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The Applicability of the Americans With Disabilities Act to Private Internet Sites Submitted to the House Judiciary Committee Submitted for presentation as testimony from NCD to the House Judiciary Committee, Subcommittee on the Constitution, in connection with its February 9, 2000 ADA oversight hearing I. INTRODUCTION The Americans with Disabilities Act of 1990 (hereinafter the ADA) (Pub. L. 101-336, codified at 42 U.S.C. Sec. 12101 et seq.) includes prohibitions against discrimination on the basis of disability in four major areas of life. These are:
The current hearing, entitled Oversight Hearing On the Applicability of the Americans With Disabilities Act to Private Internet Sites was convened to address the issue and to develop a record surrounding the applicability of Title III to the Internet. To the extent that other testimony submitted for the record of this hearing, and background documents prepared for the Subcommittee in anticipation of the hearing reflect a belief that Title III may not cover online commerce, this memorandum will set forth the reasons for believing that the law does in fact apply in cyberspace. II. THE STATUTE Title III of the ADA (42 U.S.C. Sec. 12181) states in pertinent part: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation" (Act Sec. 302, 42 U.S.C. Sec. 12182(a)). "It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class. . . to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity" (42 U.S.C. Sec. 12182(b)(1)(A)(i). "It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability...with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals" (42 U.S.C. Sec. 12182(b)(1)(A)(ii). "It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability...with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others" (42 U.S.C. Sec. 12182(b)(1)(A)(iii). for purposes of subsection (a) of this section, discrimination includes...a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services...or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services (etc.)" (42 U.S.C. Sec. 12182(b)(2)(A)(ii). "A failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden" (42 U.S.C. Sec. 12182(b)(2)(A)(iii). As the above language suggests, a broad range of activities undertaken by private commercial entities are covered by the Act. III. PRESUMPTIONS AND STARTING POINTS It goes without saying that the ADA nowhere uses the terms "internet," "worldwide web" or "e-commerce." If the presence in the statute of any of these words were a prerequisite for coverage of e-commerce under Title III, then the ADA would have no bearing upon the internet. But not even the staunchest opponents of ADA jurisdiction base their arguments for the law's alleged inapplicability to the net on Congress' failure to expressly include these areas under the law. Nor could they make such an argument; for if the absence from the ADA of any reference to the internet were enough to defeat ADA jurisdiction in cyberspace, then constitutional protections for free speech could not apply to online communication either, since the First Amendment likewise makes no mention of the internet. Without specific statutory guidance, we are left with the task of inferring, based on what Congress has said and based on administrative interpretations and judicial decisions construing the law, whether and how the ADA applies in settings that were not before Congress when it was debated and enacted. IV. THE ARGUMENTS AGAINST COVERAGE OF THE INTERNET BY TITLE III Arguments against application of the ADA'S Title III to online commerce are mainly based on the following contentions:
V. THE PUBLIC ACCOMMODATIONS ARGUMENT A. BACKGROUND The wording and the legislative history of the ADA alike make clear that Congress intended Title III to facilitate the fullest possible participation of Americans with disabilities in the mainstream of commerce and of community life. While not exhaustive, the list of entities that qualify as public accommodations is broad, and includes (with the express exception of religious organizations and private clubs) almost the entire range of entities, products, activities, and goods and services with which average individuals may come into contact, or of which they may have need, in the course of their daily lives. Accordingly, it is fair to say that no one seriously disputes that the firms engaging in what we have come to call e-commerce are also engaged in "commerce" as that term is defined in Title III. Moreover, no one would deny that if the activities, products, information, recreational opportunities, social and interactive settings and other goods and services widely available on the web were being offered in person, over-the-counter, in auditoriums or in offices, their coverage under Title III of the ADA would be undisputed. The argument of those who dispute jurisdiction is therefore that somehow the fact that these goods and services, these opportunities to purchase, to socialize, to obtain professional services, to apply for jobs, to take courses--that all of these are somehow removed from ADA coverage by reason of the fact that they are provided and received electronically, online. The linchpin for this argument can be found in the single word "place." It is argued that though the entities are clearly subject to the law, and though the activities in question are covered as