IN THE UNITED STATES COURT OF APPEALS
ACCESS NOW, INC., AND ROBERT GUMSON, et al.,
SOUTHWEST AIRLINES, INC.,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
BRIEF OF AMICI CURIAE AMERICAN ASSOCIATION
OF PEOPLE WITH DISABILITIES, AMERICAN COUNCIL OF THE BLIND, AMERICAN
FOUNDATION FOR THE BLIND, BAZELON CENTER FOR MENTAL HEALTH LAW, DISABILITY
RIGHTS ADVOCATES, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, NATIONAL
ASSOCIATION OF THE DEAF, NATIONAL ASSOCIATION OF PROTECTION AND ADVOCACY
SYSTEMS, AND NATIONAL FEDERATION OF THE BLIND IN SUPPORT OF THE
PLAINTIFFS-APPELLANTS AND IN SUPPORT OF REVERSAL
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certify that, to the best of their knowledge, the following listed persons or entities have an interest in the outcome of this appeal:
Access Now, Inc.,
American Association of People with Disabilities (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
American Council of the Blind (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
American Foundation for the Blind (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
Bazelon Center for Mental Health Law (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
Howard R. Behar, Esq.
Howard R. Behar, P.A.
Linda M. Dardarian, Esq.
Matthew Dietz, Esq.
Disability Rights Advocates (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
Disability Rights Education and Defense Fund (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
The Law Offices of Matthew W. Dietz, P.L.
Elaine B. Feingold, Esq.
Carlton Fields, P.A.
Joshua Konecky, Esq.
National Association of the Deaf (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
National Association of Protection and Advocacy Systems (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
National Federation of the Blind (a non-profit corporation that offers no stock; there is no parent corporation or publicly owned corporation that owns 10% or more of this entity’s stock)
Gary Papas, Esq.
Rasco, Reininger, Perez & Esquenazi, P.L.
Steven R. Reininger, Esq.
Hon. Patricia A. Seitz
K. Renee Schimkat, Esq.
Southwest Airlines Company
Garth T. Yearick, Esq.
table of contents
TABLE OF CITATIONS
A.H. Phillips, Inc. v. Walling,
324 U.S. 490, 65 S. Ct. 807 (1945).................................................................... 17
Access Now, Inc. v. Southwest Airlines, Co.,
227 F. Supp. 2d 1317 (S.D. Fla. 2002)........................................................ passim
All Hawaii Tours, Corp. v. Polynesian Cultural Ctr.,
116 F.R.D. 645 (D. Haw. 1987),
Bragdon v. Abbott,
524 U.S. 624 (1998)............................................................................................ 9
Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler's Ass'n,
37 F.3d 12 (1st Cir. 1994).............................................................................. 9, 10
Christopher v. Harbury,
536 U.S. 403, 122 S. Ct. 2179 (2002).................................................................. 5
Doe v. Mutual of Omaha Ins. Co.,
179 F.3d 557 (7th Cir. 1999), cert denied, 528 U.S. 1106 (2000)..................... 9, 10
National Automatic Laundry & Cleaning Council v. Shultz,
443 F.2d 689 (D.C. Cir. 1971)........................................................................... 17
PGA Tour, Inc. v. Casey Martin,
532 U.S. 661, 121 S. Ct. 1879 (2001)................................................................. 16
Regions Hosp. v. Shalala,
522 U.S. 448, 118 S. Ct. 909 (1998).................................................................. 13
Rendon v. Valleycrest Prods., Ltd.,
294 F.3d 1279 (11th Cir. 2002), reh'g denied en banc,
2002 U.S. App. LEXIS 27593 (11th Cir. Fla. Oct. 25, 2002)........................ passim
Squire v. United Airlines,
973 F. Supp. 1004 (D. Colo. 1997),
Stevens v. Premier Cruises, Inc.,
215 F.3d 1237 (11th Cir. 2002)...................................................................... 1, 17
United States v. AMC Entm't, Inc.,
232 F. Supp. 2d 1092 (C.D. Cal. 2002)................................................................ 9
Walker v. Carnival Cruise Lines,
63 F. Supp. 2d 1083 (N.D. Cal. 1999)...................................................... 9, 10, 13
Washington Market Co. v. Hoffman,
101 U.S. 112, 25 L.Ed. 782 (1879)..................................................................... 13
Weeks v. Southern Bell Tel. & Tel. Co.,
408 F.2d 228 (5th Cir. 1969).............................................................................. 17
Wetzel v. Hoffman,
928 F.2d 376 (11th Cir. 1991)......................................................................... 3, 5
28 C.F.R. § 36, App. B....................................................................................... 7
28 C.F.R. § 36.104.................................................................................. 1, 4, 6, 8
42 U.S.C. § 12101....................................................................................... 16, 18
42 U.S.C. § 12102............................................................................................ 14
42 U.S.C. § 12181...................................................................................... passim
42 U.S.C. §12182....................................................................................... passim
49 U.S.C. § 41705.............................................................................................. 6
Federal Rules of Civil Procedure, Rule 15............................................................ 6
H.R. Rep. 101-485(II), 1990 WL 125563 (Leg.Hist.)............................................ 6
ADA Title III Technical Assistance Manual, III-1.2000......................................... 9
CONSENT TO FILING
All parties to this action have consented to the filing of this brief by Amici Curiae American Association of People with Disabilities, American Council of The Blind, American Foundation for the Blind, Bazelon Center for Mental Health Law, Disability Rights Advocates, Disability Rights Education and Defense Fund, National Association of the Deaf, National Association of Protection and Advocacy Systems, and National Federation of the Blind.
STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE
Amici curiae are organizations of people with disabilities throughout the country whose members, constituents and staff need access to the World Wide Web to participate meaningfully in contemporary society. The District Court’s sweeping rejection of coverage of Web sites under Title III of the Americans with Disabilities Act (“ADA”), on the grounds that they “do not exist in any particular geographical location,” Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002), threatens to deprive amici curiae and millions of other individuals with disabilities from accessing an array of society’s most important goods and services. Based on the expansive text of the ADA and this Circuit’s precedent, amici curiae respectfully request that the District Court’s order dismissing the complaint with prejudice be reversed.
Amicus curiae American Association of People with Disabilities (AAPD) is the largest cross-disability membership organization in the United States. AAPD's mission is to promote political and economic empowerment of all people with disabilities. AAPD has a strong interest in ensuring that the Internet is fully accessible so that the more than 56 million children and adults with disabilities have an equal opportunity to benefit from this powerful technology at school, at work, and at home.
Amicus curiae American Council of the Blind (ACB) is a national membership organization whose purpose is to work toward independence, security, equality of opportunity, and improved quality of life for all blind and visually impaired people. Founded in 1961, ACB's members work through more than 70 state and special-interest affiliates to improve the well-being of all blind and visually impaired people by: serving as a representative national organization; elevating the social, economic and cultural levels of people who are blind or visually impaired; improving educational and rehabilitation facilities and opportunities; cooperating with public and private institutions and organizations concerned with services to persons who are blind or visually impaired; encouraging and assisting all people with severely impaired vision to develop their abilities; and conducting a public education program to promote greater understanding of blindness, vision impairment and the capabilities of people who are blind or visually impaired.
Over the past three years, ACB affiliates have been actively involved in ensuring the accessibility of the Internet Web sites of some of the country's largest financial institutions. During that time, the following five financial institutions have negotiated and signed binding legal agreements with ACB affiliates and others in the blind community designed to ensure the accessibility of the banks' Web sites: Bank of America, Fleet, Washington Mutual, First Union/Wachovia and Sovereign Bank. These agreements are based on the Web Content Accessibility Guidelines established by the World Wide Web Consortium, commonly known as the W3C, and available at http://www.w3.org/TR/WCAG10/. The work of ACB affiliates in the area of financial institution Web accessibility is a critical component of the full integration of blind and visually impaired persons into society.
Amicus curiae American Foundation for the Blind (AFB) is a national non-profit whose mission is to eliminate the inequities faced by the more than ten million blind and visually impaired persons in the United States. Among other things, AFB is the leading publisher of professional materials on blindness and low vision through its publishing arm, AFB Press; a pioneer in the development of Talking Books; a national advocate representing the interests of blind or visually impaired people before Congress and government agencies; and home to the Helen Keller Archives, the only collection of its kind in the world, containing her correspondence, documents, photographs, and memorabilia. AFB publications, distributed in various formats including over the Internet, include Access World: Technology and People with Visual Impairments and Journal of Visual Impairment and Blindness.
AFB recognizes the critical importance of accessible technology and accessible information to persons with disabilities. As part of this recognition, the AFB’s Web site (www.afb.org) strives to be a model of accessible design for other Web sites. Access to the information, services and programs offered on the Web is critical to ensuring equal opportunity to blind persons across the full spectrum of American society. AFB’s Career Connect program uses the Web to connect persons seeking employment with other blind and visually impaired persons employed in a specific area of work so that they can network and learn techniques to use in order to be a successful employee. In a society increasingly reliant on the Web to disseminate information and services, AFB is working to remove any barriers created by improper Web site design, so that blind and visually impaired persons have equal access and opportunity to the information and services provided on the Internet.
Amicus curiae Bazelon Center for Mental Health Law (the Center) is a national public interest organization founded in 1972 to advocate for the rights of individuals with mental disabilities. The Center has engaged in litigation, administrative advocacy, and public education to promote equal opportunities for individuals with mental disabilities. Much of the Center’s work involves efforts to enforce the ADA in order to remedy disability-based discrimination.
Amicus curiae Disability Rights Advocates (DRA) is a non-profit public interest law firm that specializes in high impact civil rights litigation on behalf of persons with disabilities throughout the United States. Based in Oakland, California, DRA strives to protect the civil and human rights of people with disabilities in the United States and worldwide. DRA works to end discrimination in areas such as access to public accommodations, employment, transportation, education, and housing. DRA's clients and staff are people with disabilities throughout the nation. Whether they are scheduling plane flights for business trips, purchasing concert tickets, or researching medical conditions with which their children have been diagnosed, people with disabilities have found many accessible Web sites to be dependable sources of the information they need.
Amicus curiae Disability Rights Education and Defense Fund (DREDF) is the nation's premier law and policy center dedicated to protecting and advancing the civil rights of people with disabilities. DREDF pursues its mission through education, advocacy and law reform efforts, and uses the Internet as a tool to communicate with the community that it represents. Nationally recognized for its expertise in the interpretation of federal disability civil rights laws, DREDF is committed to ensuring the full integration of people with disabilities into all aspects of American society, including the technological participation that is an increasingly important part of modern life.
