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From: Kelly Pierce [mailto:[log in to unmask]] 
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Subject: full text of Southwest Airlines court decision 



The full text of the Southwest Airlines court decision is available at:

http://www.bytowninternet.com/southwest.html

It is also pasted below.  This is an unauthorized version produced by
manually typing in the entire text of the document.  The United States
District Court for the Southern District of Florida will only release a
scanned PDF version which cannot be read by screen readers.  It will not
release the original Word Processing file so it can be read by blind
persons.

Kelly

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.
02-21734-CIV-SEITZ/DANDSTRA

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 02-21734-CIV-SEITZ/DANDSTRA

ACCESS NOW INC., a Florida
non-profit corporation,and
ROBERT GUMSON, individually,
Plaintiffs

vs.

SOUTHWEST AIRLINES, CO.,
a Texas corporation,
Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

THIS MATTER is before the Court on Defendant Southwest Airlines, Co.'s
("Southwest") Motion to Dismiss Plaintiffs' Complaint [DE-11].
Plaintiffs, Access
Now, Inc. ("Access Now"), a non-profit, access advocacy organization for
disabled individuals, and Robert Gumson ("Gumson"), a blind individual,
filed
this four-count Complaint for injunctive and declaratory relief under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq.
Plaintiffs
contend that Southwest's Internet website, southwest.com, excludes
Plaintiffs in violation of the ADA, as the goods and services Southwest
offers at its
"virtual ticket counters" are inaccessible to blind persons. Southwest
has moved to dismiss Plaintiffs' complaint on the grounds that
southwest.com is
not a "place of public accommodation" and, therefore, does not fall
within the scope of Title III of the ADA. The Court has considered the
parties' thorough
papers, the extremely informative argument of counsel, and the exhibits
presented during oral argument. For the reasons stated below the Court
will grant
Southwest's motion to dismiss.

Background

Having found that nearly forty-three million Americans have one or more
mental or physical disabilities, that such individuals continually
encounter various
forms of discrimination. and that "the continuing existence of unfair and
unnecessary discrimination and prejudice denies people with disabilities
the
opportunity to compete on an equal basis and to pursue those
opportunities for which our free society is justifiably famous," Congress
enacted the ADA
in 1990. Pub. L. No. 101-336, § 2(a), 104 Stat. 327, 328. Congress'
stated purposes in enacting the ADA were, among other things, to provide
"a clear and
comprehensive national mandate for the elimination of discrimination
against individual with disabilities," and "clear, strong, consistent,
enforceable
standards addressing discrimination against individuals with
disabilities." Id, Among the statutorily created rights embodied within
the ADA, is Title
III's prohibition against discrimination in places of public
accommodation. 42 U.S.C. § 12182(a).

Since President George Bush signed the ADA into law on July 26, 1990,
this Nation, as well as the rest of the world, has experienced an era of
rapidly changing
technology and explosive growth in the use of the Internet. Today,
millions of people across the globe utilize the Internet on a regular
basis for communication,
news gathering, and commerce. Although this increasingly widespread and
swiftly developing technology provides great benefits for the vast
majority of
Internet users, individuals who suffer from various physical disabilities
may be unable to access the goods and services offered on many Internet
websites.
According to Plaintiffs, of the nearly ten million visually impaired
persons in the United States, approximately 1.5 million of these
individuals use the
Internet.

In an effort to accommodate the needs of the visually impaired, a number
of companies within the computer software industry have developed
assistive technologies,
such as voice-dictation software, voice- navigation software, and
magnification software to assist visually impaired persons in navigating
through varying
degrees of text and graphics found on different websites. However, not
only do each of the di fferent assistive software programs vary in their
abilities
to successfully interpret text and graphics, but various websites also
differ in their abilities to allow different assistive technologies to
effectively
convert text and graphics into meaningful audio signals for visually
impaired users. This lack of coordination between website programmers and
assistive
technology manufacturers has created a situation where the ability of a
visually impaired individual to access a website depends upon 1he
particular assisti
ve software program being used and the particular website being visited.
1

In light of this rapidly developing technology, and the accessibility
problems faced by numerous visually impaired Internet users, the question
remains
whether Title III of the ADA mandates that Internet website operators
modify their sites so as to provide complete access to visually impaired
individuals.
2
Because no court within this Circuit has squarely addressed this issue,
the Court is faced with a question of first impression, namely, whether
Southwest's
Internet website, southwest.com, is a place of public accomodation as
defined by the ADA, and if so, whether Title III of the ADA requires
Southwest to
make the goods and services available at its "virtual ticket counters"
accessible to visually impaired persons.