well, ADA jurisdiction falls because the alleged discrimination arising from inaccessibility of the web, if discrimination it be, does not occur at a "place of public accommodations." The net, they argue, is not a "place" as Congress used the term, and without the existence of a place where the public accommodation is offered, Title III cannot apply. Let us examine why, in logic and under the terms of Title III itself, this is a reading of the statute that would render the law meaningless, and it would render a substantial part of Title III utterly superfluous and of no effect. B. WHAT IS A PLACE? Consider these everyday questions and answers: Q. "Where Are you Going on the net today?" A. "I'm going to my favorite sites." Or Q. "How many visitors did your web site have today?" A. "We had 3,000 visitors from 42 countries." Or "I'll meet you online later." As these extracts from common parlance make abundantly clear, the internet is thought and widely spoken of as if it were a place. This view of it is supported by the more technical perspectives derived from the disciplines of "virtual reality" which also support the notion of the internet as a place for doing business, gathering and disseminating information, and doing more and more of the things we used to do by other means. The incremental growth in the economic value of the net and in the economic significance of electronic communications suggests that a major portion of our economy and of our discourse is moving in that direction. Under these conditions, even those who deny that the ADA covers the net will have to admit that a larger and larger proportion of commerce and public accommodations may become increasingly unavailable to Americans with disabilities as these activities migrate to the net. Is it plausible to believe, given the findings of pervasive discrimination and loss of opportunity underlying the ADA (42 U.S.C. Sec. 12101), given the broad scope of Title III, that Congress intended to pass a statute that would result in a steadily shrinking proportion of commerce being covered by the law as time goes by? No, if Congress had intended any such result, it would surely have mandated periodic review of the need for Title III, or would have adopted a sunset provision of the sort with which it is eminently familiar in other statutory settings, or would have created a certification process, comparable to that established for state and local building codes, under which particular firms or industry sectors could establish codes of practice that could then be officially validated. Congress did none of these things, however. Nor was Congress unmindful of the rapid pace of technological change. Indeed, all of its legislation in the disability area, including the ADA, reflect a keen awareness of, and a profound regard for, innovation and technological progress throughout our society. Congress did not need to mention any specific technology, or to protect any specific technology by excluding it from coverage, precisely because the issue was not technology but discrimination. The issue being addressed was loss of opportunity for full participation in the relevant spheres of life, irrespective of the technology being used. The supporters of ADA applicability to e-commerce of course do not contend that the word "place" is without meaning. The word is used and we must account for it. The word place does have an important meaning, but it is not the one that some have attempted to attach to it. As the debates over the ADA show, much concern was expressed by opponents and supporters of the legislation about the various settings and environments in which it might apply. Would the kitchens of restaurants, the operating rooms of hospitals, the cat- walks of nuclear power plants have to be made accessible in order to comply with this new law? The answer was obviously no, but how could this be made clear to all those whose understandable worries needed to be allayed, and whose ability to understand and comply with the law needed to be assured. To cope with these concerns, the ADA goes out of its way to distinguish those activities and locations of a "covered entity" that are subject to accessibility requirements from those that are not. The word "place" in "place of public accommodations" is therefore best understood in reference to making absolutely clear the distinction between those facilities and locations that, because used by the public needed to be made accessible, and those, which because private or back office or otherwise not normally used by the public for the transaction of business, did not need to be. This point can be illustrated by reference to other requirements in Title III that are not necessarily, or even typically, "place"- based. If Title III limited discrimination only to activities occurring in a definable location or to policies carried out in a particular place, these other requirements would have no meaning, and their presence in the law would be inexplicable. C. RELATED REQUIREMENTS Title III requires "reasonable modifications" of "policies, procedures and practices" that result in numerous forms of unequal treatment. The issues involved in the right to equal treatment, to equal participation and to full enjoyment of benefits and opportunities go far beyond ensuring mere physical access. It is easy to foresee how someone could be afforded full physical access