VIRTUAL ADA SUIT WON'T FLY
Court Rules Airline Web Site Not a 'Place of Public Accommodation'

BY DAVID L. HUDSON JR.

In a case of first impression, a federal judge has ruled that an airline
company's Web site is not a place of public accommodation within the meaning
of Title III of the Americans With Disabilities Act of 1990. Title III
prohibits disability discrimination in places of public accommodation.

Access Now Inc., a Florida-based nonprofit advocacy group for the disabled,
and Robert Gumson, a blind man, sued for relief under the ADA in Florida.
They alleged that Southwest Airlines' Web site, southwest.com, is
inaccessible to blind persons. Screen-reading software allows blind people
to access Web sites, but many remain inaccessible because of what the court
called a "lack of coordination between programmers and assistive technology
manufacturers."

Southwest filed a motion to dismiss the suit, contending that its Web site
is not a place of public accommodation within the meaning of the statute. On
Oct. 18, U.S. District Court Judge Patricia A. Seitz agreed. Access Now Inc.
v. Southwest Airlines Co., (S.D. Fla.) No. 02-21734-CIV-Seitz/Bandstra.


The ADA defines 12 categories of places of public accommodation, including
hotels, restaurants, theaters, grocery stores, zoos and stations used for
specified public transportation. 42 U.S.C. § 12181(7).

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 12 categories.

The judge determined that Congress intended Title III to govern only
physical places.

"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," Judge
Seitz wrote. "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."

The plaintiffs argued that the court should expand the ADA to cover
cyberspace, in part because there is a nexus between the Web site and the
premises of a public accommodation. Plaintiffs relied on an 11th Circuit
case where the court ruled that the fast-finger telephone qualification
system used by the television show Who Wants to Be a Millionaire violated
Title III. Rendon v. Valleycrest Prods. Ltd., 294 F.3d 1279,1283 n. 6
(2002).

"We believe that whether or not Congress envisioned Internet applicability
at the time it passed the ADA, it did envision the ADA to be elastic enough
to encompass changing times and changing technology, just as does the
interpretation of our U.S. Constitution," says Phyllis F. Resnick, vice
president and executive director of Access Now. "We do not believe that it
is an enlightened view to take the position that a distinction should be
made between 'bricks and mortar' marketplaces and 'virtual' marketplaces.
The Web site involved in this lawsuit is a ticket office, and the prices
available on the Web site are lower than those available via telephone. The
equality of facilitation under the ADA is what is at issue here."


Steven R. Reininger, an attorney for the plaintiffs, indicates that an
appeal is under way.

Beth Harbin, a spokeswoman for Southwest Airlines, says the company agrees
with the court's analysis of the issues. "We are currently looking into ways
of making southwest.com easier for our blind customers to use without
changing the look and feel of our site for everyone else," she adds. "The
process of making the site ideal for screen readers requires a significant
amount of programming that would change the look and feel of our Web site.
We are actively involved in working with outside groups to reach a
solution."


John C. Fox, a Palo Alto, Calif.-based attorney, regularly represents
software developers and banks facing issues similar to the Southwest
Airlines case. He supports the decision. "The court absolutely correctly
decided the fundamental issue," he says, "which I would describe as whether
cyberspace, a nontangible, nonphysical medium, is a space within the meaning
of Title III."

Fox also says the court properly recognized the technological difficulties
often facing companies in these situations. "The process of retrofitting or
re-architecting the code of a Web site that enables the blind to access [it]
takes much time and is costly. We are talking about a process that takes
months and years, rather than instant gratification. It is often a large,
labor-intensive effort."






©2002 ABA Journal
www.abanet/journal/ereport/n22ada.html



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