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Tuesday, May 26, 2015

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No Exceptions

By Paul Hudson
President, Flyersrights.org, Pubic Member, FAA Aviation Rulemaking Advisory Committee
With assistance by Andriana VanderGriend, Johannes Munter & Richard Baxley

Editor's Note: This article may be republished with attribution.

On April 3, 2015, Karen Momsen-Evers, a Southwest Airlines passenger, received a text message from her husband shortly before her plane was to taxi that read, "Karen, please forgive me for what I am about to do, I  am going to kill myself..."  She panicked and told the flight attendants, who absolutely refused to let her communicate with her husband to dissuade him by cell phone or through the flight deck telephone. 

After the 2 ½ hour flight, she was informed by the police that her husband had indeed killed himself during the flight.

This situation raises several important questions. What FAA regulations apply? What policies and training do flight attendants undergo for passenger emergency situations?  What legal recourse does a passenger have? What should be done to help passengers prevent tragedies in the future?  What can a passenger faced with a family emergency do as a practical matter when on an airliner?

FAA Regulations Re. Passenger Emergencies

The FAA regulations do not permit the use of cell phones except on landing, but do permit use of cell phones for "emergency" related communications. At present, passenger personal emergencies are not specifically included or excluded in the definition of "emergency."

Most airlines including Southwest permit and even encourage passengers (for a fee) to use their personal electronic devices with WIFI connection once the flight is airborne over 10,000 feet. Skype and other services allow telephone voice over internet communications, email and text messages. 

Crew members are also allowed to use onboard communications equipment as long as it does not interfere with their duties or put anyone on board at risk.

Airline Policies And Training

Southwest and most airlines allow passengers to use cell phones after landing while the aircraft is taxiing. Southwest policies provide that flight attendants should notify the Captain in situations of emergencies, but arguably do not include passenger emergencies that do not involve operation of the aircraft.

Southwest issued this statement: "Our hearts go out the Evers family during this difficult time.  Our flight attendants are trained to notify the Captain if there is an emergency that poses a hazard to the aircraft or to the passengers on-board.  In this situation, the pilots were not notified."  Then the company offered to refund the cost of her plane ticket.

Southwest policies also require the passengers to comply with flight attendant requests at all times regarding electronic devices.  

Flyersrights.org contacted for comment the flight attendants unions representing most flight attendants (the Association of Flight Attendants) and the union representing Southwest Airlines flight attendants (the Transport Workers Union) on this issue, but is still waiting for a response.

Legal Recourse

Intentional or emotional infliction of emotional distress is a common law tort, but one that is rarely successful and disfavored by the courts.  A key element is the conduct must be clearly "outrageous", and while this should be largely a matter for a jury to decide, most such cases are dismissed by judges at initial stages of the litigation.

Needed Reforms Re. Airline Passenger Emergencies

As the passengers and flight crews can now be in communication by telephone and other personal electronic devices with the outside world, passenger family emergencies some involving life or death situations are bound to re-occur.  Accordingly, while always keeping in mind that flight safety is paramount, air travel needs to accommodate the modern interconnected world.

Accordingly, Flyersrights.org will recommend the following:

Proposed Guidelines for the FAA & Airlines re Passenger Emergency Situations

In the wake of the Southwest Airlines passenger whose husband committed suicide while she was onboard a flight from New Orleans, LA, to Milwaukee, WI, the FAA should release an Advisory Circular proposing best practice guidelines for airlines to follow in non-medical passenger emergencies.  

Existing FAA regulations fail to address passengers' personal emergencies adequately leaving the airlines with no guidelines as to handling irregular situations.  