to a place but be denied the right to participate in programs. An individual could be admitted to a doctor's office but then denied treatment. It is not the physician's refusal to admit a person with a disability to his/her office that is the issue in a typical discrimination case, but rather it is the physician's refusal to provide medical services that is the basis for the successful ADA complaint. If access to a particular place were the only triggering issue for requirements such as "reasonable modification," then one or the other of the following two scenarios would have to be the law. One, so long as full physical access to the public facilities of a covered entity were granted, any act of discrimination, whether committed on the premises or not, would become actionable under the ADA. Two, though a doctor would be prohibited from refusing to treat a patient in her/his office, that same patient, if calling on the phone for advice but not requesting an in-person consultation, could quite legally be denied advice and information solely on the basis of disability. Neither of these outcomes makes any sense. Hence, those who argue for place as a trigger of jurisdiction under Title III must explain how "place" applies to the "reasonable modifications," "effective communication," "auxiliary aids and services" and other requirements also contained in Title III. These opponents have and can offer no such explanation. Finally in this regard, if it were the law that some face-to-face interaction is required to trigger the applicability of Title III, what would prevent those who wanted to completely avoid and nullify the ADA from changing the nature of their businesses or services to eliminate the need for people to literally visit their premises at all? Already, without any intent to evade the law, many public accommodations have few if any occasions for people to come to their offices or facilities. Insurers, for example, conduct much or all of their business with clients over the phone or by mail. With direct deposit and online banking you can go for years without ever entering a branch of your bank. You can make elaborate vacation plans with a travel agent who you will never meet. Are all these entities free to deny their services to people with disabilities simply because there is no office visit, and does that denial of service become actionable under the ADA only if and when a visit to their premises becomes necessary, or when the individual with a disability spontaneously makes such a visit just for the purpose of triggering the law? No, this is patently absurd. Yet this is exactly the sort of outcome the supporters of "place" are forced to uphold. To draw out this anomaly yet a further degree, suppose there are two travel agencies. Each categorically states that it won't book tours or make reservations for people with disabilities. One does business over the desk, the other by phone. Does the law regard their identical refusal of service differently or the same? If the law regards their legal obligations and potential liabilities differently, then someone should explain why Congress engaged in such extreme favoritism as between varying business strategies. Those who claim that the ADA represents an expensive mandate upon private entities are particularly asked to explain why Congress imposed what they regard as a potentially heavy burden on some businesses while leaving other similarly situated firms to go their way without constraint. D. CASE LAW Just as no statutory language directly answers the question, so is there no authoritative court-made law bearing directly on whether the internet is covered by Title III. Four reported federal court decisions have been identified that are widely believed to offer guidance on what factors the courts will consider and how they will rule when the question of internet coverage comes squarely before them for decision. Nevertheless, two of these decisions strongly support the assertion of coverage. These are: Carparts Distribution Center Inc. v. Automotive Wholesaler's Association of New England, 37 F. 3d 12 (1st Cir. 1994) and Chabmer v. United of Omaha Life Ins. Co., 994 F. Supp. 1185 (N.D.Calif. 1998). It is contended by those who dispute coverage that the other two decisions support their view. These decisions are: Parker v. Metropolitan Life Ins. Co., 121 F. 3d 1006 (6th Cir. 1997) and Ford v. Schering-Plough Corp., 145 F. 3d 601 (3d Cir. 1998). In rejecting claims relating to the allegedly discriminatory provisions of insurance policies, both the Parker and Ford cases emphasize the distinction between availability of services at a "place of public accommodation" and the content of those services. Accordingly, both cases have from time to time been used to support the proposition that requiring an information provider or merchant to make its information accessible would constitute regulation of the content of its services. We believe that the holdings in these cases have no bearing upon the internet coverage question. We say this for two reasons. First, the ADA contains very specific provisions regarding insurance (42 U.S.C. Sec. 12201(c)) which make clear that actions and decisions made in the conduct of the business of insurance are exempt from scrutiny under Title III to the extend that they involve "underwriting," "risk classification" or related actuarial practices. To the