**MODEL COMMENTS**

**The International Association of Assembly Managers comments to the
Department of Justice ADA Notice of Proposed Rulemaking Issued June 17,
2008, *Federal Register,* Vol. 73, No.117.**

Please find enclosed comments and answers to specific questions from the
International Association of Assembly Managers, Inc. ("IAAM") in
response to the proposed new ADA regulations, by the Department of
Justice ("Department") issued in the *Federal Register* June 17, 2008,
Vol.73, No. 117. IAAM's membership includes approximately 3,800 managers
of stadiums, arenas, convention centers, amphitheaters and performing
arts centers ("facility managers"). The IAAM members operate facilities
across the United States that represent investments of billions of
dollars of public and private funds. These facilities attract hundreds
of millions of patrons each year to a variety of professional and
amateur events including, but not limited to, football, baseball, music
concerts, theatrical productions, annual conventions and tradeshows.
IAAM has concentrated on the proposed regulations and questions that
affect the public assembly facility industry. The below questions,
answers and comments are found in the order they are discussed in the
proposed regulations for Titles II and III. If the same question is in
both Titles II and III, please accept our answer for both Titles II and
III. The categories are as follows: General Questions, Ticketing,
Auxiliary Aids and Services, Small Business Exemption, Seating in
Assembly Areas and Standards for New Construction.

**General Questions**

*Question 1: The Department believes it would be useful to solicit input
from the public to inform us on the anticipated costs or benefits for
certain requirements. The Department therefore invites comment as to
what the actual costs and benefits would be for these eight existing
elements, in particular as applied to alterations, in compliance with
the proposed regulations (side reach, water closet clearances in single
user toilet rooms with in-swinging doors, stairs, elevators, location of
[accessible routes to stages]{.underline}, accessible attorney areas and
witness stands, [assistive listening systems,]{.underline} and
accessible teeing grounds, putting greens, and weather shelters at golf
courses), as well as additional practical benefits from these
requirements, which are often difficult to adequately monetize.* Answer
emphasis is on the above underlined words.

Answer to Question 1: IAAM members suggest that the location of
accessible routes to stages may be very difficult and costly during an
alteration. In many situations, parts of the existing seating bowl and
weight or load- bearing walls have to be removed and relocated for
enough space to accommodate a ramp to the stage. The permanent removal
of conventional seats is extremely costly to a facility, especially in
the long term. We suggest that this requirement should only apply to new
construction. Concerning assistive listening systems, many facilities
have commented that they use only one or two assistive listening devices
for each event. We suggest that the DOJ consider taking the issue of
scoping for the assistive listening devices back to the Access Board and
allow public assembly facilities to keep a record of the number of
devices that are used on an event by event basis. The facilities will
then plan accordingly and accommodate patrons. The blanket 2% scoping
requirement for assistive listening devices is costly, unnecessary and
unreasonable as a proposed regulation.

*Question 2: The Department would welcome comment on whether any of the
proposed standards for these eight areas (side reach, water closet
clearances in single-user toilet rooms with in-swinging doors, stairs,
elevators, location of [accessible routes to stages]{.underline},
accessible attorney areas and witness stands, [assistive listening
systems]{.underline}, and accessible teeing grounds, putting greens, and
weather shelters at golf courses) should be raised with the Access Board
for further consideration, in particular as applied to alterations*.
Answer emphasis is on the above underlined words.

Answer to Question 2: We suggest that the accessible route to stages and
the assistive listening systems scoping issues should be raised and
reconsidered by the Access Board pursuant to our comments to Question
No. 1.

*Question 3: The Department would welcome information from operators of
auditoriums on the likelihood that their auditoriums will be altered in
the next*

*fifteen years, and, if so, whether such alterations are likely to
include accessible and direct access to stages. In addition, the
Department would like specific information on whether, because of local
law or policy, auditorium operators are already providing a direct
accessible route to their stages. (The Department is also*

*interested in whether having to provide a direct access to the stage
would*

*encourage operators of auditoriums to postpone or cancel the alteration
of their facilities.) The Department also seeks information on possible
means of quantifying the benefits that accrue to persons with
disabilities from this proposed requirement or on its importance to
them. To the extent that such information cannot be quantified, the
Department welcomes examples of personal or anecdotal experience that
illustrate the value of this requirement*.

Answer to Question 3: As stated above, in many alterations, parts of the
existing seating bowl and weight or load- bearing walls have to be
removed and relocated for enough space to accommodate a ramp to the
stage. The permanent removal of conventional seats is extremely costly
to a facility, especially in the long term. Therefore, these comments
suggest that even though an existing facility is likely to alter part of
its facility within the next fifteen years, they will avoid the stage
area because of the substantial cost of an accessible route to stage
requirement. Once again, we suggest that this requirement should only
apply to new construction.

*Question 5: The Department seeks information from arena and assembly
area administrators on their experiences in managing ALS. In order to
evaluate the accuracy of the assumptions in the RIA relating to ALS
costs, the Department welcomes particular information on the life
expectancy of ALS equipment and the cost of ongoing maintenance*.

Answer to Question 5: As stated above, many facilities have commented
that they use only one or two assistive listening devices for each
event. We suggest that the DOJ consider taking the issue of scoping for
the assistive listening devices back to the Access Board and allow
public assembly facilities to keep a record of the number of devices
that are used on a regular basis. The facilities will then plan
accordingly and accommodate patrons. The 2% scoping requirement for
assistive listening devices is costly, unnecessary and unreasonable as a
proposed regulation. For example, a 5000 seat not --for profit assembly
area would be required to purchase 85 assistive listening devices with
twenty percent of them that are required to be hearing aid compatible.
These devices which are rarely used will cost the facility approximately
\$30,000.