FlyersRights.Org proposes the following guidelines:
  • Expand the definition of "emergency" in existing FAA regulations to include passengers' personal emergencies not directly related to the safe operation of the aircraft.
  • Expand the definition of "safety" in existing FAA regulations to include passengers' personal safety not directly related to the safe operation of the aircraft.
  • Advise airlines to assist passengers' personal emergencies and safety insofar that it does not delay the flight more than ten minutes, or once airborne, that it does not substantially interfere with the cabin crew or flight deck from their duties or from the safety of other passengers.
  • Advise airlines to allow passengers to use personal cell phones during ground operations, up until the aircraft reaches the runway threshold, for emergency situations.
  • Advise airlines to allow the flight deck to use the onboard telephone in order to aid passengers' personal emergencies.
Practical Steps For Passengers Faced With A Family Emergency

If on the tarmac or taxiway, advise the crew that you have a matter of life and death and in a loud voice if necessary, that you be allowed to exit the plane, refuse to sit down, make a fuss so the pilot returns to the gate.  If in the air, WIFY Skype calls are possible, and you can demand in writing and verbally the captain be made aware of your situation and need to communicate. 
 Probability & Statistics 

With record Memorial Day travel behind us, how's this summer shaping up for air travelers?

Before you can answer that, the airline lobbyists already did!

Airlines for America, powerbrokers best known for being 'in bed' with Congress, predicts:
  • U.S. passenger airlines achieved strong operational performance and improved profitability in the first quarter despite another 'harsh winter' (well, not so harsh).
  • Improving finances benefit customers, employees, investors and the overall U.S. economy (nono and maybe).
  • U.S. passenger airlines' operational performance improved markedly year over year as airlines invested in systems, procedures and staffing operations. (What?!!)
Probably over 90 percent of problems we get at FlyersRights involve delays and cancellations. And they're not weather-related; they stem from lack of flight crews to maintenance problems to lack of timely information. The airlines may apologize, but do nothing to ensure it doesn't happen again. There is little to no recourse from the FAA or DOT.

The source of the passenger dissatisfaction has much to do with the fact that the three largest US airlines have a combined monopoly over the nationwide US air network — from city-to-city domestic routes to international connections. Passenger plight nowadays is akin to the frustration generated by the monopolistic cable television or cell phone industries in the US, where the respective markets are dominated by an insensitive few.

Many seem upset the airline industry does not serve the traveler — but why should it? It has powerful friends in Congress and in the regulatory agencies.

Last summer may be best remembered for 'air rage,' knee-defenders and drinks thrown at recliners. Though entertaining, the argument seems to blame the victim for suffering from the crime.

Specifically, the assertion: "The only way airlines can make money is to schedule more flights, cram more seats into the planes and manage their yield so that the planes fly fuller," fails to acknowledge the implicit assumption that money cannot be made in a business by reducing costs.

The Wall Street Journal posted its annual statistics for the best and worst airlines. Alaska Airlines and Virgin America, both well known for their good customer service, placed at the top of rankings — which shows that profitability does not have to come at the expense of the customer. Effective management will be able to reduce costs at the same revenue level to improve profitability.

Of course, mergers have reduced competition, which leads to all kinds of pricing and service "understandings" that permit rate hikes and fee increases without ever a shadowy backroom meeting.

This is modern capitalism at its worst, where restraint of trade is more profitable than expensive and uncertain innovation. Keep the foreign airlines out, and a fat, protected market for local carriers.

No wonder the Big Three (AA, DL, UA) are fighting hard against international competitors. No oligopoly likes new, strong entrants which challenge the status quo with a better product at lower prices.

Even Republican trickle-down defenders can see that current market forces are out of wack here. Such "invisible hands" exist only in text books today. These are robber barons in action, not market forces.

FlyersRights has said many times that the airlines should be investigated for possible collusion and/or violation of the Sherman anti-Trust Act.  With the airline industry — as in most — the answer is trust busting. It worked for Teddy Roosevelt, and should work now in the New Gilded Age.

As is becoming all too common, we see the USA resting on the laurels of its past greatness, oblivious to an outside world that is accelerating past it.

Getting on a Plane? 
Put This Number in Your Phone:
1 (877) Flyers6
  1 (877) 359-3776
The FlyersRights HOTLINE!

We publish weekly newsletters. There's no charge to receive any of them.

FlyersRights is a nonprofit organization that depends on contributions from people like you. 

