NCIL Comments to the DOT on Non-Discrimination on the Basis of Disability in Air Travel:
Accessibility of Web Sites and Automated Kiosks at U.S. Airports

January 9, 2012

Mr. Samuel Podberesky
Assistant General Counsel
Office of Aviation Enforcement and Proceedings
U.S. Department of Transportation
c/o Document Management Facility
West Building
1200 New Jersey Avenue SE, Room W12-140
Washington, DC 20590-0001

Re: Supplemental Notice of Proposed Rulemaking, Non-Discrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports (Docket No. DOT-OST-2011-0177)

Dear Mr. Podberesky:

As the Systems Advocate for the Independent Living Center of the Hudson Valley Inc. (ILCHV) and as the Chair of the National Council on Independent Living’s (NCIL) Policy Sub-Committee on Transportation, I would like to thank you and the Department of Transportation (DOT), for your leadership in finally addressing the issue of inaccessible air carrier Web sites and kiosks. Accessibility of Web sites and automated kiosks at U.S. airports are critical for blind and visually impaired people, individuals with learning disabilities, and many of our older Americans to be able to independently purchase and retrieve airline tickets, check in for flights, print boarding passes, check baggage, select seats, and rebook canceled flights behind security checkpoints.

NCIL is the longest-running national, cross-disability, grassroots organization run by and for people with disabilities. Founded in 1982, NCIL represents thousands of organizations and individuals including: Centers for Independent Living (CILs), Statewide Independent Living Councils (SILCs), individuals with disabilities, and other organizations that advocate for the human and civil rights of people with disabilities throughout the United States.

We are encouraged by the Rule but must state that the culture of “after thought” or “catch up” with providing accommodations to the community of people with disabilities is unacceptable, unfair and discriminatory.  The DOT as well as all federal departments should implement processes at the foundation or formulation of all of its programs as well as rules on technology, that infuse the rights of persons with disabilities as described in Section 508 of the Rehabilitation Act. We compare this process of using accessibility accommodations at the onset of a project, to the processes used when government entities must infuse cultural competency into all of their work. The creation of documents and rules and regulations are done in multiple languages and presented to these communities in multiple ways via print, the phone with interpreters and through technology.  We believe that the same concentrated effort to accommodate and include this community must be used for people with disabilities.

NCIL supports many of the DOT’s substantive accessibility proposals for both Web sites and kiosks.  We agree that the Website Content Accessibility Guidelines (WCAG) 2.0, Level AA, are the appropriate technical standards for Web sites. However, we strongly believe that it should also be paired with a performance standard to maximize accessibility and usability. Technical standards alone will not ensure usability, which is the main objective of these proposed accessibility guidelines.  We would suggest adding a performance standard that will guarantee that individuals with disabilities have the same access and Web site experience as nondisabled users with substantially similar ease of use.  We have already seen many notable commercial entities such as eBay, Amazon.com, Target, Ticketmaster, and Travelocity enter into agreements to make their Web sites accessible according to such performance standards with performance measurements.

When developing such standards, one measurement outcome could be the rate of success of users accomplishing various tasks on the Web site.  Another measurement outcome could be that the average time for disabled users should be comparable to nondisabled users.  The standard should also require compatibility with the most widely used access technologies.  Compatibility with the most widely used software is important but, without a performance standard, a carrier can develop a site with an obscure technology implementation that still meets all the technical standards.  A site like that would be compliant with the rule but only be accessible to users of one type of screen access software. It is imperative that access and usability be provided to as many people as possible. This loophole is but one reason we strongly urge DOT to revise the proposed rules and include a performance standard. 

We are also pleased with DOT’s conditions for defining which entity’s sites will be covered by the rule. The Department of Justice’s 2010 ADA Standards for Accessible Design (2010 ADA Standards) provide helpful criteria for the kiosk accessibility standard.

And, we are pleased to see the Air Carrier Access Act (ACAA) will now cover kiosks owned by airports in addition to those owned by carriers. However, if this proposal is implemented, it should be accompanied by an explanation that public airports otherwise covered by the Americans with Disabilities Act (ADA) or the Rehabilitation Act are still accountable under those laws, which may be enforced by private parties.

NCIL supports DOT’s proposed timeline to require newly created or completely redesigned Web sites to be accessible within 180 days. However, the other part of the proposed rule gives carriers one year to make pages providing core air travel services accessible, but we believe that this is too long. Newegg.com, an e-commerce business, made its entire retail/transactional path fully accessible in less than six months, illustrating that the technology already exists to accomplish the task in a rather short period of time.  We suggest shortening the timeline for existing pages that offer core services from one year to 180 days. 

