Order 2011

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the 5th day of April , 2011

AirTran Airways , Inc. Docket OST 2011

- 0003

Served April 5 , 2011

Violations of 49 U.S.C. § 41712 an d

14 CFR 234.11

CONSENT ORDER

This consent order is the result of an investigation by the Office of the Assistant General

Counsel for Aviation Enforcement and Proceedings (Enforcement Office) into the failure

of AirTran Airways

, Inc. ( AirTran ) to post flight delay information on its website in

violati on of 14 CFR Part 234 and 49 U.S.C. § 41712 , which prohibit s unfair and deceptive p ractices. This order directs AirTran to cease and desist from fut ure similar

violations of Part 234 and s ection 41712, and assesses the carrier a compromise civil penalty of $30,000

.

Applicable Law

Section 234.11(b) of the Department’s regulation requires carriers reporting on time

pe rformance information, such as AirTran , to display flight delay data on its website f or each domestic flight for which schedule information is available on its we bsite, including

code

- share flights. M ore specifically, each reporting carrier must provide on its we bsite the following information: (1) the percentage of arrivals that were on

- time

— i.e., within

15 mi nutes of scheduled arrival time; (2) the percentage of arrivals that were more than

30 minutes lat e ; and, (3) the percentage of flight cancellations if 5 percent or more of the flight’s operations were canceled in the month covered

. The information must be

pro vided in the initial listing of flight s or by showing all of the required information via a prominent hyperlink in close proximity to each flight on the page with the initial listing2

of flights. Reporting carriers that do not disclose pe rformance data on their web site are not in compliance with section 234.11

. Violations of section 234.11 constitute unfair and deceptive practices in violation of 49 U.S.C. § 41712.

Facts and Conclusions

The Enforcement Office review of AirTran’s website and information provided by

AirTran revealed that on

- time performance data were not available to consumers visiting AirTran’s website for a short period, which is a significant violation of the Department’s

on

- time performance rule. The failure to display o n

- time performance data violates Part

234 and constitutes an unfair and deceptive practice and unfair method of competition in
violation of 49 U.S.C. § 41712.

Mitigation

In mitigation, AirTran states that it takes its obligation to pro vide consumers with flight delay information seriously and is focused on full compliance with P art 234.11(b)’s requirements. AirTran points out that t he Part 234.11(b) website information requirement is relatively new, having only bec ome effective on April 29, 2010, and its data loading and display procedures put in place to implement the new requirement worked without incident until a server failed on December 16, 2010, causing the first incident. The

carrier states that it repaired the server, and then t he same equipment failed again

, causing the January 18, 2011

, incident. According to AirTran, the system a lert program it installed after the December event immediately identified the Ja nuary event and allowed the carrier to quickly fix the problem, after which it equipped multiple servers to accept the flight delay data and to be accessible by the website. AirTran states that, to ensure future compliance, it has implemented new monitoring and exception reporting procedures and has also put in to place processes to detect immediately any errors in data load files during schedule changes and the addition of new flights.

Decision

We view seriously AirTran ’s failure to display flight performance information on its website as required by 234.11(b). Accord ingly, after carefully considering all of the facts

in t his case, the Enforcement Office believes that enforcement action is warranted.

By this order, the Department finds that AirTran failed to post on

- time performance

information on its website , as req uired

. In order to avoid litigation

, without admitting or denying any violation AirTran agrees to settle this matter with the Enforcement Office through the issuance of this order directing it to cease and desist from future violation s of
49 U.S.C. § 41712 and 14 CFR 234.11 , and to the assessment of $30,000 in compromise of potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

This compromise assessment is appropriate considering the nature and extent of th e violations described herein and serves the public interest. It represents a strong deterrent against future noncompliance with th e Department ’ s requirements to po st flight delay data by AirT ran as well as by other reporting air carriers.3

This order is issued under the authority in 49 CFR 1.57a and 14 CFR 385.15.

ACCORDINGLY,

1. Based on the above information, we approve this settlement and the provisions of this order as being in the public interest;

2. We find that AirTran Airways, Inc.

, violated 14 CFR 234.11 by failing to display on

time performance information on its website as required ;

3. We find that by engaging in the conduct described in orde ring paragraph 2 above, AirTran Airways, Inc. has engaged in an unfair and deceptive trade practices and unfair methods of competition in violation of 49 U.S.C. § 41712;

4. We order AirTran Airways, Inc.

, and all other entities owned or controlled by, or under common ownership and control with AirTran Airways, Inc.

, their successors, affiliates, and assigns, to cease and desist from further similar violations of 14 CFR

234.11 and 49 U .S.C. § 41712 ;

5. We asses s AirTran Airways, Inc.

, $30,000 in compromise of civil penalties that might

otherwise be assessed for the viola tions found in ordering paragraphs 2 and 3 above. Of this total assessed pen alty, $15 ,000 shall be due and payable within thirty days of

the issuance of this order. The remaining $15

, 0 00 shall be due and payable if AirTran Airways, Inc., violates this order’s cease and desist provision within one year following the dat e of issuance of this order or f ails to comply with the payment provisions of this order, in which case the entire unpaid portion of the $30,000 assessed penalty shall become due and payab le immediately; and

6. We order AirTran Airways, Inc.

, to r emit the payment in ordering paragraph 5

, above, by wire transfer through the Federal Reserve Communications System, commonly known as "Fed Wire," to t he account of th e U.S. Treasury in accordance with the

instructions contained in the a ttachment to this order. Failure to pay the penalty as ordered shall subject AirTran Airways, Inc.

, to the assessment of interest, penalty, and collection charges under the Debt Collection Act, and to possible addit ional enforcement action for failure to comply with this order.4

This order will become a final order of the Department 10 days after its service date unless a timely petition for review is filed or the Department takes review on its own

motion.

B Y:

ROSALIND A. KNAPP Deputy General Counsel

(SEAL) An electronic version of this document is available at www.regulations.gov