Order 2 01 0

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- 1 7

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the Thirteenth day of December , 20 10

JetBlue Airways Corp. Docket OST

- 2010

- 0005

Violations of 14 CFR Part s 382 and 257 and Served December 13 , 2010

4 9 U.S.C. §§ 41310 4 17 0 2

, 41705 , and 41712

CONSENT ORDER

This order concerns violations by JetBlue Air ways Corp. ( JetBlue ) of the requirements of 14 CFR Part 382 (Part 382) with respect to providing wheelchair assistance to passengers with a disability, making dispositive responses to written complain ts alleging a violation of Part 382,

and properly categorizing its disability

- related complaints . Part 382 implements the Air Carrier Access Act (ACAA), 49 U.S.C. § 4170 5 , and violations of that part also violate the ACAA. To

the extent that the ACAA and Part 382 violations occurred in interstate air tr ansportation, the incidents are also violations of 49 U.S.C. § 41702, which requires that air carriers provide safe and adequate interstate air transportation ; to the extent the violations occurred in foreign air transportation, the incidents would violate 49 U.S.C. § 41310, which

, in part

, prohibits air carriers and foreign air carriers from unreasonably discriminating against any person in foreign air transportation

. Violations of Part 382 also constitute unfair and deceptive practices and

unfair methods of competition in violation of 49 U.S.C. § 41712. In addition, t his consent order

covers violations by JetBlue of the Department’s code

- share disclosure rule, 14 CFR Part 257

and 49 U.S.C. § 41712

. This order directs JetBlue to cease and d esist from future violations of

Part s 382 and 257 and assesses the carrier $ 6 0 0,000 in civil penalt ies

.

Department’s Rule Protecting Disabled Travelers

Under s ection 382. 39 [no w section s 382.91 to 382.105 ]

, carriers must pro vide passengers with disability

- related assistance in enplaning and deplaning aircraft. This assistance includes, as needed, help by airline/contractor personnel and the use of wheelchairs, ramps, or mechanical

lifts. Section 382.39 (a)(3) [now section 38 2. 103 ] prohibits carriers from leaving passengers who are not independent ly mobile unattended in a ground wheelchair, boarding wheelchair, or other

device for more than 30 minutes.- 2

-

S ection 328 .65 [now section 382.155] requires carriers to provide a dispos itive written response to a written complaint alleging a violation of Part 382 within 30 days of its receipt. An appropriate dispositive response must specifically discuss the complaint at issue, state the

carrier’s view of whether a violation occurred

, and state that the complainant may refer the matter to the Department for an investigation

.

S ection 382.70 [now section 382.157] states that carriers must categorize disability

- related complaints they receive according to the type of disability and natu re of complaint and submit annual reports to the Department detailing the disability complaints received the prior calendar

year

. I f a written complaint contains multiple issues, each issue must be coded separately to adequately account for the number of complaints a carrier receives.

Based on a visit to JetBlue’s Salt Lake City office, the Office of Aviation Enforcement and Proceedings ( Aviation Enforcement Office) decided to further investigate JetBlue’s compliance with the relevant portions of Part 3 82 by reviewing all disability

- related complaints JetBlue received directly from passenger s in 2009. The Aviation Enforcement Office also reviewed all disability

- related complaints against JetBlue sent directly to the Department in 2009. The

records indi cated a significant number of apparent violations of section 382.39 [now sections 382.91 to 382.105] during the pertinent time period. A substantial number of these complaints

a ppear to involve egregious violations of Part 382. 1 Additionally, JetBlue’s complaint files indicated that in numerous instances, it s written response to the complainant did not compl y with the requirements of section 382.65 [now section 382.155]. Furthermore, JetBlue violated section

382.70 [now section 382.157] by failing to adequately categorize and account for all the disability

- related issues that were raised in the complaints.

Department’s Code

- share Disclosure Rule

Section 257.4 of the code

- share disclosure rule states that the holding out or sa le of scheduled passenger air transportation involving a code

- sharing arrangement is an unfair and deceptive trade practice in violation of 49 U.S.C. § 41712 unless, in conjunction with that holding ou t or sale, carriers follow certain requirements, includ ing those of 14 CFR 257.5(b). With regard to oral communications concerning a flight that is part of a code

- sharing arrangement, section 257.5(b) states that a ticket agent or carrier must disclose to prospective consumers before they book the flight the existence of the code

- share arrangement, the corporate name of the transporting carrier, and any other name under which the flight is held out to the public.

