By Travel writer
msnbc.com contributor
updated 3/27/2008 3:34:16 PM ET 2008-03-27T19:34:16

The plot thickens — or should that be sickens?

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On Monday, the Transportation Committee of the California State Assembly approved a measure creating a statewide Airline Passengers’ Bill of Rights.

On Tuesday, the 2nd U.S. Circuit Court of Appeals struck down the New York State law that the California legislation was modeled after.

And by Wednesday morning, a steady stream of blog posts and press releases had the issue dead in the water, back on track in Congress or on its way to the U.S. Supreme Court.

Meanwhile, travelers from coast to coast are wondering: Does it really take an act of Congress or a Supreme Court decision to get decent, humane treatment on an airplane?

Overturned laws and pending legislation
As my colleague, Christopher Elliott, pointed out earlier this week , the 2nd Circuit Court threw out the New York law on the grounds that only the federal government has the authority to regulate the airline industry.

The problem, of course, is that Washington has shown precious little initiative in passing such legislation. It’s been almost a year since the Senate Commerce Committee passed the Boxer-Snowe Passengers Bill of Rights as part of the FAA Reauthorization Bill. Unfortunately, the latter has been in limbo ever since.

Hence, the press release Senator Boxer put out after the New York law was overturned: “With the summer travel season approaching, Americans nationwide will face the prospect of endless delays and no guarantee of service — the airline industry has proven its inability to protect passenger rights. Congress must put into place some sort of minimum standard.”

To jumpstart that effort, Senators Snowe and Boxer have sent letters to the Chairs of the Finance and Commerce Committees, the two groups holding up the FAA Reauthorization Bill, urging them to bring the bill to the Senate floor without further delay. Alas, given the jumble of funding issues that remain unresolved in the larger bill, I wouldn’t hold my breath for a speedy response.

Service is as service does
Meanwhile — and despite the 2nd Circuit Court’s ruling — things are no more certain on the judicial front. That’s because the Court’s interpretation of the law is, well, open to interpretation.

It breaks down like this. The New York bill was crafted as a health and safety issue in order to avoid running afoul of the Airline Deregulation Act (ADA) of 1978. Under the principle of pre-emption, the ADA prohibits individual states from enacting any laws “related to the price, route or service of an air carrier.”

The key word is “service,” which New York State interpreted as dealing with the act of getting passengers from Point A to Point B, but not with such issues as providing food, water and working toilets. The law, argued the State, doesn’t violate the standard for pre-emption.

Needless to say, the Court disagreed, passing down a unanimous decision that requiring airlines to provide the above amenities does, in fact, constitute “service” and that New York had overstepped its regulatory bounds.

So far, so clear. But other Circuit Courts have ruled that the ADA only covers transportation services and not ancillary amenities. In 1998, the 9th Circuit Court ruled that “service” referred to “the prices, schedules, origins and destinations of ... point-to-point transportation,” opening the door for the states to regulate everything else.

Which brings us back to the California measure. If it becomes law and gets contested, it could end up in the 9th Circuit Court. (The 2nd Circuit Court decision only applies to New York, Connecticut and Vermont.) Given the Court’s previous ruling, it could very well uphold the measure, putting it in direct opposition to the ruling in New York.

The brethren and the back of the bus
That’s why some observers see this heading for the Supreme Court. (For the record, no one involved has announced any plans to go that route.) As Christopher Elliott put it, all it would take is for a Supreme Court justice to have a bad flight to get the case on the docket.

I’m not so sure, and given the Supreme Court’s makeup, I’m even less convinced that they’d decide in favor of the flying public. Not only have recent decisions favored big business over governmental oversight, but it’s a safe bet that the brethren have little personal experience with the problem at hand. I’m pretty sure that Justice Scalia — the Court’s most active traveler — has never spent half a day wedged between two overweight widget salesmen in row 37.

So, call me crazy, but wouldn’t it make more sense for the airline industry to put all the time and money they’ll spend fighting the proposals into providing services — however they’re defined — that treat passengers as people? Forget the legal issues; we’re talking basic customer service, not to mention a potential windfall of good public relations. With the summer travel season less than two months away, the issue of passengers’ rights needs to be resolved right now.

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