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

4. Applicability

The SNPRM: We proposed to apply the WCAG 2.0 Web site accessibility standard to U.S. and foreign carrier primary Web sites that market (i.e., advertise or sell) air transportation to the general public in the United States. We asked whether the requirements should apply to the Web sites of the largest U.S. and foreign air carriers only (e.g., those that operate at least one aircraft with more than 60 seats), of carriers that offer charter service only, and of carriers that advertise air transportation but do not sell airline tickets. As discussed above, the Department also proposed to require both U.S. and foreign carriers to ensure the accessibility of Web sites owned or controlled by agents that are not small business entities and to permit carriers to market on the inaccessible Web sites of small ticket agents, if they ensure that those small agents make Web-based discount fares and amenities available to passengers who indicate they are unable to use the agent's Web site. We sought comment on whether we should directly require ticket agents to ensure the accessibility of their Web sites under 49 U.S.C. 41712, rather than indirectly through the carriers. We also proposed to require that carriers disclose (and make available to sell) Web-based discounts and waive telephone or ticket counter reservation fees for customers indicating that due to a disability they are unable to use a carrier's inaccessible Web site (before the Web site conversion deadline). Finally, since individuals with certain disabilities (e.g., deaf-blind) may not be able to use a Web site that meets the WCAG 2.0 standard at Level AA without assistance, we proposed to require carriers to disclose and make available Web-based discounts and waive telephone or ticket counter reservation fees for customers indicating that due to a disability they are unable to use the carrier's accessible Web site after the Web site conversion deadline.

Applicability to Carrier Web Sites

Comments: Overall, the majority of commenters favored our proposal to apply the Web site accessibility requirements to primary carrier Web sites that market air transportation to the general public in the United States. Despite their disagreements with the proposed technical standard, the scope of covered Web site content, and the implementation time frame, both U.S. and foreign carriers were nearly unanimous in supporting the concept of carrier Web site accessibility. There were some comments, particularly among industry commenters, in favor of limiting applicability of the Web site accessibility requirements based on carrier size or Web site function.

The carrier associations who commented jointly urged the Department to apply the accessibility standard only to carrier Web sites that offer and sell air transportation. In their view, carrier Web sites that advertise air transportation but do not sell airline tickets should be excluded from coverage. Condor Flugdienst noted that foreign carriers operating a small number of weekly flights to and from the United States should be permitted an alternative means of compliance rather than having to make an investment in Web site accessibility similar to that of foreign carriers that operate more frequent covered service. All Nippon (ANA) concurred with the notion that basic information on carrier Web sites should be accessible to consumers with disabilities but stated that revising its Web sites targeting only U.S. consumers is impractical because all its Web sites (e.g., targeting Japan, Asia, Europe) draw on common data sources. The Regional Airline Association asserted that compliance costs for smaller carriers operating aircraft with 60 or fewer passenger seats would far outweigh the benefits but did not explicitly support excluding Web sites based on carrier size. One industry commenter suggested that DOT should exclude small or very small carriers with inaccessible Web sites from the accessibility requirements as long as the large partner carriers handling online ticket sales, check-in, etc., on their behalf also host on their own accessible Web sites the core air travel information and services available on the smaller airlines' inaccessible Web sites. There were very few comments by individual members of the public and none by commenters representing the disability community in favor of excluding any primary carrier Web sites from coverage.

Carriers raised no objections to the provisions to require disclosure of Web-based discounts and amenities and waiver of reservation fees not applicable to other customers for individuals with disabilities who notify the carrier that they are unable to use a Web site due to their disability. Some pointed out that this service is already required by Part 382 so compliance would not pose any additional burden. Others expressed the view that this provision by itself would meet the service needs of customers with disabilities without imposing the cost of compliance with the WCAG standard.