Southwest, the fourth largest U.S. airline (in terms of domestic
customers carried), was the first airline to establish a home page on the
Internet. See
Southwest Airlines Fact Sheet, at
http://www.southwest.com/about_swa/press/factsheet.html
(Last visited Oct. 16, 2002). Southwest's Internet website,
southwest.com, provides consumers with the means to, among other things,
check airline fares
and schedules, book airline, hotel, and car reservations, and stay
informed of Southwest's sales and promotions. Employing more than 35,000
ernployees,
and conducting approximately 2,800 flights per day, Southwest reports
that "approximately 46 percent, or over $500 million, of its passenger
revenue for
first quarter 2002 was generated by online bookings via southwest.com."
Id. According to Southwest, "[m]ore than 3.5 million people subscribe to
Southwest's
weekly Click 'N Save e-mails." Id. Southwest prides itself on operating
an Internet website that provides "the highest level of business value,
design
effectiveness, and innovative technology use achievable on the Web
today." Id.

Despite the apparent success of Southwest's website, Plaintiffs contend
that Southwest's technology violates the ADA, as the goods and services o
offered
on southwest.com are inaccessible to blind persons using a screen reader.
3
(Compl. ¶4), Plaintiffs allege that although "southwest.com offers the
sighted customer the promise of independence of on-line airline/hotel
booking in
the comfort and safety of their home...even if a blind person like
[Plaintiff] Gumson has a screen reader with a voice synthesizer on their
computer, they
are prevented from using the southwest.com website because of its failure
to allow access." (Compl. ¶4). Specifically, Plaintiffs maintain that
"the southwest.com
website fails to provide 'alternative text' which would provide a 'screen
reader' program the ability to communicate via synthesized speech what is
visually
displayed on the website." (Compl. ¶11). Additionally, Plaintiff's assert
that the southwest.com website "fails to provide online forms which can
be readily
filled out by [Plaintiffs] and fails to provide a 'skip navigation link'
which facilitates access for these blind consumers by permitting them to
bypass
the navigation bars on a website and proceed to the main content."
(Compl. ¶12).

Plaintiffs' four-count Complaint seeks a declaratory judgment that
Southwest's website violates the communication barriers removal provision
of the ADA
(Count I), violates the auxiliary aids and services provision of the ADA
(Count ll), violates the reasonable modifications provisions of the ADA
(Count
III) and violates the full and equal enjoyrnent and participation
provisions of the ADA (Count IV).
4
Plaintiffs ask this Court to enjoin Southwest from continuing to violate
the ADA, to order Southwest to make its website accessible to persons who
are blind,
and to award Plaintiffs attorneys' fees and costs. Southwest has moved to
dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6). The
Court
has federal question jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331.

Discussion

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides that dismissal of a
claim is appropriate when "it is clear that no relief could be granted
under any set
of facts that could be proved consistent with the allegations." Blackston
v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King &
Spalding,
467 U.S. 69, 73 (1984)). At this stage of the case, the Court must accept
Plaintiffs' allegations in the Complaint as true and view those
allegations in
a light most favorable to Plaintiffs' to determine whether the Complaint
fails to state a claim for relief. S & Davis Int'l, Inc. v. Republic of
Yemen,
218 F.3d 1 292, 1298 (11th Cir. 2000).

B. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be
Granted

The threshhold issue of whether an Internet website, such as
southwest.com, is a "place of public accommodation" as defined by the
ADA, presents a question
of statutory construction. As in all such disputes, the Court must begin
its analysis with the plain language of the statute in question. Rendon
v. Valleycrest
Prods., Ltd., 294 F.3d 1279, 1283 n. 6 (11th Cir. 2002) (citing K Mart
Corp. v. Cartier. Inc., 486 U.S. 281, 291 (1988)). The "first step in
interpreting
a statute is to determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the case."
Rendon,
294 F.3d at 1283 n. 6. (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997)). A court need look no further where the statute in question
provides
a plain and unambiguous meaning. Rendon, 294 F.3d at l283 n. 6.
Definition list of 2 items
1. Southwest.com is Not a Place of Public Accommodation" as Defined by
the Plain and Unambiguous Language of the ADA =

