Order 20 11

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the Seventh day of January , 20 1 1

Mesaba Aviation, Inc. Docket OST

- 201 1

- 0003

Violations of 14 CFR Part 382 and Served January 7, 2011

4 9 U.S.C. §§ 41310

, 4 17 0 2

, 41705 , and 41712

CONSENT ORDER

This order concerns violations by Mesaba Aviation, Inc. ( Mesaba ) of the requirements of 14 CFR Part 382 (Part 382) with respect to providing wheelchair assistance to passengers with a disability and making dispositive responses to written complain ts a lleging a violation of Part

382 . Part 382 implement s 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 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 would violate 49 U.S.C. § 41310, which

, in part

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

. This order

directs Mesaba to cease and d esist from future violations of Part 382 and assesses the carrier $ 125 ,000 in civil penalt ies

.

Applicable Law

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, the provision of services and personnel and the use of wheelchairs, ramps, or mechanical

lifts. Section 382.39 (a)(3) [ now section 382. 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.

S ection 328 .65 [now section 382.155] requires carriers to provide a dispositive written response to a written complaint alleging a violation of Part 382 within 30 days of its receipt. An appropriate dispositive response must sp ecifically discuss the complaint at issue, state the- 2

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carrier’s view of whether a violation occurred

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

.

Back g round

The Office of Aviation Enforcement and Proceedings (Aviation Enforcement Office) investigated Mesaba’s compliance with the ACAA and Part 382 by reviewing disability

- related complaints that the Department received against Mesaba during the past several years and that

Mesaba received directly fro m passenger s in 200 7 and 2008 . The records indicated a significant number of apparent violations of section 382.39 [now section s 382.91 to 382.105] during the pertinent time period. Additionally, Mesaba’s complaint files indicated that in a number of instances, it did not provide a dispositive response to complainant s as required by section 382.65 [now section 382.155]

. More specifically, t he violations that resulted from section 382.65 [now section 382.155] are cases in which Mesaba completely faile d to provide a written response to a complainant or are cases wherein Mesaba failed to notify a complainant of his or her right to pursue DOT enforcement action.

Mitigation

In mitigation, Mesaba explains that the complaint files identified by the Depa rtment in this matter involved services provided to passengers ticketed on Northwest Airlines , Inc. (Northwest)

and Delta Air Lines , Inc

. (Delta). Mesaba further explains that d uring the relevant period, Mesaba was wholly

- owned and controlled by those carriers, both of which exclusively handled passenger sales, reservation, customer care, and recordkeeping functions, and most terminal services, fo r passengers on Mesaba flights. F or example, Mesaba states that Northwest and Delta's Customer Care Departments maintained primary responsibility for managing and providing dispositive responses to disability

- related complaints when required by Part 382. Further, Mesaba states that more than half of the complaint files at issue involved wheelchair services provided at Northwest/Delta hubs in Det roit, Memphis, and Minneapolis; a t these three hubs, Northwest and Delta maintained exclusive control over the contractors that provided enplanin g/deplaning/connecting wheelchair assistance to their passengers with disabilities.

Mesaba states that it relied exclusively on Northwest/Delta and their wheelchair service contractors to meet the regulatory responsibility for terminal wheelchair assistan ce that section

382.91 assigns to Mesaba when it delivers a disabled passenger requiring such assistance to one

of these hubs.

Mesaba states that it recognizes its Part 382 responsibilities to the disabled passengers it transports, and it has high standar ds for the accommodations to be provided to them, whether by Mesaba, a major carrier, or a service contractor. Mesaba states that i n the future it will focus additional management resources and will improve internal controls and processes to better

ensure those responsibilities and standards are met. Mesaba also maintains that it will encourage its major carrier partners to support service levels for disabled passengers that exceed the requirements of Part 382, whether or not a Mesaba flight is involved.- 3

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Decision

The Enforcement Office has carefully considered the information provided by Mesaba and

continues to believe that enforcement action is warranted

. In order to avoid litigation, Mesaba 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 similar violations of Part 3 82 and

49 U.S.C. § § 41310, 41702, 41705, and 41712, and assessing $ 125 ,000 in compromise of potential civil penalties other wise 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 Mesaba and other carriers.

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 provisions of this order as being in the public interest;

2. We find that Mesaba Aviation, Inc. 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 passe ngers with disabilities ;

3. We find that Mesaba Aviation, Inc. 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 Mesaba Aviation, Inc. in the instances described in ordering paragraphs 2 through 3

, above

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

5. We find that to the extent the violations described in ordering para graphs 2 through 3

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

6. We find that to the extent the violations described in ordering paragraphs 2 through 3 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 3 involved unfair and deceptive practices and thereby violated 49 U.S.C. § 417 12;

8. We order Mesaba Aviation, Inc. and its successors and assigns to cease and desist from

furthe r violations of 14 CFR Par t 382 and 49 U.S.C. § § 41310, 41702, 41705, and 41712 by engaging in the conduct described in ordering paragraphs 2 though 3 ;

9. We assess Mesaba Aviation, Inc. a compromise civil penalty of $ 125 ,000 in lieu of civil penalties that might otherwise be assessed for the violations found in ordering paragraphs- 4

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2 through 7

, above, which shall be due and payable within 30 days from the date of issuance of this order. Failure to pay the penalty as ordered s hall subject Mesaba Aviation, Inc. 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 ; and

10. Payment shall be made by wire transfe r through the Federal Reserve Communication 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