Air Travel Consumer Protection in the USA Office of Aviation Enforcement and Proceedings presentation before the Advisory Committee for Aviation Consumer Protection June 28, 2012
Agenda The Office of Aviation Enforcement & Proceedings Enforcement procedures and compliance initiatives Air travel consumer protection statutes & regulations Civil rights statutes and regulations Aviation Consumer Protection Division functions
An Overview of the Office of Aviation Enforcement & Proceedings (AEP)
Other Agencies We do not handle: Aviation Safety (this is regulated by the Federal Aviation Administration) Aviation Security (this is administered by the Transportation Security Administration)
Staffing & Structure One of seven offices in OST s Office of the General Counsel Aviation Enforcement Aviation Consumer Protection Legal aspects of Airline Economic Licensing Legal Division 21 attorneys, including one Assistant General Counsel and two Deputy Assistant General Counsels 4 support staff, including 1 paralegal Aviation Consumer Protection Division (ACPD) 19 professionals, including one director and three team leaders 1 support staff
Jurisdiction Responsibilities encompass: Air Transportation Direct and Indirect Air Carriers Ticket Agents
Division of Consumer Protection Authority Among Federal Agencies & Preemption of State Law To a great extent DOT's consumer protection enforcement powers are exclusive. Federal Trade Commission The FTC's consumer protection authority does not extend to air carriers. Travel agents: DOT regulates their air transportation advertising, FTC regulates other travel advertising (hotel accommodations, cruises,etc.) Preemption of state law States may not enact or enforce laws that relate to the rates, routes, or services of air carriers. 49 U.S.C. 41713 Morales v. TWA (U.S. Supreme Court, 1992): no state regulation of airline fare advertising. West v. Northwest Airlines (Court of Appeals,1994): consumer can sue airlines for damages in state court relating to denied boarding compensation. American Airlines, Inc. v. Wolens (U.S. Supreme Court,1995): Consumers can sue airlines under state contract law. No private right of action for violation of aviation statutes.
Airline Economic Licensing 49 U.S.C. 41101 and 41102 provide for the economic licensing of air carriers by DOT. See also 49 U.S.C. 40109 and 41738. Any person who holds out, sells or provides air transportation to the public is an air carrier. An entity that actually operates the aircraft in air transportation is a direct air carrier. Other air carriers are indirect air carriers. 49 U.S.C. 40102. Before granting an air carrier authority to operate, the applicant must be found to be fit. To be found fit an applicant - Must have adequate finances and a financial plan to institute operations without unreasonable risk to consumers; Must have a management team qualified to operate the airline in accord with the proposed operational plan; and Must have owners, directors and officers that have a demonstrated disposition to comply with Federal, state and local laws. Must be a U.S. citizen. 49 USC 40102. The air carrier certification requirements work to keep undesirable and underfunded elements out of the airline business, thereby protecting consumers. The certification requirements also work to restrict carriers to the kinds of operations (e.g., operations with small aircraft or charter operations) they are capable of providing, thereby also acting to protect consumers. 49 U.S.C. 41301 and 41302 contain the DOT economic licensing provision for foreign air carriers. The rights of foreign air carriers to operate into the U.S. are dependent on treaties and bilateral agreements. Under international agreements, foreign governments are primarily responsible for ensuring the safety and fitness of their national carriers to operate. The Federal Aviation Administration does, however, monitor the capabilities and practices of foreign airworthiness authorities. With respect to their operations in the U.S., foreign carriers are generally subject to the Department's consumer protection requirements. The licensing of U.S. and foreign air carriers with respect to safety compliance addition to the above and is the responsibility of the FAA.
Enforcement Procedures & Compliance Initiatives
Enforcement Procedures DOT has a detailed set of regulations prescribing procedures to be used in enforcement cases. They are referred to as the Department's Rules of Practice. See 14 CFR Part 302. Certain of the rules apply generally to all adjudicatory proceedings before DOT (e.g., filing and service requirements). See 14 CFR Part 302, Subpart A. Specific Rules of Practice are set forth for enforcement cases. See 14 CFR 302.401-302.420. DOT also has Rules of Conduct that regulate the activities of persons involved in DOT proceedings (e.g., ex parte contact restrictions). See 14 CFR Part 300.
Enforcement Procedures 49 USC 46101 authority to investigate potential violations Initiation of Investigation On AEP s own initiative or by referral from within DOT or FAA Informal (14 CFR 302.403; undocketed informal complaint by letter or telephone call to AEP, usually by consumers or competitors) Formal (14 CFR 302.404; docketed complaint by third party requiring answer by respondent) Investigative Tools 49 U.S.C. 41708 and 41709 provides DOT the authority to order reports from air carriers and to inspect the premises of airlines and ticket agents 49 U.S.C. 46104 provides for the issuance of subpoenas 14 CFR Part 305 provides for nonpublic investigations, with subpoena authority and testimony to be heard before a DOT Administrative Law Judge, if necessary. Little difference in process between formal and informal investigations AEP reviews complaint, seeks answer from respondent, conducts further inquiry if necessary from any person, and determines if evidence supports finding a violation.
