DOT Issues Major Fines for Rochester, Minn., Tarmac Delay

Published on: November 25, 2009

The U.S. Department of Transportation (DOT) levied a civil penalty of $100,000 against Continental Airlines and ExpressJet Airlines for their roles in causing the passengers on board Continental Express flight 2816 to remain on the aircraft at Rochester International Airport for an unreasonable period of time on Aug. 8, 2009. Continental also provided a full refund to each passenger and also offered each passenger additional compensation to tangibly acknowledge their time and discomfort. In addition, DOT assessed a civil penalty of $75,000 against Mesaba Airlines, which provided ground handling for the flight, for its role in the incident.

The DOT said these precedent-setting enforcement actions involve consent orders that reflect a settlement by the carriers of violations alleged by DOT’s Aviation Enforcement Office. They are the first enforcement orders punishing carriers for extended tarmac delays, as well as the first time a carrier acting as a ground handler for another airline has been punished for failing to properly help passengers leave an aircraft during an unreasonably long tarmac delay.

“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,” said DOT Secretary Ray LaHood. “We will also use what we have learned from this investigation to strengthen protections for airline passengers subjected to long tarmac delays.”

The Aviation Enforcement Office’s investigation found that all three carriers violated the law that prohibits unfair and deceptive practices in air transportation for their respective roles in the incident, in which a Continental Express flight from Houston to Minneapolis/St. Paul operated by ExpressJet was diverted to Rochester due to bad weather in Minneapolis. The aircraft reached Rochester about 12:30 a.m. and the passengers were stranded aboard the aircraft until approximately 6:15 a.m. when they were finally deplaned into the terminal.

Prior to diverting to Rochester, ExpressJet contacted Mesaba personnel at Rochester to request assistance at the airport, which Mesaba, the only airline staffing the airport at the time, agreed to provide. Shortly after the flight arrived in Rochester, the ExpressJet captain asked the Mesaba employee handling the flight whether the passengers could deplane into the airport terminal. In response to this initial inquiry, and other subsequent inquiries, the captain was told that passengers could not enter the terminal because there were no Transportation Security Administration (TSA) screeners on duty at that hour, despite the fact that TSA rules would have allowed the passengers to enter the airport as long as they remained in a sterile area.

Continental and ExpressJet, in separate orders, were found to have violated the prohibition against unfair and deceptive practices in air transportation because ExpressJet failed to carry out a provision of Continental’s customer service commitment requiring that, if a ground delay is approaching three hours, its operations center will determine if departure is expected within a reasonable time, and if not the carrier will take action as soon as possible to deplane passengers. ExpressJet also failed to take timely actions required by its procedures, including notifying senior ExpressJet officials and providing appropriate Continental officials with notice of the delay. Continental was found to have engaged in an unfair and deceptive practice since, as the carrier marketing the flight 2816, Continental ultimately is responsible to its passengers on that flight. The consent order covering Mesaba finds that the carrier engaged in an unfair and deceptive practice when it provided inaccurate information to ExpressJet about deplaning passengers from flight 2816.

The Business Travel Coalition (BTC) applauded what it called the timely and effective leadership and action by DOT Secretary LaHood in levying fines for the extended tarmac delay event. BTC said after 10 years of increasing awareness of the serious nature of excessive tarmac delays, the DOT is finally using the bully pulpit and its statutory authority to protect the traveling public’s rights. “This is extraordinary and very welcome leadership from Secretary LaHood. BTC has been testifying since 1999 that more aggressive leadership and enforcement from DOT, combined with serious reform by the airlines at the industry level, would avoid the need for congressional intervention with passenger rights legislation,” said BTC Chairman Kevin Mitchell. “We are heartened that DOT will include lessons-learned in its investigation to strengthen flyers’ rights in its final rule. Hopefully, this will be the catalyst the airlines need to finally move to addresses this festering problem.”

In November 2008, the DOT proposed a rule to enhance airline passenger protections, including a provision that would require airlines to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage. A final rule is expected by the end of this calendar year. The consent orders issues are available on the Internet at www.regulations.gov, docket DOT-OST-2009-0001. For more information, visit www.dot.gov.