[Athen] ACB Web Accessibility comments for DOJ ANPRM

Pratik Patel pratikp1 at gmail.com
Fri Jan 21 14:40:16 PST 2011

Dear all,

I am pleased to post these comments that the American Council of the Blind
will be submitting to the Department of Justice in response to its Advancd
Notice of Proposed Rule Making regarding the web. The thoughts behind this
response were from Paul Edwards, Kim Charlson, Eric Bridges, Mark Richard,
and yself. I was pleased to have been afforded the opportunity to serve as
the primary author. We also used quite a bit of material that was developed
by Lainey Feingold; we have, however, departed in many ways from her
original draft. I hope this is useful.



Comments of the American Council of the Blind regarding the Advance Notice
of Proposed Rulemaking on 28 CFR Parts 35 and 36; CRT Docket No. 110; RIN
1190-AA61, Nondiscrimination on the Basis of Disability;

Accessibility of Web Information and Services of State and Local Government
Entities and Public Accommodations, published in the Federal Register July
26, 2010, 75 FR 43452

January 21, 2011

For further information, contact

Eric Bridges

Director of Advocacy and Governmental Affairs

American Council of the Blind

2200 Wilson Boulevard, Suite 650

Arlington, VA 22201


<mailto:ebridges at acb.org> ebridges at acb.org


The American Council of the Blind (ACB) is a national membership
organization. Its members are blind, visually impaired, and fully sighted
individuals who are concerned about the dignity and well-being of blind
people throughout the nation.

Established in 1961, ACB is one of the largest organizations of people who
are blind in the world, with more than 70 state and special interest
affiliates and a nationwide network of chapters and members spanning the

In framing our comments on web accessibility, the American Council of the
Blind wants to begin by exploring some general principles that we believe
are at the heart of where regulations must go in the future. To do this, it
is necessary to take the same approach as the Department of Justice did in
reviewing the history of web regulation as it applies to the Americans with
Disabilities Act.

As the DOJ rightly asserts, there was an early commitment to making website
accessibility a general principle of the ADA which was provided through
various letters and public comments that the DOJ made available in late
1990's. Instead of asserting that there was an ongoing, affirmative
requirement that websites be accessible, the Department chose to make web
accessibility a vague and an ambiguous requirement. It never provided
specific guidance to covered entities. This approach did a disservice to
people who were blind or have low vision in that it created an assumption
that the best and only way that standards could be developed for this group
was through painstaking standard development over years. Differing efforts
through the creation and implementation of Section 508 guidelines in the
late 1990's and early 2000's left web accessibility requirements and
standards in disarray. It left covered entities to wonder which, if any,
standards applies to them. Further fueling the unfortunate situation was the
utter silence from the Department on specific guidance regarding access to
the web. At the heart of this ANPRM is the same approach. Specific questions
target specific pieces of equipment, aspects of the web, and audio
description. The American Council of the Blind urges the department to go
beyond this approach to the place the Department knew it should have been in
1991. It is now time for the Department to clearly and unequivocally
proclaim that accessibility of the web is an inherent component for making
programs and activities and places of public accommodation accessible. We
recognize that it will still be necessary to determine what accessibility
means for specific kinds of equipment. We are aware that this will mean
working to develop and implement standards that will apply to specific parts
of the web. However, we are convinced that people with disabilities have
waited long enough for a clear and general assertion by the Department that
there is an affirmative obligation to assure that web platforms that are
being used to make programs and activities accessible under Title II and
websites being deployed in places of public accommodation under Title III
must, within the constraints inherent in both titles, be accessible.

There is another principle that we believe must be clearly articulated as we
begin the second decade of the 21st century. Perhaps the best way to
describe this notion is to again look at where we were in 1991 and where we
are today. In 1991 the web did not exist as we know it today. The changes
brought about even in the last five years have been rapid and unimagined.
Access to the internet was limited to research universities and the
military. Rudimentary systems permitted text-based e-mail. Much of the
interactivity that has come to define today's web environments has come
about in the last ten years. Aspects of the web and the digital life-style
have reached beyond the use of computing into the realm of an ecosystem that
will come to be defined as the age of convergence. In 2011, virtually every
piece of equipment being deployed makes use of computers. Many pieces of
equipment are also directly connectable to the internet or can be accessed
wirelessly or utilizing a remote control. Essentially, this means that we
must go beyond looking at equipment, by itself. The accessibility of
computers, whether tiny ones in washing machines or larger ones in kiosks,
must be an inherent consideration in any regulations developed for the web
and equipment accessibility. More to the point, it is no longer possible or
credible to see the regulation of equipment, the web and audio description
as separate endeavors. All three of the ANPRM areas overlap. It is time that
the Department consider the adoption of general principles that clearly
articulates the convergence that the computer chip has created. The simple
truth is that, with the advent of inexpensive computer chips, accessibility
of equipment is potentially readily achievable and can be accomplished
without much difficulty or expense. However, if the Department continues to
take the approach that it has in the past, there will be no clear mandate
that manufacturers must accept for them to work to develop and implement
standards that must apply to all equipment.

Clearly Title II entities are required to make their programs and activities
accessible to people with disabilities. Where the web is concerned, they
have been able to avoid compliance by claiming that web accessibility is
either not required or that there is a lack of clarity. The net result has
been the deployment of websites which are less accessible to people who are
blind or have low vision. The Department has been complicit in creating
decreased accessibility because it has consistently failed to make it
clearly adopt and enforce web accessibility as a general principle that
underpins the Americans with Disabilities Act.

Finally, we would argue that it is time that the Americans with Disabilities
Act acknowledges other Federal laws that have begun to create standards and
principles of accessibility. We believe that the standards that are
currently available that apply to website accessibility under Section 508
need to be consciously incorporated as minimum requirements for state and
local governments. Many states have already chosen to adopt these standards.
However, we believe that the Department has an affirmative responsibility to
make 508 compliance an inherent component of Title II of the ADA. We also
believe that creating general principles for web accessibility which shall
apply to both Titles II and III of the ADA will have the effect of advancing
the objectives that are at the heart of Section 255 and the newly signed
Twenty-First Century Communications and Video Accessibility Act.

To summarize then, we assert that the failure to enforce web access as a
general principle in 1990's has done an immense disservice to people with
disabilities and more specifically we aver that people who are blind or have
low vision have been most severely impacted by this failure. The Department
must take this opportunity to clearly articulate that there is a categorical
and ineluctable affirmative requirement for web accessibility that applies
equally to state and local governments and places of public accommodation.
The Department must espouse principles of universal design that will, within
a reasonable time frame, require state and local governments to only develop
and deploy web platforms that are accessible. We believe that, if the
Department clearly adopts an unequivocal general principle, we will
gradually get to a place where web accessibility will assume the place it
should as a civil right for people with disabilities.

Answers to Questions Posed in the ANPRM

Question 1. Should the Department adopt the WCAG 2.0's ``Level AA Success
Criteria'' as its standard for Web site accessibility for entities covered
by titles II and III of the ADA? Is there any reason why the Department
should consider adopting another success criteria level of the WCAG 2.0?
Please explain your answer.

Answer to Question 1. While we believe that Level AA Success Criteria of the
Web Content Accessibility Guidelines 2.0 is appropriate to apply to all
covered entities doing business on the web, we ask the Department to apply
these success criteria through the incorporation of the revised section 508
guidelines. We further ask the Department to apply the World Wide Web
consortium's Authoring Tools Accessibility Guidelines (ATAG) 1.0 in addition
to the Web "content" Accessibility Guidelines. As discussed in the
introductory remarks, federal, state and local governments as well as many
business and other entities not only operate a variety of channels through
which communication occurs and services are rendered, but increasing
convergence of hardware and software being used in the communication and
service delivery makes it necessary to consider accessibility to electronic
information in a holistic manner. A simple view of the web leads to the
application of the Level AA success criteria; however, when seen in an
environment of increased use of dynamic content, mobile devices, kiosks, and
software application (apps), it becomes vital for the DOJ to consider
communication as a whole. In an era of blurring boundaries for the way
communication occurs, an approach that recognizes the web as a single
component of a multi-faceted communication and business processes will be
the only way to ensure that people who are blind or visually impaired can
benefit from variety of services.