Title III of the ADA sets forth the following genera1 rule against
discrimination in places of public accommodation:
Block quote start
No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities,
privileges,
advantages, or accommodations of any place of public accommodation by any
person who owns, 1eases (or leases to), or operates a place of public
accommodation.
Block quote end

42 U.S.C. § 12182(a) (emphasis added).

The statute specifically identifies twelve (12) particularized categories
of "places of public accommodation." 42 U.S.C. g 12181(7). Public
accommodations"
include:
List of 12 items nesting level 1
A. an inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more than five
rooms for rent
or hire and that is actually occupied by the proprietor of such
establishment as the residence of such proprietor;
B. a restaurant, bar, or other establishment serving food or drink;
C. a motion picture house, theater, concert hall stadium, or other place
of exhibition or entertainment;
D. an auditorium, convention center, 1ecture hall, or other place of
public gathering;
E. a bakery, grocery store, clothing store, hardware store, shopping
center or other sales or rental establishment;
F. a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel
service, shoe repair service, funeral parlor, gas station, office of an
accountant
or lawyer, pharmacy, insurance office, professional office of a health
care provider, hospital, or other service establishment;
G. a terminal, depot, or other station used for specified public
transportation;
H. a museum, library, gallery, or other place of public display or
collection;
I. a park, zoo, amusement park, or other place of recreation;
J. a nursery, elementary, secondary, undergraduate, or postgraduate
private school, or other place of education;
K. a day care center, senior citizen center, homeless shelter, food bank,
adoption agency, or other social service center establishment; and
L. a gymnasium, health spa, bowling alley, golf course, or other place of
exercise or recreation.
list end nesting level 1

42 U.S.C. § 12181(7).

Furthermore, pursuant to Congress' grant of authority to the Attorney
General to issue regulations to carry out the ADA, the applicable federal
regulations
also define a "place of public accommodation" as "a facility, operated by
a private entity, whose operations affect commerce and fall within at
least one
of the {twelve (12) enumerated categories set forth in 42 U.S.C. §
12181(7).}" 28 C.F.R. § 36.104,
5
Section 36.104 defines "facility" as "all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads,
walks, passageways, parking lots or other real or personal property
including the site where the building, property, structure, or equipment
is located."
28 C.F.R. § 36.104. In interpreting the plain and unambiguous language of
the ADA, and its applicable federal regulations, the Eleventh Circuit has
recognized
Congress' clear intent that Title III of the ADA governs solely access to
physical, concrete places of public accommodation. Rendon, 294 F.3d at
1283-84;
Stevens v. Premier Cruises, 215 F. 3d 1237, 1241 (11th Cir. 2000) (noting
that "[b]ecause Congress has provided such a comprehensive definition of
'public
accommodation,' we think that the intent of Congress is clear enough").
Where Congress has created specifically enumerated rights and expressed
the intent
of setting forth "clear, strong, consistent, enforceable standards,"
courts must follow the law as written and wait for Congress to adopt or
revise legislatively
defined standards that apply to those rights. Here, to fall within the
scope of the ADA as presently drafted, a public accommodation must be a
physical,
concrete structure. To expand the ADA to cover "virtual" spaces would be
to create new rights without well-defined standards.

