Order 2010

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- 14

UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation
O n the 3 0th day of August , 20 10

AirTran Airways , Inc. Docket OST

- 2010

- 0005

Violations of 14 CFR Part 382 and 49 U.S.C. §§ 41310
, Served August 30 , 2010,

417 0 2
, 41705 , and 41712

CONSENT ORDER

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

and properly categorizing its disability

- related complaints . Part 382 implements 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 violate 49 U.S.C. § 41310, which

, in par t

, prohibits air carriers and foreign air carriers from unreasonably discriminating against any person in foreign air transportation ; and the ACAA and Part 382 violations are unfair and deceptive practices in

violation of 49 U.S.C. § 41712. This order dir ects AirTran to cease and d esist from future

violations of Part 382 and the ACAA and assesses the carrier $ 500,000 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

disabilit ies assistance in enplaning and deplaning aircraft. This assistance includes, as needed, the provision of services 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 co mplaint alleging a violation of Part 382 within 30 days of its receipt. An- 2

-

appropriate dispositive response must specifically discuss the complaint at issue, state the

carrier’s view of whether a violation occurred

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

.

S ection 382.70 [now section 382.157] states that carriers must categorize disability

- related complaints they receive according to the type of disability and nature of complaint and submit annual reports to the Department detailing the disability complaints received the prior calendar

year

. I f a written complaint contains multiple issues, each issue must be coded separately to adequately account for the number of complaints a ca rrier receives.

Backg round

Based on a visit to AirTran’s Atlanta headquarters

, t he Office of Aviation Enforcement and Proceedings (the Enforcement Office) decided to further investigate AirTran’s compliance with the relevant portions of Part 382 by re questing that the carrier provide copies of all disability

related complaints it received directly from passenger s in January, March, May, July, S eptember,

and November of calendar years 2007, 2008

, and 2009 ( through June 30, 2009) and reviewing each of these complaints

. The Enforcement Office also reviewed all disability

- related complaints the carrier received in June, August, and December of 2008, as well as disability complaints against AirTran sent directly to the Department. 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. A small number of these complaints a ppear to involve egregious

violations of Part 382. 1 Additionally, A irTran’s complaint files indicated that in numerous instances, it did not provide a written response to the complainant that complied with the requirements of section 382.65 [now section 382.155]

. Furthermore, AirTran violated section

382.70 [now section 382.157] by failing to adequately categorize and account for all the disability

- related issues that were raised in the complaints.

Mitigation

In mitigation, AirTran states that it maintains a robust commitment to properly serving its

disab led customers and i ts success in doing so is best evidenced by the fact that the total number of disability

- related complaints that it received during 2007, 2008

, and 2009 represented less

than one

- half of one percent of the total number of disabled passen gers that it carried in each of those years. AirTran states that t hese statistics were found to be virtually the same if only

wheelchair

- related complaints were considered

.

1 In prior enforcement action s
, e.g., Docket OST

- 01

- 10598 (February 8, 2002), the Enforcement Office found the following types of assistance and wheelchair

- related disability complaints to be egregious : (1) the passenger was left unattended on an airplane for over 15 minutes after the other p assengers deplaned; (2) a nonambulatory passenger was left unattended in a wheelchair for over 30 minutes in the terminal or on a jetway; (3) the carrier failed to provide requested wheelchair service or other assistance entirely, or a long time delay in

p roviding wheelchair service or other assistance resulted in the passenger missing a flight; (4) the passenger was left at the wrong gate resulting in missing his or her flight; (5) the passenger had to wait an hour or more for a wheelchair in the terminal; and (6) other instances where passengers were subjected to significant delay, harm, or inconvenience because of inadequate assistance

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-

AirTran notes that it has taken steps to improve upon the delivery of disabilit y

- related assistance,

as well as its handling and response time to consumer complaints. AirTran explains that it has established a cross divisional Disability Compliance Council led by the carrier ’s senior officers
to oversee, manage

, and continually improve all aspects of it s disability compliance program and

to act as a n advocate for disabled passengers. AirTran states that t he Council ’s actions will be

described in a special edition of its employee communications newsletter, “Altit udes

, ” and highlighted quarterly thereafter. According to AirTran, t hese articles will provide information on

the carrier ’s total commitment to addressing the needs of its disabled passengers and the steps that are expected of all employees to satisfy tha t commitment . AirTran states that this senior

level commitment will also be emphasized in the carrier ’s various training programs. To even further demonstrate this commitment, AirTran explains that it has created a special management position to proactive ly address the needs of the disabled passenger as distinct from the carrier ’s Complaint Resolution Official s (CRO)

, have a more reactive role

. The carrier states that it is also in the process of developing a digital knowledge base tool to assist frontlin e employees with proper handling requirements and techniques in assisting disabled passengers as well as enhancing the overall training program by incorporating the senior management commitment s into the program

.

AirTran states that it has also revised its training procedures for responding to complaints from disabled passengers and created a dedicated position to respond to disability

- related complaints

and this work will be completed under the supervision of a manager who will r eview each response. Air Tran states that its internal audit department in turn conducts quarterly audits of these responses.

