Comments Due January 9, 2012 on DOT Web and Kiosk Proposal

The United States Department of Transportation is currently seeking public comments on its proposed regulations about accessible airline websites and check-in kiosks. The Department is using a new “user friendly” on-line platform to encourage comments, which are due January 9, 2012. Read the earlier post on this website about the proposed regulations.

Update: On November 16, 2011 the Department of Transportation issued what it called an “Extension of comment period and clarification of proposed rule”. Comments, which had been due late November, 2011, are now due January 9, 2012. Read the Updated post on this website about filing comments.

The DOT proposed regulations on accessible websites and kiosks have many positive aspects. However, there are also significant parts of the proposal that need to be strengthened to ensure full equality for people with disabilities in air travel. (Certainly the regulations should not be “killed” as one commenter on the new platform has already suggested). This post contains information on key aspects of the DOT proposal and information about submitting comments. Remember that not all aspects of the DOT proposal are addressed in this post.

Jump to:

Regulation Room Portal

The new portal for reviewing and commenting on the proposed DOT regulations is call Regulation Room. Visit the Regulation Room now. Please note that comments submitted through the Regulation Room go to the DOT “in a summary package” and are not considered individually. Advocates may want to consider filing on the official site in addition to filing in the Regulation Room. Read about how to file on the official site.

The Regulation Room site divides the proposed regulations into seven major categories, including “Websites: Accessibility Standards,” “Websites: Implementation When?”, and “Kiosks: Benefits and Costs of Accessibility.” Each category is a separate link. When the link is selected, a page opens that contains the DOT proposal for that category, background information, and a chance for the public to comment on various parts of the proposal and read public comments already submitted. (There are separate links within each category for distinct parts of the proposal.)

To comment on the site you must register by selecting a username and password and providing an email address. You do not have to provide your full name. When commenting, the username appears as a link. When the username link is selected, all comments by that person appear.

Comments may also be submitted through the traditional on-line channel at Regulation.gov. Visit the Regulations.gov page with the DOT proposal and a link to comment section.

Proposed Web Standards for Airlines

WCAG 2.0 Level AA

One positive aspect of the DOT proposal is the standard the agency is proposing for ensuring that airline websites are accessible. The DOT’s proposal would require that websites of commercial airlines that will be covered by its regulations (assuming they are finalized) satisfy Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. This is a strong, internationally accepted standard that will allow people with disabilities to independently and privately use and interact with airline websites. Visit the page in the Regulations Room about the proposed technical standards.

Possible Performance Standard

The DOT also discusses the possibility of adding a “performance standard” to the technical standards contained in WCAG 2.0 but does not include one in its proposal. Many in the disability community believe that a performance standard in addition to technical standards would assist site owners in ensuring that web content is truly inclusive. The following is an example of a performance standard, which must always be used in addition to a technical standard, not instead of one:

website owned, operated or controlled by an airline covered by these regulations shall satisfy WCAG 2.0 Level AA and be accessible to and usable by persons with disabilities. The site shall ensure that persons with disabilities may access or acquire the same information, engage in the same interactions, and enjoy the same products and services the covered entity offers visitors to its website without disabilities, with a substantially equivalent ease of use. — Example of a performance standard

Visit the page in the Regulations Room about Website Performance Standards

DOT’s Proposed Web Regulations Should be Strengthened

Quicker Deadlines for Web Accessibility are Needed

A significant weakness in the DOT’s proposal is the amount of time given to covered airlines to bring their sites into compliance. There is a three tiered approach to compliance deadlines in the DOT proposal: 6 months, 12 months, and two years. These times would start not in 2011, but whenever (if ever) the DOT proposal becomes final.

Under the proposal, “newly created or completely redesigned sites” “released to the public” beginning six months after the effective date of the final rule must meet the new standard. This is problematic because the “effective date of the final rule” could be years from now. (Remember, the DOT has been thinking about requiring airline web access since at least 2004!)

Second, most existing airlines have a long-standing web presence, will likely not have “newly created” or completely redesigned sites”, and will therefore avoid the six month requirement. (Or airlines could avoid it by launching their new sites within the first six months after any final regulations, thus also avoiding the earliest deadline.)

For existing sites not covered by the six month requirement, there is a twelve month deadline to make “core air travel services and information” accessible to airline customers with disabilities. Again, the 12 month clock does not start ticking until the effective date of the final rule. The DOT admits that an airline’s homepage may not meet the criteria for “core” services and information. And the Department also suggests that if a carrier’s mobile site is accessible by the 12 month deadline, its main site need not be. (But at the same time, the proposal explicitly does not require mobile sites to be accessible.)

All pages of covered sites have a 24 month (two year) deadline under the DOT’s proposal.

In 2011 there is simply no reason to give airlines so much time to provide websites that people with disabilities can use. Accessibility enhancements should be done or well under way. The DOT should put airlines on notice that general non-discrimination mandates require accessible websites, and the technical standards should be part of the DOT regulations as soon as those regulations become final.

Visit the Regulation Room page about deadlines for the web accessibility requirements.

