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The Internet is “a unique medium … located in no particular geographical location but available to anyone, anywhere in the world, with access. …” Reno v. ACLU, 521 U.S. 844, 851 (1997). But what does “access” to the Internet mean, particularly to a person with visual impairments? If a company does not make its Web site accessible to visually impaired persons, does the Americans with Disabilities Act provide any assistance? In Access Now, Inc. v. Southwest Airlines, Co., ____ F.Supp. 2d ____ (S.D. Fla. 2002), the U.S. District Court for the Southern District of Florida dismissed a lawsuit brought by Access Now, a disability advocacy group, claiming that Southwest Airlines’ Web site, www.southwest.com, is inaccessible to blind persons who use screen reader to navigate the Internet. OVER 1 MILLION VISUALLY IMPAIRED INTERNET USERS According to Access Now, there are about 1.5 million visually impaired users of the Internet. They “read” Web sites through technologies such as voice-dictation software, voice-navigation software and magnification software. The software attempts to convert text and graphics into audio signals. The problem is that some Web sites interact with the software (of which there are many kinds) better than others. Access Now claimed that the southwest.com Web site fails to provide “alternative text” which would allow a screen reader program to translate the text into synthesized speech. Access Now sued Southwest on the grounds that its Web site is a “place of public accommodation” under Title III of the ADA and that Southwest had barred access to the site in violation of the Act. Generally, Title I of the ADA applies to the employment relationships, Title II applies to governmental entities and Title III applies to places of “public accommodation.” Access Now claimed that, by making its Web site inaccessible to those with visual impairments, Southwest prohibited such persons from the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of [the Web site, a] place of public accommodation. …” PHYSICAL STRUCTURE REQUIRED UNDER TITLE III This argument, however, ran into (literally) a brick wall. The court found that Title III’s regulations define a “public accommodation” as “a facility.” The regulations go on to define a “facility” as, essentially, a physical structure. The court found, therefore, that “Title III of the ADA governs solely access to physical, concrete places of public accommodation. [T]o expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards.” Access Now argued that specific parts of Title III’s twelve categories of public accommodations included a “sales establishment.” Since Southwest was selling airline tickets on its Web site, the site was serving as a virtual sales establishment. This argument was rejected on the grounds that the general term “sales establishment” was clearly meant to apply to physical structures such as a bakery, grocery store, hardware store or shopping center. Although at least three U.S. Courts of Appeal have held that Title III applies to physical places, the 1st U.S. Circuit Court of Appeals has expanded Title III’s reach beyond actual physical structures. In Car Parts Distribution Ctr., Inc. v. Automotive Wholesaler’s Assoc. of New England, the 1st Circuit read the ADA’s definition of “public accommodation” at the broadest level. “By including ‘travel service’ among the list of services considered ‘public accommodation,’ 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. … [I]t 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.” The Access Now court did not so much distinguish Car Parts as dismiss it as an anomalous reading of the act. Clearly, the Car Parts decision would expand Title III to include southwest.com. Further, in Doe v. Mutual of Omaha Ins. Co., the court included the term “web site” in a discussion of Title III public accommodations. WHO WANTS TO BE A MILLIONAIRE Perhaps the most difficult distinction for the Access Now court to draw was with the recent “Who Wants to be a Millionaire” access case, Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002). In Rendon, a group of individuals with hearing and upper-body mobility impairments sued Millionaire’s producers based upon the “fast finger telephone selection process” used to find the show’s contestants. Although the district court dismissed the Rendon complaint on the grounds that the telephone selection process was not a physical structure implicating Title III, the 11th Circuit reversed, noting that the proposed contestants had stated a claim because they demonstrated “a nexus between the challenged service and the premise of the public accommodation,” in that case the concrete television studio. The Access Now court distinguished the “Millionaire” case on the grounds that the “game show at issue took place at a physical, public accommodation, whereas the Internet web site at issue is neither a public accommodation ‘nor a means to accessing a concrete space such as a specific television studio.’ “ The distinction is clarified by a review of the Rendon decision. In that case, the “fast finger” test was found to serve as a “ticket” to the Millionaire studio. “[T]he fact that the plaintiffs in this suit were screened out by an automated telephone system, rather than by an admission policy administered at the studio door, is of no consequence under the statute. …” In Rendon, there was no other way to become a contestant on the show. In Access Now, the court recognized that purchasing tickets at southwest.com is “technically possible.” There are also, of course, many other methods that a visually impaired customer can use to purchase airline tickets. The Access Now decision will hardly end the debate over the ADA’s application to private Web sites. The debate has shifted from law review articles to the courts. Although this is the first case to discuss the issue directly, it will hardly be the last. Access Now had previously sued Barnes & Noble over its Web site, with the case settling. A lawsuit similar to that against Southwest has also been filed against American Airlines. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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