Notwithstanding the fact that the plain and unambiguous language of the
statute and relevant regulations does not include Internet websites among
the definitions
of "places of public accommodation," Plaintiffs allege that the
southwest.com website falls within the scope of Title III, in that it is
a place of "exhibition,
display and a sales establishment." (Compl, ¶9). Plaintiffs' argument
rests on a definition they have created by selecting language from three
separate
statutory subsections of 42 U.S.C. § 12181(7). See 42 U.S.C. gg
12181(7)(C), (H) & (E).
6
While Plaintiffs can, as advocates, combine general terms from three
separate statutory subsections, and apply them to an unenumerated
specific term, namely
Internet websites, the Court must view these general terms in the
specific context in which Congress placed each of them. Under the rule of
ejusdem generis,
"where general words follow a specific enumeration of persons or things,
the general words should be limited to persons or things similar to those
specifically
enumerated." Allen v. A.G. Thomas, 161 F.3d 667, 671 (11th Cir. 1998)
(quoting United States v. Torkette, 452 U.S. 576, 581-82 (1981)); see
also Snapp
v. Unlimited Concepts. Inc, 208 F.3d 928, 934 (11 th Cir. 2000); Sutton
v. Providence St. Joseph Medical Ctr., 192 F.3d 826, 834 (9th Cir. 1999).
Here,
the general terms, "exhibition," "display," and "sales eestablishment"
are limited to their corresponding specifically enumerrated terms, all of
which
are physical, concrete structures, namely: "motion picture house,
theater, concert hall, stadium"; "museum, library, gallery"; and "bakery,
grocery store,
clothing store, hardware store, shopping center," respeetively. 42 U.S.C.
$$ 12181(7)(C), (H) 8a (E). Thus, this Court cannot properly construe "a
place
of public accommodation" to include Southwest's Internet website,
southwest.com.
2. Plaintiffs Have Not Established a Nexus Between Southwestcom and a
Physical, Concrete Place of Public Accommodation =

Although Internet websites do not fall within the scope of the ADA's
plain and unambiguous language, Plaintiffs contend that the Court is not
bound by the
statute's plain language, and should expand the ADA's application into
cyberspace.
7
As part of their argument, Plaintiffs encourage the Court to follow
Carparts Distribution Ctr.. Inc. v. Automotive Wholesaler's Assoc. of New
England, in
which the First Circuit broadly held that the ADA's definition of "public
accommodation" is not limited to actual physical structures, but
includes, inter
alia, health-benefit plans. Carparts, 37 F.3d 12, 19 (1st Cir. 1994).
8
While application of the broad holding and dicta in Carparts to the facts
in this case might arguably require this Court to include Internet
websites within
the ADA's definition of "public accommodations," the Eleventh Circuit has
not read Title III of the ADA nearly as broadly as the First Circuit.
9
See Rendon, 294 F.3d 1279.

In Rendon, a recent Eleventh Circuit case addressing the scope of Title
III, a group of individuals with hearing and upper-body mobility
impairments sued
the producers of the television game show, "Who Wants To Be A
Millionaire," alleging that the use of an automated fast finger telephone
selection process
violated the ADA because it excluded disabled individuals from
participating. The district court dismissed the complaint on grounds that
the automated
telephone selection process was not conducted at a physical location, and
therefore, was not a "place of public accommodation" as defined by the
ADA. The
Eleventh Circuit reversed, holding that the telephone selection process
was "a discriminatory screening mechanism...which deprives [the
plaintiffs] of
the opportunity to compete for the privilege of being a contestant on the
[game show]." Rendon, 294 F.3d at 1286. The Eleventh Circuit observed
that "[t]here
is nothing in the text of the statute to suggest that discrimination via
an imposition of screening or eligibiiity requirements must occur on site
to offend
the ADA." Id. at 1283-B4. Most significantly, the Eleventh Circuit noted
that the plaintiffs stated a claim under Title III because they
demonstrated "a
nexus between the challenged service and the premises of the public
accommodation," namely the concrete television studio. Id. at 12S4 n. 8.

Plaintiffs contend that the Eleventh Circuit in Rendon aligned itself
with the First Circuit in Carparts, and that Rendon requires a braad
reading of thc
ADA to include Intemet websites within the "public accommodations"
definition. However, these arguments, while emotionally attractive, are
not legally
viable for at least two reasons. First, contrary to Plaintiff's'
assertion that the Eleventh Circuit aligned itself with Carparts, the
Eleventh Circuit
in Rendon not only did not approve of Carparts, it failed even to cite
it.
10

Second, whereas the defendants in Rendon conceded, and the Eleventh
Circuit agreed, that the game show at issue took place at a physical,
public accommodatian
(a concrete television studio), and that the fast finger telephone
selectian process used to select contestants tended to screen out
disabled individuals,
the Intemet website at issue here is neither a physical, public
accommodation itself as defined by the ADA, nor a means to accessing a
concrete space such
as the specific television studio in Rendon.
11
294 F.3d at 1284.