*Question 8: Please comment on the proposed definition of other power
driven*

*mobility devices. Is the definition overly inclusive of power-driven
mobility devices that may be used by individuals with disabilities?*

Answer to Question 8: Please consider that a wheelchair space is a
specific size defined by the current ADAAG and cannot be changed in
assembly areas throughout the country. In order not to obstruct the view
of other patrons or to interfere with the existing space used by other
patrons, any power driven mobility device must have size limitations
that are based on the size and height limitations of a wheelchair space
in an assembly area.

*Question 10: Should the Department eliminate certain species from the
definition of ''service animal''? If so, please provide comment on the
Department's use of the phrase ''common domestic animal'' and on its
choice of which types of animals to exclude.*

Answer to Question 10: Yes, the Department should define what a service
animal is and provide examples in the final rule. This definition should
eliminate the abuses of the current regulation and provide the public
and the federal courts with more direction on these issues. We also
suggest that a service animal should have some type of certification
process to prevent fraud and abuse of the current regulation.

*Question 11: Should the Department impose a size or weight limitation
for common domestic animals, even if the animal satisfies the ''common
domestic*

*animal'' prong of the proposed definition?*

Answer to Question 11: Yes, we agree that the Department should impose a
size limitation on common domestic animals used as service animals and
that this issue should be reconsidered by the Access Board. In order to
permit other patrons to view the event without an obstruction or
interference, service animals must have size limitations that are based
on the size of a conventional seat that is occupied in an assembly area.
Hence, a certification process for service animals would eliminate
service animals that are too large or that do not comply with the
Department's definition of a service animal.

*Question 12: As explained above, the definition of ''wheelchair'' is
intended to*

*be tailored so that it includes many styles of traditional wheeled
mobility devices (e.g., wheelchairs and mobility scooters). Does the
definition appear to exclude some types of wheelchairs, mobility
scooters, or other traditional wheeled mobility devices? Please cite
specific examples if possible.*

Answer to Question 12: Please consider that a wheelchair space is a
specific size defined by the current ADAAG and cannot be changed in
assembly areas throughout the country. In order not to obstruct the view
of other patrons or to interfere with the existing space used by other
patrons, any power driven mobility device must have size limitations
that are based on the size and height limitations of a wheelchair space
in an assembly area.

*Question 13: Should the Department expand its definition of
''wheelchair'' to*

*include Segways?*

Answer to Question 13: We agree that the Department should
[not]{.underline} expand the definition of a wheelchair to include
Segways. The size and speed (up to 20 mph) of Segways create safety
concerns for facility managers. If Segways are used in assembly areas
they will interfere with patron sight lines and create operational
problems with storage and theft of the devices. Because Segways are
mostly used by non-disabled people, disability fraud will substantially
increase and every patron that owns a Segway will claim they are
disabled and will want to ride them in public assembly areas including
near the seating areas. The use of a Segway while consuming alcohol will
also create safety concerns for other patrons and the person using the
Segway.

**Section 35.302(f) Ticketing Questions**

\(f\) *Ticketing.* (1) *General.* A public accommodation shall modify
its policies, practices, or procedures to ensure that individuals with
disabilities can purchase tickets for accessible seating during the same
hours, through the same methods of distribution, and in the same types
and numbers of ticketing sales outlets, including telephone service,
in-person ticket sales at the facility, or third-party ticketing
services, as other patrons.

[Discussion of subparagraph (1).]{.underline}

The over-arching goal of this provision is correct, and we believe that
in most respects it is achievable.  However, the viability of this
provision as written will depend in part on the meaning of the phrase
"through the same methods of distribution," particularly in the context
of internet purchases. 

[Real-time internet purchases.]{.underline}  The most widely used
process for purchasing accessible seating tickets (and the one used, for
example, through Ticketmaster's website) is to enable the consumer to
request accessible seating tickets through the website, to complete the
transaction in real-time whenever possible, and where necessary to
complete the purchase through an email dialog between the consumer and
an e-care department.  This process provides the consumer maximum
flexibility in obtaining the appropriate tickets for disabled persons
and their companions.  Not only can the e-care staff pose or respond to
the questions and concerns that are often implicated in the purchase of
accessible seating tickets, but in some instances the staff can make
specific inquiries to the venue on the consumer's behalf in an effort to
provide the best possible ticket package under the circumstances.  The
trade-off is that the purchase cannot be completed in "real-time"
(although it is often completed within minutes of the consumer's initial
ticket request). 

If the intent of the proposed regulation is to mandate real-time
internet purchases, this flexibility and additional service will be
impossible, because the variables that often pertain to the purchase of
accessible seating tickets cannot be integrated into any real-time
purchase model.  Moreover, some of the other draft provisions discussed
later herein (such as increased flexibility in the purchase of companion
seating tickets) would pose significant additional challenges to any
introduction of a real-time purchase model.

Thus, if a process such as the one described above would satisfy the
requirement that accessible seating tickets be sold "through the same
methods of distribution," then the proposed regulation may well be
workable.  However, if the intent of this regulation is to require
strict real-time internet purchases, then internet ticketing
sites---leaving aside whether they are public accommodations under the
ADA and thus subject to the regulations---will not be able satisfy the
regulation, or at best could achieve real-time sales only by
significantly simplifying and restricting the sale of companion seats,
which would be contrary to the direction the Department would apparently
like to take as expressed in other proposed regulations.

[Vision-impaired consumers.]{.underline}  Another potential issue
regarding the phrase "through the same methods of distribution" relates
to the method of allowing web site users to select their seats through
an on-line seating chart.  Vision-impaired consumers use screen-readers
that can translate alt-text tags on a website into audible text.  This
system enables vision-impaired consumers to independently purchase
tickets online.  However, some websites enable users to select their
seats by reference to on-line seating charts, which cannot be translated
in any meaningful or useful sense by a screen reader into audible text
that would enable a vision-impaired person to evaluate the location of
the seats. 

