Order 2010-9-22 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the 21st day of September, 2010

United Air Lines, Inc. Docket OST 2010-0005

Violations of 49 U.S.C. § 41708 and Served September 21, 2010

 14 CFR Part 234 

CONSENT ORDER

This consent order concerns United Air Lines, Inc.’s, (United) failure to provide accurate 

on-time performance information to the Department of Transportation (Department) in 

violation of 14 CFR Part 234 and 49 U.S.C. § 41708. It directs United to cease and desist 

from future similar violations of Part 234 and section 41708, and assesses the carrier a 

compromise civil penalty of $12,000.

Applicable Law

Section 234.4 of the Department’s regulations requires certain U.S. air carriers to file a

Bureau of Transportation Statistics (BTS) Form 234 “On-Time Flight Performance 

Report” with the Office of Airline Information (OAI) on a monthly basis. Each covered

carrier must file information for each of its reportable flights, including flights that are 

diverted from their originally scheduled destination. 1

 Furthermore, the report shall be 

made in the form and manner set forth in accounting and reporting directives issued by 

the Director of the Office of Airline Statistics.2

 In the case of diversion incidents, the 

Bureau of Transportation Statistics informs carriers that “when tracking the minutes to 

report in fields AI [total time away from gate at diverted airport] and AJ [longest time 

away from gate at diverted airport], the clock stops when passengers are given the 

opportunity to deplane the aircraft.”3

 1

 14 CFR Part 234.4(a)

 The data are filed with a certification of their 

2

 Id.

3 See Technical Directive #19: On-Time Reporting, Section XII (January 25, 2010), available at 

www.bts.gov/programs/airline_information/accounting_and_reporting_directives/technical_directive.html.
2

accuracy.4 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 flights with tarmac delays of three hours or 

more.5

 ATCR data are used by the traveling public to choose among transportation 

options, by carriers as a basis for making advertising claims regarding the quality of their 

service compared to other carriers, and by the Office of Aviation Enforcement and 

Proceedings (Enforcement Office) to enforce the tarmac delay rule, 14 CFR 259.4. It is 

imperative, therefore, that ATCR data be accurate. Violations of 234.4 also constitute

violations of 49 U.S.C. § 41708. 

Background

In its certified May 2010 BTS Form 234 filing, United reported that four flights were 

“away from gate” in excess of three hours, including one for four hours and forty-one 

minutes.

6

 All four delay incidents occurred at the Colorado Springs, Colorado, airport 

after the flights were diverted there due to severe weather at Denver International Airport. 

Based on the information reported by United, the Enforcement Office was led to believe 

that the flights experienced tarmac delays of three hours or more, and, accordingly,

initiated an investigation of the circumstances surrounding the delays. In response to the 

Enforcement Office’s investigation, United examined its data and found that on all four

flights, passengers were offered an opportunity to deplane, meaning the doors were open 

and the brakes were set, before the delays reached three hours in duration.

7

 United,

therefore, failed to submit accurate data in accordance with 14 CFR 234.4 and Technical 

Directive #19.

8

 United’s misreporting of this data wasted valuable Department 

resources, since only after the Enforcement Office initiated its investigation did it learn 

that United improperly filed the data. The Enforcement Office learned this only after the 

ATCR was published and released to consumers. 

Mitigation

In mitigation, United states that it is strongly committed to full compliance with all 

applicable regulations, with a particular emphasis on the Department’s new tarmac delay 

rules. Indeed, United states that it fully complied with the tarmac delay rule with respect 

to each of these four flights, specifically ensuring that all passengers were provided with 

food, beverages, and working lavatories, as well as an opportunity to deplane well prior 

 4

 See Technical Directive #19: On-Time Reporting, Section V(1)(a) (January 25, 2010), available at 

www.bts.gov/programs/airline_information/accounting_and_reporting_directives/technical_directive.html.

5

 See Air Travel Consumer Report, available at http://airconsumer.dot.gov.

6

 United reported that the following flights were “away from gate” in excess of three hours: UA714 (281 

minutes), UA406 (219 minutes), UA876 (211 minutes), and UA342 (190 minutes). See Air Travel 

Consumer Report, available at http://airconsumer.dot.gov.

7

 In fact, passengers on UA714, were offered opportunities to deplane on two separate occasions.

8

 United had earlier been given the opportunity by Department staff to check the information on the 

flights in question but had not pointed out any problem with the data.
3

to the three-hour mark of the delays. At the time United filed its May report, the 

company believed that the data it submitted relating to this new requirement were entirely 

accurate. However, it later realized that it should not have reported these flights as being 

“away from gate” for longer than 180 minutes. United states that this resulted in a 

wholly inadvertent over-reporting of the number of United flights experiencing long 

tarmac delays. United further states that no consumers could have been misled into 

believing that the company provided better service than it actually did as a result of its 

inadvertent over-reporting of tarmac delays. Nevertheless, United states that it is 

committed to providing fully accurate data to the Department and has taken considerable 

steps to ensure that no such over-reporting occurs again in the future.

Decision

The Enforcement Office has carefully considered the information provided by United but 

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

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

admitting any violation of the regulations, United consents to the issuance of an order to 

cease and desist from future violations of 49 U.S.C. § 41708 and Part 234 of the 

Department’s regulations, and to the assessment of $12,000 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 represents an adequate 

deterrence to future noncompliance with the Department’s reporting requirements by 

United as well as by other air carriers and foreign air 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 United Air Lines, Inc., violated 14 CFR Part 234 by filing a report 

that contained inaccurate data; 

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

paragraph 2, above, United Air Lines, Inc., has also violated 49 U.S.C. § 41708; 

4. We order United Air Lines, Inc., and all other entities owned or controlled by or 

under common ownership with United Air Lines, Inc., and their successors and 

assignees, to cease and desist from violations of 49 U.S.C. § 41708 and 

14 CFR Part 234;

5. United Air Lines, Inc., is assessed $12,000 in compromise of civil penalties that 

might otherwise be assessed for the violations found in ordering paragraphs 2 and
4

3, above. Of this total penalty amount, $6,000 shall be due and payable within 15 

days from the date of issuance of this order. The remaining $6,000 shall become 

due and payable if United Air Lines, Inc., violates this order’s cease and desist or 

payment provisions within one year following the date of issuance of this order, in 

which case the entire unpaid portion of the civil penalty shall become due and 

payable immediately, and United Air Lines, Inc., may be subject to additional 

enforcement action for failure to comply with this order. Failure to pay the 

penalty as ordered shall also subject United Air Lines, Inc., to the assessment of 

interest, penalty, and collection charges under the Debt Collection Act; and

6. Payment shall be made by wire transfer through the Federal Reserve 

Communications System, commonly known as "Fed Wire," to the account of the 

U.S. Treasury in accordance with the attached instructions.

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

 

(SEAL)

An electronic version of this document is available at

www.regulations.gov