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Why would traveler's advocate Christopher Elliott turn against the Passenger's Bill of Rights? Listen in as he discusses the why it won't work with Jason Clampet, Online Editor of Frommers.com.

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Jason Clampet: Welcome to the Frommers.com Travel Podcast. For more information on planning your trip to any one of thousands of destinations, please visit www.Frommers.com. [music]
Jason: Hi, this is Jason Clampet, Online Editor of Frommers.com. I'm joined here this week by Chris Elliott, ombudsman for National Geographic Traveler. He blogs at his own website, Elliott.org, and he's also a contributor to Frommers.com and a regular visitor to our podcast. Hi there, Chris.
Christopher Elliott: Hello.
Jason: Let's start with this, Chris. Why are you against passengers?
Christopher: [laughs] Well, let's not mince words here shall we?
Jason: Tell me about what you wrote and why you are against the Passenger Bill of Rights.
Christopher: Well no, I think that your first question was actually a really good one because there are people who are going to read what I wrote and say, "Can't believe it. Here you have the ombudsman for National Geographic Traveler and a syndicated columnist who writes about customer rights, and as opposed to advocate for travelers is saying that he doesn't want a Passenger Bill of Rights. What's with that?" And the fact is that I do very much support the rights of passengers and I just think that what's happening here, this pig pile in Washington, everyone jumping right on top of the passenger rights movement and saying that they need a three-hour turn-back rule is just wrongheaded.

So, to explain what I mean by turn-back rule, the Passenger Bill of Rights over the last 20-some years has had all sorts of different incarnations and different points that it's made, and they've tried to get passed.

But, right now, people think of the three-hour turn-back rule as being the Passenger Bill of Rights, and that's because of the activities, first and foremost of Kate Hanni, who was one of the people, unfortunately, who was trapped on a plane in Texas a couple of years back and has gone to very effectively lead the passenger rights movement.

And she has been pushing for a turn-back rule that would basically force airlines to turn back after three hours. I think it's a great rule if the airlines would do it, but the way that it's being proposed right now and all of the other supporters who have lined up in favor of it, it's just is not going to work.

Jason: Well, let's talk about turn-back because, on the surface, it seems easy like, hey, if you're not going to be able to take off just turn around and let everybody off. It sounds very simple, but planes lining up at airports aren't simple.
Christopher: No, no, I mean it's a little bit more complicated. You have several entities, you have the airport, you have the FAA, you have air traffic control, you have the actual airline; and then you have variables such as the weather, you have airline schedules. So, it's not something where a pilot can nowadays say, "Time to turn around and head back to the gate. There may be a plane back there at the gate." But, I'm not as concerned about the logistics of it. I think that if there were a mechanism by which an airline knew, if it kept people on the tarmac for seven hours, which happens commonly, I mean every month I have a blog post on the DOT report that comes out, the airline report card, that says, here are the five or the top five flights that were delayed by three hours or more - and routinely it's six hours, five hours, seven hours even, so it's not that unusual.

But, the problem here though, is that if Congress passed this rule that everyone is talking about, there would be no means by which it could be enforced. So, it's kind of like saying we're going to have laws, but we're not going to have any police to enforce it.

Jason: Right. And I think also in your article, I believe it was your article, you linked to the discussion of enforcement in Europe where there's similar laws passed, and the first problem there was they basically redefined the terms, which as we know, people in the travel industry do very, very well. Thirty minutes becomes an hour somehow and what not. And somebody writing in to you had said basically, "I thought it was a four-and-a-half hour delay. They defined it as an hour and forty-five minutes," or something like that. So, there's really, the enforcement of it is almost impossible.
Christopher: EU261/2004 was the passenger rights rule that was supposed to change everything. And what the European airlines very cleverly did was redefine terms such as "extraordinary circumstances." They were able to get around some of the rules by delaying flights indefinitely instead of canceling them, and they also were able to get away with what they did because the EU courts did not enforce EU261. And so for the last four or five years now, we've had these rules that have steadily been eroded. There have been studies done that have shown that these rules are basically being ignored by the European airlines.

Now, the Europeans have some fairly strong regulations and regulatory mechanisms. I would say they're much stronger than we have here in the United States. They love their bureaucracy over there. I know, I used to live there. And what makes us think that having a turn-back rule here in the States is going to be in any way actively enforced?

