Equal Access in Air Travel for the Blind:Raising Expectations from the United States Department of Transportation

by Blane Workie

From the Editor: Air travel and the treatment of blind passengers by the airlines are not new topics for the NFB and in the Braille Monitor. But recent events have the topics squarely on the NFB Agenda as you will read in this article covering the speech given on July 8. President Riccobono introduced the following presentation like this:

“We have with us the assistant general counsel for the office of aviation enforcement and proceedings. You know, treatment of passengers on airlines has been on the news a lot lately, except for blind people this is not news; we’ve known about this treatment for decades. Whether it’s being treated like an unaccompanied minor, or having our canes taken away, or trying to fight with the in-flight entertainment system to get on the WiFi, or knocking up against an inaccessible kiosk or website, we know about the treatment from the airlines. We are very happy to have this next presenter here to talk to us about the consumer protections and civil rights enforcement efforts at the Department of Transportation. Here is Blane Workie:”

Thank you for that introduction and good afternoon everybody. I am very honored and delighted to be here with all of you today at this very impressive gathering. Improving transportation for people with disabilities is a high priority at the US Department of Transportation, and I am personally committed to the goal of making accessible air transportation a reality for all. [cheers] I appreciate your president, Mr. Mark Riccobono, inviting me to the National Federation of the Blind’s 2018 National Convention. I have a great admiration for Mr. Riccobono’s leadership and the work that is done by the National Federation of the Blind to ensure that blind people have access to goods and services. The NFB has been and continues to be a champion for the rights of the blind and visually impaired. The NFB actively engages with the US Department of Transportation and in its advocacy makes clear NFB’s philosophy that the blind are the best qualified to lead the way in solving problems facing the blind. [applause]

As the assistant general counsel in the US Department of Transportation’s Office of Aviation Enforcement and Proceedings, I have had the great pleasure of working with NFB on a variety of issues affecting blind air travelers such as the accessibility of airline websites and airport kiosks, traveling by air with service animals, and in-flight entertainment. I would be remiss if I didn’t take this opportunity today to recognize your colleagues in Washington DC: John Paré, who is the NFB’s executive director for advocacy and policy, [applause] and Parnell Diggs, who was NFB’s former director of government affairs. [applause] This is for the work that they have done to raise awareness of and advocate for accessible air transportation for blind and low vision Americans. Like them, and all of you, we at DOT believe it is important that the transportation system is accessible, as accessible transportation is vital in maintaining independence.

Looking out at the crowd in front of me, the strength of the NFB and the unity of purpose this convention brings to blind people is very clear. I understand that there are approximately 3,000 delegates here [applause] from every state in the country as well as some foreign countries. I know that you have had a full day, actually a full schedule the last few days, and I appreciate being given the opportunity to present on the Department of Transportation’s work to ensure equal access in air travel for the blind.

Let me begin by briefly explaining to you the function of my office and our involvement in aviation civil rights matters. My office, the Office of Aviation Enforcement and Proceedings, is part of the US Department of Transportation’s Office of General Counsel. Among other things we are responsible for enforcement and rule-making activities related to the Air Carrier Access Act. The Air Carrier Access Act was passed by Congress with bipartisan support, and President Reagan signed it into law on October 2, 1986. It initially applied only to US airlines, but was later amended so that it also applies to foreign airlines. The act makes it unlawful for US and foreign air carriers to discriminate against passengers with disabilities in commercial air transportation. It struck a powerful blow for equality.

Before the Air Carrier Access Act was enacted, the airlines’ treatment of blind passengers varied greatly as different airlines had different procedures, and even a single airline might have its procedures interpreted in different ways by its employees. This made travel unpredictable for people with disabilities. Further, there were reports of airline personnel making erroneous assumptions about the condition of people with disabilities, some of which led to demeaning treatment. For example, there was a time when blind persons and other people with disabilities were required to sit on blankets. At that time, there were few specific regulations regarding the treatment of air travelers with disabilities that applied to commercial airlines.

