May/June 2011

California District Court Holds Claims by Blind Individuals Involving Automated Check-In Kiosks Preempted

Holland & Knight Newsletter
Marc L. Antonecchia

The Northern District of California has been adjudicating whether United Airlines' use of a certain type of automated kiosk violates California's anti-discrimination statutes or whether such state law claims are impliedly preempted by the Air Carrier Access Act (ACAA) or expressly preempted by the Airline Deregulation Act (ADA).1 On April 25, 2011, the District Court issued an Order dismissing the claims on the basis that they are both impliedly and expressly preempted.2(This topic is discussed in prior issues of Centerline.3) Central to the court's analysis was the Statement of Interest that had been filed by the Department of Transportation (DOT), which supported United's position that the claims are preempted.4

Claims Impliedly Preempted Under the Air Carrier Access Act

With respect to implied preemption under the Air Carrier Access Act, the court found that DOT clearly intended for its regulations to have preemptive effect. The DOT 2008 Final Rule5 provides:

[a]s a carrier, if your automated kiosks in airport terminals cannot readily be used by a passenger with a disability for such functions as ticketing and obtaining boarding passes that the kiosks make available to other passengers, you must provide equivalent service to the passenger (e.g., by assistance from your personnel in using the kiosk or allowing the passenger to come to the front of the line at the check-in counter).

The stated purpose of the 2008 Final Rule is "to carry out the Air Carrier Access Act of 1986," which, in turn, DOT has stated "substantially, if not completely, occupies the field of nondiscrimination on the basis of handicap in air travel."

According to the court, the DOT regulation "effectively states that as long as disabled passengers are accorded equivalent service, they need not be given identical access to ticketing kiosks." The court was not persuaded by the plaintiffs' argument that the rule was merely an "interim" measure, finding that the DOT had considered and ultimately rejected a proposal that would have required fully accessible airport kiosks due to "cost and technical issues." Although the DOT may further consider the kiosk issue in a Notice of Proposed Rulemaking (NPRM) scheduled to be issued in September 2011,6 the force of the present regulation is not negated.

Claims Expressly Preempted Under the Airline Deregulation Act

The Airline Deregulation Act provides that a state may not enact or enforce a law "related to a price, route, or service of an air carrier," but does not expressly define the term "service." In finding express preemption, the District Court agreed with United that the Supreme Court's expansive definition of "service" in Rowe v. New Hampshire Motor Transport Association7 should control rather than the Ninth Circuit's more limited definition of "service" in Charas v. Trans World Airlines, Inc.8 The Rowe Court "necessarily defines 'service' to extend beyond prices, schedules, origins and destinations."9

By the plaintiffs’ own admission, airport kiosks assist passengers with a number of airline services, including access to flight information, check-in procedures, the printing of tickets and boarding passes, selection of seats, upgrading to business or first class, and checking baggage. As held by the court: "Because the kiosks plainly facilitate a number of different services that relate to air transportation, this order is duty bound to follow Rowe and to reject the Charas definition of 'service.'"

Accessibility to Automated Kiosks Will Be the Source of Continued Debate

The issues raised in this case are instructive because they are similar to those made in other discrimination claims involving individuals with disabilities. Indeed, the specific issues raised in the California case will continue to be discussed and litigated over the coming months. A separate lawsuit was filed in March 2011 in the District of Nevada against the operators of McCarran International Airport in Las Vegas in connection with the accessibility of common use self-service kiosks, which act as a portal to an airline's individual kiosk service. No airlines were named.10 The defendants have filed a motion to dismiss premised, in part, on the DOT 2008 Final Rule.

In the California litigation, the plaintiffs have filed a notice of appeal to the Ninth Circuit and briefing is scheduled to be completed in October 2011. The briefing will occur at around the time that DOT is publishing and soliciting comments for the NPRM that further considers the accessibility of automated kiosks operated by carriers at airports. The proposed rule is scheduled to be published in late September 2011 and the comment period is expected to be open until the end of November 2011.


1The National Federation of the Blind and three blind individuals commenced a class action on behalf of an asserted "Kiosk Class," alleging that United Airlines violated California's Unruh Civil Rights Act and Disabled Persons Act because it uses automated ticketing kiosks in California airports that are inaccessible to blind customers because they use visual computer screen prompts and touch-screen navigation without translating the prompts into a medium accessible to the blind, such as audio output.

2See Nat'l Fed'n of the Blind v. United Airlines, Inc., 2011 WL 1544524 (N.D. Cal. Apr. 25, 2011).

3See the February 2011 and March/April 2011 issues of Centerline.

4The Statement of Interest was filed on April 8, 2011, pursuant to the court's February 7, 2011 Order requesting the input of the United States and the Department of Transportation.

5 14 C.F.R. § 382.57.

6 See Report on DOT Significant Rulemakings, June 2011, #83.

7 552 U.S. 364 (2008). In Rowe, the Supreme Court construed a federal preemption provision (similar to the ADA's) governing the regulation of motor carriers.

8160 F.3d 1259 (9th Cir. 1998) ("service" refers to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail).

9 See Nat'l Fed'n of the Blind, 2011 WL 1544524, at *5 (quoting Hanni v. Am. Airlines, Inc., 2008 WL 1885794, at *6 (N.D. Cal. Apr. 25, 2008)).

10 See Nat'l Fed'n of the Blind v. Clark County, Nev., No. 2:11-cv-00474 (D. Nev.)

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