degree that Parker and Ford involved insurance coverage issues, they would therefore in all probability have been exempt from coverage under Title III, whether the alleged discrimination had occurred inside or outside of an insurance office. In other words, the plaintiffs in these two cases would have been thrown out of court even if they were alleging that the discrimination in insurance coverage had occurred at the place of public accommodation. Added to this, the Ford case appears to involve a standing issue, as to whether the plaintiff was in fact a "customer" or client of the insurance company. Nor does the content of insurance have anything to do with accessibility. To understand this point it is only necessary to ask this question: What would the courts in these cases have done if the insurance companies in question had refused to give these applicants for insurance copies of the policies, or of the application forms, or of the evidence of coverage booklets. For in the context of web accessibility, that is precisely the issue. When a seller of goods or services to the public over the net, or a provider of information to the public over the net refuses to make its electronic offerings accessible, what it is really saying is that it will give instructions, information, order forms, technical assistance materials, and a myriad of other kinds of information and service to our customers without disabilities, but for the person with disabilities, it will give none or only a fraction of that information to you. Alternatively, when a web-based merchant or information provider refuses to work toward accessibility, it is saying: we will give our customers and visitors without disabilities powerful tools for finding the information they need among our holdings, but for you with disabilities, we will not share those tools with you. Another case (Stoutenborough v. National Football League Inc., 59 F. 3d 580 (6th Cir. 1995)) has been used to support the proposition that electronic media face no Title III requirements. In this case, a claim under Title III for the closed-captioning of television broadcasts of professional football games was rejected, in part on the ground that the ADA does not cover TV. Captioning may not be covered by Title III, but that is not because of any "place" requirement, and it is not because of any generalized exclusion of electronic communication modalities from Title III. The rationale for the decision is that TV is comprehensively regulated by a different set of statutes that confer exclusive jurisdiction on the Federal Communications Commission (FCC). Still another problem with any attempt to use the Stoutenborough case as a precedent here is that the accommodation requested, even if Title III did apply, would have been unreasonable and would almost certainly have constituted an undue burden or a fundamental alteration in the goods and services offered by the league. As such, the processes prescribed under Title III would have resulted in the claim's being rejected anyway. This last point is particularly important as it relates to the issue of costs. Let us turn to that issue, in the context of concerns expressed by many about the costs that will be imposed upon the private sector if accessibility requirements are made applicable to the net. VI. THREAT OF ECONOMIC HARM ARGUMENT A. WHERE'S THE BEEF? Some critics of an expansive interpretation of Title III argue that accessibility will impose large costs on business, including costs on small firms that utilize the internet to publicize or sell their products. These critics argue that such costs will impair the spectacular engine of economic growth that the internet has become during this unprecedented period of national prosperity. In essence their argument boils down to this: While accessibility is desirable, we must trust industry to achieve it, and we cannot risk the harm to economic growth and to innovation that regulation or legal mandates of accessibility would impose. Such arguments are superficial and may even be attractive, until one asks: What evidence do you have to support these claims? What evidence do you have from people who have studied the issue and tried to achieve accessibility that it is unduly costly or that it diverts significant resources from capital investment or innovation? Advocates of accessibility wait for reputable case studies confirming these fears, but so far they wait in vain. No such evidence exists. What they do have is a growing body of experience of how little is the burden associated with providing accessibility, and growing legions of companies, government agencies, web masters and programmers who know from personal experience how gratifying accessibility is, rather than only from abstraction how frightening it can be. B. LEGAL RECOURSE AND PROTECTION FROM HIGH COSTS However unfounded they may be, fears about cost are genuine and should not be dismissed lightly. For that reason it is important to remember that, if a situation were to occur in which the costs of accessibility were high, the law provides ample mechanisms for avoiding those costs. It is the brilliance of the ADA design that it includes means by which covered entities can avoid any undue cost burdens associated with meeting the requirements that the law otherwise imposes upon them. Specifically, Title III contains a number of defenses, among which "readily