Unequal Protection Under Law: An Independent
Assessment of Federal Enforcement of the Air Carrier Access Act
ENFORCING THE CIVIL RIGHTS OF AIR TRAVELERS
WITH DISABILITIES:
RECOMMENDATIONS FOR THE DEPARTMENT
OF TRANSPORTATION AND CONGRESS NATIONAL
COUNCIL ON DISABILITY
February 26, 1999
National Council on Disability
1331 F Street, NW, Suite 1050
Washington, DC 20004-1107
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(202) 272-2074 TTY
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National Council on Disability's award-winning website (www.ncd.gov).
The views contained in this report do not necessarily
represent those of the administration, as this document has not
been subjected to the A-19 Executive Branch review process.
LETTER OF TRANSMITTAL
February 26, 1999
The President
The White House
Washington, D.C. 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD),
I am pleased to submit a report entitled Enforcing the Civil
Rights of Air Travelers with Disabilities: Recommendations for the
Department of Transportation and Congress.
This report is the first in a series on enforcement
of federal laws protecting the civil rights of children and adults
with disabilities. Title IV of the Rehabilitation Act requires NCD
to gather information about the implementation, effectiveness, and
impact of the Americans with Disabilities Act (ADA), among other
duties. NCD was encouraged to monitor and evaluate federal enforcement
efforts of ADA and other civil rights laws when we convened a diverse
group of more than 300 leaders from the disability community for
a policy summit in 1996. In response, we initiated the Disability
Civil Rights Monitoring Project. In addition to this study of enforcement
of the Air Carrier Access Act (ACAA), NCD will in the coming months
issue reports evaluating enforcement of the Americans with Disabilities
Act, the Fair Housing Act, and the Individuals with Disabilities
Education Act.
As you know, air travel is an essential component
of many jobs in the global economy. For people with disabilities
to be part of that economy, participate in the world community,
and compete effectively for jobs requiring air travel, air carriers
and federal oversight officials must ensure that their right to
travel with appropriate accommodations is taken seriously and honored.
Unfortunately, NCD has found that although things have improved
since ACAA was passed in 1986, people with disabilities continue
to encounter frequent, significant violations of the statute and
regulations. When they complain, they encounter an enforcement effort
that is both inconsistent and limited in scope.
NCD stands ready to work with you and stakeholders
outside the government to address the problems identified in this
report and to advance the civil rights of all Americans with disabilities
and their families.
Sincerely,
Marca Bristo
Chairperson
(This same letter of transmittal was sent to the President
Pro Tempore of the U.S. Senate and the Speaker of the House of Representatives.)
NATIONAL COUNCIL
ON DISABILITY
MEMBERS AND STAFF
Members
Marca Bristo, Chairperson
Kate Pew Wolters, First Vice Chairperson
Hughey Walker, Second Vice Chairperson
Yerker Andersson, Ph.D.
Dave N. Brown
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Shirley W. Ryan
Michael B. Unhjem
Rae E. Unzicker
Ela Yazzie-King
Staff
Ethel D. Briggs, Executive Director
Andrew J. Imparato, General Counsel and Director of Policy
Mark S. Quigley, Public Affairs Specialist
Jamal Mazrui, Program Specialist
Kathleen A. Blank, Attorney/Program Specialist
Lois T. Keck, Research Specialist
Janice Mack, Administrative Officer
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant
PREFACE
This report on federal enforcement of the Air Carrier
Access Act (ACAA) is the first in a series on enforcement of federal
laws protecting the civil rights of children and adults with disabilities.
When the National Council on Disability (NCD) brought together a
diverse group of disability community leaders from around the country
in 1996, one of the strongest themes to emerge from three days of
policy development in 11 different areas was the need for stronger
and more consistent enforcement of federal civil rights laws for
people with disabilities. In fact, the first overarching recommendation
from the summit was that existing civil rights laws should be more
vigorously enforced. In its role as an independent federal agency,
NCD was encouraged by disability community leaders to monitor and
evaluate federal enforcement efforts. Moreover, NCD is required
by Title IV of the Rehabilitation Act to gather information on the
implementation, effectiveness and impact of the Americans with Disabilities
Act (ADA).
After NCD published the recommendations that emerged
from the 1996 Disability Policy Summit in Achieving Independence,
it began to study four key civil rights statutes for people with
disabilities as part of the Disability Civil Rights Monitoring Project.
The statutes selected were ACAA, Part B of the Individuals with
Disabilities Education Act (IDEA), ADA, and the Fair Housing Act.
This report is the first in a series of four that will evaluate
the effectiveness of federal enforcement of disability civil rights
laws.
Next year, the United States will celebrate the 10th
anniversary of the passage of ADA and the 25th anniversary of the
passage of IDEA. These milestones present an opportunity to retool
and reinvigorate federal enforcement of disability civil rights
laws so that more Americans with disabilities and their families
can enjoy equal access to the American dream. Too many children
and adults with disabilities and their families are unaware of their
right under federal law to be free from discrimination and are often
unable to enforce that right. The Disability Civil Rights Monitoring
Project will assess federal civil rights enforcement in the past
and evaluate how these important laws can be translated into real
equality of opportunity for all Americans.
This report focuses on federal enforcement of ACAA.
As the economy becomes increasingly global, the ability of employees
with disabilities to travel by air is critical to their success
and upward mobility. As the President has recognized, the employment
rate of working- age adults with disabilities is approximately 30
percent, and this is unacceptable. NCD commends the President for
creating a Presidential Task Force on Employment of Adults with
Disabilities to bring together cabinet leaders and agency heads
to work on improving employment outcomes for this population. NCD
supports the work of the task force and sees this report on ACAA
implementation as an important call to action for members of the
task force, including the secretary of transportation.
This report, like the others that will follow, is
grounded in the real world experiences of people with disabilities
who have endured countless violations of their rights as air travelers
under ACAA. More accommodations are available for air travelers
with disabilities today than ever before, but the availability of
accommodations is inconsistent, and discriminatory treatment continues.
It is important to recognize that the negative experiences of disabled
travelers go beyond the typical hassles to which frequent travelers
are accustomed. Notwithstanding the fact that ACAA has been the
law for more than 12 years, people who use wheelchairs continue
to encounter regular problems, from not being given a bulkhead seat
to being mishandled and occasionally dropped by poorly trained or
insensitive staff. Flight crews continue to refuse to stow adaptive
equipment such as walkers and folding wheelchairs in the aircraft
cabin. Travelers with disabilities who are accompanied by able-bodied
friends, colleagues, or relatives often find that airline personnel
have a tendency to direct questions and instructions to their travel
partners rather than address them directly. In short, air travelers
with disabilities frequently find air travel unnecessarily humiliating
and upsetting. Many problems stem from the unwillingness of some
airline staff to recognize that a request for an accommodation in
air travel invokes civil rights protections. ACAA is a rights law,
but it has been largely implemented with the consistency of a customer
service policy.
NCD urges the President, Congress, the federal enforcement
agencies, and covered entities to work together to address the inadequacies
described in this report and the three reports to follow. For laws
like ACAA to achieve the desired effect, they must be taken seriously
and owned by government and industry. The ultimate test of any civil
rights law is the extent to which people in the protected class
can count on the law for real protection.
CONTENTS
ACKNOWLEDGMENTS
EXECUTIVE SUMMARY
INTRODUCTION
Background
Purpose of this Report
Scope of the Report
Research Approach
Research Activities
Report Structure
PART I. THE LAW, THE REGULATION, AND THE CONTEXT
1.0 The Law: The Air Carrier Access Act
of 1986
1.1 Why the Air Carrier Access Act?
1.2 ACAA Impact: Progress but Persistent Problems
1.3 Background on the Air Carrier Access Act of 1986
2.0 The Implementing Regulation: 14 CFR
Part 382--Nondiscrimination on the Basis of Disability in Air Travel
2.1 Definitions
2.1.1 Who is an "Individual with a Disability"?
2.1.2 Who is a "Qualified Individual with a Disability"?
2.1.3 Nondiscrimination: What It Means
2.2 Implementation Requirements
2.2.1 Implementation Issues
2.2.2 Airline Administrative Responsibilities
2.2.3 Department of Transportation Administrative Responsibilities
3.0 Recently Approved Changes to the
Regulation and Proposed Changes to the Law
3.1 Final Rule Amending Part 382, Issued
March 4, 1998
3.1.1 Clarification of the Definition of Nondiscrimination
3.1.2 Procedures for Providing Seating Accommodations
3.1.3 In-Cabin Stowage of Collapsible Electric Wheelchairs
3.1.4 Issues Not Addressed by the Final Rule
3.2 Proposed Amendments to the Air
Carrier Access Act
3.2.1 Draft Miller Amendment
3.2.2 Inclusion of Code-Sharing Foreign Carriers
PART II. THE ROLE OF THE UNITED STATES DEPARTMENT
OF TRANSPORTATION (DOT)
4.0 Background on DOT Enforcement Philosophy
and Operations
4.1 Regulation of the Aviation Industry and Consumer
Protection
4.2 The Transition to Industry Deregulation
4.3 Impact on the DOT Organization
4.4 Consumer Protection in a Postregulation Environment
4.5 Civil Rights Enforcement as a Function of Consumer Protection
5.0 DOT Organizational Components Involved
in ACAA Enforcement
5.1 Office of General Counsel
5.2 Regulation and Enforcement
5.3 Aviation Enforcement and Proceedings
5.4 Office of Environment, Energy, and Safety
5.5 Departmental Office of Civil Rights
5.6 Analysis and Recommendations
6.0 Implementation and Enforcement Functions
6.1 Consumer Information Explaining
the Law
6.1.1 Public Information: Print Material
6.1.2 Website Information
6.1.3 Available Formats
6.1.4 Methods of Dissemination
6.1.5 Analysis and Recommendations
6.2 General Guidance to the Aviation
Industry
6.2.1 Letters to the Airline Industry
6.2.2 Consumer Complaint Review Meetings
6.2.3 General Compliance Review Meetings
6.2.4 DOT Presentations at Industrywide Conferences
6.2.5 Analysis and Recommendations
6.3 Technical Assistance to the Aviation
Industry
6.3.1 Aircraft Accessibility Federal Advisory Committee
6.3.2 Analysis and Recommendations
6.4 Informal Complaints Alleging Potential
Violations of 14 CFR Part 382
6.4.1 The Informal Consumer Complaint Process
6.4.2 Characteristics of Informal Complaints Received by DOT
6.4.3 Complaint Data from the Airlines: A Different Picture
6.4.4 Analysis and Recommendations
6.5 Formal Complaints and Enforcement
Actions
6.5.1 Filing a Formal Complaint
6.5.2 The Formal Complaint Process
6.5.3 Informal Enforcement Strategy
6.5.4 Enforcement Orders
6.5.5 Formal Enforcement Proceedings
6.5.6 Amicus Briefs
6.5.7 Analysis and Recommendations
6.6 Compliance Monitoring
6.6.1 Review of Airline Compliance and Personnel Training Plans
6.6.2 Analysis and Recommendations
6.7 ACAA Rulemaking--14 CFR Part 382
and Modifications
6.7.1 The Rulemaking Process
6.7.2 Analysis and Recommendations
6.7.3 The Regulatory Negotiation Process
6.7.4 Analysis and Recommendations
6.8 Monitoring the Law
PART III. STAKEHOLDER VIEWS ON ACAA ENFORCEMENT
7.0 Aviation Industry Perspectives
8.0 Perspectives of Air Travelers with
Disabilities
8.1 Accessibility of Air Travel--A Customer Perspective
8.2 Industry Compliance with ACAA and DOT Enforcement of ACAA: A
Sample of Customer Complaints
8.3 Analysis
PART IV. CONCLUSIONS
9.0 Summary of Recommendations
9.1 Recommendations for Organizational Changes
9.2 Recommendations for Process Changes
9.3 Recommendations for Statutory Changes and Increased Appropriations
ENDNOTES
APPENDICES
Appendix A -- 14 CFR Part 382 Requirements
Summary
Appendix B -- Summaries of Complaints Filed Directly
with a Major Air Carrier
Appendix C -- Summarized Selected Complaints from
the Consumer Protection Division
Appendix D -- Glossary of Acronyms
Appendix E -- 14 CFR 302.3 Filing of Documents
Appendix F -- List of Interviews and Consultations
LIST OF FIGURES
Figure 1 -- U.S. Department of Transportation
Air Carrier Access Act Implementation and Enforcement Functions
Figure 2 -- U.S. Department Of Transportation Organizational
Chart
Table 1 -- Summary of ACAA Informal Consumer Complaints--April
5, 1990-October 23, 1997
Table 2 -- ACAA Informal Complaints
against Major U.S. Carriers Received by DOT Aviation Consumer Protection
Division
Table 3 -- Informal ACAA Complaints:
Disability Categories
Table 4 -- ACAA Informal Complaints:
Types of Disability Complaints Received
Table 5 -- Complaints Filed Directly
with a Major Air Carrier--January 1993-November 1996
Table 6 -- Complaints Filed Directly
with a Major Air Carrier--January 1993-through November 1996--Rank
Ordering of Recurring Complaint
ACKNOWLEDGMENTS
All research, data collection, and analysis for this
study were conducted under contract for the National Council on
Disability's (NCD) Disability Civil Rights Monitoring Project by
the Disability Rights Education and Defense Fund (DREDF). Kathleen
Blank, J.D., was the principal researcher and lead author for this
report before she joined the NCD staff in the spring of 1998. Nancy
Mudrick, Ph.D., senior data and methodological consultant; Mary
Lou Breslin, project director; and Jane West, Ph.D., research director,
were co-authors. Statistical analysis of complaint data was performed
under the direction of Nancy Mudrick. Jennifer Thau and Anne Marie
Sullivan, social work graduate students at Syracuse University,
provided research assistance.
We wish to acknowledge the many individuals, including
members of the support staff, at the U.S. Department of Transportation
(DOT) who helped the researchers with this study. With few exceptions,
DOT staff cooperated fully in providing information, recommending
valuable alternative sources of information and facilitating internal
access to key DOT personnel. We particularly appreciate the candor
of the DOT interviewees and the opportunity to speak candidly with
them about the Air Carriers Access Act (ACAA) enforcement from a
disability community perspective. The thorough review and valuable
comments on the final draft provided by the Office of General Counsel
contributed significantly to the quality of this report.
Finally, we wish to thank the many stakeholder group
representatives, from both the aviation industry and the disability
community, who generously gave their time and expertise to provide
information to our researchers. Their input helped to clarify where
change is most critically needed and alternative strategies for
achieving enforcement goals. In particular, we acknowledge the many
members and representatives of the disability community who shared
their firsthand knowledge and experience of ACAA implementation
and enforcement. Their observations added a real-world perspective
to our research.
EXECUTIVE
SUMMARY
The Air Carrier Access Act (ACAA) became law in 1986,
prohibiting discrimination against passengers with disabilities
by air carriers in providing air transportation services.1
Congress charged the Secretary of Transportation with promulgating
the implementing regulations within 120 days of the statute's enactment.
Following deadlocked regulatory negotiations and a notice of proposed
rulemaking that produced more than 300 stakeholder comments, 14
CFR Part 382 went into effect on April 5, 1990, with many issues
still unresolved.2 These unresolved issues, coupled with
a regulatory environment dating back to the Reagan administration
that encourages voluntary compliance and minimizes federal oversight,
have contributed to an enforcement effort that is both inconsistent
and limited in scope.
The findings of this study show that the Department
of Transportation (DOT) model for ACAA enforcement relies heavily
on monitoring of complaints and voluntary compliance by air carriers.
This approach does not emphasize traditional investigation and prosecution
of complaints similar to other federal civil rights enforcement
agencies. Accordingly, the National Council on Disability (NCD)
believes that DOT's approach is critically lacking in the key areas
of compliance monitoring, complaint handling, and leadership by
the Department of Transportation. Despite DOT's stated commitment
to ACAA enforcement, there is no regular monitoring program to ensure
compliance in day-to-day airline operations. DOT's informal complaint-handling
process serves more as a tool for monitoring general compliance
across the industry than as a system for resolving individual discrimination
claims. Even the formal complaint process focuses only on issues
of broad public interest, so that individual complainants have no
reliable administrative means to obtain satisfaction unless the
airline voluntarily cooperates. Research data show that a long-standing
lack of resources has substantially limited DOT's leadership in
addressing difficult compliance problems (i.e., providing lifts
and other boarding devices, providing regular training of airline
personnel, and ensuring that new aircraft meet accessibility standards).
The problems of ACAA enforcement arise from inadequacies
not only in DOT's enforcement mechanism but in the law itself. Unlike
some other civil rights laws, the ACAA does not establish a private
right of action and contains no provisions for attorneys' fees and
damages. Neither does the law extend the nondiscrimination mandate
to foreign air carriers operating in the United States, including
code-sharing partners of domestic airlines. The law's general language
invites contradictory interpretations. In lieu of an adequate budget
and specific enforcement provisions in the law, DOT has adopted
a minimalist approach that has delayed full compliance and consistent
implementation across the industry.
Although the regulations mandate clear requirements
for services such as boarding assistance, teletypes in airports,
and other accommodations to make air travel accessible for passengers
with disabilities, widespread implementation and compliance problems
persist 12 years after ACAA became law. Obtaining service accommodations
continues to be a major challenge at airports, ticketing offices,
and travel services across the nation. When they fly, people with
disabilities still face uncertainty about whether air carriers will
provide accommodations such as effective communication of flight
information, accessible seats, appropriate boarding assistance,
and careful handling and stowage of their wheelchairs and other
assistive devices.
This study examines federal ACAA enforcement efforts
and the impact of these efforts on the civil rights of persons with
disabilities.
Key Findings
The key findings indicate that ACAA implementation
and enforcement efforts over the past 12 years have been so lacking
in several essential areas as to constitute nonenforcement. A significant
part of the problem is an extreme lack of resources that has affected
DOT's capacity to develop and maintain a credible enforcement program
or to adequately support ACAA implementation.
- DOT's budget and staff for ACAA
enforcement are drastically inadequate.
The impact of changing political and fiscal priorities on ACAA
enforcement cannot be underestimated. Since the 1970s, Congress
has steadily cut the budget of the Office of the Secretary within
DOT. As a result, the staff required for a credible ACAA enforcement
program is simply not there. The Consumer Protection Division,
where most ACAA-related activity originates, has less than one
full-time equivalent assigned to ACAA enforcement.
- Most informal ACAA complaints
are not individually investigated as are discrimination complaints
filed with other federal agencies.
- DOT enforcement of ACAA is not
within the purview of a civil rights office.
The Office for Aviation Enforcement and Proceedings and the Aviation
Consumer Protection Division are primarily responsible for ACAA
enforcement, using an approach that combines customer service,
consumer protection, and civil rights enforcement perspectives.
Informal ACAA complaints are classified as "Category C" (Reservations/Ticketing/Boarding)
consumer complaints and are reported monthly in DOT's Air Travel
Consumer Report as an aggregate figure. Although ACAA complaints
are subject to a higher standard of review (based on Part 382)
than other consumer complaints, the vast majority are not individually
investigated, like discrimination complaints filed with most other
federal agencies.
- DOT has taken little initiative
to educate the public in general, and people with disabilities
in particular, about their rights under the law.
Most of the ACAA public information materials provided during
October 1997 were sparse, giving only a general overview of ACAA
provisions. New Horizons, the most detailed DOT consumer
publication on ACAA, was still awaiting incorporation of new information
resulting from the November 1996 amendment to Part 382. DOT staff
reported that New Horizons was usually sent only on request
and not routinely to ACAA complainants with their acknowledgment
letters. Now it is available on DOT's website. On the other hand,
DOT publishes and disseminates its monthly Air Travel Consumer
Report to many aviation industry and consumer constituencies.
The report provides performance rating information (i.e., on-time
flights and consumer complaint statistics) for each of the major
and national air carriers. Disability-related complaints, however,
are reported in a single aggregate figure, precluding any comparisons
among carriers.
- DOT's informal complaint-handling
system functions primarily to track, not investigate, complaints.
Between April 1990 and October 1997, DOT received 1,831 disability-related
complaints. DOT did not investigate the majority of these complaints,
even though Part 382 directs complainants to contact DOT for assistance.
The recorded message on DOT's customer assistance line tells callers
that DOT is not staffed to return phone calls or mediate individual
complaints but will register their complaints in the database
and send an acknowledgment letter for any complaints made in writing.
In addition, DOT sends a letter of notification to the airline(s)
cited in the written complaint instructing them to respond to
the complainant and forward a copy of their response to DOT within
thirty days. DOT personnel record the airline response in the
complaint record, and followup with the airline if no response
has been made within the 30-day time frame. However, DOT follow-up
does not always occur, and a response by the airline does not
mean that any resolution was reached from the complainant's point
of view. Once the airline response is recorded in the complaint
record, the complaint is typically closed, regardless of the result.
Only complaints determined to involve an airline's established
policy or procedure that is out of compliance with the ACAA receive
additio nal follow-up. The majority of complaints are determined
not to be matters of established policy or procedure.
- DOT rarely evaluates the ACAA
complaints passengers send directly to airlines.
Under Part 382, passengers alleging an ACAA violation are first
required to seek resolution directly with the airlines involved.
Airlines are then required to take the necessary steps to correct
the problem and inform complainants about their right to elevate
their complaints to DOT. Our research showed conclusively that
DOT receives only a fraction of the ACAA complaints actually registered
with airlines. Despite its authority under the law to request
any reports it requires to enforce DOT regulations,3
DOT does not request even summary data on the complaints received
directly by an airline, unless investigating in connection with
a potential enforcement action. An independent analysis of one
major airline's complaint data conducted by our researchers showed
a ratio of 36 to 1 for airline v. DOT complaints. By DOT's own
account, an airline receives about 100 ACAA complaints for every
1 DOT receives. Furthermore, the yearly number of ACAA complaints
received for the past eight years has either increased or remained
constant each year. From a consumer perspective, these numbers
would indicate marginal improvement in compliance.
- The ACAA provides no private
remedy for individuals alleging civil rights violations.
The ACAA statute does not provide a private right of action, but
Part 382 directs any consumer wishing to file a formal complaint
to do so in accordance with 14 CFR Part 302. Part 302 sets forth
an administrative enforcement process adopted during the 1950s
for complaints alleging violations of federal aviation statutes
and DOT rules or orders. Like the administrative enforcement mechanisms
for adjudicating complaints brought under the Americans with Disabilities
Act, the Rehabilitation Act (Section 504), and other disability
civil rights laws, DOT cannot assess damages on behalf of successful
complainants. DOT can only require air carriers to take prompt
action to change policies and procedures not in compliance with
ACAA and assess civil penalties. The private right of action established
through ACAA case law should be codified to ensure the individual
plaintiff's right of redress.
- DOT has yet to file a single
amicus brief on an ACAA case.
DOT is not authorized under ACAA to file amicus briefs in cases
alleging ACAA violations but can petition the Department of Justice
(DOJ) for permission to do so. DOT also reports that it has been
asked only once to participate as an amicus. In this case, DOT
intervened through private correspondence with both the plaintiff
and defendant, resulting in the defendant agreeing to modify its
policies and procedures to comply with the rule. DOT chose not
to petition DOJ to file an amicus brief after the defendant failed
to appeal the court's verdict of liability.
It should be noted that agencies with responsibility for enforcing
civil rights statutes routinely request permission to file amicus
briefs, and DOJ typically approves these requests. By not filing
amicus briefs, DOT takes no initiative to influence the development
of case law as it applies to ACAA enforcement. DOT's failure to
take a position on the litigated issues has slowed the development
of a positive and consistent body of case law.
- DOT's ACAA compliance monitoring
is infrequent, inconsistent, and largely ineffective.
Under Part 382, DOT was required to review the ACAA compliance
programs and training plans by December 1990. By 1992, DOT had
reviewed the compliance and training plans of between 30 and 40
air carriers, and had required changes to any plans found out
of compliance with Part 382. Since then, DOT has conducted no
regular monitoring to ensure airline implementation of their ACAA
compliance and training plans.
Part 382 requires airlines to train all new personnel and conduct
periodic refresher training for all personnel with job duties
affected by ACAA requirements. Initially, researchers were told
that DOT typically does not review ACAA training programs or records,
the complaint handling process, or complaint records when conducting
routine on-site reviews with airlines, unless complaints received
by DOT indicate a problem. Later, researchers were told that these
on-site visits did include such reviews. Despite the request of
researchers for reports documenting the scope and findings of
these on-site reviews, none were provided.
- DOT has not satisfactorily addressed
significant gaps in the application of ACAA.
Foreign air carriers operating in the United States are presently
not bound either by the ACAA or by U.S. aviation safety laws and
regulations. Although a general nondiscrimination provision of
the Federal Aviation (FA) Act has applied to foreign carriers
since the 1950s,4 DOT has generally invoked it in connection
with rate or fare issues. As of the date of this report, DOT has
based only two formal enforcement actions on this provision for
discrimination on the basis of disability.5 Although
consumers generally benefit from the competition resulting from
the globalization of air travel networks, Americans with disabilities
continue to encounter discrimination during international air
travel. As the executive agency primarily responsible for international
air transportation policy, DOT negotiates the terms of international
agreements under which foreign carriers must operate in the United
States. Foreign air carriers enjoying access to the U.S. airport
facilities and air travel market, especially through code-sharing
arrangements with U.S. carriers, must conform to the requirements
of the same civil rights laws that bind U.S. carriers.
- Part 382 lacks provisions requiring
DOT to undertake implementation activities such as public education
and to engage in enforcement activities regularly such as compliance
monitoring and investigation of informal complaints.
Other than the provisions to review airline compliance programs
and training plans and ensure that they conform to the requirements
of the regulation, Part 382 has no provisions requiring DOT to
engage in implementation and regular compliance-monitoring activities
to ensure airline follow-through. Without authorizing DOT to engage
in proactive monitoring of airline compliance, the mandate to
enforce ACAA carries little substance.
Below are key recommendations addressing organizational,
process, and statutory changes needed to address and correct the
deficiencies in ACAA enforcement.
Key Recommendations
DOT must make substantive organizational and process
changes if ACAA enforcement is to become effective. It must
- Establish a discrete unit for ACAA civil rights
enforcement that is independent of the Consumer Protection Division,
within either the Departmental Office on Civil Rights or the Office
of General Counsel.
- Request that Congress appropriate the funds necessary
for adequate staff and resources to effectively run an enforcement
office, including a line item for an aggressive public education
initiative.
- Develop and carry out strategic ACAA education
campaigns geared to persons with disabilities and to the general
public.
- Further articulate and consistently apply the
assessment criteria for determining when an ACAA violation has
occurred and when enforcement action is appropriate.
- As for other civil rights laws, any ACAA complaint
alleging a prima facie violation, including an informal complaint,
should have standing. DOT should investigate all prima facie violations
to determine whether a violation has likely occurred and take
appropriate corrective action.
- Expand enforcement action for ACAA complaints
beyond the Part 302 administrative process to allow remedies for
individual plaintiffs. Administrative action under Part 302 was
never intended as a means for redressing individual civil rights
complaints.
- Redesign DOT's database dedicated to complaint
processing and compliance monitoring to maintain the data necessary
for an accurate picture of ACAA compliance.
- Require air carriers to submit to DOT at regular
intervals their Part 382 complaint data in a standardized summary
format that tracks and compares the numbers and types of complaints,
as well as trends in their complaint data. Publish the results
of the summarized complaint data for all major airlines in the
DOT Air Travel Consumer Report.
- Undertake more extensive investigation and analyses
of the causes of Part 382 noncompliance among air carriers and
airports.
- Expand compliance monitoring and enforcement activities
and commit more resources (both staff and funds) to them. Regularly
analyze the summaries prepared by air carriers of their Part 382
complaint data to identify noncompliance areas and to monitor
potential "pattern and practice" trends.
- Review noncompliance areas identified in the airline
complaint data summaries with airline representatives at quarterly
intervals and require airlines to submit correction plans, including
objective measures of success and a time frame for achieving compliance.
- Provide more training and targeted technical assistance
to the aviation industry in all aspects of ACAA implementation
and compliance.
- Exercise leadership in facilitating resolution
of the remaining technical issues impeding ACAA compliance as
well as ongoing disagreements concerning appropriate accommodations.
The weaknesses of Part 382 and DOT's current enforcement
mechanism make an effective private right of action especially important.
DOT's efforts to create the necessary incentives for ACAA compliance
have been grossly inadequate. If ACAA's nondiscrimination mandate
is to be realized, the disability community will have to use private
right of action to create effective incentives. For this reason,
a private right of action must be made more accessible through the
same statutory right to attorneys' fees and damages as plaintiffs
under Title VII and the Americans with Disabilities Act. Such statutory
rights have a common goal: to minimize the cost of litigation to
plaintiffs and maximize the incentive of potential defendants to
stop discriminatory policies and practices.
In light of the above, we recommend that Congress
- Amend the ACAA to establish
- a statutory private right of action;
- the award of plaintiffs' attorney's fees; and
- the award of compensatory and punitive damages
to successful litigants.
- Amend the ACAA to authorize the Access Board to
develop standards in consultation with the Federal Aviation Administration
(FAA) for accessible cabin interiors and for any equipment related
to air travel access, including boarding assistance equipment.
- Amend ACAA to expand DOT's authority to:
- conduct public education activities geared to
consumers with disabilities and the general public;
- conduct regular ACAA compliance monitoring with
the airlines; and
- levy fines when the finding of an individual informal
complaint investigation indicates a violation has occurred, and
impose civil penalties for findings of pattern and practice violations.
- Amend ACAA to include foreign air carriers operating
in the U.S. travel market and using U.S. airport facilities within
the scope of the law and its implementing regulation.
While the FA Act prohibits unreasonable discrimination
by foreign air carriers in providing foreign air transportation,
it has been applied only twice in cases of disability discrimination.
In both cases, the foreign carrier disputed that their treatment
of the passengers was discriminatory and challenged the statute's
applicability on this and other grounds. The ACAA mandate of nondiscrimination,
on the other hand, is clear in its legislative history: "to provide
equal access to air transportation,"6 ensuring that people
with disabilities are "treated equally when they [use] commercial
air carriers"7 and not as "second class citizens when
it comes to air travel."8 This mandate should apply equally
to domestic and foreign air transportation service providers operating
regularly within the U.S. air travel market.
