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Oversold flight? The burden should be on the airline

You’ve booked your flight and paid for your ticket. Then you arrive at the airport and you’re told there’s no seat.

Denied boardings have gone down in 2017, but some passengers still receive a rude surprise when trying to board a flight they have a ticket for.(Photo: Nam Y. Huh, AP)

You’ve booked your flight, paid for your ticket, received a confirmation. And then you arrive at the airport and you’re told there’s no seat, despite your credit card already being charged.

Last month, with “Travelers’ rights: When reservations aren’t honored,” I recounted how I recently booked a rental car and subsequently found I wasn’t notified when there were no vehicles left in the fleet. That column addressed bogus bookings not only with rentals, but also with hotels, trains and buses.

But the airlines have turned “false” reservations into a topic so hot it’s dominated headlines this year. Ever since the mistreatment of Dr. David Dao on United Express Flight 3411 in April went viral, the closely intertwined but separate topics of overbooking and bumping have generated both attention and concern.

As we move into the busy holiday season, experts indicate America’s skies will be more crowded than they’ve been in years— and therefore the chances of being bumped are higher as well. Some of us would like to see involuntary denied boardings a thing of the past. But even if that doesn’t happen soon, there are still steps you can take to avoid Dr. Dao’s fate.

Seeking solutions

The airlines say bumping is a rare occurrence, which speaks to the tone deafness of how they regard customers. According to the U.S. Department of Transportation, there were 41,126 passengers bumped against their will by domestic carriers in 2016, so it wasn’t so rare they couldn’t fill a football stadium.

I’ll be the first to acknowledge there was once a time—back in the Mad Men era—when reservations policies placed airlines at a disadvantage. But that time is more dated than Don Draper’s fedora.

At the dawn of the jet age in the late 1950s, passengers were free to make multiple bookings without penalty, and many of them, particularly business travelers, did just that. The industry sometimes reserved seats on five separate flights for the same passenger, and was left with “no-shows” that cost carriers money. But in recent years such problems have evaporated, thanks to a confluence of events:
• no-show passengers are heavily penalized today, through both high fees and forfeiture of their seats, which in turn generates even more revenue for airlines AND allows them to sell the same seat twice
• the dark arts of yield management—coupled with greater market concentration due in large measure to mergers and consolidation—allows airlines to control their inventory in ways they couldn’t dream of 60 years ago
• interline agreements that allow passengers bumped on Airline A to fly on Airline B at no additional cost have been severely curtailed, primarily because major carriers have rescinded such agreements in the name of competition
• as I’ve noted here many times before, today’s record-high passenger loads, which averaged between the 50s and 70s percentage in years past, now average in the mid-80s.

Back in May I was the only consumer advocate to testify alongside five airline executives at a Congressional hearing called in the wake of Dr. Dao. On behalf of Consumers Union, I stated the following: “Essentially, we believe that if the airlines want to continue overbooking, the risk of ticketed passengers without seats should be entirely on the shoulders of the airline making that calculation, rather than on the passengers. The needed change is that all denied boardings should truly be voluntary. The airline should pay whatever compensation is necessary to convince a passenger to willingly give up the seat.”

Some advocates called for an outright ban on airlines being allowed to oversell, a position I understand and respect. But we adopted an approach the airlines themselves should understand, given that they constantly chant the mantra of the free market. Simply put: Airline executives want to sell more seats than they’re offering? Well, if so, then the burden should fall on the airlines.

In my testimony, I added that “there should be no arbitrary ceiling that results in any passenger ever being forced to give up a seat because of overcapacity or to give preference to another passenger deemed ‘more valuable’ to the airline. Again, the risk of overbooking should be on the airline choosing to overbook.” When one Congressman questioned this, I noted that not putting a cap on compensation inevitably leads to a “reverse auction”—does anyone truly believe United couldn’t have found an empty seat on Dr. Dao’s flight if the employees and outsourced employees had been empowered to offer a blank check?

More: Eight tips to make the most of your next flight

How it works

The good news is DOT stats indicate things are slightly better this year; the latest numbers—reflecting the first six months of 2017—show almost 3,000 fewer involuntary bumpings, for a rate of 0.52 per 10,000 passengers, compared to 0.62 during the first half of last year.

But John Breyault, vice president at the National Consumers League, told me: “Since the Dr. Dao incident, I’m somewhat more optimistic that the airlines’ bumping policies have improved, particularly as it pertains to providing appropriate compensation to encourage volunteers to give up their seats. That said, absent action by Congress there will continue to be pressure on the airlines to overbook their flights, which will lead to more incidents like what happened to Dr. Dao and many others.”

