Airline Consumer Seat Review must focus on DoT’s Deregulation and FAA’s safety limits

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The Advisory Committee for Aviation Consumer Protection is reviewing airline seats. The press on this initiative cites both comfort considerations and safety concerns. The recommendations of the panel are not binding. If ACACP issues a poorly crafted advisory opinion mandating some seat standard, such advice could cause significant legal problems for the FAA (in the absence of hard safety data) and would be virtually impossible for the DoT to implement.

The ACACP Charter states what issues about which they may inquire:

a. Evaluate existing aviation consumer protection programs and provide recommendations to the Secretary for the improvement of such programs, if needed; and

b. Provide recommendations to the Secretary for establishing additional aviation consumer protection programs, if needed.

The group, which follows the guidance from the Assistant General Counsel for Aviation Enforcement and Proceedings, will serve as the Designated Federal Official.

As a lawyer, the Assistant General Counsel likely has clarified the statutory limits of the Secretary and the FAA. The CAB’s jurisdiction over airlines was transferred/limited to the DoT by the Airline Deregulation Act of 1978. The basic premise of that seminal legislation was that the government should no longer regulate the routes, rates and services of the airlines.  Based on that guidance, it would be difficult, if not illegal, to set a consumer regulation as to the comfort of seats.

The FAA’s legislative authority focuses on safety. The agency’s actions must be based on substantial evidence that a new rule would establish a minimum standard required by safety. It would violate its statute if it promulgated a rule which is not justified as assuring passenger safety.

The advisory group’s consumer representative, Charlie Loecha is quoted as saying that “the government sets standards for the conditions for dogs flying as cargo but doesn’t dictate minimum space standards for passengers.” “In a world where animals have more rights to space and food than humans,” Leocha said, “it is time that the DOT and FAA take a stand for humane treatment of passengers.”  Mr. Loecha did not listen to the Assistant General Counsel’s review of what the DoT or FAA may do; his declaration clearly ignores what Congress has passed as the limits of their powers.

As a factual predicate for the ACACP’s judgment, they called witnesses from the Federal Aviation Administration’s Civil Aerospace Medical Institute, the Centers for Disease Control and Prevention. They also asked the inventor of the Knee Defender, a device which prevents the airline seat in front of you from reclining. Many of their questions and much of the testimony related to what the FAA might do.

The wisdom of the Airline Deregulation Act’s reliance on competition to respond to the needs of consumers is demonstrated by recent developments. The second article and the picture of a row of seats above show the power of market pressures on airlines. Southwest, the airline which met the expectations of the Deregulation policy with low costs and low fares, will install seats “which are wider than current seats, and include an adjustable headrest and increased legroom, as well as more personal stowage, while decreasing the overall weight of the product.”

The last words of that statement assure that the airline will remain competitive. Dr. Kahn, the economist professor, a CAB chairman and the putative father of Deregulation, would find that the marketplace worked as projected. That’s good because the DoT would be hard-pressed to issue rules on airline services.

Kudos to the Committee, for they followed an outline directed towards possible safety regulation. They asked these questions among others:

· about crowded seating and the risk of deep vein thrombosis (answer: the seating configuration is not the problem; inactivity is; higher risks come–recent surgery, active cancer, estrogen use, pregnancy, limited mobility, family history, older age and obesity);

· the likelihood that passenger confrontations are caused by the tighter pitches; there was no hard evidence that air rage is solely caused by the tighter quarters;

· the most relevant line of inquiry about the narrow pitch and the decrease of the passengers’ ability to exit the plane during an emergency; here they asked Cynthia Corbett, an FAA researcher from the Civil Aviation Medical Institute. She explained that the FAA’s standards are based on tests of planes with 31 inches of seat pitch between airplane rows.

ACACP would be well advised to highlight in its report that the FAA’s CAMI should examine the merits of using lesser seat pitches for both the certification of the aircraft type and of the airline’s ability to manage such a stressful event.

[Note: the airlines made it clear that mandating larger seat pitches would lead to higher fares. The economic impact of a safety improvement must meet the OMB benefit cost test.]

Properly focused and justified, the Advisory Committee could make recommendations which might precipitate an FAA safety study of the standards used to evaluate emergency evacuation. If, however,  the group decides to follow Mr. Leocha’s comparison to the standards for animals in the cargo belly or his humane standard, the FAA can easily ignore such a request as beyond its jurisdiction.

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