Indeed, we find the Department's singular view of the web as a mere
consumption medium disconcerting. As will be discussed in response to the
Department's other inquiries, it is no longer the case that web sites appear
as a static canvas upon which a limited number of technically-minded people
have the capacity to draw. Rather, the sophistication of interactive
elements has taken us beyond what could have been conceivable in the mid to
late 1990's. For a set of regulations designed to address future
technologies and environments, applying a model that relies on the
understanding of the web from yesteryears' perspective does a grave
disservice to people with disabilities. We ask the DOJ to rely on the web as
a "platform" and not as a "site"-a platform that has the capacity to serve
multiple needs (including content creation and content consumption).
Ultimately, the web is but a single manifestation of the electronic
communication system which is transforming our expectations of technology.

And, as such, to ACB, it is vital that the Department make clear the
unequivocal applicability of "effective communications" test to the web. It
should be well understood that applying a technical set of standards, be it
Section 508, ATAG, or WCAG, is merely one method of achieving this effective
communication. The Department thusly discusses in its revised Title II and
III regulations nature of effective communications: "In order to be
effective, auxiliary aids and services must be provided in accessible
formats, in a timely manner, and in such a way as to protect the privacy and
independence of the individual with a disability." (Sections 35.160 and
36.303C.) This necessitates that covered entities take appropriate steps to
ensure that all electronic communications, among other activities, are
timely, are in appropriate formats, and accessible to persons with
disabilities as they are to those without disabilities while maintaining
their privacy and independence.

With this said, the Department's question recognizes that technical
standards are needed for Title II and III entities to know what they should
do in order to make their web platforms accessible to persons with
disabilities. For many reasons, Level AA Success Criteria of the Web Content
Accessibility Guidelines is the appropriate web accessibility standard to
meet the content consumption need-especially when it is brought in through
the latest revision of Section 508. Similarly, the Authoring Tools
Accessibility Guidelines provide additional guidance on elements of the
platform that allow users to create content. Among other benefits, when the
adoption of WCAG occurs via the latest revision of Section 508, it brings
along functional requirements for effective communication. This, we believe,
will be vital as web content is delivered through systems and devices that
are not yet on the market

WCAG 2.0, which has been developed as a result of a rigorous multi-year
process, is robust and stable and has been designed to "keep up with"
changing technology. The Abstract of WCAG 2.0 specifically states "WCAG 2.0
success criteria are written as testable statements that are not
technology-specific." The WCAG 2.0 Level AA success criteria focus on how
people with disabilities actually use and interact with web sites, and allow
for flexibility by web designers and developers. Designed to place emphasis
on outcomes and on design strategies that will ensure accessibility, the
WCAG 2.0 guidelines are not tied to or dependent on any particular
technology. They are as valid and usable in the cloud computing environment
as in the dedicated server world, as appropriate on social networking sites
as on e-commerce platforms and they are useful for people using any of the
many varieties of assistive technologies that people with disabilities
utilize to access and participate in the online world.

WCAG explains what is needed to allow people with disabilities to use the
web, but does not mandate particular solutions tied to particular
technologies. Techniques for meeting criteria are offered, but the criteria
themselves were specifically drafted to be forward looking - to explain what
must be done, but not how to do it. Adherence to the WCAG 2.0 Level AA
success criteria would not require a Title II or III entity to alter the
look or feel of its websites.

Secondly, a wide array of stakeholders was integrally involved in developing
WCAG 2.0. Industry, government, people with disabilities, and technology
experts all participated in the very open and public process that led to
final adoption of WCAG 2.0. The multi-year process ended with a detailed
Implementation Report demonstrating that the Guidelines were effective and
able to be implemented in a wide range of web settings. The report, which
points to specific sites using the WCAG 2.0 Success Criteria, is online at
http://www.w3.org/WAI/GL/WCAG20/implementation-report/. Bringing WCAG
through Section 508 revision will provide an added layer of assurance. In
particular, the adoption of Section 508 will provide a clear linkage to all
Title II entities-the explicit linkage that has been missing by reference.

WCAG is an international - and internationally accepted - standard.
Companies in the United States that do business abroad benefit from a
consistent standard, adherence to which meets legal requirements wherever
the Internet is accessed. International entities that operate across
multiple boundaries will be able to utilize the WCAG recommendations.

Additionally, WCAG 2.0 has extensive instructional and support materials
including detailed and continually updated "How to Meet" and "Techniques"
documents that provide specific information on how to satisfy the guidelines
using different technologies. When the Section 508 refresh process is
completed and WCAG is imported to Section 508, additional resources will be
made available through http://www.section508.gov
<http://www.section508.gov/> .

Sites that already meet WCAG standards (either WCAG 2.0 or its predecessor,
WCAG 1.0 (in place since 1999)) remind us that while web accessibility
regulations may be new under the ADA, web accessibility itself is not new as
conceived by the Department. The Department of Justice has long recognized
web accessibility as a component of ADA implementation in theory. The
Department must ensure that these important new regulations recognize the
landscape that currently exists and move accessibility forward. The fact
that the DOJ has long recognized web accessibility as part of the ADA, and
that commercial entities, large and small, as well as state and local
governments, are already using WCAG, helps demonstrate why the standard is
appropriate and should be adopted by the Department. Again, however, ACB
believes that this adoption of WCAG Level AA should not occur in isolation
without a significant recognition of the fact that all covered entities have
an affirmative obligation to provide effective communication to persons with
disabilities. WCAG is a technical reference standard. The techniques to
comply with WCAG vary from situation to situation and from technology to
technology. The underlying need to effectively communicate does not

Consequently, we ask the department to avoid a simple adoption of WCAG level
AA success criteria. Even if a covered entity provides a fully accessible
website, there is no guarantee that the device or the medium through which
this content is being delivered will be itself accessible. We posit that
elements of the revised Section 508 criteria that specifically address
functional requirements will provide additional assurance to people who are
blind or visually impaired that vital communication is being conducted in an
effective manner.

In addition, considering the platform needs that go beyond mere content
consumption, we believe that it is essential to address the web's
transformative role in permitting cloud-based authoring. This not only
provides the means to alter communication as seen through the implementation
of such social networking phenomena as Facebook and Twitter, but has
far-reaching implications for federal, state, and local governments,
businesses, and the society as a whole. Leaving this portion of the web
platform unaddressed will, in particular, mean limiting access to vital
processes necessary for successful employment. ACB must ask the Department
to not stand idle while a significant opportunity to address the historic
unemployment rate among people who are blind or visually impaired is
affected. If unaddressed, blind or visually impaired Americans are likely to
lose even more ground in being able to perform necessary business functions
which are a part of the day-to-day working environments. Whether as business
owners, through self-employment, or as part of a covered entity, persons
with disabilities do encounter significant number of situations where they
are unable to use the content creation aspects of the web. Therefore, we
must ask the Department to apply the Authoring Tools Accessibility
Guidelines in addition to the revised Section 508.

Question 2. Should the Department adopt the section 508 standards instead of
the WCAG guidelines as its standard for Web site accessibility under titles
II and III of the ADA? Is there a difference in compliance burdens and costs
between the two standards? Please explain your answer.

