14 CFR Parts 382 and 399; 49 CFR Part 27 - Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports - Preamble

3. Scope—Web Sites and Other Electronic Information and Communication Technologies

The SNPRM: Our proposal to require carrier Web site accessibility was limited to all public-facing content on a carrier's primary Web site marketing air transportation to the general public in the United States. We did not propose to apply the accessibility standard to any other Web site a carrier may own, lease, or control (e.g., a mobile Web site) or to primary carrier Web sites marketing flights exclusively to the public outside of the United States. The Department asked for comment on whether we should limit the requirement to certain portions of the primary Web site (e.g., booking function, checking flight status), whether the requirements should extend to mobile carrier Web sites and to other electronic information technologies (e.g., email or text messaging) used by carriers, and whether any third-party software downloadable from a carrier's Web site should be required to be accessible.

Covered Content on Primary Web Sites

Comments: Regarding the scope of the Web site accessibility requirements, in general the carrier associations and several individual carriers advocated limiting the scope to pages on the primary Web site or on a mobile Web site involved in booking air transportation. The carrier associations, which strongly advocated for flexibility and alternative approaches to making Web sites accessible, urged the Department to consider four options for providing Web site accessibility from which carriers could choose. The first option was a text alternative Web site that would provide only the core air travel information and services (not all of the public-facing content) offered on the primary Web site. The second option would also provide only core air travel information and services on a mobile Web site that meets the MWBP 1.0 standard and is accessible from a link on the primary Web site or that automatically loads on a Smartphone or other mobile device. The third option would allow a carrier to make the Web pages that provide core air travel information and services on a primary Web site accessible using any Web accessibility standard. The fourth option would only require carriers to make newly created Web pages on a primary Web site accessible using any Web accessibility standard starting two years from the final rule effective date. None of the options suggested by the carrier associations would require that all public-facing content on a primary Web site be accessible, although the fourth option might eventually lead to that result. Commenters who supported flexibility and carrier choice also expressed the view that fewer compliance options would inhibit carrier innovation and use of new technologies, limit Web site utility for all passengers, and result in an undue burden for the industry. Other industry commenters such as AAI supported the WCAG 2.0 accessibility standard, but also favored an approach that would limit the public-facing content on a primary Web site that must meet that standard. Some commenters who supported limiting the scope of covered primary Web site content argued that the cost of making large numbers of infrequently visited pages accessible will outweigh any benefit to the few people with disabilities who might visit them. Others argued that providing the core air travel functions in an accessible format on a mobile or text alternative Web site was a reasonable solution because it would be less costly than making their primary Web sites accessible and still provide passengers with disabilities essential air transportation service information. We note that carriers generally were in agreement with the core air travel information and services listed in the second tier of the phased compliance schedule proposed in the September 2011 SNPRM and to applying some accessibility standard to all associated Web pages. One carrier that did not support applying accessibility standards to carrier Web sites suggested that carriers be required to provide a phone number to an accessible phone line where equivalent information and services could be obtained. In its view, this was the best alternative because it would provide personalized service to passengers with disabilities and avoid the imposition of high Web site conversion costs on carriers.

Disability advocacy organizations and individuals who self-identified as having a disability unanimously supported the Department's proposal to require that all public-facing content on a carrier's primary Web site be accessible. A few commenters who self-identified as having disabilities did not oppose the use of text-only Web sites for achieving accessibility, but none supported access to anything less than all public-facing content on a carrier's Web site. ITI, the association of leading information and communication technology companies, stated unequivocally that the complete Web site (all public-facing content on a carrier's primary Web site versus only portions necessary to providing core air travel services and information) should comply with the WCAG 2.0 standard at the conclusion of the implementation period. The majority of individual commenters identifying as having a disability and all commenters representing disability advocacy organizations were also adamantly against the use of text-only Web sites as an alternative to making the primary Web site accessible. Their reasons for opposing the text-only sites will be explained in the discussion on conforming alternate versions later in this preamble.