This report candidly assesses current federal enforcement
of the ACAA and recommends changes necessary to fully realize its
mandate.
INTRODUCTION
Background
The Disability Civil Rights Monitoring Project is
a policy initiative of the National Council on Disability (NCD)
to research, evaluate, and report to Congress on federal implementation
and enforcement of disability civil rights laws. The impetus for
this project was the 1996 National Summit on Disability Policy,
at which a diverse group of disability community leaders from across
the country recommended that NCD
- work with the responsible federal agencies to
develop strategies for greater enforcement of existing disability
civil rights laws "consistent with the philosophy of...ADA (Americans
with Disabilities Act)" ;9
- continue working "toward elimination of contradictory
laws, regulations and programs"; and
- "promote coordination and commonality of
goals across agencies."10
NCD responded to these directives with a request for
proposals to assess the Federal Government's compliance, enforcement,
and public information efforts for ADA, Part B of the Individuals
with Disabilities Education Act (IDEA), the Fair Housing Act with
1988 Amendments, and the Air Carrier Access Act (ACAA).11
NCD selected the Disability Rights Education and Defense Fund to
assess and report on federal enforcement of each of the four laws
and on the cumulative impact of federal enforcement of all four
laws.
Purpose of this Report
This first report evaluates the effectiveness of the
Department of Transportation (DOT) in implementing and enforcing
ACAA. Areas of assessment include
- responsiveness of the regulation and approved
modifications in addressing key areas of discriminatory practice;
- clarity of the provisions;
- timeliness in issuing and implementing the regulation;
- quality and availability of public information
to consumers on the provisions of ACAA;
- quality and timeliness of guidance to the aviation
industry in implementing the provisions of ACAA;
- effectiveness of compliance and enforcement activities
in identifying and eliminating patterns of discriminatory practice,
reducing the overall frequency of incidents of alleged violations,
and creating equal access to quality air transportation service
for persons with disabilities;
- overall effectiveness of the agency in orchestrating
interdepartmental (intermodal) collaboration and coordination
of resources to achieve industry compliance; and
- effectiveness of agency leadership in helping
to resolve obstacles to the elimination of discriminatory practices
and access barriers.
Scope of the Report
Although this report addresses federal enforcement
of the ACAA carried out by DOT, it does not cover several significant
aspects of implementation or enforcement. Specifically, it does
not address private litigation or the activities of the federally
funded protection and advocacy system. Nor does this report advocate
specific solutions to the many unresolved ACAA implementation issues.
Finally, the report does not attempt to evaluate DOT enforcement
procedures in relation to the Administrative Procedures Act.
Research Approach
ACAA federal enforcement activities are assessed from
two perspectives. The "whole agency" approach examines the effectiveness
of DOT internal coordination and collaboration in achieving all
enforcement objectives for which it is responsible. The "whole law"
approach examines the overall effectiveness of external coordination
and collaboration (i.e., interagency and with the private sector)
in achieving all the enforcement objectives of the law.
Research Activities
The research activities for this study included the
following:
- identifying the functions and organizational components
of the overall federal ACAA enforcement mechanism;
- identifying, collecting, and analyzing data on
ACAA implementation, compliance monitoring, and enforcement activities
of the agency;
- identifying, collecting, and analyzing data on
ACAA public information activities of the agency and its contractors;
- conducting interviews with the responsible agency
staff to validate understanding of the day-to-day operation of
ACAA enforcement functions;
- analyzing interactions and interrelationship of
enforcement functions and their net impact in addressing noncompliance;
- reviewing and evaluating overall enforcement operations
in light of the requirements, legislative history, and judicial
interpretations of the regulation;
- identifying issues and areas for improvement in
the enforcement mechanism and operations (i.e., gaps, duplication,
overlaps, inconsistencies);
- conducting a literature review to add dimension
and perspective to research findings on identified issues, including
model practices for enhancing compliance; and
- deriving conclusions and developing preliminary
recommendations from the entire analysis.
Report Structure
The report is presented in four parts. Part I provides
background on the enactment of ACAA, as well as a brief overview
of the current law, regulation, and proposed amendments. An overview
of DOT's role in implementing and enforcing ACAA is presented in
Part II. This part includes research findings, analysis, conclusions,
and recommendations with respect to each of the major ACAA enforcement
functions. Part III presents feedback from representatives of the
primary ACAA stakeholder groups (the aviation industry and the disability
community) on DOT's role in implementing and enforcing ACAA. Part
IV summarizes NCD's recommendations for strengthening federal ACAA
enforcement.
PART
I: THE LAW, THE REGULATION, AND THE CONTEXT 1.0
The Law: The Air Carrier Access Act (ACAA) of 1986
1.1 Why the Air Carrier Access Act?
Historically, air travel for people with disabilities
has not been for the faint of heart. Often, people with certain
disabilities either chose not to fly or traveled by air knowing
they would probably face prejudice, hostility, disability stereotyping,
as well as architectural and other physical barriers; sometimes
they faced an outright denial of their right to travel.
Before enactment of ACAA, airlines commonly refused
to transport motorized wheelchairs, alleging that the wet cell batteries
were hazardous. Airline workers frequently either drained the acid
from the batteries before loading the chair or left the batteries
behind without notifying the passengers, who then were stranded
when they arrived at their destination. Often travelers were required
to sign liability waivers to protect the airlines from responsibility
for damaging wheelchairs, scooters, and other assistive devices.
Because aircraft lacked accessible lavatories, some people with
mobility disabilities would limit fluid intake hours before and
often during their flight to avoid needing to use the bathroom,
especially for long flights. Assistance with boarding and deplaning
the aircraft for people with mobility disabilities was often unavailable.
When available, it was often unpredictable and even dangerous because
of the lack of personnel training and uniform policies on boarding
assistance.
Last-minute denials and capricious and arbitrary requirements
were commonplace. A passenger told by a customer service representative
that a guide dog would be allowed in the passenger cabin would be
told at the airport that the dog must travel in the baggage compartment.
Travelers with certain disabilities were commonly told they could
fly only if accompanied by a person who did not have a disability,
whether or not they needed or wanted assistance. Passengers were
told on the phone that they could travel unaccompanied, only to
learn at the airport that they would not be allowed to fly alone.
People perceived as having HIV/AIDS were denied the right to board
flights because of fears and misperceptions about their illness.
In the terminal and on the aircraft, deaf and hearing-impaired
passengers had little or no access to publicly announced flight
information and safety instructions. Access to information about
flight delays or changes in departure gates and times often depended
on the willingness of an airline worker or fellow traveler to pass
on the necessary information. Telephone communication from an airport
for a passenger with a hearing disability was virtually impossible.
Although passage of the Federal Aviation Act of 1958
(FA Act)12 created a legal duty of nondiscrimination
for air carriers, the will to implement and enforce both the spirit
and letter of this provision concretely on behalf of persons with
disabilities did not exist until much more recently. Airlines and
airports did little or nothing to accommodate persons with disabilities.
The inconsistency with which the same airline provided the meager
accommodations available resulted in a denial of access to many
disabled travelers.
The intent of Congress in legislating the ACAA was
to mandate nondiscrimination by requiring the accommodations necessary
for travelers with disabilities to have equal access to air travel
and related services.13 Despite some significant improvements
over the past 10 years, most of the scenarios described above could
well have taken place in many airports around the country during
the past six months. The remaining challenge is to remove the barriers
to full implementation of ACAA's mandate of nondiscrimination.
1.2 ACAA Impact: Progress but Persistent Problems
More accommodations are available for air travelers
with disabilities today than at any time in history. Yet the availability
of accommodations is inconsistent, and discriminatory treatment
continues. The following recent experiences of air travelers with
disabilities were reported by several technical assistance organizations
serving individuals with disabilities.
Wheelchair Delivery: "It's against our policy"
A woman with muscular dystrophy who uses a motorized
wheelchair fractured her leg shortly before traveling from New Zealand
to Los Angeles. She was experiencing much pain when she boarded
her flight. A frequent traveler, she requested that a tag be placed
on her wheelchair instructing the Los Angeles ground crew to deliver
it to the arrival gate immediately after the flight landed. Upon
arriving, she was told by airline officials that airline policy
prevented them from delivering wheelchairs to the gate. She would
have to transfer into an airport chair and be pushed to the baggage
claim area to retrieve her own chair. She refused, telling the officials
she was in great pain and could not endure being lifted unnecessarily.
The officials insisted their policy was valid and in force, and
that she must deplane. She refused, citing the ACAA and drawing
attention to the extenuating circumstances created by her recently
fractured leg. An hour passed before the airline officials relented
and arranged to have her chair delivered to the plane.
Following the incident, she wrote a letter to the
airline complaining about her treatment citing ACAA violations.
In a telephone interview, the complainant said, "I have never been
so humiliated and embarrassed. They treated me with such hostility.
At one point I broke down and cried, I was so frustrated and in
pain."
"We do not provide escort service"
The parent of a 12-year-old child with a cognitive
impairment made an advance request for airline personnel assistance
to help her child travel between gates to make a connecting flight.
The child had flown several times before, but on direct flights.
On this occasion, there were no direct flights to the child's destination
city. In various communications, including letters, airline agents
repeatedly told the child's parent that they do not provide "escort
service" (i.e., supervision to ensure that the passenger does not
wander off) or "custodial assistance" for children. The parent had
requested neither; she had simply requested that someone help her
child travel from one gate to another to wait for her connecting
flight.
"Sorry, no refunds for unused oxygen"
A woman with severe arthritis and heart problems was
charged $300 for six canisters of medical oxygen for in-flight use.
According to FAA safety regulations, passengers may not bring their
own oxygen on board and must pay for oxygen canisters provided by
the airline. Two canisters of oxygen were unused at the conclusion
of her trip. When she requested a refund, the airline said it was
not their policy to issue refunds for unused oxygen. Another passenger
who requested a refund for unused oxygen from a different airline
complained that the price of oxygen canisters had tripled (from
$50 to $150) between 1995 and 1997. This passenger received a modest
refund for several unused canisters and assurances that the airline
was working to reduce the cost.
"Sorry, we don't have time to board you"
A man who uses a manual wheelchair was en route from
Houston to Billings with a plane change in Denver. He had notified
the airline that he would require a boarding chair and boarding
assistance for each leg of the trip. Upon arriving in Denver he
reminded the gate agent for the departing flight that he required
a boarding chair. The gate agent told him a boarding chair was not
available and the airline did not have time to board him. He objected,
informing the agent that he had provided advance notice that he
required a boarding chair. The passenger missed his flight and was
forced to spend the night in Denver. He elected not to file a complaint
because he felt it would not result in any significant change in
the system.
"Please deplane immediately"
A man and his wife, both of whom have Tourette syndrome,
had boarded a flight from New York bound for San Francisco. Tourette
syndrome is a condition characterized by involuntary vocalizations
exacerbated by stress. Upon learning of their presence on the plane,
the captain asked them to deplane because he believed they would
be disruptive. They provided literature on Tourette syndrome to
the captain, explaining that their vocalizations were involuntary
and would subside when the stress of the moment had passed. The
pilot refused to allow the passengers to remain on the flight. The
couple filed a lawsuit against the airline.
Each of the incidents above describes a potential
ACAA violation. The following section gives a brief history of the
ACAA and explains the intent of Congress to remedy discrimination
against air travelers with disabilities.
1.3 Background on the Air Carrier Access Act of 1986
The ACAA was enacted after an extended and unsuccessful
struggle to establish through case law the illegality of discriminatory
practices against air travelers with disabilities.14
The legal obligation of nondiscrimination created by the FA Act
in 1958 was based on two provisions addressing air carriers' service.
Section 404(a) required air carriers to provide "safe and adequate"
service.15 Section 404(b), as originally written, prohibited
"undue or unreasonable preference or advantage to any particular
person, port, locality, or description of traffic."16
Gradually, the legal meaning of these two provisions
became linked and any kind of unjustified discrimination toward
air travelers was understood to be a violation of the air carriers'
duty to provide adequate air transportation service. The Civil Aeronautics
Board (CAB),17 however, generally invoked the provision
in connection with rate or fare issues. While acknowledging section
404's potential application to cases of noneconomic discrimination
that directly affected the provision of air transportation, CAB
never applied it to any specific case involving alleged discrimination
on the basis of disability, race, gender, or ethnicity.18
Consequently, these provisions had little actual impact on improving
access to air transportation for persons with disabilities. Airline
and airport policies, as a rule, remained unresponsive to the unique
service requirements of persons with disabilities, justified on
the basis of safety, economics, and the convenience of other passengers.19
Fifteen years after the FA Act was enacted, discrimination
on the basis of disability was specifically prohibited by law with
the passage of the Rehabilitation Act of 1973.20 Section
504, as amended, prohibits discrimination on the basis of disability
in any federally assisted program.21 This provision,
along with the provisions of sections 404(a) and (b) of the FA Act,
formed the legal basis for the original nondiscrimination regulation
(old Part 382).22 Subpart A contained a general prohibition
against discrimination on the basis of disability in providing air
transportation; subpart B contained specific requirements for service
to disabled passengers; and subpart C outlined record-keeping, reporting,
and enforcement responsibilities. The general prohibition contained
in subpart A was based on section 404 of the FA Act and applied
to all certificated air carriers. The specific requirements of subparts
B and C, based on the Section 504 provisions, applied only to certificated
carriers receiving direct federal subsidies under the Essential
Air Service program.23
The Paralyzed Veterans of America (PVA) challenged
the limited application of subparts B and C in court, arguing that
all carriers benefit from federal assistance in the form of Federal
Aviation Administration (FAA) air traffic control services and federal
grants for improving airport facilities. Therefore, PVA argued,
Part 382 should be applied in its entirety to all air carriers,
in accordance with section 504. Although the U.S. District Court
agreed with PVA's reasoning,24 the Supreme Court did
not, holding that unsubsidized carriers were not recipients of federal
assistance and thus outside the scope of section 504.25
The Supreme Court's decision exempted most air carriers from the
duty to make specific accommodations in providing services to passengers
with disabilities.
In response to this decision, Congress enacted and
President Reagan signed into law the Air Carrier Access Act of 1986.26
Codified as section 404_ of the FA Act, the amendment prohibits
discrimination on the basis of disability by all air carriers, and
authorizes DOT to issue regulations "to ensure nondiscriminatory
treatment of qualified handicapped individuals consistent with safe
carriage of all passengers on air carriers."
Congress's multiple objectives are clear in the statute's
legislative history. First, all air carriers were to be bound by
affirmative responsibilities similar to those set forth in subparts
B and C of the existing regulation. Second, the statute was specifically
intended to remedy "discriminatory, inconsistent and unpredictable
treatment" of air travelers with disabilities. Finally, the statute
affirmed that rules for accommodation were to be consistent with
safety regulations, and that restrictions not based on safety and
applied solely to passengers with disabilities were to be eliminated.
The new ACAA rule, replacing the old Part 382, took
more than four years to develop. Stakeholders in the aviation industry
and the disability community provided significant input to the final
rule through a regulatory negotiation process. In promulgating the
final rule, the Department of Transportation (DOT) clarified five
core issues:
First, DOT applied the section 504 "undue burden"
principle to strike a balance between requiring accommodations sufficient
to enable equal access while containing the costs to the aviation
industry in making those accommodations.27
Second, DOT clarified that air carrier discretion
in imposing additional requirements or restrictions on air travelers
with disabilities is limited to what is required by FAA safety rules.28
Third, DOT emphasized that the new Part 382 resulted
from a regulatory negotiation requested by the parties.29
DOT used much of the information generated through the process to
develop the new, more detailed regulation to supersede the old Part
382.
Fourth, DOT declared that Part 382 should preempt
state regulations protecting persons with disabilities in the area
of air transportation services but should be applied on a case-by-case
basis.30
Finally, DOT declared its responsibility to implement
the ACAA by prohibiting discriminatory practices. Given the continued
prevalence of many discriminatory practices under the old Part 382,
the new rule required greater clarity in establishing standards
to ensure consistent practices by the airlines.31
The following section provides a summary of key Part
382 implementation provisions, as well as an overview of ongoing
and unresolved ACAA implementation issues.
2.0
The Implementing Regulation: 14 CFR Part 382--Nondiscrimination
on the Basis of Disability in Air Travel
The purpose of Part 382 is to implement the ACAA nondiscrimination
mandate: "[N]o air carrier may discriminate against any otherwise
qualified individual with a disability, by reason of such disability,
in the provision of air transportation."32 Part 382 details
the actions necessary for compliance. Although clear in many respects,
the regulation's areas of uncertainty and stalemate continue to
hamper its effectiveness. And clarity notwithstanding, many of the
basic Part 382 requirements are poorly understood and not consistently
implemented.
2.1 Definitions
2.1.1 Who is an "Individual with a Disability?"
Any individual who
- has physical or mental impairment that on a permanent
or temporary basis substantially limits one or more major life
activities;
- has a record of such impairment; or
- is regarded as having such impairment.
It should be noted that a person with a substantially
limiting temporary impairment (e.g., broken limb, acute allergic
reaction) is within the scope of the nondiscrimination provision.
2.1.2 Who is a "Qualified Individual with a Disability"?
Any individual with a disability who
- with respect to using airport terminal facilities
and ground transportation or obtaining information, acts to avail
himself or herself of facilities or services offered by an air
carrier to the general public, with reasonable accommodations
provided by the air carrier, as needed;
- with respect to obtaining an airline ticket, offers
or makes a good faith attempt to offer to buy, or otherwise validly
obtain, an airline ticket; and
- with respect to obtaining air transportation or
other services or accommodations required by Part 382, possesses
a valid ticket, presents himself or herself for travel at the
airport for the ticketed flight, and meets reasonable, nondiscriminatory
contract of carriage33 requirements applicable to all
passengers.34
2.1.3 Nondiscrimination: What It Means
Air carriers are prohibited from
- excluding or denying passengers with disabilities
the benefit of any air transportation or related services available
to other persons, even if separate or different services are provided,
except when specifically permitted by the regulation;35
- requiring individuals with disabilities to accept
special services they did not request;36
- restricting the movement of passengers with disabilities
in terminals or requiring them to remain in a special holding
area in order to receive assistance, or mandating any other separate
treatment, unless permitted or required by Part 382;37
- requiring passengers with disabilities to sit
on blankets;38
- imposing charges on persons with disabilities
for providing the facilities, equipment, or services required
by Part 382;39 or
- taking adverse action against an individual who
asserts rights protected by the ACAA, whether on his or her own
behalf, or through or on behalf of someone else.40
Air carriers shall also ensure that their contractors
who provide services to passengers are bound contractually by a
nondiscrimination provision to
- perform their activities on behalf of the air
carriers consistent with Part 382; and
- comply with directives issued by the air carriers'
complaint resolution officers (CROs).41
2.2
Implementation Requirements 2.2.1 Implementation
Issues
Detailed descriptions of the Part 382 nondiscrimination
requirements are in Appendix A, organized under headings corresponding
to those in the regulation. For many of these requirements, compliance
has been uneven. In some instances, requirements are being challenged
or disregarded by airline policies that effectively circumvent the
intent of certain provisions and prevent their implementation. A
brief commentary on some of the unresolved implementation issues
follows.
Accessible Cabin Interiors
DOT has no design inspection program to ensure that
all aircraft ordered after August 5, 1990, conform to the Part 382
accessibility requirements. It is difficult to imagine how compliance
can otherwise be ensured. In 1997, 187 new aircraft were scheduled
for delivery to Air Transport Association member airlines, which
are mostly U.S. air carriers.42 By 2002, another 457
new aircraft will be delivered.43 Most of these deliveries
will be commercial passenger aircraft. If these new aircraft are
not designed and built in compliance, retrofitting will be the only
viable remedy. Because the cost will far exceed building the aircraft
to correct specification, retrofitting will likely be viewed as
an "undue burden" inconsistent with the legal standard for reasonable
accommodation. The result will be further delays in access to service
for air travelers with disabilities.
Lifting and Carrying Passengers
Lifting and carrying is an issue involving the safety
and dignity of passengers, as well as air carrier personnel.44
Although assistance from air carrier personnel in using ground wheelchairs,
boarding wheelchairs, on-board chairs, ramps, and mechanical lifts
is within the intended scope of the regulation, "hand-carrying"
passengers onto small aircraft (fewer than 30 seats) is not. The
reason is that in-door stairs, by which passengers enter aircraft
not accessible by a mechanical lift, can safely accommodate only
one person at a time.45
In other circumstances, lifting and carrying assistance
is required where such assistance is reasonable. The problem in
implementing the "lifting and carrying" provisions is one of differing
interpretations of what is required. Some air carrier personnel
will help with transfers that involve lifting, and others will not.
On the other hand, some personnel will refuse to allow even friends,
family, or personal attendants to lift the passenger with a disability,
insisting that air carrier personnel do the lifting. The unfortunate
results have sometimes been injuries from being dropped or otherwise
mishandled by personnel not well trained in lifting techniques,
or refusals to provide needed assistance.
Inconsistencies in policy and practice add to the
frustration and unpredictability encountered by air travelers with
mobility impairments. More work is needed to define appropriate
guidelines for limited physical assistance that minimizes the risk
of injury to either passengers or air carrier personnel.
Traveling with an Attendant
Given the inconsistencies among airlines in their
lifting/carrying policies, traveling with an attendant is the only
way for persons with mobility disabilities to ensure such assistance
while traveling. Many passengers with disabilities traveling with
an attendant have experienced two major problems. First, persons
whose health is unpredictable because of severe disabilities may
not always be able to travel on the date they are scheduled to fly.
Unless they have purchased full-priced tickets, they typically lose
anywhere from $150 ($75 for each ticket to change their travel date)
to the entire cost of two tickets upon canceling their trip. Exceptions
are rarely made to allow the customer to reschedule, even with restrictions.
More flexible ticketing policies are needed to accommodate passengers
when circumstances related to their disabilities arise, impairing
their ability to travel at the scheduled departure time.
A similar problem results when a person traveling
with an attendant is notified at the last minute that a different
attendant will accompany him or her. Because airline tickets are
nontransferable, the passenger must purchase another ticket, usually
at full price, for the new attendant. The cost of air travel, already
far more expensive for the person who must travel with an attendant,
becomes prohibitive without accommodations in airline ticketing
practices for these special needs and circumstances.
Seat Assignments
In November 1996, DOT issued a notice of proposed
rulemaking requesting comment on a number of issues, including seating
accommodations. On March 4, 1998, DOT issued the final rule containing
modifications responsive to the comments received from stakeholders.
Effective as of April 3, 1998, the final rule details the requirements
as well as the methods airlines can use to accommodate any individual
who self-identifies to an airline as having a disability.46
The final rule is a clear improvement over the very
limited accommodation provided for in the NPRM. Yet the rule is
complicated, requiring an automated tracking mechanism and personnel
training to implement it effectively. As with other provisions of
Part 382, successful implementation depends greatly on the initiative
taken by air carriers in quickly issuing procedures explaining the
new requirements and ensuring timely training of their personnel.
Preboarding
Under Part 382, passengers who wish to stow assistive
devices in the aircraft cabin must preboard in order to have priority
access to closet space. In the past several years, airlines have
increasingly eliminated preboarding procedures. Ostensibly, this
was a result of overuse of preboarding by passengers who simply
wish to board the plane ahead of everyone else. Because several
accommodations under the regulation are contingent upon the passenger
with a disability preboarding the aircraft, without preboarding,
this passenger must rely on the goodwill of flight attendants and
other passengers to make already occupied storage space or an appropriate
seat available. Preboarding is the mechanism by which people with
disabilities can ensure that the priority access they are entitled
to as an accommodation is in fact given.
Cost and Availability of Oxygen
Under the regulation, passengers who must travel with
oxygen need give only 48 hours advance notice and 1 hour advance
check-in when the carrier provides oxygen service. A significant
number of problems have been reported concerning both the price
and availability of oxygen. The cost of oxygen canisters, which
must be supplied by the air carrier to comply with safety regulations,
varies significantly depending on the carrier, the airport, and
even the flight. (Prices are reported to vary from $50 to $250 per
canister.) Some carriers do not permit passengers to return unused
canisters for which they have paid a premium price. Other complaints
document the failure of personnel to ensure that oxygen requested
in advance is available at the gate for use while awaiting a connecting
flight.
Inaccessible Websites
An issue that has received little attention is the
accessibility of websites and other online means of communication
between consumers and airline reservation systems. Airlines frequently
offer incentives for making online reservations at websites, which
often are inaccessible to consumers with visual and other impairments.
Offering incentives without offering consumers with disabilities
an alternative means to take advantage of them does not meet the
regulation's program accessibility standard. Both consumers and
airlines could benefit from a fully accessible web-based reservation
system that allowed consumers to enter their own special needs information
to their reservation at the point of sale.
2.2.2 Airline Administrative Responsibilities
Training
Under 14 CFR Part 382.61, air carriers are required
to:
- provide training to all personnel dealing with
the traveling public on the requirements of Part 382 pertinent
to their duties, if the carrier operates aircraft having more
than 19 seats.47
- ensure that employees are proficient and knowledgeable
concerning
- Requirements of Part 382 and other DOT and FAA
regulations affecting air transportation service to persons with
disabilities and
- The carrier's own procedures implementing these
regulations, including the safe and proper operation of equipment
used to accommodate persons with disabilities.48
- train their employees in
- Awareness of the different kinds of disabilities,
including physical, sensory, mental, and emotional;
- responding appropriately to persons with disabilities;
and
- Distinguishing among the differing abilities of
persons with disabilities.49
- consult with organizations representing persons
with disabilities to develop programs for training employees in
the policies and procedures for implementing federal requirements.50
- ensure that the initial training of employees
takes place as follows:
- All crew members subject to training under 14
CFR Part 121 or 135 and employed on the date the air carrier's
program is established shall receive training as part of their
next scheduled recurrent training.51
- All other personnel employed on the date the air
carrier's program is established shall receive training within
180 days of that date.
- All crew members subject to training under 14
CFR Part 121 or 135 and employed subsequent to the date the air
carrier's program is established shall receive training before
they assume their duties.
- All other personnel employed subsequent to the
date the air carrier's program is established shall receive training
within 60 days after they begin employment.52
- ensure that
- all employees receive refresher training as needed
to maintain proficiency regarding the requirements of Part 382
pertaining to their duties.53
- training, in accordance with the above requirements,
is provided to every contractor employee who deals directly with
the traveling public at airports.54
- employees who are designated CROs receive training
on the requirements of Part 382 and CRO responsibilities by June
5, 1990 (within 60 days of the regulation's effective date). Employees
subsequently designated as CROs must receive training before assuming
their duties. All employees performing CRO functions must receive
annual refresher training.55
- training is provided to flight crew members and
other appropriate personnel to ensure their familiarity and compliance
with the requirements of Part 382, if the carrier operates aircraft
having 19 or fewer seats.56
Compliance Programs
Under 14 CFR Part 382.63, air carriers are required
to
- establish and implement a written program for
carrying out the requirements of Part 382 by December 4, 1990,
if the carrier operates aircraft having more than 19 seats.57
- comply with Part 382 requirements before their
programs are established.58
- include a schedule for training personnel implementing
Part 382 requirements on policies and procedures.59
- submit their programs for review by December 4,
1990, and implement them immediately upon submission to DOT, if
the carrier is a major or national carrier or shares a designator
code with a major or national carrier.60
- maintain their programs on file, make them available
to DOT upon request, and incorporate changes into their programs
as directed by DOT.61
- establish and maintain a complaint resolution
mechanism that includes the availability of one or more CROs at
each airport the carrier serves.62
- make a CRO available to any person who complains
of an alleged violation of Part 382 during all times the carrier
is operating at the airport. If the CRO is not present in person
at the airport at the time of the complaint, the air carrier shall
make the CRO available via telephone or via teletype service for
the hearing impaired at no cost to the customer.63
- ensure that the CRO is thoroughly familiar with
the requirements of Part 382.64
- ensure that the CRO has authority to make dispositive
resolution of complaints on behalf of the carrier65
as follows:
- If a complaint is made before an action has resulted
in a violation, the CRO will take action or direct other carrier
personnel to take the action necessary to ensure compliance. If
the refusal to comply is based on safety, the CRO may not countermand
a decision of the pilot in command of an aircraft.
- If a complaint is based on an alleged violation
that has already occurred and the CRO agrees that a violation
has occurred, the CRO shall provide to the complainant a written
summary of the facts and the steps the carrier proposes to take,
if any, in response to the violation.
- If the CRO determines that no violation has occurred,
the CRO shall provide to the complainant a written summary of
the facts and the reasons, under Part 382, for the determination.
- The CRO's summary will inform the complainant
of the right to pursue DOT enforcement action. The summary will
be provided to the complainant at the airport or forwarded to
him or her within 10 calendar days of the complaint.66
- establish the following procedures for resolving
written complaints alleging violations of Part 382:67
- Complaints postmarked more than 45 days after
the alleged violation do not require a response.68
- Written complaints shall state whether the complainant
has contacted a CRO, and shall include the CRO's name, date of
contact, and any written summary or response received from the
CRO.69
- Written complaints alleging violations shall receive
a dispositive written response within 30 days of receipt70
as follows:
- If the carrier agrees that a violation has occurred,
the carrier shall provide a written statement setting forth the
summary of the facts and the steps the carrier proposes to take,
if any, in response to the violation.
- If the carrier denies that a violation has occurred,
the response shall include a written summary of the facts and
the reasons, under Part 382, for the determination.
- The written response shall inform the complainant
of his or her right to pursue DOT enforcement action.71
Under 14 CFR Part 382.65, air carriers are obliged
to inform complainants of their right to pursue DOT enforcement
action.72
2.2.3 Department of Transportation Administrative Responsibilities
Under 14 CFR Part 382.63, DOT is required to review
the implementation plan of each air carrier and direct them to amend
their plans as needed to comply with the requirements of Part 382.73
Under 14 CFR Part 382.65, consumers with a complaint
about an ACAA violation may contact the DOT Office of Consumer Affairs
for assistance. Consumers may also file formal complaints for DOT
administrative review in accordance with 14 CFR Part 302.74
Since 1986, no ACAA amendments have been passed, but
Part 382 has been modified several times. Section 3.0 summarizes
recent changes and proposed amendments.