We have made significant progress since then. Thanks to the Air Carrier Access Act, we have established regulations that require commercial airlines to provide guide assistance to blind persons at airports. It also requires airlines to allow passengers with disabilities to transport canes and other assistive devices in the passenger cabin close to their seat, consistent with safety requirements. Airlines must also provide blind passengers timely access to the same information given to other passengers at the airport or the airline, such as flight delays or gate assignments. Airlines may not charge for providing accommodations required by the Air Carrier Access Act regulation such as both services I mentioned. Airlines cannot count an assistive device against carry-on baggage totals allowed for individuals. In addition, the regulations require training on the Air Carrier Access Act for all public contact employees and contractors. And carriers must make available what is called a complaint resolution official or a CRO to respond to complaints from passengers with disabilities. Further, today airlines’ websites and airport kiosks must be accessible to people with disabilities. [applause]

Now, these are good regulations. They make a difference. Still, airlines receive thousands of disability-related air travel complaints each year. In calendar year 2004, the first year for this required report, US airlines reported receiving 10,193 disability-related air travel complaints. The number of disability complaints that airlines receive each year continues to increase. In calendar year 2016, the most recent year of data that is publicly available, US airlines reported receiving 27,842 such complaints. Now, if you’re going to include foreign air carriers with that, that would be over 32,000 complaints. The top disability complaint areas in 2016 were: 1) wheelchair and guide assistance issues; 2) stowage, loss, damage, and delay of assistive devices; 3) seating accommodations; and 4) service animal issues. This is consistent with what we have seen in prior years.

Now the fact that airlines receive thousands of complaints each year, or the increase in complaints year after year, may lead some to think that the experience of air travelers with disabilities, including blind persons, is as bad or worse than it was in the past. I don’t believe that to be the case. There are more individuals with disabilities flying today than ever before. Also, individuals with disabilities have a better understanding of their rights, which makes it more likely that complaints will be filed against airlines when airlines fail to provide accessible air transportation as required.

At DOT we place great emphasis on public education as a means of ensuring passengers and carriers know their rights and responsibilities. For example, we recently redesigned our website to allow air travelers to quickly and easily access information about their rights as passengers. The redesigned website highlights content on topics of greatest concern to consumers, including flying with a disability. It also makes it easier to file a complaint. In addition, in 2017 we were able to release a series of informative training materials that target the top four disability complaint areas. We worked with stakeholders from the disability community, including the National Federation of the Blind, and the aviation industry to develop interactive and informative training materials that target the top four disability complaint areas. The informational materials that were developed include videos, interactive guides, and downloadable brochures that can be printed or viewed on a mobile device. These materials are also available on our website and can be used to assist individuals with disabilities and to supplement the training and education of airline employees and contractors.

Although the increased complaints may not be indicative of a worsening situation for air travelers with disabilities, the complaints do tell us that our work is not yet done. There is more that needs to be done to achieve our goal of accessible air transportation. This includes, when appropriate, taking enforcement action against airlines. Generally speaking, my office pursues enforcement action against airlines on the basis of a number of complaints on which we may infer a pattern or practice of discrimination, or where we find evidence of a particularly egregious violation of the law. For instance, in 2017 we issued an order against a US airline for a series of errors in the handling of seating arrangement for a military veteran who attempted to travel on a flight with his service animal. We found this series of errors reflected lapses in training and led to significant travel complications and frustration for the passenger. We directed the airline to provide supplemental training to its reservation agents and gate agents about the proper handling of service animal requests.

Over the past ten years DOT has issued more than thirty orders, wholly or partially involving violations of the Air Carrier Access Act and its implementing regulations and assessed over nine million dollars in civil penalties against airlines for those violations. Because fines that are assessed against airlines for consent orders are payable to the federal government and not to consumers directly, when appropriate, we build into the orders that we negotiate credits for compensation that the airline pays directly to consumers who filed complaints. For example, in another case in 2017 where we assessed an airline $400,000 in civil penalties, the department provided a $36,000 credit for compensation that the airline agreed to provide to consumers who filed disability complaints with the airline during the time period that was covered by the order. We also sometimes include offsets for programs or technologies that airlines implement to improve the air travel experience for passengers with disabilities that go above and beyond the legal requirements. In addition, as part of our enforcement approach, we look for other innovative ways to increase accessibility for passengers with disabilities. For example, we’ve recently entered into landmark voluntary agreements with various airlines that self-disclosed to us their difficulties in complying with the department’s accessible kiosk rule. The department reached agreement with these airlines to not take enforcement action against them for their temporary non-compliance with the department’s rule that any airport kiosk that is installed be an accessible model until at least 25 percent of kiosks are accessible. In return, the airlines agreed to undertake measures to make air travel more accessible for persons with disabilities. This includes agreements that the airline will only install accessible kiosks in the future so that ultimately 100 percent of the airline’s kiosks will be accessible to passengers with disabilities. [applause] We have also entered into an agreement with an airline that self-reported its temporary non-compliance with the department’s website accessibility rule to not take action in return for the airline ensuring that its mobile website is also accessible, which is not required by law.

