Order 2012-8-25

 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twentieth day of August, 2012

JetBlue Airways Corporation 

Docket OST 2012-0002

Served August 20, 2012

Violations of 14 CFR Part 259

and 49 U.S.C. § 41712 

CONSENT ORDER

This consent order concerns violations of 14 CFR Part 259 and 49 U.S.C. § 41712 

involving the failure by JetBlue Airways Corporation (JetBlue) as required to inform 

passengers on a flight delayed at the gate for a lengthy period of time of the opportunity 

to deplane. Moreover, JetBlue failed to include certain required assurances in its 

contingency plan for lengthy tarmac delays. This order directs JetBlue to cease and 

desist from future similar violations of Part 259 and section 41712 and assesses the 

carrier $90,000 in civil penalties.

Applicable Law

Pursuant to section 259.4 of the Department’s rules (14 CFR 259.4) covered carriers, 

which includes any U.S. certificated carrier conducting scheduled passenger service or 

public charter service with at least one aircraft having a designed seating capacity of 30 

or more seats, are required to adopt, implement, and adhere to contingency plans for 

lengthy tarmac delays at each large hub, medium hub, small hub, and non-hub airport.1

 1 On April 25, 2011, the Department issued a set of rules designed to enhance protection for air travel 

consumers that, among other items, expanded the requirements under the Department’s rule on contingency 

plans for lengthy tarmac delays. 76 Fed. Reg. 23110 (April 25, 2011).
2

Specifically, pursuant to section 259.4(b)(6), for all flights, a carrier must provide the 

assurance that the passengers on the delayed flight will be notified beginning 30 minutes 

after scheduled departure time and every 30 minutes thereafter that they have the 

opportunity to deplane from an aircraft that is at the gate or another disembarkation area 

with the door open if the opportunity to deplane actually exists. A carrier’s failure to 

comply with the assurances required by Part 259 and as contained in its contingency plan 

for lengthy tarmac delays is considered to be an unfair and deceptive practice within the 

meaning of 49 U.S.C. § 41712. 

In addition, pursuant to section 259.4, covered carriers’ tarmac delay contingency plans

must include, at a minimum, the ten assurances that are specified in the rule at section

259.4(b)(1)-(10). Under section 259.6, each covered U.S. carrier that has a website is 

required to post its current contingency plan on its website in easily accessible form. 

Facts and Conclusions

JetBlue is an air carrier as defined by 49 U.S.C. § 40102(a)(2)2 that operates scheduled 

service at JFK International Airport (JFK), and many other a large hub airports, using 

aircraft having a design capacity of more than 30 passenger seats. JetBlue operated flight 

645 from JFK to San Francisco International Airport (SFO) on March 3, 2012. Flight 

645 was scheduled to depart JFK at 7:30 p.m. and arrive at SFO at 11:16 p.m. local time. 

Boarding began at 7:06 p.m., however, because of a mechanical issue and then 

circumstances surrounding accommodating military personnel, the flight was delayed and 

the doors to the aircraft did not close until 9:55 p.m. A passenger on board flight 645 

filed a consumer complaint with the Department’s Aviation Consumer Protection 

Division and alleged that passengers were not notified that they had the opportunity to 

deplane the aircraft during this delay. 

In response to an investigation by the Office of Aviation Enforcement and Proceedings

(Enforcement Office), JetBlue admits that the Captain of flight 645 confirmed that 

deplaning announcements were not made during the delay in question. However, JetBlue 

states that although the option to deplane was not announced, the aircraft door was open 

throughout this delay and customers could have deplaned at any time.

Section 259.4(b)(6) requires that carriers announce that passengers have the opportunity 

to deplane from an aircraft when the flight is delayed and the aircraft is at a gate or 

another disembarkation area with the door open. A tarmac delay begins when passengers 

no longer have the option to get off an aircraft, which usually occurs when the doors of 

the aircraft are closed. Section 259.4(b)(6) was promulgated to address the issue of when 

a tarmac delay has not yet begun, because the doors remain open at a gate or another 

disembarkation area, and yet passengers are unaware that the door to the aircraft is open 

and that they have the option to deplane, particularly during a departure delay at the gate 

or on an aircraft where passenger would not know that the door was open and deplaning 

 

 

2 49 U.S.C. § 40102(a)(2) defines an air carrier as “a citizen of the United States undertaking by any means, 

directly or indirectly, to provide air transportation.”
3

was an option. Carriers are not required to provide passengers the opportunity to deplane 

in less than three hours but if that opportunity does exists the rule requires that the carrier

simply inform them that the opportunity to deplane exists. The Department has 

encouraged carriers to also remind passengers that they are deplaning at their own risk 

and that the flight could depart at any time without them if that is in fact the case. 

