SFGate: Appellate judges skeptical of state law on air passenger rights/They suggest that N.Y. ventured into federal jurisdiction

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Thursday, March 6, 2008 (SF Chronicle)
Appellate judges skeptical of state law on air passenger rights/They sugges=
t that N.Y. ventured into federal jurisdiction
Larry Neumeister, Associated Press


   (03-06) 04:00 PST New York --
   A federal appeals panel seemed impatient Wednesday with arguments
supporting the first law in the nation requiring airlines to provide food,
water, clean toilets and fresh air to passengers trapped in a plane
delayed on the ground.
   The three judges expressed skepticism that states should be allowed to
impose such a law on an industry already subject to extensive federal
oversight. It is likely, they implied through their questions, that
federal authority will pre-empt state laws on the issue.
   New York's law requires relief for people who have been trapped in a pla=
ne
on the ground for at least three hours. It was passed after passengers at
Kennedy International Airport were stranded on planes for more than 10
hours with no food and overflowing toilets.
   The court did not immediately rule on the constitutionality of New York's
Airline Passenger Bill of Rights.
   The judges said they are sympathetic to the needs of passengers on plane=
s,
but they seemed to agree that only the federal government can regulate
airline services.
   Judge Brian Cogan said New York's law might lead to multiple solutions by
states nationwide that would subject airlines to all kinds of
requirements.
   Judge Debra Ann Livingston agreed.
   "There is a patchwork problem in that every state should be concerned
about this and probably would write different regulations," she said.
   Even though the judges had not yet ruled, Judge Richard Wesley defended
their apparent stance.
   "This is a pre-emption issue. Judges aren't heartless people in black
robes. Three judges must decide whether New York stepped over the
pre-emption line," Wesley said.
   The law was challenged before the appeals court by the Air Transport
Association of America, the industry trade group representing leading U.S.
airlines.
   Seth Waxman, a lawyer for the trade group, told the judges that a dozen
other states are considering laws similar to New York's law. He said
Congress is considering its own legislation.
   "If regulation is required in this area, it must be national to avoid wh=
at
otherwise is a patchwork solution," Waxman said.
   Barbara Underwood, arguing in defense of the law, said it requires minim=
al
standards and protects the public.
   She said planes in line for takeoff might, after three hours, be forced =
to
return to the gate to pick up more food and water and empty its restrooms
or need to summon a delivery service to perform those chores.
   A recent federal report showed that 24 percent of flights nationally
arrived late in the first 10 months of last year, which was the industry's
second-worst performance record since comparable data began being
collected in 1995.
   Kennedy airport had the third-worst on-time arrival record of any major
U.S. airport through October, behind the New York area's other two major
airports, LaGuardia and Newark, according to the report.
   Wesley called it a health and safety issue.
   "What it really is about is human dignity," Underwood said. ------------=
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Copyright 2008 SF Chronicle

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