3.0
Recently Approved Changes to the Regulation and Proposed Changes to
the Law
3.1 Final Rule Amending Part
382, Issued March 4, 1998 3.1.1 Clarification
of the Definition of Nondiscrimination
In the final rule issued on March 4, 1998, to the
November 1996 NPRM, DOT establishes the nondiscrimination standard
set forth in the Rehabilitation Act, Section 504, as amended, as
the applicable standard for ACAA implementation and enforcement.
This standard requires that air carriers, in addition to meeting
the specific requirements of Part 382, to modify policies, practices,
or facilities as needed to ensure nondiscrimination, unless making
the modifications would constitute "an undue burden or fundamentally
alter their program."75
DOT's purpose in adding the Section 504 standard to
Part 382.7 was to clarify that air carriers have a duty to proactively
implement modifications in accordance with the general principle
of nondiscrimination, and not limit accommodations to those enumerated
in Part 382.76
3.1.2 Procedures for Providing Seating Accommodations
Under the new amendment to the regulation, air carriers
are required to make the following accommodations
- Any person who self-identifies to the carrier
as having a disability and who cannot readily transfer over a
fixed armrest from an aisle chair must be seated in a row with
a moveable armrest.77
- Personal assistants performing functions for a
passenger that airline personnel are not required to perform shall
be seated next to the person they are assisting.78
- Air carriers shall provide either a bulkhead seat
or another seat as requested by passengers traveling with service
animals or passengers having a fused or immobilized leg;79
- Air carriers that provide advance seat assignments
shall use either a "seat blocking," a "designated priority seating,"
or some other mechanism approved by DOT to comply with seating
accommodation requirements.80
3.1.3 In-Cabin Stowage of Collapsible Electric Wheelchairs
Air carriers are required to accept a passenger's
battery-powered wheelchair as checked baggage, subject to requirements
such as timely check-in and proper labeling, securement and packaging.81
Air carriers shall not drain wheelchair batteries.82
Upon passenger request, collapsible wheelchairs shall be stowed
in the cabin stowage area, subject to the Part 382 stowage guidelines.83
Passengers also may provide written directions to airline personnel
for disassembly and reassembly of their wheelchairs.84
3.1.4 Issues Not Addressed by the Final Rule
In the 1996 NPRM, DOT also sought comment on additional
accommodations for persons with hearing impairments and the provision
of a smoke-free accessible path through airports for persons with
respiratory disabilities. DOT deferred decisions on whether to propose
rules on both of these matters until after further consideration.85
3.2 Proposed
Amendments to the Air Carrier Access Act
3.2.1 Draft Miller Amendment
Case law has established that a plaintiff has a private
right of action for ACAA violations. However, guidelines regarding
damages and legal fees have not been established. Sharon G. Miller,
lead attorney in a recent ACAA case,86 has proposed the
following amendments to codify plaintiffs' standing and the terms
of a private right of action:
- persons filing lawsuits pursuant to ACAA violations
should have the same private right of action and private remedies
as persons filing lawsuits regarding any other civil rights statutes;
- public remedies pursuant to violations of the
ACAA should be assessed in the same amounts as violations of other
civil rights statutes ($50,000 for first violation and $100,000
each for subsequent violations, with each discriminatory act counted
as a violation);
- each airline should be required to forward copies
of written complaints and its written summaries of oral complaints
relating to disability to DOT within 30 days of receipt; and
- DOT should be required to investigate individual
complaints against airlines, determine whether a violation has
occurred, and penalize the airlines for each occurrence of an
ACAA violation.87
3.2.2 Inclusion of Code-Sharing Foreign Air Carriers
The number of Americans with disabilities who travel
internationally is increasing. Because ACAA applies only to U.S.
domestic carriers, passengers on international flights of foreign
air carriers operating within the United States often experience
discrimination in the form of inaccessible facilities and lack of
reasonable accommodations such as wheelchair assistance. Although
a general prohibition against discrimination applies to foreign
carriers under the FA Act, DOT has applied it to only two cases
of discrimination involving a disability issue.88 The
economic advantages to foreign carriers operating in the U.S. market
and using U.S. airport and air traffic control facilities are clear.
Those advantages are further enhanced when foreign carriers enter
into code-sharing arrangements with U.S. domestic carriers whose
flight networks they share. Foreign carriers operating in the U.S.
market must be required to comply with the same laws as U.S. domestic
carriers in providing air travel services to the American public.
The ACAA should be amended to include foreign carriers within its
scope, and the necessary international agreements should be developed
or revised to reflect these legal obligations.
In light of this background on ACAA's history and
the continuing problems in realizing its goals, Part II begins the
analysis of federal enforcement with a description of its organizational
and functional components at the U.S. Department of Transportation.
PART
II. THE ROLE OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION (DOT)
4.0 Background on DOT Enforcement Philosophy
and Operations
4.1 Regulation of the Aviation Industry and Consumer
Protection
Some history on the federal aviation enforcement function
will aid in understanding the Air Carriers Access Act (ACAA) enforcement
today. Informal complaints alleging ACAA violations are handled
by the Consumer Protection Division within DOT's Office of General
Counsel (OGC). Aviation consumer protection, initially established
by the Civil Aeronautics Board (CAB) during the 1950s, was originally
linked to the economic regulation of the airline industry.
CAB's mission as the agency for the regulation of
aviation industry economic issues, including consumer protection,
grew for two decades. At its peak, the CAB regulatory enforcement
mechanism consisted of more than 100 enforcement and legal staff
in Washington, DC,89 in addition to a national network
of field office auditors.90 By the late 1970s, changes
in the national political climate and fiscal priorities led to the
phase-out of CAB and most of its organizational structure.
4.2 The Transition to Industry Deregulation
The Airline Deregulation Act of 1978 abolished CAB
by calling for the gradual lapsing of its powers to set airline
rates and routes and to exercise antitrust functions by 1984.91
The Deregulation Act also called for the elimination of all requirements
of section 404(a), except the provision for "safe and adequate service"
and the general nondiscrimination provision of section 404(b) as
applied to domestic, but not foreign, air transportation by 1982.
By the end of the sunset period in 1984, CAB had been entirely dissolved
except for a few components transferred to DOT. Initially excluded
from those organizations scheduled for transfer to DOT, the Aviation
Consumer Protection Division was transferred into DOT's Office of
Intergovernmental Affairs in 1985, as a result of the Civil Aeronautics
Board Sunset Act of 1984.92 The Sunset Act amended and
clarified the provisions of the Deregulation Act regarding the transfer
of certain functions to DOT, including the consumer protection function.
The legislation was a reprieve, saving the entire division from
the fate of its parent organization.93
Although the Federal Aviation Act of 1958 (FA Act)
mandated nondiscrimination in air travel,94 the standard
was interpreted in conjunction with the "safe and adequate" service
provision of section 404 (a).95 Nondiscrimination was
understood more as a matter of fair and consistent commercial practices
(e.g., ticketing, pricing) than of equal access to air travel. Enforcement
of this provision did not extend to the protection of civil rights,
though CAB affirmed that instances of race or age discrimination
might come within the scope of section 404 if the alleged discrimination
directly affected the provision of air transportation.96
Not until the enactment of the Rehabilitation Act
in 1973 was the issue of systemic discrimination against persons
with disabilities addressed on a broad scale. Interpretation of
the FA Act's nondiscrimination provision was broadened by the Rehabilitation
Act, which created a stronger basis for legal challenges to discriminatory
practices restricting access to air travel by passengers with disabilities.
With the passage of the Deregulation Act in 1978, however, the nondiscrimination
provision applying to domestic air transportation was abolished,
undercutting the movement toward greater definition of the nondiscrimination
standard.97
To clarify the applicability of the general nondiscrimination
provision to discrimination on the basis of disability, CAB promulgated
Part 382, specifically prohibiting discrimination by certificated
airlines on the basis of disability. Drawing on the Rehabilitation
Act, Part 382 targeted systemic discrimination against air travelers
with disabilities, starting with air carriers receiving federal
assistance. It did so by spelling out the affirmative requirements
of a policy of nondiscrimination and equal access for passengers
with disabilities. The irony is that even as the original Part 382
went into effect in 1982, creating new CAB regulatory enforcement
responsibilities, the Consumer Protection Division was reducing
staff and curtailing operations in response to legislated cutbacks.
4.3 Impact on the DOT Organization
Significantly, Part 382 became effective as the CAB
organization and functions were phasing out. In the eleventh hour
of the CAB phase-out, the Consumer Protection Division got a reprieve
and was transferred to DOT, where it resumed scaled-down operations
with approximately 40 staff members in the Office of Intergovernmental
Affairs.98 In 1995, the staff was reduced again and transferred
to OGC as a separate division under the Assistant General Counsel
for Aviation Enforcement and Proceedings.99
The scope of post-CAB consumer protection responsibility
includes monitoring all categories of incoming aviation consumer
complaints and working directly with the airlines to improve their
service and compliance with commercial regulations. ACAA compliance
monitoring is actually a very small subset of the larger aviation
consumer protection function as it has evolved. The Deregulation
Act shifted the government's role in the economics of aviation from
strict control of competition and fare discounting to reliance on
competitive market forces to promote both increased consumer choices
and the financial viability of the industry. Yet as the emphasis
on regulation waned, a new emphasis on the protection of consumer's
civil rights emerged. CAB's dismantling weakened the role of government
regulators just as new regulations having a different objective
were being created. In a new era of deregulation, the scaled-down
Consumer Protection Division became responsible for protecting consumer
economic interests without imposing burdensome compliance requirements
and for ensuring that aviation consumers were not denied their civil
rights under Part 382.
4.4 Consumer Protection in a Postregulation Environment
Deregulation brought about a new approach to consumer
protection. With far fewer resources at its disposal, DOT adopted
a nonadversarial approach as more economically feasible and in keeping
with the philosophy of deregulation. Consumer complaints were no
longer routinely investigated on a case-by-case basis, and investigation
was largely replaced by complaint monitoring.100 With
a staff of seven including administrative staff, Consumer Protection
interfaces regularly with airline representatives on all consumer
issues, including complaints and compliance with non-safety regulations.101
The actual resource level dedicated to handling all informal ACAA
complaints is currently estimated at less than one full-time equivalent
(FTE) per year.102 Compliance monitoring activities generally
have been scaled back in number and scope such that proactive monitoring
of ACAA compliance is both inadequate and inconsistent.
4.5 Civil Rights Enforcement as a Function of Consumer
Protection
The sweeping changes to consumer protection following
the Deregulation Act affected DOT's approach to ACAA enforcement
in three ways. First, the dismantling of the complaint investigation
mechanism has meant fewer resources for follow-up on the complaints
of persons with disabilities alleging discrimination. Like most
complaints received by the Consumer Protection Division, informal
ACAA complaints are usually not investigated on a case-by-case basis,
although they are subject to a higher standard of review. Second,
airline compliance monitoring became very limited in scope, in keeping
with deregulation.
Finally, the filing of formal ACAA complaints seeking
enforcement action has not been encouraged as it is in other agencies
having civil rights enforcement responsibilities. All formal complaints
by private individuals, as well as formal complaints DOT files on
the basis of pattern and practice violations, are investigated by
the staff of the Assistant General Counsel for Aviation Enforcement
and Proceedings. Of the seven lawyers on staff (one of whom is part-time),
two handle ACAA issues along with other matters.103 Yet
since 1990, startlingly few formal complaints have been filed, and
the majority of these have been dismissed. The analysis below will
address some of the features of both the informal and the formal
complaint mechanisms that contribute to their limited role in ACAA
enforcement. The following section briefly describes the functions
performed by each organizational component involved in ACAA implementation
and enforcement.
5.0
DOT Organizational Components Involved in ACAA Enforcement
Figure 1 identifies the ACAA/Part 382 implementation
and enforcement functions carried out by DOT. Figure 2 shows DOT's
organizational plan correlating the implementation and enforcement
functions with the responsible organizations shown in bold. The
Secretary of Transportation is ultimately responsible for Part 382
enforcement. Under the Secretary, OGC performs most of the ACAA
enforcement activity, with some implementation responsibilities
performed by other organizations. The overview of roles presented
in this section will be followed by a more detailed description
and analysis in sections 6.1 through 6.7.
5.1 Office of General Counsel
OGC oversees and ensures integration of ACAA implementation
and enforcement activities carried out by the Assistant General
Counsel for Regulation and Enforcement and the Assistant General
Counsel for Aviation Enforcement and Proceedings. Regulation and
Enforcement develops Part 382, and Aviation Enforcement and Proceedings
monitors and enforces compliance. Communication and coordination
between the two offices are intended to ensure that the regulation
is effective in fulfilling its legislative mandate and is modified
as needed in response to stakeholders' concerns.
5.2 Regulation and Enforcement
The Office of Regulation and Enforcement manages the
standard and negotiated rulemaking processes. It acts as intermediary
among the ACAA stakeholder groups in developing a regulation satisfying
the goals of nondiscrimination and access to air travel, in accordance
with applicable legal standards (e.g., reasonable accommodation).
5.3 Aviation Enforcement and Proceedings
The Office of Aviation Enforcement and Proceedings
is responsible for activities relating to the enforcement of aviation
economic laws under DOT's jurisdiction.104 Consumer protection
and legal support on aviation economic licensing matters are its
two main spheres of responsibility. ACAA enforcement constitutes
a very small subset of its consumer protection responsibilities,
which include
- unfair and deceptive practices;
- unfair competition by air carriers and travel
agents;
- deceptive advertising;
- denied boarding compensation;
- violations of rules pertaining to discrimination
against air travelers on the basis of race, ethnicity, national
origin, age, religion, gender, disability, and so forth;
- violations of rules pertaining to ticket refunds;
- violations of rules pertaining to lost baggage
liability;
- violations of public charter rules; and
- violations of restrictions on ticket sales and
service to countries posing security threats.105
The Enforcement Office handles formal complaints alleging
any of the above infractions that may result in enforcement action.106
Figure
1.
U.S. Department of Transportation Air Carrier Access
Act
Implementation and Enforcement Functions
(1) Chief executive enforcement authority
(2) Rulemaking process and regulatory negotiations
(3) Development and dissemination of public information
(4) Guidance and technical assistance to the aviation industry
(5) Reviews and compliance monitoring
(6) Informal consumer complaint handling
(7) Formal complaint process handling
(8) Enforcement actions
(9) Maintenance of tracking system for all civil rights complaints
handled within every DOT mode and division
The Enforcement Office's
responsibilities in the area of economic licensing are somewhat
broader. The office provides legal review and investigative support
to authorize all air transportation concerns operating in the United
States and their continuing fitness for service. The Enforcement
Office is public counsel in formal proceedings involving carrier
fitness and selection, and prosecutes to obtain civil penalties
in cases involving fraudulent statements or claims made to the Office
of the Secretary of Transportation (OST) under the Program Fraud
Civil Remedies Act.107
Figure
2. U.S. Department of Transportation Organizational Chart not available.
Most ACAA activity originates
within the Aviation Consumer Protection Division, a subdivision
of Aviation Enforcement and Proceedings. The division's responsibilities
are to
- receive informal complaints from members of the
public regarding aviation consumer issues;
- verify compliance with DOT's consumer protection
requirements;
- provide guidance to the industry and members of
the public on consumer protection matters; and
- make available to the public information on consumer
protection matters.108
Of the division's seven full-time staff (including
clerical), less than one FTE is dedicated to ACAA-related activity.
As mentioned earlier, the current Enforcement Office has fewer than
seven full-time attorneys, two of whom work on ACAA issues part
time. These staffing constraints are part of continuing budget cutbacks
affecting OGC's operations at every level.
For example, the entire OGC with a staff of about
85 had an annual travel budget of $46,250 in Fiscal Year (FY) 98109
and $30,000 in FY99.110 There has been no training budget
for some time.111 The Office of Aviation Enforcement
and Proceedings comprises less than 20 percent of OGC's entire operation
and competes for funds with six other offices, including the Office
of International Law; the Office of Environmental, Civil Rights,
and General Law; and the Office of Regulation and Enforcement. In
FY97, the Office of Aviation Enforcement and Proceedings spent less
than less $4,000 on all business travel. For each of the past two
years, only $20,000 has been allocated to OGC for subscriptions
and supplies.112
None of the subdivisions within OGC is funded for
any specific compliance or implementation monitoring activities.113
OGC docketing facility, however, has a total annual budget of $800,000
for all expenses related to litigation, rulemaking and DOT certification
activities.114 Salaries are the only budget line items
broken out by subdivision of OGC. Salaries and benefits for the
Enforcement Office (including the Consumer Protection Division)
total over $1.4 million annually.115 The picture emerges
of a small staff having a broad range of responsibilities with little
or no budget authority and consequently few resources (or incentives)
to develop an effective system for monitoring compliance, supporting
implementation, and enforcing the ACAA.
5.4 Office of Environment, Energy, and Safety
DOT's Office of Environment, Energy, and Safety operates
under the Assistant Secretary for Transportation Policy. Although
no official document was available describing the office's general
responsibilities, an interview with staff members provided an overview
of its ACAA implementation responsibilities. To date, these responsibilities
have included review and comment on the initial Part 382 compliance
plans submitted by major and national airlines, development of ACAA
public information pamphlets, and sponsorship of a federal advisory
committee on the feasibility of incorporating accessible lavatories
in single-aisle airplanes with a seating capacity of between 100
and 199 seats.
5.5 Departmental Office of Civil Rights
DOT's Departmental Office on Civil Rights (DOT Civil
Rights) plays no direct role in ACAA enforcement, but does maintain
a website with links to public information on ACAA and Americans
with Disabilities Act (ADA) transportation access provisions. ADA
enforcement is the responsibility of the civil rights offices within
the Federal Transit Administration, Federal Aviation Administration
(FAA) and other modes responsible for regulatory enforcement (see
Figure 1). The DOT Civil Rights website directs persons with disabilities
to contact OGC for complaints against airlines (ACAA enforcement)
and the FAA Office of Civil Rights for complaints against airports
(Section 504 and ADA Title II enforcement).
The relationship between OGC and DOT Civil Rights
is informal. OGC may consult with DOT Civil Rights concerning its
ACAA enforcement cases and gives them advance notice concerning
its enforcement actions.116 OGC has two civil rights
staff attorneys serving as advisors on ACAA and other civil rights
issues and as liaisons with DOT Civil Rights.
Because of the decentralized DOT environment, the
civil rights offices in each mode have developed their own enforcement
philosophies, methods, and priorities. As a step toward a more unified
departmental civil rights policy, DOT Civil Rights is developing
a central database for tracking and analyzing trends among all civil
rights complaints handled anywhere within DOT.117
5.6 Analysis and Recommendations
Finding No. 1: DOT enforces ACAA from a consumer affairs
office, not a civil rights enforcement office.
Recommendation No. 1: DOT should establish a unit for
ACAA civil rights enforcement that is separate from consumer affairs
monitoring.
Such a unit might be located in OGC or DOT Civil Rights.
Congress should appropriate funds for adequate staff and resources
to run the enforcement office effectively.
Finding No. 2: There is little coordination and integration
of activities among the many offices having ACAA implementation
and enforcement responsibilities.
Recommendation No. 2: DOT should develop and carry
out an integrated implementation and enforcement strategy with clearly
defined roles and responsibilities for the various offices involved.
Effective implementation requires a relationship among
compliance monitoring, technical assistance, public information,
and enforcement. The many offices involved in these activities should
develop an overall blueprint for implementing the law, and work
with outside stakeholders to refine the blueprint and see that the
law is implemented effectively.
Finding No. 3: DOT has perpetuated nonaction by taking
away fiscal control from the offices responsible for ACAA enforcement,
removing both the resources and the incentives to effectively perform
their assigned enforcement role.
Recommendation No. 3: DOT must realistically reassess
its fiscal priorities and budget strategy in light of its responsibilities
under the law.
As part of a comprehensive ACAA enforcement strategy,
DOT must identify ways to more effectively use resources. When additional
funds are unavailable, DOT must encourage the offices involved to
collaborate, seek outside resources, share resources internally,
and find alternative ways to meet the objectives of their integrated
enforcement strategy.
6.0
Implementation and Enforcement Functions
6.1
Consumer Information Explaining the Law Unlike
some other disability rights statutes, ACAA contains no statutory
requirements for the development or dissemination of public information
about the rights of people with disabilities under the law and its
regulation. Nonetheless, since the enactment of the law in 1986,
DOT has developed a variety of public information materials related
to ACAA.
6.1.1 Public Information: Print Material
Fly-Rights: A Consumer Guide
to Air Travel--September 1994 (tenth revised edition).
This 58-page brochure explains the rights and responsibilities of
air travelers. Topics include air fares, overbooking, frequent-flyer
programs, and travel scams. The brochure includes two pages on the
ACAA and its regulations.
New Horizons: Information for
the Air Traveler with a Disability--July 1995 (second
edition). This 40-page brochure describes the rights and responsibilities
of air travelers with disabilities under the ACAA. It includes directions
on how to file an informal complaint.
Plane Talk on Passengers with
Disabilities--This one-page fact sheet provides highlights
of the provisions of the ACAA and its regulations.
Air Travel Consumer Report--Published
monthly, this reports presents statistics on airline performance
in baggage handling, oversales and on-time flights. Complaint statistics
are reported for the following categories: customer service, flight
problems (including delays, cancellations, and misconnections),
ticketing/boarding (including "disabled"), baggage, refunds, oversales,
other (including frequent flyer), fares, tours, advertising, smoking,
and credit. ACAA disability complaints are included in this report
subsumed under Category C complaints regarding ticketing/boarding.
6.1.2 Website Information
Information about ACAA and the disability discrimination
complaint process is available on the Internet at www.dot.gov/ost/ogc/subject/consumer/aviation/index.html
(Aviation Consumer Protection Division publication page); www.dot.gov/ost/docr/HOME.HTM
(DOT Civil Rights home page); and www.faa.gov/acr/acrhome.htm
(Federal Aviation Administration Civil Rights Office page).
6.1.3 Available Formats
New Horizons is available on audiotape and
in large print. New Horizons, Fly-Rights, Plane
Talk, and the Air Travel Consumer Report are available
on the websites listed above.
6.1.4 Methods of Dissemination
Copies of New Horizons are usually sent only
upon request. Copies of Fly-Rights are routinely provided
to all consumers who send complaints and inquiries to DOT. Thus,
consumers who send disability complaints are routinely sent a copy
of Fly-Rights but not New Horizons.
The monthly Air Travel Consumer Report is disseminated
by DOT's Public Affairs Office and the Consumer Protection Division.
On the mailing list are approximately 400 individuals, primarily
airline and airport officials, but also academics and consumer organizations.
The Report is provided to the media, which report selected
statistics. Upon request, anyone can be placed on the mailing list.
The mailing list is updated annually, purging names and addresses
that are defunct and people who no longer wish to receive the Report.
Because many publications are available on the Internet, DOT plans
eventually to phase out some of its mailing lists, although the
Consumer Protection Division does not plan to do so.
Airlines use the data in the monthly reports to rate
their performance relative to that at their competitors and to analyze
their industry status in corporate management reports. Airline representatives
review the consumer complaints received by DOT every month for a
quality assurance check on their customer service.
Data from specific complaint areas, such as on-time
performance for specific flights, are also available on the computerized
reservation systems used by airline ticket offices and travel agents
to advise customers.
6.1.5 Analysis and Recommendations
Finding No. 4: DOT has done little to educate people
with disabilities about either their rights under ACAA or how to
exercise them.
Since the inception of ACAA in 1986, DOT has published
only one brochure fully dedicated to explaining the law. There have
been no public service announcements, no videos, no outreach campaigns,
and no grants to nonprofits for public education. In contrast to
the ADA public education materials and programs developed by the
Department of Justice (DOJ) and the Equal Employment Opportunity
Commission (EEOC), DOT has done little to train people with disabilities
about their rights and responsibilities under the law and how to
use them.
Recommendation No. 4: DOT should request that Congress
appropriate funding for a comprehensive ACAA public education effort
geared to informing air travelers with disabilities about their
civil rights.
DOT should seek a budget appropriation to develop
and carry out a strategic ACAA education campaign geared to developing
ACAA awareness among air travelers with disabilities. Many people
with disabilities remain unaware of their rights under ACAA or have
limited information about how it works. DOT should develop a plan
for training adults with disabilities and parents of children with
disabilities about their rights under the law, the obligations of
airlines, and the procedures for carrying out the law.
The plan should include development of regular ACAA
publications and updates of materials for consumers with disabilities.
As regulations change and procedures and practices evolve, DOT should
ensure that its publications reflect current practice. DOT should
also develop a dissemination strategy targeting adults with disabilities
and parents of children with disabilities. Materials should be available
at airports, through the airlines, from disability organizations,
on-line, and in libraries. All materials should be in accessible
formats.
Finding No. 5: DOT has done little to educate the public
about the rights of people with disabilities and ACAA's nondiscrimination
mandate.
Recommendation No. 5: DOT should request that Congress
appropriate funds for a general public education campaign on the
ACAA's nondiscrimination mandate.
Public awareness of disability rights laws is generally
low, particularly as it relates to air travel. Public education
campaigns can be most effective in promoting changed attitudes in
relation to important social justice issues, such as disability
rights.
Finding No. 6: The disability community has yet to
be viewed as a market to be sought by the airlines industry.
Private industry always seeks new markets to enhance
competitive advantages. People with disabilities and their families
offer a potentially lucrative market for air carriers. However,
uneven ACAA compliance would suggest that they are not yet viewed
in this manner.
Recommendation No. 6(a): DOT should develop an explicit
category for tracking disability complaints in the consumer complaint
database and should publish the statistics monthly in the Air
Travel Consumer Report.
Currently, data about disability complaints are reported
as a subcategory of ticketing/boarding. This categorization provides
no information for assessing the airlines' performance regarding
disability issues. Airline customers who have access to on-time
performance statistics can use the information in deciding which
airlines to patronize. Creating a distinct category for disability
complaints would provide an opportunity for people with disabilities,
federal officials, advocates, and researchers to monitor airline
performance in serving customers with disabilities. Disability organizations
could widely disseminate such information for consumers with disabilities
to use in determining where to take their air travel business.
Recommendation No. 6(b): DOT should ensure that disability
community organizations and researchers with an interest in disability
policy are part of the target audience for monthly dissemination
of the Air Travel Consumer Report.
Recommendation No. 6(c): Federal officials overseeing
ACAA enforcement should develop a strategy for using these statistics
to hold airlines accountable for their performance.
6.2
General Guidance to the Aviation Industry Education
and technical assistance to industry in implementing a regulation
is an important component of a successful enforcement strategy.
DOT has several approaches to providing general guidance and technical
assistance to the aviation industry. This section describes each
of these approaches, NCD's findings regarding how they have been
carried out, and recommendations.
6.2.1 Letters to the Airline Industry
DOT periodically sends letters to the airlines and
others interested in the aviation industry about rules concerning
passengers with disabilities. NCD's research team was given about
a dozen letters sent between 1988 and 1997. Although the present
Part 382 did not become effective until 1990, the requirements of
the old Part 382 were in effect. The ACAA-related letters are summarized
briefly below, as they have been a major avenue for DOT in providing
compliance guidance to the industry.
April 25, 1990--Immediately
after Part 382 went into effect in April 1990, DOT sent copies of
the rule to the major U.S. carriers with a letter notifying them
to submit their required written compliance plans.118
They were also notified to implement a disability complaint resolution
mechanism, designate their complaint resolution officers (CROs),
and provide DOT with their names by June 4, 1990.119
November 29, 1990--DOT sent
a second letter advising airline executives of "a clear and troubling
trend" of "numerous complaints stress[ing] that many airline employees
do not even know that the new rule exists!"120 The letter
also criticized the insufficiency of many airline responses to disability
complaints that neither addressed the specific complaint nor stated
what corrective action had been or would be taken. Finally, the
letter stated that DOT would "refer to the Enforcement Office any
matter which appears to warrant enforcement action because of a
lack of employee awareness of the requirements of Part 382."121
December 20, 1991--DOT sent
a letter to airline executives clarifying Part 382 boarding assistance
requirements and explaining that it was imperative for airlines
to inform passengers about accessibility limitations on all legs
of their journeys.122 DOT outlined the standard industry
method for coding a need for special assistance into the passenger's
reservation. DOT stressed the importance of training airline reservationists
and travel agents to be aware of disability issues when making or
checking existing reservations, and to identify potential accessibility
conflicts. This letter was sent to all major and national U.S. airlines,
encouraging them to work together and to avoid enforcement action
through voluntary action. DOT also sent the letter to the major
travel agency associations with a request to distribute it to their
members.
April 2, 1992--In a letter
sent to all Air Travel Consumer Report recipients, DOT emphasized
the need for greater cooperation between airline and airport personnel
to effect ACAA compliance in two key areas: providing lift devices
and improving communication among airline and airport personnel
regarding the special needs of passengers.123 The availability
of a free booklet and audio cassette for air travelers with disabilities
was announced, and carriers were reminded that new aircraft delivered
as of April 1992 must meet Part 382 accessibility standards.
March 16, 1993 and April 5, 1993--In
two different letters, DOT notified all airlines and Aviation
Consumer Report recipients of required cabin interior accessibility
features for various types of aircraft.124 Enclosed with
the second letter was a booklet on accessible lavatory design for
two aisle aircraft developed by an ATA-sponsored ad hoc working
group. The letter emphasized that compliance with Part 382 accessibility
standards is mandatory.125
July 15, 1993--This communication
was sent to airline officials as a cover letter with copies of two
recent letters to industry representatives discussing the interpretation
and proper application of Part 382 guidelines concerning passengers
with communicable diseases.126
October 7, 1993--DOT solicited
recipients of the Air Travel Consumer Report for input on
the NPRM concerning the design of lifts, ramps, and other suitable
boarding devices, as well as a workable division of responsibility
between airlines and airports in providing this equipment.127
During 1994 and 1995, apparently no industry letters
addressing Part 382 issues were sent.
November 4, 1996--DOT sent
the 1996 NPRM dealing with communicable diseases, seating accommodations,
wheelchair stowage, and airport accessibility standards and accommodations
with an industry letter to recipients of the Aviation Consumer
Report and requested comments.128
May 23, 1997--This letter
was sent to all major and national carriers, air transport organizations
and "certain disability organizations" with a copy of Part 382 and
the 1996 amendments.129 Recipients were reminded that
Part 382 can be downloaded from the Internet and must be made available
to consumers at all airports at all times.
