Legal Issues with Getting Captioning in Airplanes and Airports

February 2010

Editor: I've often wondered why captions aren't required for airport and airplane announcements. Here's John Waldo with a great discussion of the topic. You can follow John's advocacy efforts at http://www.hearinglosslaw.com/

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Air transportation in general, and airport PA systems in particular, are a vexing problem with no easy solution.

Airports (in part) and airplanes are not subject to the ADA. Rather, they are subject to the Air Carrier Access Act. Unlike the ADA, the ACAA does not give a private individual the right to file a lawsuit to enforce access. The individual's only recourse is to file a complaint with the U.S. Department of Transportation.

Regulations governing air travel were extensively revised in 2008, and not surprisingly, those regulations, adopted by the Bush Transportation Department, were extremely carrier-friendly. DOT considered but rejected regulations that would require captioning of in-flight movies. DOT also rejected any requirement to caption boarding-gate announcements. Instead, we are to identify ourselves at the gate as people with a hearing loss, then airline personnel will contact us if there is anything we need to know.

The question arose early on about where ADA and state-law jurisdiction ends, and DOT/ACAA jurisdiction begins. The agency declared that its jurisdiction begins at the security gates. Everything behind the gates is subject to the ACAA, whereas everything in front of the gates is subject to ADA and state law.

This creates a very uneven access pattern. The San Francisco airport is a model of accessibility -- all pages and many other announcements are captioned and made visible on a large number of monitors. BUT -- and this is really important legally -- that is because SFO has a central paging and announcement system that is "outside the gates." At our airport in Seattle, though, virtually everything is done "behind the gates," by the individual airlines. Therefore, we can get the "no smoking in terminal" and "don't park here" announcements captioned, but virtually none of the other announcements.

DOT has never really explained why it claims jurisdiction at the security gates. Federal (rather than state or local) jurisdiction makes sense when there is a need for a uniform national rule. The argument for federal jurisdiction over the airplanes in flight makes a lot of sense -- you can't practically have a different set of rules whenever the airplane crosses a state line. But I see no need for uniform rules at the boarding gates -- as a practical matter, things are done somewhat differently at different airports anyway. To me, federal jurisdiction should begin not at the security gates, but at the jetways.

Very early in his term, President Obama issued an executive order telling all agencies to refrain from asserting federal jurisdiction without undertaking an extensive analysis of the need for doing so. I think if DOT undertook such an analysis, it might very well come to the conclusion that the jetway rather than the security gate is the place where federal interests begin to predominate.

I think this might be a worthwhile project for this group to undertake -- trying to persuade DOT to undertake that analysis. If DOT abrogated its claim to jurisdiction behind the gates, then we would have the opportunity to apply ADA-type standards to oral communications on the concourses and at the boarding gates.