Amicus curiae National Association of the Deaf (NAD) is a national non-profit organization whose members are deaf adults, parents of deaf children, and professionals in the area of service to individuals who are deaf. Established in 1880, the NAD is the nation's oldest and largest nonprofit organization safeguarding the accessibility and civil rights of 28 million deaf and hard of hearing Americans across a broad range of areas including education, employment, health care, and telecommunications. Communicating, conferencing, sharing information, and transacting business through the Internet is becoming an increasingly important component of mainstream American life. The NAD is committed to ensuring that deaf and hard of hearing Americans have equal access and an equal opportunity to participate in and benefit from the Internet through the use of existing and future Web-based technology, including captioning of streaming video, text equivalent of audio players, and other means of making audio transmissions visually accessible.
Amicus curiae National Association of Protection and Advocacy Systems (NAPAS) is the membership organization for the nationwide system of protection and advocacy (P&A) agencies. Located in all 50 states, the District of Columbia, Puerto Rico, and the federal territories, P&As are mandated under various federal statutes to provide legal representation and related advocacy services on behalf of all persons with disabilities in a variety of settings. The P&A system comprises the nation’s largest provider of legally based advocacy services for persons with disabilities. NAPAS facilitates coordination of P&A activities and provides training and technical assistance to the P&A network. This case is of particular interest to NAPAS because unless Web sites are accessible, P&A clients cannot access the information they need for transportation, education, conducting commercial transactions such as on-line banking, shopping and travel arrangements, and for myriad other purposes.
Amicus curiae National Federation of the Blind (NFB or Federation) is the largest national organization of blind persons and has affiliates in all 50 states, Washington, D.C. and Puerto Rico. The vast majority of the Federation’s approximately 50,000 members are blind. The Federation is widely recognized by the public, Congress, executive agencies of government and the courts as a collective and representative voice on behalf of blind Americans and their families. The purpose of the NFB is to promote the general welfare of people who are blind by (1) assisting blind persons in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes and mistaken beliefs held by sighted and blind persons concerning the limitations created by blindness that result in the denial of opportunity to blind persons in virtually every sphere of life. The NFB and many of its members have long been actively involved in promoting adaptive technology for persons who are blind so that they can live and work independently in today’s technology-dependent world. The NFB operates the International Braille and Technology Center for the Blind in Baltimore, Maryland. This Center is the world’s most extensive demonstration and evaluation center for computer-related technology serving the needs of blind persons, housing several million dollars worth of hardware and software designed specifically for persons who are blind. Hundreds of blind persons, representatives from different countries, and a number of United States companies and organizations come to the Center each year for training and/or to acquire information regarding the use of adaptive equipment and software and techniques to make their Web sites accessible.
Can a private entity, such as Southwest Airlines Company, which operates a “place of public accommodation,” in this case a travel service, avoid the obligations it would otherwise have under the broad remedial provisions of the Americans with Disabilities Act (“ADA”) when it chooses to provide some of its services, privileges, advantages and information through an Internet Web site?
Southwest Airlines Company (“Southwest”) owns and operates a travel service that has numerous physical locations at airports around the United States. Southwest’s travel service is therefore a place of public accommodation under Title III of the ADA and the United States Department of Justice implementing regulations. See 42 U.S.C. § 12181(7), 28 C.F.R. § 36.104. The ADA’s exclusion of “aircraft” from the scope of its coverage does not preclude Southwest’s travel service from being a place of public accommodation under the ADA.
A critical legal error underlying the District Court’s dismissal of plaintiffs’ complaint is the faulty premise that the Web site southwest.com itself must be a “place of public accommodation” and “exist in [a] particular geographic location” for the ADA to apply to the information and services delivered by that Web site. See Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1317, 1321 (S.D. Fla. 2002). Not only is this conclusion contrary to the plain language of the ADA, but it also conflicts with Eleventh Circuit precedent affirming that Title III of the ADA is not limited to privileges and services that are offered in a physical place. See, e.g., Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1281 (11th Cir. 2002), reh’g denied en banc, 2002 U.S. App. LEXIS 27593 (11th Cir. Fla. Oct. 25, 2002). See also, Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 (11th Cir. 2002). Because of the District Court’s errors, it ignored the possibility that ADA coverage may flow, as it should here, from a Web site’s role as (a) a service, privilege or advantage; (b) visually delivered information; or (c) a method of providing such information, of a place of public accommodation.
Title III of the ADA mandates that places of public accommodation take affirmative steps to make their services, advantages and privileges accessible to individuals with disabilities, without regard to whether people receive those services, advantages or privileges in a particular geographic location. See 42 U.S.C. §§ 12182(a) and (b). The ADA prohibits places of public accommodation, such as Southwest’s travel service, from erecting intangible barriers that preclude persons with disabilities from participating in and enjoying their services, advantages and privileges. See 42 U.S.C. § 12182(b)(2)(A)(i) – (ii); Rendon, 294 F.3d 1283. The ADA also requires places of public accommodation to ensure that information they provide to the public is effectively communicated to persons with disabilities through the provision of auxiliary aids and services. See 42 U.S.C. § 12182(b)(2)(A)(iii). Other applicable provisions of the ADA include the prohibition of eligibility criteria that tend to screen out persons with disabilities (42 U.S.C. § 12182(b)(2)(A)(i)) and the obligation to make reasonable modifications to policies, practices and procedures when necessary to provide access (42 U.S.C. § 12182(b)(2)(A)(ii)).
