By Minh Vu and Paul Kehoe

As we reported earlier this month, the Department of Transportation (DOT) issued regulations under the Air Carrier Access Act (ACA) making it easier for airline passengers with disabilities to access both airline websites and terminal kiosks.  These regulations provide a window into the Administration’s view of website and kiosk accessibility, and likely serve as a precursor to forthcoming regulations from the Department of Justice (DOJ) on these subjects for state/local governments and public accommodations.  Since all agencies have an opportunity to review proposed regulations during the interagency review process, we assume that DOJ had input into the new DOT rules.  Here is a closer look at key parts of the new DOT regulations:

Basic Website Requirements.  Airlines that operate at least one aircraft having a seating capacity of more than 60 passengers must make their primary website accessible in two phases.  First, by December 12, 2015, they must ensure that web pages on their primary website associated with core travel information and services (reservations, online check-in, flight status updates, itinerary access, frequent flyer account access, carrier contact information, etc.) conform with WCAG 2.0 Level AA.  Second, by December 12, 2016, all other webpages on the airline’s primary website must conform with these guidelines. The regulations also require airlines to consult with individuals with visual, auditory, tactile and cognitive disabilities, or organizations representing these disability types to test the usability of the updated websites.  The DOT did not indicate what, if anything, covered airlines should be doing to facilitate access for those individuals who cannot use the websites in the meantime.

The regulations also require airlines to provide web-based fare discounts, which are generally offered at a lower cost, and other web-based amenities, to customers with disabilities who are unable to use the airline’s website.  Also, ticket agents that are not small businesses will be required to provide the same web-based fares to customers with a disability who cannot use the agents’ website as of June 10, 2014.Finally, by December 12, 2015, airlines must make an online service request form available for passengers with disabilities to request a reasonable accommodation, such as the use of wheelchair, seating accommodations, escort assistance and stowage of an assistive device. 

The Decision To Adopt WCAG 2.0 Level AA as the Access Standard.  Several air carrier associations commented that requiring airlines to comply with WCAG 2.0 Level AA would subject them to higher standards than those applicable to the federal government’s own websites.  Associations representing ticket agents agreed that the DOT should not require carriers to ensure that ticket agents comply with the WCAG 2.0 Level AA standard.  Individuals with disabilities and their advocacy organizations overwhelmingly supported adopting the WCAG 2.0 Level AA standard. 

Ultimately, the DOT rejected the concerns of the airline associations and instead adopted the WCAG 2.0 Level AA standard for several reasons.  First, the DOT noted that the DOJ is considering adopting WCAG 2.0 Level AA as the access standard for its public accommodations website proposed regulations.  Second, the federal government is in the process of adopting the WCAG 2.0 Level AA for its own websites.  Third, Australia, Canada, the European Union, Hong Kong, New Zealand, France, Germany and the United Kingdom are increasingly adopting WCAG 2.0 Level AA for their public sector websites over the next few years.  Finally, the DOT recognized that Level AA success criteria is “the most robust and well supported accessibility standard currently in use.” 

Other Web-related Insights from the DOT Regulations.  In addition to reinforcing our prediction that DOJ will adopt WCAG 2.0 Level AA as the website accessibility standard for public accommodations and state and local governments, the new regulations also provide insights on some other commonly asked questions. 

First, the DOT rejected the use of  a “text only” alternative website as an alternative to making the main website accessible. Second, DOT stated that carriers must work with developers to ensure that third party software embedded on a carrier’s primary website meets the WCAG 2.0 Level AA guidelines.  Third, carriers may have links on their primary website to external websites and third-party software that are partially or entirely inaccessible as long as users are notified that the third party-software and/or websites may not follow the same accessibility policies as the carriers’ website.

While expressing its unequivocal support for full accessibility across all communications technologies, the DOT declined to expand the rule to include mobile apps, mobile websites, and text messaging largely because the DOT viewed the best approach for expanding accessibility was to allow carriers to focus resources on their primary websites.   In addition, the lack of an existing mobile website standard, the inability to readily apply WCAG 2.0 to mobile applications, and the limited accessibility of mobile devices informed the DOT’s position.

The Terminal Kiosks Requirements.  The new regulations require that by December 12, 2016, all automated kiosks installed by U.S. and foreign carriers that own, lease or control automated kiosks in airports with 10,000 or more annual enplanements must meet new accessibility standards until at least 25% of kiosks in each location at the airport are accessible.  The 25% requirement must be met by December 12, 2022.  A similar requirement applies to airlines and airports regarding shared-use automated airport kiosks, and carriers and airports will be jointly and severally liable for ensuring that shared-use accessible kiosks meet accessibility requirements. 

New terminal kiosks must meet many technical accessibility standards with respect to their physical design and function.   These kiosks must be self-contained, comply with clear floor or ground space requirements in section 305 of the DOJ’s 2010 ADA Standards for Accessible Design (2010 ADA Standards), and provide the same degree of privacy available to all individuals.   All operative parts must comply with section 309 of the 2010 ADA Standards regarding identification, timing, status indicators and color coding.  Braille instructions for initiating speech must be provided and display screens are subject to certain requirements on font, font size, and contrast ratios. 

In addition, all new kiosks must be speech output enabled with certain volume controls and provide captioning for certain information.  Where the kiosk provides boarding passes or tickets, the ticket’s orientation must be tactilely discernible if orientation is important for future use.  Input devices are subject to additional requirements related to input controls and visual and/or tactile requirements for alphabetic, numerical, and function keys.  

In addition, all accessible kiosks must be affixed with an international symbol of accessibility on the front of the device and kept in working order.  Carriers must provide passengers with disabilities priority access to available accessible kiosks that the carrier owns, leases or controls in that location in the airport.  Finally, accessible kiosks must provide equivalent services as inaccessible kiosks.  For example, if an inaccessible kiosks allows passengers to make payments, upgrade seats, choose meals or WiFi services, accessible kiosks must provide those services as well.

DOJ is working on a proposed rule for self-service equipment to be used in public accommodations.  Although DOJ is not required to follow the DOT’s approach, the DOT final rule does provide a sensible framework that gives manufacturers enough time for the development and installation of accessible kiosks.

Conclusion.  There continues to be a litigation over website and self-service kiosk accessibility. These developments under the ACA reveal a strong legal trend in favor of accessibility.  Businesses should, for a variety of reasons, seize on opportunities such as the redesign of a website or the new design of a new self-service kiosk to provide accessibility and avoid costly litigation.

Edited by Kristina Launey