August 2, 1998--This letter
was sent to the 10 largest U.S. certificated airlines, explaining
DOT's policy under Part 382 on accommodating air travelers with
documented severe peanut allergies. The letter explained the reasoning
of the Office of Aviation Enforcement and Proceedings that creating
peanut-free buffer zones in response to the request of a traveler
with a medically documented peanut allergy was a reasonable accommodation
and did not constitute an undue burden on air carriers.130
6.2.2 Consumer Complaint Review Meetings
Each month, DOT staff meets with representatives from
the individual major airlines to review consumer complaints received
by DOT during the previous month. A summary of their complaint statistics
is published in the Air Travel Consumer Report. Airline representatives
willingly participate in these meetings because complaint levels
are considered such an important measure of airline performance.
The meetings aim to identify corrective action, discuss any problem
patterns, and improve the airline's overall customer service record.
Consumer complaints received by DOT, not by the airline
itself,131 are reviewed as part of the exercise. As currently
conducted, these meetings do not address the specific issues of
airline compliance with Part 382 arising from their own complaint
data.
6.2.3 General Compliance Review Meetings
In 1995, DOT began a series of airline reviews as
part of the Travelers First initiative. Since 1995, DOT has visited
the headquarters offices of 10 major U.S. airlines and 15 smaller
carriers as part of this initiative.132 The program was
designed to promote improvement in the quality of service to the
public by the aviation industry. DOT also wanted the program to
promote its new image as a consumer protection "facilitator" with
the airlines. By approaching the compliance reviews in the spirit
of information-sharing rather than investigation, DOT began its
move away from a regulatory and toward a more "programmatic" mode
of operation.133 Travelers First is still in effect and
includes a general review of consumer protection operations for
all the major airlines.
DOT reports that it has emphasized voluntary compliance
with the law. During each Travelers First review, DOT representatives
met with airline officials and staff responsible for general consumer
protection. The 10 major air carriers received a briefing on Part
382 requirements, but no inspections were conducted.134
DOT staff examined the Part 382 complaint-handling processes and
training programs for 15 regional and large commuter air carriers,
and also may have randomly inspected their aircraft cabins and equipment
for Part 382 compliance (movable armrests, availability of wheelchairs,
onboard wheelchairs, etc.). During the reviews, ACAA complaint data
typically were not reviewed.135 DOT is currently planning
action to require airlines to certify the extent to which all their
aircraft meet Part 382's physical accessibility requirements.136
An area not currently within the scope of Travelers
First or any other ACAA monitoring activity is compliance with the
requirements for accessible lavatories in newly delivered double-aisle
aircraft. OGC reports that it is currently considering the advisability
and feasibility of working with FAA to inspect aircraft for compliance
with all physical specifications required by ACAA regulations.
Each Travelers First review concludes with an information-sharing
session on the various implementation strategies used by airlines
in meeting Part 382 requirements. Following each airline visit,
DOT sends a follow-up letter listing improvement/compliance recommendations
and requests a response to the recommendations. It is not clear
how many airlines sent responses. Researchers were not provided
with samples of the follow-up letters or airline responses.
Airlines found to be noncompliant during the reviews
are warned about possible legal consequences, and DOT reports that
follow-up visits have been conducted with four of those airlines
to date. In several instances, carriers have been required to change
policies and procedures to modify aircraft to ensure compliance
with the physical accessibility requirements of Part 382.137
6.2.4 DOT Presentations at Industrywide Conferences
DOT regularly gives presentations on Part 382 requirements
and implementation issues at annual conferences sponsored by the
Air Transport Association and the Paralyzed Veterans of America.
DOT has presented at a number of Access to the Skies conferences,
which provide a forum for the aviation industry, government, and
disability group representatives to exchange information on accessibility
problems for air travelers with disabilities.
6.2.5 Analysis and Recommendations
Finding No. 7: There appears to be little or no DOT
follow-up to ensure compliance with DOT directives and guidance.
The guidance letters sent since 1990 have raised a
number of compliance issues and concerns. However, there appears
to be virtually no follow-up or resolution of concerns raised. For
example, DOT's industry letter dated November 1990 expressed great
concern about the many complaints pointing to a lack of airline
personnel training. The letter threatened that enforcement action
would be warranted if complaints continued.
After raising this concern in 1990, DOT did not mention
it again, or any action it had taken to encourage compliance. Yet
DOT's complaint files and records provide many current examples
indicating inadequate training of airline personnel. The threat
of enforcement action has also been empty. Of the five penalties
issued, only one even mentions training as a factor that directly
relates to the many violations.
Recommendation No. 7: DOT should use industry letters
to report on both problem areas and the actions taken by DOT and
the airlines to correct them.
Industry letters can be another forum for communicating
about ACAA problem-solving initiatives and inviting airlines to
communicate the solutions they are developing internally.
Finding No. 8: The monthly reviews of airline consumer
complaints are underused as a resource for improving ACAA compliance.
Currently, a discussion of specific disability issues
that appear in the airlines' own ACAA complaint data is not part
of the monthly review of consumer complaints. There is no mechanism
to ensure that recurring complaints and problem facilities identified
in the airlines' complaint data are regularly addressed.
Recommendation No. 8: Once a quarter, DOT should use
the monthly airline consumer complaint review meetings to focus
on ACAA complaints.
During the quarterly meetings, airlines should be
prepared to review their own disability complaint data with
DOT, their own trend analysis of these data, and their own "get-well
plan" (i.e., action plan for correcting any identified problems).
Finding No. 9: DOT does not provide incentives to encourage
airline ACAA compliance.
Having dropped the regulatory role, DOT currently
uses the Travelers First program as a form of compliance monitoring.
Yet Travelers First is not so much a tool for compliance monitoring
as for DOT collaboration with airlines to encourage overall performance
improvement. It assumes a willingness to improve performance, an
assumption that does not always apply to ACAA compliance. Other
alternatives must be explored.
Recommendation No. 9: DOT should reward the airlines
that are best in ACAA compliance and complaint resolution.
Airlines that are doing especially well in a particular
area of ACAA compliance or complaint resolution should be given
special recognition. Public recognition (free publicity) for a job
well done in making travel accessible for people with disabilities
is one of the most powerful tools available to encourage compliance.
Finding No. 10: The failure to include any regular
review of ACAA complaints received directly by the airlines impairs
effective monitoring.
The failure to include any regular review of ACAA
complaints received directly by the airlines has many and varied
implications for the implementation of ACAA. Because the vast majority
of ACAA complaints go directly to the airlines, a regular examination
of these data to determine where the real compliance problems are
for each airline and a comparison of their statistics over time
to measure improvements in performance are essential.
Recommendation No. 10: DOT should conduct routine follow-up
reviews.
Airlines demonstrating borderline compliance or noncompliance
should not only expect DOT check-ups but also should be required
to produce evidence periodically that their compliance efforts are
resulting in improvement.
Finding No. 11: DOT appears to take no initiative to
provide appropriate, targeted assistance when airline problems are
identified.
Recommendation No. 11: DOT should assist airlines in
developing corrective action plans and compliance improvement objectives.
Finding No. 12: DOT does not appear to have a mechanism
for facilitating intermodal and interdepartmental or external collaboration
to meet ACAA enforcement responsibilities.
For example, no monitoring of any kind is under way
in the delivery of new (double- aisle) aircraft with accessible
lavatories.138 While DOT claims that no complaints based
on a failure to comply with lavatory accessibility requirements
have been received to date,139 noncompliance will have
long-term consequences for a many people with disabilities. DOT
must be more proactive, despite resource limitations, in meeting
its civil rights enforcement responsibilities. It must do some creative
problem-solving and activate a mechanism for better use of existing
resources. Redistributing resources and sharing responsibility within
the agency, as well as aligning with outside resources and expertise
may be necessary for DOT to ensure aircraft design monitoring is
carried out and ACAA compliance achieved.140
Recommendation No. 12(a): DOT should require collaboration
between OST departments having official ACAA enforcement responsibility
and FAA departments having operational responsibilities directly
affected by ACAA requirements.
For example, FAA provides review and final approval
for all airline flight attendant training programs. DOT should work
with FAA to identify any training programs for aviation industry
personnel who interface with air travelers within FAA's purview.
DOT should collaborate with FAA to expand FAA's role to ensure ACAA
requirements are a required component of every applicable training
program.
Another example is that FAA inspectors must review
and approve all aircraft designs to ensure compliance with FAA safety
regulations. No aircraft can be built without an FAA-approved specification.
Including ACAA access requirements within the scope of FAA's design
inspection is an economical alternative that can significantly strengthen
enforcement; it eliminates the need for multiple inspections of
the same specification and makes design approval contingent upon
compliance with the full spectrum of safety and access requirements.
OGC is currently considering the feasibility of working with FAA
on new aircraft inspections to ensure compliance with ACAA physical
accessibility requirements.
Recommendation No. 12(b): The Rehabilitation Act should
be amended to expand the authority of the Access Board.
The Access Board is a small independent federal agency
that develops accessibility standards and guidelines. It developed
ADA accessibility guidelines that were subsequently adopted by DOJ
as part of the implementing regulations for the law. The Access
Board's expertise in accessibility and standards development uniquely
qualifies it for this role in relation to ACAA. This role parallels
the one the Access Board plays for ADA in relation to DOJ.
Access Board responsibilities should include the development
of airplane access standards and guidelines (including restrooms,
deplaning equipment, and enplaning equipment) that should be incorporated
into ACAA regulations. Congress should appropriate adequate funds
to enable the Access Board to carry out this function. The Access
Board should work in conjunction with FAA, other divisions of DOT,
and disability community stakeholders as they carry out ACAA compliance
activities. The participation of FAA in this process is critical
because it is already involved in the inspection and approval of
aircraft designs.
Recommendation No. 12(c): DOT should anticipate where
industry noncompliance may be most pervasive and develop appropriate
countermeasures and incentives.
DOT should notify airlines and aircraft manufacturers
about the accessibility standards their aircraft must meet and institute
periodic inspections to monitor compliance. Airlines with a demonstrated
record of compliance should be given special recognition in the
Air Travel Consumer Reports. Where noncompliance is found,
enforcement action should be initiated immediately to obtain voluntary
compliance; civil penalties should be levied whenever a pattern
of inconsistency in meeting accessibility standards is found. Severe
penalties should be imposed for every instance in which the requirement
for accessible lavatories in double aisle aircraft ordered after
April 1990 or delivered after April 1992 has not been met.
6.3 Technical Assistance to the Aviation
Industry DOT has not had a formal technical
assistance program to support Part 382 implementation. Aside from
notifying airline officials about technical guidance available through
external sources (e.g., ATA's design specification for accessible
lavatories in two-aisle aircraft) and occasionally sending an implementation
guidance letter, DOT technical assistance has consisted primarily
of giving informal guidance to airlines, passengers, and disability
rights organizations in interpreting and implementing ACAA regulations.141
Regarding specific technical issues such as transmitting
a passengers' special seating assignment information between airlines,
DOT has sent an industry letter detailing a workable implementation
approach. Researchers did not, however, encounter any materials
indicating ongoing involvement in resolving specific problems involving
technical issues (e.g., lifting/transferring passengers in wheelchairs,
lavatory design for single-aisle aircraft).
Another issue indirectly affecting technical implementation
of ACAA requirements is the dual accessibility standards (those
applying to ADA Titles II and III) called for under Part 382. Although
guidance for meeting both ADA standards is available through DOJ
and DOT has distinguished the responsibilities of airlines and airports
in Part 382, some confusion remains about which technical standards
ought to apply (for example, airport operators may choose between
ADA Accessibility Guidelines and the Uniform Federal Accessibility
Standards in meeting certain ACAA accessibility requirements). This
uncertainty is compounded when airlines and airports are required
to share responsibility for meeting certain ACAA accessibility requirements
(e.g., in providing mechanical lift equipment and an accessible
path into an aircraft). Airport operators are held to ADA Title
II's standards of "program accessibility" and "barrier removal,"
while airlines must meet the ADA Title III "reasonable accommodation"
and "readily achievable" standards. These differing legal standards
only add complexity to negotiations between airports and airlines
in jointly developing solutions.
Finally, DOT has made limited efforts to tackle controversial
but major cabin design problems. Under the leadership of the Office
of Environment, Energy, and Safety and the Office of Regulation
and Enforcement, the Aircraft Accessibility Federal Advisory Committee
was formed to develop a workable design for accessible lavatories
in single-aisle aircraft. To that end, the committee of stakeholders
met to address technical issues and to resolve the many conflicting
interests among the participants.
6.3.1 Aircraft Accessibility Federal Advisory Committee
Advisory committee members were representatives from
the airline industry, disability groups, aircraft designers and
manufacturers, and flight attendants. The committee met approximately
eight times over 18 months to develop design options for accessible
lavatories in single-aisle aircraft. Unable to reach consensus,
the committee disbanded in 1996. A major area of disagreement was
whether a curtain-enclosed partition was the only economically and
technically feasible lavatory design option. The committee's final
report, recently made available to the public, can be obtained from
DOT's website ostpxweb.dot.gov.142
6.3.2 Analysis and Recommendations
Finding No. 13: Confusion concerning which standards
apply continues to impede full cooperation between airport operators
and airlines where Part 382 mandates joint action to meet ACAA accessibility
requirements.
Recommendation No. 13: Although DOT issued clarifying
regulations as part of the November 1, 1996, amendments to Part
382 and 49 CFR Part 27, DOT must exercise stronger leadership to
ensure that airports and airlines take joint action, consistent
with the standards that apply to each, to provide an accessible
path through the airport and proper equipment for boarding an aircraft.
Finding No. 14: DOT leadership is needed to find solutions
to ACAA implementation problems and encourage collaborative stakeholder
initiatives.
Recommendation No. 14: DOT must actively encourage
airlines to collaborate with the disability community in developing
solutions to common ACAA implementation problems.
DOT has used the regulatory negotiation process to
address some technical issues in the past with limited success.
DOT should build on its experience with these past negotiations
to address controversial access issues. The most recent advisory
committee on accessible lavatories in single-aisle aircraft failed
because of intransigent conflict among the stakeholders. A relatively
high level of disagreement and controversy among the stakeholders
is a given. It is within DOT's ACAA enforcement mandate to initiate
consensus-based processes and keep participants focused on working
through stalemates to solve the problems. Issues calling for immediate
attention include conflicts between Part 382 requirements and airline
policies that seem to circumvent ACAA requirements (e.g., changes
in airline preboarding practices).
6.4 Informal
Complaints Alleging Potential Violations of 14 CFR Part 382
6.4.1 The Informal Consumer Complaint Process
Under Part 382, consumers should first lodge complaints
about discriminatory treatment with the airline itself through the
airline's CRO. The responsibilities of the CRO are twofold. First,
the CRO is to have the authority to resolve complaints, instructing
other air carrier personnel to take the actions required to ensure
ACAA compliance (except to countermand pilot decisions based on
safety considerations). Second, the CRO makes a written record of
any disability-related consumer complaint and provides to the complainant
a written statement containing a summary of the facts.
If the CRO determines that a potential violation of
the ACAA occurred, the statement provided to the complainant must
include information about what steps the air carrier has taken or
will take in response. If the CRO determines that the actions of
air carrier personnel did not violate the ACAA, the statement must
include the reasons for this determination. The written statement
to the complainant must also "inform the complainant of his or her
right to pursue DOT enforcement action."143 Although
the airline must keep written records, these complaints are considered
informal complaints.
Airline passengers may also contact DOT directly with
a complaint about discriminatory treatment by an air carrier. Complaints
sent directly to DOT are simultaneously logged into the DOT complaint
database and forwarded with a form letter to the particular airline
for action by its consumer affairs division. Thus, some complaints
appear only in the records of the specific air carrier, while other
complaints appear in both the air carrier's database and the complaint
database at DOT. The vast majority of complaints are sent directly
to the airlines, with no copy to DOT.
Disability discrimination complaints sent to DOT are
entered into the same DOT database that stores information on all
categories of aviation consumer complaints, as well as complaints
of discrimination under Title VI or any other civil rights laws.
All these complaints, whether customer service or civil rights in
nature, are considered informal complaints. The information profile
on a disability complaint includes the date received, airline and
flight number, type of disability of the passenger (broken into
eight broad categories), basis of the complaint, identity of the
person filing the complaint (e.g., the passenger, a relative of
the passenger, a lawyer for the complainant, or a congressperson),
date of the potential violation, disposition of the complaint, and
status of the complaint (open or closed). In addition to the profile
in the complaint database, DOT maintains a paper file on the complaint
that includes correspondence about the complaint received by DOT,
DOT letter of notification to the airline, and the airline response
to DOT and to the customer. Files of cases older than 12 months
are purged regularly; only cases determined to be potential enforcement
actions are retained.
DOT receives complaints in the form of phone calls,
letters addressed directly to DOT, and copies of letters addressed
directly to the airline. As the complaints come into DOT, an analyst
reviews them and records them in the complaint database. The hard
copy file may have letters and materials with information from the
complainant and from the airline about actions taken in response
to the complaint. After reviewing the file, the analyst may make
further inquiries of the airline or the complainant and seek to
clarify the pertinent ACAA requirements. Telephone complaints are
usually followed up with a phone call to the complainant telling
him or her to send a written complaint. After the complaint is logged
in, the case is classified as "potential violation" or it is closed,
or both, depending on whether the complaint was originally received
in writing, by telephone, or other means. Complaints by telephone
are generally closed the day they are received. Complaints sent
by letter are coded "potential violation" and sent with a form letter
to the airline requesting that it respond to the complainant and
notify DOT of its actions within 30 days. When DOT receives a copy
of the airline response, the complaint record is typically closed.
DOT follows up with the airline only when the complaint involves
an established policy or procedure that is out of compliance with
ACAA. The vast majority of complaints are not determined to be matters
of policy or procedure.
Even when they receive a finding of potential violation,
individual informal complaints are rarely referred to the Enforcement
Office for investigation. Although the Enforcement Office might
file a formal complaint based on a single complaint that appears
conspicuously egregious and raises issues of general public concern,
no individual informal complaints have been referred for enforcement
since 1990.144 Generally, when an airline accumulates
a significant number of complaints of the same type, indicating
a problem of general public concern, these cases will be forwarded
to the Enforcement Office for further investigation of a possible
pattern and practice violation. The Enforcement Office may then
seek a settlement with the airline or file a formal complaint. Most
ACAA complaints received by DOT are informal, and only 17 formal
complaints alleging an ACAA violation have been fully processed
since 1986. These are discussed in section 6.5 of this report.
6.4.2 Characteristics of Informal Complaints Received
by DOT
Summary data from the complete DOT database made available
to NCD show that complaints involving disability constitute approximately
4.5 percent of all consumer complaints received on the major airlines.
Table 1 shows the total number of consumer complaints in all categories
received for each of 10 major U.S. carriers during the entire ACAA
enforcement period, what percentage of this total were identified
as potential enforcement actions, and of those what percentage were
disability-related.
Between April 1990 and October 1997, DOT received
approximately 1,831 informal disability-related complaints. Of these,
140 appear to be multiple complaints generated from a single "travel
occurrence" involving the same airline, actions, and date of travel.
Although ACAA does not apply to foreign air carriers, 103 (5.6%)
complaints in the database are from foreign carriers. Approximately
80 percent of the complaints involved one of the major U.S. airlines
or their commuter airline affiliate (see Table 2). The remaining
complaints involved smaller air carriers or tour operators.
The DOT database also shows that 72.5 percent of the
complaints are made by letter, with 27.5 percent by telephone. More
than one complainant can be listed for a single complaint. In fact,
some complaints list up to four different complainants; these may
include the traveler with the disability, a relative of the traveler,
a lawyer, a congressperson, or other individual. The person registering
the complaint is most often the passenger with the disability, although
relatives (16 percent of all complainants), congresspersons (6.3
percent), and lawyers (3.2 percent) also appear in the records as
complainants.
Table 3 displays the distribution of complaints against
U.S. air carriers by type of disability, using the categories contained
in the DOT database. DOT coding categories for the type of disability
do not clearly describe the types of disabilities of the complainants,
as some of the categories refer to conditions while others refer
to assistive devices. It is also not clear how people with multiple
disabilities are categorized by the analysts who create the complaint
record on the basis of the oral or written statement of the complainant.
Approximately 60 percent of the complaints involve a person who
uses a wheelchair, while another 19 percent are from persons classified
as "other handicapped." Nearly 6 percent of the complaints come
from persons with hearing or vision impairments, and 8.7 percent
involve someone who uses oxygen.
The types of actions upon which the complaints are
based are listed in Table 4. Failure to provide assistance is by
far the most common complaint, accounting for 50 percent of the
complaints. Complaints involving the handling of assistive devices
constitute another large category. Approximately 21 percent of the
complaints allege an ACAA violation involving problems with storage,
loss, or damage to an assistive device, delay in returning the device
to the owner; or the insistence upon a liability waiver (not allowed
under ACAA). Although the database does not identify the types of
devices involved in these complaints, a review of selected complaint
files suggests that many of these cases involve wheelchairs. A smaller,
but still significant, number of complaints involve refusal to board
or seat assignment restrictions (the April 1998 NPRM addresses seating
assignment rules).
Of the 1,728 disability-related complaints logged
against U.S. carriers from April 1990 through October 1997, 169
or 9.8 percent were identified as "potential enforcement actions."
In addition, all but 6.5 percent (113) of the complaints were considered
closed cases. A determination of potential violation is made based
on the complainant's statement (written or taken by telephone) and
the airline's written response. DOT usually does not independently
investigate these complaints by interviewing the major parties to
the complaint or contacting other persons who may have witnessed
the actions that form the basis of the complaint.
In summary, most of the complaints filed with DOT
involve experiences with the major U.S. air carriers. This situation
is not illogical because these carriers account for more flights
and passengers overall. However, the concentration of most of the
complaints among a small number of large carriers suggests that
better oversight and increased support and consultation with a few
airlines could produce a noticeable improvement in the air travel
experience of people with disabilities. The DOT database also indicates
that people who use wheelchairs continue to experience problems--in
the airport, in boarding and deplaning, the planes, and in the storage
and retrieval of their wheelchairs. DOT should be able to monitor
and address these problems through its database and compliance processes.
6.4.3 Complaint Data from the Airlines: A Different
Picture
The complaints received by DOT constitute only a small
proportion of all the complaints directly lodged with the airlines.
Each airline has its own complaint handling system for recording
complaints received and the actions taken. This record is required
in Part 382, even though DOT has to date conducted no formal, systematic
review of airline complaint records to date. Researchers learned
of two instances in which these airline records had been obtained
as part of discovery for lawsuits brought under ACAA by air travelers
with disabilities. In both cases, the number of complaints filed
directly with the airline far exceeded the number of complaints
filed with DOT about that same airline.
The complaint log from one of these lawsuits was made
available for our analysis. Table 5 summarizes this log, showing
complaints received from January 1993 through November 1996 by a
major U.S. carrier. More detail about the content of those complaints
is given in Appendix B. Analysis of the log is useful not only because
it provides a more accurate picture of the volume of disability
complaints, but because it provides more detail about the types
of actions that are the bases of complaints.
A total of 5,072 disability-related complaints were
logged with this air carrier during a 47-month period. Approximately
38 percent of the complaints (1,942) were categorized by the airline
as involving damaged or delayed wheelchairs. Nearly 25 percent of
the complaints (1,258) were classified as failures on the part of
the airline's customer service agents to provide sufficient or appropriate
assistance to passengers with disabilities. Over 10 percent of the
complaints were logged as problems with seating, particularly with
requests for the bulkhead.
In analyzing the specific complaints, researchers
found that a single complaint sometimes described several problems.
Complaints about "delayed wheelchairs" also appeared in other categories
such as "disabled passenger seating problem" or "disabled passenger
left unattended." To get a better sense of the true frequency of
certain kinds of complaints, researchers tabulated each problem
reported regardless of the main category into which the overall
complaint had been logged. These results are shown in Table 6.
These complaints indicate significant problems with
the level of training and knowledge of airline personnel about their
obligations under ACAA, assisting someone with a disability, reassembling
wheelchairs, and helping passengers with other assistive devices.
It is also noteworthy that the complaints record insensitive, rude,
and irresponsible treatment of passengers with disabilities. For
example, there are 65 complaints of a passenger being left unattended
in a manner that violated the requirement to provide assistance
and that may have compromised the safety of the passenger.
To provide additional insight into the bases of ACAA
disability complaints, researchers extracted the complaint details
from the hard copy files for a small set of complaints filed with
DOT. This information is located in Appendix C. The descriptions
of the airlines' actions are very similar to the kinds of actions
described in the individual airline database summarized in Table
5. Although the cases profiled here are not from a random sample
of cases, they do present typical examples of the relationship between
the nature of the complaints and their resolution.
For many of these cases, even cases that have been
closed, no specific determination by DOT is noted. Apologies or
compensatory vouchers by the airline appear to be treated as satisfactory
responses in most cases. In a couple of instances, complaints have
been marked as a "potential enforcement action," while complaints
alleging similar violations are coded "potential violations." Even
complaints marked as "potential enforcement actions" were not necessarily
forwarded to the Enforcement Office for investigation. Researchers
were told that the "potential enforcement action" notation flag
problems that may become the basis for a pattern or practice enforcement
action in the future.145
Table
1. Summary of ACAA Informal Consumer Complaints not available
Table 2. ACAA Informal Complaints Against Major U.S. Carriers
Received by DOT Aviation Consumer Protection Division
April 5, 1990-October 23, 1997
Air Carrier |
% of
Informal
ACAA
Complaints |
Ranking
based on
share of
customer
base* |
American Airlines
(includes American Eagle) |
15.5 |
3 |
United Airlines
(includes United Express) |
14.9 |
2 |
US Airways/USAIR
(includes US Air Express) |
10.7 |
4 |
Delta Airlines |
10.0 |
1 |
Northwest Airlines
(includes Northwest Airlink) |
9.8 |
6 |
Continental Airlines
(includes Continental Express) |
7.6 |
7 |
Trans World Airlines
(includes Trans World Express) |
6.4 |
8 |
America West Airlines |
2.6 |
6 |
Southwest Airlines |
1.9 |
5 |
Alaska Airlines |
1.4 |
10 |
Total |
80.8
(N=1476) |
|
*Ranking based on total number of passengers served
in 1996 as reported in the Air Transport Association 1997 Annual
Report, p. 16. The major carriers listed above carry an estimated
92 percent of all commercial air traffic.
Table
3. Informal ACAA Complaints: Disability Categories (1)
DOT Disability Category (2)
|
% of
Complaints |
Other wheelchair |
59.8 |
Other handicapped |
18.7 |
Oxygen |
8.7 |
Vision impaired |
3.2 |
Hearing impaired |
2.0 |
Paraplegic |
2.0 |
Mentally impaired |
1.9 |
Quadriplegic |
1.4 |
Vision/hearing impaired |
0.7 |
Other assistive device |
0.7 |
Communicable disease |
0.6 |
Stretcher |
0.4 |
Total |
100.1
(N=1728) |
(1) Based upon data from U.S. carriers
only.
(2) The categories are those used in the DOT complaint
database.
Percentages are rounded to the nearest tenth.
Table
4. ACAA Informal Complaints: Types of Disability Complaints Received
(1)
DOT Complaint Types (2) |
% of
Complaints |
Failure to provide assistance (3) |
50.0 |
Assistive device; storage; loss/damage/ delay;
Liability waiver |
21.1 |
Other |
8.5 |
Seat assignment restriction |
7.9 |
Refusal to board passenger |
5.8 |
Aircraft not accessible |
2.0 |
Unsatisfactory information |
1.2 |
Airport not accessible |
1.1 |
Service animal problem |
0.9 |
Refusal to board without attendant |
0.8 |
Advance notice dispute |
0.3 |
Ticket not received; ticket/reservation incorrect
|
0.3 |
Refusal to accept other airline ticket/ Required
to repurchase lost ticket |
0.1 |
Unable to contact |
0.1 |
Total |
100.1
(N=1728) |
(1) Based upon data from U.S. carriers
only.
(2) The complaint types are those used in the DOT complaint
database.
Percentages are rounded to the nearest tenth.
(3) "Failure to provide assistance" includes not providing
a wheelchair or assistance in getting to a restroom, or not communicating
information in a manner appropriate to a person's disability.
Table
5. Complaints Filed Directly with a Major Air Carrier
January, 1993-November, 1996 1
CODE |
CATEGORY TITLE |
Number of
Complaints |
DDWC |
Delayed wheelchair |
1871 |
DCSAH |
Disabled pax assistance by CSA |
1258 |
DSEAT |
Disabled pax seating problems |
524 |
DIFAT |
Lack of F/A assistance with
disabled pax |
322 |
DCONT |
Contract employee complaint |
305 |
DMISC |
Disabled miscellaneous |
225 |
DRR |
Lack of res. assistance with
disabled pax |
123 |
DPRO |
Agent unfamiliar with disabled
procedures |
79 |
DAF |
Disabled dissatisfied with
aircraft facilities |
74 |
DFAC |
Disabled facility complaint |
72 |
DDDWC |
Damaged wheelchair |
71 |
DUNAT |
Disabled PAX left unattended |
65 |
DPB |
Disabled PAX preboarding |
63 |
DTIPS |
Disabled PAX solicitation of tips |
20 |
|
Total Complaints |
|
1The complaints summarized in this table
are from the records of a single airline. The major category headings
are listed verbatim from the airline's file. Some of these complaints
may have been sent to the Department of Transportation as well.
The criteria for defining each category are unclear, as similar
types of complaints often were found under several different categories.