Penalties/Remedies Penalties/Remedies Warning letter; may be accompanied by letter of agreement to take corrective action Order to cease and desist from similar conduct in the future Civil Penalties 49 U.S.C. 46301 and 14 CFR Part 383, which implements inflation adjustment laws For non-small businesses, up to $27,500 per day per violation of permit authority, cabotage, and civil rights and consumer protection statutes and regulations Small business concerns and individuals are liable for penalties of up to $1,100, $2,500, or $10,000 per day per violation of permit authority, cabotage, and civil rights and consumer protection statutes and regulations, depending on the nature of the violation Other Penalties Suspension or revocation of economic authority of an air carrier Permanent or temporary ban of individual from involvement in air transportation Criminal penalties under 49 U.S.C. 46316 for knowing and willful violations with referral generally made to the DOT Inspector General
Settlement Practices Importantly, cease and desist orders and civil penalty assessments can be issued only after respondent has had an opportunity for notice and hearing Hearings are extremely time consuming and resource-intensive processes, and often have no assurance of success, particularly where there are no existing rules defining unlawful conduct Where violations are found, attempts to conserve government and private resources alike by settling the matter short of litigation are always made and are generally successful Settlement is based on various factors, including: -Nature and extent of the violation -Actual or potential harm to consumers -Chance of success if litigated -Precedential value of the case -Size and economic condition of respondent company -Cooperativeness of respondent company
Settlement Practices AEP s settlement practices are often misunderstood by those outside the industry. AEP has no authority to adjudicate consumer claims and/or make monetary awards to consumers. However, settlement is often structured to include added incentives to the carrier/violator to refrain from future similar violations, to enhance consumer services above and beyond what is required by DOT rules, and/or to educate the public and other carriers regarding DOT requirements. Examples include: - Doubling provision The respondent pays a significant portion of the assessed civil penalty. An additional amount (usually equal to the paid portion, thus doubling the total amount paid) then becomes due if the respondent commits a further similar violation during a time period specified in the order (usually one year). - Offset provision The respondent usually pays a portion of the civil penalty up front and another, often significant, portion of the civil penalty otherwise due the government is offset to the extent that the respondent takes certain specified action to improve services provided to consumers above and beyond what would otherwise be required by DOT rules, benefiting the public, not the Federal Treasury.
Procedure If Settlement Is Not Possible AEP may file formal enforcement complaint Involves a trial-type hearing before a DOT Administrative Law Judge (ALJ) ALJ decision may be appealed to DOT (Secretary or DOT decisionmaker) DOT s final order may be appealed by respondent to U.S. Court of Appeals Injunction in U.S. District Court AEP may go directly to U.S. District Court to seek an injunction from violations of statutes or DOT orders used only in extreme cases and very rare
Assessed Civil Penalties 1996 June 22, 2012 Year Aggregate Penalty Suspended Penalty* Total Orders 1996 $1,287,000 $460,500 32 1997 $730,000 $290,000 22 1998 $336,000 $145,500 14 1999 $331,000 $219,000 14 2000 $265,000 $37,500 9 2001 $444,000 $206,000 20 2002 $2,172,500 $806,000 22 2003 $6,608,000 $521,500 32 2004 $5,627,500 $774,500 39 2005 $3,987,000 $842,250 28 2006 $2,236,500 $796,250 28 2007 $1,433,000 $726,500 29 2008 $1,155,000 $382,000 20 2009 $2,599,000 $704,500 30 2010 $3,667,000 $951,000 52 2011 $6,084,000 $1,257,500 59 2012 $1,220,000 $567,500 23 * Portion of aggregate penalty payable only if carrier committed similar violations within a set period after issuance of the order. Does not include offsets where carriers expended money to provide benefits to consumers that were above and beyond that which was required by statute or DOT regulations.