These express terms of the ADA provide plaintiffs several alternative bases upon which to state a claim regarding the inaccessibility of Southwest’s Web site: (a) the Web site is a service, advantage or privilege of Southwest’s travel service, and the Web site’s inaccessibility constitutes a prohibited intangible barrier to that service, advantage or privilege for persons with disabilities; (b) the Web site is a method of providing the travel service’s information to the public, and the Web site’s inaccessibility constitutes a failure to provide auxiliary aids and services necessary to ensure that the information is effectively communicated to persons with disabilities; (c) the Web site’s inaccessibility imposes a prohibited eligibility criteria because it requires people to be able to see text on a computer screen in order to access benefits of Southwest’s travel service; and (d) Southwest’s practice of posting information on its Web site in an inaccessible manner denies persons with disabilities the right to participate in or benefit from the services, privileges or advantage of Southwest’s travel service.
The ADA provides defenses to plaintiffs’ claims that are not before this Court. See, e.g., 42 U.S.C. § 12182(b)(2)(A)(iii) (setting forth “undue burden” and “fundamental alteration” defenses). The precise scope of Southwest’s ultimate ADA obligations will depend upon factual issues such as the effective communication needs of plaintiffs, the costs and availability of Web technologies, and the nature of Southwest’s business and its Web site services. These issues are not properly the subject of a motion to dismiss. 
III. SOUTHWEST AIRLINES OWNS AND OPERATES A TRAVEL SERVICE WHICH IS A PLACE OF PUBLIC ACCOMMODATION UNDER THE ADA
The ADA provides that “the following private entities are considered public accommodations for purposes of this title, if the operations of such entities affect commerce.” 42 U.S.C. § 12181(7). Subpart (F) includes as one of these private entities “a … travel service … or other service establishment.” The United States Department of Justice’s implementing regulations define a “place of public accommodation” as a “facility, operated by a private entity, whose operations affect commerce” including “(6) a … travel service … or other service establishment.” 28 C.F.R. § 36.104.
Southwest Airlines owns and operates a “travel service,” which has numerous physical locations at airports around the United States. Southwest’s coverage by the public accommodation provisions of the ADA is apparent in the substantive allegations of plaintiffs’ complaint, as well as from the District Court’s Order describing the extensive travel services Southwest offers, including air fares and schedules, airline, hotel and car reservations, vacation planning and sales and promotions. See Access Now, 227 F. Supp. 2d at 1315; Merriam Webster Online Dictionary, http://www.m-w.com (defining “travel agency” as “an agency engaged in selling and arranging personal transportation and accommodations for travelers”). In reaching its decision, the District Court referred to the services and information provided on Southwest’s Web site. See Access Now, 227 F. Supp. 2d at 1315.
As evidenced by visiting southwest.com, the Web site is a means for Southwest to provide potential customers a vast array of information about travel planning beyond the scheduling of air travel. For example, Southwest’s travel service allows Web site visitors to state hotel preferences based on both city and distance from an airport or downtown location. Once a hotel is selected, detailed information is provided about the hotel’s rates, contact information, facilities, services, credit card and cancellation policies, and local attractions. Hotel rooms can be booked on the site, as can car rentals. Southwest’s vacation planning services offered over the Web site are even more elaborate. In addition to air, hotel and car reservations, users may be offered, depending on the destination, “transfers” which, according to the Web site, provide “transportation between the airport and your hotel or your hotel and some other destination activity,” tickets to local attractions, and “travel protection,” also known as trip interruption or travel insurance, offered, according to the Web site, through National Union Fire Insurance Company of Pittsburgh, PA.
Moreover, as the District Court noted, Southwest’s Web site “provides consumers with the means to … stay informed of Southwest’s sales and promotions.” Access Now, 227 F. Supp. 2d at 1315. See also, Complaint p. 3 (alleging that Southwest provides sighted customers with a “money-saving booking experience” via its Web site, which is inaccessible to persons with vision impairments). At their core, the factual allegations of the complaint indicate that plaintiffs are alleging that they cannot obtain the benefit of reservations, scheduling and fare information and discount pricing for air travel, lodging, and other travel amenities, all significant indicia of a travel service.
The District Court placed erroneous significance on the fact that “aircraft” are excluded from coverage under Title III of the ADA. See Access Now, 227 F. Supp. 2d at 1321, n.12. The ADA aircraft exclusion flows from the interplay between 42 U.S.C. § 12181(7)(G) and (10). Section 12181(7) includes within the definition of public accommodation a “terminal, depot, or other station used for specified public transportation.” Section 12181(10) defines “specified public transportation” as “transportation by bus, rail or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.” The Department of Justice regulations use these statutory definitions in defining a “place of public accommodation.” See 28 C.F.R. § 36.104 (definition of “Place of Public Accommodation” subpart (7), and definition of “Specified Public Transportation”).
Transportation by aircraft is excluded from ADA coverage because prior to the passage of the ADA, Congress had passed the Air Carriers Access Act (“ACAA”). See 49 U.S.C. § 41705 et seq.; H.R. Rep. 101-485(II), 1990 WL 125563 (Leg.Hist.), at *87. While the ACAA was designed to address the problem of discrimination by air carriers in “air transportation,” the ADA does not exclude all operations of airlines.
