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Strengthen Proposed Telecommunications Access Regulations!
Write to the FCC. Share your story and your recommendations.
Your grassroots organizing to strengthen the proposed regulations
is urgently needed. It will determine whether the technology many take
for granted is accessible to and usable by people with disabilities.
Will weak regs prevent millions of us from using future technology?
Your grassroots advocacy in the next two weeks will determine the
future.
Telecom access is the most important access issue we've faced since
the Americans with Disabilities Act. If the regs are strong, we have
a great vehicle to push for access in 21st century communication.
If they're weak and stand as proposed, we've got status quo or worse.
You may see the NPRM itself by pointing your browser to
www.fcc.gov/bureaus/wireless/notices/1998/fcc98055.txt
Please send your comments to:
Federal Communications Commission
Office of the Secretary, Room 222
Washington, DC 20554
You can file comments electronically using a web-based form at the
address http://www.fcc.gov/e-file/ecfs.html
IMPORTANT DEVELOPMENTS IN TELECOMMUNICATIONS ACCESS:
AN UPDATE FOR CONSUMERS
By the National Council on Disability
Marca Bristo, Chairperson
June 5, 1998
INTRODUCTION
The Federal Communications Commission (FCC) has proposed regulations for
achieving the provisions of law concerning "Access to Telecommunications
Services, Telecommunications Equipment, and Customer Premises Equipment
by Persons with Disabilities." This Notice of Proposed Rule Making
(NPRM) interprets and applies the provisions of Section 255 of the
Telecommunications Act of 1996, which creates historic access
requirements.
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 mcontee(AT)fcc.gov). 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 the following
address:http://www.fcc.gov/Bureaus/Wireless/Notices/1998/fcc98055
..html
If reading the entire NPRM is a bit overwhelming, a summary
prepared by the National Association of the Deaf is available at
the address: http://48i.com/nadtc/action/255/255Summary1.htm
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
To ensure each FCC Commissioner gets a personal copy of your comments,
include an original plus nine copies. Alternatively, you can file
comments electronically using a web-based form at the address
http://www.fcc.gov/e-file/ecfs.html 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?
CONCLUSION
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!
--
Fred Fay
Justice-For-All Moderator
jfa(AT)mailbot.com
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