By Joe Brancatelli
March 17, 2010 -- This spring, the government begins severely penalizing domestic airlines when or if they take passengers hostage and hold them in an aircraft for more than three hours. But the airline empire is preemptively striking back by demanding waivers, ridiculing regulators, and, believe it or not, suggesting that travelers should really be grateful to be held hostage.

The airline war against what has become known as "passenger's rights" regulations is being waged both publicly and in the bowels of the regulatory process. But the gist of the airline counterattack is simple: If you try to discipline us for holding passengers on planes for more than three hours, we'll simply cancel squadrons of flights and no one will be able to travel anywhere.

Before we get to the realities of the latest battle over the rights of passengers, the responsibility of airlines, and the role of government regulators, here is a 111-word recap of 11 years of trapped flyers:

In a 1999 snowstorm, Northwest Airlines abandoned thousands of flyers in planes at Detroit Airport. There were Congressional hearings. In 2006, American Airlines pooched a storm in Dallas and stranded flyers on about a dozen aircraft it diverted to other cities. One hostage, Kate Hanni, spent three years fruitlessly advocating legislation. In August 2009, 47 passengers were trapped overnight in a tiny jet at Rochester Airport in Minnesota. The Department of Transportation fined three airlines about $3,700 a flyer. By the end of last year, the DOT crafted new regulations that would penalize airlines as much as $27,500 a passenger if it happened again. The rules go into effect on April 29.

Stunned by the Minnesota fine and gobsmacked by the DOT's decision to escalate the potential penalties and codify passenger's rights, the airlines have searched all winter for a response. The obvious problems: The constituency of flyers willing to be held for hours on an aircraft without food, water, and operating toilets is small. The optics of criticizing a commonsense position like "Don't treat customers like prisoners!" is hideous. And even in a nonsensical business like commercial aviation, long "tarmac holds" are self-evidently disastrous both for flight operations and for what passes as profits.

Still, airlines rarely miss an opportunity to cut of their noses to spite their fuselages, so the industry counterattack began at the beginning of March, spearheaded by low-fare JetBlue Airways and an archrival legacy carrier, Delta Air Lines. Both maintain large hubs at New York's perennially delay-prone John F. Kennedy International Airport, and both saw opportunity when the airport's operator, the Port Authority of New York and New Jersey, decided the close JFK's main runway for four months.

The March 1 runway closure led JetBlue and Delta to petition the DOT for a JFK-specific waiver of the new regulations. JetBlue's request came first, and it was particularly bold. The nearly $400 million runway repairs were likely to cause exactly the kind of long tarmac delays the DOT was trying to stop, JetBlue explained, and the airline shouldn't be penalized for holding flyers hostage. Moreover, JetBlue claimed, passengers could rely on its voluntary policy, which compensates them if they experience an "onboard ground delay for more than five hours." Ironically, JetBlue adopted its rules in 2007 after thousands of travelers were held hostage on its planes during a Valentine's Day snow and ice storm. The incident severely dented JetBlue's then-pristine reputation, damaged its earnings, and led to the resignation of David Neeleman, the airline's founder and chief executive.

Within days of JetBlue's regulatory gambit, however, the current chief executive, Dave Barger, inadvertently revealed the duplicity. Speaking at an investor's conference in New York, Barger boasted that he was "very encouraged" by JetBlue's performance since the JFK runway was closed. The airline's on-time rating was above 82 percent during the first eight days of March, about 10 percent higher than JFK's usual on-time performance.

A more direct assault on the passenger's rights regulations came last week from Jeff Smisek, the normally soft-spoken chief executive of Continental Airlines. He called the rules "stupid" and "inane" and then threatened the nation's airline passengers with retribution.

"The government, by God, says, 'We're going to fine you $27,500,'" Smisek thundered. "Here's what we're going to do. We're going to cancel the flight…. In the face of a fine like that, we're going to cancel a lot of flights."

First, you should understand Smisek's bias: A regional jet painted in Continental's colors, carrying the name Continental Express, and using Continental's "CO" computer code was the aircraft where those flyers spent an August night trapped on the tarmac in Rochester, Minnesota. Continental and the plane's operator, ExpressJet, were each fined $50,000 as part of the Transportation Department's $175,000 total penalty.

Vested interest notwithstanding, Smisek's threat makes no sense. For starters, there's that optics issue: Who, exactly, is going to sympathize with Continental, or any airline, for holding passengers hostage as opposed to canceling a flight facing a four-, five- or six-hour ground delay?

Then there's the financial reality. Smisek's vow to cancel flights will cost Continental, or any airline, a ton of revenue. When it proactively closed its Newark hub and canceled virtually all of its flights there during two days of snowstorms last month, Continental said it sacrificed $25 million worth of revenue. Even without closing any hubs, US Airways (losing $30 million) and Southwest Airlines (out $15 million) were punished by weather-related cancellations in February.

And consider the operational facts: Flight cancellations play havoc with airline schedules. They leave both aircraft and crews out of position, thus jeopardizing many other flights on the day's schedule and forcing many passengers to rebook flights the next day or even several days later. Airlines only cancel flights when and where there is literally no other practical alternative.

There is also the regulatory truth: The new DOT rules are flexible, allowing for logical exemptions from the three-hour rule on a flight-by-flight basis. And the $27,500-a-passenger fine is the maximum the DOT says that it would impose. As the Rochester incident last year showed, the per-passenger fine is likely to be dramatically lower.

So without a constituency to support long tarmac holds and no plausible financial or operational reason to willy-nilly cancel flights, what's all the airline posturing really mean?

In a word: Nothing. Faced with punitive fines, the airlines might cancel a few more flights than before. More often than not, however, they will adjust their schedules and on-the-ground procedures to make sure passengers aren't held on aircraft longer than the three-hour limit.

Most likely, the waiting time won't disappear, though. It'll shift from aircraft to the airport terminal. You know, places specifically designed to accommodate waiting passengers. Places with restaurants, restrooms, bars, and clubs. And freely accessible doors that permit you to leave whenever it suits your schedule.

Don't think this simple switch would make a difference? Then consider Virgin America Flight 404 from Los Angeles to JFK last Saturday. A hellacious wind and rainstorm forced Virgin 404 to divert to Stewart International Airport, about 75 miles to the north. And there the aircraft sat for more than four hours before passengers were released from captivity and placed on buses to get them to New York City. From start to finish, their travel day lasted 14 hours. This grim tale comes complete with video from a traveler who documented the disaster.

The Fine Print…
British Airways and its flight attendants are in a battle over concessions and new work rules the airline has unilaterally imposed. Failing a last-minute resolution, the flight attendant's union says it will strike on March 20 through 22 and March 27 through 30. BA has posted some worst-case flight schedules and procedures, but airlines have a poor track record for flying reliably through strikes.
ABOUT JOE BRANCATELLI Joe Brancatelli is a publication consultant, which means that he helps media companies start, fix and reposition newspapers, magazines and Web sites. He's also the former executive editor of Frequent Flyer and has been a consultant to or columnist for more business-travel and leisure-travel publishing operations than he can remember. He started his career as a business journalist and created JoeSentMe in the dark days after 9/11 while he was stranded in a hotel room in San Francisco. He lives on the Hudson River in the tourist town of Cold Spring.

THE FINE PRINT This column is Copyright © 2010 American City Business Journals. All rights reserved. Reprinted with permission. JoeSentMe.com is Copyright © 2010 by Joe Brancatelli. All rights reserved.