Consent Orders and Assessed Civil Penalties by Type of Violation As of June 22, 2012 CONSENT ORDERS BY YEAR/BY TYPE OF VIOLATION Total Orders 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 By Type Advertising 8 12 8 7 7 7 10 7 18 21 7 112 Unauth Opns 11 5 22 14 8 8 1 7 11 6 6 99 Civil Rights 1 12 6 3 7 7 2 1 7 5 4 55 Other Cons. 2 1 1 4 5 5 6 9 9 24 4 70 Reporting 0 2 2 0 1 2 1 3 6 1 18 Mult. Types 3 1 2 2 8 Total Orders 22 32 39 28 28 29 20 30 52 59 23 362 ASSESSED CIVIL PENALTIES ($) BY YEAR/BY TYPE OF VIOLATION Total $ Amt 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 By Type Advertising $315,000 $345,000 $215,000 $314,000 $309,000 $300,000 $560,000 $352,000 $920,000 $1,089,000 $345,000 $5,064,000 Unauth Opns $1,125,000 $408,000 $1,162,500 $2,078,000 $737,500 $640,000 $60,000 $247,000 $335,000 $385,000 $160,000 $7,338,000 Civil Rights $700,000 $5,775,000 $4,095,000 $205,000 $815,000 $145,000 $155,000 $30,000 $1,290,000 $2,415,000 $275,000 $15,900,000 Other Cons. $32,500 $40,000 $35,000 $1,390,000 $340,000 $268,000 $320,000 $865,000 $837,000 $2,105,000 $180,000 $6,412,500 Reporting $0 $40,000 $120,000 $0 $35,000 $80,000 $60,000 $100,000 $250,000 $20,000 $705,000 Mult. Types $1,005,000 $35,000 $70,000 $130,000 $1,240,000 Total $ Amt $2,172,500 $6,608,000 $5,627,500 $3,987,000 $2,236,500 $1,433,000 $1,155,000 $2,599,000 $3,667,000 $6,084,000 $1,220,000 $36,789,500
Compliance Tools Compliance monitoring On-site airline headquarters inspections Airport gate and ticket counter inspections Websites Telephone reservations centers Newspapers Outreach and education Disability forums Consumer information forums Rulemaking Tarmac delay task force Consumer Rules I, II, and III FAA Reauthorization
Consumer Rule I (December 2009) Major provisions: 3-hour tarmac delay rule for domestic flights Prohibition against chronically delayed flights Publication of on-time performance information on reporting carriers websites Responding to consumer complaints 19
Consumer Rule II (April 2011) Tarmac delay contingency plans Tarmac delay data Customer Service Plans Posting of plans on websites Response to consumer problems Denied boarding compensation Full fare advertising Baggage and other ancillary fees Post-purchase price increases Flight status changes Choice of forum provisions
Consumer Rule III Considerations Require enhanced reporting by mainline carriers of code-share partner operations Codify the recent statutory amendment in 49 U.S.C. 41712(c) to enhance the transparency in airline website disclosure of code-share operations Expand flight-delay and mishandled-bag reporting to smaller carriers Require travel agents to adopt minimum customer service standards re the sale of air transportation Require ticket agents (including OTA s) to disclose incentives they receive from carriers or tour operators Require ticket agents (including OTA s) to disclose any preferential display of fares or carriers in their Internet displays Require clear and prominent notice of substantial fees for overweight/oversize bags Prohibit post-purchase purchase price increases for certain ancillary services that have not been purchased with the ticket Require carriers to disclose fees for core ancillary services to all ticket agents (including GDSs) that sell the air carrier s tickets
FAA Reauthorization Act (P.L. 112-95): Mandated Consumer Protection Provisions Prohibit smoking on most charter flights. (Already banned on most scheduled flights.) Issue rules requiring U.S. carriers to accept musical instruments as carry-on and checked baggage and for stowage at a seat. Establish an Advisory Committee for Aviation Consumer Protection. Review and approve airline and airport tarmac delay contingency plans every 3 and 5 years, respectively. Establish a toll-free hotline for consumer complaints. Establish a web site listing countries that may require airplane passenger cabins to be sprayed with insecticide.
Air Travel Consumer Protection Statutes and Regulations
49 USC 41712: The Keystone Provision Broadly prohibits unfair or deceptive practices and unfair methods of competition. DOT authority re competition under this law exceeds that of the Department of Justice in some respects. Serves as the basis for rulemaking, e.g.: Full fare advertising (14 CFR 399.84) Unrealistic scheduling / Chronically delayed flights (14 CFR 399.81) Disclosure of on-time performance (14 CFR 234.11) Denied Boarding Compensation/Oversales (14 CFR Part 250) Notice of Terms of Contract of Carriage (14 CFR Part 253) Disclosure of Codeshare Arrangements, Long-term Wet Leases, and Change of Gauge Service (14 CFR Parts 257 and 258 and directly from section 41712(c)) Tarmac Delay Rule and Customer Service Plans (14 CFR Part 259) Refunds (cash/check refunds enforced directly from section 41712 and 14 CFR 259.5(b)(5); 14 CFR part 374 for credit refunds) Baggage fee and other fee disclosure requirements (14 CFR 399.85)
Advertising: Full Fare Disclosure (14 CFR 399.84(a)) Fare advertisements must disclose the full price to be paid. This price must include all applicable, mandatory taxes and fees. Applies to carriers and agents. Applies to all text-based advertisements (including print and Internet advertisements), TV advertisements, and radio advertisements This is a change. In Enhancing Airline Passenger Protection #2, the AEP changed its enforcement policy, which used to allow government-imposed taxes and fees that were assessed on a per-passenger basis and were not ad valorem in nature to be stated separately from the base fare. This rule also applies to anything advertised in conjunction with the airfare (e.g. hotel stays, tours, ground transfers, rental cars). A reasonable number of seats must be available for sale at the advertised fare. General disclosures such as "seats are limited" do not relieve this obligation Airlines must monitor seat availability during sale periods; when ads are repeated later in the sale, a reasonable number of seats must remain available. Lengthy blackout periods must be specifically disclosed. General statements such as "seats may not be available on all flights" or "restrictions apply" are inadequate. Fare ads must disclose other important fare restrictions, such as: limited availability of seats non-refundability
Advertising: Full Fare Disclosure (14 CFR 399.84(a)) The Department still allows carriers to break out the base fare and taxes and fees and present that information along with the fullfare, as long as the breakout is presented in a way that is not false, misleading, prominent, or in the same or larger size as the total price, and must provide cost information on a per-passenger basis. For example: $829 + (with the plus being a link to another website page that could say +government taxes of up to $215 may apply. ) Is no longer allowed because the total fare needs to be the most prominent and immediately displayed Proper advertisement: $958 = $129 government taxes + $829 per person This way consumers knows how much they will pay from the beginning, but they are still shown what the base fare is.
