In a somewhat unsubtle attempt to implement the current Administration’s 2017 Executive Order “Enforcing the Regulatory Reform Agenda,” allowing federal agencies to simplify their regulatory mandates, the Department of Transportation (“DOT”), on behalf of its subsidiary agency the Federal Aviation Administration (“FAA”), has instead thrown complex and expensive regulatory/legal hurdles in the path of consumers who attempt to enforce the provisions of current protective regulations. Specifically, the DOT published, on February 28, 2020, in the Federal Register, a Notice of Proposed Rulemaking (“NPRM”), that purports to simplify “definitions of the terms ‘unfair’ and ‘deceptive’ in the Department’s regulations implementing its aviation consumer protection statute.” See 85 Fed.Reg. 11881. The devil, however, is, as usual, in the details.

In reality, the proposed rule would add a new regulation, 14 C.F.R. § 399.75, governing aviation consumer protection and rulemaking actions brought pursuant to FAA Act, 49 U.S.C. § 41712. It would require the FAA, in reaching a decision where no existing regulations govern the practice in question, to articulate the basis for concluding that a challenged practice is “unfair” and/or “deceptive;” state the basis for its conclusions in the context of rulemaking; and apply formal hearing procedures for discretionary aviation consumer protection rules, even where the need for such protection is self-evident, such as the case where travelers are confined in an aircraft on the tarmac for hours without food, water, or bathroom facilities.

Following in the steps of the Federal Trade Commission (“FTC”) rule 15 U.S.C. § 45(n), the proposed rule would “define a practice as ‘unfair’ if it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by the benefits to consumers or competition.” 85 Fed.Reg. 11884. A “practice” would be defined as “deceptive” “if it is likely to mislead a consumer acting reasonably under the circumstances with respect to a material issue.” Id. “[A]n issue is ‘material’ if it is likely to have affected the consumer’s conduct . . . with respect to a product or service.” Id.

Even if the party challenging the act or rule were not faced with standards of review fraught with nonspecific, incompletely defined, terms, a party challenging a violation by the airline of a consumer protection statute, rule or determination such as the “Tarmac Delay Rule,” would also be forced to become involved in a complex, expensive and time consuming “formal hearing procedure.” 85 Fed.Reg. 1185. The hearings would require the consumer to “make a plausible initial showing that the rulemaking concerns one or more specific scientific, technical, economic, or other factual issues that are in dispute, that the ordinary notice and comment process is insufficient . . ., and that resolution of the issue would have a material effect on the costs and benefits of the rule.” Id.

Even then, the agency’s general counsel is authorized to deny a hearing if the hearing would “reasonably delay completion of the rulemaking.” Id. Ultimately, the hearing officer would render his/her opinion to the agency, after which the agency can make the decision whether to continue or terminate the rulemaking. In short, at every stage, the FAA is granted discretion to arbitrarily and subjectively decide to terminate the challenge leaving the challenger no seeming recourse except to the courts.

Finally, in support of the procedures, the NPRM questions the integrity of the findings already made by the DOT “that violations of civil rights laws constitute violations of Section 41712, without explaining in
detail how the violations were either unfair or deceptive.” 85 Fed.Reg. 11887. Leaving aside the obvious purpose of the civil rights statute to rectify unfair treatment and discrimination in the provision of transportation services, this example betrays the underlying purposes of the new procedures: to shield the airline/aviation industry from the consequences of even its most obvious violation of consumer rights. Comments may be filed by April 28, 2020. Late filed comments will be considered “to the extent practicable.”