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</o:shapelayout></xml><![endif]--></head><body lang=EN-US link=blue vlink=blue><div class=WordSection1><p class=MsoNormal><span style='color:#1F497D'>Dear all,<o:p></o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'><o:p> </o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'>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.<o:p></o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'><o:p> </o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'>Regards,<o:p></o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'><o:p> </o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'>Pratik<o:p></o:p></span></p><p class=MsoNormal><span style='font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'><o:p> </o:p></span></p><p class=MsoNormal><span style='font-size:10.0pt;font-family:"Arial","sans-serif";color:navy'><o:p> </o:p></span></p><div><div><p class=MsoNormal><a name="OLE_LINK3"></a><a name="OLE_LINK4"></a><b>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;</b><b><o:p></o:p></b></p><p class=MsoNormal><b>Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, published in the <i>Federal Register </i>July 26, 2010, 75 FR 43452<o:p></o:p></b></p><p class=MsoNormal><b><o:p> </o:p></b></p><p class=MsoNormal><b>January 21, 2011<o:p></o:p></b></p><p class=MsoNormal><b><o:p> </o:p></b></p><p class=MsoNormal><b>For further information, contact<o:p></o:p></b></p><p class=MsoNormal><b>Eric Bridges<o:p></o:p></b></p><p class=MsoNormal><b>Director of Advocacy and Governmental Affairs<o:p></o:p></b></p><p class=MsoNormal><b>American Council of the Blind<o:p></o:p></b></p><p class=MsoNormal><b>2200 Wilson Boulevard, Suite 650<o:p></o:p></b></p><p class=MsoNormal><b>Arlington, VA 22201<o:p></o:p></b></p><p class=MsoNormal><b>202-467-5081<o:p></o:p></b></p><p class=MsoNormal><a href="mailto:ebridges@acb.org"><b>ebridges@acb.org</b></a><b><o:p></o:p></b></p></div></div><b><span style='font-size:14.0pt;font-family:"Times New Roman","serif";mso-fareast-language:EN-US'><br clear=all style='page-break-before:always'></span></b><p class=MsoNormal><b>Introduction<o:p></o:p></b></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 globe.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>There is another principle that we believe must be clearly articulated as we begin the second decade of the 21<sup>st</sup> 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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Answers to Questions Posed in the ANPRM</b><o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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, <a name="OLE_LINK69"></a><a name="OLE_LINK68"></a>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<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <i>what</i> must be done, but not <i>how </i>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a name="OLE_LINK67"></a><a name="OLE_LINK41"></a><a href="http://www.w3.org/WAI/GL/WCAG20/implementation-report/">http://www.w3.org/WAI/GL/WCAG20/implementation-report/</a>. 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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://www.section508.gov/">http://www.section508.gov</a>. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 diminish.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <i>not</i> 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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <a name="OLE_LINK42"></a><a name="OLE_LINK47"></a>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. <a name="OLE_LINK50"></a><a name="OLE_LINK51"></a>(See April 2008 TEITAC Report to Access Board at <a href="http://www.access-board.gov/sec508/refresh/report/">http://www.access-board.gov/sec508/refresh/report/</a>, 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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK7">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.</a><o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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? <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 4. <a name="OLE_LINK56"></a><a name="OLE_LINK57"></a>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a name="OLE_LINK60"></a><a name="OLE_LINK61"></a>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 disabilities.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <i>what </i>to do but not <i>how</i> 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 <a href="http://www.w3.org/TR/WCAG20/#intro-layers-guidance">http://www.w3.org/TR/WCAG20/#intro-layers-guidance</a>. 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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 “<u>shall</u> comply” with the technical standards set forth in the Standards for Accessible Design. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Coverage limitations</b><o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK25"></a><a name="OLE_LINK24"></a>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.”<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 activities.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Links to external pages<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <u>not</u> 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.) <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.”<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 covered.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Informal and occasional trading by private individuals<o:p></o:p></p><p class=MsoNormal><a name="OLE_LINK27"></a><a name="OLE_LINK26"></a><a name="OLE_LINK16"></a><a name="OLE_LINK15"></a><o:p> </o:p></p><p class=MsoNormal>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:<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal style='mso-margin-top-alt:0in;margin-right:0in;margin-bottom:12.0pt;margin-left:.25in;text-indent:-.25in'><a name="OLE_LINK21"></a><a name="OLE_LINK30"></a>(a)<span style='font-size:7.0pt'> </span>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 <a name="OLE_LINK45"></a><a name="OLE_LINK46"></a>and the generalized performance standard when considering the page without the content posted by the private individual. <a name="OLE_LINK48"></a><a name="OLE_LINK49"></a>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;<br><br><o:p></o:p></p><p class=MsoNormal style='mso-margin-top-alt:0in;margin-right:0in;margin-bottom:12.0pt;margin-left:.25in;text-indent:-.25in'>(b)<span style='font-size:7.0pt'> </span>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;<br><br><o:p></o:p></p><p class=MsoNormal style='mso-margin-top-alt:0in;margin-right:0in;margin-bottom:12.0pt;margin-left:.25in;text-indent:-.25in'>(c)<span style='font-size:7.0pt'> </span>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.<br><br><o:p></o:p></p><p class=MsoNormal style='margin-left:.25in;text-indent:-.25in'>(d)<span style='font-size:7.0pt'> </span>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><b><o:p> </o:p></b></p><p class=MsoNormal>Web content created or posted by website users for personal, noncommercial use<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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:<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal style='mso-margin-top-alt:0in;margin-right:0in;margin-bottom:12.0pt;margin-left:.25in;text-indent:-.25in'>(a)<span style='font-size:7.0pt'> </span>Each page <a name="OLE_LINK43"></a><a name="OLE_LINK44"></a>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);<br><br><o:p></o:p></p><p class=MsoNormal style='mso-margin-top-alt:0in;margin-right:0in;margin-bottom:12.0pt;margin-left:.25in;text-indent:-.25in'>(b)<span style='font-size:7.0pt'> </span>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;<br><br><o:p></o:p></p><p class=MsoNormal style='mso-margin-top-alt:0in;margin-right:0in;margin-bottom:12.0pt;margin-left:.25in;text-indent:-.25in'>(c)<span style='font-size:7.0pt'> </span>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<br><br><o:p></o:p></p><p class=MsoNormal style='margin-left:.25in;text-indent:-.25in'>(d)<span style='font-size:7.0pt'> </span>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.