Mobile Airline Sites Should be Covered

The DOT acknowledges that its current proposal does not cover airlines’ mobile sites, but says it is “considering” such a requirement. People with disabilities join the non-disabled public in increasingly accessing the internet through mobile devices. A New York Times article on November 6, 2011, titled “A Boarding Pass on Your Screen” recognizes the growing number of travelers accessing airline sites through mobile devices. Airline mobile sites should be accessible to people with disabilities.

Visit the Regulation Room page about mobile airline sites.

Alternative Sites Should Not be Allowed

The DOT proposal permits “alternative conforming versions” of websites but states an intent that sites be directly accessible “whenever possible.” Web accessibility is possible. The DOT proposal makes it too easy for site owners to establish “separate” sites, which experience tells us are never equal.

Visit the Regulations Room page about “conforming alternative versions

DOT Should Strengthen its Proposed Kiosk Regulations

The DOT’s proposal about airline kiosk accessibility gives airlines too much time to to make check-in kiosks available to and usable by people with disabilities. The proposed requirements would only kick in on new orders placed sixty days after the regulations become final. Tens of thousands of kiosks will be ordered and installed between now and then without any requirement for accessibility. Moreover, the proposal specifically does not require airlines to retrofit existing kiosks.

In July, 2010, another federal agency — the United States Access Board — issued an Advanced Notice of Proposed Rule Making as a first step for requiring accessible kiosks in a host of implementations, including airline check-in kiosks. In comments to the Access Board, the Law Office of Lainey Feingold and Linda Dardarian of Goldstein, Demchak, Baller, Borgen & Dardarian urged full accessibility, and specifically noted that accessible airline check-in kiosks are already commercially available. Read comments to the Access Board about airline kiosks.

The DOT should require retrofitting of existing kiosks and tighten the time frames for compliance. As with airline websites, In 2011 there is simply no reason to give airlines so much time to provide access. IBM has been showing accessible airline kiosks at trade shows for several years, and conversion by airlines to accessible kiosks should be well under way. The DOT should put airlines on notice that general non-discrimination mandates require accessible airline kiosks, and the technical standards should be part of the DOT regulations as soon as those regulations become final.

Visit the Regulation Room Page about airline kiosks deadlines

Visit the Regulation Room Page about airline kiosks technical standards (The proposed technical standards mirror the Talking ATM standards contained in the 2010 Standards for Accessible Design adopted by the United States Department of Justice. The DOT is seeking comment on several critical aspects of those standards, including volume control, input controls, and height.)

The DOT Should Allow People with Disabilities to Use State Anti-Discrimination Laws

It is disappointing and ironic that at the same time that the Department of Transportation is finally proposing regulations addressing web and kiosk accessibility, it is opposing the rights of people with disabilities to exercise their rights under state law for full accessibility. In a federal lawsuit against United Airlines for inaccessible airline kiosks, the DOT has taken the airline’s side and convinced the court to throw out the case on preemption grounds. The United case is now on appeal, and, shockingly, just last month the DOT filed a “friend of the court” [amicus] brief in favor of the airlines’ position. This same unfair action has resulted in a similar case against JetBlue Airways being thrown out of court. Visit the Airlines category of this website for posts about the JetBlue litigation.

The DOT proposed web and kiosk regulations should include “savings clause” to ensure that people with disabilities are able to benefit from their state and local anti-discrimination laws. Congress expressed its intent to preserve these remedies by including a savings clause in the Federal Aviation Act (FAA), a statutory scheme of which the Air Carrier Access Act (ACAA) is a part. The Supreme Court and other federal courts have applied this clause to preserve state law claims from preemption.

Notwithstanding this authority, the federal district court judges in the United and JetBlue cases concluded that the existence of ACAA regulations on the subject of airline web sites and kiosks prevented the application of California civil rights protections to make such technology accessible to people with disabilities. These courts were wrong in their interpretation of preemption law, and both cases are on appeal. The addition of a savings clause in any new regulations will effectuate Congress’s intent and clarify that regulations designed “to provide greater accommodations for individuals with disabilities in air travel” do not unintentionally deprive citizens of their rights under state and local laws.

A “savings clause,” modeled after that included in the Americans with Disabilities Act (ADA) should be included in the DOT regulations. The drafters of the ADA recognized the importance of state and local protections for people with disabilities – even with a law as comprehensive as the ADA – and expressly preserved those safeguards in 42 U.S.C. section 12201(b). See also 28 C.F.R. section 35.103 (savings clause for Title II Regulations); 28 C.F.R. section 36.103 (savings clause for Title III Regulations). Congress has done the same with respect to discrimination in air travel and the DOT should implement a regulation that fulfills that intent.

Here is an example of a savings clause that the DOT should include in its regulations:

Nothing in these regulations shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by these regulations.— Sample language regarding the relationship of DOT regulations to other laws

In its press release announcing the web and kiosk regulations, the Department of Transportation stated that it is embarked on an “ongoing effort to ensure equal access to air transportation for all travelers.” That effort will fail if people with disabilities are blocked from enforcing state laws when airlines fail to provide full access to airline websites and kiosks. The DOT should change its position in the pending federal cases and include a savings clause in its new regulations.

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