Advertising: Roundtrip Purchase Requirement Disclosure (14 CFR 399.84(b)) In Consumer II, the Department codified longstanding enforcement policy regarding advertisements for airfares that had a roundtrippurchase requirement. Any advertising for one leg of an airfare that is based on a roundtrip purchase requirement must be labeled as each way and the roundtrip purchase requirement must be clear and conspicuous.
Advertising: Prohibition against opt-out out provisions (14 CFR 399.84(c)) Carriers and ticket agents were pre-selecting certain ancillary services for travelers and adding them to the total price This rule prohibits carriers and ticket agents from pre-selecting these services for consumers. These optional services may only be presented on an opt-in basis Example: a carrier or ticket agent can no longer pre-check travel insurance and add it to the total to be paid
Advertising: Pre-licensing Sales (14 CFR 201.5) Restricts certain marketing activities of applicants for certificate or commuter air carrier authority: Applicants shall not advertise, list schedules, or accept reservations for the operations covered in their applications before their applications have been approved. Applicants shall not accept payment or issue tickets for the operations covered by their applications before the authority granted in their approved applications has become effective or DOT issues a notice authorizing such sales. Applicants that have received DOT approval for their proposed operations shall not advertise or publish schedules before they also possess effective safety authority from the Federal Aviation Administration, unless such advertising or schedule prominently states: This service is subject to receipt of government operating authority.
Advertising: Unrealistic Scheduling (14 CFR 399.81(a)) Airlines may not publish schedules that they cannot reasonably expect to achieve (e.g., schedules listing chronically late flights). Prohibited activities: Significant and routine failures to meet published flight arrival times The routine cancellation of flights for economic reasons
Advertising: On-time Performance Ads (14 CFR 399.81(b)) On-time Performance Disclosure (14 CFR 234.11) Ads making on-time performance claims must include information such as the basis of the calculation and the time period covered DOT on-time performance data: The largest U.S. carriers are required to report their domestic on-time performance to DOT. Currently, there are 14 carriers that are required to report and one additional carrier does so voluntarily. DOT publishes the data monthly. On-time arrival % for each individual flight must be noted in computer reservation systems. Consumer I added 14 CFR 234.11, requiring reporting carriers to display on their Web site flight delay information for each domestic flight the carrier operates and for each domestic flight its U.S. code-share partners operate for which schedule information is available. Carrier reservation agents must disclose this information over the phone upon request by the passenger.
Disclosure: Codeshare (49 U.S.C. 41712 (c) and 14 CFR Part 257) DOT allows carriers to advertise services with their code that are actually operated by their codeshare partners. On codeshare flights to, from, or within the United States, the identity of the airline actually providing the transportation (including the corporate name ) must be prominently disclosed. Notice must be provided as follows: On the first display of the Web site following a search of a requested itinerary in a format that is easily visible to a viewer. Orally by any airline or ticket agent, before booking transportation, in any direct oral communication in the United States (including telephone calls placed from the United States). Written notice on or with each passenger s ticket or itinerary. In printed advertisements and radio and television broadcasts made in the United States.
Refunds (49 U.S.C. 41712, 14 CFR Parts 374, and 259.5) When a refund is due: Airlines must forward a credit to the credit card company within seven business days after receiving a complete ticket refund application. Refunds for cash and check sales of tickets must be made within 20 days after the carrier receives a complete refund application. Airlines required to have customer service plans must commit to comply with these time standards Department has the responsibility to enforce U.S. and foreign air carrier compliance with Consumer Credit Protection Act, the Truth in Lending Act, the Fair Credit Reporting Act, and the regulations of the Federal Reserve Board
Oversales (14 CFR Part 250) Part 250 permits airlines to sell more tickets for a flight than there are seats on the aircraft. This allows carriers to offset "no shows." In exchange, the rule mandates compensation and other protections for ticketed passengers denied boarding. Applies to most scheduled flight segments originating in the U.S. using aircraft with 30 or more passenger seats. Airlines must first seek volunteers willing to give up their reservation in exchange for compensation of the airline s choosing. Involuntary denied boarding compensation (DBC) must be paid on the carrier s initiative within 24 hours. The carrier is free to offer the option of another form of compensation (e.g., a transportation voucher), but in that case the choice is the passenger s and the carrier must disclose material restrictions on the use of vouchers. Carriers must refund fees for all unused ancillary services. DBC not required if the airline substitutes a smaller aircraft for safety or operational reasons. Passengers can decline DBC and sue the carrier for damages.
