What if airlines could do almost anything they wanted, knowing that they would probably get away with it?
As 2018 comes to a close, critics say that's already the case. The reason? A seeming decrease in enforcement of government regulations.
The Aviation Consumer Protection Division of the Department of Transportation, which enforces federal consumer protection regulations, this year has issued only 16 consent orders, totaling $1.8 million in civil penalties. This compares with 18 consent orders totaling $3.1 million in civil penalties by this time in 2017, which was less than half the dollar amount of fines issued in 2016.
Because airlines are regulated at the federal level, the DOT is often passengers' first, last, and only hope for resolving service problems. The agency's fines can be a bellwether for airline service: High fines keep airlines flying straight; lower (or no) fines can lead to airline indifference.
"The DOT has turned its back on complaints that most Americans find meritorious," says Ben Edelman, a Harvard Business School professor and aviation-rights activist.
The government is on track to issue the lowest number of fines in a decade. Between June 1 and Oct. 5 – 126 days – no enforcement actions occurred. The agency's actions – or lack thereof – raise two questions:
"The department's Office of Aviation Enforcement and Proceedings pursues enforcement action when the facts merit such action," said Blane Workie, assistant general counsel for that DOT office, "so the number of consent orders and amounts of civil penalties will fluctuate from year to year."
Indeed, the office has assessed civil penalties totaling as little as $265,000, in 2000, and as much as $7 million, in 2013. A review of its fines since 1995 shows $1.8 million in the midrange for annual tallies – higher than penalties assessed in eight of those years and lower than those assessed in 14.
Among this year's highlights:
A $250,000 fine against Allegiant Airlines for repeatedly failing to accommodate passengers with disabilities. The DOT cited violations of federal law from 2013 to 2015. Inspectors reported "numerous" instances in which Allegiant failed to provide adequate and timely assistance to passengers with disabilities who needed help moving between terminals, boarding planes, or meeting arrivals. Allegiant called the violations "entirely unintentional."
A $225,000 fine against British Airways for two violations of the DOT's tarmac-delay rule. The offending flights, both in 2015, kept passengers waiting on the tarmac for more than four hours without providing an opportunity to deplane, according to DOT investigators. British Airways said its employees made decisions "based on the information available and what they considered to be in the best interests and safety of their passengers."
A $130,000 fine against the Ecuadoran carrier TAME, for violating the DOT's full-fare ticket pricing rule. A DOT investigation found that TAME "routinely" charged consumers a total price that was higher than the first quoted price displayed to consumers. TAME blamed a third party for the incorrect prices.
But do these fines work?
Airlines in North American are anticipating $16.4 billion in profits this year, according to the International Air Transport Association. Fines take a small fraction of industry earnings, which is why some observers say they are not a deterrent.
"A slap on the wrist does not begin to describe this consumer injustice," says Kevin Mitchell, chairman of the Business Travel Coalition, a group that represents corporate travelers. "The lack of effective enforcement actions by DOT only emboldens some airlines to disregard the interests of consumers."
Flyersrights.org, a consumer organization, filed a request last year under the Freedom of Information Act for documents related to the DOT's fining procedures. Paul Hudson, the organization's president, said his group was responding to the "shocking" decision to exonerate United Airlines after the forced removal of David Dao from a plane in April 2017, even though authorities found that several rule violations had occurred.
Hudson said the documents his organization obtained through the FOIA request suggested that the DOT's policy was not to fine airlines unless violations are egregious or repetitive.
The DOT declined requests to comment on its policy.
The documents also showed that DOT did not take any enforcement action on 90 percent of consumer complaints. It investigates the rest over a period of one to three years, "with most getting no action letters and hardly any providing compensation to complainants," Hudson said.
There's a glimmer of hope. The just-enacted FAA Reauthorization Act of 2018 creates the position in the Federal Aviation Administration of a consumer advocate to monitor enforcement of consumer-protection laws. The advocate is supposed to review how the DOT's Aviation Consumer Protection Division resolves carrier service complaints and to report the results directly to Congress.