Led by student attorneys Sebastian Blitt, Madeline Finlayson, and Sarah Misché, the TLPC filed an amicus brief in the U.S. Court of Appeals for the D.C. Circuit on behalf of organizations dedicated to advancing and promoting accessibility for people with disabilities. The brief, filed on April 3rd in the case Public.Resource.Org, Inc. v. Federal Communications Commission, involves a challenge to a rulemaking by the FCC, arguing that its practice of incorporation by reference failed to make the standards “reasonably available.”
Incorporation by reference is the process by which federal agencies like the FCC adopt standards developed by private organizations into law. When agencies incorporate such standards by reference, the full text of the standards is not reproduced in the Federal Register—as with the text of the proposed regulations themselves. Rather, many of the standards must be purchased from the standard setting organizations (SSOs) that have adopted them directly. Alternatively, some SSOs host “reading rooms” where the text of the standards can be viewed in read-only format. A lawsuit brought by Public.Resource.Org (PRO) challenged the legality of these practices, claiming that they fail to meet the statutory requirement under the Administrative Procedures Act that standards incorporated by reference be “reasonably available” to the public.
TLPC’s brief on behalf of the American Foundation of the Blind and Prime Access Consulting presents the additional, and in some cases insurmountable, challenges that Americans who are blind or have low vision face in accessing standards which have been incorporated by reference. A report prepared by amicus Prime Access Consulting demonstrated that the reading rooms fail many website accessibility guidelines. Specifically, the reading rooms are challenging to navigate for users relying on assistive technologies, such as screen readers. Furthermore, the standards presented in the reading rooms are provided in inaccessible formats. Such barriers prevent Americans with a range of disabilities from participating in the rulemaking process, and even from knowing what the law is.
TLPC’s amicus brief argues that agencies must follow federal disability law and provide meaningful access to the rulemaking process. Section 504 of the Rehabilitation Act prohibits administrative agencies from excluding Americans with disabilities from their programs or activities, which includes rulemaking. Section 508 of the Rehabilitation Act requires administrative agencies to provide individuals with disabilities access to information that is comparable to what is enjoyed by members of the public without disabilities. Both sections are violated when Americans who are blind or have low vision are presented with significant barriers from accessing standards which have been incorporated by reference.
The amicus brief is available below this post. An addendum to the brief, which contains Prime Access Consulting’s report identifying the accessibility issues with the SSO websites, can be downloaded by clicking on this link.