In 2010, the Department of Transportation’s (DOT) Aviation Consumer Protection and Enforcement Division, which is tasked with the responsibility of enforcing consumer protection laws against domestic and foreign air carriers operating into the United States, issued twenty-seven orders against air carriers, resulting in $1.7 million in fines. In 2011, that figure increased to forty-seven orders and $3,264,000 in penalties. At the end of 2012, the DOT, taking an ever more proactive consumer approach, has issued forty-nine orders and assessed $3,610,000 in penalties. As Bob Dylan famously said, you don’t have to be a weather man to see which way the wind is blowing.
The DOT has taken an aggressive approach in enforcing its rules regarding consumer protection, particularly the rules enacted in August 2011 involving lengthy tarmac delays. See 14 CFR Part 259 and 14 USC § 41712. Since the effective date of the new tarmac delay rule, the DOT has issued six consent orders fining air carriers for violation of those rules. The fines have ranged from $900,000 imposed on American Eagle Airlines for extensive delays in May 2011 involving commuter flights into and out of O’Hare Airport,1 to $55,000 against Virgin America Airlines for its failure to advise passengers every thirty minutes that they could deplane while the aircraft was still parked at the gate.2 Three of the fines involved foreign air carriers and there is every indication that the DOT will be even more aggressive this year in enforcing the tarmac delay rules.
In a nutshell, the tarmac delay rules provide that an air carrier cannot let an aircraft sit on the tarmac for more than three hours (four hours for international flights) without permitting passengers to deplane, except for safety-related or security-related reasons, e.g., bad weather, government directive, or when air traffic control advises that returning to the gate or some other disembarkation point in order to deplane passengers would significantly disrupt airport operations. When the aircraft is delayed on the tarmac, carriers must provide food and water no later than two hours after the aircraft leaves the gate or touches down (carriers have been fined for providing only water and no food within this two hour time period),3 unless the pilot in command determines that safety or security requirements preclude such service. Carriers also must ensure that lavatory facilities are operable; medical attention is available; and that they have filed appropriate documentation as part of their tarmac delay plan, committing sufficient resources to carry out contingency plans. Moreover, if the aircraft is parked at the gate, passengers must be specifically advised every thirty minutes that they have the opportunity to deplane. Some carriers have been fined for failure to advise passengers of this right, even though the doors of the aircraft were4open and no passenger was prohibited from leaving.
The six fines levied by the DOT since November 2011 have involved operational failures and administrative failures. Operational failures are the failure to provide adequate food and water, the failure to afford passengers the opportunity to deplane and the failure to advise passengers that they have the opportunity to deplane. Administrative failures include the failure to have tarmac delay plans which fully comply with the requirements of 14 CFR Part 259.4 and the failure to report tarmac delays to the DOT.
The following synopsis of the six situations in which fines have been imposed by the DOT indicates the strict position that the DOT is taking with respect to enforcement of the tarmac delay rules.
The first order issued by the DOT enforcing the lengthy tarmac delay rules was the $900,000 fine against American Eagle Airlines.5 American Eagle encountered problems because of bad weather at O’Hare Airport in Chicago in May 2011 when some fifteen inbound American Eagle flights were delayed for more than three hours. Due to early morning fog, low visibility and low ceiling conditions, a number of ground stops and gate holds were in place at O’Hare throughout most of the day. Even after weather conditions improved in the late afternoon, a number of aircraft which had been parked at the gates could not depart, resulting in incoming flights being put on hold at various areas around the airfield. Fifteen of those flights were held in excess of three hours, although some violated the three hour tarmac delay rule by as little as three minutes. While American Eagle had, as part of its specific contingency plan, a procedure in place for offloading passengers during gate congestion situations, it did not carry out the plan in the hopes that conditions would soon return to normal. The Enforcement Office of the DOT found that American Eagle was “overly optimistic” in its estimation of how it could handle the situation, which resulted in 600 passengers remaining on aircraft in excess of three hours without opportunity to disembark. The DOT entered into a consent order with American Eagle, agreeing to settle the matter for $900,000 in penalties, with a portion of that sum to be used for refunds, vouchers, and frequent flyer miles for passengers who were on the affected flights.
Air India was assessed a penalty of $80,000, ($40,000 of which was payable immediately and the other half deferred and to be rescinded if Air India does not violate the cease and desist order for one year) as a result of an administrative failure in failing to post its tarmac delay contingency and customer service plans on its website by August 23, 2011, as required by 14 CFR Part 259.6 Air India indicated that changes to its website were delayed due to the unavailability of the employee responsible for making the changes. While there was no specific passenger complaint, the Enforcement Office found that an enforcement action was warranted, resulting in the consent decree and assessment of $80,000 in compromise of potential civil penalties.
