Access to the Skies Update March 2008

To those interested in air travel access for disabled people:

           Thanks very much for looking at the e-mails I sent recently about my experience with American Airlines last year.  Last week I finally received a call from Mike Spollen of the US Department of Transportation.  The upshot is that, at least as of now, DOT isn't going to initiate an enforcement action based on my case or even expand the scope of its warning.  Disappointing but not surprising.  Separately, I will forward a series of e-mails with Mr. Spollen in which I argue that DOT has completely missed some important issues, especially the question of what obligations an airline has to return a passengerís wheelchair promptly upon discovering that the wheelchair missed the flight the passenger was on.

           Mr. Spollen told me about notices of proposed rulemaking for amendments to the Air Carrier Access Act regulations dealing with access for deaf/hard of hearing people; oxygen; service animals; and foreign air carriers.  These are attached.  (Foreign carriers are currently subject to the statute but not the regulations.  That seems odd.)  Many of you may already be aware of all this because some of the proposed regulations were proposed several years ago.  The foreign carrier regulations would be part of a restatement of the entire section 382 and would include some substantive changes that would apply to all carriers, domestic and foreign.  I've only had a chance to glance at them.  They include an explicit requirement that a certain percentage of aisle armrests in all classes, not just economy, would have to be flip up armrests.  Also, the proposed regulations would remove the exception for seats where installing a flip up armrests would be infeasible.  That would be some progress.

           Mr. Spollen also attached a consent order DOT issued against American Airlines in 2003 based on numerous violations of the requirements to accommodate passengers in wheelchairs.  You'll see that DOTís description of its investigation and of the violations is not at all thorough (to put it charitably).  DOT assessed a civil penalty of only $1.2 million, and American received $1.1 million credit for training and improvements that it was required to make anyway.  According to Americanís 2003 statement of operations, the airlineís operating revenue for 2003 was $17.4 billion.  Even if American had been required to pay the entire $1.2 million in cash, that's clearly an inconsequential amount of money, and not enough to provide a strong disincentive for future violations.

           I recently came across a clever website called www.suetheairlines.org that includes information on how to sue the airlines in small claims court, and also describes some of the leading cases about the air carrier access act.

           Thanks for your interest in improving accessibility in air travel.

          Cordially,

          Howard

Subject: Recent DOT disability-related draft rules and AA civil penalty order

March 5, 2008

 Mr. Chabner,

Thanks again for speaking with me and Alex Taday yesterday concerning your disability-related complaint against American Airlines and your follow-up letter/email to Blane Workie and Daeleen Chesley of this office. Again, I apologize for our delay in getting back to you. As we discussed, I have attached to this email the three relevant disability-related draft rules (NPRMs) that I mentioned. Again, these are only proposed rules, but we have asked for comment on many of the suggestions you have made in your follow-up letter/email to our office. We hope to issue one consolidated final rule in the near future. I have also attached the consent order I mentioned, in which American Airlines was assessed a civil penalty of $1.2 million dollars for apparent violations of our disability rule. This consent order was based in large part on our review of individual complaints filed  with our office and with the carrier directly, many of which involved inadequate wheelchair assistance to passengers with mobility impairments.

 Sincerely,

Mike Spollen

Disability Team Leader
Aviation Consumer Protection Division
Office of Aviation Enforcement and Proceedings

Per my previous e-mail.

March 10, 2008

Subject: RE: Recent DOT disability-related draft rules and AA civil penalty order

 Dear Mr. Spollen:

             Please hear me out and consider the following:

             Among the most important issues in my letters are my contentions that the obligation to load a wheelchair on a flight and the obligation to return it to the passenger in a timely manner are two separate requirements, and that in my case American Airlines violated both, the latter because it refused to put my wheelchair on the next flight from JFK to Paris (or another flight that departed soon after the flight I was on) regardless of the carrier, choosing instead to wait until the following day to put it on an AA flight.  This is important because if the two things are not viewed and enforced as separate obligations, airlines have far less incentive to act quickly and competently upon discovering that a wheelchair missed a flight. 