Although Plaintiff's contend that this "is a case seeking equal access to
Southwest's virtual 'ticket counters' as they exist on-line," (Pl.'s
Resp. at
13), the Supreme Court and the Eleventh Circuit have both recognized that
the Internet is "a unique medium - known to its users as 'cyberspace' -
located
in no particular geographical location but available to anyone, anywhere
in the world, with access to the Intemet." Voyeur Dorm, L.C. v. Citv of
Tampa
265 F.3d 1232, 1237 n.3 (11th Cir. 2001) (quoting Reno v. ACLU, 521 U.S.
844, 851 (1997)). Thus, because the Internet website, southwest.com does
not exist
in any particular geographical location, Plaintiffs are unable to
demonstrate that Southwest's website impedes their access to a specific,
physical, concrete
space such as a particular airline ticket counter or travel agency.
12
Having failed to establish a nexus between southwest.com and a physical,
concrete place of public accammodation, Plaintiff's have failed to state
a claim
upon which relief can be granted under Title III of the ADA.
13
list end

Conclusion

Accordingly, based upon the foregoing reasons, it is hereby ORDERED that
Defendant Southwest's Motion to Dismiss Plaintiffs' Complaint [DE-11] is
GRANTED,
and this action is DISMISSED WITH PREJUDICE. All pending motions not
otherwise ruled upon are denied as moot, and this case is CLOSED.

DONE and ORDERED in Miami. Florida, this 18th day of October, 2002.
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE

CC:
Magistrate Judge Ted E. Bandstra

K. Renee Schimkat, Esq.
Garth T. Yearick, Esq.
Counsel for Defendant Southwest Airlines, Co.
Carlton Fields, P.A. 4000 Bank of America Tower at Int'l Place
100 SE 2nd St.
Miarni, FL 33131
fax 305-530-0055
Steven R. Reininger, Esq.
Howard R. Behar, Esq,
Counsel for Plaintiffs
Rasco Reininga Perez & Esquenazi, P.L.
283 Catalonia Avc., 2nd Flr.
Coral Gables, FL 33134
fax 305-476-7102

1 - Although it appears that no well-defined, generally accepted
standards exist for programming assistive software and websites so as to
make them uniformly
compatible, Plaintiffs provided the Court with a copy of the Web Content
Accessibility Guidelines 1.Q, W3C Recommendation 5-May-1999, produced by
the Web
Accessability Initiative See Web Content Accessibility Guidelines 1.0, at
http://www.w3.org/TR/WCAG 10/
(Last visited Oct, i6, 2002). While "these guidelines explain how to make
Web content accessible to people with disabilities," the guidelines
further note
that they do "not provide specific information about browser support for
different technologies as that information changes rapidly." Id.
Moreover, not
only are these guidelines over three-years old, but there is no
indication that the Web Accessibility Initiative, which "pursues
accessibility of the Web
through five primary areas of work: technology, guidelines, tools,
education and outreach, and research and development," is a generally
accepted authority
on accessibility guidelines. See About WAI. at
http://www.w3.org/WAI/about.html
Last visited Oct. 16, 2002)

2 - Some commentators, while recognizing the paucity of case law in this
area, have suggested that Internet websites fall within the scope of the
ADA. See,
e,g,, Jeffrey Scott Ranen, Note. Was Blind But Now I See: The Argument
for ADA Applicability to the Internet, 22 B.C. Third World L J. 389
(2002); Adam
M. Schloss, Web Sight for Visually-Disabled People Does Title III of the
Americans with Disabilities Act Apply to Internet Websites?, 35 Colum.
3.I.. k
Soc. Probs. 35 (2001); Matthew A. Stowe Note, Interpreting Place of
Public Accommodation' Under Title III of the ADA: A Technical
Determination with Potentially
Broad Civil Rights Implications, SO Duke L.J. 297 (2000); Jonathan Bick.
Americans with Disabilities Act and the Internet 10 Alb. L.J. Sci. k
Tech. 205
(2000).

3 - Plaintiffs claim that although purchasing tickets at southwest.com is
"technically possible, plaintiffs found purchasing a ticket to be
extremely difficult..."
(Compl, at 7). Plaintiffs do not argue that they are unable to access
such goods and services via alternative means such as telephone or by
visiting a
particular airline ticket counter or travel agency.

4 - Plaintiffs' Counsel informed the Court that Plaintiffs made no effort
to resolve this dispute prior to filing their Complaint. (Tr., Oct. 16,
2002).
Although the law does not require Plaintiffs to confer with Southwest
prior to filing this action, in light of Plaintiffs' Counsel's discussion
of the
proactive measures that other companies, such as Amazon.com, have taken
to modify their websites to make them more accessible to visually
impaired persons,
it is unfortunate that Plaintiffs made no attempt to resolve this matter
before resorting to litigation.