DOT Decision: The Department considered the arguments raised by carriers and carrier associations in support of compliance options that limit the scope of primary Web site content that must be accessible. While the proposed options would undoubtedly result in cost savings to carriers, they are not the only way to reduce the cost of making Web sites accessible. Moreover, and most importantly, such options are not acceptable because the purpose of requiring Web site accessibility is to attempt to ensure that passengers with disabilities have equal access to the same information and services available to passengers without disabilities. Therefore, the Department has decided to retain in the final rule the requirement we proposed that public-facing content on a carrier's primary Web site marketing air transportation to the general public in the United States must be accessible. The statutory definition of air transportation includes interstate transportation or foreign air transportation between a place in the United States and a place outside of the United States. See 49 U.S.C. 40102 (a) (5). For a carrier whose primary Web site markets (i.e., advertises or sells) air transportation to the general public in the United States this generally means that all public-facing Web content is covered. For a carrier whose primary Web site markets air transportation as defined above and other flights to the general public in and outside of the United States, only public-facing content on the Web site marketing air transportation to the general public in the United States must be accessible. We recognize that some technical difficulty may be involved for foreign carriers applying the accessibility standard to Web sites marketing air transportation to the public in the United States that draw on data sources not required to be accessible under our rules. We are not convinced; however, that the effort to ensure the data from such sources can be used on the covered Web site will involve such significant expense as to cause an undue burden. At the same time, there is no requirement for carriers to make Web pages that market air transportation to the general public outside of the United States on a covered Web site accessible. Therefore, for covered Web sites that market both air transportation as defined above and other flights not within the scope of this rule, we expect carriers to do what is necessary to render Web pages marketing air transportation to the general public in the United States accessible. Carriers will have to decide the best approach to making the covered Web content accessible based on their business priorities and available resources. As a practical matter, we recognize that the most technically efficient and cost effective way to ensure that covered pages meet the accessibility standard may be for carriers to make all Web pages accessible on a Web site that markets air transportation to the general public both inside and outside of the United States and/or markets flights not covered by the rule. Therefore, we encourage carriers to bring Web pages covered by the accessibility requirements into compliance with the WCAG 2.0 Level AA standard using the technical approach that is most feasible for them given the content and infrastructure architecture of their Web sites.

Mobile Web Sites, Mobile Apps, and Other Electronic Communication Technology

The SNPRM: The Department sought comment on whether carriers should be required to ensure that their mobile Web sites meet the WCAG 2.0 standard at Level AA or follow the W3C's MWBP 1.0, or both. We asked whether carriers should be required to ensure that any third party software downloadable from a link on the carrier's Web site (e.g., deal finding software) is accessible and to ensure other carrier-initiated electronic communications such as reservation confirmations, flight status notifications, and special offer emails are accessible. We also requested input on the costs and technical feasibility of ensuring that such content is accessible.

Comments: The Department received a number of responsive comments to our questions about the accessibility of mobile Web sites and other electronic information and communication technologies. Several advocacy organizations for individuals with vision impairment were pleased that the Department had acknowledged that primary Web sites represent only a portion of the air travel-related electronic information and communication that pose barriers to people with disabilities. These organizations strongly urged the Department to go further and require carriers to ensure that their mobile Web sites and other technologies used for electronic customer interface (e.g., email, text messages, and mobile applications) are accessible. Some commenters representing advocacy organizations urged the Department to require carriers to make their mobile Web sites conform to the W3C's MWBP, while others urged us to require mobile Web sites to conform to the same WCAG 2.0 Level AA standard as primary Web sites. Regarding mobile applications (apps), while some of these commenters acknowledged that most mobile phones are not yet fully accessible to blind and other visually impaired users, they felt strongly that mobile apps may overtake Web sites and kiosks as the method of choice for looking up flight information, selecting seats, checking in, etc. within the next few years. They urged the Department to require carriers to ensure that their apps are compatible with the built-in or external assistive technologies that individuals with disabilities use. Specifically, they asked us to require carriers to meet the accessibility standards developed by operating system developers (e.g., Apple's Human Interface Guidelines for mobile apps designed for Apple's iOS mobile operating system) or another recognized standard known to be compatible with available external assistive technology. As discussed earlier, a few of these commenters also urged the Department to adopt in 14 CFR part 382 DOJ's “effective communication” standard under ADA titles II and III and require accessibility of all electronic information and communication technologies used by carriers to interface with their customers. NCIL advocated that the Department take a stronger stance in its rulemakings to reflect the broader rights of people with disabilities to technology access as described in Section 508. By way of comparison, they observed the efforts of government agencies to effectively communicate with people from diverse cultural backgrounds by making their regulations and guidance documents available in multiple languages on agency Web sites, through printed media, and via interpreters on the telephone. NCIL believes that the same concentrated and sustained effort to include people with disabilities is overdue. They further regard failure to move in the direction of greater access for people with disabilities across the spectrum of electronic information and communication technologies as “unacceptable, unfair, and discriminatory” stating: “. . . mandates for accessibility of Web sites . . . [are] long overdue; DOT must not make the same mistake by neglecting to address mobile apps until several years from now.”

Carrier associations and individual carriers generally supported applying an accessibility standard to mobile Web sites only when the mobile Web site is the platform for making the content of a carrier's primary Web site accessible. They acknowledged that mobile Web sites typically do not contain all the content of primary Web sites. ITSA encouraged us to adopt a flexible standard for mobile Web sites (e.g., the W3C's MWBP). In general, industry commenters either expressed opposition or did not comment on our questions regarding accessibility of other electronic information and communication technologies used by carriers to interface with their customers.