1 In prior enforcement actions, e.g. Docket OST

- 2010

- 0005

- 0026 ( August 31 , 20 10 ), the Aviation Enforcement Office explained that it considers the following types of assistance and wheelchair

- related disability complaints to be egregious: (1) the passenger was left unattended on an airplane for over 15 minutes after the other

passenge rs deplaned; (2) a nonambulatory passenger was left unattended in a wheelchair for over 30 minutes in the terminal or on a jetway; (3) the carrier failed to provide requested wheelchair service or other assistance entirely, or a long time delay in providin g wheelchair service or other assistance resulted in the passenger missing a flight; (4) the passenger was left at the wrong gate resulting in missing his or her flight; (5) the passenger had to wait an hour or more for a wheelchair in the terminal; and (6 ) other instances where passengers were subjected to significant delay, harm, or inconvenience because of inadequate assistance.- 3

-

In May 2010, t he Aviation Enforcement Office conducted an investigation into JetBlue’s compliance with the Department’s code

- share disclosure rule and this investigation revealed a significant lack of compliance by JetBlue with section 257.5. The investigation consisted of a number of telephone calls to JetBlue’s reservation line by Aviatio n Enforcement Office staff to determine if, as required by section 257.5(b), the carriers’ employees were advising consumers

of the code

- share status of JetBlue flights operated by Cape Air. The JetBlue reservations agent answering those calls failed to d isclose the code

- share status of the flights in question during a

substantial number of those calls.

Mitigation

In mitigation, JetBlue states that it values its disabled customers. Although JetBlue states that it s files do not provide adequate information to verify the facts alleged in most

, if not all

, of the complaint letters received by JetBlue that are the basis of the Aviation Enforcement Office ’s

concerns , JetBlue states that it is committed to improving serv ice to all passengers. JetBlue

states that its commitment will be reflected in the initiatives agreed to in this Consent Order and in an additional effort across the airline to improve the service provided to disabled customers. JetBlue points out, as di scussed below, that it will launch an Interdepartmental Disability Task

Force that will focus attention on the needs of customers who are disabled and coordinate the improvements that arise from its Task Force. JetBlue also states that it will make its we bsite

more user

- friendly for disabled travelers and create a first

- of

- its

- kind Disability Customer Care Center that will proactively reach out to disabled passengers prior to their travel. JetBlue maintains that these initiatives will greatly enhance its response to the needs of this segment of the traveling public. JetBlue asserts that it has also focused on increased training to ensure that the requirements of Part 257 are met for each passenger who calls to book a code

- share flight

with JetBlue and any code

- share partner. Finally, JetBlue states that it takes its regulatory responsibilities very seriously and believes that the steps to which it has committed in this o rder will improve the customer experience.

Decision

The Aviation Enforcement Office has carefully considered the information provided by JetBlue

and continues to believe that enforcement action is warranted

. In order to avoid litigation,

JetBlue has agreed to settle this matter with the Aviation Enforcement Office and enter into this

consent order directing the carrier to cease and desist from future similar violations of Part s 3 82

and 257 and 49 U.S.C. § § 41310, 41702, 41705, and 41712, and assessing JetBlue $ 6 0 0,000 in compromise of potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301

. 2 This compromise assessment is appropriate considering the nature and extent of the violations described herein and serves the public interest. It establishes a strong deterrent to future similar unlawful practices by JetBlue and other carriers.

2 As covered in ordering subparagraphs 11b, 11c and 11d, the $600,000 assessed civil penalty is subject to offsets of

up to $250,000 for expenditures by JetBlue to provide improved service for disabled passengers above and beyond what is required by Department rules. The actual cost of the initiatives covered by the offsets is substantially greater than the $250,000 offset amo unt.- 4

-

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

ACCORDINGLY,

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

2. We find that JetBlue Airways Corp. violated the requirements of 14 CFR 382.39 [now

section s 382.91 to 382.105] by failing to provide adequate and prompt enplaning and deplaning wheelchair assistance to passengers with disabilities ;

3. We find that JetBlue Airways Corp. violated the requirements of 14 CFR 382.65 [now section 382.155] by failing to provide dispositive response s to written complain ts alleging a violation of Part 382 ;

