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Re: Judgement in the SouthWest case.

From: Madeleine Rothberg <madeleine_rothberg@wgbh.org>
Date: 22 Oct 2002 14:30:27 -0400
Message-ID: <-1176825472madeleine_rothberg@wgbh.org>
To: <w3c-wai-ig@w3.org>

Thank you to John for re-posting the Southwest decision. Even some of us who can see pretty well would rather not wait for the PDF to download!

Deep in the endnotes I found a paragraph in which the judge addresses the recent MARTA case which went the other way, but ascribes the difference to Title II of the ADA (public services) as opposed to Title III (commercial/non-governmental services). This suggests that websites of all state and local governments and public services of that sort could be covered byt the ADA, but not businesses. There is also some discussion of the fact that this court does not agree with the other Circuit court that held that telephone services are included.

Quote from endnote 9 on Title II versus Title III:
Finally, Plaintiffs cite the recent unpublished opinion in Vincent Martin et al. v. Metro. Atlanta Rapid Transit Authority, No. 1:01-CV-3255-TWT (N.D. Ga. Oct. 7, 2002), in which U.S. District Jadge Thomas W. Thrash, Jr. held that until the Metropolitan Atlanta Rapid Transit Authority ("MARTA") reformats its lnternet website in such a way that it can be read by visually impaired persons using screen readers, MARTA is "violating the ADA mandate of making adequate communications capacity available, through accessible formats and technology, to enable users to obtain information and schedule service.'" Vincent Martin et al. v. Metro. Atlanta Rapid Transit Authoritv, No. 1:01-CV-3255-TWT, at 34 (N.D. Ga. Oct. 7, 2002) (quoting 49 C.F.R.  37.167(f)). That case, however, is distinguishable in one critical respect: Plaintiffs in Vincent Martin filed suit under both the Rehabilitation Act of 1973, as amended, 29 U.S.C.  794 et seq., and Title II of the ADA, 42 U.S.C.  12132, not Title III as in the present case.Title II prohibits qualified individuals from being "excluded frorn participation in or [being] denied the benefits of the services, programs, or activities of a public entity, or [being] subjected to discrimination by any such entity." 42 U.S.C.  12132. Title II of thc ADA defines "public entity" as "(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority...." 42 U.S.C.  12131. Because the present case deals with Title III, not Title II of the ADA, and Plaintiff's could not allege any facts that would place Southwest within the definition of a "public entity" under Title ll, Vincent Martin is inapplicable.

-Madeleine (I am not a lawyer) Rothberg

On Tuesday, October 22, 2002, Martin Sloan <martin.sloan@orange.net> wrote:

Having just read through the judgment in the Southwest Airlines case, 
the grounds of the decision seem most bizarre. The judgment in Carparts 
(the case that said the ADA applied to mail order and telephone based 
operations) was based on sound reasoning and was clearly analogous to 
the Net. However, this has now been distinguished on most spurious 
reasoning - that Southwest's Website does not give access to a physical 
building and is located in cyberspace.

Effectively, if I have read page 11 correctly this District Court has 
now said that the internet is completely above the law:
"..the Supreme Court and the Eleventh Circuit have both recognised that 
the Internet is 'a unique medium-known to its users as 'cyberspace'--
located in no particular geographical location but available to anyone, 
anywhere in the world, with access to the Internet'.Thus because the 
Internet Website, southwest.com, does not exist in any particular 
geographical location, Plaintiffs are unable to demonstrate that 
Southwest's website impedes their access to a specific, physical, 
concrete space such as a particular airline ticket counter or travel 

I'm sure Napster's lawyers are wishing that their case had been brought 
before Patricia A Seitz..

Just my thoughts

Martin Sloan
e: martin.sloan@orange.net

----- Original Message -----
from: tina@elfi.org
date: Monday, October 21, 2002 8:45 pm
subject: Judgement in the SouthWest case.

> It would seem that the Judge has passed ... a judgement in the
> SouthWest airlines cases. The story can be found at:
>    http://news.com.com/2100-1023-962761.html
> It is ... disappointing, but perhaps not entirely surprising. It 
> seems, to me, after a first reading - note the last paragraph - 
> that there is
> a distinct lack of understanding prevalent.
> At this moment in time I admit, though it is emotional, that I am not
> entirely certain what - if anything - CAN be done to improve
> accessibility.
> -- 
> Tina Holmboe           [Windrose@DALnet] [tina@elfi.org] 
> [tina@htmlhelp.com]
> $_ = <<'-- '; s/../pack("c",hex($&))/eg; eval;
> 7072696e7420224a75737420616e6f74686572205065726c206861636b65722c22
> -- 
Received on Tuesday, 22 October 2002 14:30:57 UTC

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