IMPORTANT DEVELOPMENTS IN TELECOMMUNICATIONS ACCESS:
AN UPDATE FOR CONSUMERS
By the National Council on Disability
Marca Bristo, Chairperson
June 5, 1998
The NPRM is important for two reasons. First, it indicates how the FCC intends to implement the law. In other words, it explains what the law will mean and how it will operate in the lives of those it was intended to benefit, and how it will affect the practices of the telecommunications industry. Second, the NPRM gives you an opportunity to exercise your rights as a citizen by telling the FCC what you think. By publishing their intentions as proposed rules, federal agencies give interested members of the public an opportunity to have input into the shape of government.
Rarely has it been so important for people with disabilities to take advantage of such an opportunity. The FCC Commissioners will certainly hear from industry regarding its reactions to these proposals. They need to hear from consumers as well. They need to know, regardless of the details of what you say, that you care about this issue and that access to the telecommunications system is vital to your full participation in society. The nearly 150 page NPRM is written in highly technical and legalistic terms. It is probably difficult for someone without extensive background in the subject to follow the intricacies. Many of us have little familiarity with this policy area. We may therefore assume that our comments would be of little value. Equally understandable, many may wonder how this subject affects them. It may seem to have little bearing on the problems that confront and preoccupy us in daily life. Rest assured, however, that your comments will be valuable whether or not you are a telecommunications expert. If you just tell your own story in your own words, if you let the FCC know how telecommunications access has made a difference in your life, or how the lack of it would matter, you will be making a meaningful contribution. The FCC and its staff are made up of lawyers, engineers, accountants, policy analysts, and other technical experts. Yet they are also human beings who respond to the personal stories of others.
If telecommunications access seems remote from your daily life, try asking yourself the following. Is there a piece of telephone equipment that I, as a blind person, can't use because key information is available only on a visual display? Is there an item that I, as someone who is deaf, cannot use because crucial status or content information is conveyed only by auditory means? Is there a product with intricate buttons that I, as an individual with a manual impairment, cannot operate? Is there a telecommunications service that I, as a person with a cognitive disability, cannot access because the voice menu goes by so fast there is no time to write down or remember the options? Is there a device that defaults or "times out" too quickly for me, because of a physical limitation, to enter the necessary response or command? If none of these are problems for me today, are any likely to be when I get older? If your answer to any of these questions is "yes," or if the answer is "yes" for someone you know or care about, or if you have ever had to pass up a good job or not hire a promising candidate because you couldn't figure out how the phone would be used as effectively as the work required, then telecommunications access is no longer a remote abstraction in your life.
Indeed, telecommunications has already had a major impact on the ability and opportunity for people with disabilities to learn, work, and participate in the community. Moreover, just as telecommunications is becoming increasingly important in the lives of Americans generally, so also is its significance in the lives of people with disabilities destined to grow.
As an indication of the FCC's eagerness to obtain feedback, the NPRM (officially designated WT Docket No. 96-198) is available in a variety of formats, including braille, large print, audio cassette, and computer disk (by contacting Martha Contee via phone at 202-418-0260, via TTY at 202-418-2555, or via email at email@example.com). Comments are due by June 30, 1998. Reply comments (that is, responses to the comments made by others) are due by August 14.
The entire NPRM is available in text,WordPerfect, and PDF formats from the web site of the FCC at this address If reading the entire NPRM is a bit overwhelming, a summary prepared by the National Association of the Deaf is available at this address
Comments on the NPRM may be sent in print to the FCC at the following location:
Federal Communications Commission Office of the Secretary, Room 222 Washington, DC 20554
The FCC states that such comments will receive the same formal attention as comments submitted on paper.
QUESTIONS AND ANSWERS
The following is a summary, in question and answer format, of key issues in the proposed regulations. It is intended to help potential commenters--who may not have followed the Section 255 legislation closely--to develop a framework for responding by considering some key questions and possible responses that various experts and advocates have discussed. It is not intended to tell you what to write, or to support a particular position on an issue. It is intended to encourage you to submit something, and to acquaint you with some of the issues you might wish to address.
Q. Why has the FCC issued this NPRM?
A. No major statute is self-enforcing. Section 255 of the Telecommunications Act is a statement of broad principles. To turn this broad statement into an operational blueprint that can guide industry and inform consumers, a number of things need to be done. Definitions must be developed for key terms. Procedures must be specified for evaluating compliance and for handling complaints. Criteria must be developed for defining such fundamental concepts as "readily achievable" in operational terms.