Answer to Question 2. Section 508 has been a critically important standard
for the federal government; it was drafted to be that--a tool for federal
agencies. As the Department knows, Section 508 is currently under active
revision, in large part to assure conformance with WCAG 2.0. When TEITAC,
the industry-consumer advisory committee assisting the Access Board with the
Section 508 refresh, turned in its report on revision of the 508 standards
it made its recommendation as identical to WCAG 2.0 as possible given that
WCAG 2.0 was not completed as of the report date. (See April 2008 TEITAC
Report to Access Board at
http://www.access-board.gov/sec508/refresh/report/, stating "The Committee
worked to harmonize its recommendations with the W3C Web Content
Accessibility Guidelines 2.0 (WCAG 2.0) Working Group." Moreover, all of
the commenters, both industry and consumer, that added supplemental comments
to the final report addressing the web portions urged the access board to
either adopt WCAG 2.0 for the Web portion of the new 508 standards or make
the new standards as identical as possible to WCAG 2.0.

Given the importance of international harmonization, and the extensive
support materials available for WCAG 2.0, the Title II and III web
regulations should refer to the efforts to harmonize Section 508 in order to
bring WCAT level AA success criteria for web content and functional
requirements for other needs. Moreover, Authoring Tools Accessibility
Guidelines should be relied upon in order to make interfaces accessible for
content creation purposes.

Question 3. How should the Department address the ongoing changes to WCAG
and section 508 standards? Should covered entities be given the option to
comply with the latest requirements?

Answer to Question 3. As discussed in the response to Question 1 above, WCAG
2.0 is a stable international standard adopted after a rigorous, open and
transparent process. It is designed to be flexible and allow for new
technologies. We urge the Department to adopt "the most current" version of
WCAG through Section 508 as the web accessibility standard for Title II and
III entities. In addition, the most current version of ATAG can be used by
Title II and III entities. In particular, the requirements for Title II and
Title III entities must be harmonized. The unnecessary bifurcation of
current set of requirements has led to enormous confusion and difficulty in
implementation. If and when there is a WCAG 3.0, as with its predecessors
1.0 and 2.0, it will have been designed with full input of all stakeholders.
Moreover, as evidenced by the migration from WCAG 1.0 to WCAG 2.0 in 2008,
any update to WCAG Guidelines will not inconvenience anyone or force anyone
who has adopted its predecessor to engage in costly and awkward
retrofitting. As such, the latest revisions of these recommendations will
provide a single source for covered entities. We see a similar process to
occur for the Authoring Tools Accessibility Guidelines, and believe that the
most current versions of the standard must be applied.

The Department should avoid a scenario under which entities can jump back
and forth between two standards (Section 508 and WCAG). This will indeed be
the case if the Department does not use the revised Section 508 standard. We
can very well conceive scenarios where the application of Section 508 is
required for the Federal government and other covered entities are asked to
only apply WCAG's level AA success criteria. Instead, we ask the Department
to serve as a mediator to ensure that the Section 508 revisions fully
incorporate WCAG.

But, beyond the discussion of technical standards, it is inconceivable that
the Department would consider foregoing the opportunity to emphasize the
need for effective communication. No matter what version of which standard
is used, in no way does the obligation for the covered entity to effectively
communicate with persons with disabilities diminished. It is certainly the
case that technology changes will require a fresh perspective on technical
needs; however, the fundamental principles inherent in communication remain
the same.

Question 4. Given the ever-changing nature of many Web sites, should the
Department adopt performance standards instead of any set of specific
technical standards for Web site accessibility? Please explain your support
for or opposition to this option. If you support performance standards,
please provide specific information on how such performance standards should
be framed.

Answer to Question 4. The criteria listed by the Department in applying
"effective communication" in its latest revisions are quite specific and
provide general performance guidance to covered entities. These criteria
already apply to other aspects of DOJ's Title II and Title III regulations.
Not to do the same for the web would be a fundamental departure for the
DOJ. In particular, language suggested by other parties in response to this
ANPRM suggests creating additional language to achieve performance
criteria-language that is unproven in contexts other than single instances.
In fact, this language has been used in settlements with a few entities-a
fact which we find particularly curious because of the compromised and
unproven nature of the language. Therefore, we strongly urge the Department
to emphasize "effective communication" as the overarching criteria by which
the entities will be judged.

The "effective communication" criteria, as suggested above, emphasizes
usability and equal access for people with disabilities to the full range of
activities and services available through the web platform of a covered
entity. We recognize that such generalized criteria, however, cannot replace
technical standards, which are critical to ensuring accessibility. We,
therefore, also recognize the importance of adopting WCAG through the
revised Section 508 and ATAG.

The ever-changing nature of many websites does not mean that technical
standards are not needed, but simply means that those sites must have
appropriate content management systems and robust accessibility features,
characteristics and policies that ensure continued compliance with web
accessibility standards. Generalized criteria, while important and necessary
are not on its own specific or clear enough to ensure accessibility for the
multi-layered complexity of websites provided by Title II and III entities
and would not provide sufficient guidance to those entities that seek to
make their websites accessible to people with disabilities. On the other
hand, generalized "effective communication" criteria are needed to ensure
that any new developments in the Internet or implementation approaches that
are not captured by Section 508 and ATAG standards are undertaken in a
manner that ensures equal accessibility and usability to people with

The WCAG 2.0 Level AA Success Criteria are founded on principles that go to
the core of accessibility in the context of the World Wide Web. The Success
Criteria - which tell site developers what to do but not how to do it - are
organized around four key principles: to be accessible, content on the web
must be "perceivable, operable, understandable, and robust." (See WCAG 2.0
introduction at http://www.w3.org/TR/WCAG20/#intro-layers-guidance. The
"how" part of the Standards is in the Techniques documents, which allow
developers to embrace new methods as new technologies become available.)
WCAG does not specify "how" but only "what" should be accomplished. It does
so in a testable fashion, an aspect of any web regulation of great
importance to covered entities and developers. Because of this, WCAG 2.0 has
many of the characteristics sought in effective communication criteria. We
urge the Department to adopt a generalized effective communication criteria
in addition to Section 508 and ATAG in part to clarify the principles
underlying the technical standards.

This two-pronged regulatory construct (general performance and technical
specifications) is currently used in the Department's new construction
regulations. Section 36.401(a) of the DOJ's Title III regulations defines
discrimination as including a failure to design and construct facilities
that are "readily accessible to and usable by individuals with disabilities"
and Section 36.406 requires that new construction "shall comply" with the
technical standards set forth in the Standards for Accessible Design.

For the reasons stated in response to Question 11 below there should not be
a distinction between "new" and "existing" or "remodeled" web sites (except
insofar as the undue burden defense will apply; both should be required to
meet this two pronged approach to compliance.

Coverage limitations

Question 5. The Department seeks specific feedback on the limitations for
coverage that it is considering. Should the Department adopt any specific
parameters regarding its proposed coverage limitations? How should the
Department distinguish, in the context of an online marketplace, between
informal or occasional trading, selling, or bartering of goods or services
by private individuals and activities that are formal and more than
occasional? Are there other areas or matters regarding which the Department
should consider adopting additional coverage limitations? Please provide as
much detail as possible in your response.

