“U.S. Department of Justice Issues Guidelines for Website Accessibility — What This Means for Public Radio Stations”

In mid March, the U.S. Department of Justice released its first guidelines for website accessibility and Title III of the Americans with Disabilities Act (ADA). The Department said in a press release, the guidance is needed because of the lack of clear standards and differing court opinions on the issue.

“We have heard the calls from the public on the need for more guidance on web accessibility, said Kristen Clarke, assistant attorney general for the DOJ’s Civil Rights Division.. “The guidance is timely because our economy and society [have] become increasingly digitized.”

You can see the entire DOJ guidance document here https://beta.ada.gov/web-guidance/

Please note: The DOJ guidance document,and this article, pertain only to the accessibility of websites as seen on computers. The General Services Administration (GSA) is responsible for the accessibility of Apps and mobile devices.

Though the DOJ guidance lacks enforcement provisions, it does verify that ADA rules do apply to website accessibility.

The DOJ guidance keeps in place the understanding that website owners are responsible for the accessibility of their websites.

There currently are no federal regulations regarding website accessibility. This leaves lots of legal wiggle room for plaintiffs to continue filing lawsuits.

Defending accessibility suits can be expensive for public radio station operators. A class action suit might require a station to retrofit or replace a website. If monetary penalties are ordered, most public radio stations will feel financial pain.

From my own experience, most people who file website accessibility lawsuits are genuine and truthful. But “scratch and win” lawyers have been known to recruit plaintiffs. Even if they don’t win, filers hope to settle out of court.

This scenario has already happened in public radio. On October 11, 2018, NPR was sued in the Southern District of New York by Phillip Sullivan Jr., then living in New York, on behalf of “deaf and hard-of-hearing individuals in New York State and across the country.”

In the class-action suit, Sullivan accused NPR of “systemic civil rights violations against deaf and hard-of-hearing individuals.” The suit claimed NPR has “failed to design, construct and/or own or operate a website that is fully accessible” because there were no captions that accompany videos posted on NPR websites.

According to a report published by Inside Radio on October 18, 2018, Sullivan said “While NPR provides a ‘wide array of goods and services to the public through the website…contains access barriers that make it “impossible for deaf and hard-of-hearing users to comprehend the audio portion of videos. As a result, NPR unfairly excludes these users “from the full and equal participation in the growing Internet economy.”

Sullivan asked the court for “declaratory and injunctive relief, to pay for expenses and attorney fees to correct NPR’s policies and practices, and to ensure compliance with federal and state law. Sullivan’s suit also demanded that NPR “take all the steps necessary” to be compliant with ADA requirements.”

Sullivan’s suit was settled out of court on December 5, 2018. According to court records, no money exchanged hands. NPR agreed to take steps within thirty days to make certain that NPR’s websites are compliant with WCAG.

We asked Isabel Lara, NPR’s Chief Communications, for more information about the settlement. Lara told us the terms of the settlement are confidential.

INTRODUCING BRIGHTSPOT

In September 2019 the Corporation for Public Broadcasting (CPB) awarded a three year $6,985,000 grant to NPR to build a Content Management System (CMS) on behalf of public radio and PBS television stations.

To get the project started, CPB organized the Digital Infrastructure Group (“DIG”) lead by Bob Kempf, Vice President of Digital Services at WGBH. Members included leaders from NPR, PBS, WGBH and KQED in San Francisco.

At the urging of Kempf, DIG hired Brightspot to build and maintain the new CMS. This led to NPR’s creation of Grove in 2019. Grove replaced Core Publisher, for building station websites.

Brightspot, formerly known as Perfect Sense, is a software development company based in Reston, Virginia. It specializes in creating and maintaining content management systems, digital asset management and website design. According to growjo.com, the company’s revenue in 2021 was estimated to be $33.8 million. Major clients include Walmart, Sotheby’s, U.S. News and World Report and National Geographic.

According to NPR, the purpose of the new Brightspot CMS was/is to unify website publishing across all public media content producers, stations and the NPR newsroom. The guiding principle was/is “We’ve got your website covered, so get busy creating content.”

Many station managers like this approach because it saves time and money. Around half of the NPR member station websites we observed for this article use their sites as a place to access streaming audio and provide links to local news stories. One station manager told me “If Grove wasn’t available, we wouldn’t even have a website.”

However, this “set it and forget it” logic provides little for people with vision impairments. The end user, the people who visit the sites, are not Brightspot’s primary customers.

Brightspot says in its promotional material, “Brightspot’s purposeful partnership approach puts customer success before everything else.”

In this case, Brightspot’s customers are CPB, NPR and member stations, not the people who visit and try to use the sites.

According to NPR, over 200 public radio stations are now using Brightspot’s “cookie cutter” template to build their stations websites. Unfortunately, these stations may be at risk of lawsuits from people and/or organizations that advocate for the rights of people with vision impairments.

Websites reflect a station’s brand. If a website is not easy to use, legible and accessible, it diminishes the value of the brand.

We contacted NPR and Brightspot to learn if they believe their websites are accessible and will withstand accessibility litigation. The replies we received were incomplete and dismissive:

Isabel Lara, NPR’s Chief Communications Officer, said in an email:

It is NPR’s public service mission to inform the American public, so it is an important goal for us to make our content available to as many people as possible.

Many of your questions touch upon proprietary or confidential information, so while we support your objectives to write about accessibility in the public media system, we are unable to share information that provides legal advice or discloses the terms of a confidential agreement with Brightspot.

