Congress, Federal Agencies, Take Action On Technology Accessibility

Monday, October 4, 2010 - 01:00

Both Congress and the two federal agencies have recently taken action aimed at making technological advances accessible to individuals with hearing and visual limitations. These initiatives coincide with the 20th anniversary of the signing of the Americans with Disabilities Act in 1990. In some respects, these actions overlap on various points.

On July 26, the Department of Justice published several advance notices of proposed rulemaking (ANPRMs), including an ANPRM requesting comment on various issues related to extending the Department's accessibility guidelines to goods, services, programs, and activities provided to the public by the 12 categories of "public accommodations" that are currently covered by its regulations. Public comments will be accepted for 180 days after the publication date of the ANPRM. The three other notices released by the Department on the same day addressed movie captioning and video description, accessibility of next-generation 9-1-1 services, and certain kinds of electronic and information technology.

Some of the areas covered by the Department of Justice ANPRMs are also covered by H.R. 3101, the "Twentieth Century Communications and Video Accessibility Act of 2010," which was voted on favorably by the House of Representatives on July 26 and is now pending in the Senate. A companion Senate bill, S. 3304, which is similar but not identical, passed the Senate on August 6. According to the statement of Rep. Edward Markey, author of the legislation, H.R. 3101 is aimed at making access to the Web easier through improved user interfaces for smart phones; requiring audible descriptions of TV on-screen action; making cable TV program guides and selection menus accessible to the visually impaired; requiring captioning of online TV; making closed captioning more accessible through improved remote controls; and requiring telecom equipment used to make calls over the Internet to be compatible with hearing aids.

The provisions of H.R. 3101 appear to be partially overlapped by a Federal Communications Commission Further Notice of Proposed Rulemaking, seeking comment on potential revisions in its rules to ensure that individuals with hearing loss have the fullest possible access to wireless communications devices and services, including the extension of the agency's rules to VoIP calls.

Web site operators should take particular notice of the Department of Justice proposal to extend the accessibility requirements of the Americans with Disabilities Act to Web sites. The ANPRM notes the conflicting rulings of the applicability of the ADA to Web sites. Compare National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) ("[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute") with Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002)(Web site is only covered if it affects access to a physical place of public accommodation). But the Department takes the position that "the ADA mandate for 'full and equal enjoyment' requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via websites."

Jeffrey Neuburger is Partner and Co-Chair of the Technology Media and Communications Department at Proskauer.