-Tc:; 

BEFOR£ THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

Nondiscrimination on the Basis of 

Disability in Air Travel; Final Rule 

Docket OST-2008-0273 

APPLICATION OF 

AEROViAS DEL CONTINENTS AMERICANO SA AVIANCA 

FOR AN EOUIVALENT ALTERNATIVE DETERMINATION 

Communications with respect to this document should be sent to: 

Richard D. Mathias 

David M. Endersbee 

ZUCKERT, SCOUTT & RASENBERGER, 

L.L.P. 

888 17"'Street, N.W. 

Washington, D.C. 20036 

Tel: 202-298-8660 

Fax: 202-342-0683 

Email: rdmathias@zsrlaw.com 

dmendersbee@,zsrIaw.com 

Counsel for Aerovlas del Continente 

Americano SA Avianca 

April 9, 2010 

04^21/2010 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

Nondiscrimination on tKe Basis of 

Disability in Air Travel; Final Rule 

Docket OST-2008-0273 

APPLICATION OF 

AEROViAS DEL CONTINENTE AMERICANO SA AVIANCA 

FOR AN EOUIVALENT ALTERNATIVE DETERMINATION 

Acrovias del Continente Americano SA Avianca ("Avianca") respectfully applies, 

pursuant to 14 C.F.R. § 382.10, for an equivalent alternative determination of 14 C.F.R. § 382.67 

(priority cabin space for passenger's folding wheelchair) and 14 C.F.R. § 382,123 (requirements 

for stowage of passenger wheelchairs and other assistive devices) of the Department's 

regulations. Avianca seeks this determination for its new A320 and A319 aircraft to be delivered 

after May 13,2010. 

I. Background 

The Department's 2008 Final Rule adopted substantial revisions to Part 382.' Section 

382.67 requires that foreign carriers ensure that new aircraft ordered after May 13, 2009 or 

delivered after May 13, 2010, have a priority space for a folding wheelchair or assistive device 

' Nondiscrimination on the Papis of Disabilitv in Air Travel: Final Rule, 73 Fed. Reg. 

27614 (May 13, 2008). 

04/21/2010 
Application of Aerovias del Continente Americano SA Avianca 

For an Equivalent Alternative Determination 

April 9, 2010 

(collectively "wheelchair" for ease of reading, unless the context indicates otherwise). Related 

Section 382.123 sets forth the rules for the use of the priority space. 

Avianca has a number of new Airbus aircraft on order, which are presently being 

delivered and will continue to be delivered for some time. The delivery schedule is attached as 

Exhibit AV-1. Confidential treatment is requested for this exhibit. 

The orders for these aircraft were placed in February and April of 2007, more than a year 

before the Department issued its Final Rule. The aircraft were configured without priority space 

because the Department had not yet adopted its Final Rule. Additionally, in its Final Rule the 

Department reversed its Notice of Proposed Rulemaking^ and its enforcement precedent in 

"sunsetting" the alternative seat strapping method. 

The A320 and A319 aircraft are particularly ill-suited to the retrofit of priority space. 

See, e.g.. Application of JetBlue Airways Corporation for Equivalent Alternative Determination 

With Respect to 14 CFR § 382.123(c) at 4 (removing a row of seats or variations of 

asymmetrically reducing pitch on one-half the aircraft); Application of US Airways, Inc. for an 

Equivalent Alternative Determination With Respect to 14 C.F.R. 382.123(c), at 6 (removing seat 

rows to accommodate priority space). Indeed, the interior dimensions of these aircraft also make 

the provision of priority space unsuitable for brand new aircraft due to the limited availability of 

unused space. 

"The Department proposes to continue to make this compliance option [i.e., seat 

strapping] available under the proposed rule." 69 Fed. Reg. at 64371 (Nov. 4, 2004), The Final 

Rule inexplicably sunsetted this practice as of May 13, 2011 with the comment that "it is a more 

awkward way of carrying a wheelchair and because it can, on a given flight, reduce seating 

capacity for other passengers." Final Rule at 27627. 

04/21/2010 
Application of Aerovias del Continente Americano SA Avianca 

For an Equivalent Alternative Determination 

April 9,2010 

Avianca has spent innumerable man-hours exploring ways to accommodate a priority 

space in its 150-seat A320 and 120-seat A319 aircraft. Avianca would suffer substantial revenue 

losses if it is required to remove a seat row in order to accommodate an in-cabin priority space. 

