective. Concerted
efforts to understand the remaining technical uncertainties
through more focused analysis and testing, as described in the
recommendations offered. . .by the committee, would enable more
informed public policy decisions about the feasibility and
desirability of in-cabin wheelchair securement systems.''
On the basis of these conclusions, it is clearly time for Congress,
in the reauthorizing legislation it must enact by later this year, to
give the FAA explicit authority to accelerate follow-up research and
development into viable wheelchair restraint systems, taking full
advantage of work already done. If the results of this work demonstrate
the feasibility of systems consistent with established airworthiness
requirements, the FAA should be authorized to promulgate standards for
the manufacture and installation of such systems as well as for the
manufacture of the associated wheelchairs. The legislation should
prescribe completion by a date certain. Assuming such systems can
indeed be certified, the legislation should require the FAA to
establish appropriate mandates for the installation of such systems in
all new aircraft. If the retrofitting of existing aircraft is found to
be technically and economically feasible, retrofitting should also be
required on a phased basis. The end result would be a far more
satisfactory travel experience than passengers with disabilities are
having today and a fuller realization, at long last, of the goals of
the Air Carrier Access Act.
Finally, with respect to the problems related to loading and
unloading of conventional wheelchairs in cargo holds, mechanical lifts
are available that should be deployed more widely. If even a small
portion of the airport infrastructure funds recently appropriated were
used for the purchase of such equipment, it could be made available to
airline baggage handlers on a shared basis. With a modest amount of
training, the use of such equipment would reduce or eliminate both
damage to wheelchairs and injuries to airline workers.
______
Response to Written Questions Submitted by Hon. Raphael Warnock to
Jeffrey N. Shane
Interline Agreements. Georgia represents both the world's busiest
airport and a major U.S. airline, with Hartsfield-Jackson International
Airport and Delta calling the state home. Recently, a series of high
profile air travel disruptions, such as the Southwest and NOTAM
outages, highlighted the need for alternative transportation options
for travelers faced with extended flight delays or widespread
cancellations. Considering the vast amount of air travel that comes
through Georgia, and in order to prevent travelers from feeling
stranded without recourse, I believe that it is important for consumers
to have multiple transportation options available when faced with
delays and cancellations. Agreements between airlines and other modes
of transportation, such as rental car companies, taxi services, and
passenger rail are one potential avenue to providing consumers reliable
alternatives when faced with air travel disruptions.
Question. Can you speak to the existence and/or prevalence of
alternative transportation agreements between airlines and other
transportation providers like rental car companies, taxi services, and
passenger rail? If they exist, can you speak to the structure of such
agreements?
Answer. Thank you for the interesting question. Regrettably, I have
no personal knowledge of such arrangements. I wonder, however, given
the average distance of most domestic flights within the U.S., whether
many passengers would opt for a bus or rental car, or even rail where
it might be available. Where weather is the cause of the disruption,
travel in any mode might not be advisable. And in a great many cases,
arrival at a passenger's destination is likely to be sooner through a
rebooking on the airline than through surface transportation, even
after a night in a hotel. There are certainly relatively short-haul
flights for which ground transportation might be a feasible option but,
again, I am not aware of any existing arrangements in that regard.
The Southwest meltdown near the end of last year prompted a
discussion of whether airlines should be required to provide seats for
their passengers on other airlines in the event of a cancellation.
While well-intentioned, this seems like a wholly impractical
suggestion. One of the great successes of our deregulated market is
that load factors on most carriers and on most flights are quite high.
No longer do we waste fuel by flying half-empty airplanes, as was often
the case prior to 1978. The consequence of this more efficient
utilization of aircraft, however, is that even if there were a
requirement that an airline with a cancellation find seats for affected
passengers on another carrier, it probably wouldn't be able to do so.
The more important goal of public policy, I believe, is to
establish a structure for the operation and consistent modernization of
our air traffic control system that minimizes disruptions. There will
always be unexpected reasons why a flight has to be canceled, but such
cancellations should be few and far between.
Question. What potential barriers exist to the establishment of
alternative transportation agreements between airlines and ground
transportation companies? What role could an airport play in
facilitating such an agreement?
Answer. I am not aware of any barriers to the establishment of such
arrangements, although, as suggested in my answer to the previous
question, I think passengers are not likely to treat ground
transportation as an acceptable substitute except in the case of
relatively short-haul flights. Where, for example, bus transportation
is provided in lieu of air transportation, passengers would expect a
refund of the difference between the air fare they paid and the cost of
a bus ticket.
Airports clearly have an interest in not having their terminals
filled with stranded passengers and therefore have an incentive to
encourage the establishment of such arrangements where they might be
viable. Their role would be limited to that of a broker and
facilitator, however. The actual establishment of such arrangements,
however, would require willing parties.