Please help us make flying a better experience or simply show your gratitude for whatever value you find in our work 

by making a tax-deductible donation: http://flyersrights.org/fund/

Tuesday, May 12, 2015

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                       Prix Fixe                                                                   May 12, 2015

Transpacific Airlines Class Action Settlement

A $39.5 million price-fixing class action settlement has been reached with eight out of 13 airlines accused of conspiring to fix the prices of airline tickets for travel between the United States and Asia/Oceania.   

As a result, ticket purchasers may have paid more than necessary.  

If you purchased an airline ticket that included at least one flight between the United States and Asia, Australia, New Zealand or the Pacific Islands, and the airline ticket was purchased from Jan. 1, 2000 and the present, you may be eligible for benefits from the transpacific airline class action settlement. 

The settling defendants include: Air France, Cathay Pacific, Japan Airlines, Malaysian Airlines, Qantas, Singapore Airlines, Thai Airways, and Vietnam Airlines. However, there are still five non-settling airlines, who are also defendants in this class action lawsuit: Air New Zealand, All Nippon Airways, China Airlines, EVA Airways and Philippines Airlines. 

The consolidated class action lawsuit, called "In re Transpacific Passenger Air Transportation Antitrust Litigation", was filed in 2009, alleging "a long-running, international conspiracy" by several airlines that fly from the United States to Asia and the region to impose "airfair increases, including surcharge increases, on international air passengers that were in substantial lockstep both in timing and amount."  

The class action lawsuit alleged that the airlines violated antitrust laws. 

The consolidated transpacific airline class action lawsuit came after several lawsuits were filed against some of the airlines by the U.S. government and investigations by the Justice Department. 

The plaintiffs included residents from California, Washington State, New York, Canada and Japan, and the defendants in the initial complaint included 19 airlines. 

The airlines in the price-fixing class action lawsuit were charged with violating the The Sherman Act, which includes the federal antitrust laws. 

The airlines have agreed to pay $39,502,000 into the settlement fund. There are separate subclasses for each of the named airlines above [see below for more details on who is included in the settlement]. 

Persons who purchased tickets between the US and Asia, Australia, New Zealand, or the Pacific Islands since 2000 may be eligible for a cash award.

  • Air New Zealand (Non-Settling Defendant);
  • All Nippon Airways Company, Limited (Non-Settling Defendant);
  • American Airlines, Inc. (Alleged Co-Conspirator);
  • Asiana Airlines, Inc. (Alleged Co-Conspirator);
  • British Airways, Plc. (Alleged Co-Conspirator);
  • Cathay Pacific Airways Limited (Settling Defendant);
  • China Airlines Limited (Taiwan) (Non-Settling Defendant);
  • Continental Airlines, Inc. (Alleged Co-Conspirator);
  • Delta Airlines, Inc. (Alleged Co-Conspirator);
  • Deutsche Lufthansa AG (Alleged Co-Conspirator);
  • EVA Airways Corporation (Non-Settling Defendant);
  • The International Air Transport Association (Alleged Co-Conspirator);
  • Japan Airlines International Company, Ltd. (Settling Defendant);
  • Korean Airlines, Ltd. (Alleged Co-Conspirator);
  • KLM Royal Dutch Airlines (Alleged Co-Conspirator);
  • Malaysian Airline System Berhad (Settling Defendant);
  • Northwest Airlines Corporation (Alleged Co-Conspirator);
  • Philippine Airlines, Inc. (Non-Settling Defendant);
  • Qantas Airways Limited (Settling Defendant);
  • Scandinavian Airlines System (Alleged Co-Conspirator);
  • Singapore Airlines Limited (Settling Defendant);
  • Societe Air France (Settling Defendant);
  • Swiss International AG (Alleged Co-Conspirator);
  • Thai Airways International Public Co., Ltd. (Settling Defendant);
  • United Airlines, Inc. (Alleged Co-Conspirator);
  • Vietnam Airlines Company Limited (Settling Defendant); and
  • Virgin Atlantic Airways, Ltd. (Alleged Co-Conspirator).
It does not appear that proof of purchase is required to fill out the claim form, but all claims are subject to audit and may require proof of purchase in the future.