The loss of three seats would be particularly burdensome on the 120-seat A319. Re-pitching the 

seats on one side of the aircraft in order to accommodate a priority space would result in an 

undesirable and asymmetrical pitch difference between the rows as well as uncomfortably small 

legroom on the re-pitched side of the aircraft. It could also result in a need to recertify the 

aircraft seats used on new aircraft to meet FAA 16G seat standards for the reduced pitch. 

II. Proposed Equivalent Alternative 

Avianca has developed an equivalent alternative method of wheelchair and assistive 

device stowage that Avianca believes provides similar accessibility to an in-cabin priority space 

requirement for its A320 and A319 aircraft. Avianca proposes to utilize a portion of the cargo 

hold as a designated space for the stowage of up to two wheelchairs in lieu of a priority space, 

Avianca would also: 

• utilize a protective cover for wheelchairs stowed in the cargo hold; 

• secure the wheelchair to tie-downs in the cargo hold, as appropriate; 

• leave passengers with the flexibility they presently enjoy to check the wheelchair 

wherever they prefer and to receive it back wherever they prefer; 

• offer the flexibility to receive the wheelchair at the door of the aircraft upon 

landing; and 

• implement checks in existing post-landing procedures to ensure that a passenger's 

wheelchair is removed ft-om the aircraft. 

04/21/2010 
Application of Aerovias del Continente Americano S A Avianca 

For an Equivalent Alternative Determination 

April 9, 2010 

Avianca would utilize the aft portion of the hold to stow wheelchairs. See Exhibit AV2. In the A320, Avianca would utilize a portion of bulk cargo hold just forward of the bulk cargo 

hold door. This portion of the hold could be accessed either via the bulk cargo hold door or via 

the aft cargo compartment door. See Exhibit AV-3. In the A319 the hold is accessed through 

the aft cargo compartment door. See Exhibit AV-4. In both the A319 and A320, this space is 

separated from the main cargo hold by a divider which is affixed to the floor, sides, and roof of 

the hold. See Exhibit AV-5. The hold has cargo tie-downs integrated in the floor as well as tiedown rings affixed to the webbing in the hold. See Exhibit AV-6. When wheelchairs are stowed 

under this procedure, Avianca will use these dedicated areas of the hold exclusively for 

wheelchair stowage, and will not stow passenger bags or other cargo or equipment in the same 

area. 

Avianca proposes to order protective storage bags for folding wheelchairs (and 

accessibility devices which will fit into such bags) for use on each aircraft, similar to the bags 

presently used to store the aisle wheelchair on board the aircraft. These bags will provide an 

additional measure of protection for wheelchairs. Avianca would check the folding wheelchair, 

stow it in its protective bag, and in turn securely stow the wheelchair in the hold by fastening it 

down to the built-in tie-downs. Avianca is exploring ways to utilize protective blankets for 

assistive devices that may not fit into the bag designed for folding wheelchairs. 

Under Avianca's proposal, a passenger would bring her wheelchair as far as she preferred 

(i.e., either to the door of the aircraft, or the gate). At that point, an Avianca employee would 

manually check the wheelchair. The passenger would be given a "manual" bag check receipt 

using a form, where the Avianca employee hand-writes the following details: passenger's name, 

flight number, destination, and the location where the item will be re-delivered to the passenger. 

4 

04/21/2010 
Application of Aerovias del Continente Americano SA Avianca 

For an Equivalent Alternative Determination 

April 9, 2010 

The baggage tag used on the passenger's checked item is marked with a wheelchair symbol to 

indicate that it is the property of a person with disabilities (Avianca uses this marking system 

now). 

The same Avianca employee who provides the passenger with the receipt for the checked 

item is personally responsible for assuring the wheelchair is placed in the hold. After providing 

the passenger with a receipt, the same Avianca employee would fold or break-down the 

wheelchair in accordance with instructions (if provided), pack the item in the protective bag, and 

load it into the hold. The Avianca employee would subsequently inform the ground handling 

fliglit leader (the "Leader") that a wheelchair or assistive device has been stowed in the hold. 

The Leader is responsible for filling out and faxing a detailed checklist (number of passengers on 

board, location and destination of checked bags, etc.) to Avianca's station at the flight's 

destination. This checklist is submitted to the destination station after the aircraft is loaded and 

the doors are closed. 

