“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.”

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

Comments of the American Council of the Blind (ACB) regarding the Advance Notice of Proposed Rulemaking on 28 CFR Parts 35 and 36; CRT Docket No. 110; RIN 1190-AA61, Nondiscrimination on the Basis of Disability;
 
Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, published in the Federal Register July 26, 2010, 75 FR 43452
  

Introduction

 
The American Council of the Blind (ACB) is a national membership organization. Its members are blind, visually impaired, and fully sighted
individuals who are concerned about the dignity and well-being of blind people throughout the nation.
 
Established in 1961, ACB is one of the largest organizations of people who are blind in the world, with more than 70 state and special interest
affiliates and a nationwide network of chapters and members spanning the globe.
 
In framing our comments on web accessibility, the American Council of the Blind wants to begin by exploring some general principles that we believe
are at the heart of where regulations must go in the future. To do this, it is necessary to take the same approach as the Department of Justice did in
reviewing the history of web regulation as it applies to the Americans with Disabilities Act.
 
As the DOJ rightly asserts, there was an early commitment to making website accessibility a general principle of the ADA which was provided through
various letters and public comments that the DOJ made available in late 1990’s. Instead of asserting that there was an ongoing, affirmative
requirement that websites be accessible, the Department chose to make web accessibility a vague and an ambiguous requirement. It never provided
specific guidance to covered entities. This approach did a disservice to people who were blind or have low vision in that it created an assumption
that the best and only way that standards could be developed for this group was through painstaking standard development over years. Differing efforts
through the creation and implementation of Section 508 guidelines in the late 1990’s and early 2000’s left web accessibility requirements and
standards in disarray. It left covered entities to wonder which, if any, standards applies to them. Further fueling the unfortunate situation was the
utter silence from the Department on specific guidance regarding access to
the web. At the heart of this ANPRM is the same approach. Specific questions
target specific pieces of equipment, aspects of the web, and audio description. The American Council of the Blind urges the department to go
beyond this approach to the place the Department knew it should have been in 1991. It is now time for the Department to clearly and unequivocally
proclaim that accessibility of the web is an inherent component for making programs and activities and places of public accommodation accessible. We
recognize that it will still be necessary to determine what accessibility means for specific kinds of equipment. We are aware that this will mean working to develop and implement standards that will apply to specific parts
of the web. However, we are convinced that people with disabilities have waited long enough for a clear and general assertion by the Department that
there is an affirmative obligation to assure that web platforms that are being used to make programs and activities accessible under Title II and
websites being deployed in places of public accommodation under Title III must, within the constraints inherent in both titles, be accessible.
 
There is another principle that we believe must be clearly articulated as we begin the second decade of the 21st century. Perhaps the best way to
describe this notion is to again look at where we were in 1991 and where we are today. In 1991 the web did not exist as we know it today. The changes
brought about even in the last five years have been rapid and unimagined. Access to the internet was limited to research universities and the military. Rudimentary systems permitted text-based e-mail. Much of the interactivity that has come to define today’s web environments has come
about in the last ten years. Aspects of the web and the digital life-style have reached beyond the use of computing into the realm of an ecosystem that
will come to be defined as the age of convergence. In 2011, virtually every
piece of equipment being deployed makes use of computers. Many pieces of equipment are also directly connectable to the internet or can be accessed
wirelessly or utilizing a remote control. Essentially, this means that we must go beyond looking at equipment, by itself. The accessibility of
computers, whether tiny ones in washing machines or larger ones in kiosks, must be an inherent consideration in any regulations developed for the web
and equipment accessibility. More to the point, it is no longer possible or credible to see the regulation of equipment, the web and audio description
as separate endeavors. All three of the ANPRM areas overlap. It is time that
the Department consider the adoption of general principles that clearly articulates the convergence that the computer chip has created. The simple
truth is that, with the advent of inexpensive computer chips, accessibility of equipment is potentially readily achievable and can be accomplished
without much difficulty or expense. However, if the Department continues to take the approach that it has in the past, there will be no clear mandate that manufacturers must accept for them to work to develop and implement standards that must apply to all equipment.
 
Clearly Title II entities are required to make their programs and activities accessible to people with disabilities. Where the web is concerned, they
have been able to avoid compliance by claiming that web accessibility is either not required or that there is a lack of clarity. The net result has
been the deployment of websites which are less accessible to people who are blind or have low vision. The Department has been complicit in creating
decreased accessibility because it has consistently failed to make it clearly adopt and enforce web accessibility as a general principle that
underpins the Americans with Disabilities Act.
 
Finally, we would argue that it is time that the Americans with Disabilities Act acknowledges other Federal laws that have begun to create standards and
principles of accessibility. We believe that the standards that are currently available that apply to website accessibility under Section 508
need to be consciously incorporated as minimum requirements for state and local governments. Many states have already chosen to adopt these standards. However, we believe that the Department has an affirmative responsibility to make 508 compliance an inherent component of Title II of the ADA. We also believe that creating general principles for web accessibility which shall apply to both Titles II and III of the ADA will have the effect of advancing the objectives that are at the heart of Section 255 and the newly signed
Twenty-First Century Communications and Video Accessibility Act.
 
To summarize then, we assert that the failure to enforce web access as a general principle in 1990’s has done an immense disservice to people with
disabilities and more specifically we aver that people who are blind or have low vision have been most severely impacted by this failure. The Department must take this opportunity to clearly articulate that there is a categorical and ineluctable affirmative requirement for web accessibility that applies equally to state and local governments and places of public accommodation.

The Department must espouse principles of universal design that will, within a reasonable time frame, require state and local governments to only develop and deploy web platforms that are accessible. We believe that, if the Department clearly adopts an unequivocal general principle, we will
gradually get to a place where web accessibility will assume the place it should as a civil right for people with disabilities.
 
To read the answers to questions posed in the ANPRM visit http://athenpro.org/pipermail/athen_athenpro.org/2011-January/005355.html