Answer to Question 5. In no place other than this question in this ANPRM is
it more apparent that the Department's conception of the web which is akin
to a physical "place of accommodation" is faulty. The evident linkages among
covered entities and the services that they utilize in order to communicate
with their customers by using related technologies, third-party websites and
services, and emerging platforms are perhaps the very things that would be
excluded by the Department's well-meaning (but less understood)exclusions.
In a world where governments communicate by using social networking,
educational institutions use virtual classroom platforms, and commercial and
noncommercial entities use technologies in order to effect cost-savings and
achieve efficiency, the boundaries between web sites is tenuous at best and
nonexistent at worst. Moreover, these boundaries are rapidly disappearing.
We fear that, by implementation date, the exemptions that the Department
would conceive will have transformed into a genuine set of concerns for
people with disabilities wherein, rather than affording protection to
"small, noncommercial" entities as intended, these exclusions will have
become a source for significant concern. In addition, the technical basis
upon which the exemptions are conceived will have altered dramatically. We
recognize the challenge of determining regulations in an area that shows
exponential growth; however, a set of regulations that are based on
"effective communication" as the base of all further conceptions will allow
the DOJ to avoid the pitfalls inherent in relying on technical limitations.

Rather than specify exemptions and exclusions in its rule, we ask that the
Department leave all discussion of such matters to the technical assistance
material it will make available. We find rules to be far more effective if
and when they are constructed in an affirmative manner---i.e., what "is"
covered and applicable instead of what "is not."

Even in its technical assistance material, it is critical that all
exemptions be very narrowly tailored. An accessible website allows people
with disabilities to obtain information and participate in core programs and
services provided by covered entities. Any exemption creates the possibility
that people with disabilities will be locked out of an aspect of those
programs, services, and information. Each instance of an exemption must
therefore be both fully justified and extremely limited. We find very little
on the web that is not necessary for a person who is blind or visually
impaired to utilize in either a way that is related to employment,
education, interacting with her government, or to conduct essential life

Links to external pages

The ANPRM recognizes that a covered entity must be responsible for a linked
website it does not operate or control "to the extent an entity requires
users of its website to utilize another website in order to take part in its
goods and services (e.g., payment for items on one website must be processed
through another website)." If the Department creates an exemption for
linked sites that a covered entity does not operate or control, it is
crucial that a clear exception be made for external linked sites that are
needed to participate in the goods and services offered by the covered
entity. (In other words, any 'exemption' for linked sites must have an
'exception' for certain types of linked sites.)

The interrelationship between sites is often hard to discern, and a member
of the public with (or without) a disability may not even know they are
leaving one site and going to another. For example, a bank may contract with
a third party to provide online banking services; the bank may not own,
operate or control the online banking site but online banking is obviously
an important service the bank offers to the public.

In such a situation, existing ADA regulations governing "contractual,
licensing, or other arrangements" would mandate that the bank (the covered
entity) would be responsible for ensuring that the online banking platform
conforms to the Department's new web accessibility regulations. In other
words, the planned web accessibility regulations must not in any way
undermine Section 36.202 of the current Title III regulations which prevent
a Title III entity from discriminating "directly or through contractual,
licensing or other arrangements."

In addition, it must be noted once again that in no way does the use of an
externally-linked web site by a covered entity diminish the entity's
obligation to effectively communicate with its customers. Would the use of a
third-party web platform prevent blind or visually impaired people from
using the products or services offered by the covered entity? The current
trend highly suggests that it is most likely that excluding categories of
sites damages the ultimate goal of providing full access. Instead, we
recommend that the Department rely on undue burden as its primary method for
gauging whether or not externally linked sites should or should not be

Informal and occasional trading by private individuals

We appreciate the Department's concern about distinguishing between business
entities (ranging from sole proprietorships to large corporations) and
private individuals. An exemption from the web accessibility regulations
that would address "informal or occasional trading, selling, or bartering of
goods or services by private individuals" may be appropriate but only if
certain (interrelated) key principles are incorporated into the exemption.
These exemptions should be provided on a case by case basis through
technical assistance. Even the thinking must be governed by the overarching
principle of effective communication:

(a) Each page owned or controlled by a covered entity and used by private
individuals for occasional trading, selling or bartering must meet WCAG 2.0
Level AA and the generalized performance standard when considering the page
without the content posted by the private individual. In other words, if the
format for the content supplied by the private individual is dictated,
managed or created by a covered entity, then that formatting must be, and
must support, accessibility;

(b) The tools and content that the Title II or III entity provide to the
public to enable private individuals (non-covered entities) to post and
review content must meet the web accessibility requirements (this ensures
that a person with a disability can use the tools and access the content).
See our discussion of the Authoring Tools Accessibility Guidelines and
further consider the web as a platform rather than a site;

(c) It must be possible for a private individual to create and share
accessible content (i.e., content that conforms to the web accessibility
regulations) on the page owned or operated by the covered entity if they
choose to. In this regard, the Department should urge covered entities to
encourage private party occasional sellers or traders to make their content
accessible by offering technical assistance in an economical fashion as part
of the guidelines and requirements and rules they already impose.

(d) The regulations must be cognizant that private individuals may be
posting content with the very same tools on the very same covered website
that other Title II or III entities are using. For example, a private
individual may use eBay to sell one item, while a Title II or III entity may
also use eBay. A regulatory exemption on this issue must be very narrowly
tailored so as not to exclude content posted on a site by a Title II or III
entity that is also used by private individuals. Just as occasionally
selling one item may not transform an individual into a Title III entity, so
too will using a general site to post content not shield a Title III entity
from its obligations.

An exemption that includes these principles will ensure that people with
disabilities will be able, themselves, to be the "informal and occasional
seller, trader or barterer." A narrowly tailored exemption will also ensure
that people with disabilities will have access to all content that otherwise
covered entities post in a marketplace setting, and that individual
occasional sellers, etc. choose to make accessible.

It is vital that the Department address the distinction between accessible
content and the ability to post such content. While it may choose to exempt
certain sites, it should not exempt platforms. In fact, the Department's
regulations should look forward and encourage the posting of accessible
content by application of Section 508 and ATAG requirements.

Web content created or posted by website users for personal, noncommercial

As with an exemption for casual, private sellers, an exemption for web
content created or posted for personal (narrowly and carefully defined)
noncommercial (again carefully defined) use must be very narrowly tailored.
The same core principles listed above must be included in any exemption for
this type of content. Without them, people with disabilities will be locked
out of social, professional and educational networks and other community
sites the Internet is offering today, and will offer tomorrow.

Private communications between and among individuals who are not covered
entities and who are communicating in a private context may be appropriately
exempted from the regulation through technical assistance. However, the
systems used for such private communication must not be. A web-based
communication system used by a covered entity must be accessible. When
communications between two individuals occur in other contexts, however,
such as an academic environment, the regulatory result must be different.
For example, two private individuals may use a photo-sharing site for
nothing more than sharing family photos. Those individuals may choose not to
share accessible content, but that site must offer tools to support
accessible photo sharing for others who want it. On the other hand, photos
of a school event shared by students on a site offered by the school to
encourage student interaction must be accessible so that all students,
including those with disabilities, can participate in this virtual school
activity. The photos in these two examples may be shared on the same site,
but the accessibility obligations would be quite different.

The Department must be very wary of creating an exemption that would exclude
vast swaths of the Internet made available by covered entities from much
needed accessibility requirements.

An exemption for personal, noncommercial use must recognize both who is
creating content, the context in which it is delivered, and the purpose for
which the content is intended. For example, colleges and universities using
Facebook to communicate with students, or holding classes through Facebook,
cannot be exempt from accessibility requirements. They remain Title II or
III entities regardless of where they are conducting their educational
programs and providing educational services. Content shared by fellow
students in an online class in response to a class assignment or teacher
request must be subject to the web accessibility regulations, even though
there may not be a "commercial" purpose for the content. This is crucial as
more educational institutions use the Internet to stream online lectures,
post readings, and host student chat forums. Web accessibility guidelines
must apply to Internet use for educational purposes so that students with
disabilities are fully included in all aspects of the learning process.

