Order 2015-1-10

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the 15th day of January, 2015

Southwest Airlines Co. Served: January 15, 2015 

Violations of 14 CFR Part 259 and

 49 U.S.C. §§ 42301 and 41712 Docket OST-2015-0002

CONSENT ORDER

This consent order concerns violations by Southwest Airlines Co., (Southwest) of 

14 CFR Part 259, the Department’s tarmac delay rule; 49 U.S.C. § 42301, which requires 

adherence to a carrier’s emergency contingency plan; and 49 U.S.C. § 41712, which 

prohibits unfair and deceptive practices. Specifically, the carrier violated the 

Department’s tarmac delay rule by failing to adhere to the assurances in its contingency 

plan for lengthy tarmac delays that the carrier (1) would not allow an aircraft to remain 

on the tarmac for more than three hours for domestic flights before providing passengers 

an opportunity to deplane, and (2) would have sufficient resources to implement its plan. 

This order directs Southwest to cease and desist from future similar violations of 

14 CFR Part 259 and 49 U.S.C. §§ 42301 and 41712 and assesses the carrier $1,600,000 

in civil penalties. 

Applicable Law

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

which include 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. 

Specifically, for domestic flights, which are at issue here, under section 259.4(b)(1), 
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carriers must provide assurances that they will not permit an aircraft to remain on the 

tarmac for more than three hours without allowing passengers to deplane. Section 259.4 

includes two exceptions to the three-hour rule: (1) where the pilot-in-command 

determines that an aircraft cannot leave its position on the tarmac to deplane passengers 

due to a safety-related or security-related reason (e.g. weather, a directive from an 

appropriate government agency, etc.), and (2) where Air Traffic Control (ATC) advises 

the pilot-in-command that returning to the gate or another disembarkation point 

elsewhere in order to deplane passengers would significantly disrupt airport operations. 

In addition, section 259.4(b)(7) requires a covered carrier to provide assurances that it has 

sufficient resources to implement its plans. 

Furthermore, under the FAA Modernization and Reform Act of 2012 (the Act), 

49 U.S.C. § 42301, covered carriers are required to submit to the Department an 

emergency contingency plan that contains the assurance that a passenger will have the 

opportunity to deplane an aircraft when there is an excessive tarmac delay.1 The Act also 

requires each carrier to develop a tarmac delay contingency plan for each airport it serves 

and to adhere to its respective plan. An air carrier’s failure to comply with the assurances 

required by section 259.4 and 49 U.S.C. § 42301 constitutes an unfair and deceptive 

practice within the meaning of 49 U.S.C. § 41712. 

Facts and Conclusions

Southwest is an air carrier as defined by 49 U.S.C. § 40102(a)(2).

2 Southwest operates 

scheduled service at Chicago Midway International Airport (MDW), a large hub airport, 

and has adopted a contingency plan for lengthy tarmac delays covering its scheduled 

passenger operations at MDW. As the largest airline operating at MDW, Southwest 

leases twenty-nine of the forty-three gates at MDW and represents 92% of the traffic at 

MDW. Southwest has adopted a contingency plan for lengthy tarmac delays covering its 

scheduled operations at Chicago-MDW. This plan stipulates that in the event of a 120 

minute taxi-in delay, the carrier should make every attempt to deplane customers and the 

carrier should consider the following: towing flights away from gates that have not 

started the boarding process, reducing inbound flight traffic, designating one gate to be 

used to deplane flights if there are several flights approaching the 180 minute mark, 

and/or deplaning passengers at an alternative site.

An investigation by the Office of Aviation Enforcement and Proceedings (Enforcement 

Office) revealed that on January 2, 2014, into January 3, 2014, sixteen Southwest flights

experienced lengthy tarmac delays at MDW in excess of three hours. Southwest was

 1 The term “Excessive Tarmac Delay” is defined in 49 U.S.C. §42301 as “a tarmac delay that lasts for a 

length of time, as determined by the Secretary [of Transportation].” The Secretary determined in its tarmac 

delay rule that tarmac delays of more than 3 hours for domestic flights are excessive. See 14 CFR 259.4. 

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.”
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responsive throughout the Department’s investigations and promptly provided the 

Department with requested information. With the exception of its failure to adhere to 

assurances that it would not allow passengers to remain on the tarmac for more than 3 

hours and that it would have sufficient resources available to carry out its Tarmac Delay 

Contingency Plan, Southwest fulfilled all of the other assurances outlined in its Tarmac 

Delay Contingency Plan. 

