Order 2013-8-9

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twenty-First day of August, 2013

Aerovías del Continente Americano S.A.

(Avianca) Docket 2013-0004 

Served August 21, 2013 

Violations of 14 CFR Parts 244 and 259 and 

 49 U.S.C. §§ 41708 and 41712

CONSENT ORDER

This consent order concerns violations by Aerovías del Continente Americano S.A. 

(Avianca) of 14 CFR Parts 244 and 259 and 49 U.S.C. §§ 41708 and 41712. Specifically, 

the carrier failed to adhere to the assurance in its contingency plan for lengthy tarmac 

delays that the carrier would not permit an international flight to remain on the tarmac for 

more than four hours without providing passengers an opportunity to deplane. Moreover, 

Avianca failed to file accurately the required on-time performance information for a 

lengthy tarmac delay with the Department of Transportation (Department). This order 

directs Avianca to cease and desist from future similar violations of 14 CFR Parts 244 

and 259 and 49 U.S.C. §§ 41708 and 41712 and assesses the carrier $100,000 in civil 

penalties.

Applicable Law

I. Contingency Plan for Tarmac Delays

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

that operate scheduled passenger service or public charter service to and from the U.S.

using any aircraft with a designed capacity of 30 or more passenger seats are required to 

adopt, implement, and adhere to contingency plans for lengthy tarmac delays at each 
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large, medium, small, and non hub U.S. airport at which they operate scheduled or public 

charter air service.1 For the international flight at issue here, the rule requires covered 

carriers to provide assurance that they will not permit an aircraft to remain on the tarmac 

for more than four hours without providing passengers an opportunity to deplane, with 

the following exceptions: (1) where 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.

A carrier’s failure to comply with assurances required by Part 259 and as contained in its 

contingency plan for lengthy tarmac delays is considered to be an unfair and deceptive 

practice within the meaning of 49 U.S.C. § 41712. Because the purpose of section 259.4 

is to protect individual passengers from being forced to remain on aircraft for more than 

four hours in the case of international flights without being provided the opportunity to 

deplane or being informed when an opportunity to deplane exists, a separate violation is 

considered to have occurred for each passenger who is forced to remain on board an 

aircraft for longer than the set amount of time without the opportunity to deplane. A 

failure to report a lengthy tarmac accurately is considered to be a separate unfair and 

deceptive practice and an additional violation of 49 U.S.C. § 41712.

II. Reporting Tarmac-Delay Data

Section 244.3 of the Department’s regulations requires certain air carriers to file Bureau 

of Transportation Statistics (BTS) Form 244 “Tarmac Delay Report” with the Office of 

Airline Information for each month in which at least one tarmac delay of three hours or 

more occurred. The data are then published and made available to the public in a useable 

format in the Department’s monthly Air Travel Consumer Report (ATCR), which, among 

other things, lists all regularly scheduled international flights with tarmac delays of four 

hours or more.2 The ATCR data in question are used for a number of purposes, including 

by the traveling public to choose among transportation options, by the Department as a 

basis for conducting enforcement investigations, and by carriers as a basis for making 

advertising claims regarding the quality of their service compared to other carriers. It is 

imperative, therefore, that ATCR data be accurate. Violations of section 244.3 also 

constitute violations of 49 U.S.C. § 41708.

 1 According to 14 CFR 259.2, Part 259 does not apply to foreign carrier charters that operate to and from 

the United States if no new passengers are picked up in the United States.

2 See Air Travel Consumer Report, available at http://www.dot.gov/airconsumer/air-travel-consumerreports.
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Facts and Conclusions

Avianca is a foreign air carrier as defined by 49 U.S.C. § 40102(a)(21)3 that operates 

scheduled service from both Miami International Airport (MIA) and Orlando 

International Airport (MCO), among other large hub airports, using at least one aircraft 

having a designed capacity of more than 30 passenger seats.

Miami serves as a regular diversion airport for Avianca, and Avianca has adopted a 

contingency plan for lengthy tarmac delays covering its diversion operations into MIA. In 

2011, Avianca provided a copy of its tarmac delay plan to U.S. Customs and Border 

Protection (CBP), the Transportation Security Administration (TSA), and airport officials 

at MIA, in an effort to coordinate the carrier’s plan with those entities. Avianca’s 

contingency plan stipulates that for the carrier’s international flights to and from the 

United States, Avianca will not permit an aircraft to remain on the tarmac for more than 

four hours before allowing passengers to deplane unless: (1) there is a safety-related or 

security-related reason why the aircraft cannot leave its position on the tarmac to deplane 

passengers, or (2) 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.

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

Office) revealed that on March 24, 2013, 121 passengers were delayed on the tarmac for 

five hours and twenty minutes in violation of 14 CFR 259.4(b)(2), when Avianca flight 

28, traveling from El Dorado International Airport (BOG) in Bogotá, Colombia, to MCO, 

diverted to MIA.

Avianca flight 28 was scheduled to arrive at MCO at 3:06 pm. However, due to weather 

and the limited amount of fuel remaining onboard the aircraft, it was unable to land at 

MCO as planned and diverted to MIA, landing at 3:29 pm. After landing at MIA, flight 

28 was directed to a gate, where the aircraft was refueled and where it stayed for 

approximately one hour. According to Avianca, although the door of the aircraft was 

open during refueling, allowing passengers to deplane was not necessary due to 

Avianca’s having no knowledge of additional delays at the time and due to the time, 

approximately thirty minutes, it would take to establish the sterile area required when 

deplaning an international flight. Avianca never contacted CBP at MIA to inquire about 

deplaning passengers.

