Order 2 01 1

- 3

- 20

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the Fifteenth day of March , 20 11

Southwest Airlines Co

. Docket OST

- 201 1

- 0003

Violation s of 14 CFR 234.11 and 49 U.S.C. § 41712 Served March 15 , 2011

CONSENT ORDER

This consent order concerns violations by Southwest Airlines Co. ( Southwest ) of the requirement

of 14 CFR 234.11 to display on

- time performance data for each domestic flight for which schedule information is available on the initial listing of flights on its website. Violations of Part

234 also constitute unfair and deceptive practices and unfair methods of competi tion in violation

of 49 U.S.C. § 41712. This order directs Southwest to cease and d esist from future violations of

Part 234 and 49 U.S.C. § 41712 and assesses the carrier $ 5 0,000 in civil penalt ies

.

Department’s On

- Time Performance Data Rule

The Department’s on

- time performance data rule enables consumers to make informed choices when booking air transportation by requiring the posting of information on carrier websites to indicate which flights are often late or are often cancelled

. Specific ally, t he rule requires carriers to display , for each flight, the percentage of arrivals that were on time (i.e., within 15 minutes of scheduled arrival time); the percentage of arrivals that were more than 30 minutes late (including special highlighting i f the flight was late more than 50 percent of the time); and the percentage of flight cancellation s if 5 percent or more of the flight’s operations were cancelled in the month

covered. By requiring carriers to display flight delay data to consumers in the browsing/shopping phase of booking air transportation, consumers are able to identify flights that suit their travel needs and abandon consideration of flights that frequently experience lengthy delays or cancellations if they choose

.

T he Office of Aviat ion Enforcement and Proceeding s ’ review of Southwest’s website and information provided by Southwest revealed that on

- time performance data were not available to

about half of the consumers visiting Southwest’s website for a short period, a significant

violation of the Department’s on

- time performance rule. Southwest did not discover or correct the deficiency until after the Office of Aviation Enforcement and Proceedings notified Southwest- 2

-

of the deficiency

. The failure to display on

- time performance d ata violated Part 234 and

constituted an unfair and deceptive practice and unfair method of competition in viol ation of

49 U .S.C. § 41712.

Mitigation

In mitigation, Southwest states that it takes its obligation to provide consumers with flight specific on

- time performance data on its website very seriously and is focused on ensuring full compliance with Part 234. Southwest notes that this regulation is relatively new and that the company worked closely with the Department to comply with the requirement s in a timely

manner.

As soon as Southwest learned that its on

- time performance data were not available to all consumers using southwest.com, it corrected the problem immediately. Southwest notes that the lapse resulted from an unexpected technical failure by one of the two servers supporting its website to properly load the on

- time performance data. Southwest has now implemented

measures to eliminate the likelihood of a similar error in the future and has added a new automated process to detect any errors in data load files so they can be corrected immediately.

Decision

The Office of Aviation Enforcement and Proceedings has carefully considered the information provided by Southwest but believe s that enforcement action is warranted

. In order to a void litigation, Southwest has agreed to settle this matter and enter into this consent order directing

the carrier to cease and desist from future similar violations of Part 234 and 49 U.S.C. § 41712, and assessing Southwest $ 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 serves the public interest. It

establishes a strong dete rrent to future similar unlawful practices by Southwest and other

carriers.

This order is issued under the authority contained in 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 Southwest Airlines Co. violated the requirements of 14 CFR 234.11 by failing to display on

- time performance data on its website ;

3. We find that the violation described in ordering paragraph 2 involved an unfair and deceptive practice and unfair method of competition and thereby violated 49 U.S.C. § 417 12;- 3

-

4. We order Southwest Airlines Co. and its successors and assigns to cease and desist from

furthe r violations of 49 U.S.C. § 41712 and 14 CFR 234.11 by engaging in the conduct

described i n ordering paragraphs 2 and 3 ;

5. We assess Southwest Airlines Co. a compromise civil penalty of $ 5 0,000 in lieu of civil penalties that might otherwise be assessed for the violations found in ordering paragraphs

2 and 3

, above . Of this total assessed penalty

, $25,000 shall be due and payable within thirty days of the issuance of this order. The remaining $25,000 shall be due and payable

if Southwest Airlines Co. violates this order’s cease and desist provisions within one year following the date of issuance of this order or fails to comply with the payment provisions of this order, in which case the entire unpaid portion of the $50,000 assessed penalty shall be co me due and payable immediately ; and

6. We order Southwest Airlines Co. to pay the penalty by wire transfer through the Federal Reserve Communication System, commonly known as “Fed Wire,” to the account of the U.S. Treasury in accordance with the attached ins tructions.

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:

ROSALIND A. KNAPP Deputy General Counsel

(SEAL)

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