Congress did not intend to dot every I or cross every T. It expressly delegated to the FCC, in conjunction with the Access Board (Architectural and Transportation Barriers Compliance Board), the task of doing these things. On February 3 of this year, the Access Board issued its guidelines covering the meaning and application of the equipment-related "accessibility" and "compatibility" provisions of the law. It remains for the FCC to establish parallel rules governing "telecommunications services," and to interpret a number of key concepts.
Q. Is there a difference between "guidelines" and "regulations"? Do the Access Board guidelines have legal force?
A. Yes and no. The Access Board guidelines (which are published as Part 1193 of Title 36 of the Code of Federal Regulations) became effective on March 5. But the statute gives complete authority over enforcement of Section 255 to the FCC. Until and unless the FCC adopts the Access Board guidelines, they have to be regarded as advisory. Even if they were something more, one cannot use them as a basis for going to court to challenge a violation of the law, because the statute specifies that there is no "private right of action" available to individuals. This means that no court is legally authorized to hear a complaint based on Section 255. Jurisdiction over such complaints is placed entirely with the FCC. (There is a possibility that issues raised under Section 255 could be brought into court because they are also covered by other sections of the law, but that is beyond the scope of this discussion.)
Q. Does the NPRM propose to adopt the Access Board guidelines?
A. Although it republishes the guidelines as an appendix to the NPRM, the FCC does not adopt the Access Board guidelines in full. To those who remember how the U.S. Department of Justice adopted the technical guidelines developed by the Access Board under the Americans with Disabilities Act (ADA), this difference will be striking. What the FCC has done instead is to endorse certain provisions of the Access Board guidelines, reject other provisions, imply acceptance or rejection of some other portions, and make no clear reference--neither approving nor disapproving--to still other parts.
This approach to dealing with the Access Board's work is a topic on which people might wish to comment. Since the Access Board's guidelines grew out of a lengthy consultative process involving industry and the disability community, some may feel that the FCC should have deferred to them, and should either have adopted them in full or adopted them except to the extent that the NPRM clearly states the FCC's intention to depart from them. Others may feel that the FCC has interpreted the phrase "in conjunction with the Access Board" correctly, and that it is entirely appropriate for it to conduct its own analysis of all the issues, especially since it too will have the benefit of considerable public and industry input.
Q. What is the significance of the term "readily achievable" and how does the FCC define it?
A. The statute (Section 255 of the Telecommunications Act) requires that "telecommunications equipment," "customer premises equipment" (CPE), and "telecommunications services" must be "accessible to and usable by" persons with disabilities, if doing so is "readily achievable." If accessibility is not readily achievable, then equipment and services must be made "compatible with" peripherals and other devices "commonly used" by persons with disabilities to attain access. Again, however, this is required only if such compatibility is readily achievable. As a result, "readily achievable" is the pivotal calculation for equipment manufacturers and service providers. If an accessibility measure is not readily achievable, then it is not a legal obligation. In specifying the "readily achievable" standard, Congress indicated that the term was to be defined in the same way as it is defined under the ADA. This was not literally possible though, since the criteria relevant in telecommunications situations cannot be exactly the same as those in the physical environment of buildings and facilities. The FCC still found it possible, however, to use some of the same factors. These include the cost of the access measure, its relationship to the company resources available, and its impact on the design or function of the product.
The NPRM goes on to add new factors that have not been widely used under the ADA. These include such considerations as the time required for recovering the cost of implementing the accessibility strategy, the market demand for the accessible product, and what are called "opportunity costs" of providing the accessibility. To understand how dramatically some of these additional factors go beyond what has been used for analysis under the ADA, one can imagine a restaurant making the statement: "We should not be required to make our facilities accessible because we never have any customers with disabilities anyway." The notion of "opportunity costs" refers to the things a manufacturer or service provider would be prevented from doing if it diverted resources--including budget and personnel--to accessibility.
Several aspects of the FCC's approach to "readily achievable" may inspire you to comment. For example, you may wish to address the appropriateness of the factors that the NPRM lists to be considered. If opportunity costs of accessibility to industry are to be considered, should opportunity costs of inaccessibility to people with disabilities also be taken into account? If so, how could those costs be determined? Where a company asserts excessive cost as a defense, should any particular proof be required? Should it matter what accounting procedures are being used to assess net costs? With respect to the range of factors the NPRM lists for consideration, should the FCC provide some guidance as to how each will apply or as to the relative weight to be accorded to each? In other words, should the FCC offer some guidance on how much cost will be too much cost, or to specify how long a cost recovery period will be too long? Regarding the market for accessibility, should claims that the market is small be obliged to document the research methods used to reach this conclusion?
