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

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.