achievable," "undue burden" and "fundamental alteration" are three of the most important. Depending upon the action, modification or accommodation in question, it need not be done if it is not readily achievable, if it would constitute an undue burden, or if it would result in a fundamental alteration of the goods or services in question. This does not mean that the covered entity is relieved of all obligations. It does mean that some alternative strategy can be utilized which is not so expensive, burdensome or intrusive. And if no such alternative can be found, if no "auxiliary aids or services" or other modifications can be found that meet the need at a reasonable cost, then nothing need be done at all. Experience indicates that such situations are exceedingly rare, however. With creativity and a commitment to try, there is almost always a viable solution that equitably and effectively balances the legitimate interests of both the covered entity and the individual with a disability. That is likely to be no less the case here. As it relates specifically to the internet, what this means is that if accessibility is economically burdensome or requires fundamental alteration of an entity's information strategy, it would be entirely appropriate to look for some other means of attaining the goal. Remember, the goal is not accessibility for its own sake, but rather the timely, accurate and appropriate availability of information to the public. C. THE PROBLEM OF VAGUENESS In this connection, it is often contended that accessibility cannot be legally mandated because the concept is too vague and amorphous to be adequately defined. Entities fear that costs may rise, not because of the literal costs of doing things, but because of the costs of repeating them in successive efforts to satisfy the demands of competing groups of people with all manner of disabilities and numerous types of special needs. Again, this fear is real and is worthy of respect. What is most important to say here is that the work of the World Wide Web (W3C) Web Accessibility Initiative has gone a great part of the way to clarifying what accessibility means and toward operationalizing how it can be achieved. These voluntary guidelines do not have the force of law, but because of their clarity, cogency and wide support among leaders in the internet community, they are likely to become more and more the de facto standard for resolving accessibility issues (See, http://www.w3c.org/WAI/). Any designer, web master, Information Systems manager, CFO or CEO concerned about costs or vagueness should take the time to look at these readily available sets of guidelines. The effort will be rewarded with a recognition that accessibility is a set of precepts, assumptions and methods that are entirely consistent with the highest standards and best established practices in web site and communications design. D. LAWSUITS Unlike your typical negligence or stockholder's derivative suit, the opportunities to win money damages in ADA Title III cases are extremely limited. Although private suits are allowed under Title III, no damage awards are available as remedies in such suits, unless the U.S. Attorney-General joins in the suit (Act Sec. 505, 42 U.S.C. Sec. 12205). While attorney's fees are available, these are only forthcoming for the "prevailing party," meaning the person who sues has to win in order to collect fees. All of the defenses previously noted would be available to the defendant in such a suit. But what about nonmeritorious suits brought without expectation of winning but for the purpose of extracting a settlement from the defendant who would rather pay up than go to the time and expense of going to court? On one level, there is no answer to this. Any law is capable of abuse, and no law is any better than the character of the people applying it. But on another level, this prospect of frivolous suits can be seen to be quite remote. For one thing, the costs of meeting legitimate accessibility demands, thereby eliminating the grounds of the suit, are likely to be small. As indicated above, the W3C guidelines are likely to become a de facto standard, and courts are likely to accord them great weight in determining compliance with accessibility requirements. Where they have been followed, the prospects of dismissal without trial of suits is likely to be extremely high. The ADA also provides for dispute resolution (42 U.S.C. Sec. 12212). As demonstration projects in the avoidance of litigation through their use become institutionalized, these techniques are likely to come into greater and greater use as a means for preventing protracted and unnecessary conflicts in both administrative tribunals and in the courts. VII. THE CONSTITUTIONAL FREE SPEECH ARGUMENT A. GENERAL OUTLINES OF THE CLAIM A third group of arguments against required accessibility of the web takes as its point of departure the notion that, if Title III purports to include this mandate, such a requirement should be struck down as unconstitutional, owing to its infringement on the free speech rights of those who own and design web sites. Though the First Amendment, like Title III, contains no reference to the internet whatsoever, these critics of accessibility predicate their argument that accessibility is unconstitutional on several related theories. Sometimes they contend that accessibility requires the inclusion