5 - The Court may consider the C.F.R. definitions, as Congress
specifically directed the Attorney General to "issue regulations in an
accessible format
to carry out the provisions of [the ADA]... that include standards
applicable to facilities and vehicles covered under section l2182 of [the
ADA.]" 42
U.S.C. § l21S6(b).

6 - Plaintiffs ereated their definition from the following italicized
language in three subsections of 42 U.S.C. ) 12181(7}:
List of 3 items
. "a motion picture house, theater, concert hall, stadium, or other place
of exhibition or entertainment," 42 U.S.C. § 12181(7)(C);
. "a museum, library, gallery, or other place of public display or
collection," 42 U.S.C. § 12181(7)(H); and
. "a bakery, grocery store, clothing store, hardware store, shopping
center, or other sales or rental estahlishnteat," 42 U.S.C. §
12181(7)(E).
list end

7 - Plaintiffs concede that neither the legislative history of the ADA
nor the plain language of the statute and applicable federal regulations,
contain
any specific reference to the Internet or cyberspace. (Tr., Oct. 16,
2002).

8 - Although Carparts does not explicitly address the issue of whether an
Internet website falls within the definition of "public accommodation,"
Plaintiffs
focus on the First Circuit's dicta discussing the public policy reasons
for why the ADA's definition of "public accommodations" should be read
broadly:
Block quote start
By including "travel service" among the list of services considered
"public accommodations," Congress clearly contemplated that "service
establishments"
include providers of services which do not require a person to physically
enter an actual physical structure. Many travel services conduct business
by
telephone or correspondence without requiring their customers to enter an
office in order to obtain their services. Likewise, one can easily
imagine the
existence of other service establishments conducting business by mail and
phone without providing facilities for their customers to enter in order
to utilize
their services. It would be irrational to conclude that persons who enter
an office to purchase services are protected by the ADA, but persons who
purchase
the same services over the telephone or by mail are not. Congress could
not have intended such an absurd result.
Block quote end

Carparts, 37 F.3d at 19.

9 - In addition to Carparts Plaintiffs encourage this Court to follow Doe
v, Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999), in which
Chief
Jvdge Posner approvingly cited to Carparts and stated in dicta that:
Block quote start
The core meaning of [42 U.S.C. § 12182(a)], plainly enough, is that the
owner or operator of a store, hotel, restaurant, dentist's office, travel
agency,
theater, Web site, or other facility (whether in physical space or in
eleetronic space, [Carparts], that is open to the public cannot exclude
disabled
persons from entering the facility and, once in, from using the facility
in the same way that the nondisabled do.
Block quote end

Plaintiffs also cite to a September 9, 1996 letter from Deval L. Patrick,
Assistant Attorney General, Civil Rights Division, United States
Department of
Justice, to U.S. Senator Tom Harkin, advising the Senator that "[c]overed
entities that use the Intemet for communications regarding their
programs, goods,
or services must be prepared to offer those communications through
accessible means as well." (Pl.'s Resp., Exh. A). Finally, Plaintiffs
cite the recent
unpublished opinion in Vincent Martin et al. v. Metro. Atlanta Rapid
Transit Authority, No. 1:01-CV-3255-TWT (N.D. Ga. Oct. 7, 2002), in which
U.S. District
Jadge Thomas W. Thrash, Jr. held that until the Metropolitan Atlanta
Rapid Transit Authority ("MARTA") reformats its lnternet website in such
a way that
it can be read by visually impaired persons using screen readers, MARTA
is "violating the ADA mandate of making adequate communications capacity
available,
through accessible formats and technology, to enable users to obtain
information and schedule service.'" Vincent Martin et al. v. Metro.
Atlanta Rapid
Transit Authoritv, No. 1:01-CV-3255-TWT, at 34 (N.D. Ga. Oct. 7, 2002)
(quoting 49 C.F.R. § 37.167(f)). That case, however, is distinguishable
in one critical
respect: Plaintiffs in Vincent Martin filed suit under both the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 et seq., and
Title II of the ADA,
42 U.S.C. § 12132, not Title III as in the present case. Title II
prohibits qualified individuals from being "excluded frorn participation
in or [being]
denied the benefits of the services, programs, or activities of a public
entity, or [being] subjected to discrimination by any such entity." 42
U.S.C.
§ 12132. Title II of thc ADA defines "public entity" as "(A) any State or
local government; (B) any department, agency, special purpose district,
or other
instrumentality of a State or States or local government; and (C) the
National Railroad Passenger Corporation, and any commuter authority...."
42 U.S.C.
§ 12131. Because the present case deals with Title III, not Title II of
the ADA, and Plaintiff's could not allege any facts that would place
Southwest
within the definition of a "public entity" under Title ll, Vincent Martin
is inapplicable.