In today's web environment, the Department must carefully delineate what is
meant by "noncommercial." There is significant content available without
charge on major commercial sites that is posted by covered Title II and III
entities. A covered entity (large or small) that posts content for free on a
site such as YouTube or iTunes must not be exempt from providing that
content in conformance with the Department's web accessibility standards. A
Title II or III entity retains that characteristic regardless of where their
activities take place. The core principles for any exemption in the context
of content posted for personal noncommercial use require that language in
any exemption include the following:

(a) Each page owned or controlled by a covered entity used by the private
individuals for the exempted purposes (e.g. private use) must meet the
Department's web accessibility regulations when considering the page without
regard to the content posted by the private individual for the exempted use.
(In other words, if the format for the content supplied by the private
individual is dictated, managed or created by a covered entity, then that
formatting must be, and must support, accessibility);

(b) The tools and content provided by the Title II or III entity to
private individuals to enable them post and review the exempted content must
themselves meet the web accessibility requirements;

(c) It must be possible for a private individual to create and share
accessible content on the page owned or operated by the covered entity if
they choose to; and

(d) Any exemption must be narrowly tailored to private individuals
communicating with private individuals for private purposes. For example, a
school that is otherwise a Title II or III entity that uses a website to
facilitate the exchange of information with or between its students must
ensure that all content on that website - even content posted by an
individual student -- is accessible.

Ultimately, no matter what exemption the Department chooses to apply through
technical assistance, it should carefully consider the applicability of
effective communication to the entity in question. The DOJ is no longer
considering auxiliary aids and services within the context of physical
modifications; it must recognize the challenges that it faces in tailoring
narrow regulations in an increasingly expanding digital world.

Compliance Issues

Question 6. What resources and services are available to public
accommodations and public entities to make their Web sites accessible? What
is the ability of covered entities to make their Web sites accessible with
in-house staff? What technical assistance should the Department make
available to public entities and public accommodations to assist them with
complying with this rule?

Answer to Question 6. There are significant resources available to the
public to assist in making websites comply with WCAG 2.0 Level AA via the
revised Section 508. The Web Accessibility Initiative of the World Wide Web
Consortium has abundant resources available at <http://www.w3.org/WAI/>
http://www.w3.org/WAI/. Many private and non-profit organizations also
provide covered entities with resources, including training materials,
direct training, site evaluation, site remediation, and site creation.
Similarly, the World Wide Web Consortium further provides resources for
training related to the Authoring Tools Accessibility Guidelines.

With appropriate training, or already qualified staff, even the smallest
covered entities should be able to make their websites accessible with
in-house staff or reasonable outside assistance. The revision of Section 508
will mean that further resources will be available through GSA-maintained
http://www.section508.gov <http://www.section508.gov/> . These training
resources combined with free tools and techniques available through other
sources will make the work of the entities more than achievable.

DOJ Technical assistance is always a welcomed addition to available
resources, and guidance on the new web accessibility regulations should be
incorporated into the Department's ADA Technical Assistance services. Given
extensive resources available in the private and non-profit marketplace, it
is our believe that the Department will be able to reuse a significant
amount of material already available. We see no reason that the Department
will be unable to utilize the material at Section508.gov.

The technical assistance material that the Department does provide, however,
must ensure that it covers emerging technologies as well as technologies
from 10 years ago. We find it very important to engage with the Department
to ensure that people who are blind or visually impaired are no longer left

Question 7. Are there distinct or specialized features used on Web sites
that render compliance with accessibility requirements difficult or

Answer to Question 7. No. All pages and all functions of a website can be
made accessible in conformance with WCAG 2.0 Level AA Success Criteria via
Section 508 and ATAG. The Department should not embark on the slippery slope
of carving out site features to be exempt from coverage. This is
particularly so given the rapidly evolving nature of the web. A feature that
may require extra effort to make accessible today may be either readily
accessible - or obsolete -- tomorrow. We find it particularly disconcerting
that the Department is seeking exemptions to technologies and platforms that
may just be on the verge of being successful or are just beginning to be
deployed. Rather than allowing the freedom to innovate in the accessibility
space, the Department is encouraging stagnancy. We are compelled to remind
the DOJ once again that these regulations should be designed to look toward
the future.

Moreover, the "undue burden" defense should be available in connection to
covered entities that meet the well-established Department of Justice undue
burden criteria. There is no reason, and no empirical or statutory
justification, for the Department to create new exceptions to a
well-developed and effective legal framework. Additional defenses and
exceptions in the web context are not needed.

When faced with accessibility challenges, covered entities have shown
creativity. For some time, for example, it was believed that the very nature
of a visual CAPTCHA rendered the security measure inaccessible to blind
computer users. Entities committed to web access, however, have developed
and instituted alternative audio CAPTCHAs that, when properly designed and
implemented, eliminate what was once, and all too often continues to be, an
absolute barrier to online access for individuals with visual impairments.
Logic And text-based CAPTCHAs, which render the security feature accessible
to individuals with both visual and hearing impairments, are also now

Examples of companies with alternative audio or logic CAPTCHAs include Bank
of America, Ing Direct, Rite Aid, and the country's three largest credit
reporting agencies, which use a unique telephone-based CAPTCHA for those who
cannot see the standard visual CAPTCHA. (Information about Bank of America's
accessible online security program known as "Sitekey" available at
Telephone-based CAPTCHA used by national credit reporting agencies can be
found through http://www.annualcreditreport.com
<http://www.annualcreditreport.com/> . Rite Aid's audio CAPTCHA can be found
at https://www5.riteaid.com/myriteaid/forgot-password#
<https://www5.riteaid.com/myriteaid/forgot-password> . A simple logic
CAPTCHA can be found at http://lflegal.com/contact.

Question 8. Given that most Web sites today provide significant amounts of
services and information in a dynamic, evolving setting that would be
difficult, if not impossible, to replicate through alternative, accessible
means, to what extent can accessible alternatives still be provided? Might
viable accessible alternatives still exist for simple, non-dynamic Web

Answer to Question 8. There are no "viable accessible alternatives" to the
particular manner in which information, programs and services are offered on
a covered entity's web site. Even the most simple, non-dynamic websites have
unique online characteristics that cannot be replicated in a different

The Internet is not just a format that is instantly available 24 hours a
day, 7 days a week. It is a method of service and information delivery that
allows a user to find content that the user may not know he was looking for.
Well-designed, accessible sites allow all users to privately interact with
information in a way that is unique to the online world.

In this regard, we once again ask the Department to consider the "effective
communication" tests that it has established for covered Title II and Title
III entities. The expectation of independence and privacy required cannot
simply be established by a covered entity offering a telephone-based

A staffed 24/7 phone service might be able to answer some questions, or even
provide some services, but a phone staff could never, for example, read
aloud all information on a site to a person with a visual impairment in the
order the person wants to read the information. A phone service can never
provide an equivalent alternative for the ability to independently engage
one's curiosity in the pursuit of information, programs and services that a
website offers. Similarly, other alternatives such as Large Print, Braille,
electronic or audio formats of web content can never be equally accessible
to a website. Even the simplest web information can be updated and changed
on a moment's notice. The same cannot be said of information mailed (or
emailed) to a person's house.

Even assuming a simple, one-page static website operated by a Title II or
III entity with a staffed 24-7 phone service, regulations would be unable to
meaningfully define "simple" or account for the fact that a site can become
dynamic overnight. The ground-breaking regulations under consideration give
the Department an opportunity to provide site owners and operators with
clear direction on web accessibility. The Department's regulations should
not allow Title II and III entities to avoid accessibility with the claim
that accessible alternatives are provided.

Effective Date

Question 9. The Department seeks comment on the proposed time frames for
compliance. Are the proposed effective dates for the regulations reasonable
or should the Department adopt shorter or longer periods for compliance?
Please provide as much detail as possible in support of your view.