Courts interpreting the ACAA have been clear that it does not reach activities of air carriers that are not actual “air transportation” as defined by the ACAA. See, e.g., Squire v. United Airlines, 973 F. Supp. 1004, 1009 (D. Colo. 1997), aff’d, 194 F.3d 1321 (10th Cir. Colo. 1999) (airline employment policies not covered by ACAA); All Hawaii Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 651 (D. Haw. 1987), rev’d on other grounds, 855 F.2d 860 (9th Cir. 1998) (selling tickets is not part of air transportation services: “As between airlines and travel agents, only airlines provide air transportation services. But they both sell tickets.”).
Similarly, the Department of Justice has recognized that while those aspects of “terminals, depots and stations” used for “transportation” “by aircraft” are not places of public accommodation under the ADA, there can be ADA places of public accommodation within those terminals, depots and stations. Justice Department Section by Section Analysis on the ADA’s definition of “specified public transportation” notes that the definition:
excludes privately operated airports from coverage as places of public accommodation. However, places of public accommodation located within airports would be covered by this part. Airports that are operated by public entities are covered by Title II of the ADA and, if they are operated as part of a program receiving Federal financial assistance, by section 504 of the Rehabilitation Act. Privately operated airports are similarly covered by section 504 if they are operated as part of a program receiving Federal financial assistance. The operations of any portion of any airport that are under the control of an air carrier are covered by the Air Carrier Access Act. In addition, airports are covered as commercial facilities under this rule.
28 C.F.R. § 36, App. B, 156 Fed. Reg. No. 14, p. 55 (July 26, 1991).
The first part of this commentary explains that services that are otherwise “places of public accommodation” and that take place within an airport are covered by the ADA. For instance, businesses that would be places of public accommodation were they situated outside an airport – such as restaurants, shops and travel services, are still places of public accommodation inside the airport. If Southwest Airlines operated a restaurant in one of its terminals, the restaurant would be a place of public accommodation covered by Title III of the ADA. See 42 U.S.C. § 12181(7)(B); 28 C.F.R. § 36.104(2). So too, Southwest’s travel service, located at ticket counters in airports across the country, is a covered place of public accommodation. See 42 U.S.C. § 12181(7)(F); 28 C.F.R § 36.104(6).
In light of the fact that ADA-covered places of public accommodation can exist within airports that are not themselves Title III entities, the Department of Justice’s reference to “the operations of any portion of any airport that are under the control of an air carrier,” can only refer to operations of portions of the airport that are not otherwise a “place public accommodation.” Examples of airport operations that are excluded from the Title III definition of public accommodations as a result of the “specified public transportation” definition would be gates, jetways, runways, and baggage areas: aspects of the airport itself.
Thus, in light of the statutory and regulatory scheme, the fact that Southwest operates aircraft, provides air transportation and operates portions of airports that are covered by the ACAA does not mean it does not also operate a travel service within the meaning of the ADA. The activities of that travel service – including its Internet operations – are similarly not precluded from ADA coverage because of Southwest’s other, non-covered operations. See ADA Title III Technical Assistance Manual, III-1.2000 (explaining that when some but not all of a private entity’s operations are “places of public accommodations,” the ADA covers all of the operations). It is therefore of no moment to the question on appeal that Southwest may also own and operate aircraft and perhaps other air terminal facilities which fall outside the scope of the ADA. See 42 U.S.C. § 12181(2), (7)(G) and (10). What is critical is that Southwest also owns and operates a travel service, which is a “place of public accommodation” explicitly covered by Act. See 42 U.S.C. § 12181(7)(F).
With the proper focus on Southwest’s travel service, rather than the Web site itself, as the place of public accommodation, it becomes irrelevant whether the Web site itself exists in a geographic location. If and when this issue is properly before the Court it will have far reaching consequences on amici curiae and people with disabilities across the globe. There is no reason to foray into such territory at this time, when there is virtually no record and the plaintiffs can allege that the Web site has a nexus to an undisputed place of public accommodation – Southwest’s travel service.
Because Southwest operates a travel service which is a place of public accommodation under the ADA, the only issue before the Circuit is whether plaintiffs can state an ADA claim upon which relief can be granted based on allegations concerning either the inaccessibility of that travel service’s Web site, southwest.com, or the inaccessibility of the information and services presented by means of that Web site. This Circuit’s decision in Rendon has already answered that question in the affirmative. In Rendon, this Circuit roundly rejected the contention that Title III of the ADA applies only to privileges and services that are offered from a physical place, and held that the definition of discrimination under Title III of the ADA includes both tangible and intangible barriers. Id. at 1281, 1283. In reaching this conclusion the Court explained:
Defendants argue that the Millionaire contestant hotline may not serve as the basis for a Title III claim because it is not itself a public accommodation or a physical barrier to entry erected at a public accommodation … . We find this argument entirely unpersuasive. A reading of the plain and unambiguous statutory language at issue reveals that the definition of discrimination provided in Title III covers both tangible barriers, that is, physical and architectural barriers that would prevent a disabled person from entering an accommodation’s facilities and accessing its goods, services and privileges, see § 12182(b)(2)(A)(iv), and intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges, see 42 U.S.C. § 12182(b)(2)(A)(i)-(ii).
Rendon, 294 F.3d at 1283 (emphasis added). The only difference between Rendon and the matter at bar is that Rendon involved those plaintiffs’ inability to access a “studio” (a “place of public accommodation” under 42 U.S.C. § 12181(7)(C)) because of the inaccessibility of the telephone, see Rendon, 294 F.3d at 1283-1284, while this case involves the plaintiffs’ inability to access a “travel service” (a place of public accommodation under 42 U.S.C. § 12181(7)(F)) because of the inaccessibility of the Web site. As such, Rendon compels this Court to reverse the District Court’s broad ruling exempting coverage of Internet services from Title III of the ADA.
