Order 2013

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the First day of May , 2013

Southwest Airlines Co. Docket OST 201 3

- 0004

Served May 1, 2013

Violati ons of 14 CFR 259.7(c)

, 14 CFR 382.155

, and 49 U.S.C. § § 4170 2 , 4170 5 , and 41712

CONSENT ORDER

This consent order concerns violations by Southwest Airline s Co. (Southwest) of 14 CFR Part 382 (Part 382) requiring carriers to provide timely dispositive wr itten responses to

written disability

- related air travel complaints alleging a violation of Part 382 and 14 CFR Part 259 requiring carriers to provide a timely substantive written response to written consumer complaints , and related statutory provisions

, 49 U.S.C. § § 41702 and

417 05 . Violations of 14 CFR Parts 382 and 259 constitute violations of 49 U.S.C. § 41712, which prohibits carriers from engaging in unfair and deceptive practices and unfair methods of competition.

T he violations addressed in this order were found during an April 2012 on

- site regulatory compliance inspection at Southwest’s headquarters conducted by the staff of the Dep artment’s Office of Aviation Enforcement and Proceedings (Enforcement Office).

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

assesses a compromise civil penalty of $ 1 5 0 ,000

.

Applicable Law

Part 382 implements the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705, and violations of that part also violate the ACAA. To the exten t 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. Violations of the ACAA

, Pa rt 382, and 49 U.S.C. §§ 41702 and

41705 , are unfair and deceptive practices in violation of 49 U.S.C. § 41712.

Pursuant to 14 CFR 382.155, carriers are required to provide a dispositive written response to a written complaint alleging a violation of Pa rt 382 within 30 days of receipt of the complaint. An appropriate dispositive response must specifically discuss the– 2

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complaint at issue, specifically admit or deny whether the carrier believes that a violation

of Part 382 occurred under the circumstances

, summarize the facts that led the carrier to

its conclusion of whether or not a violation of Part 382 occurred

, and advise the complainant of his or her right to refer the matter to the Department for an investigation.

Part 259 is a regulation requiring e nhanc ed p rotections for airline p assengers . Pursuant to 14 CFR 259.7(c) 1 covered carriers must acknowledge receipt of written complaints regarding scheduled service within 30 days of receipt of the complaint. Within 60 days of the receipt of the complain t, the carrier must provide a substantive written response to the complaint. 2

Facts and Conclusions

The Enforcement Office found that Southwest failed to respond timely to a large number

of disability

- and consumer

- related complaints that it received dur ing a seven month period of time beginning in June 2011 through January 2012

. Southwest was unaware that passengers had filed complaints with the carrier during that time period because of a problem associated with its website

. After Southwest discovered the problem with its

website

, seven months after it began, Southwest responded to the consumers ; however, the majority of the response s were dated outside of the timeframes prescribed in 14 CFR 382.155 and 14 CFR 259.7(c)

. S outhwest concedes that its respo nses to the disability

related complaints that it received during that time period were dated outside of the timeframes of section 382.155(d). Additionally, t he Enforcement Office found that each

of Southwest ’s responses to the disability

- related complaint s that it received during that time period merely provided a summary of Southwest’s policy regarding the disability

related issues raised by the passengers and did not address the specific facts in each

passenger ’ s complaint, in violation of section 382.15 5(d)

. Furthermore , Southwest failed

to specifically admit or deny whether a violation of the substantive portion s of Part 382

that w ere at issue in the complaint s occurred , in violation of 14 CFR 382.155(d)

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Mitigation

In mitigation, Southwest states t hat it takes very seriously its obligation to provide timely

responses to consumer complaints in full compliance with the Department’s regulations.

1 For U.S. carriers, 14 CFR 259.7(c) became effective on April 2 9, 2010. The Department expanded this requirement to foreign carriers through its Enhancing Airline Passenger Protections II final rule, which became effective on August 23, 2011.