Answer to Question 9. Single Implementation Date. The Department should
adopt a single deadline by which a covered entity's website must meet the
new web regulations. For the reasons stated here, that deadline should be
six months after the Department's new rule is published in the federal
register. A staggered implementation date - with one date for "new or
completely redesigned" websites, another for existing sites, and yet another
for "new pages" on "existing sites," is confusing to both the general public
and web designers. Unnecessary conflict and potential litigation will arise
over whether a site has been "completely redesigned" or whether new pages
were added to an existing site. The only exceptions for full accessibility
by the single implementation deadline discussed here should be for (i)
legacy pages which exist for historic purposes, addressed in Question 10
below; and (ii) situations where the entity can satisfy the undue burden
defense in connection with content posted before the effective date of the
regulation and not substantially refreshed thereafter.

When a member of the public goes to a web site, they don't know if it is
new, wholly redesigned, or partially redesigned. The public needs to have a
consistent and realistic expectation of accessibility and covered entities
need a clear standard for implementation. If the covered entity deems it
necessary to have the content available on its platform, then it should make
it accessible by the appropriate date unless it applies for the undue burden

Effective Date. As the Department is intimately aware, the regulatory
process does not happen overnight. The public is currently responding to an
ANPRM on the issue of web accessibility, which will be followed by an NPRM
and then the final regulation. Given the length of the process, the web
accessibility requirements should be effective within six months of the
publication of the new regulation.

The Department of Justice has repeatedly made clear that the ADA as
currently written already applies to the websites of Title II and III
entities, and that those entities are required to make their websites
accessible. The current rulemaking should be seen as clarifying existing law
and setting more specific standards for assessing compliance with the ADA.
Any implementation delay is inconsistent with the Department's previously
stated position.

Moreover, covered entities both public and private have been making their
websites accessible for many years. Bank of America committed to online
accessibility in 2000. (The bank's web accessibility agreement, the first in
the country, is on line at
http://lflegal.com/2000/03/bank-of-america-initial-agreement/. Major League
Baseball undertook a very significant commitment in 2010 to make not only
http://www.mlb.com <http://www.mlb.com/> comply with WCAG 2.0 Level AA, but
to ensure that all thirty team sites meet accessibility standards. (The MLB
web accessibility agreement is available on line at
http://lflegal.com/2010/02/mlb-agreement/. Amazon, eBay and Target Stores
have rigorous accessibility programs, as do many other sites currently
operating on line. More information about some of the large commercial
entities that have committed to web accessibility can be found at

Instead of recognizing companies that have already taken steps to ensure
that their websites are available to people with disabilities, a two year
implementation delay as suggested by the Department rewards companies that
have ignored the Department's position on this issue and have not yet
brought their sites into compliance. As long as the standards adopted by the
Department do not differ widely from currently accepted accessibility
standards (and they would not with a rule embracing WCAG 2.0 Level AA via
the adoption of the revised Section 508 and the adoption of ATAG) there is
no reason for a significant delay.

On the other hand, a two-year implementation period will be harmful to
people with disabilities because covered entities will be encouraged to
delay implementing accessibility and will be empowered to implement
inconsistent levels of accessibility. Such a delay will stall overall
progress towards making the Internet accessible. As a result, people with
disabilities will continue to be unnecessarily excluded from online goods,
services, information, and communities.

Although a phase-in period may be appropriate for other types of regulations
such as ADA construction standards, it does not make sense in the context of
web design. Accessibility enhancements can often be made without any
significant delay, pages are constantly refreshed and new content is both
constant and essential to the modern Internet. Few if any websites even take
two years to design from scratch, or two years to redesign. Thus, a two year
waiting period following publication of the final regulations, especially in
light of the publicity this matter will receive through the ANPRM and NPRM
processes, is simply unwarranted.

With today's demands for fresh, current, online presence, few if any Title
II or III entities would leave their websites unchanged, updated,
unrefreshed for two years. This means that if a two year waiting period were
granted, websites would be built, redesigned, refreshed and updated without
reference to accessibility.

For these reasons, with the exception of legacy pages discussed below, we
urge the Department to adopt a single implementation date no later than six
months after the final rule is published in the federal register.

Question 10. The Department seeks comment regarding whether such a
requirement would cause some businesses to remove older material rather than
change the content into an accessible format. Should the Department adopt a
safe harbor for such content so long as it is not updated or modified?

Answer to Question 10. Once again, the Department's question considers web
accessibility from the prism of what should be "excluded" rather than what
should be "included." Reframing the covered content in terms of its usage
and purposes may be helpful in understanding the distinction. The entire
process, as considered through the lens of "effective communication" takes
on a different and distinct cast. Effective communication begs the question
that should be asked when considering any exemption: What purpose does the
content serve? Most covered entities keep existing sites because the
content, features, and services that such sites provide serve a useful
purpose to the mission of the entity in question. As such, the role that the
content plays is important to the entity. If it is so, then it must be
important to the communication it provides to people who are blind or
visually impaired. No exemption, however small, can change this fact. If the
covered entity chooses to remove pages, it is difficult to imagine that it
does so solely because it finds the requirement burdensome. If the pages
serve no purpose and are removed, the accessibility requirement will not
have been the primary reason for their removal.

As with the exemptions discussed in response to Question 5 above, an
exemption (or "safe harbor") for older online content that has not been
updated or modified must be very narrowly tailored. This exemption should be
limited to pre-existing website pages that are no longer actively viewed or
used. The Department must be careful not to exempt all existing content as
supposed "legacy" content. (Existing content (posted prior to the effective
date of the new regulations and not substantially refreshed thereafter)
should be subject to the undue burden defense.)

Question 11. Should the Department take an incremental approach in adopting
accessibility regulations applicable to Web sites and adopt a different
effective date for covered entities based on certain criteria? For instance,
should the Department's regulation initially apply to entities of a certain
size (e.g., entities with 15 or more employees or earning a certain amount
of revenue) or certain categories of entities (e.g., retail Web sites)?
Please provide as much detail and information as possible in support of your

Answer to Question 11. There should be a consistent requirement for all
websites provided by covered entities.

Carving out an exception for revenue or number of employees is not
necessary. The well-established "undue burden" defense will be available to
Title II and III entities that cannot meet the new regulations for content
posted prior to the effective date and not substantially refreshed since the
effective date. The five-pronged definition of "undue burden," which takes
into account the size of an entity, its financial and other resources, the
number of its employees and other factors will adequately protect the
legitimate interests of covered entities without erecting additional
barriers to implementation of new web accessibility regulations.

Entity size is also not a predictor of ability to satisfy either a
generalized performance standard or WCAG 2.0 Level AA criteria. The WCAG 2.0
Implementation Report includes sites of various sizes that have met levels
A, AA and AAA Success Criteria.

The Department should also clarify, as it has done elsewhere, that if full
compliance with the new web accessibility regulations would create an "undue
burden" for content posted prior to the effective date and not substantially
refreshed after that date for a Title II or III entity, the covered entity
must comply with those regulations, to the "maximum extent feasible" and/or
provide an alternative even if full compliance would result in an undue

Cost and Benefits of Web Site Regulations

Question 12. What data source do you recommend to assist the Department in
estimating the number of public accommodations (i.e., entities whose
operations affect commerce and that fall within at least one of the 12
categories of public accommodations listed above) and State and local
governments to be covered by any Web site accessibility regulations adopted
by the Department under the ADA? Please include any data or information
regarding entities the Department might consider limiting coverage of, as
discussed in the ``coverage limitations'' section above.