PAX = passenger
CSA = customer service agent
F/A = flight attendant
Table
6. Complaints Filed Directly with a Major Air Carrier
January 1993-November 1996
Rank Ordering of Recurring Specific Complaints*
Recurring Complaints |
Number of
Complaints |
Denied/delayed/challenged wheelchair use |
2395 |
Refused/challenged need for assistance |
354 |
Mistreated/rude/incompetent staff |
229 |
Refused bulkhead seating |
218 |
Left abandoned/unattended |
202 |
No preboarding/boarding assistance |
162 |
Missed connection/misboarded/wrong gate |
151 |
Oxygen mishandling/overcharge/no delivery |
143 |
Reservation assistance complaints |
123 |
Injury during transfer/transport |
95 |
Damaged wheelchair |
83 |
Seated at rear of plane |
73 |
Disabled in restricted (middle) seat |
42 |
Solicitation of tips |
41 |
No movable armrests |
40 |
Forced to check assistive device before gate |
39 |
Separated from companion |
37 |
Nondisabled seated in bulkhead |
36 |
No lift/jetway |
28 |
Closed captioning complaints |
26 |
Refused assistance to transfer/transport |
25 |
Pre-assigned seat request denied |
22 |
Staff incompetent/untrained |
19 |
Nondisabled complaints of disabled as
obstruction/safety hazard in aisle seats |
17 |
Non-English speaking |
15 |
ACAA violation complaints |
15 |
Safety complaints/safety info transmission |
13 |
No TTY |
12 |
Restrooms inaccessible |
11 |
Total |
4666
|
* The complaints summarized in this table are from the records of
a single airline. Specific complaints with fewer than 10 occurrences
are not included. 6.4.4
Analysis and Recommendations
Finding No. 15: The informal complaint handling process
does not result in consistent enforcement and remediation to individuals
whose civil rights were abridged in violation of ACAA.
The manner in which DOT handles ACAA complaints raises
the issue of whether it is appropriate to treat complaints of civil
rights violations as informal complaints. The process and the database
used by DOT are much the same as those used for consumer complaints
that do not involve violations of an individual's legally protected
civil rights or, in some cases, any law at all. When draft ACAA
regulations were issued, Eastern Paralyzed Veterans of America brought
this issue to the attention of DOT. However, DOT nonetheless decided
to structure the primary complaint process as an informal one. In
its response to the comments received about the NPRM of June 22,
1988, DOT describes the role of the Consumer Protection Division
as follows:
The Department's Consumer Affairs Office is often
able to help resolve problems between passenger and carriers on
disability issues as well as other airline consumer matters. We
recommend that, before filing a part 302 complaint [this is a
formal complaint], a passenger write or call this office to determine
if it can work out a solution to the problem.
DOT goes on to say,
In the absence of other enforcement mechanisms
the Department will consider individual complaints as well as
so-called "pattern or practice" complaints under part 302 procedures.
The office [Aviation Enforcement and Proceedings Office] will
evaluate all complaints that come in. To mandate that every complaint
be prosecuted, however, regardless of its merits, would entail
a considerable waste of resources, both the Department's and those
of carriers and complainants.
Researchers did not survey any ACAA complainants to
learn what their expectations of the complaint process were. However,
because complaints of housing discrimination and employment discrimination
are generally handled on a case-by-case basis, with investigation
and individual case resolution and enforcement, it is logical to
expect that complaints of disability discrimination in air travel
would get similar individual case attention. The New Horizons brochure
states, "Any person believing that a carrier has violated any provision
of the rule may contact the following office," followed by the address
for the Consumer Protection Division. Nothing in the DOT brochure
or website information about the ACAA compliance process makes it
clear that most complaints sent to DOT are processed with a brief
assessment, a tracking record created in a database, a form letter
to the respondent airline, and monitoring of the complaint until
an airline response is received and the complaint closed.146
Only the few complaints determined to involve policies or procedures
out of compliance with ACAA are investigated. It is not clear whether
consumers with disabilities relying on DOT's public information
brochures would be aware of the limitations of filing an informal
complaint with DOT to obtain complaint resolution.
Complainants who are not satisfied with the airline
response to their complaint are encouraged to contact DOT. However,
even if DOT has determined that a potential violation occurred and
that the airline response was inappropriate, further formal action
usually does not result. DOT may contact the airline and request
that it amend its response to the passenger, but it does not levy
a fine or engage in any formal mediation or adjudication between
the complainant and the airline unless a formal complaint is filed.
Thus, passengers dissatisfied with the airline response to their
complaint are left with civil litigation as the primary means for
obtaining a satisfactory or enforceable redress for the alleged
violation of their rights.
Recommendation No. 15(a): Complaints filed under the
Air Carrier Access Act should be individually investigated and given
a specific determination by DOT that is communicated to the complainant.
The process should be modeled on the Equal Employment
Opportunity Commission (EEOC) procedures for handling discrimination
complaints and should involve the possibility of mediation and compensation
or awards to complainants as an alternative to litigation.
Recommendation No. 15(b): The public information materials
distributed by DOT should clearly describe the types of outcomes
possible from filing an ACAA complaint with DOT.
Finding No. 16: DOT's complaint database is inadequate
for adjudicating individual ACAA complaints and monitoring ACAA
compliance across all air carriers.
The usefulness of the DOT complaint database as a
vehicle for monitoring and enforcing ACAA is questionable. For example,
all disability-related complaints are logged into a central database
containing every category of consumer complaint received by DOT.
Complaints about foreign air carriers, which are not currently enforced
under ACAA, are included in DOT's statistical reporting of disability
complaints.
The DOT database resides on an antiquated mainframe
having limited capability to sort on user-selected data fields for
different types of analysis. Researchers requested a variety of
reports sorted according to different selection criteria and with
different sets of data fields. DOT declined to provide all but two
on the grounds that the requested reports required complicated reprogramming
of the reporting function which none of the consumer protection
staff knew how to do. However, following a review of the second
draft of this report, DOT staff members said that the mainframe
was capable of producing a broad range of reports, including those
initially requested.
Another factor affecting the usefulness of the complaint
data is the categories for type of disability and type of discriminatory
action. Some categories are so broad (e.g., "other wheelchair")
that it is difficult to produce a clear profile of the travelers
and the events triggering their complaints.
Furthermore, specific information is lacking in the
database records concerning the nature and circumstances of the
complaints. Capturing this information is particularly important
because it is DOT's policy to destroy the hard copies of most complaint
files (other than those identified as a "potential enforcement action")
a year after they have been received. Although the database record
can be expanded indefinitely to document specifics of a given complaint
file, the vast majority of complaint records contain only the most
basic information about the complainant and the nature and disposition
of the complaint. Part of the difficulty may be that complaint letters
are written in a narrative style and contain varying amounts of
relevant details about the occurrences. A carefully developed complaint
form would allow more consistent and specific data to be collected.
In the National Council on Disability (NCD) interviews, DOT staff
did acknowledge that the database categories could be improved and
indicated that a standardized complaint form had been drafted and
was under consideration for approval.147 Between November
1997 and January 1998, researchers asked several different staff
persons about the status of the complaint form. Most staff members
indicated that no consensus had been reached on whether such a form
would be useful or desirable. At the time of NCD's last inquiry,
the form apparently was in limbo at an unknown level.148
Still another concern is the use to which the complaint
data are put. The database complaint records serve primarily to
provide DOT with an aggregate picture of the problems reported by
the public for each airline. DOT uses the data mainly to work with
each airline at the big picture level in correcting compliance problems
affecting its overall performance assessment or potentially leading
to enforcement action. Although this is a legitimate and useful
purpose for the data, the effort expended by individual consumers
to document and report their complaints frequently does not result
in a satisfactory outcome for them. In addition, as described above,
disability complaints are not identified by individual airline in
the public report of consumer complaints issued monthly by DOT.
Instead, the disability complaints are grouped within the aggregate
category "ticketing/boarding."
Finally, no data are regularly maintained by DOT that
can be used to assess the full extent of ACAA problems or ACAA compliance
across the nation. This is partly because the DOT database contains
only a small fraction of the actual number of ACAA complaints generated
each year. Most complaints are sent directly to the airline with
no copy sent to DOT. Regarding those complaints that are sent to
DOT, researchers were not able to determine whether they came from
the most dissatisfied or aggrieved passengers, those most knowledgeable
about the ACAA, or neither. Although the airline CROs by law must
keep a written record of all complaints, DOT does not ask the airlines
for these records or for a summary report of the records to analyze,
unless in connection with the investigation of a formal complaint
or enforcement action.
Yet complaint data produced by a defendant airline
during the discovery phase of litigation in which it was involved
indicated conclusively that the number of disability-related complaints
made directly to the airline was many times greater than the number
of complaints received by DOT over the same period. Between January
1993 and November 1996, this major carrier received 5,072 disability-related
complaints;149 over the same period, DOT received only
142 complaints against that carrier and 1,009 disability-related
complaints against all air carriers, including foreign carriers.
Researchers asked Enforcement Office staff what the
estimated discrepancy was between the number of disability complaints
received by DOT and the number received directly by the airlines.
Using airline complaint data during enforcement investigations,
they estimated that for every single complaint received by DOT against
an airline, about 99 more disability complaints were recorded only
in that airline's own records.150
Recommendation No. 16(a): DOT should maintain a technically
proficient database adequate to perform ACAA complaint tracking
and analysis.
A database using modern application software should
be developed to track the data items and codes required for ACAA
complaint processing, investigation, enforcement, and compliance
monitoring. In addition, the complaint data categories should be
redesigned into clearly defined categories that describe meaningful
data.
Recommendation No. 16(b): DOT should require all air
carriers whose activities are covered by ACAA to submit annually
the record of disability complaints that they are required by law
to maintain.
DOT should review these records and evaluate them
as part of its responsibility for compliance review.
Finding No. 17: The criteria are unclear for determining
when complaints alleging similar violations are to be coded as potential
violations only or as potential enforcement actions for investigation
by the Enforcement Office.
Although the complaints handled by DOT are considered
informal complaints, at some point they may be coded as potential
violations or potential enforcement actions of both. Researchers
noticed that complaints alleging similar violations were inconsistently
coded-- sometimes as potential violations and sometimes as potential
enforcement actions--and asked about the distinction between the
two codes. When asked what the rules were for deciding which code
to apply, DOT staff said there was "no written list" of criteria
for distinguishing potential violations from potential enforcement
actions or for referring cases to the Enforcement Office for formal
enforcement. DOT staff explained that DOT routinely codes as "potential
violations" all records generated from complaint letters after a
copy of the complaint letter and a DOT form letter go out to the
airline requesting a response to the complainant within 30 days.151
When pressed to provide the criteria used to distinguish
a potential enforcement action from a potential violation, DOT staff
said that some of the criteria for determining whether enforcement
action should be taken on a complaint were
- the (perceived) potential effect of the enforcement
action on consumers (positive and negative);
- the uniqueness of the complaint issue (i.e., whether
it involves a new service the airlines are not yet accustomed
to providing);
- how widespread the alleged violation is throughout
the industry; and
- the potential impact of the enforcement action
on the aviation industry.152
Months later, DOT staff members reviewing the second
draft of this report with NCD staff members, identified another
criterion: whether a complaint involves an established airline policy
or procedure that is not in compliance with ACAA. NCD staff members
were told that this is the main benchmark for determining whether
a complaint is a potential enforcement action. Relatively few complaints
receive this designation because it is narrowly applied. Researchers
were told that when enough complaints (potential violations) of
a similar nature against a given airline had accumulated to suggest
a pattern or practice not in the public interest, those cases might
be forwarded to the Enforcement Office for review as "potential
enforcement actions" against the airline.153
Researchers received conflicting information from
DOT staff regarding the categories "potential violation" and "potential
enforcement action." During early interviews with DOT staff, researchers
were told that some complaints are initially determined to be "potential
enforcement actions," while all other complaints are routinely coded
as "potential violations." Later, DOT staff said that most complaints
are classified as potential enforcement actions from the outset.
Recommendation No. 17: DOT should develop written materials
that articulate the decision rules for deciding the status of consumer
complaints at each step of the enforcement process.
Objective criteria need to be defined for analyzing
informal complaints to identify the elements of liability for prima
facie violations, potential enforcement actions, and the imposition
of civil penalties.
The next section presents an in-depth description
of the formal complaint process and its relationship to ACAA enforcement.
6.5 Formal Complaints
and Enforcement Actions
6.5.1 Filing a Formal Complaint
Formal complaints under ACAA are filed following the
rules of 14 CFR Part 302. These rules apply not only to ACAA formal
complaints but to all complaints alleging violations of any federal
aviation statute or DOT rule or order. Any individual, corporation,
or public entity, including DOT itself, may file a formal complaint
alleging violation of the ACAA with DOT's Dockets section under
Part 302.
The complaint must conform to the procedural requirements
of section 302.3 (see Appendix E) with respect to the form and filing
of documents. These requirements, which are exacting and time-consuming,
serve as procedural safeguards intended to meet due process requirements
with respect to the respondent air carrier.154
There are no public education documents describing
how to file a formal complaint under the ACAA. The New Horizons
brochure, DOT's only publication for the public that describes in
detail the protections afforded air passengers with disabilities,
does not inform the public of the possibility of filing a formal
complaint. Nor does it list the Enforcement Office as one of the
federal offices involved with ACAA enforcement. Thus, anyone seeking
to file a Part 302 complaint would need to find out on his or her
own whom to contact to file the complaint. To file correctly, it
would be necessary to consult the federal regulations. Without the
assistance of a lawyer, an individual would probably not know about
the formal complaint process or successfully be able to file a complaint
under it.
6.5.2 The Formal Complaint Process
After the complaint has been filed with DOT's Dockets
section, the respondent has 15 days to file an answer. After all
answers have been filed and any necessary investigation has been
conducted, the Enforcement Office has a reasonable period (60 days
unless an extension is granted) to file the notice of enforcement
and proposed assessment of civil penalty or to dismiss the complaint.155
At any time after the filing, the respondent may file an answer
and a motion to dismiss the complaint. The Enforcement Office will
consider matters raised in the answer in deciding whether to dismiss
the complaint or institute an enforcement proceeding. The Enforcement
Office will dismiss a third-party complaint if it finds either that
- the allegations do not provide sufficient grounds
for believing that a violation of a federal aviation statute or
department rule or order has occurred, or
- further investigation is not in the public interest.
A notice stating the reason must accompany the dismissal
order. If the Enforcement Office does not act within a reasonable
period, the complainant may file a motion with the Deputy General
Counsel to docket the complaint.
If the Enforcement Office decides to file a notice
of enforcement proceeding and its own formal complaint, the case
is then assigned to an administrative law judge for a formal hearing
under the requirements of 14 CFR 302.3-302.4. In keeping with its
overall enforcement strategy, DOT will seek to resolve complaints
informally whenever possible before resorting to formal enforcement
action.
6.5.3 Informal Enforcement Strategy
The Enforcement Office maintains that the goal of
enforcement is to ensure that consumers are protected adequately,
and that formal enforcement action can actually impede consumer
protection, depending on the approach taken.156 Regulatory
enforcement hinders a business's ability to satisfy customer needs,
whereas collaborative enforcement supports efforts towards compliance
in meeting customers needs.157 The goal is to use the
lowest level of enforcement appropriate to achieve satisfactory
compliance on any given issue.
- In keeping with this goal, the ACAA informal enforcement
mechanism is graduated as follows:
- a telephone call explaining the need for compliance,
followed by
- correspondence stating the same, followed by
- explicit warning notice, followed by
- referral for administrative enforcement action.
As a matter of policy, the Enforcement Office does
not publicize formal complaint cases resulting in voluntary compliance,
presumably to encourage voluntary compliance by respondents. If
compliance is not forthcoming, enforcement action may begin.158
Enforcement action can take the form of a voluntary consent order
or administrative adjudication, either of which can impose cease
and desist provisions (with or without civil penalties) or a federal
lawsuit for injunctive relief.159
Those staff persons who carry out DOT's enforcement
strategy repeatedly emphasized: Collaboration is the key to DOT's
enforcement strategy. The subtext of the collaborative strategy
is that the rules governing success in the marketplace will ensure
that consumer issues will eventually correct themselves. When asked
what economic incentive an airline would have for Part 382 compliance,
DOT staff frankly admitted that the main business incentive for
complying with Part 382 is projecting the image of a customer-caring
business to the general public.160
Key DOT staff members believe this enforcement strategy
is highly effective, saying that "air carriers are complying 99
percent" with the regulation (Part 382).161 The Enforcement
Office also noted that the drastic cutback in compliance monitoring
since deregulation seems to have had little real effect on the compliance
picture. In support of its view on the extent of ACAA compliance
problems, the Enforcement Office cites a statistical analysis of
consumer complaint data samples from a number of airlines over several
years during the 1990s. Their findings showed that disability complaints
consistently represented only about 4 percent of the total consumer
complaints across the board for every airline and for each year
sampled.
6.5.4 Enforcement Orders
From 1987 until September 1998, DOT received 17 formal
complaints filed by third parties and one formal complaint filed
by the Enforcement Office. The formal complaint filed by the Enforcement
Office resulted in a cease and desist order. Fourteen of the third-party
complaints were dismissed.
Of the 14 third-party complaints dismissed, two resulted
in cease and desist orders that also carried civil penalties. Four
of the 14 were dismissed upon request of the complainants after
private settlements had been reached with the airlines. Three complaints
were dismissed because of insufficient cause and one because the
accommodation requested constituted an undue burden. Four other
dismissals were based on a finding that, while a violation may have
occurred, mitigating factors led to a determination that it was
not in the public interest to pursue enforcement action.
As of September 1998, the total amount in civil penalties
imposed on airlines as a result of third-party formal complaints
alleging discrimination on the basis of disability was $28,000.
Summaries of the three complaints resulting in cease and desist
orders or civil penalties or both, follow.
6.5.5 Formal Enforcement Proceedings
A notice of the enforcement proceeding and a formal
complaint initiated by the Enforcement Office commence an oral evidentiary
proceeding, which may be based on a formal third-party complaint,
on informal complaints received by DOT, or on information gathered
by DOT without any complaint being filed.162
Once a hearing has been held and the parties have
filed briefs on the issues raised in the complaint, the administrative
law judge issues a recommended decision or may certify the record
to the DOT decisionmaker, who is either the Assistant Secretary
for Aviation and International Affairs or the Secretary. Any final
DOT order may be appealed to the U.S. Circuit Courts under 49 U.S.C.
§ 46110.163
The procedures in a formal enforcement case are burdensome
to all parties, imposing a continuing need to meet filing requirements
or to make appearances at hearings or conferences. As a result,
this process typically takes place over a protracted period of time.
Enforcement decisions are based upon the information and materials
supplied by the complainant and the respondent, as well as any additional
information resulting from the Enforcement Office's investigation.
The only disability discrimination case to make it through the full
hearing and review process was the Southwest Airlines Enforcement
Proceeding.164 The third-party plaintiff filed the
initial complaint in August 1984 and DOT rendered its decision (cease
and desist order) on November 6, 1987. Since the sunset of the Civil
Aeronautics Board in 1985, no enforcement case initiated by DOT
has proceeded through all stages of the formal process.
Moody v. Delta165
This consent order found that Delta violated Part
382 by failing to provide adequate assistance to passengers using
wheelchairs and assessed a $25,000 civil penalty. The order also
required Delta Airlines (1) to increase the availability of self-mobile
wheelchairs at its terminal stations and (2) to emphasize in training
its gate agents that they must give first priority to requests for
assistance from passengers who use wheelchairs.
Del Colle v. Continental Airlines166
This consent order assessed Continental Airlines a
$3,000 civil penalty for the air carrier's failure to provide accurate
information on the availability of seats with movable armrests and
ordered the carrier to cease and desist from further such violations.
Southwest Airlines Enforcement Proceeding167
DOT received the original complaint in this case in
1984 and subsequently pursued its own complaint pursuant to a policy
of Southwest Airlines that required passengers who are totally blind
and deaf to travel with a ticketed companion. DOT determined that
Southwest's requirement that all deaf-blind passengers travel with
a companion was over-broad because it unjustly discriminated against
deaf-blind individuals who can demonstrate an ability to understand
general safety instructions. DOT directed Southwest to cease and
desist from its categorical refusal to transport unaccompanied deaf-blind
passengers and instead to treat deaf-blind passengers in a nondiscriminatory
manner.
Below are summaries of cases dismissed because informal
settlements were reached, insufficient cause was found, or enforcement
action was deemed not to be in the public interest.
Wood v. American Airlines, Manning v. American Airlines168
This dismissal order combined two complaints against
American Airlines filed within a two-year period. The first complaint
alleged that American Airlines failed to provide adequate assistance
to Ms. Wood, who is a wheelchair user, in boarding and deplaning
the aircraft and in transporting her wheelchair during a flight
in 1992. Amanda Manning filed a similar complaint against American
on June 13, 1994. The complainants and the airline reached an amicable
resolution and requested that the complaints be dismissed.
Roberts and EPVA v. USAir169
In this order, DOT dismissed a third-party complaint
after the airport at issue, Stewart International Airport, modified
its terminal area to make it accessible to wheelchair users. The
airport also purchased a mechanized chairlift for passengers who
use wheelchairs.
Seligman v. Northwest Airlines170
This order dismissed a third-party complaint against
Northwest Airlines alleging that the carrier failed to provide adequate
attention to a passenger with Tourette syndrome. The dismissal order
was issued after the carrier agreed to enhance its personnel training
to place greater emphasis on meeting the special needs of passengers
with this condition.
Segarra v. America West Airlines171
The complaint in this case alleged that America West
Airlines failed to remove a series of steps at its terminal at JFK
Airport. According to the complaint, the steps constituted a barrier
to disabled individuals that under ACAA and Part 382 should have
been removed by April 1993. The order dismissed the complaint, citing
the carrier's move, subsequent to the filing of the complaint, to
facilities that complied with the requirements for accessibility.
The order, however, found that the steps were a technical violation
of the rules and that the carrier was in violation of Part 382 during
the six months prior to the transfer of the gate area in October
1993.
Hacker v. Southwest Airlines172
This complaint alleged discrimination on the basis
of disability when Southwest refused Ms. Hacker and her husband
boarding as standbys on a Southwest flight in favor of all other
passengers holding standby passes, solely because she was a wheelchair
user. The airlines asserted, and the DOT concurred, that the Hackers
were denied standby boarding, along with other passengers, because
they arrived at the gate too late to board, not because of her disability.
The complaint was dismissed.
Vasquez v. Southwest Airlines173
This complaint alleged that Southwest refused to allow
Ms. Vasquez, a person with cerebral palsy and a wheelchair user,
to travel unaccompanied on a flight. Southwest admitted that it
did not permit Ms. Vasquez to travel unaccompanied, but maintained
that the refusal was justified based on a determination by Southwest
personnel that she could present a safety risk in an emergency and
could require extensive special assistance during the flight.
DOT found that affidavits filed by Ms. Vasquez and
her sisters differed so significantly from those given by Southwest's
employees as to put at issue whether Southwest could have reasonably
concluded that Ms. Vasquez was not a person with a disability within
the meaning of the statute. The complaint was dismissed because
DOT further found that the extensive fact-finding required to investigate
the issue would not be in the public interest and because the facts
in Ms. Vasquez' complaint gave Southwest sufficient information
to resolve its concerns about her ability to fly safely without
an attendant in the future. In addition, two other issues raised
in the complaint and the respondent's answer were in the process
of being addressed in rulemaking at that time: when to require mobility-impaired
passengers to fly with attendants and whether airlines were required
to provide personal assistance to passengers with mobility impairments
in using the lavatory. DOT elected to allow these issues to be clarified
through the release of the NPRM rather than through a formal enforcement
proceeding.
Sontag v. Simmons Airlines174
The complainants, who are both blind, alleged that
Simmons' failure to allow them to stow their flexible white canes
at their seats constituted discrimination. Simmons asserted that
its actions were based on safety considerations. DOT dismissed the
complaint, concurring with Simmons that the carrier's decision was
necessary in the interest of safety, not because the complainants
were blind.
Greenberg v. American Airlines175
The complainant alleged that American Airlines refused
to allow him to sit in an emergency exit row because he is blind
and subsequently refused to board him at all. He also alleged that
he was not provided with the name of an official or agent to make
a determination regarding their refusal to provide service. DOT
dismissed his complaint, noting that it was their policy not to
institute enforcement actions against carriers for refusing to transport
blind passengers in emergency exit rows. In addition, DOT deemed
American justified in refusing to board Mr. Greenberg. The risk
of confrontation onboard between Mr. Greenberg and passengers angered
by the flight delay resulting from his refusal to relocate from
his seat in the emergency exit row was considered a threat to flight
safety. DOT found no violation in relation to the claim regarding
provision of airline personnel to resolve issues for disabled patrons.
In addition to the 17 formal complaints received since
1987, DOT has issued consent orders imposing civil penalties in
six cases involving ACAA violations and two cases involving violations
of the FA Act's general nondiscrimination provision. Each of these
actions resulted from an independent investigation undertaken by
the Enforcement Office. In five of those cases, failure to comply
with several consumer notice regulations, including the requirement
to have Part 382 available for review upon request, was the cause
of action. The civil penalties imposed in those five cases, ranging
from $15,000 to $40,000, were for failure to comply with multiple
consumer notice regulations, among them the provision in Part 382.
The other enforcement action that resulted in a civil penalty, involving
an independent investigation of informal ACAA complaints by the
Enforcement Office, is summarized below.
American Airlines176
After the Enforcement Office investigated a number
of informal consumer complaints filed with DOT, this order found
that American violated numerous provisions of Part 382 by failing
to provide adequate assistance to people with disabilities. The
order directed American Airlines to increase the number of wheelchairs
available at its airport stations and to significantly increase
the number of wheelchairs with movable armrests. The order assessed
a $25,000 penalty.
The Enforcement Office has recently issued two other
enforcement orders for violations of 49 U.S.C. §41310 involving
disability discrimination by a foreign carrier and its U.S. code-sharing
counterpart that imposed civil penalties in the amounts of $1,000
and $3,000, respectively.
Since 1987, only three enforcement orders with civil
penalties totaling $53,000 have been issued in cases primarily involving
ACAA violations. Another five enforcement orders with civil penalties
totaling $161,000 have been issued in cases involving noncompliance
with multiple consumer notice regulations, including the provision
in Part 382. These orders do not indicate what portion of the penalty
was assessed for the ACAA violation. Two additional enforcement
orders involving disability discrimination in violation of the FA
Act's general nondiscrimination provision applied to foreign carriers
imposed penalties totaling $4,000 ($3,000 for the foreign carrier
and $1,000 for the U.S. carrier). These findings indicate that civil
penalties have not been a primary tool in DOT's overall strategy
for obtaining ACAA compliance.
Also noticeably absent from DOT's enforcement strategy
is the practice of filing amicus briefs in civil actions alleging
ACAA violations, a finding discussed in the following section.
6.5.6 Amicus Briefs
DOT has never participated in an ACAA case as an amicus.
However, DOT is not authorized under the ACAA statute to file an
amicus brief in civil actions relating to alleged ACAA violations
and therefore must obtain prior approval from the Department of
Justice (DOJ) to do so. In addition, the Enforcement Office reports
that DOT has been invited only once to participate as an amicus
party by an ACAA plaintiff;177 in correspondence to both
the plaintiff and the carrier. DOT concurred with the plaintiff's
interpretation of the provision in Part 382 limiting a carrier's
discretion to require attendants for deaf and blind passengers.
DOT also indicated to the plaintiff its willingness to intervene
as an amicus if DOJ granted permission and if the case reached the
Circuit Court level. However, the carrier agreed to modify its training
manuals and instructions to conform to the rule and declined to
appeal the District Court's verdict of liability and imposition
of nominal damages, so no amicus was filed.
Inquiries into the practices of other federal agencies
showed that agencies having civil rights enforcement responsibilities
typically take a different approach to participating as amicus parties.
These agencies will petition to file an amicus brief, usually at
the appeal stage, in selected cases in which the agency wants to
clarify its position to the court on a particular issue. In instances
in which the requesting agency is a designated enforcer of a civil
rights statute, DOJ generally grants permission. Despite DOJ's liberality
in granting petitions, DOT has chosen not to be proactive in using
amicus briefs to assist the court in interpreting the ACAA and its
regulation.
6.5.7 Analysis and Recommendations
Finding No. 18: The ACAA enforcement process at DOT
does not adequately address the need for satisfactory resolution
of individual complaints.
As discussed in detail earlier, DOT's informal complaint-handling
procedure largely catalogues incoming complaints and tracks whether
the airline makes a formal response as required in Part 382. Investigation
of informal complaints usually takes place as part of a formal complaint
or independent DOT investigation looking at the pattern and practice
of a particular airline. Most informal complaints are not investigated
at all. Further, because DOT does not actively investigate most
informal complaints, its role in informal complaint resolution is
also limited. Other than tracking to ensure that airlines send a
response to the complainant, DOT intervenes only when the complaint
is determined to be a matter of airline policy or procedure not
in compliance with ACAA. Part 382 states that complainants should
contact DOT for assistance in connection with their ACAA complaints.
Under the current informal complaint- handling procedure, it is
unclear what assistance they can expect to receive.
Recommendation No. 18: DOT's enforcement mechanism
must be made more credible and vigorous. At a minimum, the following
are necessary:
- investigation and evaluation of all individual
complaints received by DOT;
- explicit criteria consistently applied in assessing
complaints as potential violations and enforcement actions;
- penalties for violations;
- monitoring of complaints received directly by
airlines; and
- development of a database dedicated to complaint
processing and tracking compliance- monitoring activities.
Persistent problems with noncompliance will not resolve
themselves. Congress must work with DOT to insist on a commitment
to effective ACAA enforcement and remove the remaining obstacles
to such enforcement, including resource barriers. ACAA enforcement
must become a DOT civil rights priority, starting with allocation
of the necessary resources for more extensive investigation and
analysis of complaints.
Finding No. 19: Lack of available attorneys' fees and
damages under ACAA hampers consumers in exercising their private
right of action.
Another weakness in ACAA enforcement is the disincentives
to exercising a private cause of action. The right to a private
cause of action for ACAA violations was established through case
law, not the ACAA.178 If the plaintiff wins, the damages
awarded, if any, are usually small. Reimbursement for legal fees
and expenses is solely at the court's discretion.
Many people with disabilities who would file an ACAA
lawsuit simply cannot afford an attorney. Without an attorney's
fee provision, a lawyer has little incentive to take even a strong
case on contingency. It is widely believed within the disability
community that few ACAA cases have been brought to date precisely
because attorneys' fees are unavailable. These strong disincentives
to private legal action, combined with DOT's meager enforcement
role, virtually eliminate any credible threat of enforcement, even
when persistent violations occur. Under the ADA and other civil
rights laws, plaintiffs who bring suit and win are entitled to reimbursement
for attorney's fees and damages. The same should apply to cases
brought under ACAA.