Proposed subparagraph (3) (discussed in more detail below) appears to
envision more use of seating charts in ticket sales.  Thus, as websites
increasingly gravitate to a seating-chart model for online ticket sales,
the only way they will be able to maintain the ability of
vision-impaired consumers to independently purchase tickets online would
be to also provide a parallel method for purchasing tickets that does
not depend on a seating chart.  For example, Ticketmaster currently uses
a "best available" model that works effectively with screen readers for
vision-impaired consumers, and supports a "best available" model in
which users enter their personal venue seating area preferences.  (The
use of venue maps during the purchasing process also helps improve the
purchasing experience for persons with other forms of disabilities.) 
Such a tandem model---under which most consumers would use the seating
chart model, but vision-impaired consumers would likely use an
alternative model---should readily satisfy any requirement for making
tickets available "through the same methods of distribution."  However,
if the Department were to have a different view on that issue, then the
regulation as drafted could be unworkable.

In short, more clarity is necessary regarding the proposed requirement
of making tickets available "through the same methods of distribution"
before it is possible to accurately evaluate the viability of the
proposed regulation.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(2\) *Availability.* Tickets for accessible seating shall be made
available during all stages of ticket sales, including, but not limited
to, presales, promotions, lotteries, waitlists, and general sales.

[Discussion of subparagraph (2).]{.underline}

The viability of this provision as to third party ticket sellers (like
Ticketmaster), who can only sell what their clients allow them to sell,
would require certain safeguards.  In addition, it is important to
recognize that some portions of a ticket allocation for a particular
event may be purchased by or allotted to third parties (e.g., fan clubs,
credit card marketing promotions) not directly involved in the ticketing
business.  A promoter or fan club may elect not to allocate accessible
seating tickets to a third-party seller for some or all stages of a
ticket sale, including general ticket sales, presales, promotional
sales, etc.  Also, some presales may involve very small quantities of
tickets, and that the number of presales or promotions for a given show
may be numerous.  In such instances, requiring accessible seating to be
included in such promotions may have the unintended consequence of
materially reducing the number of accessible seats available during the
general on-sale.

Thus, we believe that insofar as event providers have valid reasons for
their inventory allocation decisions, there should be protections for
venues, promoters, fan clubs, etc. who elect not to allocate accessible
seating tickets to third-party ticket sellers.  Similarly, the proposed
regulation would need to include some type of protection for third party
ticket sellers whose ticket inventory is limited to whatever is
allocated by their clients. 

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(3\) *Identification of accessible seating.* Wheelchair seating and
companion seats shall be identified on seating maps, plans, brochures,
or other information provided to the general public to describe the
seating layout or configurations at an assembly area.

[Discussion of subparagraph (3).]{.underline}

It is worth noting, however, that insofar as some of the other proposed
regulations could impose a requirement on venues of dynamically
reclassifying seats or seating areas as accessible---for example, to
accommodate the effect of a resale of a general seating ticket to a
disabled person or vice versa---ticket-selling websites could encounter
significant challenges in maintaining seating charts that accurately
reflect the location of accessible seating for particular events. 
Similarly, insofar as other proposed regulations could change the number
and configuration of companion seats, ticket-selling websites could
encounter significant challenges in maintaining seating charts that
accurately reflect the location of companion seating for particular
events.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(4\) *Notification of accessible seating locations.* A public
accommodation that sells or distributes tickets for seating at assembly
areas shall, upon inquiry, inform spectators with disabilities and their
companions of the locations of all unsold or otherwise available
accessible seating for any ticketed event at the facility.

[Discussion of subparagraph (4).]{.underline}

We are not aware of any unique challenges that this proposed regulation
would pose.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

Comments to General Ticketing Provision: Facility and event managers
believe that the proposed ticketing regulations for accessible seating
will only increase the disability fraud from ticket brokers and others
that desire premium seats to resell in the secondary ticket market.

  \
\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(5\) *Sale of season tickets or other tickets for multiple events.*
Season tickets or other tickets sold on a multievent basis to
individuals with disabilities and their companions shall be sold under
the same terms and conditions as other tickets sold for the same series
of events. Spectators purchasing tickets for accessible seating

on a multi-event basis shall also be permitted to transfer tickets for
single event use by friends or associates in the same fashion and to the
same extent as permitted other spectators holding tickets for the same
type of ticketing plan.

The Department also posed the following questions in connection with
subparagraph (5):

Question 20: *If an individual resells a ticket for accessible seating
to someone who does not need accessible seating, should the secondary
purchaser be required to move if the space is needed for someone with a
disability?*

Question 21:  *Are there particular concerns about the obligation
imposed by the proposed rule, in which a public accommodation must
provide accessible seating, including a wheelchair space where needed,
to an individual with a disability who purchases an \`\`inaccessible\'\'
seat through the secondary market?*

[Discussion of subparagraph (5) and Questions 20 and 21.]{.underline}

Overview:  Because wheelchair spaces are limited in number and may vary
with the number of companion seats sold with each wheelchair seat
purchase, the public assembly facility needs to retain more operational
flexibility to accommodate wheelchair users and their companions.
Therefore, the facility or event manager should have the discretion
under the law to control the transfer of wheelchair seat tickets. Under
the new construction provisions, certain wheelchair seat tickets could
be sold with limited transfer restrictions.

As to the threshold issue of whether multi-event ticket packages must be
sold to disabled persons and their companions on the same terms as other
purchasers, we have no particular views or concerns.  Rather, our
concerns relate to the issue of transfers of accessible seating tickets
to persons who do not need accessible seating tickets, and vice versa. 
This proposal could present enormous problems and challenges for ticket
sellers and venues alike.

We note preliminarily that it is not entirely clear whether the
Department is intending for subparagraph (5) to address transfers of
tickets other than the transfer to "friends and associates" of tickets
from a multi-event package for an individual event.  On its face,
subparagraph (5) appears to be limited to that context, yet Question 20
uses the phrase "resell" rather than transfer.  Thus, it is unclear
whether, in the context of subparagraph (5), the Department is
envisioning resales of such tickets in a secondary market in addition to
informal transfers of tickets to friends and associates.  In addition,
although subparagraph (5) only mentions a transfer of an accessible
seating tickets to someone who does not need accessible seating, the
premise of Question 21 is that subparagraph (5) also would allow the
converse---*i.e.*, the transfer of an "inaccessible" ticket to a
disabled person. 