After leaving the terminal, flight 28 spent approximately four more hours at MIA, 

including time in a waiting area and on a taxiway. Avianca made no attempts during this 

time to deplane passengers or to solicit assistance from the airport operator in deplaning.

At 7:30 pm, the captain of flight 28 contacted Avianca operations at MIA to discuss 

deplaning, whereupon a decision was made not to deplane passengers. Avianca states that

the flight would have been cancelled if it returned to the terminal for deplaning due to the 

 3 49 U.S.C. § 40102(a)(21) defines a foreign air carrier as “a person, not a citizen of the United States, 

undertaking by any means, directly or indirectly, to provide foreign air transportation.”
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expiration of the crew’s duty time. Flight 28 departed from MIA at 8:49 pm, landed at 

MCO at 9:34 pm, and arrived at its gate at 9:49 pm.

Additionally, Avianca misreported information regarding flight 28 in the BTS Form 244 

“Tarmac Delay Report” it filed with the Office of Airline Information. Avianca’s initial 

report to the Department incorrectly stated the arrival and departure times at MIA, 

indicating a tarmac delay of five hours and one minute, nineteen minutes shorter than the 

actual delay. According to Avianca, the error was caused by the data-recording system on 

flight 28 not properly transmitting data. Avianca self-disclosed this discrepancy to the 

Department.

In summary, the Enforcement Office found that Avianca made no attempt to adhere to 

the terms of its contingency plan or to provide passengers an opportunity to deplane 

before the tarmac delay exceeded four hours. Avianca also failed to report the tarmac 

delay accurately in its initial report to the Department. Avianca’s failures violated

14 CFR 244.3 and 259.4 and 49 U.S.C. §§ 41708 and 41712. Although the Department 

finds that Avianca violated 14 CFR 244.3 and 49 U.S.C. § 41708, the Department has 

based the compromise civil penalty assessed in this order solely on violations of 14 

CFR 259.4 and 49 U.S.C. § 41712 because the carrier’s erroneous report was a result of 

equipment failure and because the carrier self-reported the violation.

Mitigation

In mitigation, Avianca states that that it is fully committed to complying with all of the

Department’s consumer protection requirements, including the Department’s tarmac

delay rules. Avianca asserts that this tarmac delay was the result of an unusual set of

circumstances, including severe weather interrupting operations at both the destination

and diversion airports and heavy taxiway traffic, which combined to form an

extraordinarily difficult operating environment. In addition, Avianca believed it would be

able to refuel and promptly depart the diversion airport without a tarmac delay but was

prevented from doing so due to deteriorating weather conditions delaying takeoff.

Avianca notes that it received no passenger complaints about the tarmac delay, and that at 

all times it acted in what it believed were the best interests of its passengers. In addition, 

Avianca emphasizes that it provided timely food and drinks, the crew made periodic 

flight status announcements, and the lavatories remained operable during the course of 

the delay.

Decision

The Enforcement Office has carefully considered the information provided by Avianca 

but continues to believe enforcement action is warranted. The Enforcement Office and 

Avianca have reached a settlement of this matter in order to avoid litigation. Without 

admitting or denying the violations described above, Avianca consents to the issuance of 

this order to cease and desist from future violations of 14 CFR 244.3 and 259.4 and 
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49 U.S.C. §§ 41708 and 41712 and to the assessment of $100,000 in compromise of 

potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

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 Avianca and other carriers.

This order is issued under the authority in 49 CFR Part 1.

ACCORDINGLY,

1. Based on the above information, we approve this settlement and the provisions of 

this order as being in the public interest;

2. We find that Aerovías del Continente Americano S.A. violated 14 CFR 259.4 by 

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

that the carrier would not permit an international flight to remain on the tarmac for 

more than four hours without providing passengers an opportunity to deplane. By 

its actions, the carrier forced a total of 121 passengers on flight 28 to remain on the 

tarmac at Miami International Airport on March 24, 2013, for more than five hours 

without the opportunity to deplane;

3. We find that by engaging in the conduct and violations described in ordering 

paragraph 2, Aerovías del Continente Americano S.A. engaged in an unfair and 

deceptive practice and unfair method of competition in violation of 

49 U.S.C. § 41712;

4. We find that Aerovías del Continente Americano S.A. violated 14 CFR 244.3 by 

failing to file an accurate BTS Form 244 with the Department regarding the tarmac 

delay flight 28 experienced on March 24, 2013;

5. We find that by engaging in the conduct and violations described in ordering 

paragraph 4, above, Aerovías del Continente Americano S.A. violated 

49 U.S.C. § 41708; 

6. We order Aerovías del Continente Americano S.A., its successors, its affiliates, its 

assigns, and all other entities owned by, controlled by, or under common ownership 

and control with Aerovías del Continente Americano S.A., its successors, its 

affiliates, or its assigns to cease and desist from further violations of 14 CFR 259.4, 

14 CFR 244.3, and 49 U.S.C. §§ 41708 and 41712;

7. We assess Aerovías del Continente Americano S.A. $100,000 in civil penalties in 

compromise of civil penalties that might otherwise be assessed for the violations 

found in ordering paragraphs 2 and 3, above. Of this total penalty amount, $50,000 

shall be due and payable within 30 days of the date of issuance of this order. The 

remaining portion of any unpaid civil penalty shall become immediately due and 
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payable if, within one year of the date of this order, Aerovías del Continente 

Americano S.A. violates this order’s cease and desist or payment provision, in 

which case Aerovías del Continente Americano S.A. may become subject to 

additional enforcement action for any violation of the order; and

8. We order Aerovías del Continente Americano S.A. 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 Aerovías del Continente Americano S.A. 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.