Oversales (contd.) Most passengers who are bumped involuntarily from a flight segment originating in the U.S. who had a reservation and checked in on time must be given DBC. By rule, the DBC amount is adjusted biannually based on the CPI. Involuntary Denied Boarding Compensation Chart Domestic Flights: Arrival Delay Compensation 0-1 hour No compensation 1-2 hours 200% of one-way fare but no more than $650 Over 2 hours 400% of one-way fare but no more than $1,300
Oversales (contd.) Involuntary Denied Boarding Compensation Chart International Flights: Arrival Delay Compensation 0-1 hour No compensation 1-4 hours 200% of one-way fare but no more than $650 Over 4 hours 400% of one-way fare but no more than $1,300
Baggage Liability Limits Domestic Transportation: On flights on aircraft with more than 60 passenger seats (and on flights on the same ticket as such a flight), if an airline asserts a limit on liability for damage, loss, or delay of checked baggage, that limit may not be less than $3,300 per passenger (14 CFR Part 254). The liability limit for assistive devices used by passengers with disabilities is the original purchase price of the device with no limit (14 CFR 382.43). The $3,300 limit is subject to a biennial inflation adjustment. International Transportation: Pursuant to the Montreal Convention, the liability limit for checked baggage for most international flights is 1,131 Special Drawing Rights (SDR). The SDR fluctuates daily; the current value can be found at www.imf.org. Recently, one SDR has equaled US$1.51. The 1,131 SDR limit applies to assistive devices. Carriers cannot except from liability any special class of checked item such as valuable electronics and jewelry. Items that break that have an inherent fragile quality are exempted.
Disclosure of baggage fees and fees for other ancillary services (14 CFR 399.85) When a carrier changes its bag fees, it must put a notice on the homepage about the changed bag fees. When a consumer searches a website for a flight itinerary, the seller of air transportation must put a notice that baggage fees may apply and direct the consumer where to find a list of the baggage fees. On e-ticket confirmations, sellers of air transportation must include information about the applicable baggage fees. Carriers must have a link from their homepage to a list of all fees that it charges for optional services. Carriers must disclose on its websites any differences between its optional services and related fees and its code-share partners optional services and related fees.
Baggage allowances and fees (14 CFR 399.87) The same baggage fees that apply at the beginning of a passenger s itinerary apply throughout that passenger s entire itinerary. In the case of a code-share itinerary, the marketing carrier determines the allowances and fees.
Notices to Passengers Certain DOT rules require that passengers be provided certain notices about their rights on or with tickets and via airport signs. Ticket notices are required on the following subjects. (A DOT policy statement on e-tickets allows a number of options for furnishing ticket notices to e-ticketed passengers.): Oversales Applicable Baggage Fees Domestic Baggage Liability International Baggage Liability Incorporated Contract Terms Fare Increases and Penalties - Domestic Fare Increases - International Death/Injury Liability Limits - International Airport signs are required for Oversales, International Baggage Liability, Availability of International Tariffs, and Death/Injury Liability Limits.
Contract of Carriage (U.S. domestic) (14 CFR Part 253) Part 253 permits carriers to incorporate the passenger/airline contract (i.e. the contract of carriage) by reference into the airline ticket, but mandates procedures for disclosing those terms. The contract of carriage must be available for inspection at the airline's airport and city ticket offices, and a free copy must be mailed upon a request to the airline's headquarters. Every ticket must disclose in general terms - That there are contract terms incorporated by reference; That those terms constitute a contract; How to inspect and obtain copies of the contract; The liability limits for injury and lost or damaged baggage; Claim restrictions, including deadlines; Rights of carrier to change contract terms; Rules on reconfirmation and check-in times; and Carrier rights on flight delays and rerouting.
Contract of Carriage (U.S. domestic) (14 CFR Part 253) Carriers must provide direct notice on tickets in order to enforce any contract term that- Restricts ticket refundability; Imposes monetary penalties; or Permits the carrier to raise a price. The contract of carriage can serve as the basis for a passenger lawsuit if its terms are breached. U.S. carriers cannot limit a passenger from bringing a claim against a carrier in any court of competent jurisdiction, including a court within the jurisdiction of that passenger s residence in the United States. 14 CFR 259.6 requires carriers to post their Contract of Carriage on their websites.