Recommendation No. 19: ACAA should be amended to authorize
a private right of action and the awarding of attorneys' fees, as
well as compensatory and punitive damages for successful litigants.
DOT should notify complainants of their private right of action
and the availability of fees and damages.
To bring the ACAA into parity with other disability
civil rights laws, attorneys' fees and damages provisions should
be included. Such provisions are necessary to ensure that individuals
protected by the law are able to exercise their rights fully. Establishing
a private right of action in the statute will ensure the security
of the provision.
Finding No. 20: Despite a number of ACAA lawsuits,
DOT has never filed an amicus brief.
Recommendation No. 20: DOT should petition DOJ to file
amicus briefs in ACAA cases.
It is in the public interest and part of DOT's enforcement
responsibility to exercise leadership in clarifying the legal implications
of ACAA. Without DOT's initiative in clarifying the intent of the
law and regulation, further confusion results as courts in different
jurisdictions make inconsistent decisions on similar issues. It
is DOT's prerogative to clarify the intent of the law when the regulation
is not clear. Therefore, DOT should request notification from the
general public regarding pending ACAA lawsuits, and petition DOJ
to file an amicus brief in every meritorious case involving an issue
of public interest.
6.6 Compliance Monitoring
6.6.1 Review of Airline Compliance and Personnel Training
Plans
All air carriers are required to have ACAA compliance
plans. Major and national carriers were required to submit them
to DOT by October 1990. Other carriers are required to have them
on file and make them available for review by DOT. DOT was required
to review the plans of all major and national air carriers by December
1990. If DOT requests amendments to any plan, the carrier is required
to make the amendments and implement them immediately. DOT reports
that it asks new air carriers to submit compliance plans.179
The plan must include a schedule for personnel training, as well
as the carrier's policies and procedures for accommodating passengers
with disabilities.
DOT reports that it has received between 35 and 40
plans since the inception of the law. However, DOT did not have
a list of which airlines were required to submit plans in 1990 and
did not track those that did and did not comply. Today there is
still no current list, even though new airlines are notified by
FAA of the requirement to submit a plan as part of the certification
process. DOT used a standardized checklist to evaluate the plans.
A review of the plans provided to researchers showed that DOT required
revisions to most of the original submissions, and that most airlines
complied by submitting a revised plan.
When asked whether DOT was monitoring whether and
how the compliance and training plans were being implemented, DOT
staff members frankly admitted that no monitoring was done unless
the volume of ACAA complaints received for a given airline indicated
a compliance problem.180
6.6.2 Analysis and Recommendations
Finding No. 21: DOT's ACAA compliance monitoring is
not proactive.
DOT reports that there is no regular monitoring of
the implementation of compliance plans, nor of the specific accessibility
requirements for new aircraft. DOT reports that it received 35 to
40 compliance plans, most between 1990 and 1991. Since the initial
plan revisions were submitted in 1991-1992, DOT has not required
any updates to the plans submitted by major and national carriers.
A major feature of the air carrier compliance mechanism
is the designation of a CRO at every airport. DOT has occasionally
requested a list of such officials but was not able to explain to
researchers whether these lists were received and from which airlines.
To NCD's knowledge, DOT has never attempted to monitor the performance
of CROs.
DOT reports no regular ACAA compliance monitoring
mechanism or regular compliance monitoring activities for air carriers
at this time.
Recommendation No. 21: DOT should strengthen ACAA compliance
monitoring.
Effective enforcement of ACAA requires a robust compliance
monitoring mechanism. Air carriers need to know that they are accountable
to DOT for their compliance and need to ensure ongoing efforts to
achieve compliance. Part 382 should require a compliance monitoring
program that includes, at a minimum
- annual reviews by DOT of the records of major
and national air carriers to verify ACAA compliance (e.g., a list
of the CROs designated at every airport served by the airline;
records on when ACAA trainings are conducted; the most recent
date of ACAA training for all employees who work with the public;
and a description of a system for complying with ACAA seating
assignment requirements);
- air carrier submission of "correction plans" to
DOT within a specified time frame when implementation records
indicate noncompliance with ACAA requirements;
- DOT review and evaluation of all major and national
air carrier ACAA compliance plans triennially;
- air carrier submission, within a specified time
frame, of revisions to plans found insufficient; and
- regular DOT site visits to spot-check airline
ACAA compliance at airports. Adequate funds should be made available
for such activities.
6.7 ACAA
Rulemaking--14 CFR Part 382 and Modifications This
section will review both the rulemaking and regulatory negotiation
processes to evaluate their effectiveness and assess their impact
on 14 CFR Part 382.
6.7.1 The Rulemaking Process
In developing new regulations under the standard rulemaking
process, the Office of Regulation and Enforcement conducts extensive
research on the statute's legislative history. When there is not
enough information to develop an appropriate rule on a given issue,
the Office of Regulation and Enforcement will request technical
and other input through advance notices of proposed rulemaking published
in the Federal Register. Such notices may simply be for the
purpose of getting advance comments on specific issues affecting
the regulated and protected parties. All comments received in response
to these notices are considered in developing the rule.
The Office of Regulation and Enforcement publishes
the draft regulation as an NPRM in the Federal Register. The public,
particularly stakeholder groups, are invited to submit comments.
During the comment and review period, new issues may arise. The
Office of Regulation and Enforcement may publish supplemental notices
of proposed rulemaking for additional information on the new issues.
In developing the final rule, the Office of Regulation and Enforcement
considers all comments and weighs the interests of all the parties
in formulating its regulatory position. The Office of Regulation
and Enforcement directly addresses all substantive comments received
on each major section and states the reasons for its position in
the preamble of the proposed regulation.
After ACAA was passed in 1986, DOT intended to make
the old Part 382 applicable to all carriers as an interim final
rule and use the standard rulemaking process to develop revisions
and address new issues. However, an interim rule was not issued.
At the request of the parties, DOT instead initiated a regulatory
negotiation process to develop an entirely new rule. The negotiation
took somewhat longer to complete than the standard rulemaking process,
contributing to a long delay in issuing the final rule.
The request for negotiations in place of the standard
rulemaking procedure indicated the parties' belief that they themselves
could develop a rule to serve their individual and mutual interests
better. However, negotiations did not fully succeed. Stalemate on
several issues could not be resolved, and negotiations terminated
without reaching consensus on a final rule. DOT resumed the rulemaking
process to finalize a concrete set of nondiscrimination requirements
that did not impose undue burdens on the industry.
Members of the disability community complain repeatedly
that the rulemaking process is that exceedingly slow. On two occasions
lawsuits were filed against DOT for failure to act in a timely manner
in issuing the regulation or changes.181 It would seem
that some reasons for these delays go beyond bureaucratic inefficiency.
Part 382 is quite precise in defining how to comply with its target
objective: nondiscrimination against air travelers with disabilities.
Because Part 382 was intended to lay out specific rather than broad
general requirements, all stakeholders had a heightened interest
in how each provision would be crafted. Indeed, the intensity of
conflict on several specific requirements hindered the regulatory
negotiation (reg neg) process from reaching overall consensus on
a package of provisions.
The rulemaking process was inadequate for several
additional reasons. The most obvious is that the regulation lacked
the enforcement provisions necessary to ensure ready compliance.
This lack was a result not only of opposition from the aviation
industry but also of DOT's own ambivalence about enforcement. As
mentioned earlier, a lack of consensus within DOT led to dropping
every enforcement proposal involving imposition of penalties in
conjunction with the informal complaint process. Enforcement provisions
that involved the commitment of DOT resources to specific monitoring
tasks also failed to survive in the final regulation. The result
was a regulation with great promise but inadequate tools for actualizing
it. The regulation did not sufficiently empower DOT to exercise
the authority and leadership necessary to implement a controversial
law in an unwilling environment.
The purpose of the reg neg process was to resolve
some of the controversial issues sufficiently to agree on the language
of the regulation. It was also intended to give parties greater
insight into the concerns of other stakeholders and to begin dealing
with the implementation issues that would create obstacles to compliance.
Although this process might have resulted in a regulation having
a high voluntary compliance rate, this has not been the case with
Part 382. The next section presents findings as to why this has
been the case and some recommendations for structuring a more effective
reg neg process.
6.7.2 Analysis and Recommendations
Finding No. 22: The rulemaking process does not adequately
- identify and explicitly address the underlying
obstacles to compliance;
- identify/create incentives for industry compliance;
or
- respond proactively to noncompliance issues
that emerge over time.
Recommendation No. 22: Supplement the rulemaking process
by sponsoring multiple stakeholder processes, each of which is targeted
to develop alternative solutions for a specific issue; incorporate
the findings/results into the regulation.
DOT must take the lead to bring stakeholders together
in task forces aimed at finding solutions to the specific obstacles
to implementation and compliance. A partnership with the private
sector must be formed, having ACAA implementation problem-solving
as its focus.
6.7.3 The Regulatory Negotiation Process
The reg neg process is consensus rulemaking by committee.
Under the Federal Advisory Committee Act, DOT has authority to convene
an advisory committee of representatives from groups having interests
affected by the proposed rulemaking. Usually a neutral mediator
from the Federal Mediation and Conciliation Service facilitates
the committee. The negotiated rulemaking process takes place in
an extended series of meetings during which the parties discuss
each issue covered by the regulation to develop a consensus recommendation
on the applicable regulatory language. If consensus is achieved,
DOT must issue the final advisory committee recommendations as the
official rule.
The reg neg process to develop Part 382 was only partially
successful. The advisory committee met from June through November
1987 and produced many draft consensus recommendations. The advisory
committee was unable to reach consensus on all the issues and therefore
did not produce a final rule. DOT incorporated many of the committee's
recommendations to its proposed rule and finalized it under the
standard rulemaking procedure.
Despite the consensus-building work of the advisory
committee, the proposed rule was in review for over six months,
twice the normal time. An additional 30 days were granted for commenting
parties to reply to the comments of other parties. DOT received
more than 300 comments. In drafting the final regulation, DOT essentially
took the role of arbitrator. Weighing the interests and input of
all the parties, DOT crafted the final rule to balance all stakeholder
interests in light of the overall ACAA objective--civil rights protection.
It should be noted that DOT itself is a stakeholder
in this process, and its own interests strongly influenced the final
rule. When the regulation was drafted, several different enforcement
mechanisms were under consideration. Most of them involved a stronger
monitoring function and the imposition of penalties for violations.
No consensus could be reached within DOT on any mechanism involving
penalties, supposedly because of a lack of resources.182
DOT also dropped a proposal to monitor ACAA complaints received
by the airlines, in part because DOT was concerned that such monitoring
would not comport with the Paperwork Reduction Act and in part because
of a lack of resources.183
6.7.4 Analysis and Recommendations
Finding No. 23: Many problems with ACAA interpretation
remain, and consensus on definitions and implementation is lacking.
The rulemaking and regulatory negotiation processes are not adequate
to resolve these problems.
Some examples of implementation issues that remain
unresolved are appropriate application of the "threat to safety"
standard when making denial of boarding determinations; clear requirements
concerning lifting and transferring passengers with mobility disabilities;
and ensuring passengers with disabilities priority in stowing assistive
devices.
Recommendation No. 23: Tighten up the regulation with
guidelines and definitions developed by stakeholder groups.
DOT has stated that the regulation provides flexibility
in determining on a case-by-case basis whether its provisions constitute
an undue burden or fundamentally alter the nature of an airline's
program.184 At the same time, the many implementation
problems indicate that more guidance is needed on how to comply
without creating undue burden or fundamental program alteration.
Finding solutions to difficult implementation problems requires
joint participation by the concerned stakeholders in developing
practical guidelines for eventual incorporation to the regulation.
DOT should create avenues and encourage experimentation with alternative
approaches to working through implementation issues.
6.8 Monitoring
the Law As the executive agency responsible
for ACAA enforcement, DOT plays a key role in monitoring its impact
and assessing what changes are needed to achieve its legislative
objectives. This monitoring responsibility includes not only ensuring
compliance with the regulation by airlines and airport operators
but also examining where regulatory changes are needed to clarify
the requirements of the law. One area where discrimination continues
legally in spite of the law is international air travel. Although
the legal authority to extend a general nondiscrimination mandate
to foreign air carriers exists under 49 U.S.C. §41310, DOT
has applied this provision only twice in discrimination cases against
foreign air carriers on the basis of disability (in September and
December 1998). As the federal agency responsible for international
air transportation policy, DOT negotiates the terms of international
agreements under which foreign carriers must operate in the United
States. DOT must ensure that foreign air carriers that have access
to U.S. airport facilities and air travel markets conform to the
requirements of the same civil rights laws that bind U.S. carriers.
NCD urges DOT to continue exercising its authority to require all
air travel service providers operating in U.S. markets to comply
with the established standard of nondiscrimination.
Part III explores the views of stakeholders in the
aviation industry and the disability communities on DOT's role in
enforcing ACAA compliance.
PART
III. STAKEHOLDER VIEWS ON ACAA ENFORCEMENT 7.0
Aviation Industry Perspectives
As part of this study, researchers met with representatives
from the operations and legal divisions in the Air Transport Association
(ATA) for their thoughts on Air Carrier Access Act (ACAA) implementation.185
In addition to its stakeholder participation in ACAA regulatory
negotiations, ATA supports ACAA implementation, including being
the prime mover behind a task force to develop design specifications
for accessible lavatories in wide-body aircraft. ATA was involved
in another task force to develop solutions to problems with transporting
power wheelchairs. "Products" of the task force included (1) a training
video on disassembling and reassembling power wheelchairs; (2) successful
passage of a regulation to label all batteries as "spillable" or
"nonspillable"; (3) packaging instructions for spillable batteries;
and (4) a portable placard for the back of wheelchairs illustrating
proper disassembly and reassembly.186
ATA developed a model ACAA training plan in 1990 and
coordinated with the Federal Aviation Administration for the inclusion
of the ACAA segment in flight attendant training programs. Recently
ATA sponsored a joint meeting of all airline executives responsible
for the complaint resolution officer (CRO) function.187
The persons interviewed raised several important points.
They readily admitted that ACAA compliance has been uneven across
the major airlines but generally felt that the situation has vastly
improved since 1990. They also believed that Access to the Skies
conferences and other joint forums have strengthened communication
between disability groups and the aviation industry on ACAA issues.
However, they conceded the following points: these forums do not
provide an ongoing process for moving toward consensus or actually
resolving compliance problems; many compliance problems might stem
from the market-driven, decentralized decision-making processes
characteristic of the industry; there is a need for an ongoing process
to resolve issues arising from "poor service decisions" and to design
programs that permit "flexible accommodation based on responsible
decision-making."188
The ATA executives interviewed readily agreed that
some follow-up mechanism is needed to improve compliance and suggested
that ATA would like to help facilitate it. ATA represents most of
the passenger and cargo airline operations in the United States,
and has the "infrastructure for communicating with 97 percent of
the industry." They recognize that continuing dialogue on these
issues is necessary to finding solutions that meet the needs and
can be successfully implemented.
8.0
Perspectives of Air Travelers with Disabilities Enacted
almost 12 years ago, the ACAA prohibits commercial air carriers
from discriminating against travelers with disabilities. Despite
the sweep of the law and its potential impact on travelers with
disabilities, limited research has been conducted measuring its
effectiveness from the perspectives of persons with disabilities.
Nevertheless, the available research, written ACAA complaints, and
personal anecdotes reveal patterns of continued discrimination by
air carriers and weak enforcement by DOT. The following perspectives
illustrate the problems that remain and suggest areas for improving
implementation and enforcement of the law.
8.1 Accessibility of Air Travel--A Customer Perspective
"[I]f you are a wheelchair user and travel
even occasionally by air, it's a safe bet that you have had trouble
on just about every flight you have ever taken."189
The Paralysis Society of America (PSA) conducted a
year-long poll completed in 1996 that reveals mixed air travel experiences
by persons with disabilities.190 Although flying conditions
for people with disabilities have improved since ACAA's enactment,
many air travelers with disabilities still fare poorly. The PSA
poll, responded to by 550 self-selected individuals answering survey
questions by toll-free number or on the Internet, revealed:
- about one-third of respondents requesting specific
seats (i.e., bulkhead, aisle) did not receive them (accessible
seating was addressed in the March 1998 notice of proposed rulemaking
that became effective September 30, 1998);
- 41 percent of respondents specifically requesting
bulkhead seats did not receive them;
- only 16 percent of people who requested seats
with movable armrests received them;
- of 56 people traveling on flights not serviced
by jet bridges, 19 (34%) had to be carried up the stairs in a
boarding chair or by hand;191
- 17 people said they were charged a fee for a requested
service, including charges for a wheelchair as extra baggage,
a fee for retrieving a wheelchair, and a fee for connection assistance;
- more than half the people responding to the poll
(52.18%) said their mobility aids had not been returned to them
in good working order; and
- 49 percent said that airline personnel communicated
with someone other than them concerning service, rather than directly
with them.
It must be noted that the March 1998 amendment to
Part 382 contains provisions addressing most of the issues related
to seating assignments and requests mentioned in this survey. Many
survey respondents said that airline personnel need more and better
training, especially regarding disassembly and reassembly of motorized
wheelchairs, lifting and transferring travelers with mobility disabilities,
and persons with hidden disabilities. Airline personnel frequently
told wheelchair users they could not stow their folding chairs in
the aircraft cabin and failed to communicate gate information effectively.
The PSA survey results suggest that DOT's weak ACAA enforcement
and monitoring result in inconsistent access to safe and reliable
air transportation services by people with disabilities.192
8.2 Industry Compliance with ACAA and DOT Enforcement
of ACAA: A Sample of Customer Complaints
Review of a sample of written complaints filed during
1997 with DOT by individuals with disabilities, their families,
or attorneys reveals problems similar to those identified in the
PSA poll.
- A frequent complaint involved air carrier response
to requests for special needs accommodations such as boarding
assistance, stowage of a power wheelchair or seating requirements.
Despite giving advance notice in accordance with ACAA regulations,
travelers with special needs encountered the following situations
at the airport:
- the airline's computer database contained no record
at all of the advance request;
- airline personnel had not noted the advance request
in the database and were unprepared to provide the requested assistance;
- airline personnel failed to act in a timely manner
or simply did not act at all to provide the requested assistance;
and
- in some cases, airline personnel refused outright
to provide the requested assistance.
- One passenger with a heart condition requested
boarding and deplaning assistance. When her flight was rerouted
because of weather conditions, her daughter telephoned the airline
to inform them of her mother's requirements. She encountered an
airline official whom she described as "very confrontational--rather
than trying to diffuse the situation and see how he might be able
to help, he [said] 'perhaps your mother should not be flying at
all if she has a heart condition,' then he hung up."193
- One traveler alleged that an air-carrier-operated
frequent flyer lounge was not accessible to him. Only after he
wrote three letters of complaint and his attorney contacted both
DOT and the airline was a method to access the lounge provided.194
- Several complaints alleged that flight crews,
ramp agents, and other ground personnel were unaware of the ACAA
requirement for a CRO at each airport, who the airport CRO was,
or even what a CRO was. However, passengers reported that problems
were resolved when CROs were available to assist. For example,
one complainant who had been unable to convince the flight crew
to allow his wife's manual wheelchair to be stowed in the passenger
storage area asked to speak to the CRO. He wrote " [she] moved
mountains. Within minutes, the wheelchair that wouldn't fit did
fit like I said it would. [She] showed a lot of sensitivity and
concern. When [she] spoke, it was a done deal."195
- Many of the complaints alleged that flight crews
frequently refused to stow adaptive equipment such as walkers
and folding wheelchairs in the aircraft cabin. For example, one
complainant wrote that she was told by a flight attendant, "We
never allow wheelchairs in the cabin--you have to gate-check it."196
- Several travelers alleged that advance special
seat assignments (e.g., bulkhead and aisle) either could not be
scheduled or were not honored at flight time.
- Many complaints alleged that airline contractors,
such as those who provide boarding assistance or transport passengers
to and from flights, are not trained adequately and are insensitive
to the rights and requirements of travelers with disabilities.
- One complainant reported that an airline contract
escort service at New York's Kennedy Airport would not allow her
husband, who has a mobility disability, to use a wheelchair provided
by the airline beyond the passenger arrival area. The contractor
told her husband the chair was needed for another passenger, a
claim that proved false.197
The following sample of case summaries of ACAA complaints
filed with various airlines and DOT during 1997 further illustrate
common experiences of air travelers with disabilities.
DOT Case Summary No. 1:
An elderly woman who had recently undergone knee surgery was traveling
with her husband from Philadelphia to Detroit. He had made their
airline reservations well in advance, requesting bulkhead seating
to accommodate his wife's inability to bend her knee. He received
a letter from the airline confirming the reservations and bulkhead
seat assignments. When they arrived at the airport they learned
that their seat assignments had been changed. The ticket agent refused
to try to accommodate them in bulkhead seating, indicating the flight
was full although the woman's husband observed vacant seats on the
flight. In a letter to airline officials he said, "we boarded and
endured the flight. This resulted in a very painful flight and a
couple of painful nights. I hope this episode has not set back her
[his wife's] recovery."198
The man wrote twice to the airline complaining of
poor treatment. A copy of his complaint was forwarded to DOT's Consumer
Protection Division. At the time, the current regulation requiring
airlines to accommodate individuals having certain impairments with
accessible seats had not been written. Eventually the airline responded
saying advanced seating is offered as a courtesy and cannot be guaranteed.
The letter also stated that it is the responsibility of the traveler
to confirm the flight in advance, but the letter did not state that
a change of schedule regarding this particular flight had taken
place. It also stated that it was not the policy of the airlines
to compensate in these instances; however, two $25 dollar vouchers
toward future flights were provided.
DOT Case Summary No. 2: Traveling
with her husband on a round trip flight from Pittsburgh to Ft. Lauderdale,
a woman who used a manual wheelchair requested permission to stow
her chair in the passenger cabin's storage area. Their flights required
a plane change on both legs of the trip. The cabin crews for each
of four flights insisted that she stow her chair in baggage, although
her husband explained that the chair was frequently damaged when
it was stowed in the luggage area. Armed with DOT's booklet entitled
New Horizons for the Air Traveler with a Disability, the
passenger's husband showed the flight crews the provision for on-
board storage of manual wheelchairs but was told the storage area
was not "approved" or was reserved for coats. He explained that
her chair would fit easily in the cabin's storage area but the crew
insisted it be stored below.
He sent a complaint letter to DOT requesting a definition
of approved storage. DOT referred his letter to the airline and
sent the complainant a copy of Fly Rights. Because DOT did not explain
the meaning of "approved storage", the complainant sent a second
letter in an effort to obtain an answer to his original question.
His second letter triggered a written explanation by DOT of the
ACAA rules providing for on-board stowage of manual wheelchairs.
This letter was copied to the airline. His second inquiry also triggered
an internal DOT memo in which the airline personnel's conduct was
characterized as "egregious" and the airline's response to the complainant
called "a classic nonresponse that doesn't come close to the 'dispositive'
reply required by section 382.65."199 The airline wrote
the complainant acknowledging that it permits stowage of folding
wheelchairs in most of its aircraft and informing him of its plans
to issue a bulletin to "airport personnel reminding them of the
applicable regulations." It also gave the couple vouchers for $150
each toward the purchase of future tickets.
DOT Case Summary No. 3:
A woman with multiple sclerosis traveling from Miami to Chicago
was not permitted to stow her walker in the aircraft's storage area
although she had been allowed to keep the walker with her on a previous
flight. She was taking various medications for her medical condition,
including diuretics and steroids that caused frequent urination.
She was unable to walk to the aircraft's lavatory without the walker.
In a letter to DOT's Consumer Protection Division, her daughter
stated that a member of the flight crew said she didn't care what
had been allowed on a previous flight, the passenger couldn't carry
the walker on with her. The daughter went on to state, " My mother
was forced to sit the entire flight without being able to go to
the rest room. She suffered not only from discomfort but from the
humiliation and fear of being unable to control her bladder."200
DOT forwarded the letter to the airline, which issued an apology
and two $200 travel vouchers.
8.3 Analysis
The preceding case summaries and anecdotes illustrate
some of the problems air travelers with disabilities still encounter.
Taken as a whole, they reveal inconsistent ACAA implementation by
the airline industry and weak, inconsistent enforcement of the law
by DOT.
Each time they travel, passengers with disabilities
must cope with a myriad of potential disability-related complications
above and beyond those faced by travelers who do not have disabilities.
They must arrive for their flights armed with information about
their rights and prepared to advocate for themselves or their traveling
companions. When their complaints do receive attention from an air
carrier, the solution is often an apology and a ticket voucher.
Carriers appear to respond to ACAA violations in the same manner
in which they respond to customer service complaints involving lost
baggage or flight delays, rather than as civil rights violations.
There is little evidence to suggest that carriers take action to
resolve systemic ACAA violations or that DOT fully exercises its
enforcement authority and responsibility when it is aware of such
problems.
Private litigation is not a reasonable option for
many people with disabilities because ACAA itself does not provide
explicitly for monetary damages and attorneys' fees. Although an
attorney can recover reasonable fees if the complainant prevails
in a litigation matter regarding other civil rights laws, few attorneys
are willing to represent clients with disabilities in ACAA claims
because clients cannot afford to pay the legal fees. It is imperative
that DOT fulfill its public trust to ensure that persons with disabilities
are given equal access to air travel service at a level of quality
and comfort comparable to that afforded the traveling public generally.
PART
IV: CONCLUSION 9.0 Summary of Recommendations
Disability policy has clearly established full participation
and integration of people with disabilities as a national goal.
Access to transportation is a lynchpin for that participation and
integration. As airline travel increasingly becomes a major mode
of travel for Americans, it is essential that people with disabilities
have full access to air travel. The Air Carriers Access Act (ACAA)
is the federal law ensuring that access. Yet federal enforcement
of the law falls far short of protecting people with disabilities
from discrimination in airline travel.
Our recommendations for change are far-reaching and
fall into three major categories: organizational change, process
change, and changes to the law and regulation.
9.1 Recommendations for Organizational Changes
- DOT should establish an ACAA civil rights enforcement
unit that is separate from consumer affairs monitoring.
- Such a unit might be located in the Office of
General Counsel or in the Department of Transportation Office
of Civil Rights. Congress should appropriate additional funds
for adequate staff and resources to effectively run the enforcement
office. The Department of Justice (DOJ) should be authorized to
receive, investigate and litigate complaints from individuals
alleging ACAA violations and to exercise independent litigation
authority.
- The Access Board should be given authority to
develop accessibility standards for aircraft interiors and access
to aircraft, including boarding assistance equipment and any other
equipment related to air travel access. The Access Board should
work in consultation with Federal Aviation Administration design
inspectors and industry experts to develop design specifications
meeting ACAA access requirements. Congress should appropriate
the necessary funds.
9.2 Recommendations for Process Changes
- As with other civil rights laws, all ACAA complaints
alleging a prima facie violation should have standing, including
informal complaints. DOT should investigate every legitimate complaint
filed, make a determination concerning whether a violation has
likely occurred, and take appropriate corrective action.
- Expand enforcement action for ACAA complaints
beyond the Part 302 administrative process to allow remedies for
individual plaintiffs. Administrative action under Part 302 is
a pattern and practice remedy and was never intended as a means
for redressing civil rights complaints. Furthermore, given the
minimal civil penalties imposed, it has not eliminated pattern
and practice violations still prevalent throughout the industry.
- Request funding from Congress to develop and carry
out strategic ACAA education campaigns geared to consumers with
disabilities and the general public.
- Develop explicit evaluation criteria for determining
when a violation has occurred, and when enforcement action is
appropriate. Apply these criteria consistently to all complaints.
- Develop appropriate remedies for ACAA violations
comparable to those used for other civil rights laws.
- Develop a database dedicated to complaint processing
and compliance monitoring (complaint log, evaluation checklist,
action checklists, and "life cycle" status).
- Require air carriers to submit their Part 382
complaint data in standardized format to DOT at regular intervals.
Publish the results of the summarized complaint data for all major
airlines in the DOT Air Travel Consumer Report.
- Analyze air carrier Part 382 complaints regularly
to identify noncompliance areas and monitor potential pattern
and practice trends.
- Review non-compliance areas with airline representatives
at quarterly intervals and require airlines to submit correction
plans, including objective measures of success and a timeframe
for achieving compliance.
- Undertake more extensive investigation and analyses
of the causes of Part 382 noncompliance among air carriers and
airports.
- Commit more resources (both staff and funds) to
the expansion of compliance monitoring and enforcement activities.
- Provide training and technical assistance to the
aviation industry in all aspects of ACAA implementation and compliance.
- Initiate facilitated consensus building among
stakeholder groups to resolve technical issues impeding compliance
and disagreements on definitions and appropriate accommodations.
9.3 Recommendations for Statutory Changes and Increased
Appropriations
- Amend the ACAA to strengthen legal redress for
ACAA violations:
- establish a statutory private right of action;
- authorize the award of attorney's fees to successful
litigants;
- authorize the award of compensatory and punitive
damages to successful litigants; and
- establish the right to file individual ACAA complaints
directly with DOJ for investigation and litigation as for complaints
made under other civil rights laws.
- Appropriate the funds to DOT's budget to conduct
an aggressive ACAA education campaign geared to consumers with
disabilities and the general public .
- Amend ACAA to require foreign carriers operating
in the United States to comply with the same civil rights requirements
as domestic carriers do.
- Amend the Rehabilitation Act to mandate the Access
Board as the lead agency in developing access standards for aircraft.
- DOT and the Access Board should request and Congress
should appropriate additional funds to carry out the recommendations
of this report.
There is an urgent need for change in the overall
approach to ACAA enforcement if the goal of nondiscrimination in
air travel is to be fully realized. Most important is the need for
DOT's leadership and initiative to help all parties overcome the
substantial remaining obstacles to equal access.
ENDNOTES
1 Air Carrier Access Act Pub. L. No. 99-435,
100 Stat. 1080 (codified at 49 U.S.C. 1374(c)(1986) (hereinafter
ACAA).
2 See Nondiscrimination on the Basis
of Disability in Air Travel, 14 CFR Pt 382 including November 1996
amendments, at 14, U.S. Department of Transportation (1996).
