By Daniel R. Zim, Esq.
Zim Travel Law, PLLC
The internet has improved quality of life for most people in the United States but for a segment of the population with disabilities it remains a significant barrier to accessing information and services. Websites are often not configured with features that are accessible to disabled individuals. People with manual dexterity disabilities, for example, cannot easily use drop down menus which are commonly installed on travel website booking engines. The visually impaired face their own set of web navigation challenges. Screen readers used by the blind as assistive technology cannot transcribe non-textual visual imagery such as photographs and other types of graphics which, unbeknownst to a blind web user, may house a link to another web page.
These accessibility barriers have prompted government action to ensure equal access to products and services offered on the internet. To that end, on June 10, 2014, a new Department of Transportation (DOT) regulation went into effect requiring some “ticket agents” (the term includes travel agencies and tour operators) to offer additional assistance to disabled air travelers. Pursuant to the amended DOT rule on unfair and deceptive practices (reference 14 CFR § 399.80), ticket agents that are not exempt from compliance will have to disclose and offer internet-based discounted air fares to “prospective passengers who contact the agent through other channels (e.g., by telephone or in the agent’s place of business) and indicate they are unable to use the agent’s website due to a disability.”
Scope of DOT rule
Not all ticket agents must comply with the DOT’s new requirement. The rule applies only to firms that fit within the Small Business Administration’s definition of a large business which, in this case, are ones that earn annual receipts exceeding $19 million.
For these non-exempt large businesses, a limited circumstance triggers the need for compliance. The caller or walk-in client first must affirmatively self-identify himself as being unable to use an inaccessible website due to his disability. Once the client has done so, the ticket agent must offer a fare that is no higher than the one that is offered on the ticket agent’s website.
It is also significant that the regulation is limited to the “fare” and not a fee charged for making a reservation with a live representative. DOT has said in the Federal Register that it decided not to include an additional requirement in the rule to prohibit a ticket agent from charging a fee for reservations made over the phone or at the agent’s place of business to individuals who cannot use the agent’s website due to a disability because it believes that practice is already prohibited under Title III of the Americans with Disabilities Act (ADA).
If DOT is correct that an agency’s refusal to waive the fee under this circumstance violates the ADA, then ticket agents of all sizes are prohibited from engaging in this practice because there is no small business exemption under Title III of the ADA. However, the issue of whether Title III applies to operators of commercial websites remains in murky legal territory since Congress has never passed legislation amending the ADA to extend coverage to operators of commercial websites and, for that reason, courts have been largely reluctant to take an expansive view of ADA coverage. Yet, adding further legal uncertainty, the Department of Justice (DOJ) has promised to issue a rule confirming its longstanding opinion that Title III of the ADA applies directly to commercial websites.
As a growing number of companies, including Orbitz and American Express, are charging fees for taking air reservations over the phone, such companies should evaluate with their legal counsel whether a waiver to the phone fee policy should be provided to website challenged individuals and whether notice of a policy waiver should be posted on the section of their respective websites where the fees are disclosed.
Ticket agents that are not exempt under the DOT rule due to their large size should not offer internet-only fare discounts without making an accommodation for website-challenged individuals. If such deals are offered these companies should disclose in promotional advertising that special exceptions apply to those whose physical or intellectual limitations impede them from accessing the web.
Non-exempt travel agencies and tour operators should train their employees to affirmatively respond to a disabled person’s need for special booking alternatives. When quoting airfares over the phone or in-person to those individuals, staff members should do a website check to verify that the verbally communicated fares are no higher in price than the fares posted online.
Although not specifically required under the DOT rule, it is probably a good idea to conspicuously display a customer support telephone number on the home page. A lot of online travel agencies don’t do this, often displaying the phone number as many as three or four click-views away. One must assume that it takes a disabled person a longer amount of time than usual to navigate the web due to their impairment and since airfares rarely ever remain stagnant it may make it more difficult to comply with the DOT rule if fares increase during the time that a customer searches for the support line. Furthermore, placing callers on hold for lengthy periods can also contribute to this problem.
Through the disability rule and DOT’s latest consumer rule proposal, the Department has made it part of its mission to raise customer service standards for ticket agents. Therefore, we should expect to see efforts to penalize ticket agents that fail to provide the required assistance to disabled individuals.
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