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Congress Considers New ADA Section to Regulate Consumer-Facing Websites, Mobile Applications

October 08, 2020

Congressmen Ted Budd (R-NC) and Lou Correa (D-CA) introduced the Online Accessibility Act to the US House of Representatives on October 2, 2020. If enacted, the bill would create a technical standard for website/mobile application accessibility and require plaintiffs to exhaust administrative remedies before bringing suit against businesses for violations of the bill’s accessibility standard.

The proposed legislation would carve out a new section in the Americans with Disabilities Act (ADA) dedicated entirely to consumer-facing websites (defined as “any website that is purposefully made accessible to the public for commercial purposes”) and mobile applications (defined as “a consumer facing software application that can be executed on a mobile platform, or a web-based software application that is tailored to a mobile platform but is executed on a server”). The new ADA section would adopt Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA as the minimum standard for website and mobile application accessibility.

Under the proposed legislation, businesses would need to ensure their websites and mobile applications are in substantial compliance with this new standard, or any update, revision, or replacement to the standard published by the World Wide Web Consortium or successor organization. Alternatively, the bill allows businesses to provide an alternative means of access “that is equivalent to access the content available” on the website or mobile application, but the bill does not indicate what might qualify as an “alternative means of access.” Regulations established under this bill, if enacted, are to “include flexibility for small business concerns” to comply with the new standard.

The proposed legislation directs the Architectural and Transportation Barriers Compliance Board to periodically review and—when appropriate—amend the new standard required for website and mobile application accessibility. The bill also directs the US attorney general to establish a procedure for receiving and investigating complaints filed under the new standard, and requires plaintiffs to exhaust administrative remedies before bringing private suit. The administrative remedy process includes providing notice to the owner/operator of the noncompliant website or mobile application, allowing 90 days for it to come into compliance, filing a complaint with the US Department of Justice, and allowing 180 days for a final agency determination.

The bill also directs the attorney general to periodically review consumer-facing websites and mobile applications for compliance, and allows the attorney general to commence a civil action for certain violations of the proposed legislation. Civil penalties may include $20,000 for a first violation and $50,000 for subsequent violations.

We will continue to monitor developments on this legislation.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Kathy H. Gao

Miami
Anne Marie Estevez

New York
Douglas T. Schwarz

Pittsburgh
Christopher K. Ramsey

Washington, DC
Stephanie Schuster