Family Assistance After Aviation Disasters (49 USC 41113: Aviation Disaster Family Assistance Act of 1996) (49 USC 41313: Foreign Air Carrier Family Support Act of 1997) These laws require certain U.S. airlines and foreign airlines serving the U.S. (both passenger and cargo) to undertake certain actions in the event of an aviation disaster that results in a major loss of life. These laws do not apply to air taxis and commuter air carriers. Carriers must file Family Assistance Plans with DOT and the National Transportation Safety Board. Among other things, airlines must: Establish a toll-free number to handle calls from families of passengers Assist family members in traveling to the location of the accident and provide for their physical care while staying at such location Treat the families of non-revenue passengers the same as those of revenue passengers Retain unclaimed possessions for at least 18 months Covers aviation disasters on U.S. soil (includes U.S. territories and other possessions and 12-nautical mile territorial seas)
Tarmac Delays (14 CFR 259.4) Consumer I added a rule requiring US carriers to have a contingency plan related to Lengthy Tarmac Delays. The plans must include assurances that: The US carrier will not permit an aircraft to remain on the tarmac for more than three hours for a domestic flight without allowing passenger deplanement (with exceptions for safety, security, and Air Traffic Control); The US carrier will provide adequate food and potable water no later than two hours after the aircraft door is closed; and, The US carrier will provide operable lavatories and adequate medical assistance, if needed, during a lengthy tarmac delay. Since the rule has gone into effect, one carrier has been fined under the rule The AEP has investigated nearly 300 separate alleged tarmac delay incidents.
Tarmac Delays (cont.) Consumer II extended the applicability of the tarmac delay provision to delays of non-us carriers, expanded the covered airports to all large, medium, small, and non-hub US airports, and established a four-hour time limit for international flights Additionally the carriers now have time triggers to notify passengers of the cause of the delay and if the opportunity to deplane exists. The FAA Reauthorization Act (P.L. 112-95) signed by President Obama on February 14, 2012, requires air carriers to submit their plans to the DOT, and requires carriers to ensure a comfortable cabin temperature during a tarmac delay and to share gates in the event of an emergency. P.L. 112-95 also requires all large, medium, small and nonhub airports to develop tarmac delay contingency plans and submit those plans to the DOT
Customer Service Plans (14 CFR 259.5 and 259.6) Requires US and non-us carriers to adopt a customer service plan with minimum standards in 12 areas: 1. Carrier must disclose that a lower fare may be available elsewhere (if that is the case): On the carrier s website; At the ticket counter; and, When a customer calls the carrier s reservation center to inquire about a fare or to make a reservation.
Customer Service Plans (cont.) 2. Notify consumers of known delays in accordance with 14 CFR 259.8. 3. Make reasonable effort to return mishandled baggage within 24 hours. Compensate passengers for reasonable expenses that result due to delay in delivery Domestic Flights: 14 CFR Part 254 International Flights: Applicable Int l Agreement (e.g., Montreal or Warsaw) Reimburse passengers for any fee charged to transport a bag if that bag is lost.
Customer Service Plans (cont.) 4. Allow reservations to be held at the quoted fare without payment or cancelled without penalty for (at least) 24 hours after the reservation is made. 5. Where ticket refunds are due, provide prompt refunds, as required by 14 CFR 374.3 and 12 CFR Part 226. 6. Properly accommodate passengers with disabilities as required by 14 CFR Part 382.
Customer Service Plans (cont.) 7. Meet customer s essential needs during a lengthy tarmac delay as required by 14 CFR 259.4 8. Handle bumped passengers with fairness and consistency in the case of oversales as required by 14 CFR part 250. 9. Disclose cancellation policies, frequent flyer rules, aircraft seating configuration, and lavatory availability on the selling carrier s website and over the phone, upon request.
Customer Service Plans (cont.) 10. Notify consumers in a timely manner of travel itinerary changes. 11. Ensure responsiveness to consumer problems as required by 259.7. 12. Identify the services it provides to mitigate passenger inconveniences resulting from flight cancellations and missed connections. Plans must be posted on the carriers websites.
Response to Consumer Problems (14 CFR 259.7) The rule requires covered U.S. and foreign air carriers to: Designate an employee to monitor the effects of irregular flights on consumers; Inform consumers how to complain; and Respond to written complaints by acknowledging their receipt within 30 days and substantively responding within 60 days.
Prohibition on Post-Purchase Purchase Price Increases (14 CFR 399.88 and 399.89) The Department prohibits a seller of air transportation from increasing the price of a ticket after that ticket is paid in full, except in the limited case of government-imposed taxes and fees if the passenger agreed to such an increase when the ticket was purchased. If a consumer pays a deposit or partial payment for air transportation or an air tour/tour package, a seller may raise the price as long as it receives written consent from the passenger for the potential for such an increase before accepting any payment.