Improving Fee Transparency. For many air travel consumers, there
exists a discrepancy between what they believe to be paying for a
ticket and what they end up paying, when accounting for factors such as
luggage and who they are travelling with. These discrepancies are often
not apparent when a consumer is purchasing a ticket and do not become
known until the consumer is at the airport. The Department of
Transportation is proposing a rule to improve fee transparency by
requiring fees to be disclosed as passenger-specific or itinerary-
specific line items when the consumer is purchasing their ticket.
Question. How do you believe the Department of Transportation
should approach instituting a fee transparency rule to account for the
interests of consumers and airlines?
Answer. DOT has long required that airlines disclose all applicable
fees prior to purchase. The following statement is from DOT's website
It is relatively easy to compare ticket prices using the
Internet (through airline websites, online travel agencies,
etc.). DOT requires airlines and travel agencies that display
ticket prices to advertise the total price that a consumer must
pay to purchase a ticket. Wherever an airfare is advertised,
such as on a website, in an e-mail, or during the booking
process, the fare price must include all applicable government
taxes and fees, and any mandatory carrier-imposed surcharges.
DOT also requires that baggage fees, if any, be similarly
disclosed. Its website explains this requirement as follows:
Airlines are required to provide information about their
baggage fees through: (1) a clear link from the airline's
homepage to a page or place on the airline's website that
displays all of the airline's baggage fees and other optional
service fees, and (2) a link on the first screen that appears
with a fare quotation for a specific itinerary.
Despite the extraordinary level of transparency already required of
airlines (to the best of my knowledge, no other provider of a product
or service is required by the U.S. government to display an ``all-in''
price (including taxes), DOT has wrestled with further requirements
over most of the past decade. A brief history of this effort
illustrates how an agency can be whipsawed by the competing policies of
successive administrations.
In 2014, during the Obama administration, the Department issued a
Notice of Proposed Rulemaking entitled ``Transparency of Airline
Ancillary Service Fees and Other Consumer Protection Issues.'' 79 Fed.
Reg. 29970 (May 23, 2014). Following its receipt of ``significant
comments,'' DOT later issued a Supplemental NPRM entitled
``Transparency of Airline Ancillary Service Fees,'' published on the
last full day of the Obama administration. 82 Fed. Reg. 7536 (Jan. 19,
2017).
At the end of that same year, during the Trump administration, DOT
withdrew the Supplemental NPRM, noting correctly that existing
requirements already provided consumers information regarding fees for
ancillary services. 82 Fed. Reg. 58778 (Dec. 14, 2017). DOT also noted
that the withdrawal was consistent with President Trump's Executive
Order 13771, ``Reducing Regulation and Controlling Regulatory Costs.''
On January 20, 2021, immediately following his inauguration,
President Biden issued Executive Order 13992, revoking Executive Order
13771, among others.
President Biden later issued Executive Order 14036, ``Promoting
Competition in the American Economy'' (July 9, 2021), which apparently
encouraged DOT to pick up where it had left off in its quest to make
airline pricing even more transparent than it already was.
Accordingly, last October DOT issued yet another Notice of Proposed
Rulemaking, once again entitled ``Enhancing Transparency of Airline
Ancillary Service Fees,'' 87 Fed. Reg. 63718 (Oct. 22, 2022). The
comment period closed last December 19 and DOT is presumably
deliberating now over next steps.
My own view is that the only current deficiency in the transparency
of airline pricing relates to families traveling together, and only on
some airlines. Too often, merely to ensure that they will sit next to
their child--even if not in a premium seat--parents have to purchase
seats in advance for a price that can be avoided by passengers having
no such need. Parents should not have to pay more for the ability to
sit next to their children unless they wish to sit with their children
in premium seats that any passenger would be required to pay for.
Recognizing that this has become the source of a great many customer
complaints, some airlines have already begun to address the issue. The
pending NPRM would require clearer disclosure of airline policies
regarding family seating, which seems like an appropriate first step. I
believe that all airlines need to address the issue quickly and
satisfactorily or a more intrusive solution is likely to be imposed on
them by DOT.
Improving the Overall Flying Experience
Question. As Congress looks to improve the overall air
transportation experience for consumers, what are the most important
considerations to be aware of and how should Congress balance airline
success, airport operability, competition, and consumer protections?
Answer. Thanks for thoughtful question. In my view, Congress has
already done the most important thing possible in the interest of air
transportation consumers: it passed the Airline Deregulation Act of
1978. That legislation, nothing less than a miracle of public policy,
revolutionized and democratized air travel. Most economists maintain
that the benefits to consumers from the inter-airline competition
enabled by the ADA have been enormous. We not only enjoy lower fares,
but also a variety of airline models, from full-service airlines to
ultra low-cost airlines.