AirTran states that to enhance and quicken the response time for wheelchair

- related complaints

, it is developing an automated wheelchair tracking system for use at its major hub airports whereby wheelchair assistance information will be entered on a real time basis into the passenger’s name record. AirTran notes that t his centra lized record will permit it to continuously monitor its own performance on a r eal time basis and to respond to passenger complaints on a much more time

- efficient basis and with greater detail than is otherwise required by Part 382.

Decision

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

co ntinues to believe that enforcement action is warranted

. In order to avoid litigation, AirTran 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 $ 500,000 in compromise of potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301

. This compromise assessment is appropriate co nsidering 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 AirTran and other carriers.- 4

-

This order is issued under the authority contained i n 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 AirTran Airways , Inc., violated the requirements of 14 CFR 382.39 [now sections 382.91 to 382.105] by failing to provide adequate and prompt enplaning and deplaning wheelchair assistance to passengers with disabilities;

3. We find that AirTran Airways , 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 AirTran Airways , Inc., violated the requirements of 14 CFR 382. 70 [now section 382.157] by failing to properly categorize and accurately repo rt its disability

related complaints ;

5. We find that AirTran Airways , Inc., in the instances described in ordering paragraphs 2 through 4, above, violated the Air Carrier Access Act, 49 U.S.C. § 41705 ;

6. We find that to the extent the violations described in ordering para graphs 2 through 4

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

7. We find that to the extent the violations described in ordering paragraphs 2 through 4 occurred in foreign air transportation, the conduct violated 49 U.S.C. § 41310 ;

8. We find that the violations described in ordering paragraphs 2 through 4 involved unfair and deceptive practices and thereby violated 49 U.S.C. § 417 12;

9. We order AirTran Airways and its successors and assigns to cease and desi st from furthe r violations of 14 CFR Part 382 and 49 U.S.C. §§ 41310, 41702, 41705, and 41712 by engaging in the conduct described in ordering paragraphs 2 though 4;

10. AirTran Airways, Inc., is assessed $ 500,000 in compromise of civil penalties that might

o therwise be assessed for the violations found in ordering paragraphs 2 through 8, above ;

a. $300,000 of the assessed penalty shall be due and payable within 30 days of the

service date of this order ;

b. Up to $60,000 of the assessed penalty shall be credited to AirTran Airways, Inc., for funds expended toward the establishment of a Disability Compliance Council and the hiring of a Manager of Disability Accommodations within one year from

the service date of thi s order, subject to the following conditions :- 5

-

i. The Disability Compliance Council shall be composed of senior officers responsible for customer interface who, among other things, will meet monthly to address disability

- related issues and contribute article s discussing the proper handling of passengers with disabilities to the

carrier ’s quarterly employee commu nication newsletter ; and

ii. The Manager of Disability Accommodations shall proactively address

issues related to passengers with disabilities as distin ct from the reactive responsibilities residing in the Complaint Resolution Officials by , among other things, monitoring complaints and complaint data as well as cumulative reports obtained from the automated wheelchair tracking system, discussed in ordering paragraph 10(c), and pursu ing corrective

action as needed ; and

c. Up to $1 4 0,000 of the assessed penalty shall be credited to AirTran Airways, Inc., for funds expended toward the develop ment and implement ation of an automated wheelchair tracking sys tem at the carrier’s major hub airports within one year from the service date this order, subject to the following :

i. The system shall , among other things, continually generate real

- time
reports of the carrier’s wheelchair assistance performance ; and

ii. AirTran shall provide the Department with copies of these reports upon
request ;

11. Failure to pay the penalty as ordered shall subject AirTran Airways, 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

. Payment shall be made by wire transfer thro ugh the Federal Reserve Commun i cation System, commonly known as “Fed Wire,” to the account of the U.S. Treasury in accordance with

th e attached instructions ;

12. Within 13 months of the service date of this order, AirTran Airways, Inc., shall provide

the Department with supporting documentation verifying the cost of the offset s listed in paragraph 10 above. The documentation must contain a detailed explanation of the method used by AirTran Airways, Inc., to determine the cost of the offset, and a sworn statement from an appropriate company official testifying that the descriptions and documentation are true and complete to the best of that official’s knowledge and that the official has made a reasonable inquiry to establish the accuracy of the statement ;

13. To the extent AirTran Airways, Inc., fails to provide adequate documentation verifying the appropriate expenditure of the $ 200 ,000 in off set s as described in ordering paragraphs

10 (b) and (c) and 1 2 , that amount shall become due and payable within 30 days of the date of the certification required by paragraph 1 2 ; and- 6

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14. The offset s described in paragraph 10 (b) and (c) may be amended with the approval of

the Department ’s Office of Aviation Enforcement and Proceedings

. If AirTran Airways,
Inc., intends to seek a change in the type of improvement made, it must notify and obtain approval from the Office of Aviation Enforc ement and Proceedings not later than 15 days prior to the date documentation is due pursuant to ordering paragraph 12

.

This order will become a final order of the Departmen t 10 days after its service date unless a timely petition for review is filed or th e 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