Several disability commenters, however, expressed dissatisfaction with the disclosure and fee waiver measures currently required by the Department when a carrier's Web site is not accessible. These commenters maintained that carriers frequently do not provide the discount information or do not waive reservation fees even when the individual identifies as having a disability. In 2010, Dr. Jonathan Lazar and students at the Department of Computer and Information Sciences of Towson State University conducted a study involving test calls to major carriers to determine how consistently carriers comply with these requirements. Their findings suggested that there are compliance problems. After placing a series of 60 phone calls (15 calls to each of 4 major carriers), students who self-identified as blind and specifically stated that they were unable to access the carrier's Web site noted at least one instance per carrier of price discrimination (e.g., discounted Web-based fares offered online were not disclosed to the caller or the agent refused to waive the telephone reservation fee). The rate of compliance failure was as high as 33 percent and 40 percent respectively for two carriers. ⁽²⁹⁾

DOT Decision: After carefully considering the concerns and compliance alternatives proposed by commenters, the Department has decided to require U.S. and foreign carriers that operate at least one aircraft with a seating capacity of more than 60 passengers to apply the WCAG 2.0 Level AA standard to their primary Web sites that market air transportation to the general public in the United States regardless of the carrier's type of passenger operations (e.g., charter or scheduled), or in the case of foreign carriers, the frequency of covered flights. We note here that whenever we reference aircraft passenger seating capacity in this or other economic or civil rights aviation rulemakings, we are referring to an aircraft's seating capacity as originally designed by the manufacturer. This requirement includes the primary Web sites of any such carriers that advertise on that site but do not sell air transportation there. For carriers that only advertise air transportation or their role as providers of air transportation (e.g., contract carriers) on their Web sites, compliance will be less technically complex and costly than for carriers that also sell airline tickets. For foreign carriers for whom air transportation to and from the United States is a small percentage of their overall operations, some additional complexity may be involved to convert data drawn from databases that are not covered by Part 382. But as we discussed earlier, the data conversion involved does not, in our view, constitute an undue burden.

On the other hand, we have decided to exclude small carriers (defined as those exclusively operating aircraft with 60 or fewer seats) from the requirement to make their primary Web sites accessible because of concerns about cost burden. When we proposed to require all carriers, regardless of size, to make their Web sites accessible, our research indicated that the majority of small carriers operated fairly simple Web sites that do not offer online booking, check-in or flight status updates. In updating our research for the final regulatory evaluation, we found that the Web sites of many smaller carriers have added online booking engines, one of the more difficult Web site functions to make accessible. As such, we believe that the additional cost to comply with the accessibility standard and maintain their Web site's accessibility would be substantial for small carriers. At the same time, the benefit for consumers would be small as only a few carriers exclusively operate aircraft with 60 or fewer seats. We therefore agree with the Regional Airline Association that the additional compliance costs for these small carriers are likely to outweigh the additional benefits to consumers from slightly increasing the number of carriers subject to these requirements.

To address carrier sites that are inaccessible to an individual with a disability before or after the Web site accessibility deadline, we retain the provisions requiring carriers to disclose Web-based discounts applicable to the individual's itinerary and waive fees applicable to telephone or ticket counter reservations for individuals who contact them through another avenue to make a reservation and indicate they are unable to access the Web site due to a disability. If the carrier charges a fee for Web site reservations that applies to all online reservations, the carrier may charge the same fee to a passenger with a disability requesting a reservation for a Web-based fare. We have noted earlier the commenter assertions and the Lazar study findings that some carriers do not consistently make Web-based discounts available or waive telephone or ticket counter reservation fees for those unable to use an inaccessible Web site. Therefore, we encourage carriers to ensure that their customer service staff is properly trained to comply with these requirements, as failures in this regard could result in enforcement action. We also encourage individuals with disabilities to immediately request a complaints resolution official (see 14 CFR 382.151) when they encounter any difficulties obtaining the required accommodation.

Ticket Agent Web sites

Comments: All carrier associations and individual carriers commenting on the provision to require carriers to ensure the accessibility of ticket agent Web sites strenuously opposed it and most urged the Department to regulate ticket agents directly. These commenters cited significant added costs to carriers in order to monitor ticket agent Web sites and a lack of leverage on the carriers' part to make the agents comply. ANA also sought clarification of the provision that carriers must ensure compliance with the accessibility standard on ticket agent “Web pages on which [their] airline tickets are sold.” They wanted to know the extent of a carrier's obligation to ensure accessibility on agent Web pages, which in addition to the carrier's fares, display special offers and advertise travel components (e.g., hotel bookings, rental cars) that are not within DOT's jurisdiction.

ANA also raised concerns about Web pages subject to oversight by more than one carrier if disagreements arise among the carriers as to whether the pages adequately meet the standard. ANA also wanted to know about Web pages that are likely to be viewed in the process of booking a carrier's fares but that do not specifically mention the carrier—such as disclosures about service fees or refund fees imposed by the agent. Finally, they raised the possibility that DOJ may subsequently adopt a Web site accessibility standard that conflicts with the DOT standard, and asked whether carriers would be obligated to put agents at risk of DOJ sanctions by insisting that they follow the DOT standard. We respond to these concerns in the section DOT Decision below.