But we still have some other big challenges to tackle in the future. This includes addressing the inaccessibility of in-flight entertainment systems and the use of service animals onboard aircraft. In 2016 an access advisory committee was established to negotiate a proposed rule on several issues, including these two issues. The committee included representatives of airlines, persons with disabilities, and other interested parties. The NFB’s own Parnell Diggs was a very valuable member of that committee. [applause] The good news is that after seven months of negotiations the access advisory committee was able to reach consensus on accessibility of in-flight entertainment, an issue that has been unresolved for decades. As you know, airlines today generally do not provide in-flight entertainment with captioning or audio descriptions. Under this agreement, movies produced after a certain date and displayed on aircraft would be captioned to provide access to deaf and hard-of-hearing passengers and audio described to enable people who are blind to listen to a visual narration of movies and shows. [applause] Airlines would be permitted to display content that is not closed captioned or audio described only if uncaptioned or described versions are not available from the airline’s content provider. The access committee also established deadlines for airlines to ensure that any new seatback in-flight entertainment installed in new or existing aircraft are accessible and reached agreement on addressing aircraft that have inaccessible seatback IFE systems as well as installing software upgrades needed to ensure that the user interface to connect to the internet on aircraft is accessible. [applause]

The IFE agreement reached by the access advisory committee would need to be incorporated into a future DOT rule for it to be law. The department’s 2018 Spring Unified Agenda of Regulatory and Deregulatory Actions identifies a notice of proposed rulemaking on in-flight entertainment as a long-term action to be taken. DOT’s significant rulemaking report explains that the reason for the delay is related to the need for regulatory evaluation.

With regard to service animals, another issue that the access committee had been charged with negotiating, the committee was not able to reach agreement. DOT had charged the access advisory committee with determining the appropriate definition of a service animal and establishing safeguards to reduce the likelihood that passengers wishing to travel with their pets would be able to falsely claim that their pets are service animals. Although the access committee was unable to reach agreement, the committee has furnished helpful information to the department. After the termination of the access committee the department continued to hear from the transportation industry as well as individuals with disabilities that the current air carrier access regulation could be improved to ensure undiscriminatory access for individuals with disabilities while simultaneously preventing instances of fraud and ensuring consistency with other federal regulations.

In May 2018 the department issued an advanced notice of proposed rulemaking [ANPRM] seeking comment on amending its Air Carrier Access Act regulation on transportation of service animals. In the ANPRM the department solicits comments on numerous issues including: should the department continue to require the transport of emotional support animals, should there be limitations on species that airlines are required to transport, should there be limits on the number of service animals that passengers can carry, should passengers be required to provide documentation providing proof of vaccinations and/or attesting that the animal is properly trained? The comment period on the ANPRM closes tomorrow, Monday, July 9. I understand that the NFB has already submitted comments.

Given that the service animal issue is currently the subject of an open rulemaking, we had also issued an interim statement of enforcement priorities to inform airlines and the public of our intended enforcement focus with respect to the transportation of service animals in the cabin. We explained that our focus will be on clear violations of the current rule that have the potential to adversely impact the greatest number of persons. The comment period on the interim statement of priorities has closed, and a final statement of enforcement priorities will be issued in the near future.

In conclusion, I’m proud of the progress that we have made, and I am confident by continuing to work together with all of you that we can accomplish even more. [applause]