Civil Rights Statutes and Regulations
Air Carrier Access Act 49 U.S.C. 41705 Prohibits air carriers and foreign air carriers from discriminating against a qualified individual based on his or her disability when providing air transportation. DOT has promulgated detailed rules in 14 CFR Part 382 to implement this statute.
14 CFR Part 382 - Definitions What is an Individual with a Disability? Physical or Mental Impairment; Permanent or Temporary Basis; Substantially Limits Major Life Activity (walking, seeing, hearing, speaking, breathing, learning).
Part 382 Overview CARRIER RESPONSIBILITIES Accessibility Assistance Training Complaint Resolution and Reporting
Part 382 Overview (cont d) Airlines must ensure accessibility of: Aircraft; Airport facilities under the airlines control; and Communication and Air travel-related information.
Part 382 Overview (cont d) Airlines must provide assistance: Enplaning, deplaning, and connecting Within the airport terminal; On the aircraft; and Other assistive services.
Part 382 Overview (cont d) Airlines must provide appropriate training to its employees and ensure the same for contractors. Airlines must adhere to the required complaint resolution and reporting procedures.
Accessibility Aircraft Cabin Accessibility Applies to new aircraft ordered after April 5, 1990, or delivered after April 5, 1992, for U.S. carriers, and for foreign carriers new aircraft ordered after May 13, 2009, or delivered after May 13, 2010: 30 or more seats - 50% moveable aisle armrests in each class of service 100 or more seats priority space for stowage for one folding wheelchair Twin-aisle aircraft - accessible lavatories More than 60 seats on-board wheelchair
Accessibility Aircraft Provision of Lifts and Ramps Airlines must ensure lifts or ramps are provided at U.S. airports, if boarding by jet bridge is not available. Airlines must enter into written contracts with airport operators allocating responsibility for meeting the boarding and deplaning assistance requirements.
Accessibility Information - Airlines must ensure that certain information is accessible to persons with vision or hearing impairment: Access to information that the carrier provides to other passengers at gates, ticketing areas, and customer service desks; Flight-related information that carriers provide to the public, including ticket reservation by telephone and the availability of accommodations.
Accessibility Information (cont.)- Airlines must ensure that certain information is accessible to persons with vision or hearing impairments: All safety and information videos played on aircraft must be captioned; All audio-visual displays in the airport terminal under the carrier s control must be captioned; and Effective communication and prompt access to air travelrelated information provided to passengers on an aircraft.
Assistance Airport terminal: Within an airport, airlines must provide assistance, upon request, with enplaning, deplaning, and making connections between flights.
Assistance Airport terminal (cont d.): Passengers must inform carrier of their arrival at the airport & need for assistance. Passengers are responsible for entering the terminal to request assistance where the airline has no employees or contractors at the curbside or other vehicle drop-off point.
Assistance Airport terminal (cont d.): Assist a passenger in accessing key areas of the terminal Make a stop at the entrance of airport lavatory Assist with checked or carry-on luggage Escort a passenger to an animal relief area
Assistance Airport terminal (cont d.): A carrier cannot leave a passenger unattended in a ground wheelchair in which the passenger is not independently mobile, for more than 30 minutes.
Assistance Aircraft: Wheelchairs and Other Assistive Devices Airlines must allow for the onboard storage of manual wheelchairs and other assistive devices. Airlines must transport wheelchairs, other assistive devices and their batteries and return them promptly in the condition received to the passengers upon arrival.
Assistance Aircraft: Wheelchairs and Other Assistive Devices (cont d.) Airlines must not apply baggage liability limits to the damage or loss of assistive devices or count assistive devices toward the limit on carry-on baggage.
Assistance Aircraft: In the Cabin Reaching aircraft seat Stowing and retrieving carry-on items Use of on-board wheelchair to move to and from the lavatory (including transfer from aircraft seat to chair) Assistance in preparing to eat
Assistance Aircraft: In the Cabin (cont d.) Assistance that is NOT required: With actual eating Within the restroom Medical assistance
Other Assistance Service Animals - Airlines must permit a service animal to accompany a passenger with a disability, including: Service animals that are trained or have an innate ability to assist persons with disabilities; and Emotional support or psychiatric service animals.
Other Assistance Service Animals (cont d.): Airlines must provide seating accommodations to passengers traveling with service animals, consistent with safety requirements. Airlines may require advance notice from passengers.
Other Assistance Service Animals (cont d.): Airlines may require medical documentation from passengers traveling with emotional support or psychiatric service animals. Airlines are not required to accommodate certain unusual service animals.
Training Requirements Training on Part 382 required for all public contact personnel to ensure: Proficiency concerning the rule as appropriate to the duties of each employee; Safety and dignity of passengers with disabilities; Awareness and appropriate responses to different types of disabilities.
Complaints Resolution Procedures Airlines must train and make available a Complaint Resolution Official (CRO) to respond to complaints from passengers with disabilities.
