The issue of whether the Internet has to be accessible to a person with a disability is an issue that we have discussed before. One of the cases out there is the case of Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), where the Southern District of Florida held that the ADA only applies to physical places. That case has now been overruled by regulation. One doesn’t normally think of regulations overruling a case. After all, it is the job of the legislature to make laws and to correct court decisions. However, where the law itself gives broad regulatory authority to the agency and the agency conducts that regulatory authority within the framework of that law, you may get to the same place as if there was a legislature overruling the court decision. That is exactly the situation that has happened with the Department of Transportation and their final regulations, just out, implementing the Air Carrier Access Act. As mentioned in another post, the Air Carrier Access Act doesn’t say much. Rather, it just lists the definition of a disability as defined in the ADA/Rehabilitation Act and then says it is a matter for the Department of Transportation to implement and enforce through regulations.
Let’s turn to these regulations and look at the salient points. Keep in mind, the comments alone are 116 pages and so what follows is not meant to be comprehensive, but rather just hits the highlights. The regulations require the following:
1. Requires U.S. and foreign carriers that operate at least one aircraft having a seating capacity of more than 60 passengers, and own or control a primary website that markets to air transportation consumers in the U.S. to ensure that public facing pages on the primary websites are accessible to individuals with disabilities. Keep in mind, the one aircraft having a seating capacity of more than 60 is based on the manufacturer and not upon how the airline might use the particular aircraft.
2. Requires ticket agents that are not small businesses to disclose and offer web-based fares to passengers who indicate they are unable to use an agent’s website due to a disability. This particular rule is done through an amendment of the Department of Transportation rules dealing with unfair and deceptive practices of ticket agents.
3. Requires carriers to ensure that webpages on its their primary websites associated with core travel information and services conform to Level AA success criteria of the Web content accessibility guidelines 2.0 within two years of the rules effective date and that all other webpages on the primary websites are conforming within three years of the rule’s effective date. “Core travel information,” refers to booking, changing reservation in any way (including amenities), check in for flights, accessing a personal itinerary, accessing status of a flight, accessing personal frequent-flier account, accessing flight schedule, and accessing carrier contact information.
4. The requirement for webpage accessibility does not apply to mobile applications.
5. If the site of the air carrier has links to third-party websites, those third-party websites must be accessible or the person linking to those sites must be told that the site being linked to is not accessible.
6. The Web accessibility rules do not apply to ticket agent sites as those sites will be subject to future DOJ rulemaking since ticket agents are places of public accommodations under title III of the ADA.
7. If an air carrier is going to argue the making the webpages accessible is an undue burden, the factors that the Department of Transportation is going to look at are: the size of the carrier’s primary website; the type of change needed to bring the particular webpage into compliance; the cost of making the changes compared to the cost of bringing the website as a whole into compliance; the overall financial resources of the carrier; the number of carrier employees; the effect that making the change would have on the expenses and resources of the carrier; whether the carrier is part of a larger entity and its relationship to the larger entity; and the impact of making the change on the carrier’s operations. Clearly, undue burden under these regulations is a very tough standard, but it bears striking similarities to how undue hardship is determined under title I of the ADA, 29 C.F.R. § 1630.2(p)(2), and thus, the standard is somewhat familiar to the ADA practitioner.
8. Requires carriers to test the usability of their accessible primary websites in consultation with individual organizations representing visual, auditory, tactile, and cognitive disabilities. Recommends a feedback form for the site to ensure that the site is continually accessible. Finally, the Department of Transportation will engage accessibility experts to check for conformance and will notify carriers of noncompliance. Failure to take corrective action may result in enforcement actions.
9. Requires carriers to provide applicable web-based fare discounts and other web-based amenities to customers with disabilities who are unable to use their website due to a disability.
10. Requires ticket agent to provide applicable web-based fare discounts on and after 180 days from the rule’s effective date to customers with a disability who cannot use an agent’s website due to a disability.