 DOTís Investigation Summary Sheet doesnít make this distinction; it identifies the complaint/issue as failure to return a passengerís wheelchair in a timely manner, but in the remarks the only violation it identifies is the failure to load my wheelchair.  In its response, AA concedes that I arrived in Paris without my wheelchair, but completely fails to discuss its refusal to put my wheelchair on the next flight from JFK to Paris.  AA attributes the entire problem to a delayed flight, which completely and deliberately evades the point.  It appears that DOT based its finding of a violation on the mere fact that my wheelchair was not on the flight, and DOT didnít investigate when AA discovered my wheelchair was not on the flight and what AAís practice is when a wheelchair misses a flight.  Surely it cannot be DOTís position that an airlineís obligation to return a wheelchair to a passenger on a timely basis consists solely of the obligation to load the wheelchair on the passengerís flight and return it promptly after that flight has landed.

             You and I didnít discuss these issues.  Itís important to know DOTís position.  If DOT agrees in principle that the obligation to load a wheelchair and the obligation to return it timely are two separate obligations, itís important that DOT also address whether or not it is a violation for an airline to wait as long as AA did to transport my wheelchair to Paris.  Even though DOTís level of action may only be issuing a warning, not bringing an enforcement action, the scope of DOTís action should be broader than finding only one violation.  DOT should find two separate violations (not including those involving the other matters Iíve described).  Any future investigations and penalties should be based on there having been (at least) two violations.   

DOT should investigate what AAís practice is when a wheelchair misses a flight.  Flight delays are sometimes caused by factors outside an airlineís control, but an airline can always control how quickly it acts when it discovers a wheelchair has missed a flight.  It is critically important that DOT send a message to the airlines that if a passengerís wheelchair misses a flight, the airlines still have an obligation to do everything reasonably necessary to make sure the wheelchair is returned promptly to the passenger.  As it now stands, DOTís action in my case doesnít do this.   

            Separately tracking failure to load a wheelchair and failure to mitigate that failure would provide valuable information about what airlines actually do, which, hopefully, would lead to more effective enforcement by DOT and better practices by airlines. 

            A related issue in my case is whether AA knew when my wife and I boarded the JFK-Paris flight that my wheelchair wouldnít make it given that our San Francisco-JFK flight arrived late.  If so, AA should have informed us and provided us an opportunity to take a flight to Paris that evening on another carrier or to stay overnight in New York and take a flight the next day.  A thorough investigation would include this issue. 

            I applaud your statement that DOT ďgets itĒ that for wheelchair users, our wheelchair is our legs.  Itís also vital to appreciate that not having oneís wheelchair not only eliminates oneís mobility, but harms his or her health, safety and hygiene in critical ways.  For this reason, itís imperative that airlines provide suitable loaner wheelchairs.  In our conversation, we touched on loaner wheelchairs only very briefly.  If an airline has no obligation to provide a safe and appropriate loaner, what is a person supposed to do when his wheelchair isnít on a flight?  This is not a rhetorical question. 

            Our conversation ended when you had to catch your car pool, not because we had covered a majority of the issues or reached closure on any of them.  We didnít discuss AAís prioritization of later arriving able-bodied passengers at check-in; priority and assistance at the security checkpoint; price discrimination; information barriers; refusal to provide seating accommodations; problems with aisle wheelchairs; inaccessible bathrooms on airplanes; insufficient number of accessible toilet stalls at airports; and the points I made about how DOT characterizes and classifies complaints.  Thank you for sending me the proposed amendments to Section 382, which address some of these topics.  In any further conversation with you, I wonít discuss the topics addressed in the proposed amendments. 

            Regarding my concerns and recommendations about problems at the security checkpoint, I would appreciate the name and contact information of the Department of Homeland Security and TSA staff responsible for policy regarding disabled passengers. 

Our only discussion of passengers being able to remain in their own wheelchairs during flights consisted of your saying that wonít happen, and my acknowledgment that it seemed unlikely to happen soon.  Itís reasonable to discuss whether DOT believes this wouldnít be feasible from a safety and operations standpoint, as distinguished from merely being unacceptable to the airlines, and whether it has recently been seriously considered. 