As a direct result of the affordability engendered by that
legislation, the vast majority of Americans have flown and have strong
opinions about the airline industry. Members of Congress, who fly more
than most, also have strong opinions. The temptation to tamper with the
wholly private, market-based airline business through legislation and
regulation can therefore be powerful.
Unless the issue is one that we can't reasonably expect to be
solved by market forces, reinforced by DOT's long-standing transparency
requirements, it is a temptation that should be resisted. It would be
inappropriate for Congress to second-guess airline managers on most
customer issues. We can trust competition to deliver optimal results.
There certainly are issues that we can't reasonably expect to be
solved by market forces. The experience of disabled passengers, for
example, notably those using wheelchairs, continues to fall short of
the goals expressed in the Air Carrier Access Act (Pub. L. 99-435), and
thus is one such issue. The difficulty smaller communities experience
in attracting adequate scheduled air service, exacerbated since the
pandemic by a serious shortage of pilots, is another. Ironically,
Congress unnecessarily exacerbated the pilot shortage by enshrining a
1500-hours-of-flying requirement in law as a prerequisite to obtaining
a commercial pilot's license, despite the widespread view of experts
that there are better and far more efficient ways to train a pilot.
There is another way that Congress can and should enhance the
experience of aviation users: separate the Air Traffic Organization
from the rest of the FAA. First, the FAA would regulate our air traffic
control system at arm's length, as opposed to treating it as a member
of the family. Second, by being unshackled from the annual
appropriations process, the ATO would be able to pursue further
modernization in a far more efficient way, financing improvements
through debt in the way other large, capital intensive, technology
driven entities do, with lower costs in the bargain. If our national
air space were managed more efficiently by an entity not hamstrung by
government procurement and civil service rules and the always uncertain
appropriations process, consumers would enjoy a far more satisfactory
experience.
The bottom line is that, other than in a pandemic or some other
catastrophe that suddenly dries up the air travel market (e.g., 9/11),
Congress need not worry about the success of airlines. Let them take
care of themselves. The Bilateral Infrastructure Law provided a welcome
infusion of funds to airports, and we are already seeing improvements
in a a number of cities. The Department of Justice has ample authority
within the antitrust laws to ensure that the market remains highly
competitive, and DOT has ample authority in Title 49 to protect other
interests of consumers. Congress should take enormous satisfaction from
the work it has already done. Efforts to do more--beyond addressing the
issues I have mentioned (accessibility, service to small communities,
FAA reform)--are not likely to end well.
______
Response to Written Questions Submitted by Hon. Ted Cruz to
Jeffrey N. Shane
Question. One major airline--United Airlines--has said that last
year, over a four-month period, 40 percent of its flight delay minutes
and 75 percent of its cancellations were due to the FAA's air traffic
management. The FAA has been painfully slow to modernize its air
traffic systems and improve efficiency in the airspace, as was evident
with the recent NOTAM failure.
a. Do you believe consumers would be better off if the FAA were to
spin off the Air Traffic Organization (ATO) into a private
organization, where it can more quickly improve technology and
services?
Answer. I appreciate the question. The benefits from spinning off
the Air Traffic Organization--whether to a wholly private organization
or even to a government corporation unshackled from the annual
appropriations process--are probably incalculable. Those benefits would
of course flow to consumers, but also to airlines, to air traffic
controllers, and indeed to the government itself. It is simply
impossible to find a coherent justification for the current structure,
given its conspicuous deficiencies.
Of all of the networks America depends upon for its prosperity and
economic growth--including water and sewer services,
telecommunications, electricity, railroads, natural gas, broadband,
home entertainment--only one, our air traffic control system, requires
annual appropriations from Congress before money can be spent.
Imagine for a moment that the United States had set up its air
traffic control system as a not-for-profit corporation at the outset.
It has always been funded by user fees, it has long enjoyed access to
the bond market, and it has consistently managed upgrades in keeping
with the pace of technology and pursuant to a disciplined capital
budget. Specifically, it has financed upgrades through debt with no
uncertainty as to the availability of funds, thereby ensuring the
greatest possible value for money.
Now somebody comes along and proposes that, despite its success, we
abolish that organization and place responsibility for air traffic
management within the FAA. Our premier aviation safety regulator would
now be dual-hatted as a provider of air traffic services as well. No
borrowing authority, a newfound fealty to Federal procurement and civil
service rules, and with funding based on a complicated assortment of
taxes and fees, made available only to the extent authorized and
appropriated by Congress regardless of how much money those taxes and
fees have actually generated. Perhaps the strangest anomaly of all is
that there would no longer be arm's-length FAA regulation of the air
traffic organization's safety performance. It would now be ``part of
the family.''
