Tarmac Delay Triggers DOT Fine Precedents

The U.S. Department of Transportation last month issued "precedent-setting" fines against Continental Airlines, Mesaba Airlines and ExpressJet totaling $175,000 for their involvement in an August delay that left 47 passengers stranded in an aircraft overnight on a runway in Rochester, Minn.

The fines represent the first time DOT has penalized a carrier for its role in subjecting passengers to extended tarmac delays and, in the case of Mesaba, the only instance on record of an airline serving as the ground handler for another carrier being "punished for failing to properly help passengers leave an aircraft during an unreasonably long tarmac delay," according to the agency.

Passenger rights advocates counted the fines as a victory and further evidence that DOT under the Obama administration is more aggressive on extended tarmac delays. While Continental agreed to accept the fine, it argued that it violated no DOT regulations, only a voluntary internal policy.

That didn't stop Transportation secretary Ray LaHood from making an example of the airlines as he announced the fines. "I hope that this sends a signal to the rest of the airline industry that we expect airlines to respect the rights of air travelers," according to LaHood. "We will also use what we have learned from this investigation to strengthen protections for airline passengers subjected to long tarmac delays."

DOT documents said that Continental's infraction was not that it kept passengers stranded, since there are no rules that require airlines to allow passengers to deplane after a given timeframe. Rather, the carrier violated a clause in its own internally developed "Continental Airlines Customer First Commitments," which is hosted in PDF form on the airline's Web site.

Continental's failure to live up to a customer commitment that calls for the option for passengers to deplane after three hours constituted "unfair and deceptive practices in air transportation," DOT found.

"Both the DOT and Federal Aviation Administration have taken a lot of PR hits, and this is their way of getting back at an irritating problem. This is a signal from DOT that says, 'We're going to do something whether it is right or wrong'," said aviation consultant Darryl Jenkins, former director of the Aviation Institute at George Washington University and founder of the Airline Zone analysis firm. "We refer to it as the bully pulpit plus."

In the DOT documents, Continental said its customer commitments "are voluntary and Continental believes they are not subject to the Department's enforcement authority."

DOT, however, did not agree, fining ExpressJet and Continental $50,000 each—the former for operating the flight and the latter for failing to uphold its proclaimed customer commitments on a flight that it marketed. Continental also gave passengers a full refund and additional compensation.

Continental filings with DOT said that despite its disagreement, it favored a quick settlement to "avoid the substantial burdens of litigation." Still, the airline is "neither admitting nor denying the above allegations."

Continental has one of the more aggressive extended tarmac delay policies, offering more specific time limits and plans of action than its legacy competitors in instances of stranded airplanes. The customer commitment states that after three hours of being stranded on the tarmac, "action will be taken as soon as practicable based upon local circumstances to deplane customers wishing to do so or return the aircraft to an available gate."

American Airlines, for example, offers passengers bathroom access, water and food—a "snack bar, such as a Nutri-Grain"—and the execution of contingency plans developed for each airport. US Airways' passengers are told that "information about the flight is escalated through US Airways' senior operations management for a decision about returning to the gate. Inputs into that decision-making are based on situation-specific factors, such as customer safety and comfort, airport capabilities and crew status."

Asked if the same fine would have been levied on an airline that does not make a customer commitment to deplane, a DOT spokesperson said by e-mail, "The consent order against Continental was the result of a settlement with the carrier of potential violations. Unfair and deceptive practice cases are fact-specific, and we look at such matters on a case-by-case basis."

The DOT spokesperson said it is not uncommon to impose penalties on airlines that fall short of customer commitments. "Many of the consent orders we have issued stem from 'commitments' made by the carriers through their Web sites, ads, contracts of carriage, etc.," the spokesperson said.

Enforcing the broadly defined "unfair and deceptive practices gives DOT more wiggle room," said Business Travel Coalition chairman Kevin Mitchell, an advocate for a passenger bill of rights requiring airlines to give passengers the option to deplane after three hours. "The airlines need to make this a serious issue to be solved, and DOT has always had the bully pulpit, whether or not they've always done something." National Business Travel Association executive director and COO Michael McCormick also applauded DOT's "stand against incidents that put the health of travelers at risk."

The Aug. 8 flight, bound to Minneapolis-Saint Paul International Airport from Houston, hit severe weather and after diverting to Rochester landed at 12:30 a.m. "The passengers were stranded aboard the aircraft until approximately 6:15 a.m. when they were finally deplaned into the terminal," DOT said.

Mesaba, the only carrier staffing the airport when the plane landed, told the ExpressJet pilot passengers "could not enter the terminal because there were no Transportation Security Administration screeners on duty at that hour," according to DOT, which found "TSA rules would have allowed the passengers to enter the airport as long as they remained in a sterile area." DOT penalized Mesaba $75,000.