14 CFR Parts 382 and 399; 49 CFR Part 27 - Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports - Preamble

5. Other Issues—Federal Preemption

The SNPRM: In the preamble of the September 2011 SNPRM, we stated that States are already preempted from regulating in the area of disability civil rights in air transportation under the Airline Deregulation Act, 49 U.S.C. 41713 and the ACAA, 49 U.S.C. 41705.

Comments: In their comments on this rulemaking, NFB and NCIL both urged the Department to rectify what they viewed as erroneous holdings in two recent court cases alleging that inaccessible airline kiosks and Web sites constitute disability discrimination under State law. ⁽⁴⁷⁾ In both cases, the court granted the defendant airlines' motions to dismiss, concluding that Plaintiffs' State-based claims alleging disability discrimination in air transportation were preempted by the ACAA and the Airline Deregulation Act. ⁽⁴⁸⁾ Specifically NFB and NCIL asked the Department to use agency discretion to grant passengers with disabilities, who are protected against disability discrimination under the ACAA regulations, additional protection under other laws, such as the State laws at issue in the litigation, by including a saving clause in Part 382. ⁽⁴⁹⁾

As background, we note that in the case filed by NFB in the United States District Court for the Northern District of California, the Department of Justice filed a Statement of Interest By the United States reflecting the views of the Department of Transportation in support of United's motion to dismiss. The statement made three central arguments supporting Federal preemption of NFB's state claims: (1) Airline kiosks constitute a service that falls within the preemption provision of the Airline Deregulation Act; (2) the ACAA rules apply pervasively not only to disability discrimination in aviation generally, but also to the accessibility of airline kiosks specifically; and (3) applying a State remedy to NFB's discrimination claims would have the broad effect of undermining the purpose behind the ACAA regulations. The court agreed with the views of the United States, finding that NFB's claims were preempted under both the Airline Deregulation Act and the ACAA. ⁽⁵⁰⁾

JetBlue's dismissal motion subsequently adopted the preemption arguments made in the Statement of Interest By the United States submitted in the United case, asserting that these views represented the agency judgment of the Department of Transportation. ⁽⁵¹⁾ The court did not agree with JetBlue's argument that Web sites and kiosks are “services” affecting economic deregulation or competition intended to fall within the scope of the Airline Deregulation Act and found that the plaintiffs' State law claims were not preempted by the Act. The court agreed, however, with JetBlue's arguments that DOT's ACAA regulations occupy the field of disability non-discrimination in aviation and preempt State law. Citing provisions in DOT's 2008 final ACAA rule requiring airlines to provide interim accommodations and its intent stated in the rule's preamble for further rulemaking on inaccessible kiosks and Web sites, the court held that the ACAA regulations specifically preempt the field of airline kiosk and Web site accessibility “so as to justify the inference that Congress intended to exclude state law discrimination claims relating to these amenities.”  ⁽⁵²⁾

The Plaintiffs in both cases appealed the decisions to the Court of Appeals for the Ninth Circuit. In the NFB case, the United States filed an amicus curiae brief and reiterated its arguments that NFB's claims were both field and conflict preempted by the ACAA and expressly preempted by the Airline Deregulation Act. ⁽⁵³⁾ The case was argued on November 8, 2012. However, the Court vacated submission of the case and will delay its decision pending a decision by the Supreme Court in Northwest, Inc. et .al. v. Ginsberg, 695 F.3d 873 (9th Cir. 2012), cert. granted, —S. Ct. —, 2013 WL 2149802 (May 20, 2013) (No. 12-462). ⁽⁵⁴⁾ The parties in the JetBlue case filed an unopposed motion to stay proceedings pending the court's decision in the NFB case, and the Court granted that motion on September 22, 2011. ⁽⁵⁵⁾

Notwithstanding the United States' position and the district courts' holdings of Federal field preemption under the ACAA in both cases, in its comments on this rulemaking, NCIL pointed to statements in the Congressional record that the ACAA was enacted to ensure that airlines eliminate all discriminatory restrictions on air travel by persons with disabilities not related to safety. ⁽⁵⁶⁾ They asserted that these statements concerning the ACAA are evidence that “. . . a saving[s] clause permitting the operation of more protective state laws [was] squarely contemplated by Congress and should be preserved with a saving[s] clause.”

DOT Decision: The Department fully concurs with NCIL and NFB that the ACAA was enacted to eliminate discriminatory restrictions by airlines on air transportation for people with disabilities. We continue to strongly disagree, however, with the notions that Congress intended State and local disability non-discrimination laws applied to aviation to be exempt from preemption under the Airline Deregulation Act or to operate concurrently with the ACAA. As we outlined in the Statement of Interest discussed above, the Department believes that the concurrent operation of State and local laws would undermine certain central goals of both the ACAA and the Airline Deregulation Act.

We believe that the detrimental impacts resulting from the concurrent operation of State/local disability non-discrimination laws on passengers with disabilities and on air transportation overall are serious and foreseeable. The saving clause advocated by NCIL and NFB would subject airlines to non-discrimination requirements in scores of State and local jurisdictions. Aside from the burden of complying with a patchwork of State and local disability regulations on airline economic activity and competition, passengers with disabilities would again be subject to inconsistency and uncertainty regarding the accommodations they can expect in air travel. Congress intended that the ACAA regulations apply accessibility requirements and compliance deadlines to covered airlines uniformly. The goal was to ensure that passengers with disabilities would consistently receive the same accommodations wherever their air transportation is subject to U.S. law. This outcome has largely come about today due to airlines throughout the U.S. market being freed to focus their resources on meeting a single regulatory and enforcement scheme for ensuring accessibility. Carriers have not had to scatter their resources training employees to meet varying regulatory requirements for each State in which the carrier operates. It is our view that Congress sought to avoid these foreseeable adverse effects and intended the ACAA regulation to occupy the legal field in this area in order to maximize accessibility across the entire air transportation market to which the ACAA applies. Therefore, we believe the public interest will be best served by not adding a saving provision to Part 382.