Monthly Archives: August 2014

FINES UPDATE

In addition to those noted above, the below additional fines have recently been issued by DOT:

Delta Air Lines, Inc. – $100,000

Delta Air Lines, Inc. (Delta) was fined $100,000 for violating the Department’s advertising rules.  Under those rules, Delta is required to clearly and conspicuously note the disclosure of a roundtrip purchase requirement prominently and in close proximity to the each way fare amount. From November 2012 to February 2014, Delta had advertised “Fare Specials” for each way fares that required a roundtrip purchase.  DOT determined that Delta did not clearly and conspicuously note this requirement prominently and proximately, and thus violated DOT advertising requirements.

Alaska Airlines, Inc. – $150,000

Alaska Airlines, Inc. was fined $150,000 for violating DOT’s codeshare disclosure rules.  Air carriers are required to disclose in all advertisements the name of the air carrier providing a passenger’s air transportation prior to the purchase of a ticket.  Where one or more of the flights at issue is operated by a codeshare partner, the existence of a code-share arrangement must be disclosed.  In late 2013, an investigation by DOT’s enforcement office revealed that for flights operated by its sister carriers and regional partners, Alaska Airlines’ reservation agents did not identify the corporate name of the carrier operating these flights, or any other name under which the flight was operated. DOT determined that this practice violated its codeshare disclosure requirements.

Skywest Airlines – $295,750

The FAA has proposed a fine of $295,750 against Skywest Airlines for allegedly violating FAA drug and alcohol testing requirements.  According to the FAA, Skywest allegedly failed to include more than 150 safety sensitive employees in a random drug testing pool, hired two employees before verifying they passed their drug tests, and allegedly improperly subjected three employees to drug tests that they should not have been subjected to.  Skywest is set to meet with the FAA later this month to discuss these allegations.

JUDGE RULES NO-FLY LIST VIOLATES TRAVELERS’ RIGHTS

In late June, a federal judge in the U.S. District Court in Portland, Oregon ordered the government to revise its post-9/11 “no-fly” list, ruling the list violates Americans’ constitutional rights to travel freely and to effectively challenge being blacklisted because of alleged links to terrorism.

The case was initiated in 2010 when thirteen American Muslims filed suit after they were barred from boarding aircraft to or from the U.S. because their names were on the government’s secret no-fly list.  Each of the plaintiffs, either a U.S. citizen or permanent resident, has denied any involvement with terrorism, and has not been charged with any crime.  In each respective case, the individual had submitted an application to the U.S. Department of Homeland Security (DHS) asking why his or her name was on the list, but DHS provided no explanations and would not say whether they would be allowed to fly in the future.

The Judge ruled that DHS’ process for challenging inclusion on the list “does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government’s terrorism databases.”  And, further that DHS must devise a “meaningful procedure” for disclosing how a person ended up on the list, because a traveler “who has not been given any indication of the information that may be in the record does not have any way to correct that information.”  That, she wrote, violates due process guaranteed by the U.S. Constitution.

UPDATE ON APPLICATION OF NORWEGIAN AIR INTERNATIONAL

There have been two interesting developments in the dispute over Norwegian Air International’s (NAI) application for a foreign air carrier permit and exemption authority, which was filed with DOT on December 2, 2013.

First, on July 9, 2014, former Secretaries of Transportation Andrew H. Card, Jr., Norman Y. Mineta, and Mary E. Peters wrote a blanket letter to Members of Congress in support of NAI’s application.  The Secretaries believe approval is warranted in this case because NAI’s application meets all legal and regulatory requirements contained in U.S. law and the binding U.S.-EU Open Skies Agreement.  They also believe certain parties are using the NAI application as an opportunity to block competition and deny a choice to transatlantic travel consumers and that any attempts by U.S. carriers and organized labor to undermine the Open Skies Agreement and restrict market competition would be detrimental to the liberalization of air transportation.

Second, a U.S.-EU government-to-government meeting took place on Monday, July 14, in Brussels.  Representatives from both the Transportation and State Departments were in attendance, at the behest of Secretary Foxx, so that they could discuss NAI’s application and hear the EU’s views on the legal meaning and applicability of Article 17 bis of the U.S.-EU Open Skies Agreement as it applies to carriers seeking either U.S. or EU authorizations under the ATA.  The Department of Transportation will post a summary of the meeting in the relevant docket, but nothing has been published to date.

FAA PUBLISHES POLICY ON UAS ENFORCEMENT AND INVESTIGATIONS

The FAA on July 15, 2014 issued a Notice of its national policy on “Education, Compliance, and Enforcement of Unauthorized Unmanned Aircraft Systems Operators”.  The purpose of the Notice is to guide inspectors on the process of contact and education that is typically provided to individuals who are the subject of an inquiry relating to the unauthorized operation of Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS).