DOT Decision: The Department unequivocally supports full accessibility of all electronic information and communication technologies used by the air transportation industry to interface with its customers. We believe that certain factors, however, preclude introducing new accessibility requirements for electronic information and communication technologies other than Web sites at this time. Four factors weighed most heavily in our decision: (1) No accessibility standard specifically for mobile Web sites exists at this time; (2) accessibility standards such as WCAG 2.0 cannot be readily applied to mobile applications designed for mobile platforms that are not accessible; (3) most mobile devices currently on the market are not accessible to individuals who are blind or visually impaired; and (4) the need to focus carrier attention and resources on bringing existing Web sites into compliance with WCAG 2.0 Level AA. We believe the best approach to expanding accessibility of electronic information and communication technology in the air travel industry is to allow carriers to focus their resources on bringing the covered public-facing content of their primary Web sites into full compliance with the WCAG 2.0 Level AA standard. As they do so, they will acquire expertise and develop technical efficiencies in implementing the standard. We have decided, therefore, not to require that mobile Web sites, email, text messaging, mobile apps, and other electronic communication technologies be accessible at this time. Nonetheless, we encourage carriers to develop their mobile Web sites in conformance with the W3C's current MWBP until such time as a standard for mobile Web sites is developed and adopted. We also encourage carriers to immediately begin incorporating accessibility features into email, text messaging, and other information and communication technologies they use to the extent feasible. Doing so will immediately and incrementally increase access to those technologies for individuals with disabilities. In addition, it may make compliance with any accessibility standard the Department may require for such technologies in the future easier and less costly.

Embedded Inaccessible Third-Party Plug-In Applications and Links to Inaccessible External Web Sites and Applications

Comments: Carrier Web sites may contain content that can only be read using a software application owned and developed by a third party. Such applications may be hosted (embedded) on the carrier's Web site, or the Web site may contain a link to an external Web site where the application resides. In the September 2011 SNPRM, the Department sought comment on whether third-party software downloadable from a carrier's Web site (embedded) should be required to be accessible. The carrier associations opposed any such requirement, reiterating their position that the Department should regulate the entities providing the software directly when it is within the scope of its authority to do so. Disability advocacy organizations commenting on the issue urged the Department to require carriers to ensure that downloadable third-party software is accessible. These commenters pointed out that any contracts carriers have with the entities producing such software should contain a provision requiring that it meet the WCAG 2.0 standard. They specifically noted that section 382.15(b) requires carriers contracting for services that must be provided under Part 382 to ensure that the contracts stipulate that the vendor provide the service in accordance with Part 382. They reasoned that if Part 382 requires a carrier's public-facing Web content to be accessible, and the carrier contracts with a third party to provide downloadable software on its Web site, the contract must stipulate that the software meets the WCAG 2.0 standard. In addition, they urged the Department to require carriers to work proactively with the producers of inaccessible software that resides on an external Web site but can be reached from a link on the carriers' Web sites to repair any accessibility issues.

DOT Decision: The Department has considered the impact on Web site accessibility of various scenarios involving inaccessible third-party software embedded on a carrier's Web site and links to inaccessible Web sites or software that reside on an external Web site. In the case of an inaccessible third-party software, such as a deal finder software, embedded directly on a carrier's Web site, the Department believes that allowing exceptions for such software on an otherwise accessible Web site could significantly undermine the goal of equivalent access to Web site information and services for people with disabilities. Many companies today sell off-the-shelf Web software (e.g., JavaScript menus) used by Web site authors. A general exception allowing carriers to embed inaccessible plug-in software developed by third parties on an otherwise accessible Web site over time could result in significant portions of Web sites being excepted from compliance with the WCAG 2.0 standard.

The Department believes it is incumbent on carriers that intend to host third-party software of any kind on their Web sites to work with the developers to ensure that such software meets the WCAG 2.0 standard. This rule does not, however, prohibit a carrier from having links on its primary Web site to external Web sites and third-party software that are partially or entirely inaccessible. Such links are acceptable so long as there is a mechanism on the carrier's Web site informing the user that the third party software or external Web site may not follow the same accessibility policies as the primary Web site. For example, if a carrier's Web site has links to inaccessible external Web sites containing information and consumer comments about the carrier's services (e.g., social media Web sites such as Facebook, Twitter, and YouTube), the carrier must provide a disclaimer when the link is clicked informing the user that the external Web site is not within the carrier's control and may not follow the same accessibility policies (See links to Facebook, Twitter, and YouTube on the Social Security Administration home page http://ssa.gov). While this approach is acceptable, we urge carriers generally to avoid linking to external resources that are known to be inaccessible and to work with the authors of the external sites whenever possible to develop accessible modules. For example, Facebook, Twitter, and YouTube have collaborated successfully with the Web site developers of certain government agencies to provide an accessible interface for agency-related content (e.g., see links to Facebook, Twitter, and YouTube on the homepages of the Department of Education at http://ed.gov and the Department of Homeland Security at http://dhs.gov).