Avianca personnel at the flight's destination are therefore informed and aware that there 

is a wheelchair or assistive device in the hold prior to the aircraft's arrival. Once the aircraft 

arrives at the gate and ground handling personnel are permitted to approach and service the 

aircraft, the first item removed fi-om the aircraft will be the passenger's wheelchair or assistive 

device. It will be delivered to the passenger at the location the passenger indicated to Avianca 

when checked (i.e., the door of the aircraft on the jetway, or at the baggage claim). The Leader 

at the destination station will review the flight detail checklist faxed from the flight's origin, 

which will serve as an additional check to ensure that the item is not overlooked in the hold. 

Avianca will publicize the availability of these procedures for passengers with disabilities 

on its web site. Avianca will also provide training to the personnel involved in this procedure to 

5 

04/21/2010 
Application of Aerovias del Continente Americano SA Avianca 

For an Equivalent Alternative Determination 

April 9, 2010 

ensure that it is correctly followed and that wheelchairs and assistive devices are properly 

protected and stowed. 

Avianca would provide this alternative for up to two wheelchairs or assistive devices, on 

a first-come, first-served basis. Additional wheelchairs or assistive devices would be checked 

and stowed in the cargo hold in accordance with current practice and 14 C.F.R. § 382.125. 

Avianca is willing to waive applicable liability limits for assistive devices transported by means 

of this equivalent procedure, up to and not to exceed the original purchase price of the device, as 

if Section 382.13 was applicable. As a further protection for its passengers, in the event of 

damage to a wheelchair stowed under these procedures, Avianca will arrange to provide an 

acceptable temporary replacement of like kind and quality to the customer's wheelchair or, at the 

passenger's preference, Avianca will provide reimbursement for the cost of a rental wheelchair. 

III. Justification 

Avianca's proposal clearly meets the Department's standards for grant of an equivalent 

alternative determination as Avianca's proposed alternative will "provide substantially 

equivalent accessibility to passengers with disabilities than compliance with a provision of the 

rule." Final Rule at 27647. The Department adopted the priority space requirement as initially 

applied to carriers operating under Part 121 for two main reasons: first, for the passengers' 

convenience, in order to have the wheelchair close by when deplaning and to be able to get as 

close to the aircraft as possible in one's own wheelchair before enplaning; and second, to help 

prevent damage to, or loss of, wheelchairs along with the "bulk" of general passenger checked 

baggage. Final Rule at 27626, Under Avianca's proposed method, a passenger would, in fact, 

04/21/2010 
Application of Aerovias del Continente Americano SA Avianca 

For an Equivalent Alternative Determination 

April 9, 2010 

be able to get as close to the aircraft as she desired in her own wheelchair before checking it,^ 

and it would be far better protected from damage, being placed in a protective bag and secured in 

a dedicated area of the cargo hold. To be clear, no other cargo or items will be stowed in this 

area of the hold.'' 

Avianca's proposal also exceeds the treatment now required to be given to wheelchairs 

that must be checked. Section 382.125(c) requires the "timely return" of such items to a 

passenger, while Section 382.125(d) requires that wheelchairs and assistive devices be "among 

the first items retrieved from the baggage compartment." Avianca's proposed method would 

ensure that the wheelchair is the first item removed from the cargo hold of the aircraft, and that it 

is available to the passenger as soon as she deplanes. 

Grant of this equivalent alternative application will serve the public interest. First, 

Avianca's proposed accommodation meets the criteria set forth in the Department's final rule 

and "provides substantially equivalent accessibility" to Avianca's passengers. 14 C.F.R. § 382.3. 

"[I]n order to be viewed as an equivalent alternative, a policy, practice, accommodation, or piece 

of equipment must really provide substantially equivalent accessibility to passengers with 

disabilities than compliance with a provision of the rule." Final Rule at 27647 (discussing 14 

C.F.R. § 382.10). Second, grant of this application will entail a significant cost savings to 

Avianca. As noted above, Avianca's aircraft were ordered well in advance of the publication of 

the Department's Final Rule, and Avianca faces significant expense and practical challenges in 

' In Avianca's experience, most passengers request that the transfer be accomplished 

outside the jetway area at the gate counter for the sake of convenience. 

^ Avianca generally only utilizes this portion of the hold when it positions company 

material and spares during ferry and/or charter flights. No such items will be placed in the hold 

when a wheelchair is stowed there. 