The ADA provides:
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 leases (or leases to) or operates a place of public accommodation.
42 U.S.C. § 12182(a). The language of this core Title III provision contains no requirement that the discriminatory action or failure to act occur within the public accommodation or within a physical space. Rendon, 294 F.3d at 1284-85. Indeed, there would have been no need for Congress to use the terms “services,” “privileges,” “advantages” or “accommodations” if the only issue of concern was what occurred in the “facility.” See, e.g., Regions Hosp. v. Shalala, 522 U.S. 448, 467, 118 S. Ct. 909, 920 (1998) (quoting Washington Market Co. v. Hoffman, 101 U.S. 112, 115-116, 25 L.Ed. 782 (1879)) (“It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word.”). Limiting Title III coverage to physical locations and tangible barriers, as the District Court did here, would require a fundamental redrafting of the statute.
Southwest.com is itself a service, privilege or advantage of Southwest’s travel service. It is a service, privilege or advantage that allows immediate, twenty-four hour, and interactive participation of the public in the goods and services offered by the travel service. Plaintiffs’ complaint contains sufficient facts to support a claim that persons with disabilities cannot fully and equally enjoy this aspect of Southwest’s travel service because they are excluded from it because of their disability. Considered another way, the travel service owned and operated by Southwest has chosen to provide services – including vacation planning and reservation services – by means of southwest.com. That travel service has also chosen to provide certain privileges – including the privilege to compare fares, obtain sale tickets, and plan itineraries independently via one’s own computer – through southwest.com. Cf. Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083, 1092 (N.D. Cal. 1999) (explaining that providing details and prices regarding travel arrangements is a primary service of travel agents and therefore covered by the ADA). The complaint alleges that persons with disabilities cannot fully and equally enjoy these services and privileges because of inaccessible features of southwest.com. Therefore, the complaint is sufficient to state a cause of action under the ADA.
The ADA includes in the definition of discrimination the “failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services … or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,” unless certain defenses are established. 42 U.S.C. § 12182(b)(2)(A)(iii). The ADA defines auxiliary aids and services as including “other effective methods of making aurally delivered material available to individuals with hearing impairments” and “other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. § 12102. As Rendon recognized, coverage of intangible barriers is a critical component to understanding this statutory provision:
The statute also recognizes that an intangible barrier may result as a consequence of a defendant entity’s failure to act, that is, when it refuses to provide a reasonable auxiliary service that would permit the disabled to gain access to or use its goods and services.
Rendon, 294 F.3d at 1284, n.7.
Southwest owns, leases or operates a travel service, which, as described above, is a place of public accommodation pursuant to 42 U.S.C. § 12181. That travel service presents visually delivered information on its Web site, southwest.com. Plaintiffs’ complaint alleges that information on the Web site is not available to persons with vision impairments because appropriate auxiliary aids and services have not been provided. Plaintiffs’ complaint thus states a claim that falls squarely within the text of the auxiliary aids and services provision of the ADA.
The ADA prohibits the imposition of criteria which “tend to screen out an individual with a disability from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(i) (emphasis added). Plaintiffs have alleged facts sufficient to state a claim that Southwest’s utilization of southwest.com, which they claim is inaccessible to blind persons using screen readers, tends to screen out persons with vision impairments from enjoying privileges, advantages and services of Southwest’s travel service.
As this Circuit recognized in Rendon, it would directly conflict with the broad text of the Title III provisions covering goods and services to limit the statute’s eligibility criteria provisions to physical places:
Defendants urge us to hold, in effect, that so long as discrimination occurs off site, it does not offend Title III. We do not believe this is a tenable reading of Title III; indeed, off-site screening appears to be the paradigmatic example contemplated in the statute’s prohibition of [unlawful eligibility criteria]. There would be little question that it would violate the ADA for the Defendants to screen potential contestants just outside the studio by refusing otherwise qualified persons because they were deaf or suffered from diabetes or HIV.
Rendon, at 1285. Similarly, no one would doubt the unlawfulness of Southwest personnel standing outside an airport handing out leaflets offering travel discounts to those who can read standard print on paper, but refusing to provide a similar benefit to blind travelers. The plaintiffs’ allegations that sighted customers have a “money saving booking experience” through Southwest’s Web site that is inaccessible to persons with vision impairments is similarly sufficient to state a claim of unlawful eligibility criteria. See Complaint p. 3.
As with the express provisions regarding non-discrimination, auxiliary aids and services, and eligibility criteria, other sections of the ADA easily embrace the conduct alleged in plaintiffs’ complaint. For example, 42 U.S.C. § 12182(b)(1)(A)(i) prohibits entities who operate a place of public accommodation from denying persons with disabilities the right to participate in or benefit from an entity’s “services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii) requires “reasonable modifications in policies, practices or procedures” when necessary to provide access to “goods, services, facilities, privileges, advantages or accommodations.” Again, in both of these provisions, Congress chose to use multiple terms in addition to “facilities” in describing what the public accommodation must offer without discrimination. By including “policies, practices or procedures” in the statute, these provisions of the ADA clearly cover intangible, non-physical methods of delivering services, advantages, and privileges of the public accommodations. As such, whether the Web site itself is considered a privilege, service or advantage of Southwest’s travel service, or whether it is seen as a procedure for providing other travel related services, the expansive language of Title III of the ADA allows plaintiffs to state a claim of discrimination against a public accommodation that maintains a Web site that they allege is inaccessible to them.
