Order 2010-7-18

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twenty-Sixth day of July, 2010

Comair, Inc.

Docket OST 2010-0005

Violations of 14 CFR Part 250 and 49 U.S.C. 

 §§ 41708 and 41712 Served July 26, 2010

CONSENT ORDER

This consent order concerns violations by Comair, Inc., (Comair) 1 of the Department’s 

oversales rule (14 CFR Part 250), the statutory provision requiring carriers to report 

oversales and other data to the Department (49 U.S.C. § 41708), and the statutory 

prohibition against engaging in unfair and deceptive practices by air carriers and ticket 

agents (49 U.S.C. § 41712). The violations stem from the carrier’s failures on oversold 

flights to 1) solicit volunteers to give up their seats before denying boarding to passengers 

against their will, 2) provide passengers who were involuntarily denied boarding with the 

appropriate amount and type of denied boarding compensation (DBC) in a timely 

manner, and 3) file required reports accurately stating the total numbers of passengers 

who were involuntarily denied boarding. The order directs Comair to cease and desist 

from such further violations and assesses a civil penalty of $275,000.

2

The Department’s oversales rule reflects a carefully crafted balance between the right of 

individual passengers to obtain the services they purchase and the ability of carriers to 

market their services effectively. Part 250 permits airlines to sell more tickets for a flight 

than there are seats on the aircraft to be used for that flight. This allows carriers to fill 

seats that would otherwise have gone empty due to “no shows,” thereby resulting in 

efficiencies for carriers, including revenue enhancement, and benefits for passengers as a 

whole by enabling carriers to offer them lower fares. 

 1

 Comair, Inc., is a wholly owned subsidiary of Delta Air Lines, Inc., (Delta). 

2

 This order is a global settlement of all oversales-related violations through the date of this order by 

Comair, Delta, and all of Delta’s subsidiaries and affiliates, including any oversales-related violations that 

may have accrued to Delta as the successor-in-interest following its merger with Northwest Airlines, Inc.
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In exchange for the ability to overbook flights (a practice that would otherwise be unfair 

and deceptive or an unfair method of competition within the meaning of 49 U.S.C. 

§ 41712), the rule mandates compensation and other protections for passengers who hold 

“confirmed reserved space” on a flight, have complied with the carrier’s contract of 

carriage, have met the carrier’s requirements with respect to check-in time and 

appearance at the gate, and have been involuntarily denied boarding of their flight 

because it was oversold (“eligible passengers”). Specifically, under most circumstances, 

Part 250 mandates that a carrier pay DBC to eligible passengers. However, before 

denying boarding to passengers against their will, the carrier must first solicit volunteers 

who are willing to give up their seats in exchange for compensation.3

 If there are not 

enough volunteers, the carrier may deny boarding to other passengers against their will, 

provided inter alia “on the day and [at the] place the denied boarding occurs,” the carrier 

pays all eligible passengers with “cash or an immediately negotiable check for the 

appropriate amount of compensation.”4 The appropriate amount of DBC varies for each 

passenger depending on the planned time of arrival at his or her destination of substitute 

transportation arranged (or offered to be arranged) by the carrier, the value of the unused 

portion of the passenger’s ticket to his or her destination, and whether the flight segment 

on which the bumping occurred was between U.S. points, or from the U.S. to a foreign 

point.5

 

Although Part 250 permits a carrier to offer free or reduced rate air transportation in the 

form of travel vouchers for use on future flights in lieu of a cash payment, the carrier

must first “[inform] the passenger of the amount of cash compensation that would 

otherwise be due and that the passenger may decline the transportation benefit and 

receive the cash payment.”6

 In other words, the carrier must apprise eligible passengers 

of their entitlement to cash/check compensation and the amount thereof in the event he or 

she prefers that form of compensation instead of a travel voucher. In order to ensure that 

these passengers have the ability to make informed decisions regarding the various DBC 

options available to them, a carrier is required to furnish them with a written statement, 

the text of which is specified in the rule, that explains the terms, conditions, and 

limitations of denied boarding compensation.7

 3

 14 CFR 250.2b(a).

 Violations of Part 250 also constitute 

4

 14 CFR 250.8(a). Offering or providing passengers denied boarding compensation does not relieve 

carriers from their obligation to perform the transportation promised under their contract of carriage with 

passengers. Therefore, in addition to receiving DBC, eligible passengers are entitled to keep their original 

ticket and use it on another flight. In the alternative, if eligible passengers choose to make their own 

arrangements, they can request an “involuntary refund” for the ticket for the flight from which they were 

bumped. DBC is a separate right and is intended to compensate passengers for their inconvenience. Part 

250 makes clear that passengers are free to decline the DBC required under the rule and bring a private 

legal action.

5

 14 CFR 250.5(a). 

6

 14 CFR 250.5(b). 

7

 14 CFR 250.9(a). 
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unfair and deceptive practices and unfair methods of competition in violation of 49 

U.S.C. § 41712. 

In addition, 14 CFR 250.10 requires carriers to file quarterly reports with the 

Department’s Bureau of Transportation Statistics (BTS Form 251) listing inter alia the 

number of passengers denied boarding involuntarily and the number of passengers who 

volunteered to give up their seats. These numbers are then published and made available

to the public in the Department’s monthly Air Travel Consumer Report (ATCR), which 

ranks carriers according to their rate of involuntary denied boardings.8

 ATCR data may 

be used by members of the traveling public when choosing among transportation options 

and by carriers as a basis for making advertising claims regarding the quality of their 

service compared to other carriers. It is imperative, therefore, that ATCR data be 

accurate. Violations of section 250.10 also constitute violations of 49 U.S.C. § 41708. 