Objections to the settlement have been filed by the Class Action Fairness Center and a class member alleging that the settlement should include actual notice to class members instead of just publication,  that the legal fee claims of over 40% are excessive and other details need to be disclosed and clarified.  

The plaintiff lawyers filed their responses on May 8th and a final hearing is set for May 22 in San Francisco.

This appears to be a settlement that should provide affected travelers who file claims with very significant cash awards unlike most class action settlements.

For further info contact Paul Hudson at: paul@flyersrights.org or 800-662-1859

To file a claim, see below.

Claim Form Deadline: 9/19/2015 ESTIMATED 

If the Court approves the Settlement, class members will have 120 days after the Settlements become final and effective to file your claim. The earliest this deadline will be is Sept. 19, 2015. 

Case Name:
In Re Transpacific Passenger Air Transportation Antitrust Litigation, Case No. 07-CV-5634-CRB, MDL. 1913, in the U.S. District Court for the Northern District of California. 

Final Hearing: 05/22/15, 10 am

Settlement Website: https://AirlineSettlement.com 

Claims Administrator:
Rust Consulting
Transpacific Air Settlement
P.O. Box 2209
Faribault, MN 55021-1609

Your Letters!

Dear FlyersRights:

The claim "passengers have no way of knowing what data is captured, how long it is retained, how it is used, and who it's shared with" has always been true; way back when, in the days of calling the airline or visiting a travel agent to buy a ticket, they recorded your name, your fellow passengers, where you wanted to go, and when you wanted to get there. You went to the airport and you checked in with your paper boarding passes, which were collected and aggregated or were electronically counted by the boarding agent. There were DEC and VAX mainframes in the background recording this data and there were analysts building new products and pricing models on this data. You were never presented with an option for opting out of this process. If you left your mailing address or telephone number, the airline may even have sold your information to junk mailers, who proceed to send you postcards on timeshares in Florida. After all, you flew there, right?

Fast forward to today, and nothing much has changed, except that the data is more accurate and there is much more of it.


Dear FlyersRights:

I don't understand "And through the Freedom of Information Act, Disney reportedly hands over to the Department of Defense all data on their customers" - FOIA governs/mandates access to government-held data, has nothing to do with private businesses -- let alone mandating their providing it TO government.
And regarding...
By grabbing the cookies that each web user brings with them when they visit an airline's e-commerce website, an airline can find out what other sites a given consumer visited and what other searches they performed before purchasing a ticket.
...I don't think cross-site cookie access is possible -- modern browsers prevent that. But third-party cookies work. Still, you've oversimplified cookies as though every site can read every other site's cookies.
The problem is that cookies set on one site CANNOT be read by another site. In other words, cookies set on siteA.com cannot be read by siteB.com.
So the work-around used is to store a third-party cookie (i.e. a cross-domain cookie). When a user visits siteA.com, a cookie is not only set for siteA.com but also for a common domain which is accessed by all sites that use the ad-company's code.
To the second issue: 
How do advertisers use cookies to track your online behavior?
Advertisers follow your movements from site to site and build a database of your online activity with so-called "third-party cookies".
How do these tracking cookies work? To begin with, you are always the first party, and the cookies you receive when you visit a website are the second-party cookies. 
Usually, websites let advertising networks place ads within their pages. If you click on an ad, another cookie is sent to your browser by the advertiser - that's the third-party cookie. With every new site you visit that's related to that particular advertiser, the third-party cookie can be traced. This way, the advertiser learns about your online habits and can build up a consumer profile of you - that's behavioral tracking.

To the first issue: Freedom Of Information Act requests are requests for information to government entities or private entities performing governmental functions with public monies. 
According to documents that came to light under FOIA, Disney's ties to the government go back to the 1940s.
FlyersRights has been following the increase in surveillance of travelers for years - via airport beacon tracking, with inflight wifi, and the airlines datamining of frequent-flyer programs or when passengers buy tickets.

