Feb. 19, 2025 – FlightAware uses two categories to quantify the percentage of on-time and delayed flights on its online “Misery Map” – “On Time” and “Misery.”

The U.S. Department of Transportation (DOT) proposed rules to address airline passenger rights in hopes of reducing misery. Its Advanced Notice of Proposed Rulemaking in the Dec. 11 Federal Register yielded 319 comments on Regulations.gov at the end of the 60-day comment period Feb. 10 with comments accepted after that date.

The rules would “ensure customers experiencing significant flight disruptions are taken care of and protected from financial losses. Specifically, [DOT] is considering imposing requirements on airlines to provide affected passengers cash compensation, free rebooking, and amenities such as meals, lodging for overnight delays, and transportation to and from lodging.”

The rules will consider whether the cancellation or delay was within the airline’s control and how passengers receive clear, timely information about their options, DOT said. Additional airline requirements may benefit parties with at least one passenger with a disability.

Large-Scale Delays

The Federal Aviation Administration (FAA) Reauthorization Act of 2024, which is effective through fiscal year 2028, mandated DOT “to direct certain air carriers ‘to establish policies regarding reimbursement for lodging, transportation between such lodging and the airport, and meal costs incurred due to flight cancellation or significant delay directly attributable to the air carrier.”

Recent large-scale delays may have provoked Congress to include the requirement.

On Jan. 11, 2023, a “damaged database file” in the FAA Notice to Air Mission (NOTAM) computer system used to transmit safety information delayed or canceled more than 11,300 flights, USA Today reported. It was the first time the FAA had halted nationwide departures since Sept. 11, 2001.

In December 2022 and January 2023, Southwest Airlines canceled more than 16,900 flights and stranded more than 2 million passengers, according to the rulemaking notice.

In July 2024, a computer software update shut down computers, including many airline systems, around the world. Delta Airlines “cancelled more than 5,550 flights over a five-day period,” according to the rulemaking notice.

Delays or cancellations have increased in general as airlines had to catch up with increased travel demands after the COVID-19 pandemic, DOT explained in the rulemaking.

Moving Forward, but at What Pace?

Even under a new administration, the FAA may be bound to continue this rulemaking because of the terms of the reauthorization act, explained Gregory J. Reigel, a Madison native who is a partner at Shackelford, McKinley & Norton, LLP in Dallas.

A former professor of aviation law at Minnesota State University – Mankato, and a past president of the Lawyer-Pilots Bar Association, Reigel specializes in aviation law.

The politics for change may also remain. “There’s a lot of bipartisan unhappiness with the airlines and the air travel experience,” Reigel said.

That bad experience remains fresh. Southwest Airlines stranded Russell A. Klingaman. “I read the proposed rule, and I was brought back to that experience,” he said. Although Klingaman had travel alternatives, “some lives were completely disrupted.”

Klingaman, a retired partner with Hinshaw & Culbertson LLP in Milwaukee, is also a past president of the Lawyer-Pilots Bar Association and has taught aviation law at Marquette University Law School.

A recent final rule protecting passengers who rely on wheelchairs shows pervasive dissatisfaction with airline travel. “I saw that during the comment period almost 2,000 comments were received from individuals,” Klingaman said, in addition to stakeholder groups, which submitted another 100 comments. “Most of them were in support of the proposed rule.”

The proposed regulations will move “slowly,” Reigel said. “I say that only partly tongue in cheek. The regulatory process is notoriously slow” – and an advanced notice of preliminary rulemaking is the very start of this long, slow process.

Reigel and Klingaman both agree that dealmaking could alter – and keep alive – these regulations.

“The creative thinkers at DOT and FAA may have watered down versions of proposed regulation … but maybe muddy the waters with a counterproposal or additional proposal,” Klingaman suggested. A change in other FAA regulations that saves money for airlines could make them more receptive to additional passenger protections that require payouts.

If agencies eliminate two regulations for every new regulation, which President Donald Trump required in his first term, Klingaman said, the calculus changes.

Last month, President Trump created a stronger requirement. Executive Order 14192, Unleashing Prosperity Through Deregulation, signed Jan. 31, requires “for each new regulation issued, at least 10 prior regulations be identified for elimination.”

“I think it will keep moving forward, but I don’t know at what pace,” Reigel said.

Consumer Protection Possibilities

The proposed rules may establish consistent requirements among airlines, although the size of carrier regulated is a part of the FAA inquiry.

DOT regulations at 14 C.F.R. 259.5 require covered carriers to have and to comply with a customer service plan. “In 2022, after an unacceptable level of flight delays and cancellations,” DOT reviewed those plans.

After two years of DOT pressing the issue, according to the rulemaking notice, “almost all of the largest U.S. airlines voluntarily commit in their customer service plan to provide services such as meals, lodging, and free rebooking to passengers impacted by cancellations and lengthy delays when airlines are responsible.”

The FAA’s Airline Customer Service Dashboard, available online from the Office of Aviation Consumer Protection, shows that 10 U.S. airlines provide some assistance. It varies by carrier. None promises cash compensation to passengers for delays or cancellations, which the proposed rules are considering.

DOT’s notice suggests stricter rules like those in the European Union, Canada, the United Kingdom, and Brazil, which require airlines to provide meals, accommodations, and compensation to consumers affected by flight disruptions.

The proposed rules could set parameters for prompt rebooking, at no additional cost and at the customer’s choice, due to flight disruptions. The largest U.S. airlines now offer some rebooking rights. The proposed rules may establish when an airline would be required to consider rebooking on partner airlines.

Passengers might even have the option of a return flight to their originating destination if the delay strands them somewhere before their destination and the airline options would result in arriving at their final destination more than a day late, the rulemaking proposes.

In addition to these protections, the rules may require that airlines inform passengers up-front about their options, instead of responding only to requests from the savvy consumer.

Passengers With Disabilities

Airline response to passengers with disabilities and the other members of their party may be more stringent, the rulemaking notice considers. In these situations, requirements may apply regardless of whether the airline could have prevented the delay or cancellation.

DOT has suggested “that the airline must offer rebooking on the next departing flight by that airline or its branded codeshare partner that advances the passenger to the final stop of their inventory, accommodates the individual with a disability, and has open seats for the individual and for all others in the same travel party.”

Two disability rights groups commented to DOT in an earlier rulemaking that “from the perspective of passengers with disabilities, any change to the origination, connection, and destination airport should be considered a ‘significant change of flight itinerary.’” The individual may have selected the itinerary based on available accommodations.

For a passenger with a disability, some readily available airline alternatives may not be suitable, advocacy groups explained. A downgrade, substitute aircraft, or even a new airport connection, may lack necessary accommodations, making those possibilities useless.

The Paralyzed Veterans of America (PVA) added in that earlier rulemaking “that a ‘refund’ is purposeless if the passenger is stranded.” PVA requested DOT “require airlines to ‘expeditiously locate and offer alternative transportation that meets the specific needs of the passenger with a disability.’”