Response to Question 12. Question the relevance of this particular inquiry.
There was no need to estimate the number of entities covered by the original
Title II and III regulations, and the requested information should not
affect their further regulatory actions here. A cursory Google search
indicates that vast numbers of Title II and III entities will be covered by
new web accessibility regulations. More importantly, millions of Americans
with disabilities will benefit from clear regulatory guidance from the
Department of Justice on this important issue - guidance that underscores
the Department's long-publicized position that accessible websites are
required by the existing ADA and its regulations.

As these regulations are merely intended to clarify the Department's
already-existing stands, we find the need for an economic impact analysis
unnecessary. For covered entities which should have already been in
compliance with the DOJ's application of the ADA to the web, the economic
impact resulting from a clarification is irrelevant.

Question 13. What are the annual costs generally associated with creating,
maintaining, operating, and updating a Web site? What additional costs are
associated with creating and maintaining an accessible Web site? Please
include estimates of specific compliance and maintenance costs (software,
hardware, contracting, employee time, etc.). What, if any, unquantifiable
costs can be anticipated from amendments to the ADA regulations regarding
Web site access?

Answer to Question 13. Many entities keep answers to these types of
questions confidential for proprietary reasons. Some of the factors involved
in building accessibility into a website are discussed in a document
entitled "Financial Factors in Developing a Web Accessibility Business Case
for Your Organization," available on the Web Accessibility Initiative
Website at http://www.w3.org/WAI/bcase/fin.html. It is widely recognized
that costs of accessibility enhancements comprise a very small percentage of
the overall cost of maintaining a web presence.

While there are certainly initial accessibility-related start-up costs for
entities that have not yet undertaken any accessibility work and minimal
on-going costs for maintaining access, these costs must be seen as an
investment in full equality in the 21st century to millions of people with
disabilities. The undue burden defense will be available to covered entities
who have not yet complied with the law and need to enhance content posted
prior to the effective date and not refreshed since that date, and will
protect such entities from unwarranted costs in meeting the new web
guidelines. Cost factors should be irrelevant to providing access to new and
re-designed websites, just as they are when considering access to new
construction and alteration in the built environment.

As the Department has clearly recognized, covered entities should have
provided accessibility to its websites and services; if such entities have
not done so, the economic impact and the costs associated with bringing the
web presence in compliance should be seen as that needed for the purpose of
retrofitting. It is not a new burden.

ACB has recognized and always worked with companies interested in making web
accessibility a priority. In doing so, the organization has always worked to
ensure that entities always consider accessibility from the design and
development phase. This ensures that training, and development costs are
negligible and are clearly a part of doing business.

Question 14. What are the benefits that can be anticipated from action by
the Department to amend the ADA regulations to address Web site
accessibility? Please include anticipated benefits for individuals with
disabilities, businesses, and other affected parties, including benefits
that cannot be fully monetized or otherwise quantified.

Answer to Question 14. We find the need to justify potential benefits from
these regulations that will clarify web accessibility requirements utterly

The benefits from long-overdue Title II and III web accessibility
regulations are incalculable. Benefits will flow to people with disabilities
and the non-disabled public. Web accessibility regulations will be good for
private sector businesses, for consumer health and healthcare generally, for
the market economy as a whole, for the education system in the United
States, for public sector services, and more.

The Department's introduction to the web ANPRM recognizes the significant
and diverse ways in which Americans in the 21st century spend time online.
Bringing accessibility to each of these arenas benefits people with
disabilities and society as a whole.

Indeed, a question as to the benefits of web accessibility is the same as a
question about the benefits of the Internet to society overall. Given the
rapid migration of government services, commerce, education and healthcare
resources to the web, it is manifest that many if not most public and
private institutions believe greater utilization of the web to be in their
best interests. Their actions must also represent a belief that greater use
of the Internet benefits the public as well. That being so, it should hardly
be necessary to make a separate argument regarding the benefits of Internet
accessibility for persons with disabilities. Society has already answered
that question for everyone. Nonetheless, we briefly address the Department's
question here.

State and Local government web accessibility ensures civic engagement by the
widest possible range of citizenry. As more and more government entities,
large and small, migrate information and services to the web, citizens with
disabilities who use computers are either denied access to those services or
have to obtain them in a more expensive manner (from public employees) if
government websites are not accessible. As our population ages it will be
able to stay civically engaged if state and local government websites comply
with government-mandated web accessibility requirements. In addition,
accessible online services, information and goods allow people to stay in
their communities (including rural communities) when otherwise they would be
required to move to urban and institutional settings because of lack of
transportation, physical access, and other factors.

The Department is not coming in "ahead of the curve" on the issue of
accessible online information and services by public entities. (There are
millions of examples of programs, services and information on line. One is
the website of the Pennsylvania Adoption agency - a detailed site benefiting
and serving families touched by adoption, kids waiting to be adopted,
potential adopting parents http://www.adoptpakids.org/. It is an example
that demonstrates the many categories of individuals who will benefit from
the proposed regulations.) Regulations must be strong and robust to make
sure citizens with disabilities are not locked out of the new public sector

Similarly, significant education programs and resources offered by both
Title II and III entities are already on line, and again, the Department's
regulations in many ways need to play "catch-up." Some institutions provide
those resources through accessible web pages, but many more do not. The ones
that have not must not be rewarded by delayed implementation or regulations
guaranteeing anything less than full accessibility. Students with
disabilities at all levels - from grade school through higher education,
trade school, and supplemental programs will benefit from the Department's
proposed web accessibility regulations. Making all online education tools
and information available to all citizens who wish to benefit from them has
untold positive consequences for the country. Again this is important for
people of all ages, and is critical for the lifelong education of our
population that all are predicting will be needed to keep them competitive
and employed.

Benefits to the private retail sector are readily apparent. The more
individuals who can use a website that sells products or services, the more
products and services those individuals can purchase. The sooner and more
completely Title III entities open their virtual doors to the disabled
public, the sooner that segment of the public can become customers. And in
the future, the elderly, who also benefit from web accessibility, will
comprise an increasing percentage of consumers with resources.

Purchases made online have already come to predominate over purchases made
in brick-and-mortar stores for many types of products, and there are several
reasons that people with disabilities would be particularly likely to shop
online if accessible websites enabled them to do so. Physical barriers in
the built environment, as well as a lack of accessible transportation, make
it difficult for many people with disabilities to travel to retail
establishments. People with visual impairments cannot independently navigate
the array of products available at a store and the information conveyed on
the labels of those products as is possible when those same products are
displayed on an accessible website in an accessible manner. People with
hearing or speech impairments may similarly find it difficult to obtain
information from store personnel about merchandise when they can easily find
that same information online. And of course, people with disabilities want
to shop on line for the same reasons that their non-disabled peers do,
including convenience, privacy, and cost savings. The Internet actually
holds enormous potential to level the playing field of commerce for people
with disabilities in a way never experienced before, and robust regulations
from the Department of Justice on web accessibility will ensure that this
potential is realized.

Benefits resulting from accessible online healthcare and medical information
will also be significant. In August 2010, a Harris poll found that "The
Internet is now a very important source of health information, education and
perhaps reassurance for a majority of Americans." The poll found that "more
than half of the searchers have discussed information they found online with
their doctors or have searched online because of a discussion with their
doctors." See report on Harris Poll at http://bit.ly/aOdXF4.

Potentially increased employment of people with disabilities is also a
likely benefit of web accessibility regulations. Many jobs are now done on
line, and certainly many jobs are advertised on line. Many Title II and III
entities have a section on their websites for career seekers to gather
information and often fill out job applications. Access to this employment
source by people with disabilities is a benefit to those individuals, and to
society at large.

Accessibility of online travel information will benefit both travelers with
disabilities and the sellers of the travel-related goods and services they
are purchasing. The web is now widely used for researching hotels and
airfares, making reservations, booking services at travel destinations, and
more. The travel industry will benefit from more individuals being able to
use their online services.

