Order 201 5

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

On the 1 5 th day of January , 201 5

Southwest Airlines Co. Served: January 1 5 , 201 5

Violations of 14 CFR Part 259 and 49 U.S.C. § § 42301 and 41712 Docket OST

- 2015

- 0002

C ONSENT O RDER

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 carri er’s emergency contingency plan; and 49 U.S.C. § 41712 , whi ch prohibits unfair and deceptive practices . Specifically, the carrier violated the Department’s tarmac delay rule by failing to adhere to the assurance s 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),2

carriers must provide assurances that they will not permit an aircraft to remain on the

ta rmac 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

d ue 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

elsew here 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. A n air carrier’s failure to comply with the as surances 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 , Southw est
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 o f 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 t hat 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.”3

responsive throughout the Department’s investigations and promptly provided the Department with requested information. With the exception of its failure to adhere to

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

hours and that it would have sufficient r esources available to carry out its Tarmac Delay Contingency Plan

, Southwest fulfilled all of the other assurance s 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

remai ned 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 o n January 2 nd

, Southwest experienced a malfunctioning of

i ts crew scheduling system and an unexpected short age 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. T he 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 gate s for the arriving flights in a timely manner. The Enforcement Office is not disputing, no r 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 , t he Enforcement Office has

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

warrant s enforcement action. The following table details the sixteen Southwest flights that experienced tarmac delays at MDW :4

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 impl ementation of the tarmac delay r ule in 2010

, and that it strives to be a model of full compliance with all Department regulations, including the t armac d elay r ule.

Southwest explains that prior to January 2, 2014, it reasonably believed it had sufficient protections in place to avoid tarmac delays , but

, nev ertheless, 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

Del ay 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 211 315

Southwest states that on January 2 nd , 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 att ention as needed.

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

passeng ers a message of apology and a S outhwest LUV V oucher for future travel.

S outhwest states that after the J anuary 2 nd event, its internal team identified several specific steps that needed to be taken to avoid this kind of problem in the future, and

S outhwest 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 O ffice’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. S outhwest 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 th e interest of avoiding litigation, and without conceding or waiving its lega l position on the scope of the D epartm ent’s civil penalty authority, S outhwest has agreed to this compromise settlement.

Decision

We view seriously Southwest’s v iolation 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 fi nds that Southwest fail ed 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 an d

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

41712

, assess es $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 ord er is issued under the authority contained in 49 CFR Part 1.6

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 a n 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. W e find that by engaging in the conduct desc ribed 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 ; 3

(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 2 nd

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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 airfiel d; 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 subj ect to additional enforcement action for any violation of the order.

8. We order Southwest Airlines Co. to pay the pe nalty 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 C ollection 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 i ts 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 statem ent to the Enforcement Office from a company officer with supporting documentation substantiating the expenditures.