However, that content management system, which is or soon will be used by over 200 stations, generally meets the standards for WCAG 2.0, including screen-reader compatibility and browser zoom functionality.

Marcy Massura, Chief Marketing Officer at Brightspot issued a statement that said:

Brightspot’s Content Management System and our own public websites are designed to be compatible with, and are regularly tested against, WCAG 2.0 guidelines. Brightspot works with our customers to ensure that their sites meet their accessibility goals. We have experience with WCAG, USWDS, EAA, and other regulations.

In other words, NPR and Brightspot claim their websites are fully accessible because they statistically satisfy the Web Content Accessibility Guidelines (WCAG).

But, mechanical testing does not include the experiences of actual website users. This type of assessment is only available from observation, interviews and interacting with people.

Observational testing is done by watching people while they use a website. Interviews can provide important information about problems with navigating the site.

Mechanical testing and human observation work best in tandem.

Mechanical testing can help identify website factors that need a closer look. Flaws are corrected or replaced.

Observational testing provides contextual information from users.

It appears that NPR and Brightspot are ignoring the experiences of actual site users when they claim their website templates are accessible.

Mechanical testing is done using an Accessibility Evaluation Tool. The Tool uses an algorithm-based system that compares stats for the websites with Web Content Accessibility Guidelines (WCAG). WCAG is administrated by the World Wide Web Consortium, a working group that establishes international standards for website accessibility.

Keep in mind that WCAG advisories are voluntary guidelines that change periodically. They are not rules.

CASE STUDY: WAMC.org

You can see what an Accessibility Evaluation Tool does by visiting WAVE [link], a free service provided by WebMD. To use WAVE simply put the url for a website into the search line. Press “Go.” In a moment you will see the accessibility stats for the website.

We decided to demonstrate WCAG’s mechanical testing by using the WAVE Accessibility Evaluation Tool to test the website owned by WAMC in Albany, New York. Like 200 other NPR news stations, WAMC’s website was built using Brightspot’s template. We tested WAMC’s home page and two sub pages.

We entered “wamc.org” into the WAVE search line and In less than a minute we saw the accessibility scores arranged in six categories. We tested WAMC’s home page and two sub pages that people are likely visit: Program Schedule and News. Results for all three webpages are shown in the summary chart below.

The WAVE test showed several errors that could cause concerns about the accessibility of WAMC’s web pages for users with vision impairments.

• Text on WAMC’s homepage falls below WCAG AA standards.

• The heading at the top of the home page is poorly structured and may confuse visually impaired users.

• The home page does not inform users of accessibility options that may be available.

• The WAVE test found several accessibility errors on the Program Schedule page. The text within the schedule grid is too small, the grid lacks clear demarcation and the contrast ratio is below WCAG specifications.

• The WAVE test found numerous problems with contrast between text and images on News page.

Are WAMC’s accessibility issues serious enough to cause a lawsuit?

Probably not, but there still is some risk of litigation. All it takes is one person who can’t access what they want on WAMC’s website. If that person is motivated and finds a willing attorney, lawsuits will follow.

OBSERVATIONS FROM ME, A PERSON WITH LOW VISION

NPR and Brightspot’s claim that their websites are totally accessible is based solely on the results of mechanical testing. This is a fig leaf used to deflect complaints from people who say a station’s website is not accessible. We saw no evidence that NPR or Brightspot ever tested the website template with actual people.

NPR and Brightspot’s marketing philosophy — “We’ve got your website covered, so get busy creating content” — ignores the fact that the content on websites is important because it reflects the station’s brand and mission.

Let’s use WAMC’s website as a an example:

WAMC’s itty-bitty logo is hard to find. The clutter around the logo causes difficulties navigating the page. Out of sight means out of mind.

Websites built on the Brightspot template make the stations look like a NPR franchise. There is little “sense of place” or unique local identity.

Overall, websites built on this template are unwelcoming, cold and rigid. These websites don’t signal an inclusive attitude or a human presence.

For seven million CPB dollars, public broadcasters should expect websites that are accessible and reflect the station’s value in the community.

In my opinion, what we are seeing is a clash of priorities and cultures between NPR and Brightspot. Brightspot seems to do its best work for clients such as Walmart. Public broadcasting is a human endeavor.

WXPN has a slogan that aptly describes the situation: Rhythms not algorithms.

Public broadcasting is about rhythms; Brightspot is about algorithms. CPB should insist that NPR and Brightspot provide a new station website template that is evaluated by actual users, is fully accessible and is in harmony with public broadcasting.

ABOUT KEN MILLS

Ken Mills has worked in public radio for thirty years. He is now an independent consultant, specializing in nationally syndicated programming. He is also a blogger and advocate for the rights of people with visual impairments. Here is a statement he wrote in 2021 about his experiences with low vision:

“When I lost most of my vision in July 2020, I wasn’t prepared for the impact on my work and life. Since then, thanks to my friends at the Minnesota Lab for Low Vision at the University of Minnesota, I have been learning to cope with my “low vision.”

“Low vision has been a fact of life since the first humans walked on earth. More recently, it has been defined. In 1972, the World Health Organization (WHO) coined the term low vision. A persons Visual acuity is determined by using a standard eye chart. If someone’s vision is between 20/60 and 20/200, they have low vision. My own visual acuity is 20/70.”

“I am not alone. Over twenty million Americans also have low vision. Though vision impairments are most often related to age, it has been observed in people of all ages.