<o:p></o:p></p><p class=MsoNormal style='text-indent:.5in'><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Compliance Issues<o:p></o:p></b></p><p class=MsoNormal style='text-indent:.5in'><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK19"></a><a name="OLE_LINK20"></a>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?<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://www.w3.org/WAI/"><span style='color:purple'>http://www.w3.org/WAI/</span></a>. 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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK52"></a><a name="OLE_LINK53"></a>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 <a href="http://www.section508.gov/">http://www.section508.gov</a>. These training resources combined with free tools and techniques available through other sources will make the work of the entities more than achievable.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 behind.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Question 7. Are there distinct or specialized features used on Web sites that render compliance with accessibility requirements difficult or impossible?<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 available. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://www.bankofamerica.com/privacy/index.cfm?template=sitekey">http://www.bankofamerica.com/privacy/index.cfm?template=sitekey</a>. Telephone-based CAPTCHA used by national credit reporting agencies can be found through <a href="http://www.annualcreditreport.com/">http://www.annualcreditreport.com</a>. Rite Aid’s audio CAPTCHA can be found at <a href="https://www5.riteaid.com/myriteaid/forgot-password">https://www5.riteaid.com/myriteaid/forgot-password#</a>. A simple logic CAPTCHA can be found at <a href="http://lflegal.com/contact">http://lflegal.com/contact</a>.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK31"></a><a name="OLE_LINK32"></a>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 sites?<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 format.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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<i> </i>users to privately interact with information in a way that is unique to the online world.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 service.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Effective Date<o:p></o:p></b></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 9. <i>Single Implementation Date</i>. 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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 defense.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><i>Effective Date</i>. 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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://lflegal.com/2000/03/bank-of-america-initial-agreement/">http://lflegal.com/2000/03/bank-of-america-initial-agreement/</a>. Major League Baseball undertook a very significant commitment in 2010 to make not only <a href="http://www.mlb.com/">http://www.mlb.com</a> 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 <a href="http://lflegal.com/2010/02/mlb-agreement/">http://lflegal.com/2010/02/mlb-agreement/</a>. 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 <a href="http://lflegal.com/2010/09/doj-anprm-web/">http://lflegal.com/2010/09/doj-anprm-web/</a>. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK54"></a><a name="OLE_LINK55"></a>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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?<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.)<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 view.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 11. There should be a consistent requirement for all websites provided by covered entities. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <a href="http://www.w3.org/WAI/GL/WCAG20/implementation-report/">http://www.w3.org/WAI/GL/WCAG20/implementation-report/</a>.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 burden.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Cost and Benefits of Web Site Regulations<o:p></o:p></b></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><a name="OLE_LINK5"></a><a name="OLE_LINK6"></a>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><b><o:p> </o:p></b></p><p class=MsoNormal>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?<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://www.w3.org/WAI/bcase/fin.html">http://www.w3.org/WAI/bcase/fin.html</a>. It is widely recognized that costs of accessibility enhancements comprise a very small percentage of the overall cost of maintaining a web presence. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 21<sup>st</sup> 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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 14. <i>We find the need to justify potential benefits from these regulations that will clarify web accessibility requirements utterly insulting.<o:p></o:p></i></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://www.adoptpakids.org/">http://www.adoptpakids.org/</a>. 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 reality. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://bit.ly/aOdXF4">http://bit.ly/aOdXF4</a>.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://www.disabilitycompendium.org/">http://www.disabilitycompendium.org/</a>. See also <a href="http://dsc.ucsf.edu/main.php">http://dsc.ucsf.edu/main.php</a>. General statistics related to Internet use in the United States is available from the Advisory Committee to the Congressional Internet Caucus at <a href="http://www.netcaucus.org/statistics/">http://www.netcaucus.org/statistics/</a>.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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?<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 15. The likely or potential unintended positive consequences of website accessibility requirements are discussed in response to Question 14 above. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 <a href="http://ncam.wgbh.org/invent_build/web_multimedia/tools-guidelines/magpie">http://ncam.wgbh.org/invent_build/web_multimedia/tools-guidelines/magpie</a>. 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.)<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 16. No. See response to Question 8.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Impact on Small Entities<o:p></o:p></b></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal> <o:p></o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 entity.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 response.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal><b>Other Issues<o:p></o:p></b></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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. <o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>Answer to Question 19. There are a few significant questions and considerations that the Department has left unaddressed.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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 communications.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p><p class=MsoNormal><o:p> </o:p></p><p class=MsoNormal>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.<o:p></o:p></p></div></body></html>