Disney is mentioned because much of the technology originates with Disney. They are the pioneers of data warehousing and surveillance and going back decades. 
Some have commented that a certain amount of surveillance is essential for the public good. But there is a line between what is essential for the public good and invasive total-information awareness technologies, and that line is easy to cross if unattended. 
As Congress debates renewal of the Patriot Act, it is timely to weigh in on this with your elected representatives.
Kendall Creighton
Dear FlyersRights:

AA canceled my flight at the very last moment, ruined a one-day trip that I had meticulously planned months ahead of time, AA refused to rebook me even on sister carriers or non-direct routes, and then AA refused to offer any refund or credit back and then had the audacity to proceed to continue to charge me extra money for the nonexistent premium aisles seats that never materialized on the plane that was never sent and never showed up, for a flight that was canceled but not rescheduled.

Sorry for your difficulties with American Airlines. We are working on a new passenger Bill of Rights which would create automatic compensation for delays and cancellations such as yours. 

If you do not receive a satisfactory answer from AA you should file a complaint with the Department of Transportation at www.dot.gov/airconsumer and consider a small claims lawsuit against American. If you have further questions do not hesitate to contact me. Please consider a donation to flyersrights at www.flyersrights.org.

Joel J Smiler DVM
Hotline Director

Hi Paul,
Heard you on WWL radio New Orleans.
Could you send me information on compensation for flight delays?
Thank you,

Michael A.

Dear Michael,

Here you go.  If this info is helpful to you, we hope you would consider a donation to Flyersrights.org as we depend entirely on contributions from the traveling public.

Also, as we attempt to get the DOT to stop airlines from hiding flight delay compensation rights, and to correct their obsolete publication Fly Rights that incorrectly claims passengers have no compensation for flight delays and cancellations, we would appreciate your relating any stories where you or people or company have been affected by flight delays, particularly those not based on bad weather.   

This is not a small matter, as there are about 40 million passengers a year that suffer from international flight delays from the US alone.

Paul Hudson, Pres.
877-FLYERS6 hotline

News of the Week:

Rep. Bill Shuster Aided Virgin Islands-Then Asked For Cash:

Dear Reader: Any citizen can ask the Office of Congressional Ethics to investigate potentially unethical behavior by members of Congress. 

This agency is independent of Congress and has the power to recommend the House Ethics Committee conduct an investigation. 

It is located at: http://oce.house.gov/

Getting on a Plane? 
Put This Number in Your Phone:
1 (877) Flyers6
  1 (877) 359-3776
The FlyersRights HOTLINE!

We publish weekly newsletters. There's no charge to receive any of them.

FlyersRights is a nonprofit organization that depends on contributions from people like you. 

Please help us make a more ethical air travel experience or simply show your gratitude for whatever value you find in our work by making a tax-deductible donation: http://flyersrights.org/fund/

Tuesday, May 5, 2015

Data For Dollars
May 5, 2015
We all know about passengers' data driving big dividends. 
But lately the airlines have made it a primary focus: Big Data and ancillary revenue; two industries that have absolutely exploded in recent years.
Perhaps you knew about the TSA, Google and Facebook collecting data, but you didn't know about the airlines or Disney. How much is too much? When can we regulate this and tell businesses what they can can can't collect? 

A New Source Of Revenue

Today, airlines are getting real-time data about customers as they go through the many touch points of any trip-booking, check-in, security, visiting an airport lounge, on the flight and after they return home.
Booking a flight involves giving up a lot of information; address and credit card, plus it reveals profitable metrics like gender and preferences for travel destinations. 
The airlines might already be making money with your personal information by selling it to third-party marketers, as they all reserve the right to share or sell passenger data in their privacy policies.  

The issue is, passengers have no way of knowing what data is captured, how long it is retained, how it is used, and who it's shared with, because it is concealed behind so much secrecy, including non-disclosure rules.
Data collection also includes storing vast amounts of customers' web traffic data when you book a flight online. By grabbing the cookies that each web user brings with them when they visit an airline's e-commerce website, an airline can find out what other sites a given consumer visited and what other searches they performed before purchasing a ticket.
Officially, airlines say they are mining this data to improve customer service to enhance the 'flying experience'. 
Yet it's also clear they have the potential of mak­ing a for­tune by gath­er­ing infor­ma­tion about you and sell­ing that infor­ma­tion for profit. 