3 See 49 US.C. 41708(a), (b).
4 See 49 US.C. 41310(a) (formerly
49 U.S.C. 1374(b)) (stating "An air carrier or foreign air carrier
may not subject a person, place, port or type of type of traffic
in foreign air transportation to unreasonable discrimination.").
5 See Lufthansa German Airlines,
Order 98-9-23, September 23, 1998, and Alitalia, Order 98-12-19,
December 15, 1998 (US. Department of Transportation).
6 See 132 Cong Rec. 21770 (daily
ed. August 15, 1986) (quoting Sen. Dole).
7 See id at 21772 (quoting Sen.
Metzenbaum).
8 See 132 Cong Rec. 21770-71 (daily
ed. September 18, 1986) (quoting statements of Rep. Snyder and Rep.
Ackerman).
9 National Council on Disability, Achieving
Independence: The Challenge for the 21st Century, A Decade of Progress
in Disability Policy Setting an Agenda for the Future (July
26, 1996), at 155
10 See id
11 Americans with Disabilities Act, 42
US.C. §§12101 et seq. Individuals with Disabilities Education
Act, Pt. B, 20 U.S.C. §§1400 et seq. Fair Housing Act
with 1988 Amendments, 42 U.S.C. §§3601-3619 (1988); ACAA,
49 U.S.C. §1374(c) (1986).
12 Federal Aviation Act, 49 U.S.C. §§1374
et seq. (1958).
13 See Nondiscrimination on the
Basis of Disability in Air Travel, 14 CFR § 38249(a)(2) (1996).
14 See PVA v CAB, 752 F.2d 694 (D.C.
Cir. 1985); see also DOT v. PVA, 477 U.S. 597 (1986).
15 See supra note 12, §1374(a)
16 See supra note 12, §1374(b)
17 Federal agency responsible for aviation
industry regulation before the agency was abolished and its functions
transferred to the US. Department of Transportation.
18 See US. Department of Transportation
Office of General Counsel comments on the draft Air Carrier Access
Enforcement Report (August 21, 1998), p. 10 (hereinafter OGC comments).
19 See supra note 2, at 13-14
20 Rehabilitation Act of 1973, Pub L. No.
93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. §701
et seq.) (1973).
21 29 US.C. §794(a) (1988).
22 See supra note 2, at 14
23 See id, at 13.
24 See PVA v CAB, 752 F.2d 694 (D.C.
Cir. 1985).
25 See DOT v PVA, 477 U.S. 597 (1986).
26 See supra note 1
27 See supra note 2, at 14-15
28 See supra note 2, at 15-17
29 See supra note 2, at 17
30 See supra note 2, at 17-18
31 See supra note 2, at 18
32 See 49 US.C. §1374(c)(1).
33 See supra note 1, at 21 (explaining
that "contract of carriage" refers to "those reasonable requests
of air carrier personnel, with which all passengers, whether or
not disabled, may be expected to comply as a condition for air travel
service)
34 See 14 CFR §3825 (1990).
35 See id §382.7.
36 See id
37 See id §382.55(c).
38 See id §382.55(b).
39 See id §382.57.
40 See id §382.7.
41 See id §382.9.
42 See Air Transport Association,
1997 Annual Report (June 1997), at 15
43 See id
44 See supra note 2, at 36-37
45 See id
46 See Nondiscrimination on the
Basis of Disability in Air Travel, 63 Fed Reg. 10, 529, 10535-36
(1998) (to be codified at 14 CFR pt. 382).
47 See CFR §38261(a) (1990).
48 See id §382.61(a)(1).
49 See id §382.61(a)(2).
50 See id §382.61(a)(3).
51 14 CFR §121 contains operating
requirements including training, for all domestic, flag, and supplemental
operations; 14 CFR §135 contains parallel requirements for
commuter and on-demand operations
52 See 14 CFR §38261(a)(4)
(1990).
53 See id §382.61(a)(5).
54 See id §382.61(a)(6).
55 See id §382.61(a)(7).
56 See id §382.61(b).
57 See 14 CFR §38263(a)(4)
(1990).
58 See id §382.63(a)(2).
59 See id §382.63(b).
60 See id §382.63(c)(1), (2).
61 See id §382.63(c)(3), (d).
62 See 14 CFR §38265(a) (1990).
63 See id §382.65(a)(1), (2).
64 See id §382.65(a)(3).
65 See id §382.65(a)(4).
66 See id §382.65(a)(4)(i)-(iv).
67 See 14 CFR §38265(b) (1990).
68 See id §382.65(b)(1).
69 See id §382.65(b)(2).
70 See id §382.65(b)(3).
71 See id §382.65(b)(3)(I)-(iii).
72 See 14 CFR §38265(d) (1990).
73 See 14 CFR §38263(c)(2),
(3).
74 See id §382.65(c).
75 See supra note 46, at 10535
76 See id at 10529.
77 See id at 10535.
78 See id
79 See id
80 See supra note 46, at 10535-36
81 See id at 10536.
82 See id
83 See id at 10536-37.
84 See id
85 See supra note 46, at 10529
86 Conway v United Airlines, U.S.
Dist. Ct. D.ME. (1997).
87 Sharon G Miller's proposed amendment
to 49 U.S.C. §41705 (draft) (October 1997) (on file with author).
88 See supra note 5
89 Interview with Samuel Podberesky, Assistant
General Counsel for Aviation Enforcement and Proceedings and Dayton
Lehman, Deputy Assistant General Counsel for Aviation Enforcement
and Proceedings, in Washington, DC. (November 6, 1997) (Information
revised in OGC comments of August 21, 1998).
90 Interview with Hoyte B Decker, Jr.,
Assistant Director for Aviation Consumer Protection (now retired),
in Washington, D.C. (November 22, 1997).
91 Airline Deregulation Act of 1978, PubL.
95-504, Stat. (codified at 49 U.S.C. ) October 24, 1978.
92 Civil Aeronautics Board Sunset Act of
1984, PubL. 98-443, Stat. (codified at 49 U.S.C. ) October 4, 1984.
93 See supra note 90
94 See 49 US.C. 1374(b) (lapsed).
95 See 49 US.C. 1374(a).
96 See supra note 90
97 See id
98 See id
99 See id
100 See id
101 See supra note 90
102 See id
103 See supra note 89
104 As no formal documentation describing
roles and responsibilities was made available to researchers, pages
accessible from the DOT Office of General Counsel's website provided
an overview of several organizations discussed in this section See
http://www.dot.gov/ost/ogc/org/aviation/index.html
(visited 10/15/97).
105 See id
106 See 14 CFR 302201.
107 See supra note 104
108 See id
109 Telephone interview with Charlotte
Boeck, Administrative Officer for the Office of General Counsel,
in Washington, DC. (March 10, 1998).
110 Interview with Samuel Podberesky, Assistant
General Counsel for Aviation Enforcement and Proceedings Office,
in Washington, DC. (November 23, 1998).
111 See id
112 See supra note 109
113 See id
114 See id
115 See id
116 See supra note 89
117 Interview with Julie Zirlin, Acting
Chief of External Policy and Program Development Division, in Washington,
DC. (December 1997).
118 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to air carrier executives
(April 25, 1990) (on file with DOT Aviation Consumer Protection
Division).
119 See id
120 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to air carrier executives
(November 29, 1990) (on file with DOT Aviation Consumer Protection
Division).
121 See id
122 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to air carrier and
travel agency executives (December 20, 1991) (on file with DOT Aviation
Consumer Protection Division).
123 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to aviation consumer
report recipients (April 2, 1992) (on file with DOT Aviation Consumer
Protection Division).
124 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to air carrier executives
(March 16, 1993) (on file with DOT Aviation Consumer Protection
Division).
125 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to aviation consumer
report recipients (April 5, 1993) (on file with DOT Aviation Consumer
Protection Division).
126 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to air carrier executives
(July 15, 1993) (on file with DOT Aviation Consumer Protection Division).
127 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to aviation consumer
report recipients (October 7, 1993) (on file with DOT Aviation Consumer
Protection Division).
128 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to aviation consumer
report recipients (November 4, 1996) (on file with DOT Aviation
Consumer Protection Division).
129 Letter from Hoyte B Decker, Jr., Assistant
Director for Consumer Protection (now retired), to major and national
airlines, air transport organizations, and certain disability groups
(May 23, 1997) (on file with DOT Aviation Consumer Protection Division).
130 Letter from Norman A Strickman, Chief
of Aviation Consumer Protection Division, to the 10 largest U.S.
certificated airlines (August 12, 1998) (on file with DOT Aviation
Consumer Protection Division).
131 See supra note 90
132 See OGC comments (August 21,
1998), p 14.
133 Interview with Hoyte B Decker, Jr.,
Assistant Director for Consumer Protection (now retired), in Washington,
D.C. (November 5, 1997).
134 Telephone interview with Samuel Podberesky,
Assistant General Counsel for Aviation Enforcement and Proceedings,
in Washington, DC. (December 22, 1998).
135 See supra note 133
136 Interview with Samuel Podberesky, Assistant
General Counsel for Aviation Enforcement and Proceedings, and Michael
Spollen in Washington, DC. (November 23, 1998).
137 See supra note 132
138 Interview with Robert C Ashby, Deputy
Assistant General Counsel for Regulation and Enforcement, in Washington,
D.C. (December 1, 1997).
139 See supra note 136
140 See supra note 132 (The Enforcement
Office is currently considering the advisability and feasibility
of working with the Federal Aviation Administration to ensure airlines'
compliance with ACAA accessibility requirements)
141 See id
142 See id, at 15.
143 See 14 CFR §38265(5)(iv).
144 See supra note 132 at 15
145 See supra note 133
146 On the other hand, the voice mail on
DOT's consumer assistance line (202-366-2220) does inform callers
that DOT does not have staff to mediate individual complaints or
return phone calls, but will log their complaints in the database
147 See supra note 133
148 Interview with Hoyte B Decker, Jr.,
Assistant Director for Consumer Protection (now retired), in Washington,
D.C. (January 20, 1998).
149 This figure comes from the data of
a major carrier These data were obtained as part of discovery in
a lawsuit against the carrier.
150 See supra note 89
151 Interview with Hoyte B Decker, Jr.,
Assistant Director for Consumer Protection (now retired), in Washington,
D.C. (November 13, 1997).
152 See supra note 133
153 See id
154 See OGC comments (August 21,
1998), p 6.
155 See 14 CFR §302205.
156 See supra note 89
157 See id
158 See id
159 See supra note 136
160 See supra note 89
161 See id
162 See OGC comments (August 21,
1998), p 15.
163 See id, at 18.
164 See Southwest Airlines Proceeding,
No 87-11-16 (November 6, 1987) (Dept. of Transportation).
165 See Moody v Delta, No. 95-11-6
(November 3, 1995) (Dept. of Transportation).
166 See Del Colle v Continental Airlines,
No. 94-12-39 (December 28, 1994).
167 See supra note 164
168 See Wood v American Airlines,
No. 95-10-14 (October 10, 1995) (Dept. of Transportation).
169 See Roberts v USAir, No. 95-7-38,
(July 26, 1995) (Dept. of Transportation).
170 See Seligman v Northwest Airlines,
No. 94-12-38 (December 28, 1994) (Dept. of Transportation).
171 See Segarra v America West Airlines,
No. 94-4-20 (April 11, 1994) (Dept. of Transportation).
172 See Hacker v Southwest Airlines,
No. 93-10-10 (October 5, 1993) (Dept. of Transportation).
173 See Vasquez v Southwest Airlines,
No. 89-6-12 (June 9, 1989) (Dept. of Transportation).
174 See Sontag v Simmons Airlines,
No. 89-2-8 (February 3, 1989) (Dept. of Transportation).
175 See Greenberg v American Airlines,
No. 88-9-31 (September 16, 1988) (Dept. of Transportation).
176 See American Airlines, No 95-9-1
(September 1, 1995) (Dept. of Transportation).
177 Tunison v Continental Airlines
178 See Shinault v American Airlines,
936 F.2d 796 (5th Cir. 1991); see also Tallarico v. Trans World
Airlines, 881 F.2d 56 (8th Cir. 1989).
179 Interview with Don Trilling, DOT Director
of the Office of Environment, Energy, and Safety, and Ira Laster,
Senior Program Analyst, in Washington, DC. (December 3, 1997).
180 See id
181 Interview with Robert Herman, Senior
Advocacy Attorney for Paralyzed Veterans of America, in Washington,
DC. (October 6, 1997).
182 See supra note 138
183 See id
184 See OGC comments (August 21,
1998), p 18.
185 Interview with Albert H Prest, Vice
President of Operations, Ronald J. Welding, Director of Operations
Standards; and David A. Berg, Assistant General Counsel for Air
Transport Association of America, in Washington, D.C. (December
12, 1997).
186 See id
187 See id
188 See id
189 Capozzi, David M (Fall 1989). The
Disabled Fly Unfriendly Skies, 71 Bus & Soc Rev 22, 26.
190 Paralysis Society of America Airline
Survey (August 1995-August 1996)) published by Paralyzed Veterans
of America (PVA) under the auspices of PVA's Access to the Skies
program
191 One person who notified the airline
in advance that she would require a lift had to crawl up the stairs
because the lift was frozen
192 See supra note 190
193 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, July 14, 1997.
194 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, July 1997.
195 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, July 10, 1997.
196 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, July 22, 1997.
197 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, July 24, 1997.
198 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, July 21, 1997.
199 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, May 30, 1997.
200 Disability Complaint, Aviation Consumer
Protection Division, Office of Aviation Enforcement and Proceedings,
US. Dept. of Transportation, June 30, 1997.
APPENDIX
A 14 CFR Part 382
Requirements
Access to Aircraft--General Requirements
- Aircraft with 30 or more seats shall have movable
armrests on at least one-half of the passenger aisle seats. Aisle
seats restricted from use by a mobility-impaired person by a Federal
Aviation Administration (FAA) safety rule, or which are not feasible
locations for a movable armrest, are exempted.1
- Aircraft with one 100 or more seats shall have
priority space in the cabin designated for stowage of at least
one folding wheelchair.2
- Aircraft with more than one aisle shall include
at least one accessible lavatory.3 An accessible lavatory
means
- All lavatory handles, dispensers, and other controls
can be used by persons with manual impairments and persons using
wheelchairs;
- Passengers can enter, maneuver within, and leave
by means of the aircraft's on-board wheelchair; and
- Passengers have privacy equivalent to that afforded
ambulatory users.4
- Aircraft with more than 60 seats having an accessible
lavatory shall be equipped with an operable on-board wheelchair.5
- Aircraft with more than 60 seats shall have an
operable on-board wheelchair available upon request by a passenger
with a disability and advance notice that it is needed to reach
a nonaccessible lavatory from his or her seat.6 Air
carriers shall comply with this provision by August 5, 1992.7
ATR-72 and ATP aircraft seating 60-70 passengers are exempted.8
Access to Aircraft--Implementation Responsibilities
- All air carriers shall ensure:
- On-board wheelchairs meeting Part 382 design specifications
are provided on aircraft having accessible lavatories and more
than 60 seats by August 5, 1992;9
- Nonaccessible features of cabin interiors, as
replaced, conform to applicable accessibility requirements.10
Replaced features shall meet a level of accessibility not less
than that specified in Part 38211;
- All aircraft accessibility features are maintained
in proper working order;
- Aircraft ordered after August 5, 1990, or delivered
after August 5, 1992, meet all accessibility requirements consistent
with the aircraft's size and structure;12 and
- Cabins are configured or administrative systems
established so that seating in rows with movable armrests is readily
available to passengers with mobility impairments.13
Access to Airports--General Requirements Under Part
382 and Section 504
- Terminal facilities and services provided by air
carriers, including frequent flyer clubs, shall meet the Americans
with Disabilities Act (ADA) Title III accessibility standards
for public accommodations.14
- Terminal facilities and services provided by airport
operators receiving federal assistance shall meet access requirements
applying to state and local government programs and facilities
under ADA (Title II).15
- The accessibility standard for airport facilities
shall be the Americans with Disabilities Act Accessibility Guidelines
(ADAAGs), including section 10.4.16
Access to Services--General Requirements
- Air carriers shall not refuse to provide transportation
to a qualified person with a disability on the basis of his or
her disability unless refusal to transport is specifically permitted
by the regulation.17
- Air carriers may refuse transportation to a passenger
with a disability on the basis of safety, or to comply with the
Federal Aviation Regulations, but shall apply such rules in a
nondiscriminatory manner, or be subject to legal remedies.18
- Air carriers shall not refuse air transportation:
- By limiting the number of persons with disabilities
permitted to travel on a given flight,19 or
- When a passenger's disability results in appearance
or involuntary behavior that may offend, annoy, or inconvenience
crew members or other passengers.20
- Air carriers shall provide a written explanation
that includes the reasonable basis for the carrier's belief that
flight safety would be compromised within 10 calendar days to
any person refused transportation on a basis relating to his or
her disability.21
Access to Airports--Implementation Responsibilities
- Air carriers (Part 382) and airport operators (section
504) shall ensure
- An accessible path between the gate and the aircraft
boarding area (jetway, tarmac, etc.);22
- Compliance of interterminal transportation facilities
with the Department of Transportation's (DOT's) applicable ADA
requirements;23 and
- Contracts or leases between air carriers and airport
operators concerning use of airport facilities set forth their
respective responsibilities for providing accessible facilities
and services, as required under part 382, and for airport operators,
the applicable section 504 and ADA rules of the Department of
Justice (DOJ) and DOT.24
- Airport operators receiving federal assistance
shall submit a transition plan to the FAA meeting the requirements
of 49 CFR §27.65 by March 3, 1997.25
Access to Services --Implementation Responsibilities
Boarding assistance
- Air carriers shall provide
- Personnel and equipment (including ground wheelchairs,
boarding and on-board wheelchairs, ramps) needed to provide assistance
requested by or on behalf of a person with a disability in enplaning,
deplaning, making flight connections, and moving between gates.26
- Boarding by level entry platforms or accessible
passenger lounges, when available; otherwise, ramps, lifts, or
other suitable devices shall be maintained in working order for
enplaning and deplaning passengers as needed.27
- Air carriers shall not leave passengers who are
not independently mobile unattended in ground wheelchairs for
more than 30 minutes.
- Air carriers operating 19-30 seat capacity aircraft
at airports having 10,000 or more annual enplanements shall work
with the airports to provide mechanical lifts, ramps, or other
boarding assistance devices that do not require employees to lift
or carry passengers up stairs.28
- Air carriers shall negotiate in good faith with
airport operators concerning the acquisition and use of suitable
equipment, and execute written agreements allocating responsibilities
for meeting boarding assistance requirements by September 2, 1997.29
- Air carriers and airport operators are jointly
responsible for timely and complete implementation of the agreements.30
- Agreements shall be made available to DOT upon
request.31
- Agreements shall provide for the completion of
all actions necessary to ensure accessible boarding as soon as
possible, and no later than
- December 2, 1998, at medium and large commercial
service hub airports
- December 2, 1999, at small commercial service
hub airports; and
- December 4, 2000, for nonhub commercial service
primary airports.32
- Agreements shall ensure that all accessibility
equipment is maintained in proper working condition.33
- Agreements may require passengers wishing to receive
boarding assistance by lift to check-in one hour before scheduled
departure.34
- Air carriers shall provide boarding assistance
by lift when the passenger checks in less than one hour before
departure, if it can do so without delaying the flight.35
- Boarding assistance under the agreement is not
required for
- access to aircraft with a capacity of fewer than
19 and more than 30 seats,
- access to float planes, or
- access to models of 19-seat aircraft determined
by DOT to be unsuitable for boarding assistance.36
- When mechanical boarding assistance is not required
or cannot be provided for reasons beyond the control of the parties
to the agreement, boarding assistance shall be provided by any
means acceptable to the passenger except hand-carrying.37
- Air carriers shall not require personnel to provide
boarding assistance that involves hand- carrying a passenger.38
- Air carriers shall ensure that personnel are trained
to proficiency in operating boarding assistance equipment and
in following procedures to protect the safety and dignity of passengers.39
- When a flight cancellation or substitution of inaccessible
equipment forces a passenger to travel with a different air carrier,
air carriers shall assist the second carrier in providing accommodations
requested by the passenger to the maximum extent feasible. 40
Seat Assignments
- Air carriers shall not exclude persons with disabilities
from any seat in an exit row or other location or require seating
in a particular seat, except to comply with FAA safety regulations.41
- Air carriers refusing transportation on the basis
of safety must offer seating in a particular location as an alternative,
when the safety problem would thereby be sufficiently mitigated.42
- Air carriers shall offer, if available, a seat
location that can accommodate a passenger's service animal, when
the original seat location cannot, as an alternative to requiring
the animal to travel with checked baggage.43
In-Cabin Assistance
- Air carrier personnel are required to provide assistance
in
- Moving to and from seats;
- Preparation for eating;
- Use of the on-board wheelchair in moving to and
from the lavatory;
- Movement to and from the lavatory for semi-ambulatory
persons, excluding lifting or carrying; and
- Loading and retrieving carry-on items, including
mobility aids and assistive devices stowed onboard.44
- Air carrier personnel are not
required to provide extensive special assistance, including
- Assistance in eating (feeding);
- Assistance with elimination functions either in
the lavatory or at the passenger's seat; or
- Medical services.45
Personal Equipment Stowage
- In accordance with applicable regulations, air
carriers shall permit qualified passengers to
- Bring on board and use personal equipment that
meets required safety standards, including ventilators/respirators
and nonspillable batteries;46
- Stow canes and other assistive devices near their
seats;47
- Store wheelchairs (assembled or components) in
overhead compartments or under seats;48 and
- Provide air carrier personnel with written directions
for assembling and disassembling their wheelchairs.49
- Air carriers shall not count toward a limit on
carry-on items any assistive device brought onboard by a qualified
passenger.50
- Air carriers shall
- Designate priority stowage space for at least
one wheelchair in aircraft having stowage areas large enough to
accommodate a folding wheelchair.51
- Give priority to wheelchair stowage in approved
areas for passengers who are offered and accept preboarding; passengers
who do not accept a preboarding offer may use the areas on a first-come,
first-served basis.52
- Stow wheelchairs in the cargo department when
no in-cabin stowage area is available.53
- Accept and carry battery-powered wheelchairs (including
batteries) as baggage, consistent with DOT safety regulations,
where aircraft size and safety considerations do not prohibit
doing so.
- Give priority to a passenger's wheelchair or other
assistive device over other cargo and baggage for stowage in the
aircraft's baggage compartment.54
- Give priority over other items to the retrieval
and timely return to the passenger of wheelchairs and other assistive
devices from the aircraft's baggage compartment.55
- Make every effort to ensure arrival of the passenger's
baggage within four hours of his or her flight's scheduled arrival,
if the baggage and the assistive device cannot be accommodated
on the same flight.56
- Provide for checking and timely return of wheelchairs
and other assistive devices to the passenger either as close to
the door of the aircraft as permitted by DOT safety regulations
or at the baggage claim area, as the passenger requests.57
Wheelchairs
- Air carriers shall:
- Transport electric wheelchairs in an upright position
whenever feasible in order to meet DOT safety standards without
separating the battery from the chair.58
- Provide DOT-approved packaging materials and package
wheelchair batteries when the battery must be detached from the
chair. Use of packaging materials other than those normally used
for this purpose is at the discretion of the air carrier.59
- Reassemble and promptly return to passengers wheelchairs
and other assistive devices disassembled for stowage in the condition
received.60
- Air carriers shall not
- Drain batteries used by wheelchairs or other assistive
devices.61
- Limit liability for loss, damage, or delay concerning
wheelchairs and other mobility aids on domestic flights to any
amount less than twice the limit established for luggage under
14 CFR 254 (generally $1,250 per passenger).62
- Require passengers to sign waivers of liability
for damage to wheelchairs and other assistive devices.63
Passenger Information
- Air carriers shall make available the following
information to passengers upon request:
- The location of seats with movable armrests and
any seats not made available to persons with disabilities;64
- Any limitations on an aircraft's ability to accommodate
persons with disabilities, including limitations on the availability
of boarding assistance to the aircraft at departure and destination
points as well as intermediate stops. Any passenger who states
that he or she uses a wheelchair for boarding shall be provided
this information, even if he or she does not explicitly request
it.65
- Any limitations on the availability of storage
facilities for mobility aids and other assistive devices in the
cabin or baggage compartment.66
- Whether the aircraft has an accessible lavatory.67
- With respect to safety briefings, air carrier personnel
shall
- Conduct individual safety briefings for passengers
as required by DOT regulations and for any other passenger as
they wish.68
- Conduct individual safety briefings as inconspicuously
as possible.69
- Impose no requirement to demonstrate understanding
or "acceptance" of a safety briefing beyond that required of all
passengers, or take related adverse action against any passenger
with a disability.70
- Air carrier personnel shall provide to persons
with vision or hearing impairments who request assistance timely
access to information routinely provided to other passengers in
the terminal or on the aircraft (e.g., flight delays, schedule
changes, connections, gate assignments, aircraft changes).71
- Air carriers shall maintain a copy of Part 382
at every airport they use, available for review by passengers
upon request.72
Hearing Impairments
- All air carriers making telephone reservation and
information service available to the public shall provide the
same service during the same hours via a teletype (TTY) device
for the deaf. The response time for answering TTY calls shall
be equivalent to that for the general public and the charge for
the service may not exceed the charge to the general public.73
- Air carriers using video screens to present safety
briefings shall ensure that the presentation is accessible to
persons with hearing impairments.74 Open captioning
and sign-language insets are the preferred methods of implementation.
If neither method is feasible, nonvideo alternatives may be used.75
Uncaptioned video materials shall be replaced in the normal course
of the carrier's operations with captioned materials.76
Security Screening
- Security requirements for persons with disabilities
shall be no different from those for other passengers. Security
searches of persons with disabilities shall be conducted in the
same manner as for other passengers. Persons with disabilities
shall not be subject to private security screenings more frequently
or for different reasons than other passengers.77
- Passengers traveling with assistive devices shall
not be subject to a special screening if their devices clear the
security system without activating it. Security personnel may,
however, examine any device that in their judgment may conceal
a prohibited item.78
- Requests for a private screening will allow sufficient
time for the passenger to enplane. If the air carrier's security
system can conduct an appropriate screening without a physical
search, a private screening need not be provided.79
Communicable Diseases
- Air carriers may take any of the following actions
with respect to a person having a communicable disease or infection,
only if the individual's condition poses a direct threat to the
health or safety of others:
- Refusal to provide air transportation;
- Requirement to provide a medical certificate;
or
- Imposition of conditions or restrictions not imposed
on other passengers.80
- "Direct threat" means a significant risk to the
health and safety of others that cannot be eliminated by a modification
of policies, practices, or procedures or the provision of auxiliary
aids or services.81
- Air carriers shall not subject a passenger to any
of the above restrictions solely on the basis that the person
has a communicable disease or infection.82
- Whether an individual poses a direct threat is
determined by an individualized assessment based on reasonable
judgment, relying on objective evidence and current medical knowledge,
to ascertain the risk of harm to others, and if the risk can be
mitigated.83
- Air carriers shall select the least restrictive
alternative from the viewpoint of the person having the communicable
disease, consistent with the safety and health of others.84
- Unless doing so is not feasible, air carriers shall
provide air transportation to passengers with a communicable disease
or infection who have a medical certificate in which the conditions
necessary to prevent transmission of the disease or infection
to others in flight are set forth.85
- Air carriers shall provide a written explanation
of any action taken within 10 days of the passenger's request.86
- When a passenger's travel is postponed because
of a determination of posing a direct threat to others, the air
carrier shall permit the passenger to travel within 90 days at
the same fare and without penalty, or at the passenger's discretion,
to receive a refund for any unused flights.87
Medical Certificates
- Air carriers shall not require a medical certificate
of any passenger with a disability unless he or she
- is traveling on a stretcher or in an incubator;88
- needs medical oxygen in flight;89
- has a medical condition so serious that a reasonable
doubt exists as to whether he or she can safely complete the flight
without extraordinary medical assistance;90 or
- has a communicable disease or infection that could
be transmitted to others during the flight.91
- A valid medical certificate is a written statement
signed by the passengers physician, dated within 10 days of the
flight, stating that the present condition of the passenger's
communicable disease or infection would not pose a risk of transmission
to others during the flight.92 The certificate shall
state any conditions or precautions necessary to prevent transmission
to others during the flight.93
Advance Notice
- Air carriers shall not require a passenger with
a disability to give advance notice of his or her disability either
as a condition for air transportation or to receive any services
or accommodations required by Part 382.94
- Air carriers may require up to 48 hours advance
notice and one hour advance check-in for a passenger who requires
the following services, equipment or accommodations:
- transportation of an electric wheelchair on an
aircraft with fewer than 60 seats;95
- provision of hazardous materials packaging for
wheelchair or assistive-device battery;96
- accommodation for a group of 10 or more persons
with disabilities who make reservations and travel as a group;97
and
- provision of an on-board wheelchair on aircraft
lacking an accessible lavatory.98
- If an air carrier makes the following services
available on a given flight, up to 48 hours advance notice and
one hour advance check-in may be required for passengers requesting
the following services, equipment, or accommodations:
- medical oxygen for in-flight use;99
- incubator;100
- respirator hook-up to the aircraft's electrical
power supply;101 or
- stretcher accommodation.102
- Air carriers are required to make a reasonable
effort (without delaying the flight) to accommodate passengers
who do not meet the above advance notice or check-in requirements.103
- Air carriers shall ensure that reservation and
other administrative systems operate to effectively record and
transmit advance notice requests to the operating employees responsible
for providing the accommodations.104
- Air carriers are required to ensure that accommodations
requested with the proper advance notice are provided.105
Attendants
- With specific exceptions, air carriers shall not
require a passenger with a disability to travel with an attendant
as a condition for air transportation.106
- Air carriers may require passengers meeting the
following criteria to travel with an attendant:
- when an attendant is determined essential for
safety;
- persons traveling on a stretcher or in an incubator;
the attendant must be capable of meeting their in-flight medical
needs;107
- persons with mental disabilities rendering them
unable to understand or respond appropriately to mandatory safety
instructions;108
- persons unable to assist in their own evacuation
from an aircraft because of severe mobility impairment;109
- persons who are both severely visually and hearing
impaired, when communication with air carrier personnel adequate
to transmit mandatory safety instructions cannot be established.110
- Air carriers requiring a passenger who is mentally
disabled, mobility impaired or deaf-blind to travel with an attendant
contrary to his or her own self-assessment shall not charge for
the attendant's transportation.