In sum, section 259.4(b)(6) is in place to address the precise incident that occurred on 

flight 645. Beginning thirty minutes after the scheduled departure time of 7:30 p.m. and 

every thirty minutes thereafter until the doors closed JetBlue was required to notify

passengers that they could deplane the aircraft if they wished to do so. The failure by 

JetBlue to make the proper notifications is a violation of 14 CFR 259.4(b)(6) as well as

49 U.S.C. § 41712. 

In addition, as part of the investigation into this incident, a review of JetBlue’s 

contingency plan for lengthy tarmac delays, posted on its website, revealed that absent 

from the contents of its plan are the required assurances specified in section 259.4(b)(5)-

(7). Pursuant to section 259.4(b)(5), a carrier must provide an assurance that passengers 

on the delayed flight will receive notifications regarding the status of the delay every 30 

minutes while the aircraft is delayed, including the reasons for the tarmac delay, if 

known. The provisions of section 259.4(b)(6) are the subject of this enforcement order

and section 259.4(b)(7) requires the assurance of sufficient resources to implement the 

plan. The failure by JetBlue to adopt all of the required assurances specified in 

259.4(b)(1)-(10) in its contingency plan for lengthy tarmac delays is a violation of 14 

CFR 259.4(b) and 49 U.S.C. § 41712. 

Mitigation

JetBlue states that it takes its regulatory responsibilities very seriously and is especially 

concerned about its passengers’ safe travel, including being sure that any passenger that 

wishes to deplane prior to departure has that opportunity. JetBlue concedes that its 

contingency plan failed to cover all of the requirements of Part 259; however, it points 

out that during the mechanical delay the door of the aircraft was never closed and 

passengers were free to deplane at any time. It further points out that even after the door 

was eventually closed on the flight in question the gate was reattached and the door was 

reopened allowing a passenger who asked to deplane to do so. JetBlue states that no one 

was forced to remain on the aircraft for more than three (3) hours at any time on the flight

nor was anyone prohibited from deplaning at their will. JetBlue also states that it has 

provided passengers $31,245 in one-way travel vouchers as compensation for the delay 

they encountered on March 3, 2012 and has amended its contingency plan to cover all 

requirements of Part 259.

Decision

The Enforcement Office has carefully considered the information provided by JetBlue 

Airways Corporation, but continues to believe enforcement action is warranted. The 

Enforcement Office and JetBlue Airways Corporation have reached a settlement of this 
4

matter in order to avoid litigation. Without admitting or denying the violations described 

above, JetBlue Airways Corporation, consents to the issuance of this order to cease and 

desist from future violations of 14 CFR 259.4 and 49 U.S.C. § 41712 and to the 

assessment of $90,000 in compromise of potential civil penalties otherwise due and 

payable pursuant to 49 U.S.C. § 46301. The 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 

Airways Corporation, and other carriers.

This order is issued under the authority contained in 49 CFR Part 1.

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 JetBlue Airways Corporation violated section 259.4(b)(6) by failing to 

properly notify passengers that they had the opportunity to deplane the aircraft that 

was at the gate for a lengthy period with the door open; 

3. We find that JetBlue Airways Corporation violated section 259.4(b) by failing to

include all of the required assurances in its contingency plan for lengthy tarmac 

delays;

4. We find that by engaging in the conduct described in ordering paragraphs 2 and 3,

above, JetBlue Airways Corporation engaged in unfair and deceptive practices and 

unfair methods of competition in violation of 49 U.S.C. § 41712; 

5. We order JetBlue Airways Corporation, and all other entities owned or controlled by, 

or under common ownership and control with JetBlue Airways Corporation, its

successors, affiliates, and assignees, to cease and desist from further violations of 

14 CFR 259.4 and 49 U.S.C. § 41712;

6. JetBlue Airways Corporation is assessed $90,000 in compromise of civil penalties 

that might otherwise by assessed for the violations described above. Of that amount,

$20,000 shall be due and payable within 30 days of the date of issuance of this order; 

and $25,000 shall be credited to JetBlue Airways Corporation for travel vouchers

provided to passengers of Flight 645 that may be used to acquire transportation on 

JetBlue Airways Corporation flights. The remaining amount will become due and 

payable, if within one year of the date of the issuance of this order, JetBlue Airways 

Corporation violates the order’s cease and desist provisions or fails to comply with 

the order’s payment provisions, in which case JetBlue Airways Corporation may be 

subject to additional enforcement action for violation of this order; and
5

7. We order JetBlue Airways Corporation to pay the penalty through Pay.gov to the 

account of the U.S. Treasury. Payments shall be made in accordance with the 

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

ordered shall subject JetBlue Airways Corporation to the assessment of interest, 

penalty, and collection charges under the Debt Collection Act and to further 

enforcement action for failing to comply with this order.

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:

SAMUEL PODBERESKY

Assistant General Counsel for

 Aviation Enforcement and Proceedings

(SEAL)

An electronic version of this document is available at 

www.regulations.gov