04/21/2010 
Application of Aerovias del Continente Americano SA Avianca 

For an Equivalent Alternative Determination 

April 9, 2010 

changing its long-standing aircraft orders to comply with a requirement not in effect at the time 

Avianca placed its orders. Third, Avianca will not be forced to reconfigure its aircraft cabins, 

either by removing a row of seats, or by reducing the pitch of half of the seats in economy class, 

recertifying those seats to the 16g standard at the new pitch, and creating a fleet of aircraft with 

undesirable asymmetrical seating layouts. 

Avianca will provide additional data and information to the Department upon request, 

and respectfiilly requests the Department's prompt consideration of this application. 

WHEREFORE, Aerovias del Continente Americano S.A. Avianca respectfijily requests 

that the Department promptly grant it an equivalent alternative determination concerning 

compliance with 14 C.F.R. §§ 382.67 and 382.123 as more ftilly discussed above. 

Respectfiilly submitted. 

Richard D. Mathias 

David M. Endersbee 

ZUCKERT, SCOUTT & RASENBERGER, 

L.LP. 

888 17'" Street, N.W. 

Washington, D.C. 20036 

Tel: 202-298-8660 

Fax: 202-342-0683 

Email: rdinathias@zsrlaw.com 

dmendersbee(S).zsrl aw.com 

Counsel for Aerovias del Continente 

Americano SA Avianca 

April 9, 2010 

04/21/2010 10 
Exhibit AV-1 

Aircraft Delivery Schedule 

Confidential Treatment Requested Under §302.12 

04/21/2010 11 
Exhibit AV-2 

Cargo Holds 

Avianca's A319 and A320 aircraft are each equipped with two lower holds - a 

forward hold and an aft hold. These holds are divided into subcompartments. The 

forward hold is designated as forward cargo compartment No. 1. The aft hold is divided 

into aft cargo compartments, designated aft cargo compartments Nos. 3 and 4, and (in the 

A320) bulk cargo compartment No. 5. Compartment No. 5 is divided from compartment 

No. 4 by a divider net. All compartments have tie down/attachment points for the nets 

and straps utilized to hold the cargo in place. In the A319, the hold is reached via the aft 

cargo compartment door, while in the A320 the hold may be reached via the aft cargo 

compartment door or via the bulk cargo hold door. 

FKJAA 

F'flO LOWER HOLD AFTLOAtRHOl O 

2 150/160 

FWD CARGO 

COUrt^RIMENT DOOR 

COMPARTMENTS 

tJO I 

ArrCADCO 

COMPf'.RIMENrS 

MO > ^N O NO A 

04/21/2010 12 
0 § @ B &m& & 9 P 

N422AV -^^^Hlica.CQ m 

:r. f.^i ^ pftauv| 

c-..cc' ' C '-• tiittv"! 

View of A319 aft cargo compartment door. 

04/21/2010 13 
Exhibit AV-3 

A320 Hold 

A320 witlTBuik Cargo DooKThe storage area for a 

passenger's^wheeJetTairTs located to the right of the door in the 

area represented by the outlined rectangle. 

Avianca 

Con to do gusto 

04/21/2010 14 
A320 withf:gujk^Cargo^bo§r. The priority area for the storage 

of the passenger wft^elchair is located forward of the door in 

the diagram. 

^^vianca 

Contodoguito 

. jjwvg 

CMtf.f £i>jj 

'> a ^ -uy^--

A ( / f j > \ I 

04/21/2010 15 
Exhibit AV-4 

A319 Hold 

A319, without a'&ilk Cargo Poofi The priority area for the 

storage of passenger wfcfeeichairs is tocated to the right side of 

the aft cargo door in tt]e area represented by the outlined 

rectangle,. / 

04/21/2010 16 
A319 without Bulk Cargo Door. The prbrity area for the 

storage of the passenger wheelchair is located forward of the 

aft cargo door. 

^=Avlanca 

Con todc gtiito 

04/21/2010 17 
Exhibit AV-S 

Cargo hold dividers 

EJ5ig 

1.0. 1 •• i :f.\ 

04/21/2010 18 
.££3 

04/21/2010 19 
iO 

04/21/2010 

20 
11 

04/21/2010 

21 
Exhibit AV-6 

Tie-Down Points 

12 

04/21/2010 22