- Air carriers requiring a passenger to travel with
an attendant shall deem the attendant to have checked in at the
same time as the passenger. If a passenger is denied boarding
because a seat for his or her required attendant is unavailable,
air carriers shall provide denied boarding compensation in accordance
with 14 CFR part 250.111
Service Animals
- Air carriers shall
- permit dogs and other animals serving persons
with disabilities to accompany them on a flight at the seat where
the passenger is sitting, unless the animal obstructs an area
that must remain unobstructed for emergency evacuation.112
- accept any credible physical or verbal evidence
that an animal is a service animal;113 and
- provide to any passenger traveling with an animal
(including service animals) to a foreign destination on their
airline, whatever special information applies concerning the transportation
of animals outside the continental United States.114
ENDNOTES
1 §38221(a)(1) (i), (ii)
2 §38221(a)(2)
3 §38221(a)(3)
4 Id.
5 §38221(a)(4)(i)
6 §38221(a)(4)(ii)
7 §38221(b)(2)
8 1992 Exemption for ATR and ATP aircraft
from the requirement for an onboard wheelchair, 57 FR 12872 (April
14, 1992)
9 §38221(a)(4)(iii)
10 §38221(c)
11 §38221(e)
12 §38221(f)
13 §38221(a)(1)(iii)
14 §38221(b)
15 49 CFR§2771(b)
16 14 CFR §38223(e) (1996) and 49
CFR §27.71(e) (1996)
17 14 CFR §38231(a)
18 14 CFR §38231(d)
19 14 CFR §38231(c)
20 14 CFR §38231(b)
21 14 CFR §38231(e)
22 14 CFR §38223(c) (1996) and 49
CFR §27.7(c) (1996)
23 14 CFR §38223(d) (1996) and 49
CFR §27.71(d) (1996)
24 14 CFR §38223(f) (1996) and 49
CFR §27.71(f) (1996)
25 49 CFR §2771(g) (1996)
26 14 CFR §38239(a)(1)
27 14 CFR §38239(a)(2)
28 14 CFR §38240 (1996)
29 14 CFR §38240(c)(1) (1996)
30 14 CFR §38240(c)(2) (1996)
31 14 CFR §38240(c)(1) (1996)
32 14 CFR §38240(c)(2) (1996)
33 14 CFR §38240(c)(6) (1996)
34 14 CFR §38240(c)(3) (1996)
35 Id.
36 14 CFR §38240(c)(4) (1996)
37 14 CFR §38240(c)(5) (1996)
38 14 CFR §38249(a)(2) (1996)
39 14 CFR §38240(d) (1996)
40 14 CFR §38233(f)
41 14 CFR §38237(a)
42 14 CFR §38237(b)
43 14 CFR §38237(c)
44 14 CFR §38239(b)
45 14 CFR §38239(c)
46 14 CFR §38241(b)
47 14 CFR §38241(c)
48 14 CFR §38241(e)(1)
49 14 CFR §38241(g)(5)
50 14 CFR §38241(d)
51 14 CFR §38241(e)(2)
52 Id.
53 14 CFR §38241(e)(3)
54 14 CFR §38241(f)(3)
55 14 CFR §38241(f)(2)
56 14 CFR §38241(f)(3)
57 14 CFR §38241(f)(1)
58 14 CFR §38241(g)(2)
59 14 CFR §38241(g)(3)
60 14 CFR §38243(a)
61 14 CFR §38241(g)(4)
62 14 CFR §38243(b)
63 14 CFR §38243(c)
64 14 CFR §38245(a)(1)
65 14 CFR §38245(a)(2) (1996).
66 14 CFR §38245(a)(3)
67 14 CFR §38245(a)(4)
68 14 CFR §38245(b)(1), (2)
69 14 CFR §38245(b)(3)
70 14 CFR §38245(b)(4)
71 14 CFR §38245(c)
72 14 CFR §38245(d)
73 14 CFR §38247(a)
74 14 CFR §38247(b)
75 14 CFR §38247(b)(1), (2)
76 14 CFR §38247(c)
77 14 CFR §38249(a)
78 Id.
79 14 CFR §38249(b), (c)
80 14 CFR §38251(a)
81 14 CFR §38251(b)(2) (1996)
82 14 CFR §38251(a)
83 14 CFR §38251(b)(3) (1996)
84 14 CFR §38251(b)(4) (1996)
85 14 CFR §38251(c)
86 14 CFR §38251(b)(6) (1996)
87 14 CFR §38251(b)(5) (1996)
88 14 CFR §38253(b)(1)(i)
89 91 14 CFR §38253(b)(1)(ii)
90 14 CFR §38253(b)(1)(iii)
91 14 CFR §38253(c)(1)
92 14 CFR §38253(b)(2)
93 Id.
94 14 CFR §38233(a)
95 14 CFR §38233(b)(5)
96 14 CFR §38233(b)(6)
97 14 CFR §38233(b)(7)
98 14 CFR §38233(b)(8)
99 14 CFR §38233(b)(1)
100 14 CFR §38233(b)(2)
101 14 CFR §38233(b)(3)
102 14 CFR §38233(b)(4)
103 14 CFR §38233(c)
104 14 CFR §38233(d)
105 14 CFR §38233(e)
106 14 CFR §38235(a)
107 14 CFR §38235(b)(1)
108 14 CFR §38235(b)(2)
109 14 CFR §38235(b)(3)
110 14 CFR §38235(b)(4)
111 14 CFR§38235(d), (e)
112 14 CFR §38255(a)(2)
113 14 CFR §38255(a)(1)
114 14 CFR §38255(a)(3)
APPENDIX
B Summary of Complaints Filed Directly
with a Major Air Carrier
(January 1993-November 1996)*
Total Complaints: 5072
DAF -- Disabled Dissatisfied
W/ Aircraft Facilities -- 74
DAF -- Closed captioning -- 23
DAF -- No onboard wheelchair (aisle chair) -- 7
DAF -- Restrooms inaccessible -- 8
DAF -- Equipment mishandling -- 1
DAF -- Widen aisles -- 2
DAF -- Lack of assistance/information -- 11
DAF -- Oxygen undelivered/mishandled -- 6
DAF -- Connecting times too short -- 1
DAF -- Wheelchair miscellaneous -- 4
DAF -- Passenger injury during transfer/transport -- 1
DAF -- No movable armrests -- 1
DAF -- Bulkhead seating complaint -- 1
DAF -- Miscellaneous/no explanation -- 10
CONT -- Contract Employee
Complaint -- 305
DCONT -- Abandoned W/O assistance/assistive device
-- 51
DCONT -- Long wait time for assistance/transport -- 11
DCONT -- Refused assistance to transport/transfer -- 25
DCONT -- Separated from travel companion(s) -- 3
DCONT -- Unsafe transfer/injury during transfer/transport -- 46
DCONT -- Staff incompetent/untrained -- 19
DCONT -- Mistreated -- 28
DCONT -- Tipping solicited/demanded/scoffed -- 18
DCONT -- Lost and/or missed connecting flight -- 44
DCONT -- Burned on W/C/broken W/C -- 8
DCONT -- Refused W/C use -- 22
DCONT -- Refused W/C use W/O deposit -- 2
DCONT -- Security complaints misc. -- 9
DCONT -- Theft -- 5
DCONT -- Refused restroom stop -- 1
DCONT -- Andy Frain complaints -- 5
DCONT -- Charged for service van -- 1
DCONT -- Non-English-speaking -- 6
DCONT -- Damaged items -- 1
DCONT -- Miscellaneous cont complaints/no explanation -- 30
DCSAH -- Disabled Passenger
Assistance by Customer Service Agent -- 1258
DCSAH -- Boarding/deboarding complaints -- 71
DCSAH -- Denied/challenged W/C assistance -- 338
DCSAH -- Refused/challenged need for assistance -- 198
DCSAH -- Mistreated/rude/incompetent staff -- 132
DCSAH -- Seating complaint -- 54
DCSAH -- No aisle chair/mishandling -- 36
DCSAH -- Miscellaneous CSA complaints/no explanation -- 208
DCSAH -- W/C misc. -- 20
DCSAH -- Oxygen mishandling/overchg/no delivery -- 55
DCSAH -- Injury during transfer/transport -- 33
DCSAH -- Missed connection/misboarded/wrong gate -- 100
DCSAH -- Lost/abandoned without assistance -- 72
DCSAH -- Non-English speaking/no assistance -- 9
DCSAH -- IV Hookup not set up -- 1
DCSAH -- Property mishandled/lost -- 9
DCSAH -- W/C damage -- 2
DCSAH -- Delayed assistance/W/C arrival -- 21
DCSAH -- Forced to check assistive device before gate -- 39
DCSAH -- No jetway/no lift -- 17
DCSAH -- Solicited tip -- 3
DCSAH -- TTY not available/not easily located -- 2
DCSAH -- ACAA violation complaints -- 15
DCSAH -- Denied cart for transfer/transport -- 14
DCSAH -- Moveable armrest complaints -- 6
DCSAH -- Denied service animal onboard -- 1
DCSAH -- Denied travel -- 1
DDDWC -- Damaged Wheelchair
-- 71
DDWC
-- Delayed Wheelchair (Delayed W/C, denied W/C assistance,
denied W/C attendant, no aisle chair)-- 1871
DFAC -- 72
DFAC -- No access/accommodations for disabled -- 8
DFAC -- Restrooms inaccessible to disabled -- 2
DFAC -- No TTY -- 8
DFAC -- Delayed/denied W/C assistance -- 4
DFAC -- No elevator/lift -- 7
DFAC -- Miscellaneous/no explanation -- 3
DFAC -- Facility complaint -- 10
DFAC -- Misconnection/missed flight/misboard -- 3
DIFAT -- Lack of Flight
Attendant Assistance with Disabled Passenger -- 322
DIFAT -- Mistreatment/rude/discriminatory/incompetent
-- 63
DIFAT -- Refused/challenged need for assistance -- 140
DIFAT -- Denied preboard/preferential deboard -- 10
DIFAT -- Oxygen mishandled/not delivered -- 8
DIFAT -- Seating complaint/refusal to reseat -- 27
DIFAT -- Safety complaints/no safety info to blind/deaf -- 13
DIFAT -- No lift -- 2
DIFAT -- No W/C assistance/aisle chair operation -- 34
DIFAT -- Miscellaneous F/A complaints -- 32
DMISC -- Disabled Miscellaneous
-- 225
DMISC -- Restrooms inaccessible -- 1
DMISC -- Left abandoned without assistance -- 3
DMISC -- Mistreated/rude/incompetent -- 6
DMISC -- Misconnection/misboard/wrong gate -- 5
DMISC -- No W/C assistance -- 26
DMISC -- Miscellaneous disabled complaints -- 37
DMISC -- Oxygen mishandling/overcharge/no delivery -- 67
DMISC -- Refused/challenged/not offered assistance -- 11
DMISC -- Injury -- 12
DMISC -- Misc. non-disability related complaints -- 30
DMISC -- No dialysis onboard -- 1
DMISC -- Captioning for onboard videos -- 3
DMISC -- Theft alleged -- 1
DMISC -- Transport bus inaccessible -- 2
DMISC -- No cart assistance -- 2
DMISC -- Forced to check assistive device before gate -- 1
DMISC -- Seating complaint -- 5
DMISC -- Refused assistance with medications -- 3
DMISC -- No TTY -- 2
DMISC -- No preboard/preferred deboard -- 2
DMISC -- Longer connecting times -- 1
DMISC -- No accommodations for oversized individuals -- 4
DMISC -- Property damage -- 1
DMISC -- Charged for W/C use - 2
DPB -- Disabled PAX Preboarding
-- 63
DPRO -- Agent Unfamiliar
with Disabled Procedures -- 79
DPRO -- Oxygen procedures mishandled -- 7
DPRO -- Preboarding procedure mishandled -- 1
DPRO -- Wheelchair not provided -- 3
DPRO -- Escort fees -- 3
DPRO -- No lift -- 2
DPRO -- Forced to check assistive device before gate -- 5
DPRO -- Charged to check assistive device -- 1
DPRO -- No onboard stowage of assistive device -- 4
DPRO -- Unfamiliar with transfer procedures -- 3
DPRO -- Assistive device not returned at gate -- 2
DPRO -- Check in complaints for assistive device -- 2
DPRO -- W/C Battery procedures -- 6
DPRO -- Injury to PAX during transfer -- 3
DPRO -- Miscellaneous -- 5
DPRO -- W/C Mishandled/requirements -- 2
DPRO -- Non-attentive staff/non-assistive -- 5
DPRO -- Staff untrained -- 2
DPRO -- No service animals allowed onboard -- 2
DPRO -- Unfamiliar with Moveable Armrests -- 3
DPRO -- ACAA complaints -- 2
DRR -- Lack of Res. Assistance
W/Disabled PAX -- 123
DSEAT -- Disabled PAX Seating Problems -- 524
DSEAT -- Refused aisle/bulkhead/exit row seating -- 217
DSEAT -- Nondisabled seated in bulkhead -- 36
DSEAT -- Preassigned seat request denied -- 22
DSEAT -- Separated from companion -- 34
DSEAT -- Disabled in restricted (middle) seat -- 42
DSEAT -- Disabled seated at rear of plane -- 73
DSEAT -- Nondisabled complaints of disabled as Obstruction/safety
hazard in aisle seats -- 17
DSEAT -- No movable armrests -- 16
DSEAT -- No preboard/boarding assistance -- 15
DSEAT -- No seating near restrooms -- 4
DSEAT -- Disabled seated on upper deck of plane -- 2
DSEAT -- No aisle chair/delay -- 5
DSEAT -- No reclined seating -- 4
DSEAT -- Other -- 107
DTIPS -- Disabled PAX
Solicitation of Tips -- 20
DUNAT -- Disabled PAX
Left Unattended -- 65
*Note: The major category headings are listed verbatim
from the airline's file. The numbers in bold type are the total
complaints in each of the major categories. The subcategories have
been created from the brief narrative description provided for each
complaint. Multiple problems identified in the narrative have been
coded into the appropriate subcategories. Thus, subcategory totals
may exceed the total number of complaints recorded for the major
category heading.
W/ = with
W/O = without
W/C = wheelchair
MISC = miscellaneous
CSA = customer service agent
TTY = teletype
ACAA = Air Carriers Access Act
F/A = Flight attendant
PAX = passenger
APPENDIX
C Summarized Selected Complaints
from the Consumer Protection Division
Complaint
Basis/Disability Type: Failure to provide assistance/other
handicapped
Complaint Format: Other
Complaint Information: PAX
(66-year-old woman with unspecified disability) requested special
assistance at the airport. No assistance was given, forcing her
to stand for hours.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Assistive device (storage/loss/damage/delay/waiver)/other
wheelchair
Complaint Format: Letter
Complaint Information: PAX's
W/C completely demolished. Airline replaced, but refused to pay
more than $300. PAX given no choice regarding replacement. PAX told
that air carrier's consumer affairs office would direct baggage
dept. to contact her directly regarding unsatisfactory replacement
W/C.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/other
wheelchair
Complaint Format: Telephone
Complaint Information: Multiple
complaints alleging repeated failures to provide adequate assistance
throughout PAX's flights. PAX to send a follow-up summary letter
to DOT. PAX had called airline earlier and received a $100 voucher,
a gesture PAX found insulting. Concerned that airline take steps
to prevent similar treatment to other passengers with disabilities.
No follow-up letter found.
Outcome: Apology and voucher
Complaint
Basis/Disability Type: Assistive device (storage/loss/damage/delay/waiver)/oxygen
Complaint Format: Letter
Complaint Information: PAX
provided advance doctor's notice of need for medical oxygen in-flight.
Oxygen supply in-flight was insufficient and attendants failed to
notify EMS of needed oxygen upon landing. Airline attendant told
PAX that gate personnel were "union," so she could not guarantee
assistance. Airline sent letter of apology--nothing else.
Outcome: Apology
Complaint
Basis/Disability Type: Seat assignment restriction/other
handicapped
Complaint Format: Other
Complaint Information: PAX
requested bulkhead seating to relieve pain in leg. Bulkhead seat
was changed at flight time.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/other
wheelchair
Complaint Format: Letter
(not in file)
Complaint Information: No
W/C, cart, or other assistance provided to PAX's elderly, disabled
mother. Very last seats in the plane assigned on the final segment
of trip.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/hearing
impaired
Complaint Format: Letter
(not in file)
Complaint Information: Group
of deaf PAXs who requested assistance didn't get any. Two letters
of apology, including offers of vouchers, from airline. Complaint
marked as potential enforcement action.
Outcome: Apology and vouchers
Complaint
Basis/Disability Type: Assistive device (storage/loss/damage/delay/waiver)/oxygen
Complaint Format: Telephone
Complaint Information: PAX
barred from carrying on her husband's oxygen "concentrator." Wanted
to use during connecting stops and to ensure safety from damage
as checked baggage. Airline analyst determined device not a safety
problem; device could be placed in overhead storage or in closet
if PAX preboards. When DOT complaint analyst requested copy of airline
analyst's assessment of the device, airline's customer service representatives
refused, saying replies on 382 issues are "confidential and can't
be shared with DOT." Eventually DOT analyst got a copy of the report
and faxed it to the PAX. The next time the PAX flew on airline,
she presented the letter when she boarded the aircraft and was again
refused. DOT complaint analyst spent much time attempting to resolve
this matter. No letter documenting the complaint was in the file.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Seat assignment restriction/other
W/C
Complaint Format: Telephone/
(letter in file)
Complaint Information: PAXs
are husband and wife; both have multiple sclerosis. Both requested
advance assignment of bulkhead seating and were refused. DOT analyst
sent copy of NPRM on bulkhead seating and explained current situation.
Airline response states that bulkhead seats are held until the day
of departure and they can only have them if no PAXs with infants/bassinets
need them.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Seat assignment restriction/other
handicapped
Complaint Format: Letter
Complaint Information: PAX
is elderly, disabled woman who walks with two crutches/canes. Refused
seating near the front of the plane when her flight was changed.
Airline agent told her she had to reserve a front row seat 130 days
in advance and at midnight. Agent said that the policy of reserving
front row seats for persons with disabilities had been up for review,
and seats were no longer being held. File contained a response letter
from the airline saying, "[we are] sorry to learn of your disappointment_."
Letter said that present policy is to hold seats near the front
of the cabin for PAXs with disabilities until 48 hours before departure.
Letter also said PAX should advise agent of special needs when booking
the reservation, and "if available, the representative will assign
the seat to you."
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/other
handicapped
Complaint Format: Letter
(not in file)
Complaint Information: 73
year old PAX with emphysema assigned a seat at back of plane and
given no assistance. PAX sent a letter of complaint first to airline
and then to DOT. Airline apologizes for PAX's discomfort and says
that (1) PAX had no advance seat assignment; (2) the flight had
been oversold; 93) in oversold situation, final closeout of seat
assignments does not begin until 10 min. before departure ("orderly
process must be followed"); and (4) under the circumstances, the
airline was pleased they were able to transport her and provide
W/C assistance.
Outcome: Apology/inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/other
handicapped
Complaint Format: Telephone
Complaint Information: Attorney
called to register complaint on behalf of client. Client is seriously
ill with cancer and was treated very rudely by an airline agent.
Requests for information/ assistance were responded to with "Sit
down and shut up."
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/other
wheelchair
Complaint Format: Other (letter
in file)
Complaint Information: Severely
physically disabled elderly woman was told to get out of the W/C
at the elevator. Left without walker or any kind of assistance to
get herself and carry-on bag to the baggage claim area. PAX was
so frightened she became incontinent. Airline apologized for the
incident and personnel handling of the situation.
Outcome: Apology
Complaint
Basis/Disability Type: Failure to provide assistance/other
handicapped
Complaint Format: Letter
(not in file)
Complaint Information: Husband
and wife were both PAXs needing W/C assistance. None was provided.
In response letter, airline apologizes for incident and for disagreement
regarding airline compensation to PAXs for incident. Letter does
not address the specific complaint; says the "station managers"
have been alerted.
Outcome: Apology
Complaint
Basis/Disability Type: Failure to provide assistance/hearing
impaired
Complaint Format: Other
Complaint Information: Deaf
PAX explained need for special assistance to agent. Agent attached
a prominent "handicapped" sticker to ticket. Airline response letter
apologizes, but doesn't address the sticker issue.
Outcome: Apology
Complaint
Basis/Disability Type: Failure to provide assistance/other
handicapped
Complaint Format: Other
Complaint Information: PAX
has degenerative arthritis and requested assistance that she did
not receive on two separate occasions. Airline apologizes and offers
voucher. Complaint identified for potential enforcement action.
Outcome: Apology and voucher
Complaint
Basis/Disability Type: Assistive device (storage/loss/damage/delay/waiver)
/ oxygen
Complaint Format: Letter
Complaint Information: PAX
requested medical oxygen in-flight. PAX complained about the price
of the canisters and sought a refund for one that had not been used
at all during the flight. Two airline response letters stated that
the price of oxygen, while high, was within the industry standard.
Neither letter addressed her request to refund the cost of unused
oxygen.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/Other
wheelchair
Complaint Format: Letter
(no letter in file)
Complaint Information: PAX
in W/C was left at the airport for 18 hours after his flight was
canceled. When he recovered W/C, it had been mishandled and the
battery damaged. Rude treatment by the airline attendant who informed
them about Part 382.
Outcome: Inconclusive
Complaint
Basis/Disability Type: Failure to provide assistance/vision
impaired
Complaint Format:
Complaint Information: Blind
PAX not given assistance at the airport. PAX missed flight and ended
up wandering on the taxiway until a baggage handler stopped and
helped him back to the terminal. No assistance was given inside
the terminal to get him another flight, and he finally took a bus.
Airline response offers apology and three domestic vouchers, plus
refund of unused tickets and difference between air and bus fare.
Outcome: Apology and vouchers
Complaint
Basis/Disability Type: Failure to provide assistance/oxygen
Complaint Format:
Complaint Information: PAX
complained about cost of oxygen during a 1997 flight. Price had
nearly tripled from $50/canister in 1995. Airline response did not
address the price discrepancy, but indicates carrier's intent to
reduce the cost and the necessity for changing cylinders between
flights by switching to larger oxygen cylinders. Airline agreed
to reimburse PAX for the multiple cylinders of unused oxygen with
a $150 check and travel coupons for various in-flight amenities.
Outcome: Reimbursement and
amenity coupons
PAX = passenger
W/C = wheelchair
DOT = Department of Transportation
EMS = emergency medical service
NPRM = notice of proposed rulemaking
APPENDIX
D Glossary of Acronyms
ACAA--Air Carrier Access Act
ADA--Americans with Disabilities Act
ATA--Air Transport Association of America
CAB--Civil Aeronautics Board
CRO--Complaint Resolution Officer
DOJ--Department of Justice
DOT--Department of Transportation
DREDF--Disability Rights Education and Defense Fund
EEOC--Equal Employment Opportunity Commission
FA Act--Federal Aviation Act of 1958
FAA--Federal Aviation Administration
FTE--Full-time Equivalent
IDEA--Individuals with Disabilities Education Act
NCD--National Council on Disability
NPRM--notice of proposed rulemaking
OGC--Office of General Counsel
OST--Office of the Secretary of Transportation
PVA--Paralyzed Veterans of America
Reg Neg--Regulatory negotiation
TTY--teletype
APPENDIX
E
14 CFR 302.3 Filing of Documents
[Docket No. 82, 50 FR 2384, Jan. 16, 1985, as amended
at 53 FR 16701, May 11, 1988; Doc. No. OST-96-1436, 61 FR 29284,
June 10, 1996]
Subpart A--Rules of General Applicability
Sec. 302.3 Filing of documents.
(a) Filing address, date of filing, hours.
Documents required by any section of this part to
be filed with DOT [Department of Transportation] shall be filed
with the Documentary Services Division of DOT, Washington, DC 20590.
Such documents shall be deemed to be filed on the date on which
they are actually received by DOT. Documents must be filed between
9:00 a.m. and 5:00 p.m., eastern standard or daylight saving time,
whichever is in effect in the District of Columbia at the time,
Monday to Friday, inclusive, except on legal holidays.
(b) Formal specifications of documents.
(1) Documents filed under this part must be on white
paper not larger than 8 1/2 by 11 inches, including any tables,
charts, and other documents that may be included. Ink must be dark
enough (but may not be green) to provide substantial contrast for
scanning and photographic reproduction. Text must be double-spaced
(except for footnotes and long quotations, which may be single-spaced),
using type not smaller than 12 point. The left margin must be at
least 1 1/2 inches; all other margins must be at least 1 inch. The
title page and first page must bear a clear date, and all subsequent
pages must bear a page number and abbreviated heading. To facilitate
automated processing in document sheet feeders, documents of more
than one page should be held together with removable metal clips
or similar retainers. Original documents may not be bound in any
form or include tabs, except in cases assigned by order to an Administrative
Law Judge for hearing, in which case the filing requirements will
be set by order. Section 302.31 contains additional requirements
as to the contents and style of briefs.
(2) To facilitate indexing, a filer should include
in or provide with each document the following: the docket title
and subject; the relevant operating administration before which
the application or request is filed; the identity of the filer;
the title of the specific action being requested; and the name and
address of the designated agent, and so identified, on file for
official service. The Docket Management Facility has an Expedited
Processing Sheet that filers can use to expedite this index input.
(3) Reproduction of documents.
Papers may be reproduced by any duplicating process,
provided all copies are clear and legible. Appropriate notes or
other indications shall be used, so that the existence of any matters
shown in color on the original will be accurately indicated on all
copies.
(c) Number of copies.
Unless otherwise specified, an executed original,
along with the number of true copies set forth below for each type
of proceeding, must be filed with the Docket Management Facility.
The copies filed need not be signed, but the name of the person
signing the original document, as distinguished from the firm or
organization he or she represents, must also be typed or printed
on all copies below the space provided for the signature.
Airport Fee -- 9 copies
Agreements
International Air Transport Association (IATA) -- 6 copies
Other (under 49 U.S.C. 41309) -- 9 copies
Complaints Enforcement -- 5 copies
Mail Contracts -- 4 copies
Rates, Fares, and Charges in Foreign Air Transportation -- 6 copies
Unfair Practices in Foreign Air Transportation (49 U.S.C. 41310)
-- 7 copies
Employee Protection Program (14 CFR 314) -- 7 copies
Exemptions
Computer Reservation Systems (14 CFR 255) -- 8 copies
Other (under 49 U.S.C. 40109) -- 7 copies
Tariffs (under 49 U.S.C. Chapter 415 or 14 CFR 221) -- 5 copies
Foreign Air Carrier Permits/Exemptions -- 7 copies
International Authority for U.S. Air Carriers (certificates, exemptions,
allocation of limited frequencies, or charters) -- 7 copies
Mail Rate Proceedings -- 4 copies
Name Change/Trade Name Registrations -- 4 copies
Suspension of Service (14 CFR 323) -- 4 copies
Tariff Justifications to Exceed Standard International Fare Levels
6 copies
U.S. Air Carrier Certificates (involving Initial or
Continuing Fitness) -- 6 copies
Other Matters -- 3 copies
Filers are encouraged to submit one of the required
true copies (except for counterparts of Agreement CAB 18900) in
electronic form on a 3 1/2 inch floppy disk, labeled to show the
filer's and representative's names, the docket number (if known)
or space for it, and document title. The electronic submission must
be in one of the following formats: Microsoft Word (or RTF), WordPerfect,
Excel, Lotus 123, or ASCII text. The disk must be accompanied by
a signed certification that it is a true copy of the executed original
document.
(d) Table of contents.
All documents filed under this part consisting of
twenty or more pages must contain a subject-index of the matter
in such document, with page references.
(e) [Reserved]
(f) Official docket copy.
With respect to all documents filed under this part
that are scanned, the electronic scanned record produced by DOT
shall thereafter be the official docket copy of the document and
any subsequent copies generated by DOT's electronic records system
will be usable for admission as record copies in any proceeding
before the department.
APPENDIX F
List of Interviews and Consultations
DEPARTMENT OF TRANSPORTATION PERSONNEL
Office of the Secretary
Office of General Counsel
Nancy McFadden, Esq., General Counsel
Charlotte S. Boeck, Administrative Officer
Robert Ashby, Assistant General Counsel for Regulation
and Enforcement
Samuel Podberesky, Assistant General Counsel for
Aviation Enforcement and Proceedings
Dayton Lehman, Deputy Assistant General Counsel
for Aviation Enforcement and Proceedings
Hoyte B. Decker, Assistant Director for Aviation
Consumer Protection
Office of the Assistant Secretary for Transportation
Policy
Don Trilling, Director, Office of Environment, Energy,
and Safety
Ira Laster, Senior Program Coordinator
Departmental Office of Civil Rights
Ronald Stroman, Director
April Marchese, Acting Deputy Director
Julie Zirlin, Acting Chief, External Policy and
Program Development Division
Federal Transit Administration
Michael Winter, Associate Administrator, Office of
Budget and Policy
MISCELLANEOUS CONSULTATIONS
Michele Anderson, Esq., Institute for Public Representation,
Georgetown University Law Center
David A. Berg, Assistant General Counsel, Air Transport
Association of America
Steve Gold, Esq.
Marilyn Golden, Senior Policy Analyst, Disability
Rights Education and Defense Fund
Robert Herman, Esq., Advocacy Attorney, Paralyzed
Veterans of America
Frederick Isler, Assistant Staff Director, Office
of Civil Rights Education, U.S. Commission on Civil Rights
Kleo J. King, Esq., Program Counsel, Eastern Paralyzed
Veterans Association
Scott Marshall, American Federation of the Blind
Maureen McCloskey, Director of Policy and Government
Affairs, Paralyzed Veterans of America
Sharon G. Miller, Esq.
Douglas Parker, Esq., Institute for Public Representation,
Georgetown University Law Center
Albert H. Prest, Vice President Operations, Air Transport
Association of America
Jim Weisman, Esq., Program Counsel, Eastern Paralyzed
Veterans Association
Ronald J. Welding, Director, Operations Standards,
Air Transport Association of America
Nadja Zalokar, Ph.D., Senior Economist, Office of
Civil Rights Education, U.S. Commission on Civil Rights
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