10 - In fact, the Eleventh Circuit recognized those courts which declined
to follow Carparts, noting that "to the extent that a plaintiff intends
to raise
a claim of disability discrimination based on the kind of insurance
offered, the plaintiff must demonstrate that the policy was offered to
the plaintiff
directly by the insurance company and was connected with its offices, as
opposed to its being a privilege provided by the plaintiff's employer."
Rendon.
294 F.3d at 1284 n. 8 (emphasis added) (citing Weyer v. Twentieth Century
Fox Film Corp 198 F.3d 1104, 1114-15 (9th Cir. 2000) (noting that "some
connection
between the good or service complained of and an actual physical place is
required) Ford v Schering-Plough Corp 145 F.3d 601,612-13 (3d. Cir. 1998)
(noting
that "[t]he plain meaning of Title III is that a public accommodation is
a place..."); Parker v Metro. Life Ins. Co 121 F.3d 1006, 1011-14 (6th
Cir. 1997)
(noting that "[a]s is evident by § 12181(7), a public accommodation is a
physical place...")).

11 - In recognizing the requirement that a plaintiff establish "a nexus
between the challenged service and the premises of the public
accommodation." the
Eleventh Circuit noted that the plaintiffs in Rendon stated a claim under
Title III of the ADA because they sought 'the privilege of competing in a
contest
held in a concrete space..." Rendon, 294 F.3d at 1284 (emphasis added);
compare Stoutenborough v Natl. Football League Inc., 59 F.3d 580 (6th
Cir. 1995)
(holding that hearing impaired plaintiffs, who alleged that National
Football League "blackout rule" violated Title lll of ADA, failed to
state a cause
of action, as there was no nexus between televised broadcast of football
game and physical place of public accommodation). See also Torres v AT&T
Broadband
LLC 158 F. Supp. 2d 1035 (N.D. Cal. 2001) (dismissing Title III claim
that cable service provider must make a list of available programs
accessible to
the visually impaired, and holding that "neither the digital cable system
nor its on-screen channel menu can be considered a place of public
accommodation
within the meaning of the ADA"); Access Now Inc. v, Claire's Stores, Inc
No. 00-1 40 17-CIV-MOORE, 2002 WL 1162422, at *5 (S.D. Fla. May 7, 2002)
(noting
in approving a Title lll class settlement that "[n]o court has held that
internet websites made available to the public by retail entities must be
accessible").

12 - It is important to note that aircrafts are explicitly exempt from Ti
tle lll of the ADA. 42 U.S.C. § 12181(10). Plaintiffs do not argue that
Southwest's
website impedes their access to aircrafts.

13 - Given the number of visually impaired persons who utilize the
Internet for commerce, and the significant amount of business that
Southwest obtains
through its Internet website, it is unfortunate that the parties have not
cooperated to develop a creative solution that benefits both parties and
which
avoids the costs and polarizing effects of litigation. It is especially
surprising that Southwest, a company which prides itself on its consumer
relations,
has not voluntarily seized the opportunity to employ all available
technologies to expand accessibility to its website for visually impaired
customers
who would be an added source of revenue. That being said, in light of the
rapidly developing technology at issue, and the lack of well defined
standards
for bringing a virtually infinite number of Internet websites in to
compliance with the ADA, a precondition for taking the ADA into "virtual"
space is
a meaningful input from all interested parties via the legislative
process. As Congress has created the statutorily defined rights under the
ADA, it is
the role of Congress, and not this Court, to specifically expand the
ADA's definition of "public a accommodation" beyond physical, concrete
places of public
accommodation, to include "virtual" places of public accommodation.