Given these ambiguities, we will address all eventualities in our
discussion.  Thus, construing the proposed regulation and Questions 20
and 21 most broadly, the following problems, among others, would almost
certainly flow from any attempt to allow or encourage the transfer or
resale of an accessible seating ticket for use by someone who is not
disabled, or the transfer or resale of an inaccessible seating ticket
for use by someone who is disabled:

-   If the transfer of an accessible seating ticket is not expressly and
    explicitly limited to a transferee who is disabled, the transferee
    may not understand that he or she is acquiring an accessible seating
    ticket.

-   Ticket resale websites generally do not differentiate between
    accessible seating tickets and general seating tickets.  Thus, as a
    practical matter, the responsibility for any disclosure that the
    tickets being offered for sale on the secondary market are for
    accessible seating would be on the resellers themselves.  Not only
    will some resellers be less than diligent about making such
    disclosures, but resellers will have a financial incentive not to
    make such a disclosure, so as not to limit the pool of potential
    purchasers.

-   Venues may not be able to find an alternative seat for an
    able-bodied person who arrives at an event with an accessible
    seating ticket.

-   Venues may not be able to find an alternative seat or space for a
    disabled person who arrives at an event with an inaccessible seating
    ticket.

-   Venues and ticket-selling companies could be subject to litigation
    by persons whose last-minute need for re-seating cannot be
    accommodated.

-   The ability to resell accessible seating tickets to the general
    public creates a material risk of diminishing the number of
    accessible seats available to those who need them.   As discussed
    below, an alternative approach may be to provide the initial holder
    of an accessible-needs seat with more liberal or relaxed refund
    rules.

As noted above, the text of subparagraph (5) appears to envision that
the right to transfer an accessible seating ticket for use by someone
who is not disabled is limited to transfers to friends and associates of
single-event tickets from a multi-event ticket package.  If the right
were restricted to that context, some of the foregoing problems and
challenges may be less likely to occur.  For example, if such transfers
were limited to the context of tickets for single events that are part
of a multiple-event package, the risk that accessible seating tickets
would be purchased in the first instance for the sole purpose of resale
at a profit may be attenuated.[^1]^1\]^  Further, if transfers were
limited, as subparagraph (5) suggests, to "single-event use by friends
or associates," the risk of transferees not understanding that they are
acquiring accessible seating tickets would be decreased.[^2]^2\]^

\[FN 1:          However, there would still be a risk that such tickets
would be purchased in the secondary market for the purpose of further
resale at a profit.\]

\[FN2:           It is not entirely clear how any purported limitation
on transfers to "friends and associates" could be enforced, particularly
if the transferee were free to make a further transfer.  Thus, even if
subparagraph (5) were construed most consistently with the current
language, there would still likely be resales---including, sometimes,
multiple resales of the same ticket---in the secondary ticket market.\]

Nonetheless, certain challenges will apply no matter how narrowly the
proposed regulation were to be construed.  For example, there is no
requirement in subparagraph (5) that the venue itself participate in the
transfer of accessible seating tickets to people who do not need
accessible seating, or vice versa.  Without any involvement by the venue
at the time of the transfers, the venue will not have advance notice
that people without disabilities may be arriving with an accessible
seating ticket or vice versa.  As a result, the venue would need to
reseat people in accessible seating or inaccessible seating, as
applicable, at the last minute when the ticket holders arrive to attend
the event.  Although venues often make last-minute changes and
accommodations, such a regulation would exacerbate the demands being
placed on venues for last-minute reseating.  This could create
significant problems, not only for the venues, but for the
ticket-holders themselves, for whom no viable seat or place may be
available. 

Further, in those instances when the venue succeeds in finding a place
for a disabled person who arrives with a general seating ticket, or vice
versa, the alternative seat may not be in the same area or of the same
quality.  In such instances, there would need to be protection from
liability for the venue and for any third-party ticket sellers who
handled a transaction involving that ticket.  The potential for surprise
or disappointment for the holder of an accessible seating ticket could
perhaps be decreased if the tickets themselves were to specify that the
holder is subject to being moved to a less favorable location if the
holder is not disabled.[^3]^3\]^  Indeed, we believe that it would make
sense to include a regulation that requires all tickets for accessible
seating to clearly indicate that they are for accessible seating and
identify the type of accessibility (*e.g.*, wheelchair, limited
mobility, hearing-impaired, vision-impaired, etc.) \[FN3:  Analogous
disclosures on general seating tickets may be less necessary. 
Presumably, a disabled person who acquires a general seating ticket in a
resale is aware that the ticket is for general seating and thus is aware
of the risk that he or she may be relocated to an accessible seating
location that is less desirable than the particular general seating
area.\] 

In addition, insofar as the goal of increased transferability is to give
the holder of an accessible seating ticket who cannot attend an event
the opportunity to recoup some or all of the ticket price---an
opportunity that presumably applies for general seating tickets when
they are resold in the secondary market---the goal could more easily be
achieved by allowing the initial holder of an accessible seating ticket
more freedom to obtain a refund on the ticket. 

