David Cush: "A Bad Rule'

Come April 29, a U.S. Federal Aviation Administration rule will require airlines at domestic airports to allow passengers whose plane has been sitting on the tarmac for at least three hours awaiting takeoff to leave the plane. Airlines that don't comply with the forthcoming rule face fines of nearly $30,000 per passenger on affected flights.

Airlines hate this rule. American Airlines, Delta Air Lines and JetBlue Airways have already applied to the FAA for a waiver at New York's John F. Kennedy International Airport, where runway reconstruction is expected to lead to more delays at an already notoriously congested airport in the months ahead. In a recent speech, Continental Airlines' new CEO, Jeff Smisek, said his airline will simply and necessarily cancel flights rather than knuckle under to the new rule or pony up the money for large fines.

The latest voice condemning the rule comes from David Cush, the CEO at Virgin America. Cush told me in a wide-ranging interview this week that while Virgin America has not asked for a waiver at JFK, the pending rule is "a bad rule, with unintended consequences.''

Cush was in a senior position with American before taking the top job at Virgin America, a San Francisco start-up that began flying in August 2007. Speaking of the pending rule, he said that, at a minimum, "delaying the rule 30 or 60 days'' would be a good idea.

"We are a small player at JFK,'' Cush told me. "American, Delta and JetBlue are the elephants.'' Nevertheless, he added, "We're all going to have a huge problem the first time thunderstorms roll into JFK in July or August, and there are 60 or 70 airplanes tied up at JFK.'' At such times, he said, Virgin America will accept delays of up to 2 hours and 15 minutes and then decide - 45 minutes before the new limit kicks in - whether or not to scrub the delayed flight.

Virgin America - minority-owned by British billionaire Richard Branson's Virgin Group - had a nightmarish experience on March 13, when VA flight 404 bound for JFK from Los Angeles International Airport was forced by bad weather on the East Coast to land 90 miles from New York and bus passengers to JFK. They got there at 3 a.m., 16 hours after departing LAX on a scheduled 5-hour flight. Cush wrote letters of apology to every passenger on the plane, and the airline refunded their fares and gave out $100 vouchers for future Virgin America flights.

"Flight 404 was unfortunate, but passengers had two opportunities to get off the plane,'' Cush averred. As for the new rule, "Taking away the discretion of the captain to make the decision is short-sighted. Ultimately, it is passengers who will decide'' if the rule will be effective, he said.

Asked if he expects consumer unhappiness about the new rule once flights are cancelled in compliance with it, Cush was blunt:

"Absolutely, and it won't take long.''

It's going to be an interesting spring and summer in the sky.