I mean, look at the DOT. The DOT's mandate right now as I see it is to keep the airline industry a vibrant and healthy industry, it is not to protect the rights of consumers. So, when they fine airlines for doing things like having misleading fare displays or fare advertisements, the fines basically are just a slap on the wrist. It's, you know, $14,000, $15,000, half of which is forgiven if the infraction is not repeated.

So, this is just a drop in the bucket for the airlines, and so they keep doing it.

Jason: Right. Now, you write that the real key to all of this, the real key is reforming the Department of Transportation.
Christopher: Yeah, I think so.
Jason: Can you talk a bit about the reform that you see necessary?
Christopher: Well, I'm not an expert on government. I'm an expert on, if there is such a thing, on passenger advocacy and customer rights. But, I have sat down with the DOT for face to face meetings and it's clear to me that their mandate is just not what we in the traveling public think of it as. This is an organization, a department that is just essentially trying to keep our airline industry functioning and safe, but it is not in anyway, as far as I can tell, looking out for the welfare of customers. So, what the DOT has done is it essentially allows the airlines to write their own rules called the contract of carriage, so they write their own contract. And then it threatens - if that word can even be used in this situation - to fine an airline if it doesn't follow its own contract.

Now, the nice thing about the contract is that it's written by the airlines, written by their lawyers, so it's fairly easy for an airline to follow it because the government doesn't tell them what to put in it.

So, these contracts have provisions for everything from what an airline should do if a flight is delayed or canceled, or if carriage is somehow refused, if you're bumped or denied boarding. So, really the inmates are running the asylum at this point I think.

Jason: In addition to that, some of the criticisms also said it's just an antiquated system. Everything from the air traffic control system to - other people are saying it's just stuck in the '70s and how they think of transportation and moving people from one place to another. Since that seems to be the pervasive problem if the Passenger Bill of Rights isn't a good idea. How likely do you think it is that we get an update, a reformer of the DOT in place of a Passenger Bill of Rights?
Christopher: Well, I don't know the answer to that. I think we probably are much likelier to get a reform of the DOT under the present Presidential Administration than we were under the two previous ones. I know that in talking with people on the inside at DOT that they lacked some of the funding to enforce their existing rules. I mean you have to understand, adding another rule like a three-hour turn back rule means that the few people that they have to enforce the rules at DOT are going to just have another item on their checklist, another rule to enforce. And it inevitably means that some of the existing rules are not going to be... that some fines aren't going to be levied against the airlines that they're supposed to be regulating.

I mean, here is an agency that I think is really stretched to the limit. They've been de-funded over several Presidential Administrations, and our best hope is for some of the political appointees who are now working at DOT to say we've lost our way and that the agency needs increased funding. It needs more attorneys who are able to look at what's going on and say we're going to impose fines here, and indeed when the timing is right can say we're going to get a turn back rule and we're going to fine this airline for not following that turn back rule.

But, as it stands right now, any fines that are being levied against airlines are very symbolic and don't really amount to much of anything. So, I guess in a very roundabout way to answer your question, I think that we have a pretty good chance in the next three years of making some changes. But, we're not going to... I don't think we're going to be able to affect any kind of change by keeping things the way that they are, or even by passing a Passenger Bill of Rights. I think the real changes have to start at the DOT.

Jason: Well, it seems you know it's easier to get people excited about a Passenger Bill of Rights and a movement like that, than it is to fine-tune the bureaucracies of a large government body. And so, you know Chuck Schumer or Danny Lipinski from Illinois can use this as a campaign issue, even. So, they can go to their constituents and say hey I got you this Bill of Rights. It's a lot easier for them to say that than hey I got these mild reforms in Article II of the DOT's by laws. So, you know in terms of...
Christopher: It's not very sexy.
Jason: So, in terms of something actually happening some of the arguments, or many of the arguments are, yeah this isn't perfect but lets take what we can get for now.
Christopher: Sure, yeah. You know, it's a feel good rule and the tarmac delays are a lot sexier, and the people who are promoting them are a lot sexier than what really needs to happen. And that is that we have to go back and just put more cops on the beat right now, because otherwise this is just going to be another rule that the airlines ignore. And I know that the game isn't played that way, but that's what I'm here to do is to look at the whole situation say, is a Passenger Bill of Rights really going to change anything. I think it's just going to make us feel good for a few minutes and then we're going to go right back to business as usual.