The ability to participate in online entertainment and communities will be a
significant benefit to people with disabilities from the proposed
regulations. In 2010, Major League Baseball demonstrated the possibility of
this benefit in upgrading its websites, including online video and audio
players to ensure their accessibility to persons with visual impairments.

Significant statistical resources are available demonstrating both the
numbers of people with disabilities in the United States today and the
number of Americans online. The intersection of these resources bolster the
Department's efforts to regulate in this area and underscore the importance
of web accessibility regulations to a wide swath of the American public.
(Various 2010 Disability statistics are available on line at
http://www.disabilitycompendium.org/. See also http://dsc.ucsf.edu/main.php.
General statistics related to Internet use in the United States is available
from the Advisory Committee to the Congressional Internet Caucus at

Question 15. What, if any, are the likely or potential unintended
consequences (positive or negative) of Web site accessibility requirements?
For example, would the costs of a requirement to provide captioning to
videos cause covered entities to provide fewer videos on their Web sites?

Answer to Question 15. The likely or potential unintended positive
consequences of website accessibility requirements are discussed in response
to Question 14 above.

In addition to those benefits, it is widely recognized and understood that
accessible web pages are easier to use on mobile devices (where significant
amounts of online time is spent), assist in the sought-after "search engine
optimization", and are friendlier for other automated access techniques.
Accessibility also makes a site easier to use with next-generation
intelligent agent browsers. We are not aware of any negative consequences,
either likely or potential.

The specific answer to the Department's question about captioning is a
resounding "no." First, the technologies for captioning web-based videos
and other audio content are expanding by the day and many mainstream tools
are now available, including the free auto-timing and auto-captioning tools
available via Google's YouTube site. The free MAGpie caption authoring tool
provided by the National Center for Accessible Media is also useful and
widely used for captioning the audio content of all kinds of videos. See
Second, the cost to caption a video is a very small fraction of the cost to
create any commercial video even today and those costs are expected to
continually decrease to approaching zero in the future. Third, if it is an
undue burden for a covered entity to caption some or all of its video
content posted prior to the effective date of the new regulations, the
Department's undue burden regulations will be applicable. No public entity
will be required by new regulations to provide fewer videos. (See response
to Question 11.)

The most significant positive impact of these regulations will be the way in
which accessibility to digital content will have to be approached by covered
entities. The need to provide access to variety of content and platforms
will result in entities to innovate in order to ensure that they can provide
accessible information. The mindset of "separate but equal" will have to
disappear in light of the Department's application of the effective
communication test. Despite what is often argued by industry regarding
innovation, it remains a fact that accessibility improvements do, in fact,
constitute innovation.

Question 16. Are there any other effective and reasonably feasible
alternatives to making the Web sites of public accommodations accessible
that the Department should consider? If so, please provide as much detail
about these alternatives, including information regarding their costs and
effectiveness in your answer.

Answer to Question 16. No. See response to Question 8.

Impact on Small Entities

Question 17. The Department seeks input regarding the impact the measures
being contemplated by the Department with regard to Web accessibility will
have on small entities if adopted by the Department. The Department
encourages you to include any cost data on the potential economic impact on
small entities with your response. Please provide information on capital
costs for equipment, such as hardware and software needed to meet the
regulatory requirements; costs of modifying existing processes and
procedures; any affects to sales and profits, including increases in
business due to tapping markets not previously reached; changes in market
competition as a result of the rule; and cost for hiring web professionals
for to assistance in making existing Web sites accessible.

Answer to Question 17. As noted elsewhere (see answer to Question 11), the
Department's undue burden analysis will allow small businesses to consider
various costs identified in Question 17 when considering web accessibility
obligations for content posted prior to the effective date of the
regulations and not refreshed after that date.

It is to be expected that entities not familiar with or experienced in
providing website accessibility will be fearful of its implications and will
foresee potential costs and burdens that arise out of their fear rather than
out of the experience of those who have embraced the concept. Therefore, we
urge the Department to look behind the fears and expect that any responders
who allege such risks provide data to support their claims and to
distinguish actual experience from unfounded, albeit sincere, fear.

As stated elsewhere, the costs of providing and creating access is
remarkably different if done so at the entity level. Rather than considering
accessibility as something with which an entity must comply, a full
consideration of providing universal access by integrating access into
product and service design ensures that innovation occurs. The increased
market opportunity can more than offset any cost being considered by a small

Question 18. Are there alternatives that the Department can adopt, which
were not previously discussed in response to Questions 11 or 16, that will
alleviate the burden on small entities? Should there be different compliance
requirements or timetables for small entities that take into account the
resources available to small entities or should the Department adopt an
exemption for certain or all small entities from coverage of the rule, in
whole or in part. Please provide as much detail as possible in your

Answer to Question 18. As discussed in previous questions, there should not
be different compliance requirements or timetables for small entities
because those entities will be able to avail themselves of the undue burden
defense for content posted prior to the effective date of the new
regulations. For the same reason, and for the reasons stated in response to
Questions 9 and 11, under no circumstances should small entities, regardless
of the definition, be exempted from coverage in whole or in part.

It is difficult to imagine that the Department is considering exemptions for
entities based on a mistaken understanding of web as being entirely
analogous to the physical environment. As previously discussed, building
accessibility to the web requires a commitment, some training, and a careful
attention to detail. In particular, no categorical exemptions should be
granted for covered entities form having to meet the effective communication
test. Exemptions, if granted, should be on a case by case basis.

Other Issues

Question 19. The Department is interested in gathering other information or
data relating to the Department's objective to provide requirements for Web
accessibility under titles II and III of the ADA.

Are there additional issues or information not addressed by the Department's
questions that are important for the Department to consider? Please provide
as much detail as possible in your response.

Answer to Question 19. There are a few significant questions and
considerations that the Department has left unaddressed.

First, in its economic analysis, the Department has failed to entirely
consider the impact of not clarifying and implementing accessibility
requirements would be on people with disabilities. Rather than asking what
benefits would clarifying rules would have on people with disabilities, we
posit that the Department should consider the negative impact of not
clarifying rules. The listing of the benefits that the Department has asked
responders to provide should, in and of itself, serve as a reminder that the
impact of not acting is significant on people who are blind or visually
impaired and, indeed, all people with disabilities. We find it particularly
galling that people with disabilities must justify having full access to
information, communication, and services that covered entities provide.

Secondly, we further find it difficult that the Department considers web
accessibility in isolation. The ecosystem which increasingly represents the
web includes electronic communication of many different kinds. For example,
the DOJ does not address e-mail as a communication medium at all. Many
covered entities have been using inaccessible electronic mail to communicate
with employees and customers. It is absolutely essential that any
regulations promulgated by the Department include all forms of electronic

Thirdly, the department has made several references to captioning for videos
on the web. Despite publishing an ANPRM that deals particularly with audio
description, the Department has failed to make any references to audio
description for web video. ACB is concerned that the regulations that the
Department plans to publish will not address audio description requirements
for the web. The department must not forego audio description in its
conception of what it considers effective communication.

And finally, we highly urge the Department to question the regulations it is
about to promulgate in terms of their applicability to technologies and
circumstances that will be in effect 20 years from now. We are uncertain
that the conception of these regulations are even adequate to address the
current challenges we face. We specifically ask the Department to view
pervasive use of social networking as a single instance of all-around
communication medium that defies boundaries. When all covered entities view
social networking as the means to reach their customers and provide better
services and support, it should be important to the Department to see that
people who are blind or visually impaired are given the opportunity to
participate in as many ways as possible. For dignity, independence, and
privacy, people with disabilities ask nothing less than equal treatment. It
is not the question of how to provide access to a particular medium that the
Department should be considering; rather the question should be how to make
all communication accessible.

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