To summarize, even though subparagraph (5) as phrased appears to be
limited to the transfer to friends or associates of a ticket for a
single event from a multi-event ticket package, it could still pose
significant challenges for venues, insofar as accessible seating tickets
could be used by able-bodied persons.  As to Question 20, we do not have
any particular position, other than to note that the problem posed by
Question 20 illustrates the problems that would ensue if accessible
seating tickets could be transferred as envisioned in subparagraph (5). 
As to Question 21, we note that subparagraph (5), as written, does not
appear to envision that a disabled person could purchase an inaccessible
seating ticket on the secondary market yet have a right to an accessible
seat.  Nonetheless, in specific response to Question 21, we reiterate
that there are substantial concerns about any transferability provision
that, as a practical matter, would minimize, if not eliminate, the
distinction between accessible seating tickets and general seating
tickets for the purpose of resales.  It could present a logistical
nightmare for the venues, and could turn accessible seating tickets into
a commodity that could be resold for profit, with perverse result of
diminishing the opportunity of disabled persons to obtain accessible
seating tickets at a fair price.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(6\) *Hold and release of accessible seating*. A public accommodation
may release unsold accessible seating to any person with or without a
disability following any of the circumstances described below:

\(i\) When all seating (excluding luxury boxes, club boxes, or suites)
for an event have been sold; (ii) When all seating in a designated area
in the facility has been sold and the accessible seating being released
is in the same designated area; or (iii) When all seating in a
designated price range has been sold and the accessible seating being
sold is within the same designated price range. Nothing in this
provision requires a facility to release wheelchair seats for general
sale.

The Department also posed the following questions in connection with
subparagraph (5):

Question 22:  *Although not included in the proposed regulation, the
Department is soliciting comment on whether additional regulatory
guidance is required or appropriate in terms of a more detailed or set
schedule for the release of tickets in conjunction with the three
approaches described above. For example, does the proposed regulation
address the variable needs of assembly areas covered by the ADA? Is
additional regulatory guidance required to eliminate discriminatory
policies, practices, and procedures related to the sale, hold, and
release of accessible seating? What considerations should appropriately
inform the determination of when unsold accessible seating can be
released to the general public?*

[Discussion of subparagraph (6) and Question 22.]{.underline}

In response to Question 22, we believe that a couple of issues should be
taken into account in any determination of when unsold accessible
seating tickets can be released to the general public.  First, most
ticket sales involve the purchase of at least two adjacent seats. 
Therefore, for popular events, there eventually comes a time when the
only remaining tickets in any particular section or price range are
"scattered singles" that as a practical matter are almost impossible to
sell.  A venue or ticket seller should be allowed to release accessible
seating tickets to the general public even when some tickets in a
section or price level remain unsold, so long as the unsold tickets are
only for scattered singles.

Second, the exceptions in subparagraph (6)(i) should be broader than
just luxury boxes, club boxes and suites.  For most events, certain
tickets are held back for use or distribution by persons connected with
the event, such as promoters, performers, venue owners, etc.  How such
tickets will be used is often not determined until the last moment, and
in any event, such tickets are not generally available for sale to the
public.  Thus, whether those tickets have been sold or allocated to
specific people should not factor into whether the conditions are
appropriate for releasing accessible seating tickets for sale to the
general public.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(7\) *Ticket prices.* The price of tickets for accessible seating shall
not be set higher than for tickets to seating located in the same
seating section for the same

event. Accessible seating must be made available at all price levels for
an event. If an existing facility has barriers to accessible seating at
a particular price level for an event, then a percentage (determined by
the ratio of the total number of seats at that price level to the total
number of seats in the assembly area) of the number of accessible seats
must be provided at that price level in an accessible location. In no
case shall the price of any particular accessible seat exceed the price
that would ordinarily be charged for an inaccessible seat in that
location.

[Discussion of subparagraph (7).]{.underline}

This provision could not reasonably apply to ticket auctions and ticket
resales, where prices are established by the reseller or the market.  In
addition, it should be made clear that nothing in this subparagraph
would prevent ticket sellers from charging standard fees in the sale of
accessible seating tickets, so long as those fees are no higher than
they would be for sales of other tickets in the same price range. 

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(8\) *Prevention of fraudulent purchase of accessible seating.* A
public accommodation may not require proof of disability before selling
a wheelchair space. (i) For the sale of single-event tickets, it is
permissible to inquire whether the individual purchasing the wheelchair
space uses a wheelchair. (ii) For season tickets, subscriptions or other
multi-events, it is permissible to ask the individual to attest in
writing that the wheelchair space is for an individual who utilizes a
wheelchair. A public accommodation may investigate the potential misuse
of accessible seating where there is good cause to believe that such
seating has been

purchased fraudulently.

[Discussion of subparagraph (8).]{.underline}

The potential for the fraudulent purchase of accessible seating tickets
is likely to be directly proportionate to the flexibility and scope of
any resale rights for such tickets.  Because disability fraud injures
legitimate wheelchair users, their families and the public assembly
facility, a wheelchair user in theory should not object to providing
proof of disability by signing a statement, under the penalty of
perjury, that they are in fact a disabled wheelchair user. The facility
or event must be able to investigate the statement prior to selling the
person any tickets for any event. Once season tickets or other tickets
are sold to the purchaser, the purchaser, whether legitimate or not, can
and will immediately sell the tickets to another person, broker or third
party. In response to an "investigation", the purchaser may reply that
"I could not make it to the event so I gave the tickets to my
non-disabled friend."

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

\(9\) *Purchasing multiple tickets.*  (i) Individuals with disabilities
and their companions shall be permitted to purchase the same maximum
number of tickets for an event per sales transaction as other spectators
seeking to purchase seats for the same event. If there is an
insufficient number of seats for all members of a party to sit together,
seats shall be provided that are as close as possible to the wheelchair
spaces. For accessible seating in a designated wheelchair area, a public
accommodation shall provide up to three companion seats for each person
with a disability who requires a wheelchair space, provided that at the
time of purchase there are sufficient available wheelchair spaces.  (ii)
For group sales, if a group includes one or more individuals who use a
wheelchair, the group shall be placed in a seating area that includes
wheelchair spaces so that, if possible, the group can sit together. If
it is necessary to divide the group, it should be divided so that the
individuals in the group who use wheelchairs are not isolated from their
group.

