FAA Reauthorization Act of 2018 Gives the Nod to Passenger's Rights, Both in the Air and On the Ground

Updated April 30, 2018 - In a surprising turnaround of its usual tilt toward the interests of the aviation industry, the United States House of Representatives passed, on April 27, 2018, its version of the six year budget reauthorization for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2018 (“Reauthorization Act”), a number of provisions that appear to address the long smoldering, and vociferously expressed, concerns of the flying public with, among other things, the unannounced “bumping” of passengers with reservations and paid tickets to make way for airline employees; airline employees’ difficulty in dealing with passengers in such stressful situations; the size and orientation of aircraft seats that have been radically shrinking in order to make room for more passengers; and even the absence of ground transportation accessing the airport itself.  

First, Reauthorization Act, § 406, amends the underlying Federal Aviation Act, 49 U.S.C. § 41712(a) to make it an “unfair or deceptive practice” for an air carrier (i.e., one engaged in commercial operations, see 14 C.F.R. § 250) to “involuntarily deplane” a passenger already on the aircraft if the passenger is “(A) traveling on a confirmed reservation; and (B) checked in for the relevant flight prior to the check in deadline.”  Doubtlessly, this change came in response to the public outcry surrounding the shameful scene of a physician passenger being dragged off an aircraft after having paid and been seated, to make room for an airline employee who was late for a connecting flight.  While § 406 also contains a “savings clause” that allows a pilot in command to react to disorderly or dangerous behavior, the clear intent of § 406 is to relieve passengers of any concern for a blameless, but nonetheless violent, confrontation with airline and/or airport employees.
 
Similarly, § 540 requires a study of the “training received by customer facing employees of air carriers,” the results of which will be submitted to Congress within one year of the passage of the Reauthorization Act.  In other words, the Secretary of Transportation is tasked with determining if airline employees are adequately trained, given the repeated issues and continuing complaints that have arisen from the public in recent years.  
 
Further, § 541, in a clear response to oft-repeated passenger dissatisfaction with the seats they are required to buy, seeks to determine the “minimum dimensions for passenger seats” that “are necessary for the safety and health of the passengers.”  
 
Last, but certainly not least, in a provision of importance to airports as an industry as well as to their passengers, § 542 provides for a study at the “nation’s 10 busiest airports” of potential solutions to the growing problem of “traffic congestion and passenger travel times between urban commercial centers and airports.”  In doing so, the study anticipates changes in the “guidelines and requirements” for the use of Airport Improvement Program (“AIP”) funds, which currently substantially limit the expenditure of funds for roadway and other surface transportation improvements to those occurring on the airport itself.  FAA Order 5190.6B, § 15.9(i)(2), p. 15-6.  The dramatic change in this policy set forth in the FAA Reauthorization Act will allow the use of AIP funds to facilitate development of an extended roadway network that would bring passengers to the threshold of the airport and continue into the airport itself, thus helping both the passengers and the airports.  
 
While leaving the body of the legislation substantially unchanged, the House “gilded the lily” by approving six additional amendments (overwhelmingly by 393 to 13) that appear to further respond to the concerns of the public regarding the noise impacts of aircraft overflight, and particularly those caused by the airspace redesigns which have taken place throughout the country.  
 
Two of the proposed amendments, in a rare showing of nonpartisan cooperation, are co-sponsored by Representative Roskam of Illinois and Representative Bass of California: Amendment 7 “Adds ‘economic impacts’ to the study on the effects of airport noise on communities near airports;” and Amendment 13 “Directs the FAA Administrator to study the relationship between jet aircraft approach and takeoff speeds and corresponding noise impacts on communities surrounding airports.  Requires the FAA Administrator to submit the results of the study in a report to Congress.”  
 
Four other amendments are broadly co-sponsored by Democrats from across the country including Representative Bass of California as well as Representative Meng of New York and Representative Norton of Washington, D.C.  Two of the amendments are reasonably specific: Amendment 62 “Directs the FAA to evaluate alternative metrics, including actual noise sampling, to determine a Day Night Level average sound level standard and provide a report to Congress;” Amendment 90 “Requires the FAA within 1 year of enactment of the bill to complete the ongoing evaluation of alternative metrics to the current Day Night Level (DNL) 65 standard.”  
 
Other approved amendments are less specific with respect to goals: Amendment 16 “Requires a GAO report studying: ... (2) the prevalence of vectoring flights due to over-crowded departure and arrival paths, and alternatives to this practice;” Amendment 89 “Requires the FAA to develop a 5-year aircraft noise research and mitigation strategy.”  
 
The Bill now moves to the Senate where the path forward is still unclear.  It is unlikely that the Senate will form a traditional conference committee but more likely that it will pre-negotiate the final Bill with the House and then bring it to the Senate floor.  Senators would then have an opportunity to amend the Bill after which the House will have to take it up and pass the Senate version.  
 
This may not be as easy as it sounds.  The Senate is expected to attempt to include a number of legislative items (a Federal Commerce Commission amendment, tax corrections, and others) that may end up making the Bill highly controversial, and delay it until summer, as the FAA authority doesn’t run out again until September 30, 2018.  
 
In the final analysis, some or all of these provisions (with the potential exception of the last) may be amended out of the legislation, most likely at the behest of the airline industry.  Nevertheless, the inclusion of these provisions in the initial version, as well as the introduction of the proposed amendments, indicates that the public is not “whistling in the wind” in its growing clamor against the self-serving excesses of certain members of the air transportation industry.