Ironically, pri­vate com­pa­nies are almost more eager to invade your pri­vacy than the gov­ern­ment is.

Learning At The Knee Of Disney
For decades Disney has been the one of the leader and a top inventor of data-mining and surveillance technology, which has in turn been licensed to governments, corporations and the airports
The data goldmine Disney collects on their park attendees includes vast biometric details. What you eat, how you walk, all the camera photos Disney took with their advanced facial recognition platform, and fingerprints, because you have to give your thumb or your fingerprint to get into the parks. 

Who else could now have that data? Government, your insurance agency, opposing counsel, advertisers, the list is endless. And Disney, just like the airlines, are under no legal obligation to report who'll have access to that data. 
And through the Freedom of Information Act, Disney reportedly hands over to the Department of Defense all data on their customers.
But nothing more deftly captures the future of data mining than Disney's "MagicBands". 

A forcibly disassembled MagicBand, revealing a cell battery, RFID chip, coiled and copper antennae, microcontroller and integrated circuit, plastic battery and IC housing. photo: Ian Bogost
An electric tagging device that some might say resembles parolee-wear, the bracelets give Disney unprecedented insight into a visitor's every physical move through the amusement park. 
And when the visitors go home they continue to be tracked, if they keep their bracelet with them.

In a fascinating article by Christopher Elliott, it's amazing how quickly we are all prepared to give up our privacy.
Mission Creep
The same Disney tracking technology is being copied at airports.
Tracking beacons are little wireless sensors that tell apps in your smartphone that you are nearby. They are ubiquitous, unregulated and coming to a location near you. 

According to the Homeland Security Newswire, billions are being invested in the development and manufacture of biometric technologies capable of detecting and identifying anyone, anywhere in the world - via face, iris and voice recognition ID software, and so on.
Advertisers And The Surveillance Industry Salivate
Most of us feel that giving our data over to a private corporation, like Disney or the airlines, has limited scope. They can only reach us in certain places (e.g., their parks, their websites). And what's the worst those parks and websites are going to do?
Feels low risk. No big deal, because the power lies with us, the purchasers, to act. What's the worst that can happen?
Well, while they increase our happiness, we are creating a world devoid of liberty and privacy that not even the brightest science fiction writers could have imagined 20 years ago. 
The insistence from the airlines that it's just about 'anticipating our needs' is just a small example of where we're headed. 

So, if you have information about a possible privacy violation by airlines or their associates using passenger data, we invite you to report it to the Federal Communications Commission or the Federal Aviation Administration.

And please send us a copy at FlyersRights.org.

A Message From Paul Hudson, FlyersRights' President

A year after 9/11 I gave a speech at the American Trial Lawyers Association and Civil Justice Foundation's annual convention upon receiving their Community Champion Award.  
The subject was global terrorism: How to defeat it without turning the world into a police state. 
As weapons of mass destruction including those involving aviation terrorism, the most deadly form yet, become ever more powerful and easier to acquire, this became the signal challenge of the 21st century. 

Gathering massive surveillance data is now routine. As Congress debates renewal of the Patriot Act it is timely to weigh in on this with your elected representatives. 
What can be done to prevent airline and government abuses but still prevent terrorist drone strikes on US cities and persons? Nuclear, poison gas, biological terrorism? Not to mention IEDs, truck bombs from destroying civilization? 

Getting on a Plane? 
Put This Number in Your Phone:
1 (877) Flyers6
The FlyersRights HOTLINE!

We publish weekly newsletters. There's no charge to receive any of them.

FlyersRights is a nonprofit organization that depends on contributions from people like you. 

Please help us make a more ethical air travel experience or simply show your gratitude for whatever value you find in our work by making a tax-deductible donation:
Comments? Send to the newsletter editor, Kendall Creighton, atkendallc@FlyersRights.org 

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