Opinion
CIVIL ACTION H-03-518.
August 31, 2004
Opinion on Summary Judgment
1. Introduction.
A deaf American says that he is adversely affected because foreign and domestic airlines do not (a) subtitle safety films and (b) subtitle entertainment films. He also complains that airlines do not subtitle films or safety messages in the languages of the countries that their flights serve. Federal law includes no private action for denial of equal access to in-flight entertainment. In addition, the contents of in-flight safety instruction are a regulatory matter. That would be the case even if he had been injured because he could not understand the oral-only instructions, foreign-language ones, or both.
He has suffered no injury and has no right, so the airlines will prevail.
2. Background.
Sam Bynum is deaf. The defendants are domestic and international airlines. Of the nine carriers sued, Bynum said that he had traveled domestically on three — American, Continental, and Delta. When asked about those flights after 18 months of litigation, Bynum could offer specifics for only two. They were both in 2004 — with the first being almost a year after he sued. 3. Standing.
Bynum does not have standing. Standing is the lawyers' term for having facts that permit recovery under some law. If you do not identify an injury and a law that would allow recovery for that injury, you cannot sue. Your case would be hypothetical or, worse, coercive.
He has not shown that he has flown on an airplane before he sued, making his connection to the behavior of the airlines non-existent.
He lacks an injury. Bynum has not been hurt as a consequence of oral-only safety instructions. In addition, he has not been hurt by not being able to hear the in-flight movie.
Even if he could show that he had been hurt by one of those conditions, he does not have a remedy in the law. The law that allows some recovery for the mere existence of a "barrier" to the disabled does not apply to airline entertainment.
4. Class.
Bynum wants to sue for his own non-existent injury from airlines that he has not flown. He also wants to represent all deaf people who fly and all people who do not speak the language of the airline. He cannot represent people without shared experience. For instance, he cannot represent non-English speaking passengers of an English-only airline since he speaks English.
5. Safety Films.
Bynum has suffered no injury, nor has he flown on a plane where his safety was at risk. Bynum has not shown that a lack of subtitles harms deaf passengers in a material way.
Still, Bynum wants the court to order airlines to subtitle safety films to account for language differences and hearing ability among passengers. Airlines, however, already compensate for differences among all passengers with safety pamphlets that are distributed to each passenger and universally understandable. Like instructions with furniture from IKEA, these pamphlets inform pictorially so that a person — whether non-English reading, illiterate, or deaf — knows what to do in an emergency. Flight attendants are available to instruct by gestures and to help passengers who appear not to understand the safety information.
Next, after his attorney noticed that there was no dual-language captioning of safety videos on her trip to Cancun, Mexico, Bynum amended his complaint to include the foreign-language complication. The observation of his lawyer is neither his experience nor his injury. If it were, he would fail because, when a person chooses to fly to Zurich, he accepts that Switzerland is a separate country with its own four languages, none of which is English. It has its own laws, too, as does our neighbor Mexico. If Bynum wants American law and language, he should stay in America, as he apparently has.
Last, Bynum has flown on no international carrier. Nor has he shown evidence — like a plane ticket — of his intention to travel abroad. Even if he had, Bynum could still not succeed in his campaign for dual-language captioning: the law does not require it. 14 C.F.R. 382.45(b), 382.47(b).
6. Movies.
Bynum says that, without captioning, a deaf passenger loses out on the "total experience" of watching and hearing a movie. This is true but not actionable. Movie watching in flight is not a right. Airlines help distract flyers from the tedium of flight through magazines, movies, music, and beverages. Differentially able people experience all these things differently. This is true of looking out of the window, too. They all — able and unable, old and young — get from A to B, and that is the function of airlines and aircraft. Nobody pays $437 and flies two-and-one-half hours to Chicago to see the in-flight movie.
A. Disability Law.
Bynum argues that showing movies or safety films transforms the airplane into a movie theater, making it a public accommodation of the kind that federal law compels to include facilities for the disabled. See 42 U.S.C. § 12181(7)(C).
An airplane is a common carrier, but it is not in the class of enterprises that are legally obliged to adapt their service to the disabled. An airplane is transportation, not entertainment. Showing in-flight movies does not convert aircraft into "places of exhibition." The movies, like magazines, are ancillary to the aircraft's purpose.
Most important, Bynum omits from his legal position the specific law that excludes aircraft places of exhibition. 42 U.S.C. § 12181(10).
B. Air Access.
Bynum says that the lack of subtitles discriminates against handicapped people in air transportation, violating another law. 49 U.S.C. § 41705. Like the others, this claim fails.
Although the Air Carrier Access Act applies to both domestic and foreign carriers, it includes no private right of action. Pub.L. No. 106-181, § 707, 114 Stat. 61, 158 (2000); Love v. Delta Airlines, 310 F.3d 1347, 1360 (11th Cir. 2002); Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004). Enforcement lies solely with the Department of Transportation. 14 C.F.R. pt. 302. If Bynum wants relief, he must talk to bureaucrats rather than sue airlines.
The Transportation Department requires passenger-safety briefings with the form and content that it determines makes sound public policy, weighing costs and benefits. This includes considering the abstract costs and benefits to flying and non-flying Americans of a functioning, economical air-transport system. Where it does not violate a limit on its authority, its reconciliation of competing interests stands.
7. Conclusion.
Neither facts nor law support Bynum's claim. He has suffered no injury. He cannot identify a law that supports him. Although he is truly disabled, his suit mocks the law and the needs of the disabled as well as wastes the resources of the taxpayers and the airlines's consumers, who must pay for this foolishness. The airlines will prevail, and Bynum will take nothing.
The airlines are invited to mitigate this imposition by moving through September 15, 2004, for compensatory sanctions.