And you know that the airlines are already looking at the language in the two Bills that have gotten to the committees and they're saying hey how can we figure out a way around this and their lawyers are probably working overtime trying to figure that out. So, if there is a turn back rule that gets signed into law, the airlines will already know what they need to do to get around it.

Jason: And in terms of the rule, it's not just the airlines. It has to be the airports have to be involved, all interested parties there in terms of having security on hand to deal with influx of people, more space... You know, if it rains and nobody can set on the tarmac for three hours where do they put everybody who has to come back in.
Christopher: Well, I want to talk about that first because there have been a number of people who say that they're on the side of consumers and they're frequently quoted in the newspaper stories and on television that say this is not workable, that it would create too many complexities and we have to leave it up to the airlines to kind of police themselves. I think that that's wrong; I think that it really is very simple. If an airline wants to send one of it's planes back to the gate, I think that it could, there are a million reasons not to and I just think that that's not a very... You know, the airlines just don't want to be regulated at the end of the day and I understand that they want to do things their way. And if they want to treat us like cargo, then that should be their right and then they say, of course, in their apologists say too that we can just fly a different airline.

The fact is, of course, we know better we know that there are these fortress hubs and oligopolies that the airlines have and that we just don't have a choice in airlines, most of us at least. So, it's kind of a half hearted, disingenuous offer to fly on another airline. So, we know that there's no free competition.

So you know, coming back to this whole issue of the airline apologists who are saying it's too complicated. I just don't buy that, I've looked at all the issues. I don't see it that way, I mean I think that it could be achieved, but again the airlines just don't have a reason to do it so they won't.

Jason: In terms of competition, you know, I tend to think of the old carriers and the new carriers. And the new carriers get a lot of things right, whether it's fewer baggage fees or things like that. I was reading a conversation between a Continental CEO and Southwest CEO about the Wisconsin incident in Rochester back last month. And both of them were like yeah, even with the legislation, nothing would have changed in Rochester and citing that if there's lightening within a three to five mile radius of the airport, they can't take passengers off an airplane. So, on one hand, as you said, there is no competition. One from the sense of you tend to only be able to fly out of one airport unless you're in the New York area or some other areas. But then, basically, all the carriers kind of agree what they want to do. It's not as if Southwest has a two-hour turnaround guarantee so you could fly them if you're worried about it.
Christopher: Right. Well, you were talking about some of the oligopolies that the airlines have which are sometimes incorrectly referred to as monopolies. It's not quite monopolistic, but again here you have the DOT that has allowed predatory pricing. Predatory pricing means that when a new entrant comes in, like a Jet Blue or Southwest or an Air Tran, that the legacy carrier tries to price it out of business. The prices are so low that the other airline can't make any money. That's called predatory pricing and the DOT has basically allowed that kind of thing to go on for many, many years and that has created these oligopolies that we have. And so, part of the problem that we're in right now, where we don't have a choice, is due to the fact that the DOT has more cheerleaders than cops.

And that's very disappointing, from the perspective of a customer rights advocate, that this kind of thing can be going on, but again, if you don't have someone enforcing the laws, then having a law just makes no sense at all.

Jason: Right. In terms of gathering support for the bill, last month, a number of business travel coalitions came out in support of it, and it seemed as if they didn't really want to support it, but you know, I think the quote from a fellow from Business Travel Coalition was, it's basically in response to shattered promises of self-policing over the last 20 years, which is kind of an odd statement for somebody from Business Travel Coalition to say, this feeling of being shattered, and our hopes are dashed. And so, to keep this from being a very downbeat suggestion of what can be done, with the exception of the DOT being totally reformed, are there smaller steps that can be made, smaller groups of bills that you think are good steps, or is even the Passenger Bill of Rights a good first step that needs to be followed up by other steps?
Christopher: Well, you know, I've been following the Business Travel Coalition for many, many years, and it really is just one person, Kevin Mitchell, teamed up with Kate Hanni to have, I believe there's a big sort of meetup that's going on in Washington where all of the, they call them stakeholders, are getting together to talk about passenger rights. Interestingly, I haven't been invited to that, but that's OK. I do wish them well. I'm glad to see someone pushing for passenger rights. I just think that what they're doing is trying to treat a symptom rather than find a cure, and a cure means putting in place a better infrastructure that will allow the government to go after airlines that are doing things that are not right by their customers.

