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

5. Conforming Alternate Versions

The SNPRM: In the September 2011 SNPRM preamble, we discussed our concerns about some methods used to provide accessible Web content to individuals with disabilities. Specifically, we discussed the method of making the content of a primary Web site or Web page available in a text-only format at a separate location rather than making it directly conformant on the primary Web site. The Department had learned from a number of sources that such alternate sites are often not well maintained, frequently lack all the functionality available on the non-conforming Web site/page, and have content that is not up-to-date. ⁽³⁵⁾ These deficiencies are so prevalent that many accessibility experts flatly oppose alternate text-only sites as a general accessibility solution. ⁽³⁶⁾ WCAG 2.0, however, permits a conforming alternate version of a Web page as a way for a non-conforming page to comply with the standard. The conforming alternate version must meet the WCAG 2.0 Level AA success criteria, be up-to-date with and contain the same information and functionality in the same language as the non-conforming page, and at least one of the following must be true: (1) The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism, or (2) the non-conforming version can only be reached from the conforming version, or (3) the non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version. ⁽³⁷⁾ The conforming alternate version is intended to provide people with disabilities equivalent access to the same content and functionality as a directly accessible Web page. WCAG 2.0 implementation guidance, however, notes that providing a conforming alternate version of a Web page is a fallback option for WCAG conformance and that the preferred method is to make all Web page content directly accessible. ⁽³⁸⁾ Although the Department proposed no requirement restricting the use of conforming alternate versions, we stated our intent that Web site content be directly accessible whenever possible. See 76 FR 59307, 59313 (September 26, 2011). We sought comment on whether we should explicitly prohibit the use of conforming alternate versions except when necessary to provide the information, services, and benefits on a specific Web page or Web site as effectively to individuals with disabilities as to those without disabilities. We also asked under what circumstances it may be necessary to use a conforming alternate version to meet that objective.

Comments: In general, as discussed earlier, industry commenters favored the use of alternate Web site versions that did not conform to the WCAG 2.0 definition of “conforming alternate version.” Although some carriers did not oppose adopting the WCAG 2.0 Level AA success criteria, nearly all preferred having the option to apply any accepted accessibility standard only to primary Web site content involving core air travel services and information and to provide such content on a separate mobile or text-only Web site. We note that this proposed alternative would result in two parallel Web sites, each with its own development and maintenance costs. ITI commented that it should be up to the carrier to decide whether to build and maintain two Web sites (one that meets the WCAG 2.0 Level AA success criteria and one that does not) or a single compliant Web site. ITI observed that even though over time the cost of maintaining two Web sites would be greater than for a single compliant Web site, carriers should determine which approach would work best for them.

Disability community commenters rejected any option involving an alternative Web site largely because of their experience with such Web sites being poorly maintained and containing outdated content. Moreover, they viewed reliance on text-only alternatives for achieving accessibility as a “fundamental mistake.” They noted that arguments for text-only Web sites carry the implicit assumption that accessibility is intended to focus on users with visual disabilities. They emphasized the importance of considering the accessibility needs of all users, including those with hearing, cognitive, and dexterity disabilities, who benefit from accessible content that contains images, color, time-based media, and JavaScript.

DOT Decision: The Department continues to believe that conforming alternate versions, as defined by WCAG 2.0, have a role, albeit a very limited one, in achieving Web site accessibility. The alternate version promoted by the carrier associations and some individual carriers (i.e., text-only Web site containing core air travel services and information only), however, would host on the alternate Web sites only selected portions of the information available on the carriers' primary Web sites. The Department believes that permitting the use of an alternate version of any Web page that does not conform to the elements of a “conforming alternate version” as defined by WCAG 2.0 is incompatible with the goal of equal access. As discussed earlier, in order for a non-conforming Web page to be included within the scope of conformance by using a conforming alternate Web page under this rule, the alternate page must meet the WCAG 2.0 Level AA success criteria, be as up-to-date and contain the same information and functionality in the same language as the non-conforming page, and at least one of the following must be true: (1) The conforming version can be reached from the non-conforming page via an accessibility-supported mechanism, or (2) the non-conforming version can only be reached from the conforming version, or (3) the non-conforming version can only be reached from a conforming page that also provides a mechanism to reach the conforming version. We note that the use of WCAG 2.0 conforming alternate versions, if unrestricted, is likely to perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the secondary site. Given the incentives for carriers to focus on the development and maintenance of their primary Web site and the cost inefficiencies of maintaining two separate Web sites, the Department concurs with the WAI's view that the preferred method of conformance in most circumstances is to make all content (e.g., each page) on the primary Web site directly accessible.

Moreover, limiting the use of conforming alternate versions aligns with the well-established principle of disability nondiscrimination law that separate or different aids, benefits, or services can only be provided to individuals with disabilities (or a class of such individuals) when necessary to provide aids, benefits, or services that are as effective as those provided to others. See, e.g., the ADA implementing regulation for title II at 28 CFR 35.130(b)(1)(iii) and (iv) and 35.130(b)(8)(d), and the ADA implementing regulation for title III at 28 CFR 36.202(b) and (c), and 36.203(a). Therefore, the Department has decided to permit the use of Level AA conforming alternate versions only when making a particular public-facing Web page compliant with all WCAG 2.0 Level AA success criteria would constitute an undue burden or fundamentally alter the content on that page. Since a fundamental principle underlying the WCAG success criteria is that they be reasonable to do all of the time, most of the more difficult success criteria have explicit exceptions built-in for situations where direct compliance is not reasonable. For example, Success Criterion 1.1.1 (Level A) provides that all non-text content that is presented to the user has a text alternative that serves the equivalent purpose and lists six exceptions/alternative means of compliance for situations in which presenting non-text content as a text alternative would not be technically feasible. These include non-text content that is (1) a control or accepts user input, (2) time-based media, (3) a test or exercise, (4) designed to create a specific sensory experience, (5) a Completely Automated Public Turing test to tell Computers and Humans Apart (CAPTCHA), or (6) a decoration, formatting, or invisible. Most of these exceptions permit the text alternative to at least provide descriptive identification of the non-text content. With such broad exceptions intended to address technically challenging situations specifically built into the success criteria, an undue burden or fundamental alteration defense for using a conforming alternate version rather than rendering a Web page directly compliant with the Level AA success criteria will be a very high bar to meet.

If, despite the exceptions built into the WCAG 2.0 standard, a carrier believes an undue burden defense is justified with respect to a particular Web page, we would emphasize that the determination must be based on an individualized assessment of a number of factors showing that directly converting the Web page would cause significant difficulty or expense to the carrier. Those factors include: The size of the carrier's primary Web site; the type of change needed to bring the particular Web page into compliance; the cost of making the change as compared to the cost of bringing the Web site as a whole into compliance; the overall financial resources of the carrier; the number of carrier employees; the effect that making the change would have on the expenses and resources of the carrier; whether the carrier is part of a larger entity and its relationship to the larger entity; and the impact of making the change on the carrier's operation.