Order 2013-9-7

 

 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Tenth day of September, 2013

 Virgin America Inc., Docket OST 2013-0004

 Violations of 49 U.S.C. § 41705 and 

 14 CFR Part 382 Served September 10, 2013

CONSENT ORDER

This order concerns violations by Virgin America Inc., (Virgin America) of 14 CFR Part 

382 (Part 382), the Department of Transportation’s (Department) regulation 

implementing the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705, with respect to 

the requirement that the carrier ensure that its in-flight safety videos are accessible to 

persons with hearing impairments by using open captioning or an inset for a sign

language interpreter. Violations of Part 382 also violate the ACAA. This order directs 

Virgin America to cease and desist from future violations of Part 382 and the ACAA and 

assesses the carrier $150,000 in civil penalties.

APPLICABLE LAW

The ACAA prohibits discrimination in the provision of air transportation against 

qualified individuals with disabilities. In March 1990, the Department issued its rule 

implementing the ACAA, 14 CFR Part 382.1

 Among other provisions, section 382.47(b) 

required carriers to ensure that each safety briefing presented to passengers on video 

screens on aircraft be accessible to persons with hearing impairments.

2

 Specifically, the 

rule provided that carriers must meet this requirement by incorporating open captioning 

or an inset for a sign language interpreter as part of the video presentation. The rule 

further provided that an equivalent non-video alternative to the captioning or inset 

 1 14 CFR Part 382, Nondiscrimination on the Basis of Handicap in Air Travel, Final Rule, 55 FR 

8008-01, March 6, 1990. 

2 An oral safety briefing provided to all passengers onboard before takeoff is mandated by the 

Federal Aviation Administration’s operation safety rule, 14 CFR 121.571. 

 
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requirement would be permitted only if the open captioning or inset would either 

interfere with the video presentation as to render it ineffective or be too small to be 

readable. Section 382.47(b) was effective between April 5, 1990, and May 12, 2009. 

On May 13, 2008, the Department published its revised Part 382, which substantially 

changed the requirements regarding the accessibility of in-flight safety briefing video 

presentations.3 The new rule, in section 382.69(a), requires that all new safety briefing 

videos created and used on aircraft on or after November 10, 2009, must be high-contrast 

captioned. With regard to videos created before November 10, 2009, section 382.69(c) 

retains the substantive requirements and exception of section 382.47(b) (1990 version of 

rule) and extends those provisions for the period from May 13, 2009 through November 

9, 2009. 

BACKGROUND

As an air carrier providing scheduled passenger air transportation, Virgin America is 

subject to the requirements of ACAA and Part 382. In August 2007, Virgin America 

launched its scheduled operations using aircraft that are equipped with a personal inflight entertainment system using customized seat back touch screens. On October 9, 

2007, Virgin America began to use this in-flight entertainment system to present a safety 

briefing video before the take-off of each flight. The video presentation provides details 

of the safety features of the aircraft through animation and oral narratives, which is not 

accompanied by open captioning or an inset for sign language interpreter and, therefore, 

is not accessible to passengers with hearing impairments. The Enforcement Office has 

determined that the content and format of the video is such that inserting open captioning 

with readable font size would not interfere with the video as to render it ineffective. As 

such, Virgin America’s safety briefing video displays violated section 382.47(b) (1990 

version of rule) between October 9, 2007, and May 12, 2009. It also violated section 

382.69(c) (2008 version of rule) between May 13, 2009, and November 9, 2009. 

MITIGATION

Virgin America states that it reasonably concluded initially that captioning of its in-flight 

safety video for the hearing impaired would obscure the presentation of important safety 

information for all passengers. As a result, Virgin America states that it decided to rely 

on the exception provided under the then-existing regulation allowing for equivalent nonvideo alternative compliance with the Department’s requirements for hearing-impaired 

passengers. Virgin America points out that the revised regulation at section 382.69(a), 

issued by the Department in 2008, eliminated this exception only for “new” safety videos

created after November 10, 2009. Virgin America states that as a result, it continued its 

prior practice of providing its hearing-impaired passengers with live safety 

demonstrations, Safety Information Cards and personalized safety briefings upon request 

by passengers in order to communicate required safety-related information. Virgin 

America maintains that it has a demonstrated record of commitment to its hearing-

 3 14 CFR Part 382, Nondiscrimination on the Basis of Disability in Air Travel, Final Rule, 73 FR 

27614, May 13, 2008.
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impaired and other passengers with a disability. In this regard, Virgin America asserts

that it has consistently provided multiple, equivalent non-video alternatives for 

transmitting safety information to passengers with hearing impairments. Nevertheless, in 

order to bring this matter to a conclusion, and without admitting any of the alleged 

violations, Virgin America has agreed to modify its pre-2009 in-flight safety video by 

adding high-contrast captioning for the hearing-impaired and to accomplish this 

modification across its entire fleet by September 30, 2013.

DECISION

After carefully considering all the known facts in this case, including those set forth 

above by Virgin America, we believe that enforcement action is warranted. In order to 

avoid litigation, Virgin America, without admitting or denying the violations described 

herein, has agreed to settle this matter with the Enforcement Office and enter into this 

consent order to cease and desist from future similar violations of 14 CFR Part 382 and 

49 U.S.C. § 41705. This order directs Virgin America to cease and desist from similar 

violations in the future and to add high-contrast open captioning to its existing in-flight 

safety videos displayed on all aircraft operated by the carrier and assesses a civil penalty 

of $150,000. This assessment is appropriate considering the nature and extent of the 

violation described herein and serves the public interest. It establishes a strong 

deterrence to future similar unlawful practices by Virgin America and other carriers.

This order is issued under the authority contained in 49 CFR Part 1 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 between October 9, 2007, and May 12, 2009, Virgin America Inc., 

violated 14 CFR 382.47(b) (effective through May 12, 2009) by failing to ensure 

its in-flight safety briefing video is accessible to passengers with a hearing 

impairment;

3. We find that between May 13, 2009, and November 9, 2009, Virgin America Inc., 

violated 14 CFR 382.69(c) (effective beginning May 13, 2009) by failing to 

ensure its in-flight safety briefing video is accessible to passengers with a hearing 

impairment;

4. We find that by violating sections 382.47(b) and 382.69(c) as described in 

paragraphs 2 and 3, above, Virgin America Inc., violated the Air Carrier Access 

Act, 49 U.S.C. § 41705; 

5. We order Virgin America Inc., and all other entities owned or controlled by, or 

under common ownership and control with Virgin America Inc., its successors, 
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affiliates, and assignees, to cease and desist from violations of 49 U.S.C. § 41705 

and 14 CFR 382.69 related to accessibility of safety videos;

6. We assess Virgin America Inc., $150,000 in compromise of civil penalties that 

might otherwise be assessed for the violations found in paragraphs 2 through 4 of 

this order. Of this total penalty amount, $75,000 shall be due and payable within 

30 days of the issuance date of this order, and the remaining $75,000 shall 

become due and payable if Virgin America Inc., fails to add high-contrast open 

captioning to its existing in-flight safety video displayed on all aircraft operated 

by Virgin America Inc., by September 30, 2013, or fails to comply with the 

payment provision in this ordering paragraph, in which case, the entire unpaid 

portion of the civil penalty shall become due and payable immediately and Virgin 

America, Inc. may be subject to further enforcement action; and

7. We order Virgin America Inc., to pay the penalty through Pay.gov to the account

of the U.S. Treasury in accordance with the instructions contained in the 

Attachment to this order. Failure to pay the penalty as ordered shall subject 

Virgin America Inc., 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

An electronic version of this document is available at

www.regulations.gov