Under the current proposal, carriers can temporarily satisfy the requirement for core travel services and information on existing Web sites by providing the accessible content on the mobile version of the site rather than on the main Web site.  We strongly disagree with this option appearing in the final rule because “separate, but equal”, as has already been determined by Congress, is “not equal.” Alternatives that do not provide the same access and usability, is not a solution for achieving true accessibility.  This “separate but equal” approach only perpetuates the segregation that Congress has previously endeavored to eliminate.  42 U.S.C. § 12101(a)(2).  Also, and very important,   Even if a mobile version of a carrier’s Web site is accessible, there will likely still be barriers to access for blind and visually impaired individuals.

But because certain mobile phones are accessible, we strongly urge DOT to require or mobile apps, in this rulemaking.  The purpose of this rulemaking is to address Web site accessibility to make core air travel services accessible for people with disabilities.  The proliferation of mobile apps is on the horizon and, in two to three years, mobile apps may very well replace Web sites and kiosks as the most popular way of looking up flight information, checking in, selecting seats, etc.  Mobile apps are very closely related to Web site functionality, and most students and frequent flyers have a Smartphone and use that technology for everything related to personal interaction and commerce.  Although we feel that it is very important for carriers to have accessible mobile applications, especially as this may be the way of the future. However, as has already been stated, most mobile phones are not yet fully accessible to blind and visually impaired users.

Mandates for accessibility of Web sites and kiosks are long overdue; DOT must not make the same mistake by neglecting to address mobile apps until several years from now.  It is essential for DOT to require carriers to also make their mobile apps fully accessible to blind people.  Fortunately for both DOT and for carriers, Apple has developed guidelines for developers to ensure the accessibility of apps designed for Apple’s mobile operating system, iOS. If the carriers and their partners are required to code their apps, DOT could easily model their standards after the Apple guidelines, resulting in the accessibility of all apps.  Such a requirement is very closely related to the Web site and kiosks mandate pursued in this rulemaking, and we strongly urge DOT to consider mobile apps as part of this initiative. 

In the case of ticket agents that are considered “small businesses” under the Small Business Administration guidelines, the airline must still ensure that deals available exclusively online are offered via telephone to those who self-identify as disabled.  Unfortunately, this is not as practical as it may seem.  Customers will not necessarily know that the business with which they are dealing is a small business, and therefore will not know whether to demand that the Web site be made accessible or whether a telephonic transaction is sufficient.  Again, Americans with disabilities, regardless of the disability, should not have to be in a situation where the only way to access the same services that other nondisabled people do is by self-identifying themselves as a person with a disability.

The SNPRM requests for feedback regarding timeouts which, routinely present barriers to persons with disabilities utilizing Web sites.  Proper warning that a page is about to time out is necessary, and carriers can easily remedy this by using Aria Alert, which will call attention to the screen access software, and then notify the user about the timeout.

Automated Airport Kiosk Accessibility Standards

The DOT needs to consider requiring carriers/airport authorities to retrofit a portion of their kiosk fleet to ensure that some kiosks are usable by disabled individuals during the interim period until 100 percent of kiosks are accessible.  We propose requiring 25 percent of kiosks currently in use be retrofitted for accessibility one year after the rule is made effective, 50 percent after the second year, 75 percent after three years, and 100 percent after five years.  This graduated approach will minimize some of the potential consequences raised in the SNPRM about an incremental approach. Also, the costs of retrofitting the majority of a kiosk fleet will give carriers and airport authorities an incentive to purchase new, accessible ones, thus speeding up the process for airlines that may have otherwise looked for ways to avoid the rule.

DOT cannot just require retrofitting; the scope of retrofitting’s application to what kiosks in what locations at what airports will have to be defined in order to ensure that accessibility during the interim period is widespread.  As we said above, we propose requiring 25 percent of kiosks currently in use be retrofitted for accessibility one year after the rule is made effective and so on. If DOT imposes this requirement without further identifying the scope, some airlines may choose to only retrofit kiosks in airports with their highest traffic, or “hubs.”  Alternatively, airlines may choose to retrofit half of their kiosks at the check-in counter.  This may only cover those reserved for coach passengers, prohibiting blind first-class passengers from checking in at the appropriate line.  Therefore, we urge DOT to apply the graduated retrofitting requirement to “kiosks currently in use everywhere and stand-alone units behind security in every U.S. airport with 10,000 or more per year.”  This will provide comprehensive coverage, so that when 50 percent of kiosks currently in use are retrofitted for accessibility, blind, visually impaired and other disabled passengers will be able to use at least half of the kiosks deployed at every class at the check-in counter, at the curb, in other clusters throughout the terminal, and in every airport where the accessibility rule for kiosks will be applied. 