2 Enforcement Office policy permits carriers to respond to consumer compla ints under 14 CFR 259.7(c) through a telephone call provided that the carrier maintains a record of the conversation(s), including the name of the carrier employee, the name of the individual that the employee spoke with, the date and time of the call, and a summary of the substance of the conversation sufficient to permit a reviewer to determine whether the principal issue in the complaint were addressed. See Answers to Frequently Asked Questions Concerning the Enforcement of the Second Final Rule on Enha ncing Airline Passenger Protections (EAPP #2) , Section VII, Question #7, Revised on June 15, 2012, available at www.dot.gov/airconsumer.

3 We note that Southwest refund ed the amount of the ticket to passengers whose complaints were affected by the techn ical issue.– 3

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According to the carrier, a s soon as it learned that an inadvertent technical problem had

caused consumer c omplaint inquiries entered on its website to be mis

- routed, a team of employees worked around the clock to provide an individualized response to each consumer with an overview of relevant Southwest policies and DOT regulations, beginning with the most rece nt inquiries first. Southwest states that it did not address the specific facts of each complaint or admit or deny alleged violations because the

c ompany’s main priority was to respond to each consumer as quickly as possible given the delay that had alrea dy occurred. Moreover, on its own initiative, Southwest states
that it refunded the full amount of e ach affected customer’s ticket r egardless of the merits

of the complaint. Following this incident, Southwest states that it adopted significant safeguards to ensure that similar website routing errors do not recur.

Decision

The Enforcement Office has carefully considered the information provided by Southwest

but continues to believe that e nforcement action is warranted. The Enforcement Office

and Sout hwest have reached a settlement of this matter in order to avoid litigation.

Southwest consents to the issuance of this order to cease and desist from future similar

violations of 14 CFR Parts 259 and 382 , and 49 U.S.C. §§ 41702, 41705 and 41712, and

to t he assessment of $ 1 5 0,000 in compromise of potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

This compromise assessment is appropriate considering the nature and extent of the

violations described herein and the size and s ophistication of the carrier, and serves the public interest. It represents a strong deterrent to future similar unlawful practices by

Southwest Airlines Co. and other carriers

.

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

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ACCORD INGLY,

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 382.155 by failing to provide timely dispositive written respons es to written complaints involving disabled travelers;

3. We find that Southwest Airlines Co. in the instance described in orderi ng paragraph 2, above, violated , 49 U.S.C. § § 41702 and 41705;

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. We find that Southwest Airlines Co. violated 14 CFR 259.7(c ) by failing to provide timely substantive responses to complaints involving scheduled service;– 4

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. We find that by engaging in the conduct described in paragraphs 2 through 4

, above, Southwest Airlines Co. engaged in unfair and deceptive practice s and

u nfair m ethod s of competition in v iolation of 49 U.S.C. § 41712 ;

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. We order Southwest Airlines Co. and all other entities owned or controlled by or under common ownership with S outhwest Airlines Co. and their successors and assignees, to cease and desist from violations of 14 CFR Parts 259 and 382 , and 49 U.S.C. §§ 41702, 41705 and 41712 ;

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. We assess Southwest Airlines Co. a compromise c ivil penalty of $ 1 5 0 ,000 in lieu of civil penalties that might otherwise be assessed for the violations foun d in

orde ring paragraphs 2 through 5. Of that amount, $35,000 sh all be due and payable within 30 days from the date of issuance of this order . The remaining amount, $115,000, shall be credited to Southwest Airlines Co., for refunds that were provided to passenger s affected by the violations des cribed in paragraphs 2 through 5 ; and

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. We order Southwest Airlines Co. to pay the penalty as ordered in paragraph 9 through Pay.gov to the account of the U.S. Treasur y. Payments shall be made in

a ccordance with the ins tructions 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:

SAMUEL PODBERESKY

Assist ant General Counsel for Aviation Enforcement and Proceedings

An electronic version of this document is available at www.regulations.gov