The Enforcement Office has learned that a contributing factor to the tarmac delays was a 

severe winter weather event at MDW that began on December 31, 2013, and lasted until 

January 2, 2014. Although approximately 12.3 inches of snow accumulated during the 

multi-day snow event, the two main runways used for air carrier operations at MDW 

remained open and operational. During the snow event, the three general aviation 

operation runways at MDW were closed for landing, but were available as taxi routes and 

for aircraft parking. 

In addition to severe weather on January 2nd, Southwest experienced a malfunctioning of 

its crew scheduling system and an unexpected shortage of staff, particularly the carrier’s

ramp-crew. Southwest’s ramp crew is responsible for baggage handling, de-icing, snow 

removal, and marshaling aircraft to and from the gates. The absence of some of 

Southwest’s ramp crew inhibited the carrier’s ability to clear aircraft from Southwest’s 

gates in a timely manner to accommodate arriving flights. At the time the sixteen flights 

at issue arrived at MDW, between 10:15 p.m. and 11:01 p.m., an employee shift change 

had taken place and the small ramp crew that remained made it impossible for Southwest 

to clear and prepare gates for the arriving flights in a timely manner. The Enforcement 

Office is not disputing, nor is this order based upon, Southwest’s assertion that it could 

not safely deplane passengers at that time.

Based on the information obtained during its investigation, the Enforcement Office has 

concluded that Southwest violated the Department’s tarmac delay rule and this matter 

warrants enforcement action. The following table details the sixteen Southwest flights 

that experienced tarmac delays at MDW:
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The average length of the delays exceeding three hours was three hours and thirty-nine 

minutes causing numerous passengers to be delayed on the tarmac at MDW for more than 

three hours. 

Mitigation

In mitigation, Southwest states that it has a strong record of avoiding tarmac delays, both 

before and since the implementation of the tarmac delay rule in 2010, and that it strives to 

be a model of full compliance with all Department regulations, including the tarmac 

delay rule.

Southwest explains that prior to January 2, 2014, it reasonably believed it had sufficient 

protections in place to avoid tarmac delays, but, nevertheless, a highly unusual 

combination of factors led to the tarmac delays at MDW on January 2nd. Southwest 

states that first and foremost, winter storm Hercules brought snow and cold temperatures 

that severely disrupted its operation at MDW. According to Southwest, Hercules caused 

airlines to cancel 8,245 flights system wide on January 1-3, 2014. 

Carrier Flight Number Flight

Segment

Total Tarmac 

Delay Minutes

Minutes > 

3 Hrs. 

(180 

Minutes)

Southwest 1884 DTW-MDW 196 16

Southwest 2898 MCI-MDW 210 30

Southwest 0491 SFO-MDW 216 36

Southwest 2968 MEM-MDW 213 33

Southwest 4045 CMH-MDW 196 16

Southwest 1982 STL-MDW 210 30

Southwest 0159 RDU-MDW 224 44

Southwest 0289 SLC-MDW 246 66

Southwest 3160 PHX-MDW 241 61

Southwest 1377 SJC-MDW 237 57

Southwest 3433 DEN-MDW 230 50

Southwest 0421 EWR-MDW 227 47

Southwest 2338 BDL-MDW 223 43

Southwest 0502 SAN-MDW 216 36

Southwest 0279 DEN-MDW 215 35

Southwest 0592 ABQ-MDW 211 31
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Southwest states that on January 2nd, its employees worked tirelessly to get the 16 

affected flights to the gate as soon as possible, but ultimately, their efforts fell short.

Southwest notes, however, that the cabin crews on the affected flights ensured that 

passengers were provided with the services required by the tarmac delay rule such as 

food, water, announcements, functional lavatories, and medical attention as needed. 

Southwest states that on January 3, 2014, it proactively sent each of the affected 

passengers a message of apology and a Southwest LUV Voucher for future travel. 

Southwest states that after the January 2nd event, its internal team identified several 

specific steps that needed to be taken to avoid this kind of problem in the future, and 

Southwest has already implemented most of the team’s recommendations. Southwest 

emphasizes that safety is its top priority, it regrets the inconvenience caused to the 

passengers affected by the delay, and further states that it is committed to avoiding future 

tarmac delays.