The American Society of Travel Agents (ASTA) and National Tour Association (NTA) concurred with the view that airlines should not be quasi-enforcers of ticket agent compliance with Web site accessibility requirements, stating that the carriers' role should only be to provide notice to agents of their Web site accessibility obligations (e.g., through the Airlines Reporting Corporation). The Interactive Travel Services Association (ITSA) was the sole commenter representing ticket agents that supported a requirement for carriers to ensure agent Web site compliance as long as the sole determinant of compliance is the accessibility standard DOT mandates and not any additional requirements that individual airlines may wish to impose.

Echoing ANA's comments about the scope of agent Web sites, other industry commenters pointed out that ticket agent Web sites contain content and functionality that go well beyond the marketing of air transportation. They observed that compliance with the accessibility standard would necessarily entail changes to many Web pages unrelated to air transportation. USTOA in particular argued that few, if any, tour operator Web sites offer customers the opportunity to purchase air transportation as a stand-alone product, which typically is offered as an add-on to supplement a cruise or land tour. They argued that Web site changes to make pages on which air transportation is marketed accessible will necessarily involve changes to the site layout and architecture affecting non-air transportation related Web pages. USTOA believes that this situation amounts to de facto regulation of travel products and services outside the scope of the ACAA and the Department's jurisdiction. Other travel industry commenters noted that only a small portion of the content on agent Web sites is air transportation-related and asserted that unless agents undertake the expense of rendering all the public-facing content on their Web sites accessible, their Web sites as a whole will not be accessible to passengers with disabilities under the proposed requirements.

Commenters representing agents also pointed out that the cost of converting existing Web sites would be especially difficult for ticket agents that have minimal in-house resources providing Web site support. These commenters observed that many travel businesses would have no choice but to purge existing content and avoid adding any advanced features on their Web sites rather than incur the high cost of ensuring that all their covered content is accessible. As an alternative, ASTA/NTA suggested that DOT consider requiring only new content on agent Web sites to be accessible, while permitting a safe harbor for existing content. They reasoned that even with a safe harbor provision, in most cases the continuous and rapid turnover of content would result in Web sites coming into compliance over a relatively short period of time.

For the most part, disability advocacy organizations indicated their overall concurrence with the Department's proposals and few commented directly on whether the Department should require carriers to ensure the accessibility of ticket agent Web sites or ensure the compliance of ticket agent Web sites directly. Disability advocacy organizations that did comment on the ticket agent proposal remarked that carriers should be held responsible for ensuring ticket agent Web site accessibility through their contracts with the agents. They again observed that Part 382 already requires carriers to have provisions in their agreements with contractors that perform services required by Part 382 on their behalf. See section 382.15(b). A few individual members of the public who did not identify as having disabilities, however, did not support a requirement to hold carriers responsible for ensuring the compliance of ticket agent Web sites.

In connection with ensuring the accessibility of ticket agent Web sites, industry commenters and some individual commenters also raised the concurrent Department of Justice (DOJ) rulemaking to revise its ADA title III regulations concerning Web site accessibility standards. These commenters stated that both Federal agencies must coordinate to ensure that the technical Web site accessibility criteria each will require are consistent. Some of these commenters urged the Department to postpone imposing a Web site accessibility standard with regard to ticket agents until the DOJ rulemaking is completed.

Finally, the Department received a number of comments on the proposed provisions for carriers to ensure that agents that are small businesses and whose Web sites are inaccessible provide Web-based discounts, services, and amenities to individuals who indicate that they cannot use the agents' Web sites and who purchase tickets using another method. ASTA specifically supported this proposal as a viable trade-off for small entities in lieu of Web site conformance, saying that such businesses expect to have personal interaction with consumers anyway, so any additional burden of providing these services offline should be manageable. Some disability advocacy organizations took exception to the Department excluding small ticket agents from the carriers' responsibility to ensure that agent Web sites comply with the WCAG 2.0 standard. In their view, a requirement for carriers to ensure that small agents offer Web-based discounts to passengers who self-identify as having a disability is not practical. They argued that customers will not necessarily know whether the agent is a small business and whether or not the agent's Web site should be accessible. They also objected to the notion that in order to access the same service as non-disabled people, they must self-identify as having a disability.