11. Requires carriers to make an online service request form available within two years of the rule’s effective date for passengers with disabilities to request services including, but not limited to: wheelchair assistance; seating accommodation; escort assistant for visually impaired passengers; and stowage of an assistive device.
The regulations also deal with airport kiosk accessibility. Nowadays, when you go into the airport a lot of what was done by a person is now done by kiosk. For example, you can use a kiosk to check in. These regulations also have rules dealing with kiosk accessibility. The highlights of these rules follow below.
1. Requires U.S. and foreign air carrier that own, lease, or control automated airport kiosks at U.S. airports with 10,000 or more annual enplanements to ensure that all new automated airport kiosks installed three or more years after the rule’s effective date meet required technical accessibility standards until at least 25% of automated kiosk in the location at the airport is accessible. By each location, the regulations mean every place at a U.S. airport where there is a cluster of kiosks or a stand alone kiosk. Accessible kiosks provided in each location at the airport must provide all the same functions as the inaccessible kiosks in that location. The air carriers and airports have 10 years to meet these goals after the rule’s effective date.
2. Requires airlines and airports to ensure that all shared use automated airport kiosks installed three or more years after rule’s effective date meet required technical accessibility standards until at least 25% of automated kiosk in each location at the airport is accessible. Accessible kiosk provided in the location at the airport must provide all the same functions as the inaccessible kiosks in that location. This goal must be met within 10 years after the rule’s effective date. Note, that the air carriers and airports have three years from the date of the rule to begin installing accessible kiosk at U.S. airports.
3. Requires carriers and airports to ensure that accessible automated airport kiosks are visually and tactilely identifiable and maintained in working condition. Keep in mind, that specific requirements exist in the regulations with respect to inputs, outputs, and the display.
4. Make carriers and airport jointly and severally liable for ensuring the shared use automated airport kiosks meet accessibility requirements.
5. Requires carriers to give passengers with a disability requesting an accessible automated kiosk priority access to any available accessible kiosk the carrier owns, leases, or controls in that location at the airport.
6. Requires carriers to provide equivalent service upon request to passengers with a disability who cannot readily use their automated airport kiosks.
1) The Department of Transportation rules may be a hint of where the Department of Justice is going to go with respect to their Internet accessibility rules that keep getting delayed. Thus, if you are a title II or title III entity, and want to get ahead of the game, you may want to start exploring how your website with respect to what the public sees, conforms to Level AA success criteria of the Web Content Accessibility Guidelines 2.0.
2) Title II and Title III of the ADA are in a bit of a different situation than the Department of Transportation is with respect to the Air Carrier Access Act. This is because the Air Carrier Access Act is written in such a way so as to give the Department of Transportation extremely broad authority with respect to the regulations it issues to carry out that act. In fact, in these regulations, the Department of Transportation reiterates its strong belief that the Air Carrier Access Act preempts state and local nondiscrimination laws that apply to aviation. Whereas, with title II and title III of the ADA, as we have talked about in other blog entries, there is some debate as to whether the ADA can be fairly read to include the Internet in its coverage. Accordingly, any litigation saying that regulations over the Internet exceed statutory authority would have a better chance to succeed with respect to the ADA (I am not saying that it would, only that it has a better chance), than it would with respect to the regulations implementing the Air Carrier Access Act.
3) The Department of Transportation realizes that there are a variety of disabilities and those disabilities may access the Internet in different ways. Thus, it is important to note that the Department of Transportation requires that the air carrier consult with organizations representing visual, auditory, tactile, and cognitive disabilities in making sure their sites are accessible. This is important because technology doesn’t always work the same. For example, what works for a person who uses a screen readers may or may not work for a person who uses voice dictation technology.
4) The air carriers and airports have three years to begin getting accessible kiosks into the airports and there is joint and several liability between the airports and the air carrier if those kiosks are not accessible.
5) If a title II or title III entity wants to get a head start on what might constitute an undue burden with respect to webpages, you might want to review the Department of Transportation regulations on this point.
As always, this is just an overview of the regulations. For those with specific concerns needing legal advice, competent legal counsel should be consulted.