of content against the will of the site owner; other times they argue that accessibility dictates the form of information presentation in a manner that is constitutionally indistinguishable from provisions that regulate content. In still other instances the argument is made that while the requirement of accessibility does not unconstitutionally burden freedom of expression in terms of either form or content, it does deprive web owners of space in which to present what they choose, or it requires them to spend money for extra servers or additional space to make up for what has been taken away from them. B. BASIC MISCONCEPTIONS In a memorandum dated December 16, 1999 submitted to the subcommittee by its counsel Mr. Paul Taylor, vigorous and well- researched arguments are advanced to explain the constitutional contentions of the anti-accessibility group. While it would be difficult to say whether these formulations are representative of the way other scholars would phrase the arguments, it is worth noting, if only because of their intelligence and energy, and because of the fact that they are before the subcommittee as part of this record, that they contain a number of factual assumptions that we believe cannot be supported. Once these matters are clarified, the constitutional arguments will be addressed in legal terms. Throughout the pertinent sections of that memorandum, terms such as "mirroring," "handicapped-accessible form" and "handicapped-access requirements" and "duplication of information" are used. From the frequent use of these terms, it can only be concluded that the memorandum subscribes to the view that accessibility always, or at least often, involves the creation of a parallel body of information that is accessible. The memorandum further assumes that scarce web space or server resources are required to house this parallel or shadow web site. Appreciating as we do how misunderstandings can arise, it is important to note here that these are neither the methods nor the consequences of accessible web site design. Indeed, parallel web sites with duplicate information would resemble "separate but equal" internet access, which is the very last thing people with disabilities want or need. Far from it, and consistent with the overall thrust of the ADA, Americans with disabilities overwhelmingly want their internet access (no less than their education, employment and housing) in integrated settings, shared with others to the maximum extent possible. Consider that in many cases the difference between meaningful accessibility and frustrating inaccessibility may be something as simple as including alt-text tags for icons, logos or other graphics. Typical of the problems encountered here is the statement in the committee staff memo to the effect that requiring that an audio file be provided along with a print file would slow the downloading of information and annoy and inconvenience users. This is quite true, but on what basis would anyone suppose that accessibility requires that people be forced to download an audio file, whether they want it or not. At worst, all accessibility would do would be to give them the choice, to allow them to download a print file, or an audio file, or both if they like. Web designers may be free to provide duplicate sites or redundant downloads if they choose to, but nothing in the law or in the logic of accessibility compels them to do so. And no one can mandate good web design. C. THE CASES Opponents of mandated accessibility who make the unconstitutionality claim sometimes rely on the Supreme Court's decision in Miami Herald Publishing Co. of Tornillo, 418 U.S. 241 (1974). In that case the Court struck down a Florida statute that required newspapers who criticized candidates for public office to give those candidates an equal amount of space to respond to the statements made about them. Clearly, the case has no applicability to the accessibility issue. Accessibility does not require the owner of a web site to include any new editorial content, let alone content that is adverse to the owner's own opinions. Moreover, when fully understood, accessibility does not place particular requirements as to form upon site owners, nor does it make material demands upon finite resources of server capacity or system speed. A more relevant case may be the Supreme Court's decision in Turner Broadcasting System Inc. v. Federal Communications Commission, 512 U.S. 622 (1994). There the Court upheld against a First Amendment argument the constitutionality of "must-carry" provisions. These provisions of the Cable Television Act required cable operators to carry local VHF television stations, the Channel 2's, 4's, 5's, 7's etc. of the world. In upholding the must-carry requirements, a majority of the Court made clear that they did not involve any governmental mandates or preferences as to content, and that they were intended to ensure that those without cable access could continue to have access to free broadcast television stations. How does putting commercial stations on cable contribute to the survival of free television? The point, as explained by the Supreme Court majority, is that left to themselves, cable operators had an economic incentive to carry their own programming and not to carry the competing programming of commercial broadcasters. Since cable channels would also be competing with commercial