Following an increase in UAS-related incident reports arising from model aircraft and small UAS operations, the FAA has decided to use outreach and education to encourage voluntary compliance with applicable statutory and regulatory requirements that pertain to UAS operations.  Specifically, the Notice provides an outline and protocol for inspectors to educate alleged violators and, when necessary, conduct a UAS investigation.  Inspectors will take the following actions:

  • Conduct an inquiry appropriate to the circumstances. Such inquiries will include a phone call to the operator and should be used as an educational outreach opportunity.
  • Depending upon the circumstances, send the operator an administrative informational letter that includes Web site addresses to FAA UAS guidance and relevant C.F.R. provisions.
  • In cases where the UAS operator is uncooperative, noncompliant, or the operation poses medium to high risk to the NAS, inspectors may proceed with enforcement action against the operator.
  • Enter the activity into the Program Tracking and Reporting Subsystem (PTRS) database.

In determining whether or not to take enforcement action, inspectors will evaluate the extent of the safety risk to the NAS that arises from the noncompliant UAS operation.  Inspectors will typically start by using counseling or an informational letter to advise and educate a UAS operator about the requirements for regulatory compliance.  This correspondence will be strictly advisory in nature, and will aim to give the UAS operator guidance on how to conduct operations in accordance with applicable statutory and regulatory requirements.  In egregious cases, or where a UAS operator is uncooperative or intentionally noncompliant or the operation poses medium to high risk to the NAS, the inspector may take formal enforcement action in accordance with the FAA’s existing Compliance and Enforcement Program.

The Notice is available at: http://www.faa.gov/regulations_policies/orders_notices.

FAA PROPOSES $12 MILLION FINE AGAINST SOUTHWEST AIRLINES

On July 28th, the Federal Aviation Administration (FAA) proposed to fine Southwest Airlines $12 million for continuing to operate certain aircraft after being told that repairs to the aircraft did not comply with U.S. regulations.  This is one of the largest fines in FAA history.

The FAA alleges that beginning in 2006, Southwest conducted significant alterations to the aluminum skin of 44 of its aircraft.  In the course of its investigation, FAA determined that the subcontractor used to perform the work did not follow required procedures when making the alterations.  The FAA further alleges that Southwest returned the jetliners to service and operated them when they were not in compliance with Federal Aviation Regulations.  In response to these allegations, the FAA has proposed to fine Southwest $12 million.  Southwest has 30 days to respond to the proposed fine.

TURKISH AIRLINES FINED $300,000 FOR IMPROPER HANDLING OF CONSUMER COMPLAINTS

On July 25, 2014, DOT’s Office of Aviation Enforcement and Proceedings fined Turkish Airlines $300,000 for violating several of the Department’s consumer protection rules having to do with consumer complaints.  Pursuant to DOT’s Enhancing Airline Passenger Protections (EAPP2) rulemaking, carriers must acknowledge receipt of written complaints regarding scheduled service within 30 days and provide a substantive written response to the complaint within 60 days of receipt of the complaint (14 C.F.R. 259.7).

Under 14 C.F.R. Part 382, which is DOT’s regulation for the non-discrimination of passengers with disabilities in air travel, carriers must meet similar requirements for each of the disability-related complaints that they receive.  Specifically, 14 C.F.R. 382.155 requires carriers to provide a dispositive written response to each written disability-related complaint within 30 days of receipt of the complaint.  An appropriate dispositive response must (1) specifically discuss the complaint at issue; (2) admit or deny whether the carrier believes that a violation of Part 382 occurred under the circumstances; (3) summarize the relevant facts that led to the carrier’s conclusion; and (4) advise the complainant of his or her right to refer the matter to the Department for an investigation.

The penalty was imposed because Turkish Airlines failed to provide timely responses to a “large” number of consumer complaints and several disability-related complaints that the Department’s Aviation Consumer Protection Division (ACPD) received directly from consumers and forwarded to the carrier.  Turkish Airlines also failed to adequately assure the Department that it provided substantive responses to those complaints that it received directly from consumers, although Turkish Airlines did advise the department that all such complaints were acknowledged within 30 days.

This is the largest penalty ever imposed by DOT on a foreign carrier for failing to adequately respond to consumer complaints.  Not only does this penalty set a precedent for future enforcement actions, but it also very likely signals a focus by the Enforcement office on complaint handling issues.  Carriers would be well advised to audit their customer service departments to ensure that all consumer and disability-related complaints are being acknowledged and responded to in accordance with EAPP2 and Part 382.