To the degree that the FCC bases its choice of criteria on the ADA definition of readily achievable, it may be helpful to review the case law that has developed this concept under the ADA over the past eight years. Would these or other measures provide better guidance to industry concerning its responsibilities or clarity to the public concerning its rights?
Another key element of the NPRM's approach to readily achievable is "technical feasibility." Naturally, if something is not technically feasible, then it is not readily achievable. Should the FCC go further, however, in specifying how and when technical infeasibility exists? As telecommunications providers confront accessibility issues, often for the first time, the familiarity of their engineers with accessibility techniques may be initially limited. Good-faith assessments made during this learning period that an enhancement is not feasible may simply be incorrect. On other hand, experts in accessibility, if afforded input early enough in the design process, could suggest ways for accomplishing the goal.
The NPRM anticipates that the telecommunications industry will reach out to the disability community in its market research of new devices and services. Yet, since accessibility is so complex and often so novel an issue, should the FCC go further by requiring specific outreach to experts before it is determined that a particular product or service cannot feasibly be made accessible to people with one or another disability? If so, how could such a consultative process be instituted in ways that would assure timely access to relevant expertise, without compromising the speed, autonomy or confidentiality of new product development? Perhaps you have some comments on these issues that you would like to make.
Q. How does the NPRM approach telecommunications services?
A. If the telecommunications network is not properly designed, no improvements to equipment can provide reliable access. Many complex issues surround the question of access to telecommunications services. Broadly speaking, what we mean by telecommunications services, or by the telephone network, is the combination of hardware, software, wires and communication protocols by which data, without change, is originated by a person at some point, transmitted over the network, and received somewhere else. You may be the originator of the transmission, its recipient, or both. The system should be designed so as to allow you to complete the processes of sending and receiving the information you need.
There are some major legal restrictions on the FCC's freedom of action here, and you may wish to comment on whether, within those constraints, the NPRM takes too narrow an approach to using the discretion the FCC legally has. For one thing, not all the processes involved in the transmission, routing and receiving of telecommunications transmissions are really "telecommunications services." Some are called "enhanced telecommunications services," which, in the view of the FCC, are not covered by Section 255. Accordingly, the NPRM differentiates between a number of services and capabilities, based on their historical status as "basic" or "enhanced" services. For example, the NPRM indicates that access to directory inquiry services is "basic" to using the network, and thus covered, but access to reverse directory inquiry services (the ability to get the name or address of a person or business if you have the phone number) is not. Similarly, the NPRM suggests that access to voice dialing and transmission are basic, but that access to email is not, and thus not covered by the law.
Finally, the NPRM identifies a number of capabilities that might be considered to fall under its definition of enhanced services, but that it characterizes as basic by calling them "adjuncts to basic telecommunications services." The FCC's underlying logic in all these distinctions appears to be that services and capabilities which have traditionally been available to users of the telecommunications network, or that are indispensable to basic voice communication (including TTY) over the phone, are basic, whereas anything else, including apparently most of the new services and capabilities likely to become available over subsequent busy and innovative years, are enhanced, and thus not subject to Section 255.
Surely, Congress did not intend that the exciting innovations in telecommunications be left outside the mandate of accessibility? If the FCC thinks that existing law or its own prior regulatory precedents lead to this result, commenters may wish to suggest that the FCC either reexamine its precedents in the light of circumstances never foreseen when they were established, or that it appeal to Congress for amendments to the law that would allow it to implement access more effectively and comprehensively. Commenters may have opinions regarding the implausibility of Congress having gone to the trouble of mandating accessibility, but having intended to do so only for a small and shrinking proportion of the telecommunications services available to the American public.
Q. What is the NPRM's treatment of access peripherals?
A. Specialized peripherals and other devices used by people with disabilities to obtain telecommunications access are not regulated under Section 255 unless they qualify as CPE (customer premises equipment). Although unregulated, however, they remain important, since when CPE cannot be made directly accessible, it must be compatible with them. Specifically, the statute requires such compatibility to apply to devices "commonly used" by people with disabilities to obtain access. The approach taken by the NPRM to defining what equipment is "commonly used" is therefore quite important.