DOT Decision: The Department has considered the viewpoints for and against requiring accessibility of ticket agent Web sites and the question of whether or not carriers should be responsible to ensure that such Web sites are accessible. After looking at all the available information, we have decided against requiring carriers to ensure the accessibility of ticket agent Web sites. We considered limiting the agent Web sites for which carriers must ensure compliance to those agents whose annual revenues related to passenger service to, within and from the United States are $100,000,000 or more. Limiting carriers' responsibility to ensure the accessibility of ticket agent Web sites to only the few largest agent Web sites would limit the cost burden to carriers of monitoring agent Web site compliance with this requirement while increasing the range of accessible air travel Web sites available to consumers with disabilities who would benefit from the rule.

We decided against adopting this approach for two reasons. First, the Department of Justice (DOJ) has jurisdiction to regulate travel services as service establishments that are public accommodations under title III of the ADA, and DOJ expects to issue a proposal in early 2014 on accessibility of public Web sites under ADA title III. The Department of Justice proposal would address the scope of the obligation for public accommodations to provide access to their Web sites for persons with disabilities, as well as the technical standards necessary to comply with the ADA. Ticket agents, which are public accommodations under ADA title III, would be covered entities under DOJ's rulemaking. Although in our view DOT has the rulemaking authority to require ticket agents to directly comply with the same Web site accessibility standard as carriers, we acknowledge DOJ's concurrent authority to do the same and are persuaded that a single consistent standard that applies to ticket agents for Web site accessibility will eliminate uncertainty and confusion in converting their Web sites.

Secondly, we find the carriers' arguments persuasive that a requirement to ensure that their agents implement the Web site accessibility standards will be difficult for them to monitor and enforce. Furthermore, diverting technical resources away from the development and maintenance of their own primary Web sites in order to monitor ticket agent Web sites may detract from their efforts to identify and correct problems that may emerge after the WCAG 2.0, Level AA standard is implemented on their Web sites. For these reasons, we feel it will best serve the public interest not to require carriers to ensure that their ticket agents bring their Web sites into compliance with WCAG 2.0, Level AA at this time. In the same vein, the Department has decided not to require carriers to monitor and refrain from using ticket agents who fail to provide, either over the telephone or at an agent's places of business, Web-based fares and amenities to individuals who cannot access an agent's Web site due to their disabilities. Instead, the Department has decided to amend its rule on unfair and deceptive practices of ticket agents  ⁽³⁰⁾ to require all ticket agents that are not considered small businesses under the Small Business Administration's (SBA) size standards  ⁽³¹⁾ to disclose and offer Web-based discount fares to prospective passengers who contact them through other channels (e.g., by telephone or at an agent's place of business) and indicate that they are unable to use an agent's Web site due to a disability.

The Department has also decided not to include an additional requirement in the rule on unfair and deceptive practices to prohibit a ticket agent from charging a fee for reservations made over the phone or at the agent's place of business to individuals who cannot use the agent's Web site due to a disability. In our view, amending the unfair and deceptive practices rule to bar fees is unnecessary since existing law already prohibits charging a fee in such circumstances. Under the “reasonable modification” provision of DOJ's current title III ADA regulation, covered entities are required to make reasonable modifications to their policies, practices, and procedures when necessary to afford the same advantages to individuals with disabilities as are available to others, unless such modification would cause a fundamental alteration of the advantage offered. ⁽³²⁾ Furthermore, ADA title III prohibits covered entities from imposing charges to cover the cost of such reasonable modifications, even when a charge would normally be assessed to all customers for the same service. ⁽³³⁾ DOJ's guidance concerning this provision explains that when a service normally provided at a fee to all customers is provided to an individual with a disability as a necessary measure to ensure compliance with the ADA, no fee may be imposed on the individual with a disability for that service. ⁽³⁴⁾ The Department believes that these title III provisions sufficiently establish the obligation of ticket agents to modify their policies to refrain from charging a fee to individuals with a disability for Web fares requested over the telephone or in-person at the agents' places of business when those individuals indicate that they are unable to access the agent's Web sites due to their disabilities.