The Department also posed the following questions in connection with
subparagraph (9):

Question 23:  *Is the proposed rule regarding the number of tickets that
a public accommodation must permit individuals who use wheelchairs to
purchase sufficient to effectuate the integration of wheelchair users
with others? If not, please provide suggestions for achieving the same
result with regard to individual and group ticket sales.*

[Discussion of subparagraph (9) and Question 23.]{.underline}

We understand the preference for disabled persons to sit next to or near
their companions, but the proposed provision to require three companions
seats could create insurmountable difficulties for venues.  Moreover, it
could render any notion of real-time internet sales of accessible
seating tickets with companions impossible for the foreseeable future. 

For any venue that is not currently configured for three dedicated
companion seats for each wheel-chair accessible seat, it would be
impossible to have a seating chart that reliably and consistently
designates the location of companion seating.  Thus, for each such
transaction, it would be necessary to find companion seats---in addition
to the standard single dedicated companion seat---from the general pool
of tickets.  It is not technologically feasible to design a website that
would enable real-time purchases of accessible seating tickets with
dynamically reconfigured "companion" seats.  At present, Ticketmaster
for example enables a purchaser of accessible seating tickets whose
companions outnumber the number of dedicated companion seats to acquire
the additional tickets by interacting with a Ticketmaster e-care
representative in an email dialog (as described above with respect to
subparagraph (1)).  However, if the Department were to require real-time
internet capability to satisfy subparagraph (1), it would be impossible
to provide the flexibility necessary to effectively handle a purchase
involving multiple companion seats in a real-time environment.

Another significant problem with the proposal to mandate multiple
companion seating upon request is the potential that the additional
seating necessary to accommodate such a request may already have been
sold out.  Thus, if the Department were to require the ability to
provide dynamic companion seating configurations, there should be
protections for the venue and any third-party ticket sellers in those
instances where the potential companion seats have already been sold to
other purchasers.

In addition, if companion seating were to be expanded within the
wheel-chair accessible area itself, such that all of the companions
could sit next to the disabled person, there will be instances when the
accessible seating area sells out even though most of the people in that
area are not disabled.  This could have the paradoxical result of
depriving disabled persons of the opportunity to attend the event. 
Similarly, in many venues, the accessible seating area is in the best
location for a particular ticket price.  If those areas could
permissibly be occupied by numerous able-bodied companions, it could
increase the risk of fraud in the purchase of companion seating. 

Finally, it would be impossible to enforce any requirements regarding
companion seating in the context of secondary markets, because the
configuration of tickets is controlled by the resellers themselves. 
Thus, any such regulation should include protections from liability for
secondary ticket marketplaces.

**Section 36.303 Auxiliary Aids and Services**

***Question 26 per Title III (Question 49 per Title II)**: The
Department believes that requiring captioning of safety and emergency
information made over the public address system in stadiums seating
fewer than 25,000 has the potential of creating an undue burden for
smaller entities. However, the Department requests public comment about
the effect of requiring captioning of emergency announcements in all
stadiums, regardless of size. Would such a requirement be feasible for
small stadiums?*

> No, requiring captioning of emergency announcements in all stadiums,
> regardless of size is absolutely not feasible. Many collegiate
> stadiums and even high school stadiums have more than 25,000 seats and
> providing captioning of safety and emergency information in these
> facilities would be very difficult. Although the burden to provide
> captioning is great in any facility due to the equipment and staffing
> demands, facilities that would otherwise not have an emergency
> generator would have significantly greater burden. A reliable system
> for captioning emergency announcements in large seating areas would
> very likely require an emergency generator. Not only is the cost for
> providing the emergency generator great, but most stadiums without one
> typically would have greater difficulty finding potential funding
> sources.
>
> Many stadiums across the country currently only have one or two
> scoreboards with no other electronic displays provided in the
> scoreboards. A captioning display could be two to three times the size
> of their scoreboard and more than one display may be required. Also,
> most stadiums across the country are staffed by volunteers rather than
> the trained staff. Solving the technological challenges alone does not
> assure effective captioning. If captioning is to be required, the
> threshold should not be based upon the number of the seats. Most
> community, high school, collegiate or even minor league facilities
> would have significant burden if required to provide captioning,
> especially if it means adding an emergency generator.
>
> In addition, safety and emergency announcements are required to be
> made over an occupant notification system that is in accordance with
> the National Fire Protection Association (NFPA) 72, with the exception
> of large seating areas where the PA system and electronic displays or
> message boards are permitted as alternative occupant notification.
> Scoreboards and video boards do not comply with NFPA 72. The 2006
> International Building Code (IBC), the 2006 NFPA 101 the Life Safety
> Code, and the 2004 ADAAG require compliance with NFPA 72. Therefore,
> the use of scoreboards and video monitors for captioning emergency
> announcements would be limited to the large seating area; otherwise it
> would be in conflict with the applicable codes and the "Standard"
> being considered by the Department of Justice. The use of the public
> address system and captioning displays in a large seating area is
> permitted since they provide more effective occupant notification than
> devices in compliance with NFPA 72 due to many factors. However, other
> spaces would not be permitted to use devices that are not in
> compliance with NFPA 72.
>
> Also, safety and emergency information can be "prerecorded" for both
> announcements over the PA system and captioning on the scoreboards and
> video monitors in an emergency. However, a microphone is required in
> the fire command center in case the fire department needs to over-ride
> the emergency notification system to make "live" safety and emergency
> announcements. "Live" captioning is more of a challenge since
> stenographer training is needed to caption information. Providing a
> stenographer on-site for a potential emergency at any point in time
> may be extremely burdensome and providing a stenographer off-site
> requires further interface between a system in compliance with NFPA 72
> and one that is not. Therefore, there are technical challenges with
> captioning safety and emergency announcements that need further
> consideration by the organizations developing the applicable codes.