E. This Circuit Has Recognized That the ADA Must Be Construed Broadly to Effectuate Its Purpose
The ADA is a comprehensive remedial statute designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). See also, PGA Tour, Inc. v. Casey Martin, 532 U.S. 661, 675, 121 S. Ct. 1879 (2001) (One of the “most impressive strengths” of the ADA is its “comprehensive character.” The Act has a “sweeping purpose” and was designed “to eliminate discrimination against disabled individuals and to integrate them into the economic and social mainstream of American life.”). Under basic cannons of statutory construction, the ADA’s protections for individuals with disabilities must be interpreted broadly and its exceptions to coverage interpreted narrowly. See Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232 (5th Cir. 1969) (“when dealing with a humanitarian remedial statute which serves an important public purpose, it has been the practice to cast the burden of proving an exception to the general policy of the statute upon the person claiming it.”) (citing A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807 (1945)); see also, National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 706 (D.C. Cir. 1971) (“Remedial legislation is traditionally construed ‘broadly to effectuate its purposes, with exceptions ‘narrowly construed’. ” (quotations omitted)).
In Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000), this Court confirmed that a broad reading of the ADA to cover new situations not necessarily envisioned by Congress is necessary to effectuate the broad, remedial purposes of the Act:
Congress did intend that the ADA have a broad reach. And, both the Supreme Court and this Court have concluded previously that the ADA is applicable to contexts that may not have been particularly envisioned by Congress.
Stevens, 215 F.3d at 1241 (internal citations omitted). The District Court’s suggestion that the ADA cannot cover services and information offered over Internet Web sites because Congress did not mention them in the statute conflicts with the principle enunciated in Stevens.
Additionally, this Court observed in Rendon that “communication barriers” are “the very sorts of discrimination the statute seeks to redress.” Rendon, 294 F.3d at 1286 (citing 42 U.S.C. § 12101(a)(5)). This Court held that there was “nothing in the text of the statute” to even “suggest that discrimination … must occur on site to offend the ADA.” Rendon, at 1283. Today’s society revolves around the daily use of electronic media in areas such as business, education, employment, government and, of course, travel, and the ADA is designed “to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b). It is thus not surprising that the ADA contains the aforementioned provisions requiring that public accommodations offer auxiliary aids, modify policies, and eliminate other intangible barriers, in order to ensure persons with disabilities have full and equal access to the spectrum of “goods, services, facilities, privileges, advantages, or accommodations” available to the general public. See 42 U.S.C. §§ 12101, 12182(a) and (b); Rendon, 294 F.3d at 1283-86. Under the plain text of these provisions, there is no exception for services, privileges and advantages provided over an Internet Web site. It would directly conflict with the broad text of the Title III provisions covering goods and services to limit these protections to physical places, as the District Court did here.
V. THIS APPEAL DOES NOT REQUIRE THE COURT TO ADDRESS WEB SITE Design STANDARDS OR POSSIBLE ADA DEFENSES AVAILABLE TO southwest
The precise scope of Southwest’s ultimate ADA obligations here will depend upon factual issues such as the effective communication needs of plaintiffs, the costs and availability of Web technologies, and the nature of Southwest’s business and its Web site services. See, e.g., 42 U.S.C. § 12182(b)(2)(A)(iii) (setting forth undue burden and fundamental alteration defenses). Such issues should not be addressed on a motion to dismiss. See Rendon, at 1282 (“Our inquiry is confined solely to the district court’s bases for dismissing the plaintiffs’ complaint for failure to state a claim.”). It is the District Court on remand, and not this Court on appeal, that must determine whether Southwest’s operation of one of its services – southwest.com – violates any one of several possibly applicable ADA provisions discussed above. Id.
Notwithstanding the extent of technology now readily available to make Web site services accessible, Southwest would still have a full opportunity to demonstrate to the District Court on remand either that its Web site is in fact accessible, or that making it accessible to the degree demanded by plaintiffs would constitute an undue burden or fundamental alteration. Id. These are the same standards and defenses applicable on a case-by-case basis to any other good or service offered by a private entity; there is no special exception in the ADA for services offered through the Internet. There is also no basis at the pleading stage to circumvent this basic ADA analysis and to hold, as the District Court did, that Southwest has no obligation whatsoever to consider disability access as part of the Internet services and advantages it offers to the public.
For the foregoing reasons, amici curiae respectfully request that this Court reverse the District Court’s granting of Southwest’s motion to dismiss plaintiffs’ complaint with prejudice, and remand the action for further proceedings.
CERTIFICATE OF COMPLIANCE
Notice is hereby given that Amici Curiae have complied with Rule 32(a)(7)(B), Fed. R. App. P. This brief herein is proportionately spaced, has a typeface of 14 points and contains 6,010 words.
Dated: March ___, 2003
CERTIFICATE OF SERVICE
I hereby certify a true and correct copy of the foregoing was mailed this ____ day of March, 2003 to:
 Even the issue of whether or not a Web site itself might exist in a physical space is a factual question that turns on a full evaluation of the nature and characteristics of the Internet. Yet, the lower court went on to answer this question in the negative based on virtually no record of how Web sites operate or whether they in fact occupy physical space. See Access Now, 227 F. Supp. 2d at 1315, n.1. Under basic pleading standards, a district court cannot dismiss a lawsuit outright unless “it is beyond doubt that [the plaintiffs] can prove no set of facts which would entitle [them] to relief.” See Wetzel v. Hoffman, 928 F.2d 376, 377 (11th Cir. 1991). For this reason as well, the District Court’s order dismissing plaintiffs’ complaint with prejudice should be reversed.