Based on concerns arising from consumer complaints filed with the Department’s Office 

of Aviation Enforcement and Proceedings (Enforcement Office), that office began an 

investigation of Comair’s compliance with Part 250. That investigation involved a 

review of information regarding consumer complaints involving Part 250 sent directly to 

Comair as well as a comprehensive inspection at Comair’s headquarters of the airline’s 

consumer complaint records, practices, and policies involving Part 250. This 

investigation revealed numerous instances in which Comair denied boarding to 

passengers, but did not follow one or more of the requirements of Part 250, as outlined 

above, including instances in which Comair classified passengers who were involuntarily 

denied boarding as having volunteered to give up their seats. These failures violated Part 

250 and constituted unfair and deceptive practices and unfair methods of competition in 

violation of 49 U.S.C. § 41712. The failures that involved violations of the reporting 

requirement of 14 CFR 250.10 also violated 49 U.S.C. § 41708. The Enforcement Office 

views the violations uncovered during its investigation as indicative of a general pattern 

of noncompliance by Comair that must be rectified. 

In mitigation, Comair states it strives not only to comply fully with DOT consumer

regulations, but to exceed DOT mandates in many areas to make the travel experience as 

convenient and enjoyable as possible. Comair uses the software, hardware, and

procedures of its parent Delta Air Lines for handling oversale situations and denied

boarding compensation. Comair and Delta have invested substantial financial and human 

resources capital in a continuing effort to ensure compliance with 14 CFR Part 250, 

including improved training and enhanced tools to simplify the process for agents in such 

situations. Included in this effort was the development and implementation of a tool that 

allows denied boarding compensation to be accurately determined and generates a 

notification coupon that meets the notice requirements under Part 250. Comair states that, 

although it believes enforcement action is not warranted, it has agreed to settle this matter 

without admitting to a violation to avoid the burden and expense of litigation.

 

8

 See Air Travel Consumer Report, available at http://airconsumer.dot.gov. A carrier’s rate of involuntary 

denied boardings is computed using its total quarterly number of involuntary denied boardings and its 

passenger enplanements over that period.
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We have carefully considered the facts of this case, including the explanation provided by 

Comair, and continue to believe that enforcement action is necessary. Comair, in order to 

avoid litigation, and without admitting the violations described above, agrees to the 

issuance of this order to cease and desist from future violations of 14 CFR Part 250, 49 

U.S.C. § 41708 and 49 U.S.C. § 41712. Comair further agrees to the assessment of 

$275,000 in compromise of potential civil penalties otherwise assessable against it. The 

Enforcement Office believes that this compromise assessment is appropriate in view of 

the nature and extent of the violations in question, serves the public interest, and provides 

a strong incentive to Comair and all other airlines to comply with the Department’s 

denied boarding regulation.

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 Comair, Inc., violated 14 CFR 250.2b(a), as described above, by 

failing to solicit volunteers before involuntarily denying boarding to passengers on 

oversold flights and by failing to provide promised compensation to volunteers; 

3. We find that Comair, Inc., violated 14 CFR 250.8(a), as described above, by failing 

to tender cash or an immediately negotiable check for the appropriate amount of 

compensation on the day and at the place the denied boarding occurred to eligible 

passengers who were denied boarding involuntarily; 

4. We find that Comair, Inc., violated 14 CFR 250.5(a), as described above, by failing 

to pay eligible passengers who were denied boarding involuntarily the appropriate 

amount of denied boarding compensation specified in the rule; 

5. We find that Comair, Inc., violated 14 CFR 250.5(b), as described above, by failing 

to inform eligible passengers who were denied boarding involuntarily and who were 

offered travel vouchers of the amount of cash compensation that was due to them; 

6. We find that Comair, Inc., violated 14 CFR 250.10, by reporting passengers as 

having volunteered to give up their seats, when, in fact, they were involuntarily denied 

boarding; 

7. By engaging in the conduct described in ordering paragraphs 2, 3, 4, 5, and 6, 

above, we find that Comair, Inc., engaged in an unfair and deceptive practice and unfair 

method of competition in violation of 49 U.S.C. § 41712;
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8. By engaging in the conduct described in ordering paragraph 6, above, we find that 

Comair, Inc., violated 49 U.S.C. § 41708;

9. We order Comair, Inc., and all other entities owned, controlled by, or under 

common ownership with Comair, Inc., and its parent company, Delta Air Lines, Inc., and 

all of its subsidiaries and affiliates, to cease and desist from further violations of 14 CFR 

Part 250, 49 U.S.C. §41708, and 49 U.S.C. § 41712;

10. We assess Comair, Inc., a compromise civil penalty of $275,000 in lieu of civil 

penalties that might otherwise be assessed, for the violations described in ordering 

paragraphs 2 through 8, above. The compromise civil penalty amount shall be due and 

payable within thirty (30) days of the issuance of this order; and 

11. Comair, Inc., shall pay or cause to be paid the assessed civil penalty 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 penalty as ordered shall subject Comair, Inc., to the assessment of interest, penalty, 

and collection charges under the Debt Collection Act and to possible enforcement action 

for failure 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 

initiative.

BY:

ROSALIND A. KNAPP

Deputy General Counsel

(SEAL)

An electronic version of this document is available at

www.regulations.gov