***Question 27 per Title III (Question 50 per Title II)**: The
Department is considering requiring captioning of safety and emergency
information in sports stadiums with a capacity of 25,000 or more within
a year of the effective date of the regulation. Would a larger
threshold, such as sports stadiums with a capacity of 50,000 or more, be
more appropriate or would a lower threshold, such as stadiums with a
capacity of 15,000 or more, be more appropriate?*

> No, as stated in the comment for question 49, a threshold based upon
> the capacity of the stadium is not an appropriate approach. The size
> of the stadium does not assure its ability to provide effective
> captioning. A stadium provided with an emergency generator would be a
> more appropriate threshold since one having a generator will more
> likely have sufficient resources to manage the captioning system than
> would a facility that does not have a generator. The building code
> requires an emergency generator based upon many factors. A large
> seating capacity does not necessarily demand a generator. However, the
> complexity of the overall facility may demand a generator. That
> complexity seems to have a greater relationship to the ability to
> provide effective captioning than simply the stadium capacity. A
> facility complex enough to require an emergency generator is more
> likely also sophisticated enough to provide effective captioning even
> though a facility requiring an emergency generator could have a
> capacity of 15,000 or fewer.

***Question 28 per Title III (Question 51 per Title II)**: If the
Department adopted a requirement for captioning at sports stadiums,
should there be a specific means required? That is, should it be
provided through any effective means (scoreboards, line boards, handheld
devices, or other means), or are there problems with some means, such as
handheld devices, that should eliminate them as options?*

> Many options could provide effective captioning; therefore arbitrarily
> limiting options might restrict the development of future devices that
> could be beneficial to persons with a disability. It is our
> understanding that personal handheld devices are currently being
> developed in response to mass notification objectives. Therefore, it
> is anticipated that these devices might offer enhanced communication
> over what is currently available by any means. However, the
> communication of any safety and emergency information will need to be
> in accordance with the applicable codes. Scoreboards in major
> facilities today include electronic displays, message boards, matrix
> boards and video boards. It is not like scoreboards in a high school
> basketball gymnasium or little league baseball park. Captioning safety
> and emergency announcements on the video board has significant
> challenges. An occupant notification system, even an alternative
> system in a large seating area, requires reliable emergency power.
> Video boards demand an enormous amount of electrical power, typically
> as much as all elements requiring emergency power by the building code
> combined; therefore the size of the generator would be prohibitively
> expensive if the video board was required to have emergency power.
> Also, restarting the video board after a power outage consistent with
> the reliability requirements of the building code is extremely
> difficult.

***Question 29 per Title III (Question 52 per Title II)**: The
Department is aware that several major stadiums that host sporting
events, including National Football League football games at Fed Ex
Field in Prince Georges County, Maryland, currently provide open
captioning of all public address announcements, and do not limit
captioning to safety and emergency information. What would be the effect
of a requirement to provide captioning for patrons who are deaf or hard
of hearing for game-related information (e.g., penalties), safety and
emergency information, and any other relevant announcements?*

A requirement to caption all public address announcements and other
audible information at live sporting events would be overly burdensome
and unnecessary. The fundamental information associated with a live
sporting event is the on-field action information itself that is equally
available to all patrons including the hearing impaired patrons. The
audio announcements, which often include identical statistical
information to what is displayed on the scoreboards, music, and
commercial announcements, are inherently secondary to the fundamental
action on the field and provide such a minor addition to the in-venue
experience that the significant costs and logistical challenges far
outweigh any incremental benefit of captioning this information.
Requiring captioning would require for most venues significant financial
and infrastructure costs, including large generators, to add caption
display boards and stenographers. In addition, much of this is
impractical. Music, for example, is often turned on and off to
correspond with specific game situations and captioning musical snippets
is simply impractical and having the lyrics displayed provides minimal
benefit. Similarly, captioning radio or television audio feeds in
concourse and vending areas -- which involve multiple speakers and in
the case of television, speakers commenting on specific images -- would
be confusing and technologically challenging. The huge variety of
in-venue entertainment options would make a uniform set of rules
difficult, if not impossible, to apply from stadium to stadium. A
blanket rule covering anything other than basic safety and emergency
information is unnecessary and would be overly burdensome.

***Question 40 per Title III (Question 35 per Title II)**: Are team or
player seating areas in certain types of existing facilities (e.g., ice
hockey rinks) more difficult to make accessible due to existing designs?
What types of existing facilities typically have design constraints that
would make compliance with this requirement infeasible?*

> Facilities that do not have an accessible route readily available to
> the team or player seating areas would have the most constraints. This
> is not limited to just ice hockey rinks. There are several facilities
> where courts are either constructed back-to-back or side-by-side that
> could present challenges when trying to make team or player seating
> areas accessible, including tennis or sand volleyball courts and ice
> rinks. Many of them are built in sloping terrain with courts at
> different elevations, further complicating the means for providing an
> accessible route. This would likely require the reconstruction of
> most, if not all, of the fields-of-play to maintain the playing
> surface if it requires relocation in order to provide an accessible
> route to each seating area.
>
> Making team or player seating areas accessible, especially in existing
> designs, is dependent upon making the available path to the player
> seating area an accessible route. For example, making team or player
> seating areas accessible in a professional hockey rink that has direct
> access from the player's locker room to the seating area is more
> manageable than a community rink with access to the players seating
> area only from the ice sheet. These "community ice rinks" can be
> side-by-side with little space between the rinks and/or snug within
> the structural frame of the enclosing building. Each of these types of
> community ice rinks could require significant reconstruction to
> provide an accessible route to the player seating area.
>
> On a similar note, an ice sheet presents several challenges regarding
> the requirements of an accessible route, not just slip resistance,
> even though community ice rinks are used for sled hockey by persons
> with a disability nationwide. Temporary ramps are required to access
> the ice since the elevation of the ice can vary over time.

***Question41 per Title III (Question 36 per Title II)**: Should the
Department create an exception to this requirement for existing courts
(e.g., tennis courts) that have been constructed back-to-back without
any space in between them?*

> Yes, there should be an exception for not just courts, but any
> fields-of-play that has been constructed back-to-back or side-by-side.
> There are several sports that would have similar challenges as tennis
> courts, even ice rinks or indoor soccer fields.