4. We find that JetBlue Air ways Corp. violated the requirements of 14 CFR 382. 70 [now section 382.157] by failing to properly categorize and accurately report its disability

related complaints ;

5. We find that JetBlue Airways Corp. in the instances described in ordering paragraphs 2 through 4, above

, violated the Air Carrier Access Act, 49 U.S.C. § 41705;

6. We find that to the extent the violations described in ordering para graphs 2 through 4

occurred in interstate air trans portation, the conduct violated 4 9 U.S.C. § 41702;

7. We find th at to the extent the violations described in ordering paragraphs 2 through 4 occurred in foreign air transportation, the conduct violated 49 U.S.C. § 41310;

8. We find that JetBlue Airways Corp. violated the requirements of 14 CFR 257.5(b) by failing to dis close code

- sharing arrangements as required;

9. We find that the violations described in ordering paragraphs 2 through 8 involved unfair and deceptive practices and thereby violated 49 U.S.C. § 417 12;

10. We order JetBlue Airways Corp. and its successors and as signs to cease and desist from

furthe r violations of 14 CFR Part s 382 and 257 and 49 U.S.C. § § 41310, 41702, 41705, and 41712 by engaging in the conduct described in ordering paragraphs 2 though 9 ;

11. We assess JetBlue Airways Corp. $ 6 0 0,000 in compromise of civil penalties that might otherwise be assessed for the violations founds in ordering paragraphs 2 through 9

, above;

a. $350,000 of the assessed civil penalty shall be due and payable within 30 days of
the service date of this order;- 5

-

b. Up to $30,000 of the assessed penalty shall be credited to JetBlue Airways Corp. for funds expended within one year after the date upon which this order becomes

final toward the establishment and operation of an Interdepartmental Disability

Task Force that wi ll conduct quarterly internal audits and quality control of the carrier's handling of passengers with disabilities in order to improve the traveling experience of such passengers;

c. Up to $200,000 shall be credited to JetBlue Airways Corp. for funds expend ed within one year after the date upon which this order becomes final toward the establishment of a Disability Customer Care Center that shall consist of a staff of full and part time employees who will proactively reach out to passenger s with

disabilities prior to travel and will serve as an available information resource for

such passengers and other JetBlue personnel; and

d. Up to $2 0 ,000 shall be credited to JetBlue Airways Corp. for funds expended

toward developing and implementing enhancement s to JetBl ue’s website that

would improve the accessibility and quality of the content intended for the disabled community and plac e information targeted at assisting disabled

passenger s into one easily

- accessible location ;

12. Within 13 months of the date this order becomes final , JetBlue Airways Corp. shall provide the Department with supporting documentation verifying the cost of the offsets

listed in subparagraphs 11(b), 11(c), and 11(d) above. The documentation must contain a detailed explanation of the method u sed by JetBlue Airways Corp. t o determine the cost of the offset, and a sworn statement from an appropriate company official testifying that the descriptions and documentation are true and complete to the best of that official’s knowledge and that the offi cial has made a reasonable inquiry to establish the accuracy of the statement;

13. To the extent that JetBlue Airways Corp. fails to provide adequate documentation verifying the appropriate expenditures of the $250,000 in offsets as described in order

sub pa ragraphs 11(b), 11(c), and 11(d) and paragraph 12, that amount shall become due and payable within 30 days of the date of the certification required by paragraph 1 2 ;

14. The offsets described in subparagraphs 11(b), 11(c), and 11(d) may be amended with the

a pproval of the Department’s Office of Aviation Enforcement and Proceedings. If JetBlue Airways Corp. intends to seek a change in the type of improvements made, it must notify and obtain approval from the Office of Aviation Enforcement and Proceedings not later than 15 days prior to the date documentation is due purs uant to ordering paragraph 1 2 ; and

15. Failure to pay the civil penalty as ordered above shall subject JetBlue Airways Corp. to the assessment of interest, penalty, and collection charges under the Debt Collection Act, and to possible additional enforcement action for failure to comply with this order. Payment shall be made by wire transfer through the Federal Reserve Communication- 6

-

System, commonly known as “Fed Wire,” to the account of the U.S. Treasury in

accordance with the attached instructions.

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.

BY:

ROSALIND A. KNAPP Deputy General Counsel

(SEAL)

An electronic version of this document is available on the World Wide Web at http://www.regulations.gov