Order 2012-5-22

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twenty-Fourth day of May, 2012

Virgin America Inc. Docket OST 2012-0002

 

Violations of 14 CFR Part 382 and 49 U.S.C. Served May 24, 2012

 §§ 41310, 41702, 41705, and 41712

CONSENT ORDER

This order concerns violations by Virgin America Inc., (Virgin America) of the 

requirements of 14 CFR Part 382 (Part 382) with respect to properly coding and 

recording its disability-related complaints in connection with required reporting to the 

Department of Transportation (Department) as well as providing dispositive responses to 

written complaints alleging a violation of Part 382. Part 382 implements the Air Carrier 

Access Act (ACAA), 49 U.S.C. § 41705, and violations of that part also violate the 

ACAA. To the extent that the ACAA and Part 382 violations occurred in interstate air 

transportation, 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 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. This order directs Virgin America to cease and desist 

from future similar violations and assesses the carrier $100,000 in civil penalties. 

Department’s Rule Protecting Passengers with Disabilities

Pursuant to section 382.157 [formerly section 382.70] carriers must categorize disabilityrelated complaints they receive according to the type of disability and nature of complaint 

and submit annual reports to the Department detailing the disability complaints received 
2

the prior calendar year.1 If a written complaint contains multiple issues, each issue must 

be coded separately to adequately account for the number of complaints a carrier 

receives.2

Under 14 CFR 382.155 [formerly section 382.65] carriers are required to provide a 

dispositive written response to a written complaint alleging a violation of Part 382 within 

30 days of its receipt.3

 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. 

Background

In July 2011, staff of the Department’s Office of Aviation Enforcement and Proceedings 

(Enforcement Office) conducted an on-site regulatory compliance inspection at Virgin 

America’s corporate headquarters in Burlingame, California. During this inspection, the 

Enforcement Office reviewed all disability-related complaints received by Virgin 

America from 2009 through June 2011. 

The Enforcement Office found that in numerous instances, Virgin America failed to 

provide a dispositive written response to a written complaint alleging a violation of Part 

382, and thereby failed to comply with the requirements of section 382.155. In addition,

Virgin America violated section 382.157 by failing to properly categorize and account for 

all the disability-related issues that were raised in the complaints received during the 

calendar years 2008 and 2009. As a result, a number of complaints were missing from 

Virgin America’s annual reports submitted to the Department in 2009 and 2010.

Mitigation

In mitigation, Virgin America states that its business model is focused on providing 

outstanding customer service to all of its guests and that it takes its responsibilities under 

the ACAA and Part 382 very seriously. Virgin America also states that it has fully 

cooperated with the Department’s staff from the beginning of the Department’s audit and 

has continually worked to improve its complaint reporting, coding, and reporting 

processes. Virgin America asserts that in many instances it provided refunds or credits to 

passengers who submitted disability-related complaints, and it is Virgin America’s 

 1 On May 13, 2009, the Department issued a final rule amending its ACAA rules, which, among 

other things, restructured and updated the rule. Prior to the 2009 amendment of Part 382, section 382.70 

contained the disability-related complaint reporting requirement. 

2 As noted in the Department’s 2004 guidance document on the reporting requirements for 

disability-related complaints, carriers must categorize and report each separate disability-related complaint

if one piece of correspondence raises more than one disability-related issue. Reporting Requirements for 

Disability-Related Complaints, 69 Fed. Reg. 77885, 77888 (Dec. 29, 2004). 

3 Prior to the 2009 amendment of Part 382, section 382.65 contained the dispositive response 

requirement. 
3

practice to continually monitor such complaints and use them as a basis for improving 

service. 

With respect to the categorization and accounting of disability-related complaints, Virgin 

America states that it has made enhancements to its complaint database and tracking 

systems to ensure that all disability-related complaints are captured. With respect to its 

written responses, Virgin America states that it has revised its response letters to ensure 

that each response is complete and dispositive. Virgin America further notes that the 

issues identified during the Department’s audit relate to recordkeeping and reporting 

requirements, and not to Virgin America’s compliance with the service-related 

requirements of Part 382.

Decision

The Enforcement Office has carefully considered the information provided by Virgin 

America Inc., and continues to believe that enforcement action is warranted. In order to 

avoid litigation, Virgin America Inc., has agreed to settle this matter with the 

Enforcement Office and enter into this consent order directing the carrier to cease and 

desist from future violations of 14 CFR Part 382 and 49 U.S.C. §§ 41310, 41702, 40705, 

and 41712, and assessing Virgin America Inc., $100,000 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 the violations described 

herein and serves the public interest. It establishes a strong deterrent to future similar 

unlawful practices by Virgin America Inc., and other carriers. 

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

ACCORDINGLY,

1. Based on the above discussion, we approve this settlement and the provisions of 

the order as being in the public interest;

2. We find that Virgin America Inc., violated the requirements of 14 CFR 382.155 

by failing to provide dispositive responses to written complaints alleging a 

violation of Part 382; 

3. We find that Virgin America Inc., violated the requirements of 14 CFR 382.157 

by failing to properly categorize and accurately report its disability-related 

complaints;

4. We find that Virgin America Inc., in the instances described in ordering 

paragraphs 2 and 3, above, violated the Air Carrier Access Act, 49 U.S.C. 

§ 41705;
4

5. We find that to the extent the violations described in ordering paragraphs 2 and 3, 

above, occurred in interstate air transportation, the conduct violated 49 U.S.C. 

§ 41702;

6. We find that to the extent the violations described in ordering paragraphs 2 and 3, 

above, occurred in foreign air transportation, the conduct violated 49 U.S.C. 

§ 41310;

7. We find that the violations described in ordering paragraphs 2 through 6 involved 

unfair and deceptive practices and thereby violated 49 U.S.C. § 41712;

8. We order Virgin America Inc., and its successors and assigns to cease and desist 

from violations of 14 CFR Part 382 and 49 U.S.C. §§ 41310, 41702, 40705, and 

41712. Failure to comply with this cease and desist provision shall subject Virgin 

America Inc., and its successors and assignees to further enforcement action;

9. We assess Virgin America Inc., a compromise of civil penalty of $100,000 in lieu 

of civil penalties that might otherwise be assessed for the violations described in 

ordering paragraphs 2 through 7 above. Of this total penalty amount, $50,000 

shall be due and payable within 30 days of the date of issuance of this order. The 

remaining $50,000 shall be due and payable immediately if Virgin America Inc., 

violates this order’s cease and desist or payment provisions within one year of the 

issuance of this order; and 

10. Payment shall be made by wire transfer through the Federal Reserve 

Communications System, commonly known as “Fed Wire,” to the account of the 

U.S. Treasury. The wire transfer shall be executed in accordance with the 

instructions contained in the Attachment to this order. Failure to pay the 

compromise penalty assessment as ordered shall subject Virgin America Inc., to 

the assessment of interest, penalty, and collection charges under the Debt 

Collection Act

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 

initiative.

BY:

ROSALIND A. KNAPP

Deputy General Counsel

(SEAL)

An electronic version of this document is available at

www.regulations.gov