Complaints Resolution Procedures Airlines must send a dispositive written response to any disability complaint: within 30 days of its receipt; specifically admitting or denying a violation of Part 382; and advising the passenger of his/her recourse to contact DOT.
Complaint recordkeeping and reporting U.S. and foreign carriers must record all written disabilityrelated complaints received and categorize complaints by type of disability and nature of the complaint (only refers to complaints regarding flight segments to/from U.S. for foreign carriers). Carriers must submit an annual report to DOT summarizing such complaints. Carriers must retain such complaint files for three years
AEP and Part 382 Continues to amend Part 382 to address concerns; Investigates all written disability and discrimination complaints and enforces compliance; Staffs DOT disability hotline; Conducts airline compliance reviews; Monitors airline CRO training classes; and Attends and hosts other public outreach forums.
Pending or New Proposals Final rule on web site and kiosk accessibility SNPRM on the provision of medical oxygen, accessible in flight entertainment, service animals NPRM on requirements applying to airports to work with airlines to provide captioning on displays, service animal relief areas, and lifts. NPRM on allowing seat-strapping method in transporting wheelchairs onboard aircraft. Revision of Technical Assistance Manual and Model Training Program.
race, Discrimination 49 U.S.C. 40127 An air carrier or foreign air carrier may not subject a person in air transportation to discrimination on the basis of: color, national origin, religion, sex, or ancestry.
Discrimination 49 U.S.C. 40127 The Department has the authority to investigate claims of discrimination made by consumers against carriers. AEP looks to case law under 42 U.S.C. 1981, 1983 and 2000d in enforcing section 40127
Aviation Consumer Protection Division (ACPD)
ACPD FUNCTIONS Assisting air travel consumers with complaints and inquiries Providing guidance and information Monitoring airline service quality Educating the public Helping to develop rules Assisting the Legal Division with investigations
Assisting Air Travel Consumers We receive complaints about: U.S. and foreign airlines Domestic and international itineraries Scheduled and charter service Passengers record phone complaints in a voicemail system Complaints can be submitted by letter or electronically on our web site http://airconconsumer.dot.gov Passengers with disabilities: Toll-free telephone hotline and TTY line
Assisting Air Travel Consumers All complaints are reviewed by analysts and entered and tracked in a computer database All complaints are referred to the airline or online travel agency for follow-up with the consumer Department of Transportation s follow-up with airlines and complainants is primarily limited to regulated areas Violations of regulations are pursued by aviation enforcement attorneys
Providing Guidance and Information Consumers Airlines U.S. Congress Private attorneys News media Academics Foreign governments
Monitoring Airline Service Quality Consumer-reported: Passenger complaints may refer violations to Legal Division Carrier-reported: Reports on oversales, mishandled baggage, on-time performance Required traffic and financial data (T-100, O&D Survey) Other government agency-reported: FAA operations data (e.g.,causes of flight delays) Methodology: Use data to assist in reviewing specific complaints Use data to identify industry trends
Consumer Complaints by Type (Includes complaints against U.S. carriers, non-u.s. carriers, travel agents, and tour operators) Type 2010 2011 Flight Problems (e.g., canceled/delayed flights) 3,337 (30%) 3,656 (32%) Baggage 1,938 (18%) 1,850 (16%) Customer Service 1,345 (12%) 1,287 (11%) Reservations & Ticketing 1,510 (14%) 1,447 (13%) Refunds 730 (7%) 986 (8%) Fares 465 (4%) 634 (5%) Other (e.g., oversales, disability, discrimination, frequent-flyer programs, advertising, animals) 1,663 (15%) 1,685 (15%) Total 10,998 (100%) 11,545 (100%)
Educating the Public Air Travel Consumer Report Other publications Web site News media relations
Air Travel Consumer Report Monthly publication with statistics on: Delayed/Canceled flights Tarmac /Chronic delays Mishandled baggage Oversales Consumer complaints TSA Security complaints Loss, injury or death of pets
Other Publications Fly-Rights Tell It To The Judge New Horizons: Information for the Air Traveler with a Disability Plane Talk fact sheet series When Kids Fly Alone
Web site: www.airconsumer.dot.gov Content: Consumer publications How to file a complaint (incl. web form) Industry Letters (guidance for airlines) Fact sheets (bankruptcies, strikes) Links to safety and security information Format: Meets accessibility standards for the disabled Spanish version
News Media Relations Consumer Alert news releases Interviews Customized complaint data and complaint examples
How to Contact Us For enforcement information: Office of Aviation Enforcement & Proceedings main office: 202-366-9342 Website: http://air.consumer.dot.gov; click on Rules and Guidelines for guidance documents For consumer information: Online complaint form: http://air.consumer.dot.gov; click on Filing a complaint Voicemail consumer complaint line: 202-366-2220 Disability Hotline: 1-800-778-4838 (voice) 1-800-455-9880 (TTY)