Access Board Issues Advance Notice of Proposed Rulemaking on Touchscreen Devices in Commercial Settings

On September 21, 2022, the U.S. Architectural and Transportation Barriers Compliance Board (Access Board) issued an Advance Notice of Proposed Rulemaking (ANPRM) as the first step in a process toward establishing regulations that would create scoping and technical standards for a wide variety of touchscreen devices in commercial applications.

Self-service checkout, ordering devices, check-in devices, payment and information kiosks, and interactive devices of all kinds that use touchscreens may face regulation once the anticipated rule is adopted, first by the Access Board and then by the U.S. Department of Justice (DOJ). With the increasing presence of screens in all types of commercial applications, the anticipated regulation has the potential for enormous impact in the commercial world.

Until now, the existing DOJ regulation has covered only automatic teller machines (ATMs) and fare machines for purchasing ticketing for travel. Devices covered by the existing regulation (Americans with Disabilities Act [ADA] Accessibility Standard 707) require speech output, tactile numeric pinpads, and headphone jacks so that the speech output can be heard privately. Applying these requirements to all or most (or even some) touchscreen devices in commercial applications would involve a massive change and capital investment for many businesses.

The ANPRM seeks comments from the public and all interested constituencies on or before November 21, 2022. More specifically, the ANPRM asks for comment in response to nine questions, paraphrased here:

• The Access Board intends to cover devices built for “unattended operation by customers”—are there capabilities, functions, or other objective criteria that should define what devices are covered?
• What other types of devices should be covered?
• What types of devices should be exempted?
• Should the proposed rule require that each device be accessible, or a certain number of devices in each location be accessible?
• The Access Board intends to use the ATM and fare machine standards as a model extending to other devices. Should the Access Board do so?
• Should requirements for ATMs and fare machines be updated to meet current technology standards?
• What are the benefits and costs of manufacturing and using accessible devices?
• What should the Access Board consider to minimize adverse economic impact on small businesses, small nonprofits, and other entities that would otherwise be covered?
• Should self-service transaction machines and self-service kiosks that accept credit and debits cards be required to accept contactless payments systems?

The questions themselves are quite revealing, indicating that the Access Board is looking to take what would be the radical step of requiring full and independent accessibility for a broad group of touchscreen devices. Those businesses looking for exemption for themselves or for some or all of their devices may need to make a persuasive case for any such exemption.

Notably, in a positive development for businesses, the Access Board’s first question states that the Board is trying to reach unattended transactions, meaning that the offer of employee assistance should be considered by the Board in whether a touchscreen device will need to match ATM or other standards.

Of more concern to the business community, the ANPRM does not acknowledge that the types of user-business communication permitted by an ATM pinpad or by airline kiosks is really quite limited. The multiple commercial uses of touchscreens today would require more than what one would convey in a numeric ATM pinpad. Therefore, simply requiring all touchscreen devices to attach to an ATM pinpad would not permit users the same opportunities to share information for most commercial uses.

Nor does the ANPRM recognize what all businesses know—namely, that even the most technologically advanced device will not be accessible to some people with disabilities, especially those who will not have familiarity with using certain types of technology, or for that matter, with understanding Braille as currently required under the ADA accessibility standards. Employee assistance will always be necessary, and businesses should be free to choose how they deliver their goods and services to the public. The “effective communication” regulation, 28 C.F.R. § 36.303(c)(1), on which this rulemaking is based, explicitly permits businesses to choose their preferred method of communication, not necessarily the method most preferred by their guests with disabilities.

With the Access Board also calling into question the efficacy of long-standing standards used in the banking and transportation sectors, businesses in those industries may want to address why the current standards should not be updated, which could require redesign, replacement, or modification of existing devices that have met standards since their promulgation in 1991.

In short, businesses and trade associations of all types may want to use the opportunity presented to provide comments in response to the Access Board’s questions on or before November 21, 2022.

Ogletree Deakins’ Disability Access Practice Group will continue to monitor and report on developments with respect to the Access Board’s touchscreen devices ANPRM and will post updates on the firm’s Disability Access blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.