And I go back to the whole fare display issue. Right now, you have airlines that are advertising fares in a way that are misleading, and the Transportation Department is fining them for amounts that are completely insignificant to them. These are really drops in the bucket.

So, now you have this agency that's going to start fining them, for what, for spending time on the tarmac. Do you think that those fines are going to be any different than the ones that they currently have? Well, I don't have to answer that question, I mean, we all know the answer to that question.

So, I think that you have to take a couple of steps back when you talk about reform and talk about what the whole reason for the DOT is. If the DOT is not up to the job, then there should be another agency that is, that has the authority to enforce rules and to fine the airlines. And you know, it may very well be that the DOT is not the correct agency for that. We have to find the right agency, and if it doesn't exist, maybe it's time to create a new agency. They're already talking about doing that for banks. So, really, I think that we just need to take a much more holistic view of this problem and not treat the symptoms, but to find the cure.

Jason: Yeah, I think, in terms of the holistic view, I think it's kind of, can a law enforce commonsense; the situation in Rochester, Wisconsin last month. You know, it's just common sense that that just wasn't right, and the pilot should have pushed harder to be able to disembark passengers there and not kind of take a no for an answer, as she did, I believe. And so the hope that all of a sudden, if this one bill is passed, the airlines will start behaving properly, does seem to be quite hopeful.
Christopher: Absolutely. And you know, you were talking about commonsense, that is a really good point. Commonsense tells you that you don't leave your passengers on a plane for seven hours, right? You know, commonsense tells you that you don't lie to your passengers when you're quoting a fare, right? Well, as a mentor of mine used to say, commonsense can't be legislated. So, if the airlines are doing this and you think that solving it is as simple as creating a new rule, well, you're very misled. If the airlines can't tell the truth, and imprison their passengers on the tarmac for seven hours, then you really need to take a much deeper and a much more holistic look at the issue. And again, the DOT is not being very effective at policing the airlines, and so maybe we need to take another look at who is enforcing these rules and find someone who can do the job.
Jason: Well, where should you send your resume, Chris, because I think we've got our first, what, undersecretary of decent, commonsense transportation?
Christopher: [laughs] Oh, you're funny.
Jason: Well, I think we're going to go ahead and wrap up there.
Christopher: Well, you know, I've got to tell you, I have friends in Washington. I love them, they're great, and they're really trying to make a difference, and I hope that somehow I'm able to make just a small difference with what I'm saying. I don't know if I'm quite ready for Washington yet, but if they come calling, I'll go.
Jason: Well, I've got your email address and phone number I can pass on. Well, I'd like to thank Chris for joining us today, and please join us next week for a new edition of Frommers.com Podcast.

OK, Chris, I'm going to stop here, and I forgot to do an intro at the very beginning, and so I was going to describe you as the ombudsman for the "National Geographic Traveler" and also blogger at elliott.org. Does that work for you?

Christopher: That's good. And I am a columnist for you guys, don't forget.
Jason: Well, I was going to say, you know, your most important gig is as a columnist for us. I was going to sneak that in.
Christopher: Yes. OK.
Jason: OK, I'll do a little intro, and then I'll say hi, Chris, and you can say hi, and then we'll actually say bye after that, if that works for you.
Christopher: That works for me, OK.
Jason: OK. OK. We are going to finish it up there, and thank you for being such a good sport, Chris.
Christopher: Hey, sure.
Jason: I really was surprised, they're very, you know, people are excited about it, because it's this whole thing, you know, hey, this will solve the problem, but it doesn't seem like it's going to solve the problem.
Christopher: It's not.
Jason: And I think, you know, it's going to be passed, and then next August, there's going to be bad weather, and people are going to be trapped on a plane, and they're going to say, I thought this was supposed to not happen anymore, and it's going to happen.
Christopher: This is the feel-good legislation of the year.
Jason: Yeah, yeah.
Christopher: And that's very unfortunate because you have these passenger rights groups that are investing so much time and effort into passing it. One rule: the three-hour turn-back rule, and it is going to do so little for us that it is just... I think that really, the airlines are sitting back and laughing at all this because they've already found a way around it.
Jason: Right. You know, as you said, they redefine terms so easily.
Christopher: Yeah.
Jason: And they'll figure out a way to say that, this isn't the tarmac, this is the parking lane, or this isn't a, you know...
Christopher: Exactly, yeah.
Jason: Something like that. [music]
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