David Zalubowski/AP Photo
Travelers queue up at the north security checkpoint in the main terminal of Denver International Airport, May 26, 2022.
Last week, even before the coming holiday rush, about one-tenth of all scheduled flights at Boston’s Logan Airport were canceled, and more than a third were seriously delayed. Most observers expect next weekend to be much worse.
As I explained in this piece the week before last, the basic problem is that the airlines got rid of too much staff during the pandemic via attrition and promotion of early pilot retirements, and they have been far too slow to staff back up because this cuts into their profits. This despite more than $60 billion in federal pandemic airline bailout aid conditioned on no layoffs.
As a consequence, there are not enough crews to fulfill advertised schedules. The question of which flight happens to get canceled is just a game of musical chairs. Before the pandemic, airlines had reserve crews, so that if a crew could not get to where it was needed because of a mechanical or weather delay, a backup crew could be found. Now there are too few to meet basic scheduling needs assuming perfect conditions.
I pointed out in that piece that Transportation Secretary Pete Buttigieg, perhaps with his eyes on his next big job, has authority to crack down on these abuses that he has not been willing to use. FAA officials challenged my contention. Since then, I’ve taken a deeper look, and DOT’s authority is clear.
In the 1978 Airline Deregulation Act, Congress left fares, routes, entry, and exit up to the airlines, but it gave the transportation secretary broad authority to crack down on airline consumer abuses. Specifically, the language empowered the secretary to regulate against “unfair and deceptive practices or unfair methods of competition.” Selling tickets for flights, knowing that crew shortages will force you to cancel thousands, would seem to epitomize both deceptive practices and unfair competition.
But in refusing to act, the FAA and its parent are hiding behind a regulation issued by Trump’s administration at the behest of the airlines. The midnight regulation, which sought to weaken the DOT’s general authority under the 1978 statute, was issued in late November 2020, after Trump lost the election.
This gets a little wonky, but please stay with me. The right and its industry clients know the details of the regulatory state and how to undermine it all too well. Progressives need to be at least as well informed and as strategic.
In 2010, acting on his residual authority under the 1978 law, then-Transportation Secretary Ray LaHood issued a rule fining the airlines $27,500 per passenger for excessive tarmac delays. After three hours, the airlines had to allow passengers to go back to the gates or face penalties.
In order to clip DOT’s wings, airline lawyers and lobbyists then wrote the rule that Trump issued in November 2020. The Trump rule seeking to reinterpret and limit DOT’s statutory authority is modeled on other rules that sought to rein in other regulators.
But that rule did not and cannot revise the statute itself. So DOT has the power to initiate a new rulemaking to strengthen rather than weaken the transportation secretary’s authority under the statute.
DOT has ample authority to launch its own investigation of the industry’s understaffing and its alleged pilot shortage.
On Friday, June 17, Buttigieg met with airline execs in a session that by all accounts was polite and cordial. Buttigieg told NPR, “These airlines have gotten a lot of public support to try to keep the system resilient. And now we’re looking to them to make sure that their operations are reliable, and importantly that when there is a disruption or delay … they get somebody on the phone and get that customer service to help work through it.”
Pretty tame stuff. Right after the meeting, Buttigieg got a text message on his cellphone that his own flight from Washington to New York had been canceled. He ended up driving. It was one of 1,400 cancellations that Friday, on top of 1,700 on the Thursday.
We can hope the transportation secretary, already on the defensive, will take a somewhat more assertive tone after the coming July 4th airline mess. Senators Ed Markey and Dick Blumenthal have called for an airline passengers bill of rights, modeled on legislation in Europe and Canada. Support for that idea would be a good start.
In the meantime, DOT has ample authority to launch its own investigation of the industry’s understaffing and its alleged pilot shortage. There are not very many areas of bipartisanship right now, but Republican legislators and their constituents are as badly inconvenienced by the arrogance of the airlines as Democrats.
Some of Biden’s other appointees, especially those at the FTC and the Justice Department’s Antitrust Division, have been models of how public officials can act for consumers and serve as counterweights to powerful and corrupt industries. Secretary Buttigieg could learn from their example.