Kiosks that are owned, leased, or controlled by carriers and perform functions similar to airport kiosks located in non-airport venues (i.e. hotel lobbies) should be covered in this rulemaking.  We want all kiosks, including those owned by airport authorities, those considered shared-use, and those located in non-airport venues, to be accessible by blind and visually impaired individuals.  Therefore, we support DOT’s initiative to cover these kiosks under the ACAA.  However, these kiosks are also covered entities under the ADA and the Rehabilitation Act, and this overlap must be explicitly addressed in the preamble of the final rule.   Unlike the ACAA, the ADA and the Rehabilitation Act include a private right of action, giving people with disabilities the right to sue airports and airport operators over inaccessible kiosks.  This private enforcement is essential, so DOT must provide a statement in the preamble of the final rule to demonstrate that the intent of these regulations is not to limit the application of other laws.  If DOT clarifies that ADA guidelines prevail when there is any overlap with the ACAA, the private enforcement provided in ADA and the Rehabilitation Act will be protected, and the overall objective of these regulations will be preserved.   Please note, this recommendation is consistent with past DOT practice.  (See Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614, 27620 (May 13, 2008); Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting From Federal Financial Assistance; Nondiscrimination on the Basis of Handicap in Air Travel, 61 Fed. Reg. 56409, 56417 (Nov. 1, 1996)).

Two federal district court judges in California recently 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 blundered in their interpretation of preemption law, and as of the time these comments are being submitted, both cases are on appeal.  The addition of a savings clause in new regulations will affect 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. 

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. § 12201(b).  See also 28 C.F.R. § 35.103 (savings clause for Title II Regulations); 28 C.F.R. § 36.103 (savings clause for Title III Regulations).  Congress has done the same with respect to discrimination in air travel and we urge the Department to implement a regulation that fulfills that intent: 

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. 

Section 382.57(c)(6)(iii)(A) requires a visual contrast of function keys from background surfaces, and characters and symbols from key surfaces.  The required contrast must be light-on-dark or dark-on-light.  This is far too vague and is inconsistent with the contrast ratio provided in WCAG 2.0.  We strongly urge DOT to edit this section to add a minimum luminosity color ratio of 3:1, which is not only more robust but generally accepted as the appropriate standard for visual contrast by both manufacturers and the low-vision community. Along with contrast, the characters and symbols must have the ability to increase the font size as large as possible.

It is critical that DOT and members of the aviation community maintain close working relationships with blind users and disability rights advocacy groups during the entire rulemaking process; during the design of new, accessible interfaces for kiosks; and during implementation.  As we have seen with other industries, a lack of communication with disability rights organizations can produce unsatisfactory results. Until now, the aviation community has not maintained close working relationships with disability rights advocacy-groups.  Although the proposed technical standards are robust and, if our suggested changes are implemented, may produce an accessible kiosk, the best way to maximize usability is to consult with blind and other disabled users. 

Having a dialogue between the aviation community and disability rights groups is also important during implementation.  There is a popular misconception that people with disabilities want or need special treatment, and that the best way to provide equal service to disabled passengers is to let them cut in line, or give them a special priority line.  This is a myth.  Blind people and other persons with disabilities simply want access to the same equipment at the same time as everyone else, and special treatment is viewed as degrading rather than helpful.  When implementing our retrofitting recommendations, airlines and airports should consult advocacy groups about what is the most respectful, user-friendly way to deploy their access kiosks.  A special line for “the disabled” will not suffice. 

The National Council on Independent Living (NCIL) considers the accessibility of air carrier Web sites and kiosks to be one of the most important priorities for people with disabilities to travel as independent as everyone else.  We look forward to working with DOT on these regulations, and would be happy to conduct a follow-up conversation.

Thank you for considering our feedback. 

Respectfully,
Clifton Perez, M.S.W.
Chair of the National Council on Independent Living’s
Policy Sub-Committee on Transportation

Representative Contact Information:
L. Dara Baldwin, MPA – Policy Analyst – NCIL
dara@ncil.org  or 202-207-0334 xt. 1015