It seems pretty clear that a proposal to change the imaginary
structure I've described to the structure we actually have would be
rejected out of hand. It's not easy to understand, therefore, why we
cling to that structure so slavishly.
The FAA rightly deserves credit as a global leader in the
regulation of aviation safety. Indeed, its long history of assistance
to foreign governments has undoubtedly contributed to the enhancement
of flight safety everywhere. It is notable, therefore, how many of
those other governments today have rejected the FAA's organizational
structure and removed air traffic control from the purview of their
aviation safety agencies. The Eno Center for Transportation wrote in
2017 that more than 60 countries have removed ATC responsibility from
the agencies responsible for aviation safety, many placing it entirely
outside of government. The results have been consistently positive.
It should also be noted that the FAA's current structure is
inconsistent with the recommendations of the International Civil
Aviation Organization, despite ICAO's long history of respecting the
standards and protocols adopted by the FAA. Specifically, in its Safety
Oversight Manual (Doc 9734), ICAO writes that ``[c]lear distinction and
separation of authority and responsibility between the state regulatory
authority and the State operating agency should be maintained.''
b. If the FAA is currently failing to enable aircraft to fly more
efficient flight paths, thereby wasting time and fuel, the benefits of
a more efficient ATO seem to include reducing greenhouse gas emissions
from airplanes. What other benefits might one expect from a more
efficient ATO?
Answer. Since the launch of the NextGen modernization program in
2004, the FAA has certainly made important progress in enabling
aircraft to fly more efficient flight paths. The complaint by some
observers that it is taking too long to ``complete'' NextGen falsely
assumes that there is a clear end state that will represent completion.
The NextGen initiative was launched in recognition of a need to
accelerate the adoption of available technologies that promised both
greater efficiency and even greater safety. It has achieved much of
what was envisioned but is an ongoing process of improvement that
should continue for as long as the technology of air traffic management
continues to evolve. Management of the national air space today
requires the Air Traffic Organization to address a host of challenges
that weren't issues in 2004--integrating uncrewed vehicles into the
system and accommodating frequent space launches with minimal
disruption of scheduled air traffic.
That is not to say, however, that NextGen has been as efficiently
managed as might have been possible in a more sensible structure. The
Air Traffic Organization is a complex, capital-intensive, technology-
driven enterprise that simply cannot be managed optimally by an agency
that has to compete for funding with other elements of government,
first within the Executive Branch and then through the Congressional
appropriations process. That the FAA's budget for facilities and
equipment today is at approximately the same level as it was in 2009
speaks volumes about why we don't yet have a state-of-the-art system.
It should be no surprise that improvements in the management of air
traffic have taken too long to adopt, frustrating airlines and air
travelers alike. A more efficient and nimble ATO--unshackled from the
constraints of the appropriations process--would clearly be in a
position to deploy future improvements on an accelerated timetable at
lower costs than the FAA currently incurs. Those improvements would not
be limited to the actual management of air traffic, but also to the
ATO's internal systems themselves. The NOTAM system shutdown this past
January was undoubtedly attributable, at least in part, to insufficient
attention to maintenance and ensuring adequate capacity to operate
smoothly during periods of peak traffic.
A more fit-for-purpose structure for air traffic management would
clearly be more efficient at delivering improvements that currently
remain in the pipeline for too long, thereby enhancing the reliability
of schedules, minimizing disruptions, engendering a less stressful
experience for air travelers, and of course delivering an even safer
system in the bargain.
Of equal or greater importance is the conflict-of-interest issue.
Please understand that it is not my intention to criticize in any way
the stalwarts who go to work every day and devote themselves to
maintaining the safest aviation system in the world. Despite a
structure that clearly compromises its ability to deliver progress in
real time, the FAA is a great agency, characterized by a justly proud
culture, and populated by a cadre of dedicated public servants who
deserve our gratitude. I collaborated closely with the FAA for many
years while in the Office of the Secretary of Transportation and was
consistently impressed with the dedication and competence of the people
I worked with. It was an honor to be their colleague.
Still, we have begun to see some fraying around the edges of the
system. There were a number of worrisome near-catastrophes earlier this
year that observers have attributed to complacency--either on the part
of pilots or controllers. It is fair to assume that arm's length safety
regulation of the Air Traffic Organization by the FAA--in a structure
in which the two organizations are entirely separate from each other--
would enhance further the quality of safety in our air transportation
system. Separation would change the conversation. In my answer to the
previous question I referred to the preponderance of countries that
have separated air traffic management from safety regulation as well as
ICAO's guidance in that regard. There are good reasons to be concerned
about maintaining a system in which our aviation safety regulator is
also a provider of air traffic services. The public interest would
unquestionably be better served if the two functions were wholly
separated in keeping with what has become an international norm.