New York’s Passenger Bill of Rights Survives Challenge by Airline Industry Trade Group

Now that we are moving past the holiday season and into the heart of winter, it is warming to know that the New York “airline passenger bill of rights” has survived an industry trade group’s challenge to the law, which requires airlines, after a pre-takeoff delay of more than three hours, to ensure passengers, as needed, get electric generating service for fresh air and lights, waste removal to service restroom holding tanks and adequate food, drinking water and other refreshments. The law also creates an advocate for airline passengers within the Consumer Protection Board and empowers the state attorney general to seek civil penalties of up to $1,000 per violation per passenger.

The legislation was drafted in response to the lengthy delays resulting from winter storms last year in New York City-area airports on Valentine’s Day and St. Patrick’s Day. Rather than return to the terminals, several airlines kept passengers on board and planes on the runway with no food or water, overflowing toilets and no air conditioning hoping that breaks in the weather would allow the planes to take off. Some passengers were confined for 10 hours or more.

New York’s law, which went into effect on January 1, 2008, is America’s first “airline passenger bill of rights”. Northern District Court Judge Lawrence E. Kahn held that the new law is not pre-empted by the federal Airline Deregulation Act of 1978. The pre-emption clause of the federal act, 49 U.S.C. 41713(b)(1), prohibits states from creating laws ‘related to a price, route, or service of an air carrier.’

Judge Kahn held that the state law, which would require that passengers be given water, fresh air and working toilets if delays stretch past three hours, affects neither an airline’s ‘price,’ ‘route’ nor ‘service.’ It is a legitimate use of state police power to protect the health and safety of its citizens, the judge held in Air Transport Association of America v. Cuomo, 1:07-cv-1103.

“Fresh air, water, sanitation and food are necessities in the extreme situation in which this act applies; it threatens the public health to contain people on grounded airplanes for hours without these necessities, particularly, though not exclusively, if passengers include diabetics, young children, the sick or the frail.”

Judge Kahn cogently differentiated these health and safety issues from airline “services” that can be regulated only by federal authorities. It is noteworthy that the dismissal of the lawsuit came in the context of a motion by the Air Transport Association (ATA) (the plaintiff-industry trade group in the suit) for summary judgment or a preliminary injunction to prevent the state law from taking effect. Judge Kahn denied the plaintiff’s motion and instead dismissed the suit.

The airline association’s members carry more than 90 percent of U.S. passenger and cargo traffic and its member airlines operate more than 6,000 departing flights daily at nine airports in New York State. Supporters of the law say it could become a model for other states and it has been strongly opposed by airlines. “We’re the first state in the country to do this,” said Assembly Michael Gianaris, a Queens Democrat and sponsor of the measure. “The airline industry threw all its firepower at us and we stood up to them.”

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