October 13, 2006

DOT and Foreign Airline Reach Agreement on Alleged Violations of the Air Carrier Access Act

Holland & Knight Newsletter
Judy R. Nemsick

On August 7, 2006, the Department of Transportation (DOT) entered a consent order with British Airways1 regarding alleged violations of the Air Carrier Access Act (ACAA)2 and federal laws prohibiting “unreasonable discrimination” in foreign air transportation, and unfair and deceptive trade practices.3

In April 2000, Congress expanded the scope of the ACAA, which prohibits discrimination in air travel against individuals with disabilities, to cover foreign airlines operating flights originating and terminating in the U.S.4 In May 2000, the DOT’s Assistant General Counsel for Aviation Enforcement and Proceedings (Enforcement Office) advised that it intended to use the provisions in 14 C.F.R. Part 382, the federal aviation regulations applicable to domestic airlines, as guidance in investigating any complaints it receives of noncompliance by foreign airlines with the ACAA.5 The DOT also issued a Notice of Proposed Rulemaking (NPRM) to this effect, which is not anticipated to become final until sometime in 2007.6

The DOT investigation into British Airways’ compliance with the ACAA arose from four different passenger complaints on flights between the U.S. and a foreign country. Each incident involved a passenger who used a wheelchair for mobility and had complained to the DOT that the airline had improperly denied them boarding because he or she was not traveling with an attendant. Section 382.35 of the regulations provides that a carrier must not require that a qualified individual with a disability travel with an attendant as a condition of being provided air transportation unless the carrier determines that an attendant is essential for safety. For example, an attendant is not required when a passenger with mobility impairment can assist in his or her own evacuation of the aircraft.7

The Enforcement Office investigated the claims and determined that British Airways’ decision to deny boarding in each of the situations was inconsistent with the requirements of the ACAA regarding the need for attendants. The DOT found that the airline had failed to ask questions sufficient to enable it to render a determination regarding whether the individuals could have assisted in their own evacuation. The DOT stated that “[m]erely asking whether the individual would be traveling with an attendant or whether he/she could walk without assistance is insufficient to determine whether an attendant is necessary for safety purposes.”

The Enforcement Office determined that the airline’s failure to transport these passengers was based solely on the passengers’ disabilities and, therefore, violated the ACAA, constituted unlawful discrimination under 49 U.S.C. § 41310, and also an unfair and deceptive trade practice in violation 49 U.S.C. § 41712. In response to the DOT’s findings, British Airways argued that its policy and goal is to transport all passengers, including disabled passengers covered by the ACAA, safely and as required by law. The airline stated that as a British airline it is subject to at least three regulatory regimes including the ACAA, the U.K. Code of Practice, and EU legislation entitled “The Rights of Persons with Reduced Mobility When Traveling by Air.” All of these regulatory regimes prohibit discrimination against disabled passengers. British Airways pointed out that the U.K. Code of Practice provides that U.K. carriers may consider other factors than simply whether a passenger can assist in his or her own evacuation when deciding whether an attendant is necessary for travel, including whether the passenger can self-feed, self-medicate, go to the toilet or lift him/herself without assistance. Echoing the sentiments of many foreign airlines, British Airways contended that “the existing multifaceted international regulatory regime raises difficult compliance issues that remain to be resolved.”

The airline further denied that it had acted in a discriminatory manner and emphasized its commitment to provide quality transportation service to disabled passengers. To avoid litigation, however, and without admitting or denying any alleged violations or waiving any rights or defenses, British Airways agreed to settle the DOT enforcement action and undertake to retrain its personnel operating from U.S. airports regarding the proper standards for accepting persons with mobility-related disabilities without an attendant. As part of the settlement, the airline consented to cease and desist from future violations of the ACAA provisions, agreed to the assessment of a $50,000 civil penalty (of which $45,000 would be credited for retraining of its airport personnel), and agreed to provide written certification to the DOT’s Enforcement Office that it funded and implemented the training program, along with a sworn statement from an appropriate company official certifying that the total expenditures were properly made.

The enforcement action against British Airways demonstrates the problems inherent with subjecting foreign airlines to varying regulatory regimes and possibly duplicative and conflicting enforcement actions. The Department of Transportation’s NPRM attempts to address this dilemma, in part, by permitting a foreign airline to petition for a waiver of compliance based on the application of a foreign law or regulation that would affirmatively preclude the foreign carrier from complying with the ACAA regulations.8 However, that exception is quite narrow and would require carriers to go through a relatively cumbersome process of persuading DOT that compliance with both rules would be mutually exclusive. Moreover, there is also the problem that DOT would require carriers to comply with its rules even while a carrier is seeking to be excused from compliance. Foreign airlines (and their governments) have chafed at DOT’s highly prescriptive NPRM on the grounds that it both usurps the jurisdiction of sister regulatory agencies and subjects foreign carriers to a multitude of different, and arguably contradictory, regulatory requirements.

Although DOT issued its Proposed Rule back in 2004, it has been unable to issue a final rule as yet, in large measure because of the intensity and seriousness of the concerns raised by non-U.S. airlines and their own regulators. Thus, for the foreseeable future, DOT will continue to investigate the activities of non-U.S. airlines based on a general proscription against discrimination under the Air Carrier Access Act, with its ability to require specific means of compliance while the law remains in legal limbo. 

1 See Docket No. OST-2006-23528 (Order 2006-8-7); see also DOT News Release No. DOT 85-06, DOT, British Airways Reach Settlement Over Treatment of Passengers with Disabilities (Aug. 7, 2006).

2 49 U.S.C. § 41705.

3 See 49 U.S.C. § 41310(a) (providing that foreign air carrier “may not subject a person, place, port or type of traffic in foreign air transportation to unreasonable discrimination”); 49 U.S.C. § 41712(a) (Secretary of Transportation “may investigate and decide whether an air carrier, foreign air carrier, or ticket agent has been or is engaged in an unfair or deceptive practice or an unfair method of competition in air transportation or the sale of air transportation”).

4 See Wendell H. Ford Aviation Investment & Reform Act for the 21st Century (“Air 21”), Pub. L.106-181, 114 Stat. 61 (April 5, 2000) (amending U.S.C. §41705(a) to state: “[i]n providing air transportation, an air carrier, including (subject to section 40105(b)) any foreign air carrier, may not discriminate against an otherwise qualified individual….”)).

5 See DOT Notice, Applicability of the Air Carrier Access Act (49 U.S.C. 41705) to Foreign Air Carriers Under a Recent Statutory Revision (May 18, 2000); see also DOT News Release No. DOT 108-00, DOT Secretary Slater Announces Law Protecting Air Passengers with Disabilities Now Covers Foreign Airlines (June 1, 2000).

6 See Docket No. OST-2004-19482, 69 Fed. Reg. 64364 (Nov. 4, 2004).

7 An attendant, however, may be required when the passenger is traveling in a stretcher or incubator and an attendant is necessary to attend to their in-flight medical needs; when a passenger’s mobility impairment is so severe that they cannot assist in his/her own evacuation; when a passenger has a mental disability and is unable to respond to or comprehend safety instructions and briefings; or when a passenger with both severe hearing and vision impairments cannot establish a means of communication with carrier personnel adequate to permit transmission of the safety briefing. See, e.g., 14 C.F.R. § 382.35 (b) (1), (2), (3) & (4).

8 See 69 Fed. Reg. at 64366 (discussing waiver petition).

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