Southwest disputes the Enforcement Office’s interpretation of existing law to allow the 

imposition of a civil penalty on a per-passenger basis for a violation of the tarmac delay 

rule. Southwest states its belief that under 49 U.S.C. § 46301(a), the proper unit for 

applying the penalty of up to $27,500 is either per day or per flight. Nevertheless, in the 

interest of avoiding litigation, and without conceding or waiving its legal position on the 

scope of the Department’s civil penalty authority, Southwest has agreed to this 

compromise settlement.

Decision

We view seriously Southwest’s violation of 14 CFR Part 259 and 49 U.S.C. §§ 42301 

and 41712. Accordingly, after carefully considering all the facts in this case, including 

those set forth above, the Enforcement Office believes that enforcement action is 

warranted. By this order, the Department finds that Southwest failed to adhere to the 

terms of its Tarmac Delay Contingency Plan by failing to offer each passenger the 

opportunity to deplane within three hours of arrival at MDW and by failing to have 

sufficient staffing resources available to implement its plan. 

In order to avoid litigation, Southwest has agreed to settle this matter with the 

Enforcement Office and enter into this consent order directing Southwest to cease and 

desist from future similar violations of 14 CFR Part 259 and 49 U.S.C. §§ 42301 and 

41712, assesses $1,600,000 in compromise of potential civil penalties otherwise due and 

payable. 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 Southwest and other carriers.

This order is issued under the authority contained in 49 CFR Part 1.
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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 Southwest Airlines Co. violated 14 CFR 259.4(b)(1) by failing to

adhere to the assurances in its contingency plan for lengthy tarmac delays that the 

carrier would not permit an aircraft conducting a domestic flight to remain on the 

tarmac for more than three hours without providing passengers an opportunity to 

deplane;

3. We find that Southwest Airlines Co. violated 14 CFR 259.4(b)(7) by failing to 

adhere to the assurances in its contingency plan for lengthy tarmac delays that the 

carrier would have sufficient resource to implement its plan;

4. We find that Southwest Airlines Co. violated 49 U.S.C. § 42301 by failing to 

adhere to the assurances in its emergency contingency plan that the carrier would 

provide passengers onboard an aircraft on the tarmac the option to deplane within 

three hours;

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

above, Southwest Airlines Co. engaged in unfair and deceptive practices and unfair 

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

6. We order Southwest Airlines Co. and all other entities owned or controlled by, or 

under common ownership and control with Southwest Airlines Co., its successors, 

affiliates, and assigns, to cease and desist from further violations of 

14 CFR Part 259 and 49 U.S.C. §§ 42301 and 41712;

7. Southwest Airlines Co. is assessed $1,600,000 in civil penalties in compromise of 

civil penalties that might otherwise be assessed for the violations found in ordering 

paragraphs 2, 3, 4, and 5 above: 

(a) $600,000 of the assessed penalty shall be due and payable within 30 

days of the service date of this order; 

(b) $269,000 of the assessed penalty shall be credited to Southwest 

Airlines Co. for compensation provided to passengers on the affected 

flights;

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(c) $431,000 of the assessed penalty shall be credited to Southwest 

Airlines Co. toward the carrier’s cost of acquiring, operating and 

 3 The credits are based on the actual amount of refunds and 80% of voucher value provided to passengers 

affected by lengthy tarmac delays at MDW on January 2nd-3rd, 2014.
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maintaining a surface management and surveillance system at 32 of its 

stations to monitor the location of each aircraft on the airfield;4 and 

(d) $300,000 of the assessed penalty shall be come due and payable if, 

within one year of the date of this order, Southwest Airlines Co. 

violates this order’s cease and desist or payment provision, in which 

case Southwest Airlines Co. may become subject to additional 

enforcement action for any violation of the order.

8. We order Southwest Airlines Co. to pay the penalty as assessed in paragraph 8, 

above, through Pay.gov to the account of the U.S. Treasury. Payment shall be made 

in accordance with the instructions contained in the Attachment to this order. 

Failure to pay the penalty as ordered shall subject Southwest Airlines Co. 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:

BLANE A. WORKIE 

Assistant General Counsel for 

Aviation Enforcement and Proceedings

An electronic version of this document is available at

www.regulatons.gov

 

4 To avail itself of this credit, Southwest Airlines Co. shall provide a sworn statement to the Enforcement 

Office from a company officer with supporting documentation substantiating the expenditures.