broadcasters for advertising revenues, the possibility existed that cable could so dominate the TV market as to drive free commercial broadcasters out of business. In that case, people who want free TV or who have no cable availability in their areas would have no access to the information and entertainment that these commercial stations provided. The issues raised in this cable TV case may seem a little remote from web accessibility under the ADA. At least it may seem remote until one considers that the web is the only source of access to a growing body of information. Even many public and commercial radio stations now tell listeners to consult their web sites for scores, for information on station personalities, or for more details of news stories and features covered. Likewise, many commercial opportunities, ranging from special discounts to mileage bonuses, are available only for shoppers who purchase online. Similarly, many products are advertised and available only on the web, ranging from items made available through various online auctions to products and services proffered by companies that advertise and market only online. Again, to say that these commercial and informational resources are not accessible is to say that they are not available to many people with disabilities. And to say that these resources are not required to be accessible is to say that such unavailability is tolerable in this society, good for the economy and worth tolerating for the sake of some greater but wholly conjectural good. VII. THE "OTHER STATUTES PREVENT IT" ARGUMENT A. ARE CERTAIN INTERNET SERVICE PROVIDERS EXEMPT FROM THE COVERAGE OF THE LAW? The contention has been made that even if the norms of statutory interpretation or commonsense argued in favor of construing Title III to apply to the internet, provisions of other statutes external to and separate from Title III operate to prevent this result from being reached. While this argument takes various forms and tends to be convoluted, it basically boils down to the fact that information service providers (ISP'S) are not mentioned in the ADA, are exempt from captioning requirements under the Telecommunications Act of 1996, and are not defined as "common carriers" within the meaning of the law. Without going into the intricacies of these arguments, it is enough to say that they miss the point and are not relevant. It is not the status or characterization of an entity as an ISP, as a common carrier or as not-a common carrier that would determine the applicability of Title III. It is what the entity does--that is, whether it provides public accommodations as defined by Title III-- THAT should determine whether it is subject to the requirements of that provision. Whether a particular organization or business is a "covered entity" engaging in commerce is likewise a question not of status but of fact. If the law stated that certain classes of otherwise "covered entities" were, by reason of their status, exempted from the provisions of Title III, then the classes of entities so named would be exempt. In fact, the law does provide exactly such exemptions expressly, but only for religious organizations and private clubs. Since the law does provide these express exemptions based on entity status, it is difficult to believe that the law also provides implied exemptions of the kind in question here. ISP'S are expressly exempted from the legal requirements of other sections of the law, and that too argues in favor of the conclusion that if they are to be deemed exempt from coverage under Title III, some statute, somewhere, must say so. Thus far, we have been able to discover none. B. THE ROLE OF SEC. 255 OF THE TELECOMMUNICATIONS ACT OF 1996 It has been suggested by some that, to the degree that data, voice- mail and other so-called "information services" are not subject to the accessibility and compatibility requirements of Sec. 255, these services and activities must therefore also be considered exempt from the requirements of Title III of the ADA. Again, this argument appears to rest on some confusion. Sec. 255 of the Telecommunications Act, while it dovetails with the ADA in creating the public policy infrastructure for the quest for access and participation, is not coterminous with Title III in any technical sense. Sec. 255 and Title III do not cover the same entities, do not impose the same requirements, are not enforced in the same way, do not utilize the same standards for determining compliance, and can hardly be read so as to apply limitations or restrictions in the operation of one to the operation of the other. In one respect--their use of the same definition of "undue burden" and "readily achievable"--these two statutes are closely linked. But even there the FCC has asserted its authority to modify the list of factors to be considered in determining whether something is readily-achievable. These modifications are intended to reflect the role of factors unique to the telecommunications environment. Finally in this regard, precisely because of the limitations in Sec. 255 on its application to what are called information services, it is not yet clear, pending further record-development and rule-making by the FCC) how and whether Sec. 255 applies to the internet at all. But whether it does or doesn't has no bearing on Title III. HOME | FAQs | NEWSROOM | SITE MAP | FEDERAL AGENCIES | RESOURCES |