In an effort to articulate what peripheral equipment items are "commonly used" the NPRM suggests that "affordability" would be a factor to be considered. It also suggests that the status of a device as "widely available" could be shown by whether the device is provided under state equipment distribution programs. Virtually everyone accepts that not all devices can qualify under the "commonly used" and "widely available" standards. If there were no limits, then CPE would have to be compatible with everything. Still, commenters may wish to address some significant issues raised by the FCC's proposed approach. For example, some are concerned about the limiting effect of using affordability as a measure. They fear that this is arbitrary and note that for many people, assistive technology devices are not necessarily readily affordable. Should the financial barrier to the acquisition of needed peripherals be used, they wonder, as a basis for erecting a technical barrier as well?
You may wish to question what the FCC has in mind by the reference to what is provided under state equipment distribution programs. Commenters may wish to support this approach, or to suggest alternative strategies. For example, some have suggested that the compatibility requirement should cover devices that people would reasonably be expected to use in obtaining telecommunications access, regardless of the cost or distribution of the devices.
Q. What kind of enforcement mechanism does the NPRM propose?
A. Since enforcement is the exclusive responsibility of the FCC, the measures proposed in the NPRM are particularly important. Someone dissatisfied with an FCC enforcement proceeding cannot appeal to the courts.
The FCC opts for a primarily complaint-driven process. It intends that accessibility issues should surface, not so much through monitoring on its part, but through complaints from those who feel the law has been violated in some way. In addition, emphasis is placed on an informal complaint resolution process, including direct communication between the complaining party and the company complained about, and if that fails to resolve the problem, on mediation techniques. The option for a formal complaint process is left open, but the FCC proposes to reserve the right to decide in which cases that process can be invoked.
Do you think this is a sound approach? Some think that the NPRM is not clear enough on when formal adjudication will be used, or on how it can be determined whether the informal process has sufficiently resolved the problem. Others believe it is entirely appropriate to leave to the FCC's case-by-case discretion the determination of which cases should be taken up formally. These observers believe this question of what cases warrant formal treatment cannot be answered in advance but only after the FCC has had experience of the number and kinds of complaints received.
The NPRM does not specify the time frames that will apply to a number of the possible procedural options, but it does indicate an initial 5-business day period for companies to report on their responses to initial complaints. Some feel that this 5-day period is too short, while others believe that if a company has done its accessibility planning and research effectively, five days should be long enough to answer most questions. Perhaps you have an opinion to offer on this point.
While the NPRM anticipates that most complaints will be resolved between the parties with or without mediators or arbitrators, there are certain to be cases where serious disputes persist. Though likely to be few in number, there will inevitably also be some cases where after formal adjudication, the FCC is compelled to find that a manufacturer or service provider has failed to comply with the law. For that small number of cases, the issue of what are the available punishments becomes critically important.
The NPRM proposes, without specifying when each will apply, to use the range of sanctions that Congress has made available to the FCC in other contexts. These include "cease and desist" orders, forfeitures, and fines. Many people, however, feel that serious questions exist regarding how these sanctions would apply here. What do you think?
Historically, most of the sanctions in question have been developed in the regulation of broadcasting licenses. If a television or radio station broadcasts illegally (such as by using more power, time, or frequencies than its license allows), a cease and desist order (instructing the license holder to stop doing it) is appropriate and effective. But what is the parallel with equipment or services that violate Section 255? The FCC cannot ban the company from marketing the equipment or forbid it from offering a particular service to the public.
Similarly, if fines and forfeitures are used, what would be the size of the fines and what would be forfeited? Do you think the FCC has adequately analyzed the possible penalties in a manner that fairly balances the competing interests involved? If not, what would you suggest? For example, do you think the FCC should offer more guidance on when and how much each sanction will be imposed? If so, do you have any opinion on how the scale of punishments should be set up? Or do you think, as many do, that further specifics on these points are impractical until the FCC, industry, and disability community have had more experience living under the Telecommunications Act?
The preceding are some of the major issues of concern to people with disabilities on which you may wish to comment to the FCC. You need not comment on all of them. If your reading of the NPRM or a summary thereof results in your discovering additional issues of concern or interest to you, you should feel free to comment on these as well. Any of these issues are appropriate for discussion, whether or not they are among the specific subjects on which the FCC invites comment. Again, the main point is that you do comment, that you let the FCC know you exist, and that you care. Section 255 can be either a vital reality or a dusty lawbook page. The choice is up to you!
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