 Although the Complaint did not specifically cite 42 U.S.C. § 12181(7)(F), and may not have explained the relationship between “Southwest Airlines, Co.,” and “Southwest.com” as clearly as it could have, or cast it in the technical, statutory definitional framework, it does contain the basic factual allegations necessary to withstand a motion to dismiss. See Wetzel v. Hoffman, 928 F.2d 376, 377 (11th Cir. 1991) (confirming that “a dismissal is appropriate only if it is beyond doubt that [the plaintiffs] can prove no set of facts which would entitle [them] to relief”). See also, Christopher v. Harbury, 536 U.S. 403, 418, 122 S. Ct. 2179, 2182 (2002) (When reviewing a ruling on a motion to dismiss, the court accepts the plaintiffs’ factual allegations and takes them in the light most favorable to them).
Under Fed. R. Civ. P. 15’s liberal standards for amending the pleadings – including one amendment by right – it would have been appropriate to allow the plaintiffs an opportunity to amend their pleadings. As evidenced by the amici statements, the District Court’s dismissing outright at the early pleading stage any possibility of ADA Title III coverage of Southwest’s Web site would have far-reaching and potentially devastating consequences for individuals with disabilities. The District Court should have fully considered the different facts and arguments relating to ADA coverage of Internet services before it dismissed this action with prejudice.
 See DOJ Section by Section Analysis on the definition of “commercial facilities,” recognizing that while privately operated airports are subject only to the new construction and alteration requirements of Title III (subpart D), and not to the general non-discrimination requirements of subparts B and C of that Title, “places of public accommodation located within airports, such as restaurants, shops, lounges, or conference centers, however, are covered by subparts B and C of this part.” 28 C.F.R. § 36, App. B, 156 Fed. Reg. No. 14 (July 26, 1991).
 The Department’s interpretation of the ADA is entitled to deference. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 646 (1998); United States v. AMC Entm’t, Inc., 232 F. Supp. 2d 1092, 1113 (C.D. Cal. 2002).
Although this Circuit need not address or resolve on this appeal the question of whether Web sites can themselves be “places of public accommodation,” there is authority, to be considered in an appropriate case, stating that “places of public accommodation” – in particular Web sites and travel agencies – do not have to be physical in nature in order to be subject to Title III’s anti-discrimination mandate. Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999), cert denied, 528 U.S. 1106 (2000); Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994); Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083, 1092-1094 (N.D. Cal. 1999). In Doe, for example, Judge Posner and the Seventh Circuit observed:
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 electronic space [citation to 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.
Doe, 179 F.3d at 559 (emphasis added) (citing Carparts, 37 F.3d at 19). The First Circuit in Carparts also found significant the inclusion of "travel services" as a place of public accommodation:
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.
Carparts, 37 F.3d at 19. The First Circuit further reasoned that the statutory language and history were incompatible with an interpretation of the ADA that would cover services purchased in a physical location, but not the same services offered over “telephone lines, messengers or some other medium.” Carparts, 37 F.3d at 20. See also, Walker, 63 F. Supp. 2d at 1093.
The District Court here evidenced a misunderstanding of Carparts and of this Court’s citation to that opinion in Rendon by citing Title III claims against insurance companies in other circuits. In those cases, claims were unsuccessful because the employer (not the Title III entity) was the party actually offering the insurance. Access Now, 227 F. Supp. 2d at 1320, n.10. The District Court concluded erroneously that Rendon’s citation to these cases means that an allegedly unlawful good or service must be connected to a physical office in order for there to be a Title III claim. Id. In contrast to the District Court’s summary, the reason the insurance cases cited in Rendon did not contain a viable Title III claim was the insufficient nexus between the plaintiff and the insurance company, not that the policy itself would need to be connected to a physical space. While Rendon acknowledges the possibility that these insurance cases might reasonably be construed to suggest that some nonphysical barriers could remain outside the scope of the ADA if there were no connection to a physical place, Rendon’s holding does not make the nexus to a physical place a necessity in all cases. See Rendon, 294 F.3d at 1284, n. 8. Like Rendon, the case at bar does not involve insurance coverage or any special rules which might be applicable to such cases. Rather, it concerns privileges and advantages offered by a private entity which operates a travel service. Moreover, while the record here remains wholly insufficient to evaluate whether a nexus to a physical place should be required in Internet access cases generally, plaintiffs can allege that Southwest’s travel service is connected to multiple physical locations throughout the country. It was therefore incorrect for the District Court to conclude that the insurance actions cited in Rendon would foreclose ADA coverage of Southwest’s Internet services.
 In the absence of a fully developed record on this issue, the District Court erroneously made a factual finding regarding guidelines developed by the Web Accessibility Initiative of the World Wide Web Consortium (“W3C”). See Access Now, 227 F. Supp. 2d at 1315, n.1. These guidelines are currently being used by some of the country’s leading financial institutions to ensure the accessibility of their Web sites. See Statement of Identity and Interest of Amicus Curiae American Council of the Blind (ACB), supra.
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