Implementation Approach and Schedule

The SNPRM: The Department proposed a three-phase implementation schedule for ensuring that the carriers' primary Web sites would be fully compliant by two years after the effective date of the rule. The first phase would apply only to new or completely redesigned primary Web sites that would be required to be accessible if placed online 180 days or later after the effective date. We explained that substantial technical changes such as those affecting a Web site's visual design or site architecture would constitute a “redesign.” The second phase would require all pages associated with obtaining core air travel services and information related to these core services, either to be directly conformant on the carrier's primary Web site, or have accessible links from the primary Web site to corresponding conformant pages on a mobile Web site by one year after the effective date. The third phase would require all public-facing content on the carrier's primary Web site, including core air travel services and information previously made accessible on a mobile Web site, to meet the accessibility standard by two years after the effective date. We also sought comment on alternative time frames and approaches for implementation of the WCAG 2.0 standard.

Comments: Most commenters, whether representing industry or the disability community, disagreed with the proposed implementation approach and time frame. Nearly all of the industry comments, for example, favored a flat two-year implementation deadline for all Web site changes, rather than the proposed phased approach. Most of the industry comments favoring a two-year deadline also supported applying the accessibility standard to only the portion of a carrier's primary or mobile Web site involved in providing core air travel services and information. Spirit Airlines offered another option, recommending that only core air travel service and information pages be compliant with WCAG 2.0 at Level A by two years after the effective date and with Level AA by five years after the effective date. Air New Zealand, which did not object to the proposed WCAG 2.0 Level AA standard or to the scope (all public-facing Web pages on the primary Web site) argued that more than two years would be needed to render all covered content compliant. The Interactive Travel Services Association (ITSA) opposed the phased implementation timeline and urged the Department to impose a single compliance deadline of at least 18 months after the effective date for all Web content. Not all commenters rejected a phased approach, however. The American Society of Travel Agents (ASTA) opposed a flat two-year compliance period, stating that the timeline should be variable, allowing more time to convert larger Web sites. ASTA also supported a requirement for priority to be given to bringing content most likely to be used by consumers with disabilities into compliance first.

Although many individual commenters who self-identified as having a disability supported the proposed time frame, disability advocacy organizations generally considered the time frame too generous. In their view, the technology already exists to restructure a large Web site on an accelerated schedule. ACB and AFB found the staggered implementation time frame confusing and potentially subject to litigation. They recommended that all Web site pages be compliant by six months after the effective date, except for certain legacy pages and content that would pose an undue burden to convert. CCD and NCIL advocated that at least Web pages providing the core air transportation services be compliant within six months after the effective date.

ITI offered several comments on the proposed implementation approach. They observed that while the technical challenges of Web site conversion vary greatly among the carriers, it is safe to say that when accessibility is properly integrated into the development process, technical efficiencies can be expected over time. They also observed that while new pages generally can be made accessible more easily than existing content, both share common back end infrastructure that may need to be changed. These infrastructure changes may involve additional staff training and implementation time in order to enable accessibility on new pages. They advised the Department to allow adequate time to execute all the required changes.

DOT Decision: We have considered all these comments at length and have been persuaded that the three-phase implementation schedule proposed for carriers' Web sites to be fully compliant within two years should not be adopted. However, for reasons we discussed earlier, the Department is convinced that it should require all covered public-facing content on a carrier's primary Web site to be accessible. The Department believes that reduction of compliance costs can be achieved without compromising access to all the public-facing pages on an airline's Web site content for people with disabilities by providing additional time for carriers to make their Web sites accessible. The additional time before full compliance is required will increase the extent to which accessibility can be built into newly launched or redesigned Web pages, forms, and applications, while minimizing the amount of retrofitting required. As such, we are requiring carriers that market air transportation to the general public in the United States and operate at least one aircraft with a seating capacity of more than 60 passengers to bring all Web pages associated with obtaining core air travel services and information (i.e., booking or changing a reservation (including all flight amenities), checking-in for a flight, accessing a personal travel itinerary, accessing the status of a flight, accessing a personal frequent flyer account, accessing flight schedules, and accessing carrier contact information) into compliance with the WCAG 2.0 standard at Level AA two years after the effective date of the rule. All remaining covered public-facing content on their Web sites must meet the WCAG 2.0 standard at Level AA three years after the effective date of the rule. We believe the extended deadline will lower the overall compliance costs for carriers by allowing more time to implement the changes during scheduled Web site maintenance and updates. A more detailed discussion of issues relating to the cost of implementation will be presented in the upcoming section on Costs and Benefits.