**36.308 Seating in assembly areas per Title III**

(a)(1)

\(ii\) Locate the wheelchair seating spaces and companion seats so that
they:

\(A\) Are an integral part of the seating area and are dispersed to all
accessible seating levels; and

> The Standards for new construction of this same rule require the
> dispersion of wheelchair and companion seating to all levels of the
> facility that are served by an accessible route. Why should this not
> use the same criteria, especially when it would offer more confusion
> otherwise? It is not as clear to use the term "accessible seating
> levels" as it is to use the term "levels served by an accessible
> route". Therefore, we recommend modifying this to match 36.406 (f)(1).

\(B\) Provide viewing angles to the screen, performance area, or other
focal point that are equivalent to or better than the average viewing
angles provided to all other spectators;

> Line of sight is very complex with numerous factors to consider with
> some factors more critical in some facilities, not in others. The
> vertical viewing angles in a sports facility do not vary as much as in
> a movie theatre and the horizontal viewing angles in a movie theatre
> do not vary as much as in a sports facility. We understand the
> importance of providing spectators in wheelchairs viewing angles that
> is at least as good as other spectators. But "average" viewing angles
> is not as measurable in a sports facility or live theatre as it is in
> a movie theatre, especially when seating is 360 degrees around the
> field of play. Therefore, viewing angles in a sports facility or live
> theatre is more subjective and "better" viewing angles are more
> subject to personal opinion.
>
> Viewing angles in a sports facility or live theatre is more related to
> wheelchair dispersion because a greater variety of locations also
> provides greater viewing options similar to other spectators. However,
> accessible means of egress has a direct bearing on wheelchair
> dispersion. The accessible route requirements are not as restrictive
> as accessible means of egress. At least two accessible means of egress
> are required where more than one exit is required by both the 2000 and
> the 2003 edition of the International Building Code. The 2004 ADAAG
> requires the accessible means of egress to comply with either of these
> editions of the IBC. Consequently, wheelchair dispersion is impacted
> by the accessible means of egress requirements, which in turn impacts
> viewing angles.
>
> This may be more of an issue of clarifying the intent since the
> language of this section is similar to the line of sight and
> dispersion requirements of the 2004 ADAAG. However, it is absolutely
> imperative that viewing angle criteria be clearly identified, not only
> so that owners, designers, contractors and code officials understand
> their obligations, but people with disabilities can know what to
> expect under the regulations.

**35.151 New construction and alterations per Title II & 36.406
Standards for new construction and alterations per Title III**

*(g) Assembly areas* **\[per Title II\]** *(f) Assembly areas* **\[per
Title III\]***.* Assembly areas subject to the proposed standards shall
comply with the provisions applicable to assembly areas, including, but
not limited to, sections 221 and 804. In addition, assembly areas shall
ensure that:

> We ask the Department if the above should be 802 instead of 804?

\(1\) Wheelchair and companion seating locations are dispersed to all
levels of the facility that are served by an accessible route;

\(2\) Wheelchair and companion seating locations are not located on (or
obstructed by) temporary platforms or other movable structures. When
wheelchair seating locations are not required to accommodate people who
use wheelchairs, individual, removable seats may be placed in those
spaces;

> We recognize the concern regarding the temporary removal of wheelchair
> seating. However, our surveys show approximately 10% or less of the
> wheelchair spaces are used by someone with a disability, especially in
> very large stadiums. We believe that maintaining wheelchair seating
> relates more to a commitment of meeting the needs of people with a
> disability than the construction material used for the wheelchair
> seating platform. It can be very difficult to maintain wheelchair
> spaces with anything other than a removable seat in a wheelchair space
> in seating that is based upon day-of-game sales. Therefore, we agree
> that this approach is appropriate for seating having day-of-game
> sales. However, in seating that is sold only on a season ticket basis
> months before the first event of the season, makes this ptovision
> overly restrictive. We agree that all of the wheelchair spaces need to
> be marketed to and maintained for persons with a disability each and
> every season and that some wheelchair spaces need to be maintained
> throughout each season for unforeseen conditions. But, we need the
> flexibility to manage available seats to meet the demand that
> temporary platforms or movable rows of seats provide where seating is
> sold on a season ticket basis.

\(3\) Facilities that have more than 5,000 seats shall provide at least
five wheelchair spaces and at least three companion seats for each
wheelchair space;

> If this provision remains in the final rule, the term "companion seat"
> should be modified. A "companion seat" is required immediately
> adjacent each wheelchair space, therefore one or two "companion seats"
> can be provided with the required shoulder alignment, not three. In
> addition, we assume that the five wheelchair spaces would be included
> in and not in addition to the wheelchair seating required by 2004
> ADAAG. Finally, we question whether there is sufficient substantiation
> for the additional "companion" seats based upon our surveys showing
> the use of wheelchair spaces by someone with a disability. The number
> of additional companions is more a ticket policy than a design issue;
> therefore this provision should be addressed by the Access Board in
> their design guidelines.

**Small Business Exemption**

*Question 46: Should the Department adopt a presumption whereby
qualifying*

*small businesses are presumed to have done what is readily achievable
for a*

*given year if, during the previous tax year, the entity spent at least
one percent (1%) of its gross revenues on barrier removal? Why or why
not? Is one percent (1%) an appropriate amount? Are gross revenues the
appropriate measure? Why or why not?*

Answer to Question 46: May we suggest that the Department continue to
develop this small business exemption with specific definitions and
include an exemption for similar facilities regulated under Title II of
the ADA.

Comments on Section 221 Scoping for Assembly Areas: Approximately 99.9%
of facility and event managers believe that the Department is correct in
its decision to reduce wheelchair scoping in this section. Our surveys
show approximately 10% or less of the wheelchair areas in facilities
across the country are used by wheelchair users. We thank the Department
for correcting the current regulations and adjusting the scoping to
better reflect the actual use of these wheelchair seat areas.

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