In August 2012, the DOT imposed civil penalties against JetBlue,7 a portion to be refunded in the form of vouchers to passengers who were delayed for more than three hours on the tarmac on a flight from JFK Airport in New York to San Francisco International Airport in March 2012. Because of mechanical issues and late arriving military personnel, the flight was delayed two and a half hours. During that period of time, while the aircraft doors were open, the airline failed to advise the passengers that they had the option to deplane the aircraft. A fine of $90,000 (partially remitted) was imposed, indicating that the DOT is taking a strong stance with regard to even what may appear to be technical violations of the tarmac delay rules.
Conduct falling within the realm of operational failure was involved in the DOT’s fine of Pakistan International Airlines (PIA) in September 2012.8 A sudden snowstorm required a PIA flight to divert from New York’s J.F.K. Airport to Washington Dulles International Airport on the evening of October 29, 2011. After landing at Dulles, PIA was instructed by air traffic control to park at a remote aircraft de-icing area. PIA believed that the diversion was intended for refueling purposes only. Because the weather conditions were inclement and there was a number of small children and elderly passengers requiring wheelchair assistance on board, the captain made the decision not to deplane the passengers via air stairs or using a mobile aircraft lounge. The aircraft then remained on the tarmac for more than four hours. The DOT imposed a penalty of $150,000, rejecting PIA’s arguments in mitigation that it acted in the best interests of the passengers by keeping them comfortable and updated throughout the tarmac delay. PIA served food and beverages to the passengers and the flight crew made regular announcements regarding the reasons for delay as well as their efforts to depart. All lavatories remained operable and no passengers requested medical assistance during the delay. PIA pointed out that it had not received a single consumer complaint and no passengers had filed complaints with the DOT. Nonetheless, the Enforcement Office found that PIA had failed to adhere to the assurances in its contingency plan that the carrier would not permit an international flight to remain on the tarmac for more than four hours without providing an opportunity to deplane. While the captain may well have considered that the operational needs of the aircraft, plus the safety of the passengers, justified his refusal to permit the passengers to deplane the aircraft, the airline and the DOT nevertheless agreed to a civil compromise consent order.
The 2012 year concluded with two consent orders being entered on December 31, 2012. In the first, Virgin America was fined $55,000 in civil penalties for failure to notify passengers that they had the opportunity to deplane an aircraft while it was parked at the gate.9 While crewmembers affirmed that they would have allowed any passenger who had requested to do so to leave the aircraft, there was no specific announcement made every thirty minutes as required. The $55,000 compromise of civil penalties was divided among an amount to be paid immediately, an amount to be deferred and an amount contingent upon the airline providing travel vouchers to each passenger on board the affected flight.
The final decision of the year,10 dealing with both operational and administrative failures, involved COPA, a foreign air carrier whose flight was delayed while taking off from J.F.K. Airport. The aircraft pushed back from the gate approximately forty-five minutes after its scheduled departure time, but then sat on the runway due to inclement weather. While the crew began serving beverages within two hours of the time that the doors were closed, no food was served. The aircraft then was put on a remote portion of the tarmac for a refueling operation, during which time the passengers were not afforded the opportunity to deplane, nor were they provided with food services. Eventually, after five and a half hours, the passengers were given the opportunity to deplane and the flight was rescheduled for the next morning. In addition to finding that the airline had failed to provide the passengers with an opportunity to deplane before the tarmac delay exceeded four hours and that the airline had made no attempt to provide food to the passengers within two hours after the plane pushed back from the gate, the DOT seemed particularly concerned about the fact that the matter was not brought to the attention of the DOT by the airline in accordance with the requirements of 14 CFR Part 244, which requires tarmac delay reports to be filed with the DOT’s Bureau of Transportation Statistics. Had consumer complaints not been filed with the DOT, the DOT felt that the airline might never have provided the relevant information concerning the tarmac delay. The DOT found that the airline’s failure to file a tarmac delay report violated 14 CFR Part 244. Accordingly, a civil penalty of $150,000 was imposed.
As is evidenced by the foregoing decisions, the DOT has taken and is likely during the coming year to continue to take an even more aggressive posture toward violations of its tarmac delay rules, regardless of whether the violations are operational or administrative in nature. It is imperative that all airlines carefully review their tarmac delay plans and ensure that they fully comply with the very stringent regulations of 14 CFR Part 259.
1 Docket OST-2011-0003, November 14, 2011
2 Docket OST-2012-0002, December 31, 2012
3 Docket DIT-OST-2012-0002, December 31, 2012 4 See footnote 2 above
5 See footnote 1 above
6 Docket OST-2012-0002, May 3, 2012
7 Docket OST-2012-0002, August 20, 2012
8 Docket OST-2012-0002, September 19, 2012
9 See footnote 2 above
10 See footnote 3 above