            Some of our precious time was taken by your describing a case in which a passenger whose wheelchair was damaged on his flight home stayed for nearly a week in an expensive hotel across the street from the dealer repairing his wheelchair when he easily could have stayed in his own home.  His claim for the cost of his hotel stay was, justifiably given the facts you described, denied by the airline.  What does this have to do with my case? 

I respect your time, and I certainly donít expect you to miss your carpool, but itís reasonable to ask for another 15 or 20 minutes of your time to discuss, at a minimum, the issues in the first several paragraphs of this e-mail, which concern an airlineís obligations once it has discovered that it failed to load a passengerís wheelchair on a flight.  I recognize that we wonít be able to cover most of the other issues in this amount of time.  If you arenít available, I request to speak with Ms. Workie or Ms. Chesley or another enforcement attorney who is familiar with my case. 

Regarding the request in my previous e-mail for a copy of DOTís warning to AA, I was unaware that the warning consisted only of the October 11, 2007 form letter and the brief Investigation Summary Sheets enclosed with it.  I had thought there would be a more detailed letter to the airline. Your e-mail has clarified that.  If these materials are available electronically, I would appreciate a copy. 

I also didnít have an opportunity to ask you how many complaints have been made against American Airlines since March 4, 2003 (the date of DOTís consent order) regarding lost, damaged and delayed wheelchairs and other violations of the obligations to accommodate passengers who use wheelchairs.  I now request that information.  Also, how many of those complaints have been investigated, in how many did DOT find a violation, and what action did DOT take?  If available, please include a breakdown by type of violation.  Also, please provide copies of the case files of 10 complaints against American Airlines since March 4, 2003 about lost, damaged and delayed wheelchairs in which DOT found violations that it considers among the most serious and egregious.  If you believe that selecting the most serious and egregious violations is too subjective, then select the 10 most recent cases.  This information is a matter of public record.  It certainly isnít my intention to burden you; it will be easier for both of us to proceed informally rather than through a FOIA request.  If the files in any particular case are large, let me know before e-mailing or copying them and we can discuss how much information I want. 

Also, how many DOT staff, at all levels and job descriptions, are involved in investigating and enforcing the civil rights of airline passengers with disabilities?  How many investigations has DOT done in the past five years of all air carriers regarding lost, damaged and delayed wheelchairs and other violations of the obligations to accommodate passengers who use wheelchairs?  How many enforcement actions have been taken? Having this information will enable me and others to decide whether to contact our elected representatives and urge an increase in DOT enforcement staff levels. 

I have a few recommendations for improving DOTís website as it relates to disabled passengers.  To get to the information about disability issues, a reader has to go first to the DOTís Aviation Consumer Protection homepage, then to the bottom of another page about complaints in general, then click within a sentence about filing a disability complaint, which brings the reader to another page about filing complaints, at the bottom of which are links to various rules including Section 382.  There doesnít appear to be a way to go easily and directly to the rules.  Also, much of the information about disability issues is combined with information about other consumer issues.  For example, links to DOT guidance about disability issues are combined on a single long page with links to guidance about a myriad of unrelated issues, and the links are in chronological order rather than arranged by subject.  The website would be greatly improved by having a separate homepage about disability issues, including regulations, guidance, complaints, etc. The Justice Departmentís www.ada.gov website is an excellent model. 

The DOJ website includes informative, detailed quarterly and annual reports about enforcing the ADA that discuss specific cases.  The DOT report on disability related complaints is an aggregate summary of complaints and doesnít describe investigations and enforcement actions.  Does DOT have the resources to issue a more complete report similar to those issued by DOJ? 

I appreciate that investigating and enforcing the civil rights of airline passengers with disabilities is difficult and DOTís resources are limited.  It is not my intention to add unnecessarily to your burden; everything Iím asking for is reasonable.   

What are my rights to appeal, both within and outside DOT, the decision not to pursue enforcement action and other aspects of DOTís decision? 

Thank you for your time.  Although Iím being persistent and thorough, this does not reflect any intention to question your professionalism, diligence or experience. 

Sincerely, 

Howard Chabner

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