Tarmac Trouble 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 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 tarmac delays and, in the case of Mesaba, the only instance of an airline that served as the ground handler for another carrier being "punished for failing to properly help passengers leave an aircraft during an unreasonably long tarmac delay." Passenger rights advocates counted the fines as a victory and evidence that DOT under the Obama administration is more aggressive on tarmac delays.

Continental agreed to accept the fine but 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," LaHood said. "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 that commitment, which 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, which gave passengers a full refund and additional compensation, said it believes the customer commitments are voluntary and "not subject to the Department's enforcement authority."

DOT, however, fined 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. Despite its disagreement, Continental favored a quick settlement to "avoid the substantial burdens of litigation," DOT said. Mesaba was fined $75,000.

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. 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."

Asked if the same fine would have been levied on an airline without a customer commitment to deplane, a DOT spokesperson said by e-mail, "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.

Originally published Dec. 21, 2009