Until such action, passengers on U.S. airlines currently have very few options. Your “rights” are outlined on the DOT’s site, www.transportation.gov/airconsumer/flights-and-rights and it’s sobering. The DOT puts it thusly: “While it is legal for airlines to involuntarily bump passengers from an oversold flight where there are not enough volunteers, it is the airline’s responsibility to determine its own fair boarding priorities.” Obviously the devil lives in that definition of “fair.”

That said, here are the DOT’s minimum required guidelines:
* 0 to 1 hour arrival delay: no compensation
* 1 to 2 hour arrival delay: 200% of one-way fare (but no more than $675)
* over 2 hour arrival delay: 400% of one-way fare (but no more than $1350)

An important note: Not all bumping is due to overselling. For example, JetBlue’s contract of carriage states passengers are not entitled to denied boarding compensation if:
• they don’t fully comply with provisions on ticketing, reconfirmation and check-in
• they don’t comply with provisions on “acceptability for transportation”
• an aircraft of lesser capacity is substituted for “operational or safety reasons”
• accommodations are seats in sections other than that specified
• alternate transportation is arranged that arrives no later than one hour past scheduled arrival time
• they accept voluntary compensation

As a former airline dispatcher, I recall many occasions in which weather, high winds and other factors affected weight and balance and necessitated lighter loads, and safety trumps all. However, it should still fall on the airline—which collected your money—to properly accommodate you in all situations.

Not-so-fine print

The reason many of us suggest that Congress implement a meaningful Passenger Bill of Rights was detailed here in July with “Contracts of carriage: Deciphering murky airline rules.” Unlike in the European Union, where there are comprehensive, consistent and easily understood Air Passenger Rights to protect against policies such as overbooking, in the U.S. we’re all at the mercy of each carrier’s individual contracts, which I termed “a patchwork quilt of dense, consumer-unfriendly documents.” These are one-sided agreements, but they’re quite binding once you swipe your credit card.

More: Flier's rights: Your recourse for common airline glitches

JetBlue and Southwest state they won’t intentionally overbook, but that doesn’t mean it still can’t happen. Consider that despite such official policies, JetBlue’s 54-page contract of carriage still addresses oversales and details denied boarding compensation policies. Same for Southwest’s 41-page contract.

Just 19 days after Dr. Dao’s forcible removal, United CEO Oscar Munoz announced his carrier would “increase customer compensation incentives for voluntary denied boarding to up to $10,000.” Well, guess what? It’s been more than six months since that statement, and as of now United’s 51-page Contract of Carriage STILL doesn’t include this $10,000 provision. In fact, the fine print reiterates the lower $675/$1,350 maximums already mandated by law.

Charlie Leocha, founder of passenger advocacy organization Travelers United, summed it up succinctly in April: “Any statements about boarding priority rules made publicly by [United] as long as they do not change their Contract of Carriage cannot be believed.” 

Breyault summed it up: “As usual, the industry has had to be dragged (pardon the pun) kicking and screaming towards pro-traveler policies. It is outrageous that it literally took a passenger being assaulted to get the industry to do the right thing and address the problem of overbooking. Unfortunately, until the root cause of this conduct—a lack of competition in the industry—is addressed I fear that there will continue to be a race to the bottom as the airlines seek to squeeze ever more profits out of increasingly outraged passengers.”


Keep the following in mind if you find yourself bumped. (Much of the advice I offered last month concerning denied reservations from hotels and other transportation modes also applies here.)

• Always confirm your reservation by checking in electronically; passengers who aren’t confirmed are most vulnerable.

• Most airlines offer flight notifications via email or text, which can help avert some crises.

• Always record and/or print confirmation numbers. If you’re bumped, record the specifics: names, dates, times, flight numbers, etc.

• You’re entitled to cash compensation when bumped, but beware that many airlines will attempt to offer you credit for future flights. Since such compensation may not cover such costs, you’ll be enticed into paying even more.

• A good travel agent can assist you with rebooking.

• It’s important to pay for all travel purchases via credit card, for protection under the Fair Credit Billing Act.

• File a formal complaint with the airline online. Be specific about asking for compensation.

• Also file a complaint with the DOT; it may seem arbitrary, but it’s how the department determines the severity of consumer issues.

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